Ogugua Chibuzo Marcellus v Public Prosecutor (B-05(M)-268-06/2017)

The Appellant was initially charged together with two others for having common intention to traffic 735.10 grams Methamphetamine. The charge against them reads: “Bahawa kamu lanjutan dari niat bersama kamu semua, pada 4.12.2014 jam lebih kurang 5.10 petang, bertempat di Pejabat Narkotik IPD Petaling Jaya, di dalam daerah Petaling Jaya, di dalam Negeri Selangor, telah didapati mengedar dadah berbahaya jenis Methamphetamine seberat 735.10 gram. Oleh itu, kamu telah melakukan satu kesalahan di bawah 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B(2) Akta yang sama dan dibaca bersama Seksyen 34 Kanun Keseksaan.”

At the end of the Prosecution’s case, only the Appellant was called to enter his defence. At the end of the defence case, the Appellant was found guilty and was sentenced to suffer death by hanging.

The Appellant filed this appeal. The Prosecution also filed an appeal against the acquittal of the other two accused who were charged together with the Appellant.

However, on the 5.12.2018, the Prosecution withdrew its appeal and the appeal was accordingly dismissed. Hence only this appeal by the Appellant lies in this court. We heard this appeal on the 30.1.2019, where at its conclusion we unanimously dismissed it. We now give our reasons for our decision. 3

Facts leading to the arrest and charging of the Appellant as narrated by the prosecution’s witnesses had been well encapsulated in the learned trial judge’s ground of judgment. We summarized the important facts for easy reference just for the disposal of this appeal.

On the 4.12.2014, acting on information received from SF Express Courier Company, Inspector Mohd Faizal (SP3) and police team went to the said courier company and found a parcel (P35) suspected to contain dangerous drugs. The parcel was sent by one name Lisa from China to one Abbas Hassan, at Block C, Mentari Court, Taman Seri Mentari, Pertaling Jaya.

The police party then laid an ambush at the Mentari Court. SP6, a police officer, was instructed by SP3 to act as the driver of the courier company together with one named Muqtadir who was the real driver of the courier company to send the parcel to Abbas Hassan. They went there using the courier company's van.

When SP6 and Muqtadir reached Tower A, Muqtadir called the number 011-33364908 that was on the Air Way Bill (P21). Someone answered the call and told Muqtadir to wait at Tower C.

After waiting for about 5 minutes, Muqtadir once again called the same number to inform that he had arrived. The Appellant was then seen coming to the van. It was the Appellant alone who approached the van. The other two accused were seen standing near the pillars of the Tower C. The 4 Appellant then knocked the window of the van. SP6 asked the Appellant whether he was Abbas Hassan, to which the Appellant nodded his head and he proceeded to put down his signature and his passport number on the Air Way Bill P21. He then took the parcel P35 from SP6 and returned the Air Way Bill to SP6.

The Appellant was then seen by SP4 heading back to Tower C. SP4 informed SP3 through walkie-talkie and SP3 then ordered the police party to arrest the Appellant. Upon seeing the police party approaching, the Appellant ran and threw the parcel on the roadside. The police party managed to arrest all three including the Appellant.

On examining the parcel, SP3 found a money counting machine in which there were 5 packets [P31 (1-5)] containing dangerous drugs and 10 adapter boxes containing 10 packets of dangerous drugs [P33 (1-10)]

The exhibits were then handed over to the Investigating Officer (SP8) who subsequently sent them to the Chemist (SP2) who upon examination found the packets to contain 735.1 grams Methamphetamine.

His Lordship considered and accepted the evidence of the Chemist (SP2) as to the type and the weight of the Methamphetamine, the subject matter stated in the charge.

His Lordship also accepted the evidence of SP3, SP4 and SP6 who testified that the Appellant who went to the van alone and he nodded his 5 head when queried by SP6 as to whether he was “Abbas”. The Appellant put his signature and wrote his passport number on the Airway Bill, received parcel P35 and heading back to Tower C Lobby. His Lordship accepted the evidence as to the conduct of the Appellant who threw the parcel and tried to escape when approached by SP3.

Based on the Appellant’s conduct from the time the first telephone call was made; the instruction given for the van to wait, Appellant alone walking to the van; hid his true identity; received the parcel P35 which was addressed to an address not occupied by “Abbas Hassan”, threw the parcel and tried to escape when approached by the police, His Lordship concluded that the Appellant had custody and control of parcel P35 and the Appellant knew parcel P35 contained drugs.

As for the element of trafficking, since the Methamphetamine recovered was more than 50 grams, His Lordship invoked presumption under Section 37 (da) (xvi) of the Dangerous Drugs Act 1952 (“the Act”) and the Appellant was presumed, until proven otherwise, to be trafficking in the said Methamphetamine.

His Lordship also was of the view, even without invoking Section 37 (da) (xvi) of the Act, based on the large quantity of the drugs involved, it was reasonable to infer that the drug was not for the Appellant’s own consumption but for trafficking.

Having conducted a maximum evaluation on the evidence given by the prosecution’s witnesses, His Lordship found the Prosecution had proven 6 a prima facie case against the Appellant. The Appellant was ordered to enter his defence.

Only the Appellant gave evidence for the Defence. He elected to give evidence under oath. He stated in his evidence that he is a Nigerian National aged 31 years old and was a student studying “French” at SLC College. He planned on furthering his studies in mechanical engineering.

Whilst in Malaysia, he rented a unit at E-15-23 at Mentari Court, Petaling Jaya together with one Okeke Tochukwu Blessed who was the 2nd accused which had been acquitted at the end of the Prosecution’s case.

During the Appellant’s stay at Mentari Court, he became acquainted with a man called Abbas Hassan who also stayed at Mentari Court. This was 6 months before his arrest.

On the day of the incident, 4.12.2014, Abbas called the Appellant on his phone at about 3 p.m. Abbas Hassan asked the Appellant to help him collect the parcel to which he agreed. Abbas Hassan then gave his passport number that was A015524781 to the Appellant, in case the courier service asked for it as verification. The Appellant memorized the number.

The Appellant then approached the delivery van and knocked on the passenger side window. Detective Koperal Raziman bin Ramlee (SP6) who disguised himself as a courier personnel wound down the window and asked “Abas Hassan?” to which the Appellant said “No” because he did not 7 carry Abbas Hassan Passport. SP6 then asked the Appellant for passport number which led to the Appellant giving Abbas Hassan passport number.

SP6 wrote down the passport number given on the consignment note and asked the Appellant to sign under the column Receiver’s Signature. The Appellant put his signature and took the parcel.

After walking 3 steps away from the van, the Appellant saw 9-10 men rushing towards him from different directions. He looked left and right at these men in shock and the parcel fell from his hand. The men then arrested him.

Finally, the Appellant denied any knowledge of the drugs found in the parcel P35.

After considering the Appellant’s version, his Lordship found the Appellant had failed in raising reasonable doubt on the Prosecution’s case which was the Appellant knew there were drugs concealed in the parcel P35 and he had obtained it for the purpose of trafficking. The Appellant was thus convicted and sentenced to suffer the mandatory death penalty under Section 39B (2) of the Act and hence, this appeal by the Appellant before us.

The Appellant raised 4 main issues before us and they were1: 1 Para 12 Page 8 of the learned Counsel’s for Appellant’s Written Submission 8

The evidence of SD1 is consistent with the Prosecution's case thereby proving that a) the existence of Abbas Hasan is real and he is the real culprit; b) the Defence is not an afterthought; ii) The Accused did not have custody and control of the drugs hidden in the package, P35, nor have any knowledge about the drugs in the package. At the time the Accused was arrested up to the point the Accused was questioned in the police station, the package was at all material time in the custody of the police; iii) The Accused did not traffic any drugs as per the definition in Section 2 or Section 37(da)(xvi) of the DDA 1952; and iv) The failure of the Investigating Officer, Inspector Shaiful Nizam bin Haji Wahidin (SP8) to conduct a detailed investigation has caused prejudice to the Accused's defence. Our Deliberation and Decision [29] On 30.1.2019 we heard this appeal and we unanimously came to the conclusion that there was no merit in all the issues raised in this appeal. We found the conviction and sentence handed down by the learned trial judge was safe. Hence the appeal was dismissed and conviction and sentence was affirmed. Below are our reasons. [30] The Appellant was found guilty for trafficking in 735.10 grams of Methamphetamine. Section 2 of the Act defines “trafficking” to include 9 importing. Besides section 2, section 37 (da)(xvi) of the Act provides that any person found in possession of 50 grams or more of methamphetamine is presumed to be a trafficker, unless proven otherwise. [31] In this case, before proceeding to deal with the first issue, we feel at the risk of being repetitive, it is important to reiterate here of the uncontroverted basic fact of the prosecution’s case and that is the parcel P35 was sent from China to Malaysia. It was supposed to be sent by courier service to an address at Block C, Mentari Court. At Block C, Mentari Court, the Appellant received the parcel. [32] When ordered to enter his defence, the Appellant gave evidence under oath. His defence basically was that there was a man name Abbas who asked him to collect the parcel on his (Abbas’s) behalf. He collected the parcel without knowing that it contained drugs. [33] During the appeal before us, the learned counsel reproduced the evidence given by the prosecution’s witnesses and compared them with that given by the Appellant. Learned counsel then submitted that the narrations of facts by the prosecution witnesses and the Appellant leading to his arrest were consistent with each other. As such, according to learned counsel, the existence of Abbas who was the real culprit had been proven and Appellant’s defence that he was merely collecting the parcel on behalf of Abbas without knowing its content cannot be an afterthought. [34] After perusing the appeal record, we agree that the narrative by the Appellant as to what transpired from the time the Appellant walked to the van until he took possession of the parcel form the SP6 was consistent with what 10 was narrated by the prosecution witness. However, with respect, we are unable to agree with the learned counsel who seems to propose that this “consistency” alone proved the existence of Abbas and Abbas was the real culprit and the Appellant collected the parcel on behalf of Abbas without knowing its content. [35] The learned trial judge had dealt with this “Abbas” in his ground of judgment; not just once but twice. Learned trial Judge had this “Abbas” in mind before deciding to call for defence and also before finding the Appellant guilty. At page 14 of the ground2 His Lordship said:

“ISU KARAKTER "ABBAS HASAN" Dalam perbicaraan ini semasa di peringkat kes Pendakwaan, Peguam bela bagi pihak Tertuduh Pertama telah membangkitkan isu mengenai karakter penama "Abbas Hasan" adalah benar-benar wujud dan Tertuduh Pertama sebenarnya hanya menerima bungkusan (P35) itu bagi pihak "Abbas Hasan" tanpa mengetahui kandungan di dalam P35. Secara rumusannya, Tertuduh Pertama mendakwa dirinya adalah pembawa yang tidak bersalah.

Mahkamah ini menghalusi keterangan dari fakta kes ini yang membolehkan inferens dibuat bahawa Tertuduh Pertama tidak pernah menafikan bahawa dirinya bukan "Abbas Hasan" ketika ditanya oleh SP6. Bukan itu sahaja, Tertuduh Pertama telah mengangguk kepalanya bagi menjawab pertanyaan SP6 pada masa material itu adalah memadai untuk menunjukkan beliau telah menyamar dan mengakui dirinya sebagai Abbas Hasan bagi tujuan menerima bungkusan (P35) tersebut. 2 Page 27Jilid 1 Appeal Record 11

Diteliti pula keterangan Jazz Mojuga (SP7) di alamat penerima yang dinyatakan di nota konsainan (P21), beliau menyatakan telah menduduki rumah tersebut selama 10 bulan sebelum tarikh kejadian dan tidak pernah mendengar penama "Abbas Hasan". Ini menunjukkan "Abbas Hasan" tidak tinggal dan tidak wujud di alamat yang tercatat pada nota kosainan”. [36] After the defence case and before finding the Appellant guilty, the learned trial Judge again dealt with this issue of Abbas Hassan in light of the Appellant’s evidence. Besides taking into account the fact that nobody by the name of Abbas Hassan stayed at the address as stated on the consignment note, His Lordship was also of the view that if Abbas Hassan really exist, he could have arranged for another date for him to collect the parcel or he could have informed the courier company the status of the Appellant who would be collecting the parcel on his behalf instead of the Appellant having to "disguise' himself as Abbas Hassan. His Lordship also took into account the fact the Appellant could memorise and give the passport number that he claimed to belong to Abbas while the investigation by the investigating officer shows no such number existed in the immigration's data. Failure on the part of the Appellant to provide telephone number where Abbas could be contacted was also taken into account by His Lordship and finally His Lordship made a finding of fact that “Abbas Hassan” adalah watak fiksyen yang direka dari imaginasi SD1 (Appellant)”3 and the Appellant's allegation that he received parcel P35 on behalf of Abbas without knowing its content was only a story created by the Appellant. [37] We had the opportunity to go through the evidence of SP7. His evidence showed no "Abbas Hassan" ever stayed at the address stated in 3 Para 29.5 page 23 Ground of Judgment in Jilid 1 12 the consignment note and based on the totality of the evidence, we find no reason to depart from His Lordship's finding of fact that “Abbas Hassan” never stayed at the address stated on the consignment note and he was merely a fictional character created by the Appellant. As such we were of the considered view, the first issue raised by the Appellant had no merit. [38] Regarding the second and third issue, it was submitted by the learned counsel for the Appellant that the Appellant did not have exclusive custody and control of P35 and therefore, the presumption under Section 37

of the Act does not apply. It was contended on behalf of the Appellant that the Appellant had only interim and not exclusive custody of P35 before he was arrested that he never had any control of P35 and he had no knowledge of the hidden drugs. It was further submitted that the Accused did not traffic in any drugs as per the definition in Section 2 or Section 37 (da)(xvi) of the Act. [39] It is trite law that to come to the presumption of possession and knowledge under Section 37 (d), one need only to arrive at a finding of having had in his custody or under his control anything whatsoever containing the drug (as opposed to the drug itself).4 However, in this case it is pertinent to note that His Lordship did not invoke the presumption under Section 37 (d) to prove knowledge and possession on the part of Appellant but instead found the Appellant was in mens rea possession of the drugs in the parcel. His Lordship found the Appellant received the parcel sent to him and he collected it for himself (not on behalf of Abbas as claimed) knowing very well the parcel contained drugs. Knowledge on the part of the Appellant was inferred from the fact and the surrounding circumstances, including the 4 See Also Tunde Apatira & Ors v PP [2001] 1 CLJ 381 13 conduct of the Appellant, which were consistent with knowledge of the drug in the parcel P35. His Lordship concluded: "Oleh yang demikian, Mahkamah ini menerima keterangan mengenai aspek kelakuan dan reaksi Tertuduh Pertama bermula berjalan ke arah van, menyembunyikan identitinya dan menerima bungkusan (P35) di alamat yang tidak didiami oleh 'Abbas Hassan' dan selanjutnya mencampaknya semasa diserbu serta cuba melarikan diri sebagai keterangan yang relevan di bawah Seksyen 8 Akta Keterangan 1950 untuk menunjukkan secara munasabah Tertuduh Pertama mempunyai kawalan, jagaan dan pengetahuan mengenai bungkusan (P35) yang mengandungi dadah". [40] Based on the totality of the evidence on record, we found no reason to disagree with the above said finding of fact made by the learned trial Judge and hence, we found the second ground raised by the Appellant was without merit. [41] Since the learned trial Judge found the Appellant had mens rea possession of the drugs and the drug found was Methamphetamine weighing more than 50 grams, the statutory presumption of trafficking under section 37(da)(xvi) of the Act was rightly invoked. The Appellant was deemed to be a trafficker unless, on balance of probability, he proves otherwise. In this case, no evidence was produced to rebut the presumption of trafficking. Instead the Appellant tried to rely on defence of "innocent carrier" and putting the blame on the third party "Abbas" which fell miserably when his Lordship found Abbas was only a fictional character invented by the Appellant. Further, in this case the drugs were brought into the country from outside Malaysia in a large quantity. As correctly observed by his Lordship, such a large quantity of drugs could not be for the Appellant’s own consumption. 14 The inference that could be made was that it was brought into the country for purpose of trafficking as defined under Section 2 of the Act which include "importing". [42] Regarding the Appellant's defence of putting the blame on the 3rd party named "Abbas" we would like to quote the Federal Court in Teng Howe Sing v PP [2009] 3 CLJ 733: "[30]...on this point we would like to refer to the case of PP v Badarul Hisham bin Baharom [1998] 2 MLJ 585 wherein Lim Beng Choon J at page592 said: .... so we are left with nothing more than the bare assertion of the accused that it was Noor Azlan who asked him to collect the bag on behalf the former and the accused himself had no knowledge of the content of p3...” [43] The fourth and final issue raised by the appellant was the alleged failure by the Investigating Officer, Inspector Shaiful Nizam bin Haji Wahidin (SP8) to conduct a detailed investigation has caused prejudice to the Accused's defence. It was submitted on behalf of the Appellant that the Appellant had done everything possible by supplying the necessary information to prove the existence of "Abbas". Failure by the investigating officer to further investigate "Abbas" had occasioned a miscarriage of justice to the Appellant. Learned counsel quoted Federal Court case of Lee Kwan Woh v PP [2009] 5 MLJ 301 to support his argument. [44] From the ground of judgment, it is clear his Lordship was very much aware of the need for an investigating officer to conduct investigation on "Abbas". His Lordship dealt with this issue as early as at the case for the 15 prosecution when he said at page 15 and 16 of the grounds of judgment starting from paragraph 235: "23. Sehubungan dengan itu, Mahkamah ini mendapati Pegawai Penyiasat (SP8) juga telah menjalankan siasatan yang sewajarnya seperti menghantar nombor pasport (P81) yang ditulis oleh Tertuduh Pertama pada eksibit P21 ke Jabatan Imigresen Malaysia untuk semakan. Namun begitu, dari hasil semakan (P82) telah menunjukkan tiada rekod pergerakan keluar atau masuk yang melibatkan subjek dengan nombor pasport tersebut.

23.1 Pihak Peguam bela membangkitkan adalah kecuaian SP8 yang tidak memasukkan penama "Abbas Hasan" semasa membuat semakan ke Jabatan Imigresen Malaysia yang mungkin boleh menambahkan peluang untuk mengesan "Abbas Hasan";

23.2 Dalam konteks ini, Mahkamah ini ingin menegaskan bahawa kegagalan Tertuduh Pertama untuk membekalkan maklumat yang relevan tentang penama "Abbas Hasan" iaitu tempat tinggalnya dan nombor telefon yang boleh menghubunginya telah mengakibatkan SP8 tidak dapat melakukan siasatan secara menyeluruh. Hakikatnya, dengan adanya nama sahaja adalah mustahil dan merupakan usaha sia-sia bagi mengesan penama"Abbas Hasan" di Malaysia, ataupun di seluruh dunia; ...

Selain dari itu, SP8 telah menyiasat nombor telefon "011- 33364908" yang digunakan oleh pemandu Muqtadir untuk menghubungi "Abbas Hassan" apabila tiba di Mentari Court Aparment. Berlandaskan laporan dari Digi Centre (P80) yang diterima, nombor tersebut adalah didaftarkan di bawah pemilik bernama "Tharu Kumal Naulin" yang menunjukkan berkuat kuasa mulai 11/5/2015. Mahkamah ini mendapati dakwaan Pihak Peguam 5 Page 28 and 29 Jilid 1 Appeal Record. 16 bela adalah tidak berasas apabila mengatakan terdapat kelompangan atas kes Pendakwaan akibat kegagalan memanggil penama "Tharu Kumal Naulin" tersebut kerana secara munasabahnya penama ini tiada kena-mengena dengan kes ini yang berlaku pada 4/12/2014 iaitu sebelum beliau dijadikan pemilik kepada nombor telefon itu.

Dengan itu, Mahkamah ini mempertimbangkan keterangan yang dikemukakan seperti di atas dan membuat dapatan bahawa dakwaan Tertuduh Pertama mengenai penama "Abbas Hasan" adalah berunsur dakwaan semata-mata oleh Tertuduh Pertama kerana siasatan secara menyeluruh telah dijalankan oleh SP8 dan ternyata bahawa "Abbas Hasan" wujud atas nama yang tercatat di atas bungkusan (P35) dan tidak menjejaskan Kes Pendakwaan bagi memenuhi pembuktian kes prima facie”. [45] From the factual matrix of this case, we had no reason to disagree with His Lordship who found that, with the limited information about “Abbas” given by the Appellant, the investigating officer had done all that was possible to investigate the existence of Abbas. As such, there was no miscarriage of justice to the Appellant. Hence, we again found the 4th issue raised by Appellant had no merit. Conclusion [46] Having regard to the totality of the evidence, the surrounding circumstances and the probabilities of the case, it was our finding that the trafficking charge had been proven beyond reasonable doubt against the Appellant. 17 [47] For the above said reasons, we hold that there is no merit in this appeal. The conviction is safe and amply supported by the evidence on record. Therefore, the Appellant’s appeal was dismissed. The conviction and sentence of the High Court were affirmed. Dated: 30.1.2019 Sgd. MOHAMAD ZABIDIN BIN MOHD DIAH Judge Court of Appeal Malaysia For the Appellant: Gurubachan Singh Johal Qeemnoor Zahreen Zazanee binti Muhamad Noh [Messrs. Nashir Johal & Co]