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1 IN THE COURT OF APPEAL MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. B-05(LB)-172-03/2018 BETWEEN PUBLIC PROSECUTOR … APPELLANT AND ESTHER WANJA … RESPONDENT (Passport No: A2024499) (In the High Court of Malaya in Shah Alam, Selangor Criminal Trial No: 45A-47-05/2015 Between Public Prosecutor And Esther Wanja CORAM: YAACOB HAJI MD SAM, JCA ZABARIAH MOHD YUSOF, JCA RAVINTHRAN PARAMAGURU, JCA 2 JUDGMENT Introduction [1] The respondent was charged with the offence of drug trafficking under the Dangerous Drugs Act 1952. The charge read as follows: Bahawa kamu pada 10 November 2014, jam lebih kurang 1.30 pagi, di Cawangan Pemeriksaan Penumpang 2 (CPP2), Lapangan Terbang Antarabangsa Kuala Lumpur, di dalam Daerah Sepang, di dalam Negeri Selangor Darul Ehsan, telah mengedar dadah berbahaya iaitu methamphetamine seberat 1452 gram, dan dengan itu kamu telah melakukan kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B(2) Akta yang sama. [2] She was acquitted and discharged at the end of the case for the defence. The Public Prosecutor has now appealed against the order of acquittal and discharge. Case for the Prosecution [3] We shall first set out the evidence of the crucial prosecution witnesses that was summarized by the learned trial judge. The respondent is a 36-year-old female Kenyan national. On 10.11.2014, she boarded a flight from Hong Kong and arrived at the Kuala Lumpur International Airport 2 (KLIA 2) via Airasia Flight AK 131 at 10 a.m. At 1.30 p.m., PW1 (Roha binti Suib) who is a customs officer, spotted her walking towards the baggage scanner. The respondent was pushing a trolley bag. After the bag was scanned, PW 1 asked the respondent to proceed to the customs checking counter. At that counter, another customs officer, one 3 Nur Suriani ordered the respondent to empty the contents of her trolley bag and have it re-scanned. PW 1 then noticed suspicious images on the scan. She called another customs officer namely, PW 2 (Abdul Razak bin Abdul Shokor). PW 1 examined the trolley bag at the customs checking counter. She noticed a small crack at the base. Through the crack, she could see a yellowish item. The trolley bag was heavy although it was empty. PW 1 put her hand on the bottom of the bag and felt something concealed inside and felt that it was sandy (berpasir). [4] PW 1 then asked respondent to put her clothes back inside the bag and escorted her to the customs inspection room and waited for the arrival of the customs enforcement team. PW 4 (Zakaria bin Ahmed Fauzi) who headed the enforcement team arrived at 2.15 p.m. and brought the respondent and her belongings to the customs duty office. PW 4 examined the bag in question closely in the presence of the respondent and customs officer Keith Jonathan (PW 5) who is the investigating officer of the case. PW 4 removed the soft lining at the bottom of the bag. He then cut the hard covering at the bottom of the bag. He found a yellow package in a secret compartment. He cut the package and found that it contained a crystalline substance. Using a test kit, he carried out a simple chemical test and determined that the substance was drugs. He covered the slit he made on the package with a tape and initialled it. He did not find anything in the respondent’s handbag. He also seized the two hand phones that the respondent carried. He labelled all the items and prepared a search list. He made a police report. He handed over the respondent and all the seized items to PW 5 at 6.30 p.m. on the same day. 4 [5] PW 5 initialled all the items he received and kept them in his locker. On 18.11.2014, PW 5 sent the yellow package and its contents to the government chemist, one Nurhaya binti Jaafar (PW 3) for analysis. PW 3 testified that the substance in the yellow package is methamphetamine with a net weight of 1452 grammes. The said exhibit was returned to PW 5 on 4.2.2015 together with a chemist report prepared by PW 3. During cross-examination of PW 5, the counsel for respondent elicited the following evidence from him. PW 5 said that the respondent denied knowledge of the methamphetamine in her cautioned statement which was recorded three days after her arrest. She stated that her Nigerian boyfriend by the name of Frank gave the bag to her in China and asked her to deliver it to his friend in Kuala Lumpur. PW 5 also said that he did not investigate the phone numbers in the two handphones of the respondent because they were international phone numbers. Findings of High Court at close of prosecution’s case [6] The learned trial judge correctly directed herself in respect of the three ingredients of the offence, i.e. whether the substance recovered from the bag was dangerous drugs, whether the respondent had possession of it and whether she had possession for the purpose of trafficking. [7] In respect of the first ingredient, the learned trial judge was satisfied that there was no break in the chain of evidence from the time when the crystalline substance was found in the bag in question to the time when it was analysed by the government chemist. She found that the evidence of the government chemist irrefutably established that the 5 substance recovered from bag was methamphetamine which is listed in the First Schedule of the Dangerous Drugs Act 1952. In respect of the ingredient of possession, the trial judge considered the unchallenged evidence that the respondent had physical custody of the trolley bag which contained the drugs in question at the time she was stopped and arrested. She invoked the presumption of possession and knowledge provided by section 37(d) of the Dangerous Drugs Act 1952. Consequently, she held that the prosecution had tendered presumptive evidence of possession of the drugs in question. In respect of the third ingredient, she again relied on presumptive evidence. As the drugs in question weighed well above 50 grammes, she invoked the presumption of trafficking that is provided in section 37(da) of the Dangerous Drugs Act 1952. Thus, on the evidence that the substance in question was dangerous drugs and the invocation of the double presumptions of possession and trafficking, she called the respondent to enter her defence. Case for the defence [8] The respondent was the sole witness. She did not call any other witness. Her defence was one of innocent carrier. She did not deny flying into KLIA 2 from Hong Kong with the trolley bag in question. She said that the trolley bag was given to her by Frank. She got acquainted with Frank in Nairobi, Kenya after being introduced to him by her cousin. Frank told her that he lived in China. The respondent spent about a month with Frank until he returned to China. He persuaded her to source for goods cheaply in China for her fashion business. On 3.11. 2014, she took a flight to travel to China. She transited through Addis Ababa en route to China. She paid for her own expenses. She spent some four days with him. She shopped 6 for fashion merchandise during that time. Frank told her that his friend in Kuala Lumpur by the name of Henry could help her to buy original cosmetics cheaply. Frank offered to pay for her return flight ticket to Malaysia from Guangzhou via Hong Kong. He also booked a hotel room for her in Kuala Lumpur. [9] On the night before her flight to Malaysia, Frank gave her the trolley bag in question. He told her that the bag is a new sample bag for Henry’s business. He wanted her to give the bag to Henry. He told her to put her clothes inside as Henry will give her another bag. She was not given Henry’s hand phone number. She was told that Henry would come to the hotel to meet her. She said there was no crack on the bag when she received it. The crack only appeared after the customs officers kicked the bag upon discovering the drugs. Findings of trial judge at the end of the case for defence [10] The learned trial judge found nothing improbable in the respondent’s story about how she came into possession of the trolley bag in question. She found that her evidence is consistent with her cautioned statement which was recorded three days after her arrest. The learned trial judge also considered other pieces of evidence which supported her story. New dress, catalogues, name cards and a shopping list were found in the bag. A return flight ticket to Kenya from China was also found in the bag which the trial judge said corroborated her claim that she did not originally intend to come to Malaysia. The trial judge found that the respondent had no reason to be suspicious of Frank. She also considered the conduct of the respondent at the airport. PW 1 noted that at first the 7 respondent brought the bag to the luggage scanner machine on her own volition without being directed to so by the customs officers. Finally, the learned trial judge was satisfied from the demeanour of the respondent that she was telling the truth. [11] Having considered the above evidence, the learned trial judge was satisfied that the respondent had rebutted the presumption of possession and knowledge on a balance of probabilities. In the premises, she acquitted and discharged her of the charge. Issues [12] The learned Deputy Public Prosecutor (DPP) raised the following issues and argued that the learned trial judge erred in finding that the presumption of possession and knowledge was rebutted. It must be mentioned at the outset that the learned DPP conceded that the learned High Court Judge was wrong to use the double presumptions of possession and knowledge and that of trafficking when she called for the defence. Nonetheless, the learned DPP submitted that there was direct evidence of trafficking under section 2 of the Dangerous Drugs Act 1952 as the drugs were brought into the country. [13] The first issue that the learned DPP raised was the alleged failure of the respondent to check the trolley bag thoroughly. She said the bag was given to her the night before she took the flight to Kuala Lumpur. She had the opportunity to check the bag thoroughly. She had no good reason to trust Frank. The learned DPP submitted citing the well-known case of Public Prosecutor v Herlina Purnama Sari [2017] 1 MLRA 499 that “wilful 8 blindness” on the part of the respondent defeated the defence of innocent carrier. For the respondent, it was argued by her counsel that the drugs were cleverly concealed in a secret compartment below the hard cover of the bag and therefore it would have been impossible for her to have detected it. [14] The second issue raised by the learned DPP was that the entire arrangement to bring the “sample” bag from China to Kuala Lumpur for it to be given to Henry did not make any sense. The learned DPP questioned why the respondent used the bag to carry her clothes as she could have used her own bag and brought the sample bag as well. Furthermore, Frank did not provide keys to the bag and paid for her flight ticket to Kuala Lumpur just to carry the bag. All these facts should have aroused the respondent’s suspicion. Counsel for respondent submitted that the respondent inquired about the bag but was assured by Frank that it was a sample bag for Henry’s business. She opened the bag to put her things inside but found nothing suspicious in it. [15] The third issue and fourth issue raised by the learned DPP is that the defence of the respondent was not disclosed at the earliest opportunity. She submitted that counsel for respondent failed to suggest Henry’s name to PW 2, PW 4 and PW 5 during cross-examination. She also submitted that Henry’s name was never mentioned by the respondent in the cautioned statement. The respondent only said that the bag belonged “to Frank’s friend in Malaysia”. The learned DPP also said that the customs officers (PW 2 and PW 4) did not hear Frank’s name being uttered at the airport customs check point although the respondent attempted to say something. Counsel for respondent responded that the 9 name of Frank was uttered at the airport but was not registered by the customs officers. It was also stated in the cautioned statement. In respect of Henry, counsel for respondent submitted that the respondent mentioned that the bag belonged to someone in Kuala Lumpur but omitted his name. Decision [16] Our findings are as follows. The first and second issues raised by the learned DPP relate to the defence of “innocent carrier” which was accepted by the trial judge. We have set out the facts upon which this defence is based. The respondent agreed in her testimony that she carried the bag in question but said that she had no knowledge that drugs were hidden inside. The learned DPP submitted that the respondent had good reason to be suspicious of the arrangement wherein Frank requested her to bring his friend’s bag to Malaysia from China. The learned DPP submitted that the respondent had ample opportunity to examine the bag but did not. In other words, she was “wilfully blind” and therefore cannot avail the defence that she was an innocent carrier of the bag that contained the offending drugs. [17] The principle that one cannot deny knowledge of the drugs if one was at the same time wilfully blind to the circumstances that raised suspicion and ought to have been put on inquiry was well expounded in the case of Public Prosecutor v Herlina Purnama Sari (supra). The relevant passages of the judgment of the Federal Court, speaking through Raus Sharif PCA (later CJ), are as follows: 10 [45] Wilful blindness necessarily entails an element of deliberate action. If the person concerned has a clear reason to be suspicious that something is amiss but then embarks on a deliberate decision not to make further inquiries in order to avoid confirming what the actual situation is, then such a decision is necessarily a deliberate one. The key threshold element in the doctrine of wilful blindness itself is that of suspicion followed by (and coupled with) a deliberate decision not to make further investigations. Whether the doctrine of wilful blindness should be applied to any particular case would be dependent on the relevant inferences to be drawn by the trial judge from all the facts and circumstances of the particular case, giving due weight, where necessary, to the credibility of the witnesses (see PP v. Tan Kok An [1995] 4 MLRH 256). [46] The concept of ‘wilful blindness’ had been discussed in a number of local cases but it seems to have had its genesis in the dissenting judgment of Yong Pung How CJ (Singapore) in the case of Public Prosecutor v. Hla Win [1995] 2 SLR 424. The doctrine of ‘wilful blindness’ can be summarised to be applicable to a situation where the circumstances are such as to raise suspicion sufficient for a reasonable person to be put on inquiry as to the legitimacy of a particular transaction. To put it another way, if the circumstances are such as to arouse suspicion, then it is incumbent on a person to make the necessary inquiries in order to satisfy himself as to the genuineness of what was informed to him. Should he fail to embark upon this course of action, then he will be guilty of ‘wilful blindness’. In other words, he is then taken to know the true situation. He then cannot be said to have either rebutted the presumption of knowledge or have raised a reasonable doubt as to his knowledge of the situation. [18] The learned DPP submitted that the respondent had good reasons to be suspicious of Frank and the bag that he gave her. He is a Nigerian to whom she was introduced to in Nairobi only four months earlier. He asked her to put her clothes in the new bag that he gave her. He told her that the bag was a sample meant for his friend by the name of Henry in 11 Kuala Lumpur. Learned DPP said that the respondent could have brought her own bag to Kuala Lumpur in addition to the sample bag in question. Yet, she agreed to leave her own bag behind and transferred some of her things into the new bag. Even the empty bag was heavy as it weighed nearly two kilos. The learned DPP also said there was a “sandy feel” at the bottom of the bag. There was a crack as well at the bottom of the bag which alerted the customs officers that there was a yellow package inside. Frank paid for her return ticket from Hong Kong to Kuala Lumpur merely for sending the bag to Henry. The learned DPP submitted that the arrangement did not make sense and should have aroused the respondent’s suspicion about the contents of the bag if she was truly innocent. Furthermore, she had time to inspect the bag as it was given to her on the eve of her departure. [19] We find no merit in the submission of the learned DPP that the trial judge’s assessment of the defence of innocent carrier was plainly wrong. [20] To start with, there is no evidence that there was a crack at the base of the bag when it was handed over to the respondent by the said Frank in China. The photographs tendered in court also do not show the crack as pointed out by counsel for respondent. The prosecution should have applied to mark the crack separately as an exhibit if it thought that it is a crucial piece of evidence. The respondent told the court that the bag was new and that no crack was visible she received it from Frank. She claimed that one of the customs officers kicked the bag and that could have caused the crack. Be that as it may, the prosecution did not challenge the respondent that the bag given to her was a new bag. The respondent’s story that the bag did not contain a crack at the base when 12 she first received it is entirely plausible. It is undeniable that the bag was used to hide drugs. In the premises, it is unlikely that whoever wanted to conceal the drugs would have proceeded to do so in a bag that had a crack at the bottom and thereby risk exposing its contents while being transported from China to Malaysia. In respect of the alleged “sandy feel’ at the bottom of the bag, PW 1 said that when she pressed the bottom of the bag, she felt something hard (padat) and sandy (berpasir). However, the evidence of the head of the enforcement team (PW 4) is that the drug was concealed in a secret compartment below the soft bottom lining and the hard covering of the bag. He had to remove the telescopic handles that ran across the bottom of the bag and the hard covering beneath it to expose the secret compartment. Therefore, the drugs were expertly concealed. For that reason, the respondent would have no reason to suspect that drugs were hidden in the bag merely by looking at it. In the premises, it is not reasonable to expect the respondent to press her hand all over the outer and inner coverings of the bag to check if something is amiss. PW 1 did that because she is a trained customs officer who saw suspicious images in the scanner machine. It is not something normal people do unless that they had good reasons to be suspicious of the bag. [21] We shall now consider whether there were any other suspicious circumstances that ought to have put the respondent on inquiry. During cross-examination, the respondent did not deny that she met Frank only four months before her arrest at KLIA 2. However, the background facts were given careful consideration by the trial judge. The respondent testified under oath. She is a divorcee. She was introduced to Frank in Nairobi by her own cousin. Frank told her that he is a businessman based in China. The respondent was running a fashion merchandise business in 13 Nairobi. The respondent said that she hit it off with Frank and they became lovers. She and Frank spent a month together in Nairobi before he returned to China. While in Nairobi, Frank suggested that she visit China to buy merchandise for her business. He offered to bring her around. About three months after Frank returned to China, the respondent took him up on the offer. She flew into Guangzhou where Frank was based at her own expense. He met her at the airport. She spent about four days there looking around for business opportunities. She bought some new clothes for her business. And Frank was the person who brought her around. She even visited his home in Guangzhou. She admitted in court that she went to Guangzhou not only to scout for business opportunities but also because she missed Frank who was her boyfriend. And this evidence was elicited by the prosecution during cross-examination. It is as follows: Q: Do you agree with me that you travel to Guangzhou to see Frank because you miss him? A: Yes Q: You willing to do anything for Frank? A: Yes, because I trust him. Q: This include bringing bag containing drugs? A: No, I did not know the bag contains drugs. [22] The learned trial judge considered her demeanour and overall credibility when she gave evidence. She did not find her story improbable. Neither do we. Given the nature of her close relationship with Frank, it is not surprising that the respondent acceded to his suggestion to go to Kuala Lumpur to source for cheap cosmetics from his contacts. For the 14 same reason, it is not surprising that she accepted the return ticket from Frank to go to Kuala Lumpur. Learned DPP argued that the entire bargain wherein the respondent would fly to Kuala Lumpur on a return ticket paid for by Frank in return for the respondent bringing the sample bag along with her as suspicious and illogical. However, this argument misses the important point that the respondent and Frank were not just newly acquainted friends but were lovers. This point was addressed by the learned trial judge. Her Ladyship accepted the respondent’s testimony that she was not suspicious as she trusted Frank who was her boyfriend. [23] The learned DPP also submitted that the respondent could have brought her own bag along as well as the sample bag that Frank gave her. The learned trial judge did not make a finding on this point. But we do not think that it is an obviously suspicious circumstance. The respondent told the court that she did not even bring her own sports bag with her and left it with Frank as she did not want to bring extra bags. In respect of the keys to the bag, learned DPP submitted the fact that Frank did not give them to the respondent should have raised her suspicion. The respondent told the court that she did not bother about the absence of the keys as it was a sample bag that was to be handed over to Henry. The bag was obviously not locked as the respondent could open it and put her things inside. The learned trial judge accepted her overall explanation that she trusted Frank. We do not think it is proper to question the finding of the trial judge as the absence of the keys is not an appreciably suspicious circumstance in any event. The learned DPP also submitted that the weight of the empty bag should have alerted the respondent that something was amiss. The respondent testified that after Frank brought the bag to her hotel room, he told to put her things inside. The learned trial judge said the bag was large 15 and heavy. Therefore, the respondent would not have realised that something was hidden inside. For the same reason, we do not think that the weight of the bag was a particularly suspicious circumstance. [24] In the premises, we are of the view that there is no merit in the first two issues. Although, the respondent was arrested at the airport and has raised the defence of innocent carrier as many other accused persons have done, each defence must be examined thoroughly on its own merits. In Munuswamy Sundar Raj v PP [2016] 1 CLJ 357, although the conviction of the appellant was affirmed, the Federal Court recognized the defence of innocent carrier and said that it has to be considered in the light of the facts and circumstance prevailing in each case. We cite the relevant passage below: [11] In order not to throttle the discretion of judges, let alone no cases are similar, we are loath to lay down restrictive guidelines for courts to consider prior to deciding whether the defence of innocent carrier can prevail. We leave it to the better judgment of the presiding judge. [25] On this point, the Federal Court also cited the case of Marlan Marpaung v Public Prosecutor [2012] 8 CLJ 41 where this court said that the defence of innocent carrier must be evaluated by reference to facts and circumstances prevailing in each particular case. [26] In the instant case, for reasons given above, we are satisfied that the trial judge had thoroughly considered the defence of innocent carrier. Her Ladyship accepted the sworn testimony of the respondent that she had no reason to be suspicious of Frank who was her boyfriend at that time. Furthermore, she opened the bag but did not find anything 16 suspicious inside as the drugs were cunningly concealed in a secret compartment between the hard body of the bag and the hard cover of the bottom of the bag. The learned trial judge also gave due weight to the demeanour of the witness. She cautioned herself that demeanour is only one of many factors that must be considered in assessing the credibility of a witness. However, after carefully observing the respondent, Her Ladyship was satisfied that she was telling the truth. We also acknowledge that demeanour alone is not an accurate guide to determining the credibility of a witness. It must be tested against the rest of the evidence and probabilities of the case (see Lim Kee Gee & Ors v Chung Wah Emporium Sdn. Bhd. [1985] CLJ Rep 537). However, as we noted earlier, the learned trial judge considered all the other evidence together with the demeanour of the respondent. It led her to conclude that the respondent had no real reason to be suspicious of Frank when he gave her the bag. We shall briefly recapitulate below some of the other evidence that was taken into account by the trial judge. [27] The learned trial judge considered the fact that the respondent only had a return ticket to Kenya from China when she started her journey. Therefore, she never planned to come to Malaysia. For this reason, as well, she found that the story of the respondent that she was persuaded to come to Malaysia by Frank was plausible. We find no good reason to disagree with this finding of the trial judge. The learned trial judge also considered the fact that the respondent scanned the bag in the luggage scanner machine the first time without being ordered to do so points to her innocence. Only, when another customs officer (Nur Suriani) was suspicious of the images revealed on the scanner machine, the respondent was ordered to have the bag re-scanned a second time. The 17 trial judge also noted that there was evidence to support the respondent’s story that she came to China and Malaysia to look for business opportunities at the urging of Frank. A folder in her bag contained catalogues, name cards and a shopping list related to her business. The investigating officer did not find price tags. The respondent said they were placed in a folder seized by the customs officer. Nonetheless, the presence of the other documents corroborated her story that she came to China and Malaysia to look for business opportunities. [28] We shall now consider the third and fourth issues raised by the learned DPP. The learned DPP submitted that the defence failed to suggest Henry’s name to the prosecution witnesses who testified in court. The respondent also did not mention Henry’s name in her cautioned statement. Learned DPP’s argument is that this means that the defence was not disclosed at the earlier stages of the investigation and the trial and is therefore an afterthought. [29] The defence is that Frank gave her the bag in question. He requested that it be given to Henry in Kuala Lumpur. The respondent said she had no knowledge of the drugs which were hidden inside. The respondent told the court that she mentioned Frank’s name upon arrest and gave his phone number. She also mentioned his name in the cautioned statement. However, the recording officer did not ask for his phone number. But his number was in the contact list in her handphones that were seized by the customs officers. The respondent said as follows during re-examination: 18 Q: In your cautioned statement to the Customs, the DPP asked why there is no details of Frank and Henry, can you explain further to that, why there is no details about Frank and Henry? A: All the information I had with regards to Frank and Henry, I have given to the Customs Officer. I told them about Frank and Henry but they did not show. For example, when I gave the Customs Officer, Frank’s telephone number, he said there is no need for telephone number because we cannot cross the border and go to China, and we have you, that’s enough for us. [30] Although Henry’s name is not mentioned in the cautioned statement, the respondent mentioned that she was instructed to give the bag to a friend of Frank in Malaysia. She also mentioned that she did not have the contact details of Frank’s friend in Malaysia. The recording officer did not ask the respondent whether she remembered the name of Frank’s friend. Similarly, the recording officer did not ask for the phone number of Frank although his name is recorded in the cautioned statement. By that time, the phone number of Frank must be deemed to be in possession of the investigating officer as her hand phones were seized. The learned trial judge found the defence of the respondent to be credible. We direct ourselves that the finding of the trial judge that is based on credibility of a witness should not be lightly disturbed unless it is against the weight of the overall evidence. In any event, from above evidence, it appears that the respondent had put the essential defence at an early stage, i.e. at the time of the recording of the cautioned statement. Thus, the respondent had given the “Alcontara notice” (see Alcontara a/l Ambross Anthony v Public Prosecutor [1996] 1 CLJ 705). For the above reason as well, we find it not significant that the prosecution witnesses were not cross 19 examined on the existence of Henry. In the premises, we find no merit in the third and fourth issues that were raised by the learned DPP. Conclusion [31] Having considered all the issues raised by the learned DPP, we found that the trial judge had not committed any appealable error that warranted appellate interference with her decision. The decision of the High Court is affirmed and the appeal is dismissed. SGD (RAVINTHRAN PARAMAGURU) Judge Court of Appeal, Malaysia Dated: 2nd April 2020 Parties Appearing: For The Appellant: Samihah binti Rhazali Deputy Public Prosecutor Attorney General’s Chambers For The Respondent: Surjan Singh Sidhu Messrs. Surjan Singh Sidhu & Co.