If the Court finds that the prosecution has not proved its case beyond reasonable doubt, the Court shall record an order o acquittal.” [30] Regarding proof beyond reasonable doubt, the Federal Court in Balachandran v PP [2005] 2 MLJ 301 had this to say at p.316 para 23: “Proof beyond reasonable doubt involves two aspects. While one is the legal burden on the prosecution to prove its case beyond reasonable doubt the other is the evidential burden on the Accused to raise a reasonable doubt. Both these burdens can only be fully discharged at the end of the whole case when the defence has closed 16 its case. Therefore a case can be said to have been proved beyond reasonable doubt only at the conclusion of the trial upon a consideration of all the evidence adduced as provided by s. 182A(1) of the Criminal Procedure Code. That would normally be the position where the Accused has given evidence. However, where the Accused remains silent there will be no necessity to reevaluate the evidence in order to determine whether there is a reasonable doubt in the absence of any further evidence for such a consideration. The prima facie evidence which was capable of supporting a conviction beyond reasonable doubt will constitute proof beyond reasonable doubt.” [31] Since the Prosecution in this case is relying on one of the statutory presumptions under the DDA to prove its case namely s. 37(d) of the DDA, Mohd Radhi bin Yaakob v PP [1991] 3 MLJ 169 is instructive. As explained in great detail by His Lordship Mohamed Azmi SCJ at 171: 17 “In the course of the prosecution case, the prosecution may of course rely on available statutory presumptions to prove one or more of the essential ingredients of the charge. When that occurs, the particular burden of proof as opposed to the general burden, shifts to the defence to rebut such presumptions on the balance of probabilities which from the defence point of view is heavier than the burden of casting a reasonable doubt, but it is certainly lighter than the burden of the prosecution to prove beyond reasonable doubt. To earn an acquittal at the close of the case for the prosecution under s 173(f) or s 180 of the Criminal Procedure Code, the court must be satisfied that no case against the Accused has been made out which if unrebutted would warrant his conviction (Munusamy v PP [1987] 1 MLJ 492). If defence is called, the duty of the Accused is only to cast a reasonable doubt in the prosecution case. He is not required to prove his innocence beyond reasonable doubt.” 18 [32] In other words, when it comes to rebutting a statutory presumption the burden on the Accused is heavier than merely casting a reasonable doubt. The defence has to rebut such presumptions on a balance of probabilities. [33] The determination of whether the defence has successfully cast a reasonable doubt on the Prosecution’s case requires a consideration of the evidence given by the Accused which I shall now turn to. The Court’s Finding at the End of Defence Case [34] In the case of Wong Swee Chin v PP [1981] 1 MLJ 212; Tan Kim Ho & Anor v PP [2009] 3 CLJ 236 it is stated that; “Although there is no burden on the Accused to prove his innocence, it is trite that the Accused ought to put his line of defence during the prosecution’s case. Failure to do so will render the 19 defence being labelled as one of a recent invention or an afterthought” See also the case of Megat Halim Megat Omar v PP [2009] 1 CLJ 154. [35] The courts duty at this stage was to evaluate on any plausible explanation given by the Accused as laid down in the case of PP v Oo Boon Khim [2013] 1 LNS 986; “As long as the story of the Accused is not inherently incredible, the court has to test the story with that of the prosecution and if it creates a reasonable doubt in the mind of the judge, it is sufficient to earn an acquittal. The test where the story is capable of being accepted as not being inherently incredible must necessarily be one that demonstrates ‘plausible explanation’ to earn an acquittal. The ‘plausible explanation’ proposition was advocated as early as 1981, in the Privy 20 Council decision of Ong Ah Chuang v PP [1981] 1 MLJ 64…” The white crystalline substance [36 ] In my opinion, there is no question that the substance found in the Accused’s luggage is Methamphetamine based on the analysis and findings of Dr Saravana Kumar A/L Jayaram, PW6 , the chemist. I find that the Prosecution has successfully proven the identity of the drugs as confirmed by PW6. I can see no reason why I should not accept the results of the tests conducted to identify them. I also conclude that the storage and movement of said drugs are in order. Custody and control [37] We have the evidence of PW11 who saw the Accused placing the luggage P29 in the customs scanning machine. Looking at the tag attached to P29 (P34), there is no question that P29 was registered under the Accused’s name. 21 [38] The defence has not managed to raise any meaningful challenge with regard to the Accused’s custody and control of the drugs. It is not disputed that the Accused has physical possession of the luggage where the drugs were found. In fact, the Accused herself agreed that she was the only one to handle the luggage after Chai Hong gave it to her. [39] It follows therefore that there cannot be any question that P29 was at all material times in custody and control of the Accused, making the presumption of knowledge under s. 37(d) DDA invocable. Knowledge [40] The next course of inquiry is to determine whether the Accused was a mere innocent carrier. There is established authority for the proposition that where a defence of innocent carrier is led, it necessarily raises the issue of "wilful blindness". [41] In the case of PP v. Klong K'Djoanh & Another Appeal [2016] 5 CLJ 533, it was held; 22 "It is the principle of the law that the defence of innocent carrier should be taken into account with the principle of wilful blindness." [42] See also Unegbe Azuka Sunday v. PP [2016] 1 LNS 423, to similar effect. [43] The concept of 'wilful blindness' originates from the dissenting judgement of Yong Pung How CJ (Singapore) in the case of Public Prosecutor v. Hla Win [1995] 2 SLR 424 where his Lordship said as follows : "At this juncture, I emphasize that where the Accused, who is not an innocent custodian in the sense that the drugs were planted in his luggage without his being aware of them, accepted the goods in circumstances which rendered the taking of the precaution of satisfying himself that the goods were what they purported to be and were not drugs 23 an imperative, then, if he did not take the trouble to inspect them, but merely relied on another person's assurance, he would not rebut the statutory presumption of knowledge. In fact, he would be guilty of wilful blindness to the obvious truth of the matter. In the end, the finding of the mental state of knowledge, or the rebuttal of it, is an inference to be drawn by a trial Judge from all the facts and circumstances of the particular case, giving due weight to the credibility of the witnesses." [44] From the foregoing, the doctrine of 'willful 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 for a person to make the necessary inquiries in 24 order to satisfy herself as to the genuineness of what was informed to her. [45] Should the Accused failed to embark upon this course of action, then she will be guilty of 'willful blindness' to what can be said to be fairly obvious. In other words she is then taken to know what the contents are. She then cannot be said to have either rebutted the presumption of knowledge or have raised a reasonable doubt as to her knowledge of the drugs in question. It will be also observed that depending on the precise factual matrix of the case, where it is shown that the Accused does make inquiries, it is necessary to consider whether the inquiries are merely token or whether further inquiries ought to have been made given the circumstances. [46] An examination of the circumstances in which the Accused came to be in physical possession of the Luggage according to the evidence of the Accused herself was that she received the luggage from Chai Hong the night before she departed for Malaysia. The Accused explained that before she put in her clothes, she saw that the luggage was empty and it did not occur to her to examine the luggage nor did 25 she notice that it was heavy because this was her first time travelling out of China. The Accused further stated that she accepted the luggage because it had a trolley and was easier for her to handle. [47] According to the Accused, she knew Chai Hong for about 6 to 7 months before she was offered a job by Chai Hong in Malaysia. I therefore do not find it reasonable under the circumstances for the Accused to accept this rather strange job offer from Chai Hong whom she is not well acquainted by her own admission. She didn’t know where the workplace is located and had no idea who will fetch her once she landed in Malaysia. [48] Further, It is improbable that the Accused who had only met Chai Hong a few times in 6-7 months would have without further inquiry accept the luggage without examining it. The relationship between the Accused and Chai Hong can in no way be described as close by any standards. Any reasonable person similarly circumstanced would be most hesitant to accept the luggage and be suspicious why such a luggage was given in the first place. The drugs weight about 1,529.7 grams and it is unreasonable that the Accused is unaware that the 26 luggage is “heavy”. Her testimony that she did not notice that the bag was heavy is unacceptable in the circumstance. [49] Apart from that, although it is true that PW11 confirmed that the Accused did not seem nervous or try to leave or escape in any way cannot be taken to show a lack of knowledge on her part. One must bear in mind the surroundings in which the Accused was detained was a highly-monitored area where escape was virtually impossible. [50] As was pointed out by the Federal Court in Teh Hock Leong v PP [2010] 1 MLJ 741: “ …in order to draw a favourable inference from the appellant's contemporaneous conduct, his action or inaction must be examined in the light of the situation at the material time. The area where the appellant was confronted by PW5 was the arrival gate of an incoming flight in the KLIA. This was the only exit point where passengers disembarking the plane can enter the KLIA terminal. It is common knowledge that the area was tight and restricted 27 with hardly any room for the appellant to make a successful escape even if he had tried. From here the appellant was then taken by PW5 and his men to PW5's office in the KLIA. The approximate walking distance was 600–800 metres. Here again the appellant's chances of a quick getaway were minimal since he was escorted and was within the restricted vicinity of the KLIA building. And, if the appellant were to attempt to throw away or disassociate himself with the backpack during this entire duration described it would evidently be noticeable. Of course, since the drugs were so cunningly concealed, there could be no necessity to take such drastic actions which may attract instant suspicion. So against these circumstances, the appellant's docile conduct throughout the period described could not have inferred an absence of knowledge of the said drugs. For this reason there is no misdirection by the courts below.” 28 [51] In short, the Accused’s inaction must be tested against the facts and circumstances as a whole. Mere passive conduct on her part cannot per se amount to lack of knowledge as to the contents of P29. [52] Even without relying on the s. 37(d) DDA presumption, I am satisfied that going by the evidence adduced, it is unlikely that the Accused did not know that there were drugs in her luggage. [53] I think it apt to note here that ignorance can only be a defence when there is no reason for suspicion and no right and opportunity of examination, and ignorance simpliciter is not enough. [54] At this juncture it is pertinent to refer to the following passage laid down by the Court of Appeal in Hoh Bon Tong v PP [2010] 5 CLJ 240 at 272 which in my opinion serves to fortify the Prosecution’s case in relation to the element of knowledge: “[73] The defence of innocent carrier must necessarily bring into the picture the concept of willful blindness. And according to Yong Pung How CJ (Singapore) in Public Prosecutor v. Hla Win 29 (supra) at p. 438, "the concept of wilful blindness qualifies the requirement of knowledge." And his Lordship continued further by saying (at the same page): As Professor Glanville Williams aptly remarked in his Textbook on Criminal Law, at p. 125: ... the strict requirement of knowledge is qualified by the doctrine of wilful blindness. This is meant to deal with those whose philosophy is: 'Where ignorance is bliss, 'tis folly to be wise.' To argue away inconvenient truths is a human failing. If a person deliberately 'shuts his eyes' to the obvious, because he 'doesn't want to know,' he is taken to know'. [74] Continuing at the same page, his Lordship said: In Ubaka v. PP [1995] 1 SLR 267, the principles laid down in Warner v. Metropolitan Police Commissioner [1968] 2 All ER 356; [1968] 2 WLR 1303 and modified in Tan Ah Tee v. PP [1978] 1 LNS 193; [1980] 1 MLJ 49 were applied by the trial 30 judge. In its grounds of judgment, this court quoted the following passage by the trial judge: Ignorance is a defence when there is no reason for suspicion and no right and opportunity of examination, and ignorance simpliciter is not enough. [75] Here, we have evidence that the drugs were placed inside transparent plastic packets and the contents can be seen from outside. It was mere folly on the part of the Accused not to examine what he carried in his pockets. It is a classic case of willful blindness.” [55] So too in the present case. It simply makes no sense that a lady would be willing to travel abroad alone to a foreign country hitherto unvisited by her merely on a promise that she will get a job as a masseuse from a friend whom she admits she is “not close” to and has only known for a few months. 31 [56] Also illogical is her explanation that the luggage was given to her as a gift by Chai Hong and that she did not inspect the luggage before putting her clothes in it. Even if the luggage was a gift from Chai Hong, this would have raised a reason for suspicion as to why Chai Hong would have given her the luggage. I do not think that it is a tenable foundation to set up a defence of no knowledge seeing as how at all material times the Accused could have availed herself of the opportunity to examine P29. Trafficking [57] The ingredients of custody, control and possession have been established by the Prosecution. Moving on to the element of trafficking, there is the unchallenged testimony of PW11, that the Accused was indeed carrying P29 and P31B from Hong Kong to Kuala Lumpur, an act which falls under one of the various examples of trafficking as defined in s. 2 of the DDA. 32 [58] Before I proceed to deliver my verdict, I would like to remark upon other aspects of the Accused’s evidence which had the cumulative effect of further undermining her defence. [59] Firstly, the Accused testified that she came to Malaysia to work as a masseuse, but she admitted having no knowledge of the job. She also said that she never applied for a work permit. This is starkly different from her explanation in her cautioned statement (D35), in which she mentioned that she came to Malaysia because she was offered a free holiday by a friend who bought her free flight tickets. However, during cross-examination by the Prosecution, she then denied that the purpose of her visit to Malaysia was for a holiday. [60] The Accused has also in her evidence stated that Chai Hong had two telephone numbers. But when cross-examined and shown that there were three telephone numbers of Chai Hong in the Digital Forensic Report (P18), she then said Chai Hong had three numbers. The court finds it suspicious that no satisfactory explanation was offered by the Accused to explain this discrepancy. 33 [61] Further as stated earlier, the drugs which weight 1529.7 grams concealed beneath the bottom of the luggage have made the luggage heavy. The Accused received the luggage when it was empty. She had the opportunity to examine the luggage and discovered that it was heavy for an empty luggage. She should have embarked to examine the luggage and her failure to do so makes her guilty of willful blindness, to what can be said to be fairly obvious, that drugs was hidden beneath the bottom of the luggage. In other words, she is then taken to know the existence of the drugs. She then cannot be said to have either rebutted the presumption of knowledge or have raised a reasonable doubt as to her knowledge of the drugs in question. CONCLUSION [62] In light of the above, I do not accept or believe the Accused explanation (defence) nor does her explanation (defence) cast a reasonable doubt on the Prosecutions Case. I find that the Prosecution has proved its case against the Accused beyond 34 reasonable doubt. I hereby convict the Accused of the charge against her and sentence her to death by hanging. Dated 11th July 2017, (SURAYA OTHMAN) Judge, Criminal Court, High Court of Malaya, Shah Alam, Selangor. Cases(s) referred to: