Pendakwa Raya v Tursun Yuldashev (45A-132-11-2015)

The Accused person in this matter has been charged as follows:- “Bahawa kamu pada 30 Mei 2014, lebih kurang jam 11.45 pagi di Cawangan Pemeriksaan Penumpang 1 (CPP1), Balai Ketibaan Antarabangsa, Aras 3, Lapangan Terbang Antarabangsa Kuala Lumpur, di dalam daerah Sepang di dalam negeri Selangor Darul Ehsan telah didapati mengedar dadah berbahaya iaitu Methamphetamine berat bersih 10,437.5 gram dan dengan itu kamu telah melakukan satu kesalahan di 2 bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B(2) Akta yang sama.”

The prosecution has called a total of ten (10) witnesses to prove the charge against the accused.

The evidence by the custom’s officer, Mohd Sulaimi bin Sulaiman (PW8) was that on 30.05.2014, at about 11.45 am the Accused using the flight HY 551 from Tashkent to Kuala Lumpur arrived in Malaysia. At the Cawangan Pemeriksaan Penumpang 1 (CPP1) at KLIA, the Accused was instructed by PW8, upon the instruction of Custom Officer Kamsiah binti Abdul Karim (PW6), to have his luggage (P36) scanned through scanner D.

From the scan results, Custom Officer Amar Adzrul bin Abdul Zadi (PW7) saw a few rectangular images and instructed the Accused to open his luggage which was locked with a padlock. From the evidence given by PW7, the Accused upon the instruction given, took out a key from the pocket of his trousers and with that key, he then unlocked the padlock and opened the luggage that was marked as exhibit P36. 3

After the luggage was opened, PW7 saw a few coffee packages, clothes and biscuits in P36. The Accused was told to clear his luggage and upon clearing P36, PW7 saw some scattered white powder in P36. PW6 then took a few coffee packages to the scanner and at the same time the Accused was asked by PW7 to open the coffee packages with a knife. The Accused did as instructed and PW7 found suspicious white powder inside the package.

When PW7 enquired in English, the Accused repeatedly replied “Coffee, Coffee”. The Accused was said to have acted normally during this episode. PW6 then told PW7 and the Accused that the result of the scanning showed green, indicating that the Coffee packages were suspected to contain drugs.

Thereafter, the Accused was told to repack the items which was removed from the luggage and he Accused and the luggage were brought to the CPP1 customs office for further inspection by PW6 and PW7.

At the CPP1 customs office, upon the arrival of Custom Investigation Officer Muhammad Farhan bin Izhar (PW10), PW7 commenced a thorough 4 examination and found seven (7) packets of various brands of Coffee packages containing white powder suspected to be drugs. The initial test results done on the powder found it to be positive for methamphetamine.

The Chemist, Suhana bt Ismail (PW5) was called as a witness and from her evidence and her Chemist Report it was confirmed that the exhibits seized from the Accused person contains 10,437.5 grams of Methamphetamine which is a drug listed in the First Schedule of the Dangerous Drug Act 1952 (Act 234) (“DDA”).

At the close of the Prosecution’s case, I had carefully perused the evidence adduced by the prosecution through its ten witnesses and examined the documentary evidence in support of the case. Section 180 of the Criminal Procedure Code (Act 593) (“CPC”) sets out the procedure to be followed at the conclusion of the Prosecution’s case, which are as follows; 1) When the case for the prosecution is concluded, the Court shall consider whether the prosecution has made out a prima facie case against the Accused. 5

If the Court finds that the prosecution has not made out a prima facie case against the Accused, the Court shall record an order of acquittal.

If the Court finds that a prima facie case has been made out against the Accused on the offence charged the Court shall call upon the Accused to enter on his defense.

For the purpose of this section, a prima facie case is made out against the Accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction. [11] What is a prima facie case has been clearly spelt out in the Court of Appeal’s case of Looi Kow Chai & Anor v PP [2003] 1 CLJ 734 where at page 749, His Lordship Gopal Sri Ram, JCA, held as follows; “[3] Under s.180 of the Criminal Procedure Code (Revised 1999), the duty of a judge, sitting alone, at the close of the case for the prosecution, is to determine, as a trier of fact, whether the prosecution has made out a prima facie case against the Accused. The judge has only one exercise to undertake; he must subject the evidence of the prosecution to a maximum evaluation and then ask himself the question; If I decide to call the 6 Accused to enter on his defence, and he elects to remain silent, am I prepared to convict him on the totality of the evidence contained in the prosecution’s case? If the answer is in the negative, then no prima facie case has been made out, and the Accused is entitled to an acquittal. Subjecting the prosecution’s evidence to a maximum evaluation to determine if the defence is to be called does not mean that the prosecution has to prove its case beyond a reasonable doubt at the intermediate stage?” “[3a] Consequently, a judge is not to undertake an initial minimum evaluation of the prosecution’s evidence (followed by a maximum evaluation if the Accused elects to remain silent) under s.180 of the CPC (Revised 1999).” [12] The case of Looi Kow Chai & Anor (supra) was referred to in the more recent Federal Court’s Case of Magendran Mohan v PP [2011] 1 CLJ 805 where at page 824, His Lordship Alauddin Mohd Sheriff, PCA, held as follows; “The test at the end of the prosecution’s case is a prima facie case based on a maximum evaluation of evidence. The evidence has to be scrutinized properly and not perfunctorily, cursorily or superficially. If the evaluation of the evidence results in doubts in the prosecution’s case, then a prima 7 facie case has not been made out. The defence ought not to be called merely to clear or clarify such doubts.” [13] It is trite law that in order to prove that the Accused was found in mens rea possession of the dangerous drugs the prosecution must prove two (2) elements. [14] The first element is the body element. The prosecution must proved that the Accused was in custody and control of the dangerous drugs and that he had the power of disposal over the dangerous drugs (see the cases of Balachandran v. PP [2005] 1 CLJ 85 and PP v. Ouseng Sama Ae [2008] 1 CLJ 337. [15] In order to prove custody and control and the power of disposal over the dangerous drugs, the prosecution must prove that the substances were in the Accused possession, for example, found on his body such as in his hand, in his pocket, in a luggage held by him or slung over his shoulder or strapped onto his body or tucked into his trousers at the waist, etc. or found in a car driven and owned or hired or borrowed by him or in a house owned or rented from one of the prosecution witnesses and occupied by him or in a room rented by him which is in a house owned or rented by one of the 8 prosecution witnesses (see the cases of Chan Pean Leon v. Public Prosecutor [1956] 22 MLJ 237; Parlan Bin Dadeh v. Public Prosecutor [2009] 1 CLJ 717; [2008] 6 MLJ 19; P.P. v. Abdul Rahman bin Akif [2007] 4 CLJ 337; [2007] 5 MLJ 1; P.P. v. Abdul Manaf Muhammad Hassan [2006] 2 CLJ 129; and Muhammad Bin Hassan v. PP [1998] 2 MLJ 273). [16] Moving to the next element; the second element is the mental element. The prosecution must prove that the Accused had knowledge that the substances were dangerous drugs. The reason is that without knowledge there cannot be possession (see the cases of Wong Nam Loi v. PP [1998] 1 CLJ 37; [1997] 3 MLJ 795, Balachandran v. PP [2005] 1 CLJ 85, (supra), and PP v. Ouseng Sama Ae [2008] 1 CLJ 337, (supra). [17] Since it is impossible for the prosecution to prove knowledge by direct evidence, the prosecution can prove the nature of the conduct of the Accused at the material time and the circumstances surrounding the discovery of the substances at the material time from which an irresistible inference can be drawn that the Accused had the requisite knowledge that 9 the substances were dangerous drugs (see the case of Parlan Bin Dadeh v. Public Prosecutor [2009] 1 CLJ 717; [2008] 6 MLJ 19). [18] Reverting back to our case, PW7 was the complainant. He informed the court that when he ordered the Accused to have P36 opened for inspection, the Accused had no qualms about it and heeded to his instruction. [19] After P36 was scanned by PW7, PW7 then requested the Accused to open P36, and to clear its contents. The Accused heeded to his instruction and there was nothing to suggest that the luggage was not his to begin with as the key to the padlock was taken out from the trousers that he was wearing at that point of time. [20] PW7 also told the court that when he was physically inspecting P36, he found that there were scattered white powder in P36. Upon further scanning by PW6 of the Coffee packages, there were powder substances found which test positive for methamphetamine. 10 [21] The Chemist, Suhana bt Ismail (PW5), was called as a witness and from her evidence and her Chemist Report after analysis, confirmed the exhibits seized from the Accused person contains 10,437.5 grams of Methamphetamine which is a drug listed in the First Schedule of the DDA. [22] I believed her sworn oral testimony and accepted her findings on the basis that she is qualified and competent to examine and analyze the substance and to testify in court. [23] From the evidence elicited from the prosecution’s witnesses as set out briefly above, I found that the prosecution had proved a prima facie case. This is based on the fact that the Accused was found in possession of 10,437.5 grams of Methamphetamine since it was found in the Coffee Packages in the luggage carried by the Accused. The Accused clearly had custody and control over the 10,437.5 grams of Methamphetamine. [24] I am also satisfied that the Accused has mens rea possession of the drugs since it was in his luggage. 11 [25] At the close of the Prosecution’s case I have to determine, as a trier of fact, whether the prosecution has made out a prima facie case against the Accused. The question I need to answer after subjecting all the evidence of the prosecution to a maximum evaluation is : If I decide to call the Accused to enter his defence, and he elects to remain silent, am I prepared to convict him on the totality of the evidence presented by the Prosecution’s? My answer is in the affirmative. I therefore ordered the Accused to enter his defence. THE DEFENCE CASE [26] The Accused testified that he is a Uzbekhistan national, aged 53 years old and was employed as a chef for the past six (6) years at his employer, Abbas (DW2’s) restaurant in Tashkent. He is married with three

children aged twenty two (22), twenty four (24) and twenty six (26). He has been to Malaysia twice prior to his arrest on 30.5.2014 which were on 3.4.2013 and 7.1.2014. At those time he came along with his employer, DW2. 12 [27] On all the three (3) occasions, the Accused came to Malaysia upon the request of DW2 for him to renovate DW2’s house at B-25-20 Windsor Tower, No 26 Jalan Sri Hartamas 1, Sri Hartamas 50480 Kuala Lumpur. [28] The Court was informed that two (2) days prior to his flight, the Accused received a call from DW2 requesting him to bring Coffee packages for a man named Jassur. The Accused had agreed to the request made by DW2 as DW2 was his “BOSS”. He was also told by DW2 that the reason DW2 wanted the Coffee was due to the fact that that particular brand of Coffee was not available in Malaysia. Upon receiving the request from DW2, the Accused then collected seven (7) packets of Coffee on the same day from Jassur’s friend at a supermarket called Magnit which is near to the Accused house. [29] The Accused did not inspect any of the seven (7) packets of Coffee collected from Jassur’s friend and he did not even read the labels on the packets. He merely packed the coffee packets into P36. The coffee packets were tightly sealed and the Accused did not suspect that there was anything illegal in it. 13 [30] From the evidence of the Accused, he testified that he had met this man named Jassur during his second trip to Malaysia and he went out eating with Jassur in a restaurant in Pavilion. BURDEN OF PROOF AT THE END OF THE DEFENCE CASE [31] The issue before the court is whether the Accused through his evidence has successfully raised a reasonable doubt on the Prosecution’s case. If the Accused failed to raise a reasonable doubt, then the Prosecution is said to have proved its case against the Accused beyond reasonable doubt. [32] This principle is provided in section 182A of the CPC which states: “(1) At the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt.

If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court shall find the Accused guilty and he may be convicted on it. 14

If the Court finds that the prosecution has not proved its case beyond reasonable doubt, the Court shall record an order o acquittal.” [33] Regarding proof beyond reasonable doubt, the Federal Court in Balachandran v PP [2005] 2 MLJ 301 had this to say at paragraph 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 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.” 15 [34] Since the Prosecution in this case is relying on one of the statutory presumptions under the DDA to prove its case namely under section 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 page 171: “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.” 16 [35] 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 must rebut such presumptions on a balance of probabilities. [36] 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 [37] 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 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. 17 [38] The courts duty at this stage is to evaluate on any plausible explanation given by the Accused as laid down in the case of Rengarajan Thangavelu V. PP [2015] 1 CLJ 993, where the Court of Appeal when referring to the case of PP v Oo Boon Khim [2013] 1 LNS 986 states that; “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 Council decision of Ong Ah Chuang v PP [1981] 1 MLJ 64…” The white crystalline substance [39] There is no question that the substance found in the Accused’s luggage is Methamphetamine based on the analysis and findings of the chemist Suhana bt Ismail (PW5). I find that the Prosecution has successfully proved the identity of the drugs as confirmed by PW5. I can see no reason why I should not accept the results of the tests conducted to 18 identify them. I also conclude that the storage and movement of said drugs are in order. Custody and control [40] We have the evidence of PW7 who saw the Accused placing the luggage P36 in the customs scanning machine and there is no dispute that P36 was registered under the Accused’s name. [41] 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 P36 where the drugs were found. [42] It follows therefore that there is no doubt whatsoever that P36 was at all material times in the custody and control of the Accused. The additional fact that the padlock key was taken from the Accused trousers made the presumption of knowledge under section 37(d) DDA invocable. Knowledge-The relationship between the Accused, Abbas (DW2) and Jassur 19 [43] 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 "willful blindness". But before going further on the issue of willful blindness, I will evaluate the relationship between the Accused and Abbas (DW2) and whether the man Jassur exist. [44] The Accused testified that DW2 had called him two (2) days before he came to Malaysia to collect the seven (7) packets of coffee for a man named Jassur whom he claimed to have met during his second trip to Malaysia. DW2 on the other hand has met Jassur a few times as in his testimony he said that he had met Jassur “maybe three times”. [45] DW2 told the court that the Coffee collected for Jassur were not available in Malaysia as it was Russian Coffee and the Accused had agreed to bring the Coffee after he told the Accused that he had never heard anything bad about Jassur. DW2 assured the Accused of Jassur’s good character since all of DW2’s common friends who introduced him to Jassur has said that Jassur was a good man. 20 [46] It was the Defence’s suggestion that the real culprit in this case is Jassur who had tricked the Accused into bringing the seven (7) tightly sealed coffee packets containing drugs by deceiving DW2, leading DW2 to instruct the Accused to help him. [47] It was also the evidence of the Defence that Jassur had threatened to kill DW2 and his family in the event Jassur’s name was revealed in Court. Prior to that, D70, a police report was made by DW2. [48] On the evidence led by the Defence, I believe there exist a relationship between the Accused and DW2 as well as between DW2 and Jassur. However, the Accused has to overcome the issue of willful blindness to prove that he has no knowledge of the drugs. [49] In the case of PP v. Klong K'Djoanh & Another Appeal [2016] 5 CLJ 533, it was held; "It is the principle of the law that the defence of innocent carrier should be taken into account with the principle of willful blindness." (emphasis added) 21 [50] The concept of 'willful 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 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 willful 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." [51] From the foregoing, the doctrine of 'willful blindness' can be summarized to be applicable to a situation where the circumstances are such as to raise suspicion sufficient for a reasonable person to be put on 22 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 to satisfy himself as to the genuineness of what was informed to him. [52] Should the Accused failed to embark upon this course of action, then he will be guilty of 'willful blindness' to what can be said to be fairly obvious. In other words, he is then taken to know what the contents are. 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 drugs in question. It will also be 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. [53] An examination of the circumstances in which the Accused came to be in physical possession of the Coffee according to the evidence of the Accused himself was that he received the Coffee Packages from Jassur’s friend two (2) days before he departed for Malaysia. The Accused 23 explained that he packed the Coffee in P36 without examining their contents. To my mind based on ‘the reasonable man test’ it is reasonable and conceivable that any man will not open a sealed packet of Coffee just to check on its content. [54] 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 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 meters. 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 24 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.” [55] In short, the Accused’s inaction must be tested against the facts and circumstances as a whole. Mere passive conduct on his part cannot per se amount to lack of knowledge as to the contents of P36. However, in the case of Yu Jing v. PP [2017] 1 LNS 315, the Court of Appeal in referring to the case of Tan Kim Peng v. PP [2007] SGCA 38, state; "The test of willful blindness sets a higher bar than mere recklessness as to the relevant circumstances. "How can the "reckless" accused and the "willfully blind" accused be distinguished? What amounts to a deliberate decision not to make further enquiries? [56] Andrew Phang JA in the case of Tan Kim Peng (supra) expounded on the concept of wilful blindness as being equivalent to actual knowledge. 25 With respect to the applicable standard to be used in assessing whether an accused was guilty of wilful blindness, the issue was nowhere directly addressed. The learned judge in the course of his analysis had however alluded to two contrasting but hypothetical examples as the following passage will indicate. “To reiterate an obvious (but important) example, where the accused has had the controlled drugs slipped into a bag without his or her knowledge, it is clear that no offence under the Act would have been committed (see, once again, the passage by Lord Parker CJ in Lockyer v. Gibb (set out at [35] above) as well as the GD at [12]). Where, to take another example, the accused is asked by a close family member to carry a box containing controlled drugs on the understanding that the box (wrapped up, say, in ribbons) contains a cake which is to be delivered to another close relative, there might be a strong case for arguing that the accused could not be said to be wilfully blind because the circumstances ought not to have aroused his or her suspicions, let alone entailed further investigation. Again, however, much would (to reiterate an extremely important point) depend on the precise facts, evidence as well as credibility of the witnesses (especially the accused).” (emphasis added) 26 Issues Raised by the Prosecution [57] The Prosecution in their submissions relied on the Court of Appeal’s case of Tobechi Chinonso Madu v PP, Criminal Appeal No. B-05-65- 02/2013 to support their contention that the defence has failed to discharge their legal burden to disprove knowledge due to the failure of calling Jassur. However, our instant case is distinguishable from the cited case because in the cited case, the Accused person failed to called ‘Ossy’, the person who had asked him to carry the soap boxes containing drugs. The Court of Appeal hence ruled the evidence as hearsay and inadmissible. On the facts of our case, it is an undisputed fact that the person who had instructed the Accused to carry the coffee packets was DW2 his employer who had given evidence to that effect. Therefore, the cited case is inapplicable to our instant case. [58] In the case of Shah Rehan bin Abdul Rahman v Public Prosecutor [2015] 3 MLJ the Court of Appeal held that:- “(2) The three named persons were not fictitious characters. …… Being too preoccupied and under the erroneous belief that the appellant is duty bound to prove his case, the trial judge had failed and had totally 27 dismissed the appellant's explanation. The trial judge had committed a serious error of law. [25] Generally, in a criminal trial, there is no burden cast on the accused to call witnesses and no adverse inference may be drawn on the failure of the defence to call witnesses (Goh Ah Yew v Public Prosecutor [1949] 1 MLJ 150, Abu Bakar bin Alif v R [1953] 1 MLJ 19, Public Prosecutor v Tan Gong Wai & Anor [1985] 1 MLJ 355, Illian & Anor v Public Prosecutor [1988] 1 MLJ 421, Tan Foo Su v Public Prosecutor [1967] 2 MLJ 19). The learned trial judge in the instant appeal had erred in invoking the s 114(g) provision on the failure of the appellant to call the three named persons. On that ground alone, we ought to allow the appeal. There was a clear misdirection by the learned trial judge. [26] Eusoffee Abdool Cader J (as he then was) in Public Prosecutor v Datuk Haji Harun bin Haji Idris & Ors [1977] 1 MLJ 180 among others had commented: … No unfavourable inference can or will be drawn against the accused for not calling these or any other witnesses and I make no adverse inference or assumption whatsoever against them in this respect. I do not think however that I am necessarily precluded from commenting on or taking into consideration the failure to call particular witness or witnesses in weighing the credibility of the evidence adduced by and for the defence and in viewing the whole of the material upon which I have to decide in order to determine whether the explanation of the accused has cast a 28 reasonable doubt on the case for the prosecution. I must repeat however and make it abundantly clear that in a criminal case there is no obligation on the defence to call any witness and it is entirely open to the defence to adduce no evidence at all, and all that they need to do is to raise a reasonable doubt when called upon to enter on their defence, though the failure to call any particular witness may be a matter the court can take into account (without however drawing any adverse inference or making any assumption or presumption whatsoever against the defence in that regard), particularly as in this case the potential witnesses were persons in respect of whom the prosecution had probably no cogent means of knowing that they might have any relevant evidence to give until the accused themselves and their witnesses came to give evidence (Regina v Gallagher [1974] 1 WLR 1204; Public Prosecutor v Lim Kuan Hock [1967] 2 MLJ 114 at p 115; Tay Choo Wah v Public Prosecutor [1976] 2 MLJ 95 at p 100).” Therefore, not calling Jassur to give evidence may not amount to the evidence of the Accused to be uncorroborated. This is so since the Accused’s employer, DW2 had given evidence that he knew and have met Jassur three (3) times and that he believed Jassur to be a good man. 29 [59] The prosecution had also raised in their submission that both the defence witnesses are not credible or reliable due to the conflicting evidence given by the Accused and DW2. It is trite law that minor inconsistency in evidence does not make the entire evidence unbelievable. What is pertinent is whether the discrepancy relates to a material aspect of the case or otherwise. In the case of Gunalan a/l Ramachandran & Ors v Public Prosecutor [2006] 2 MLJ 197 the Federal Court held that:- “What needs to be considered is whether the discrepancies relate to material aspects of the case or otherwise. As stated in Sarkar on Evidence (15th Ed) p 112: Minor discrepancies are possible even in the version of truthful witnesses and such minor discrepancies only add to the truthfulness of their evidence (see Sidhan v State of Kerala (1986) Cri LJ 470 473 (Ker)). But discrepancies in the statements of witnesses on material points should not be lightly passed over, as they seriously affect the value of their testimony (see Brij Lal v Kunwar 36 A 187; 18 CWN 649; A 1914 PC 38). The main thing to be seen is whether the inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the incongruities obtaining in the evidence. In the latter, however no such benefit may be available to it (see 30 Krishna Pillai Sree Kumar v State of Kerala A 1981 SC 1237 1239 1981 Cri LJ 734).” [60] The Court of Appeal’s case of Deepanraj a/l Subramanian v Public Prosecutor [2016] 1 MLJ is instructive in shedding light on how to deal with discrepancies. “[23] It must always be borne in mind that not all discrepancies are material. Human faculties vary and the power of retention varies among individuals. Again, one’s perception of a particular fact or event may also vary from others and more so over a period of time. No two witnesses can remember the same thing and give the same recollections accurately. In his submissions, learned counsel seems to have picked up every minor discrepancy in the evidence of the witnesses to bolster his argument. We find this to be undesirable. [24] In Pie bin Chin v Public Prosecutor [1985] 1 MLJ 234; [1983] CLJ Rep 703, Wan Yahya J had this to say: Discrepancies are no doubt present in this case, as they do ostensibly appear in most cases in evidence of witnesses for the prosecution as well as the defence. The transcripts of most evidence, when thoroughly tooth-combed by any able lawyer, never failed to yield some form of inconsistencies, discrepancies or contradictions but these do not 31 necessarily render the witness’s entire evidence incredible. It is only when a witness’s evidence on material and obvious matters in the case is so irreconcilable, ambivalent or negational that his whole evidence is to be disregarded. [25] The learned trial judge had considered the evidence of these witnesses and had accepted their evidence. He was in the best position to assess and either to receive or reject their evidence. Although nothing was mentioned in his grounds of judgment about demeanour, we take it that His Lordship had accepted their evidence and had acted on that evidence. We shall not differ. We do not find the discrepancies referred to by learned counsel as material discrepancies. We only see one version of the prosecution’s case, not two or more as submitted by learned counsel.” [61] The alleged conflicting evidence raised by the prosecution are specified below;

The Accused in his evidence said that he would be doing piping and electricity work in DW2’s house whereas DW2 said the Accused would be fixing wallpaper at his house;

(ii) The Accused in his evidence said that he requested for any two

weeks return date and the person at the airport gave him 32 the date whereas DW2 said he selected the return date for the Accused; and

(iii) During the telephone call received by the Accused as shown in the photo, exhibit D65(a), the Accused said DW2 asked him why he was late whereas DW2 said he called to check whether the flight has landed or was delayed. [62] I am of the view that the alleged conflicting evidence do not actually affect the main thrust of the defence as the Accused had testified that he would be doing piping and electricity work as well as the “whole house renovation” and this does not exclude fixing up the wallpaper although he did not specifically mentioned it. On the other hand, DW2 did not state that the Accused’s only renovation work this time was to put up wallpaper hence it could be in addition to the mentioned renovation work. Further, DW2 was not cross-examined if he had informed the Accused that he would be putting up wallpaper. Therefore, it was not established that this fact is actually within the knowledge of the Accused before he arrived in Malaysia. 33 [63] The date selected by DW2 was in fact two (2) weeks from the Accused’s arrival date. This fact is consistent with the evidence that the Accused had asked for a departure date two (2) weeks from his arrival. As the Accused bought the ticket himself from the counter at the airport, his answer is logical that he gave the date as it is probable that he could have been told by DW2 beforehand to select a return date of two (2) weeks from his arrival. [64] Whether the Accused was asked if he was late, his flight was delayed or if he has landed, does not change the fact that DW2 did call the Accused and questioned him on the status of his flight and arrival. The Accused should not be penalized for remembering different parts of the conversation as compared to DW2. [65] With respect, I have to agree with the submissions of the Defence that the alleged discrepancies that were pointed out by the Prosecution should not affect the weight of the evidence given by the Accused or DW2. [66] At this juncture, I find that it is a plausible explanation by the Defence that DW2 had informed the Accused to collect the coffee packets for Jassur 34 because they were not available in Malaysia. The Accused then agreed since DW2 gave the assurance that he had never heard anything bad about Jassur. Although DW2 did not know Jassur very well, he assured the Accused of Jassur’s good character since all of DW2’s common friends who introduced him to Jassur had vouched for Jassur’s good character. Thus, upon DW2’s request, the Accused had agreed to act as such. DW2 was the Accused employer and they had a very closed relationship. [67] As to the coffee packets the Accused testified that he did not read the prints on the packets and since the coffee packets were tightly sealed, he did not suspect anything since the drugs were not visible to the naked eye. I am of the view that his explanation is logical, more so when his employer DW2 has assured him that Jassur was a good man. CONCLUSION [68] In light of the above, I accept and believed the Accused explanation (defence) which in my view had successfully cast a reasonable doubt on the Prosecutions Case. In the upshot I hereby acquit and discharge the Accused of the charge against him. 35 Dated : 11th December 2017 -Signed- (SURAYA OTHMAN) Judge, Criminal Court, High Court of Malaya, Shah Alam, Selangor. Cases(s) referred to:

Looi Kow Chai & Anor v PP [2003] 1 CLJ 734;

Magendran Mohan v PP [2011] 1 CLJ 805;

Balachandran v PP [2005] 2 MLJ 301;

PP v. Ouseng Sama Ae [2008] 1 CLJ 337.

Chan Pean Leon v. Public Prosecutor [1956] 22 MLJ 237;

Parlan Bin Dadeh v. Public Prosecutor [2009] 1 CLJ 717; [2008] 6 MLJ 19;

P.P. v. Abdul Rahman bin Akif [2007] 4 CLJ 337; [2007] 5 MLJ 1;

P.P. v. Abdul Manaf Muhammad Hassan [2006] 2 CLJ 129;

Wong Nam Loi v. PP [1998] 1 CLJ 37;

Munusamy v PP [1987] 1 MLJ 492;

Wong Swee Chin v PP [1981] 1 MLJ 212;

Tan Kim Ho & Anor v PP [2009] 3 CLJ 236;

Megat Halim Megat Omar v PP [2009] 1 CLJ 154; 36

PP v Oo Boon Khim [2013] 1 LNS 986;

PP v. Klong K'Djoanh & Another Appeal [2016] 5 CLJ 533;

Public Prosecutor v. Hla Win [1995] 2 SLR 424;

Deepanraj a/l Subramanian v Public Prosecutor [2016] 1 MLJ;

Teh Hock Leong v PP [2010] 1 MLJ 741;

Hoh Bon Tong v PP [2010] 5 CLJ 240;

Muhammad Bin Hassan v. PP [1998] 2 MLJ 273).

Mohd Radhi bin Yaakob v PP [1991] 3 MLJ 169;

Teh Hock Leong v PP [2010] 1 MLJ 741;

Hoh Bon Tong v PP [2010] 5 CLJ 240 at 272;

Yu Jing v. PP [2017] 1 LNS 315;

Tan Kim Peng v. PP [2007] SGCA 38;

Shah Rehan bin Abdul Rahman v Public Prosecutor [2015] 3 MLJ;

Gunalan a/l Ramachandran & Ors v Public Prosecutor [2006] 2 MLJ 197;

Tobechi Chinonso Madu v PP, Criminal Appeal No. B-05-65-02/2013 Legislation referred to:

Section 180 and 182A of the Criminal Procedure Code (CPC);

Section 37(d) Dangerous Drugs Act 1952 (Act 234). 37 Counsel/ Solicitors : For the Prosecutions: Madam Khuzaima binti Dolfatah Bahagian Hal Ehwal Perundangan Kastam DiRaja Malaysia Aras 4 Selatan Kompleks Kementerian Kewangan No.3 Persiaran Perdana Presint 2, 62596 Putrajaya For the Accused: YBhg. Datuk N. Sivananthan and Mr Jay Moy Wei Jiun Messrs. Sivananthan Advocates & Solicitors Suite No 1 L17-01, PJX Tower No.16A, Persiaran Barat 46050 Petaling Jaya