Subparagraph
(iii) that the trial judge had erred in failing to mark IDD85 and IDD86 as exhibits. Our deliberation and decision [15] Before we address the issues raised by counsel for the appellant, it is relevant to touch on the element of possession and trafficking which are the main element in establishing the offence against the appellant under section 39B(1)(a) of the DDA. In this regard, it is trite that the prosecution may rely on the presumed possession under section 37(d) or established actual possession independent of section 37(d) and adduced affirmative evidence to prove trafficking with the aid of the definition of trafficking under section 2 of the DDA. [16] This has been lucidly explained by the Federal Court in the case of Public Prosecutor v Abdul Manaf bin Muhamad Hassan [2006] 3 MLJ 193 at page 203, in the following words: ‘[17] It ought to be stated at the outset that the decision in Muhammad bin Hassan only prohibits the use of double presumptions under ss 37(d) and 37(da) of the Act. It is therefore, open to the prosecution to rely on either of the presumptions. In other words, the prosecution may positively prove 9 possession without relying on the presumption under s 37(d) of the Act and go on to rely on the presumption of trafficking under 37(da) of the Act to support a charge under s 39B of the Act. See Tunde Apatira & ors v Public Prosecutor; Msimanga Lesaly v Public Prosecutor [2005] 4 MLJ 314, a decision of Court of Appeal which was confirmed by this Court in Federal Court Criminal Appeal No 05 – 27 of 2004(K). Conversely, the prosecution may rely on the presumption under s 37(d) to prove possession and seek to prove by affirmative evidence (independent of the presumption under section 37(da)) that the accused was in fact trafficking in the dangerous drugs.’ (emphasis added) [17] In the instant case, the learned trial judge had invoked the presumption under section 37(d) after having made a finding that the appellant had control and custody of the drugs in the capsules excreted by the appellant. For ease of reference, section 37(d) provides: ‘any person who is found had in custody or control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug;’ (emphasis added) [18] Knowledge as to the nature of the drug is also presumed under this section 37(d) upon having established the primary facts of control or custody. The Federal Court in the case of PP v Reza Mohd Shah Ahmad Shah [2010] 1 CLJ 541 had this to say on this issue: 10 ‘[23] As to the meaning of ‘nature’ in s. 37(d), I do not think it really matters what the extend of the meaning is, because the presumption is rebuttable. The moment custody or control of the thing containing the dangerous drug is established, knowledge of the nature of the drug is presumed…’ (emphasis added) [19] On the issue of custody and control, it is instructive to make reference to the case of Leow Nghee Lim v Reg [1959] 22 MLJ 28 where Taylor J explained the meaning of custody and control in the following words: “Custody means having care or guardianship; goods in custody are in the care of the custodian and, by necessary implication, he is taking care of them on behalf of someone else. You cannot take care of goods unless you know where they are and have means of exercising control over them. Custody therefore implies knowledge of the existence and whereabouts of the goods and power of control over them, not amounting to possession.” At page 32 of the same case, Taylor J said this: ‘Control must be proved as a fact and it must arise from the relation of the person to the goods, irrespective of whether they are contraband. An example may make this clearer. Suppose that one of the assistants in this case smoked a particular brand of tobacco, not sold in the shop and to the knowledge of the accused, kept it in that drawer. No doubt the accused could, at any time, tell the assistant to keep his tobacco somewhere else. He could resume possession of the drawer. But so long as he allowed the assistants to keep their small personal things in the drawer, the things were in their control, not his. He could not reasonably order them to throw away harmless tobacco, consistently with the existing 11 arrangement. The argument for control is based solely on the contraband nature of the thing – not on the circumstances in which it was kept. (emphasis added) [20] Coming back to the present case, the fact that all the capsules were excreted from the appellant’s intestine or stomach conclusively established that the appellant had control and custody of the capsules which contained the impugned drugs. [21] Having applied section 37(d), the trial judge then made an affirmative finding of trafficking based on the definition of trafficking under section 2 of the DDA. [22] Trafficking in dangerous drugs under the DDA includes carrying or transporting the said drugs as clearly provided under section 2 of the Act which reads: ‘trafficking includes the doing of any of the following acts, that is to say, manufacturing, importing, exporting, keeping, concealing, buying, selling, giving, receiving, storing, administering, transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug otherwise than under the authority of this Act or the regulation made under the Act...’ (emphasis added) 12 [23] As to the application of the definition of trafficking under section 2, there is a principle of law that an act of carrying per se, is insufficient to constitute the offence of trafficking. It must be accompanied by an overt act as explained by Lord Diplock in Ong Ah Chuan v Public Prosecutor, Koh Chai Cheng v Public Prosecutor [1981] 1 MLJ 64 and accepted with approval by the Federal Court in Public Prosecutor v Abdul Manaf bin Muhamad Hassan (supra) in the following words: “[20] However, the mere act of carrying is not sufficient to constitute the offence of trafficking. This is clearly explained by Lord Diplock in Ong Ah Chuan v Public Prosecutor, Koh Chai Cheng v Public Prosecutor [1981] 1 MLJ 64, where at p 68 he observed: ‘To ‘traffic’ in a controlled drug so as to constitute the offence of trafficking under s 3 involves something more than passive possession or self administration of the drug; it involves doing or offering to do an overt act of one or of other of the kinds specified in paragraph (a) of the definition of ‘traffic’ and trafficking in s 2.” (emphasis added) [24] Lord Diplock in the same case, has categorised the overt act in the following manner: “ This is a very wide description of acts that may be treated as equivalent to the substantive offence of trafficking; nevertheless, in their Lordships view, it is clear from the structure of the Drugs Act and the distinction drawn between the offence 13 of having a controlled drug in one’s possession and the offence of trafficking in it, that mere possession of itself is not to be treated as an act of preparatory to or in furtherance of or for the purpose of trafficking as to permit the conviction of the possessor of the substantive offence. To bring the provisions of sections 10 and 3(c) into operation some further steps or overt act by the accused is needed, directed to transferring possession of the drug to some other person, and it is a consequence of the clandestine nature of the drug trade and the means adopted for the detection of those engaged in it, that the further step that the prosecution is most likely to be able to prove in evidence is the act of the accused in transporting the drug to some place where he intends to deliver it to someone else, whether it be the actual consumer or a distributor or another dealer”. (emphasis added) [25] Reverting to the present case, the impugned drugs were carried into Malaysia from Nigeria in the appellant’s stomach which clearly meant to avoid detection by the authority. Further, the total amount of 613.1 grammes of methamphetamine can reasonably be inferred to be delivered to another party and not for the appellant’s own consumption. Therefore, there was an overt act that accompanied the act of carrying of the drugs in this case. [26] Be that as it may, this principle of law on the requirement of an overt act has been diluted by the decision of the Federal Court in the case of PP v Herlina Purnama Sari [2016] 1 LNS 1855 where it was held that the requirement of an overt act in all cases in order to constitute trafficking is misconceived. Raus Sharif PCA (as he then was), delivering the judgment of the court had this to say: 14 “[37] The second error of the trial judge’s finding that to constitute trafficking, the mens rea possession must be accompanied by some overt act by the respondent. It is unfortunate that the Court of Appeal had also committed similar error in agreeing with the finding of fact of the trial judge by holding “ without any evidence that would show an overt act of one or other of the kind specified in the definition of trafficking in s 2 of Act 234 or specifically of conveying, transporting, carrying, moving or promoting from one place to another in the sense of doing so to promote the distribution of the drug to another”, the respondent could not be a trafficker but merely had passive possession of the impugned drugs. [38] With respect, the proposition that there must be in all cases an overt act in order to constitute trafficking is misconceived. It would be contrary to the definition of trafficking as provided for under s. 2 of the Act… [39] We are of the view that whether or not a person is a trafficker within the definition of s. 2 of the Act is dependent of the facts and circumstances of a given case. In this case, it is not in dispute that when the respondent was arrested she was carrying the luggage bag which amongst other things contained the impugned drugs. The respondent was apprehended in the act of carrying from one place to another a large amount of dangerous drugs. It is in evidence that the respondent was unaccompanied by any person when she carried the luggage bag. The luggage bag was registered in the respondent’s name when she checked in at the Air Asia check-in counter. The impugned drugs were found hidden in the two boxes. In fact, the drugs were neatly and securely concealed from view in both the boxes. We are of the view that the manner in which the impugned drugs were concealed in the luggage bag showed that the respondent knew the existence of the drugs there, and evinced the intention of the careful planning by the respondent to conceal the impugned drugs to avoid and escape detection” 15 (PP v. Abdul Rahman Aktif [2007] 1 MLRA 568 and The Hock Leong v. PP [2008] 1 MLRA 548) (emphasis added) [27] Additionally, Lord Diplock in Ong Ah Chuan’s case has introduced the common sense approach, where if an accused is caught in the act of conveying from one place to another, controlled drugs in a quantity much larger than is likely to be needed for his own consumption, the inference is that he was transporting them for the purpose of trafficking in them in the absence of any plausible explanation. This need to be rebutted by the accused by convincing evidence. [28] There is plethora of authorities that applied this common sense approach including the Federal Court case of Johar Mustapha v PP [2009] 6 CLJ 193 where Alauddin Mohd Sheriff PCA (as he then was) delivering the judgment of the court, said this: “[41] In our respectful view, the act of the appellant in carrying or transporting the large quantity of drugs i.e., 19,152 grammes of cannabis in the boot of his car amounted to an act of trafficking of the said drugs as defined under s 2 of the DDA 1952.” (see also: Mohammad Yazri Minhat v PP [2003] 2 CLJ 65) [29] Likewise in the instant case, the appellant was carrying 613.1 grammes of methamphetamine, which can be considered as a large 16 quantity of drugs and not for his own consumption. The inference here was that the appellant was carrying or transporting the drugs for the purpose of trafficking which need plausible explanation from the appellant. Further, the dangerous drugs were carried into Malaysia in the appellant’s stomach simply to avoid detection. Thus, the appellant was a trafficker within the definition of section 2 of the DDA. [30] In this case, having considered the evidence including the defence evidence, the trial judge found that the appellant had failed to rebut the presumption under section 37(d) on the balance of probabilities and had also failed to raise a reasonable doubt on the prosecution’s case. The appreciation of the defence’s case. [31] On this issue, counsel for the appellant contended that the trial judge had failed to consider the defence’s case in totality in particular the appellant’s cautioned statement (D84) and his defence of intoxication. [32] In this regard, having perused the trial judge’s grounds of judgment, we find that the trial judge had extensively considered the defence as reflected at paragraphs 47 until 72 of the said grounds of judgment. [33] In fact, the trial judge had also made reference to the appellant’s cautioned statement at paragraphs 56 and 64 of his grounds of 17 judgment. As such, it is not accurate to say that the trial judge had failed to consider the appellant’s cautioned statement. [34] In any event, as submitted by counsel for the appellant, the contents of the appellant’s cautioned statement is consistent with the appellant’s evidence in court. Hence, all his defence had already been presented before the judge in his testimony under oath. It has also been considered by the trial judge as mentioned earlier. In the circumstances, there was no miscarriage of justice against the appellant. The issue that the trial judge had failed to consider all evidence adduced before the court as required under section 182A(1) of the Criminal Procedure Code (“CPC”) does not arise. [35] This court in Emmanuel Kamano v Public Prosecutor [2019] 1 LNS 576 had dealt on the same issue and opined as follows: “[39] It was further argued that the learned trial judge erred in failing to consider the cautioned statement of the appellant (D52), citing Alcontara a/l Ambross Anthony v Public Prosecutor [1996] 1 CLJ 705. It was submitted that had the learned judge considered the cautioned statement, he would have found that the appellant’s defence was not an afterthought as it was put forward at the earliest opportunity and was consistent with the cautioned statement of the other person as well as the appellant’s oral testimony in court. [40] It was submitted that the failure by the learned judge to consider the appellant’s cautioned statement was a breach of section 182A(1) of the Criminal Procedure Code which requires the court to consider “ all the evidence adduced before it” at the conclusion of the trial. 18 [41] We found no merit in the argument. Although the learned judge did not refer to the cautioned statement in considering the appellant’s defence, this had not resulted in a serious miscarriage of justice as what the appellant said in his oral testimony was a regurgitation of what he said in his cautioned statement. [42] Repeating what he said before the trial did not add value to his evidence in court, especially considering the fact that out of court statement was not subjected to cross-examination unlike his oral evidence in court. If we were to accede to the learned counsel’s argument, consistency in evidence would determine whether or not an accused person is guilty of the offence he is charged with. That cannot be a correct proposition of law. (emphasis added) [36] Likewise in the present case, the consistency of the appellant’s cautioned statement and his oral testimony should not be taken as the yardstick in determining the appellant’s guilt or otherwise. Most importantly, the appellant had been given the opportunity to present his defence in court and the defence had been duly considered by the trial judge. [37] In relation to the same issue, it is also trite law that, this court can re-evaluate and review the evidence presented before the court in determining the issue raised in the appeal. This had been lucidly explained by the Federal Court in the case of Ahmad Najib bin Aris v Public Prosecutor [2009] 2 MLJ 613 where it stated the following: 19 “As regards the first main ground of appeal, I am of the view that the Court of Appeal has the power to review or to re-evaluate all the evidence available as adduced by the prosecution. The Court of Appeal is in the position to do so in the present case even though the grounds of decision, of the trial judge as appearing in the appeal records is found lacking in specific findings” The Court further held as follows: “The Court of Appeal has the discretion to re-evaluate the remaining evidence and to scrutinise in totality such other evidence, apart from the confession to determine whether the evidence is sufficient to satisfy all the elements of the charges against the appellant. After all such steps been taken, the Court of Appeal is obliged to scrutinize whether to affirm the conviction against the appellant (see Public Prosecutor v Abdul Rahman Akif [2007] 5 MLJ 1; [2007] 4 CLJ 337)” (emphasis added) [38] Likewise in the case of PP v Azilah Hadri & Anor [2015] 1 CLJ 579 where the Federal Court held as follows: “[102] we hold the view that even if the trial judge had failed to mention of any evaluation of common intention in his written grounds of judgement, the Court of Appeal, which in law reheard the case when exercising its appellate function, was empowered and also duty bound to carry out an evaluation exercise to determine whether common intention did exist. Here the Court of Appeal equally failed to do that. An appeal is a continuation of proceedings by way of rehearing and an appeal court may subject the evidence to a critical re- 20 examination. (Ahmad Najib Aris v PP [2009] 2 CLJ 800; [2009] 2 MLJ 613; Mohamad Deraman v PP [2011] 3 CLJ 601; [2011] 3 MLJ 289).” (emphasis added) [39] Applying this principle of law, this court can also re-evaluate the evidence before the court and determine as to whether the defence of intoxication had been established by the appellant in the present case although this issue was not mentioned or considered in the trial judge’s grounds of judgment. [40] In the present case, the appellant testified that he was highly intoxicated after Chief K swiped his face with a towel. On this defence of intoxication, it is instructive to make reference to the Federal Court case of Francis Anthonysamy v PP [2005] 2 CLJ 481 where the court explained as follows: “It must be observed that what is in issue in a defence of intoxication is the state of mind of the person concerned in order to determine whether he could have formed the necessary intention. The best evidence to establish his state of mind is his conduct prior to, at the time of, and after the offence as different people react differently to the same blood alcohol level. Needless to say, scientific evidence is significant to explain the conduct of the person. In other words, it will corroborate the evidence of conduct. Its absence cannot therefore be fatal.” (emphasis added) 21 [41] Having considered the evidence presented before the court, we find that the appellant can remember the incident in detail on the particular day when he said he was highly intoxicated. Further, no scientific evidence was adduced to establish the said defence of intoxication on the balance of probabilities. As such, we are of the view that the appellant had failed to establish the defence of intoxication. [42] Apart from this, we also find that the finding of the trial judge that the appellant’s defence was an afterthought was correct. In his defence, the appellant testified that Chief K threatened him that he and his family would be killed if he disagrees to swallow the capsules which contained the dangerous drugs. However, this threat was not mentioned in his cautioned statement. Similarly, the name Chekwube Jerry, who was said as Chief K’s friend in Malaysia was also not stated in the cautioned statement and the name was only raised during the defence’s case. [43] Further, the appellant’s evidence was that he had informed the Malaysian police about the incident where he was threatened and the capsules were placed in his stomach was not put to any of the prosecution witnesses. SP3, the police officer who first approached the appellant also did not mention about appellant reporting to him of the said incident. [44] In this regard, failure of the appellant to disclose material information at the earliest opportunity would entitled the court to disbelieved the appellant (see Teng Howe Seng v PP [2009] 3 CLJ 733 (FC)) 22 [45] In relation to the issue of threat raised by the appellant in his testimony, it is a defence as provided under section 94 of the Penal Code. However, in order to succeed as a defence, the threat or duress must be imminent, extreme and persistent at the time of the commission of the offence. (see Tan Seng Ann v Public Prosecutor [1949] MLJ 87; Chu Tak Fai v PP [1998} 4 CLJ 789). However, based on the evidence in the present case, we find, the defence had failed to establish the defence of duress on the balance of probabilities. [46] Next, the appellant’s version that Chief K and his men had placed the capsules in his stomach is also untenable. According to the SP3 in his testimony, after the appellant had excreted the 10 capsules in the toilet of the Narcotic’s office at KLIA and SP3 asked for explanation, the appellant only answered “I do not know”. Nothing was said about the capsules were put into his stomach by someone. All these supports the finding that the appellant’s defence was an afterthought. Failure of the Investigating Officer to conduct a complete and thorough investigation [47] Next, it was submitted that the Investigating officer had failed to investigate the present case completely and thoroughly which had denied the appellant the opportunity to exculpate him. [48] Counsel for the appellant contended that the investigating officer had failed to investigate the contents of the two handphones (P45 and P46) seized from the appellant which among others contained the 23 handphone number of Chief K’s friend and the sms from the appellant to his wife informing her about the predicament and asking her to make a police report in Nigeria. [49] On this issue, we do not find that the failure to investigate the contents of the handphones seized from the appellant is fatal to the prosecution’s case or in any way prejudice to the defence’s case based on the circumstances of this case and the evidence adduced before the court. Here, there are overwhelming evidence proving the charge against the appellant and what was alleged to contain in the handphones were already presented in the appellant’s oral evidence and assessed by the trial judge. Hence, the contention of incomplete investigation is devoid of any merit. The admissibility of IDD85 and IDD86 [50] IDD85 is a police report made by the appellant’s wife in Nigeria and IDD86 is an affidavit deposed by her also in Nigeria. [51] The best evidence rule is that the maker of a document must be called to prove the document. The maker has to be called to establish the truth of the facts therein. Failure to do so will make its contents hearsay and inadmissible. In Rejab bin Lebai Man & Anor v Public Prosecutor [ 2001] 4 MLJ 106 it was held as follows: 24 “In this case the proforma was merely an enclosure in exh P3 and was not referred to or identified by any witness. The fact that a file with enclosures has been tendered in evidence does not mean that the enclosures are proved. (see Datuk Haji Harun bin Haji Idris v PP (1978) 1 MLJ 240). The enclosures in it must be separately proved in the normal way in order for them to have any evidentiary value. The contents of the proforma, having been not proved, are thus hearsay and inadmissible.” (emphasis added) [52] Reverting to the present case, the maker of IDD85 and IDD86 was not called to testify as to their contents. Further, as to IDD86, the affidavit does not complied with the requirement of section 424(1)(d) of the CPC which provides: “424 (1) Subject to any rules of Court, any affidavit may be used in a criminal Court if it is sworn: