Promise Chimankpa Kpalikwu (W/Nigeria) v Pendakwa Raya (B-05(M)-532-11/2017)

SP 2 juga mendapati pada satu lagi bahagian P 27 tersebut mengandungi satu “putting hole”, satu “putter” dan dua (2) biji bola golf yang diletakkan di atas pelapik getah lembut berwarna putih. SP 2 seterusnya turut melakukan pemeriksaan lanjut di bawah pelapik getah lembut berwarna putih tersebut dan mendapati di bawahnya mengandungi satu bungkusan plastik lutsinar (P39) yang dililit di sekelilingnya dengan pita pelekat berwarna coklat dan dibaluti dengan kerajang aluminium yang dilekatkan pada kepingan plastik berspan di mana di dalam P 39 tersebut juga di dapati mengandungi ketulan-ketulan kristal disyaki dadah.” 5 [8] SP 2 seized all the items and led by the appellant, he was brought to a house at 29-1, Block F, Jalan OS 1/1, One Selayang, Batu Caves, Selangor. Upon a search at the said address, SP 2 found a passport (P36) of Federal Republic of Nigeria belonging to the appellant. [9] The investigation officer, SP 7 subsequently marked the items seized and weighed the exhibits and kept the items in a locked cabinet in his room. [10] On 10.3.2014, SP 7 sent the exhibits to the chemist, SP 3 for analysis. P38 and P39 together with its contents were analysed and the results by SP 3 showed that it contained methamphetamine at 212.4 grams. SP 3 prepared a chemist report P21 dated 26.5.2014. FINDINGS OF THE LEARNED HIGH COURT JUDGE AT THE END OF THE PROSECUTION’S CASE: [11] The learned High Court Judge found that the prosecution had successfully proved the issue of custody and control of the drugs (P38 and P39) by the appellant in paragraphs 18 and 20 in his grounds at page 17: “[19] Mahkamah berpendapat bahawa tertuduh mempunyai pengetahuan terhadap dadah tersebut berdasarkan keterangan terus yang menunjukkan bahawa P 38 dan P 39 yang berada di dalam bungkusan P 23 sentiasa berada dalam kawalan dan jagaan Tertuduh. Keterangan SP 2 juga menyatakan ketika melakukan tangkapan, SP 2 telah memperkenalkan diri dan memakai vest yang mempunyai lambang polis di bahagian hadapan vest. 6 [20] Tertuduh yang memegang dan membawa keluar bungkusan (P23) dari dalam premis Pos Laju menunjukkan kawalan dan jagaan berjaya dibuktikan…...” [12] On the issue of knowledge, the learned High Court Judge found that knowledge can be inferred from the conduct of the appellant. This can be found in his findings at paragraph 19 at page 18 of the grounds. It is to be noted that there appears to be a typographical error in the paragraphing at pages 17 and 18 of the grounds. As a result of the typographical error, there appears to be 2 of paragraphs 19 and 20. The 1st paragraphs 19 and 20 are at page 17 and the 2nd paragraphs 19 and 20 are at page 18. To prevent confusion, we shall refer to the relevant paragraphs as stated in the grounds together with the pagination as appeared in the same. Paragraph 19 (at page 18 of the grounds) reads: “[19] Seperti yang dinyatakan sebelum ini, Mahkamah telah meneliti keterangan yang boleh diambil kira iaitu keterangan tingkahlaku (conduct) Tertuduh. Berdasarkan keterangan yang dikemukakan, Tertuduh kelihatan takut dan terkejut lalu melepaskan bungkusan (P 23) yang dipegangnya serta cuba melarikan diri apabila pasukan polis ingin menahan Tertuduh. Tindakan Tertuduh ini jelas menunjukkan bahawa Tertuduh mempunyai pengetahuan tentang kandungan P 23 tersebut adalah barang salah kerana jika tidak, tertuduh tidak mungkin akan kelihatan dan melakukan perbuatan sedemikian.” [13] The learned trial Judge referred to Parlan bin Dadeh v PP [2009] 1 CLJ 717 which elaborated on the issue of a positive act of an accused, namely in his attempting to flee. In such situation, once such evidence is 7 admitted, it behoves upon the accused person to explain his conduct pursuant to section 9 of the Evidence Act 1950. [14] As to the extent of knowledge that is required of the prosecution to prove, and given that the drugs which were found in P38 and P39 (which were contained in the package P23), could only be seen after the package P23 was opened, the learned trial Judge referred and adopted the majority decision of the Federal Court’s judgment in PP v Abdul Rahman Akif [2007] 4 CLJ 337 which held that: “We agree with the prosecution that the fact that the drug was found wrapped in newspaper is no ground for saying that an inference could not be drawn against the respondent that he had the requisite knowledge…” [15] On the issue of trafficking, the learned trial Judge held that the facts justified the invocation of the presumption section under section 37 (da) of the DDA 1952 (refer to paragraph 25 of the grounds). From the facts, the learned trial Judge drew inference that as the appellant was seen carrying P23 out from the premises of Pos Laju National Courier and since the weight of the drugs was 212.4 grams, 4 times than the minimum requirement as stipulated under section 37(da)(xvi), the irresistible inference is that the appellant could not have been in possession for personal consumption but for purposes of trafficking. The learned High Court Judge referred to Joseph Ifeanyi Oba v PP [2018] MYCA 309 in support of the aforesaid proposition (refer to paragraph 28 of the grounds). 8 [16] The learned trial Judge addressed the issue on the contention by the defence that there was a break in the chain of the exhibits before it was being tendered in court. The defence contended that there was a delay of 7 hours from the time the appellant was detained by SP 2 until the appellant was handed over to the Investigation Officer, SP 7. The learned trial Judge was of the view that the time taken was reasonable and not inordinate that raise doubts in the handling of the exhibits. In this respect the learned trial Judge considered the chronology given by SP 2 as to the time taken from the moment the appellant was detained, and had accepted the explanation by SP 2, in that at all material times, the exhibits were within the custody and control of SP 2. What is more pertinent is the fact that the same drugs were at all times within the custody and control of SP 7 until it was sent to the chemist. After analysis, the drugs were sent to the Store to be kept until the trial date in court. There was no issue that the drugs tendered in court were the same drugs that were seized from the appellant. [17] The defence further contends that there was a failure on the part of the investigation officer to investigate:

(i) the named individual and the address that was found on the package, P23;

SP 6 confirmed that he does not know the appellant or anybody by the name of Mohammad Azizi. From the evidence of SP 4 and SP 6 the court made findings that Muhammad Azizi never existed and was used as a camouflage to prevent from detection by the authority. The learned trial Judge held that the only inference that can be drawn is that the name of Mohammad Azizi appearing on P23 was a mere concoction/invention. [19] Based on the evidence of SP 7, in the course of investigation, the appellant did mention the name of Chukwudi (the person who introduced Mohammad Azizi to the appellant) and Mohammad Azizi to SP 7. However, there were no further details given by the appellant on these 2 individuals which had gravely restricted SP 7 in his investigations. Premised on the aforesaid, it was the finding of the learned High Court Judge that Chukwudi and Mohammad Azizi are mere inventions by the appellant (refer to paragraph 40 of the grounds). [20] The learned trial Judge also addressed the issue of Amir Hamzah bin Ruslan (Amir Hamzah), the staff who worked at Pos Laju National Courier at 10 the time of the incident who handed P23 to the appellant at the material time. He, however, could not be located, hence the prosecution tendered the statement of Amir Hamzah pursuant to section 32(1)(i) of the Evidence Act

This can be found at P58. Premise on P58, the court found that Amir Hamzah had handed P23 to a black man who claimed to be Mohammad Azizi. This can be seen in the records in P13 which is the daily handing over list of parcels by Post Laju National Courier. The learned trial Judge found that given the facts as aforesaid, the person who took the package P23 was no other than the appellant himself, as he was seen carrying P23 after coming out from the premises of Pos Laju National Courier. [21] The learned trial Judge had accepted the evidence of the chemist SP 3 who confirmed that the drugs are listed in the First Schedule of the DDA

[22] Given the aforesaid, the learned trial Judge found that the appellant had mens rea possession (paragraph 20 at page 17 of the grounds, paragraph 19 at page 18 of the grounds and paragraphs 20 and 21 at pages 19 and 20 of the grounds) and went on to find that once mens rea possession had been proved, the statutory presumption of trafficking in the said drugs under section 37(da) was triggered as the amount of the said drugs was in excess of the statutory limit (refer to paragraphs 25 and 28 of the grounds). Therefore, the learned trial Judge ordered the appellant to enter his defence on the charge of trafficking in the said drugs (paragraph 50 of the grounds). 11 The Defence: [23] The defence of the appellant was essentially that he went to Pos Laju National Courier to collect a package sent to Mohammad Azizi, who had requested the appellant to collect it. The appellant knew Mohammad Azizi through his friend Chukwudi. The appellant was short of cash and had asked for RM250.00 from Chukwudi to pay for his monthly rental of his house. However Chukwudi did not have money as he just came back from Nigeria and asked the appellant to meet up with Mohammad Azizi at the Bus Station at 2.00 p.m. on the same day. When the appellant met up with Mohammad Azizi, the latter told the appellant that he would be willing to help the appellant if he could collect a package P23 on his behalf. The appellant was told that the contents of the package P23 were clothes. The appellant said that Mohammad Azizi showed him a message in his Samsung phone (P44) which contained the tracking number of the package, P 23 and he gave his full name and his phone, P 44 to the appellant. [24] Subsequently, the appellant went to the Pos Laju National Courier counter and showed the Samsung phone P44 which contained the message of the tracking number for the package, P 23 which was to be collected. The clerk on duty checked with the computer and told the appellant that the package was ready for collection. The appellant said that the counter clerk did not ask for any identification nor authorisation from Mohammad Azizi before releasing P23 to the appellant. The appellant wanted to open the package P23 however the counter clerk prevented him from doing so and asked that any opening would have to be done outside of the Pos Laju National Courier building. When the appellant walked out from the Pos Laju 12 National Courier building, the appellant alleged that he was hit from behind by someone and he heard the word “Police”. The appellant said that when he was hit from behind, the package P23 fell out of his hands. The appellant denied that he attempted to flee. [25] The police had taken the package P23 and asked the appellant what was the contents in P23. The appellant said that it contained clothing. The appellant also said that it does not belong to him but Mohammad Azizi, and that the latter had asked him to collect the package for him. The appellant had asked the police to take him to meet with Mohammad Azizi at the Bus Station at Kepong however his request was turned down. [26] The appellant said that at the time of arrest, the police had seized 2 hand phones P44 and P43. The appellant said that P44 belongs to Mohammad Azizi and that this particular fact was informed to the police. [27] The appellant also said that after collecting the package P23, Mohammad Azizi had asked him to contact him through the number which was contained in P44. [28] During cross examination of the appellant, the appellant admitted having some cash with him of RM358.00 as can be seen in the search list (P11) and this money belongs to an exporter. The appellant said that the exporter had given him the cash for the appellant to purchase motorcycle plugs for and on behalf of the exporter. 13 [29] The defence called SD 2, Muhammad Azril bin Badrilhisham who was the counter clerk at Pos Laju on the date of the arrest. SD 2 said that he was on duty at the “Kaunter serahan pos laju” on the material date. [30] SD 2 explained that there are 2 modes to record the handing over of documents and parcels through “senarai serahan harian” (P13) and “scanner”. For those individuals who wish to collect documents or parcel, both the modes are applicable. Firstly, it needs to be signed in the senarai serahan harian. Then it needs to be updated in the scanner for future references. SD 2 said that after the receiver placed his signature on the senarai serahan harian form, the post clerk will scan the form to be placed in the system. [31] SD 2 said that on 20.2.2014, he was on duty from 8.00 a.m. until 8.00 p.m. At the time when P23 was handed over, SD 2 was busy attending to other customers. Therefore, there were other employees using the senarai serahan harian (P13) for purposes of handing over the parcels or packages. [32] SD 2 further explained that Amir Hamzah bin Ruslan, an employee of Pos Laju at the material time, informed him that it was he who did the handing over of P23 which was listed in item 4 in the senarai serahan harian (P13). [33] The testimony of SD 2 showed that it is the duty of the counter clerk to ensure that the person who collected the package or the parcel is the same person which is stated in the consignment form. SD 2 said normally 14 the counter clerk would call the phone number as stipulated in the consignment form. [34] SD 2 said in evidence that, in the event the IC number of the receiver is incomplete, the document or the parcel would not be released or handed over. This means that Amir Hamzah bin Ruslan was negligent when he released P23 to the appellant without ensuring the name and the IC number of the recipient corresponded with the information as printed on P23. Amir Hamzah bin Ruslan has since ceased working with Pos Laju National Courier and his whereabouts was unknown. [35] The learned trial Judge considered the defence of the appellant that he was an innocent carrier for and on behalf of one Mohammad Azizi whom he knew through his friend, Chukwudi. The learned trial Judge found it difficult to believe that within a few hours after meeting up with Mohammad Azizi at the Bus Station in Kepong, the appellant had placed full trust in Mohammad Azizi to the point of following what was asked of him, namely to collect a parcel that was not in his name. The learned trial Judge also disbelieved the evidence of the appellant that the hand phone P44 was given to the appellant by Mohammad Azizi for the purpose of collecting P23 for and on his behalf when it would be logical for the appellant to just copy the information or the tracking number in relation to P23 or have the particulars of P23 be sent to him from the hand phone of P44 when the appellant met up with Mohammad Azizi at the Bus Station in Kepong. From the facts, the learned trial Judge inferred that there was no Mohammad Azizi in existence and that the hand phone P44 actually belonged to the appellant. 15 [36] The learned trial Judge also disbelieved the evidence of the appellant meeting up with Mohammad Azizi at the Bus Station in Kepong. The appellant failed to explain why or what was the purpose of Mohammad Azizi asking the appellant to collect the package, P23 for and on his behalf. [37] Although the appellant said in evidence that he agreed to collect the package, P23 as he would be paid and that he needed money to pay for his house rental; the learned trial Judge had considered this defence and said that if money was the issue, the appellant could have used the cash which was found to be in his possession at the time of his arrest. Although the money that was found on him was said to be money given to him by an exporter, it was his capital for his business. Hence he could have very well used that money to pay his rental. In the circumstances, the learned trial Judge did not accept the reason given by the appellant as to why he was doing the bidding for Mohammad Azizi. [38] The learned trial Judge also found the appellant’s story as being improbable that he was prevented from opening the package, P23 in the premises of Pos Laju National Courier but had to go outside. It is illogical for any of the employees of Pos Laju National Courier to prevent any customer from opening his/her parcel within the premises of Pos Laju National Courier after receiving the parcel. The fact that Amir Hamzah bin Ruslan failed to comply with procedure before releasing P23 to the appellant is a non issue as it is undisputed that it was the appellant who was present to collect P23 by producing the tracking number through the hand phone, P44 to Amir Hamzah bin Ruslan. 16 [39] On the issue of an innocent carrier, even if it is true that Mohamad Azizi existed, it is the finding of the learned trial Judge that the appellant chose to close his eyes to the obvious without making further enquiry but following blindly as to what was asked of him by Mohammad Azizi. The learned trial Judge found that the defence of the appellant being an innocent carrier cannot stand. [40] The appellant failed to adduce any evidence with regard to his friend, Chukwudi, whom the appellant knew when he was operating his business of selling and buying of motorcycle plugs. The appellant failed to give particulars and details of Chukwudi in the form of complete name, address, photo to the police to pursue further investigation on this person. This issue of the friendship between Chukwudi and the appellant was never raised during the prosecution’s case. This indicates that the defence was a mere afterthought. [41] The evidence of SP 4, SP 6 and SP 7 confirmed that Mohammad Azizi is a fictitious character. The appellant knew the existence of the drugs in P23 which was sent to him to be distributed to others in Malaysia. [42] The prosecution had proved the charge against the appellant beyond reasonable doubt and convicted the appellant under section 39B(1) of the DDA 1952 and imposed the mandatory death sentence on the appellant under section 39B(2) of the same (Refer to paragraph 63 of the grounds). 17 ISSUES RAISED BY THE DEFENCE: [43] The main issues raised by the defence are:

(a) The learned High Court Judge erred when he found that a prima facie case had been made out without making any specific findings as to which presumption was he relying on, whether it was section 37(d) or section 37(da);

(b) The learned High Court Judge erred when he invoked the double presumption under section 37(d) and section 37(da) and subsequently relied on the definition section under section 2 of the DDA 1952 to find the offence of trafficking;

(c) The learned High Court Judge erred when he made findings that the package P23 which contained the drugs belonged to the appellant;

(d) The learned High Court Judge erred when he found that the defence of the appellant was a bare denial and mere afterthought;

(e) The learned High Court Judge erred when he dismissed the defence of an innocent carrier by the appellant; and 18

(f) The learned High Court Judge erred when he took into account the conduct of the appellant when he was apprehended by the police as pointing to guilty knowledge of the drugs. OUR FINDINGS Issue (a): Whether the learned High Court Judge erred when he found that a prima facie case had been made out without making any specific findings as to which presumption was he relying on, whether it was section 37(d) or section 37(da): [44] It was submitted by the defence that the learned trial Judge, when making a finding of prima facie case, did not make any specific finding as to which presumption of the law was applicable to the appellant, namely whether the presumption under section 37(d) or section 37(da) of the DDA 1952, to enable the appellant to prepare his defence. In support of this contention, the defence referred to the notes of proceedings at page 193 Jilid 2 (c) wherein contained the finding of the learned trial Judge which reads: “ Mah: Keputusan Mahkamah ini diakhir kes pendakwaan. Mahkamah ini telah memberi pertimbangan kepada keterangan dikemukakan oleh pihak pendakwaan dan setelah membuat penilaian maksima terhadap keterangan yang dikemukakan tersebut, Mahkamah ini berpuas hati bahawa pihak pendakwaan telah berjaya membuktikan kes prima facie bagi pertuduhan iaitu P 2(b). Dengan demikian, kamu dengan ini diperintahkan untuk membela diri atas pertuduhan tersebut dan kamu mempunyai tiga 19 pilihan untuk membela diri. Tiga pilihan untuk membela diri diterjemahkan dan diterangkan kepada tertuduh.” [45] The defence contends that nowhere in the notes of proceedings, was any reference made as to which of the presumptions under the DDA 1952 was relied upon by the learned High Court Judge when His Lordship called for defence. The defence submitted that this is a clear misdirection by the learned trial Judge. [46] The defence finds his support to the above proposition by referring to the cases of Sureeya Wutthisat & Satu lagi v PP [2012] 8 CLJ 773 and Soorya Kumar Narayanan v PP [2009] 6 CLJ 257. [47] Before we proceed further, we need to emphasize that the 2 aforesaid cases cited by the defence were cases where there were no affirmative findings of possession made by the learned Judges in the grounds in the respective cases. This can be clearly seen in Sureeya Wutthisat (supra) when the Court of Appeal said: “(1) The court held that a prima facie case had been proved against the appellants and they had been called upon to enter their defence. Up to this point, the trial Judge had not given any explanation as to how he had reached the said decision. The trial judge also did not give his reasons as to why he held that a prima facie case had been proven.

23

Maka satu inferen yang munasabah boleh dibuat bahawa tertuduh pada ketika itu tahu SP 2 adalah anggota polis dan tindakan Tertuduh melepaskan bungkusan (P 23) tersebut dan cuba melarikan diri adalah kerana mempunyai pengetahuan bahawa P 23 mempunyai dadah di dalamnya. Malahan, tiada sebarang keterangan menunjukkan bahawa P 23 tersebut dirampas daripada orang lain selain Tertuduh.” (emphasis ours) [52] From the aforesaid, the learned trial Judge used actual direct evidence of knowledge. The learned trial Judge had referred to the act of the appellant in trying to flee from the police when he was about to be apprehended and the fact that the appellant subsequently released the package, P23 which was in his hands, proved that the appellant had knowledge of the drugs. [53] The learned trial Judge also considered the issue of knowledge when the drugs cannot be seen due to the drugs being contained in a container. In the present case, the drugs were placed in P23 where it cannot be seen as it was contained in P38 and P39 which was well hidden from view (Refer to paragraph 22 of the grounds). On this, the learned trial Judge found support in the case of PP v Abdul Rahman Akif (supra) which held that: “We further agree with the prosecution that the fact that the drug was found wrapped in newspaper is no ground for saying that an inference could not be drawn against the respondent that he had the requisite knowledge .In this regard it is pertinent to refer to the 24 observation of the Singapore Court of Appeal in Zulfikar bin Mustaffah v PP [2001] 1 SLR 633, at p.639:

For the element of possession (within the meaning of s. 17 of the Misuse of Drugs Act ) to be established, it must not only be shown that the accused had physical control of the drugs at the relevant time; the prosecution must also prove that the accused possessed the requisite knowledge as to the contents of what he was carrying: see Warner v Metropolitan Police Commissioner [1969] 2 AC 256; Tan Ah Tee & Anor v PP [1978-1979] SLR 211; [1980] 1 MLJ 49. In the course of the appeal before us, counsel for the appellant relied heavily on the fact that the contents of the bundles were securely wrapped in newspapers and could not be identified. We were accordingly invited to draw the inference that the appellant had knowledge of the contents of the bundles.

We were unable to accede to this request. While the fact that the contents of the bundles were hidden from view may have been relevant in determining whether the requisite knowledge was absent, this factor should still not be given too much weight. Otherwise, drug peddlers could escape liability simply by ensuring that any drugs coming into their possession are first securely sealed in opaque wrappings. Rather, the court must appraise the entire facts of the case to see if the accused’s claim to ignorance is credible. As Yong Pung How CJ remarked in PP v Hla Win [1995] 2 SLR 424 (at page 438): “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 25 due weight to the credibility of the witnesses . (emphasis added)”” [54] Therefore, a perusal of the grounds of the learned trial Judge disclosed that the learned trial Judge had scrutinised and inferred from the facts and evidence that led him into making an express affirmative finding of possession of the drugs by the appellant. The learned Judge had also made affirmative findings of the mental state of knowledge from the facts and circumstances of the present case after scrutinising the credibility of the prosecution witnesses. Issue (b): Whether the learned High Court Judge had invoked double presumption of section 37(d) to invoke section 37(da) DDA 1952: [55] A reading of the grounds of the judgment of the learned trial Judge shows that the learned trial Judge did not invoke the presumption under section 37 (d) of the DDA 1952 to attribute possession and knowledge of the drugs on the part of the appellant. [56] In our present case, the learned trial Judge had made affirmative findings that the appellant was in mens rea possession of P23 which contained the drugs, at the time of his arrest. [57] After the finding of mens rea possession by the learned Judge, section 37(da) was invoked. In other words, upon proof of the ‘found’ 26 possession by the learned High Court Judge, the presumption of trafficking under section 37(da) was invoked. [58] In such situation, the question of invoking presumption under section 37(d) to invoke presumption under section 37(da) does not arise at all, meaning, there is no double presumption being invoked against the appellant. [59] The rule against double presumption is that, it was not permissible to invoke the presumption of “possession” under section 37(d) to further invoke the presumption of “trafficking” under section 37(da). (Refer to Muhammad bin Hassan (supra). In this respect we referred to the Federal Court decision in Alma Nudo Atenza v PP & Anor Appeal [2019] 5 CLJ 780 which held as follows: “(11)………It is a grave erosion to the presumption of innocence housed in art. 5 (1) of the FC. But the most severe effect, tantamount to being harsh and oppressive, arising from the application of a ‘presumption upon presumption’ is that the presumed element of possession under s. 37(d) is used to invoke the presumption of trafficking under s. 37(da) without any consideration that the element of possession in s. 37 (da) requires a ‘found’ possession and not a ‘deemed’ possession. The phrase ‘any person who is found in possession of’ entails an affirmative finding of possession based on adduced evidence. To invoke a presumption of trafficking founded not on proof of possession but on presumed possession based on proof of mere custody and control, constituted a grave departure from the general rule that the 27 prosecution was required to prove the guilt of an accused beyond a reasonable doubt.” [60] In our present case, trafficking is presumed because the appellant was “found” to be in “possession” of the drug. Hence His Lordship was right when he called the appellant to enter his defence on the charge for trafficking after making an affirmative finding of mens rea possession, and as the amount of the drugs was more than 50 grams, the learned trial Judge invoked (rightly) the presumption of trafficking under section 37(da) of the DDA 1952. [61] The appellant then bears the burden of rebutting the presumption of trafficking under section 37(da), when he was in possession of more than the minimum weight prescribed by section 37(da)(xvi) of the DDA. However, from the defence, the appellant did not discharge that burden. It is incumbent on the appellant in order to rebut the presumption of trafficking, to adduce evidence that the drug was not for the purpose of trafficking. In the present case that was not done as the focus of the defence was on “no knowledge” which did not prove that the drugs were not for purposes of trafficking. Consequently, the presumption of trafficking remained unrebutted. On the issue of knowledge on the part of the appellant under section 37(d): [62] The defence submitted that the learned trial Judge had invoked section 37(d) to establish knowledge against the appellant. This, we had explained in the aforesaid paragraphs, is definitely incorrect. The learned 28 trial Judge utilised the direct evidence to establish knowledge. His Lordship did not invoke the presumption under section 37(d) to establish knowledge. [63] The appellant by adopting the defence of no knowledge, namely no “possession” instead of “no trafficking”, had completely failed to discharge his burden of rebutting the presumption of trafficking which was invoked against him earlier. The consequence of failing to rebut a statutory presumption of fact which forms a factual ingredient of the offence was explained by Lord Diplock in PP v Yuvaraj [1968] 1 LNS 116 when he said: “Generally speaking, no onus lies upon a defendant in criminal proceedings to prove or to disprove any fact; it is sufficient for his acquittal if any of the facts which if they existed would constitute the offence with which he is charged are “not proved”. But exceptionally, as in the present case, an enactment creating an offence expressly provides that if other facts are proved, a particular fact, the existence of which is a necessary factual ingredient of the offence, shall be presumed or deemed to exist “unless the contrary is proved”. In such a case the consequence of finding that particular fact is “disproved” will be an acquittal, whereas the absence of such finding will have the consequence of a conviction.” [64] Thus, applying the aforesaid, in the event the appellant fails in discharging his burden of proof, the appellant ought to be convicted. The Federal Court in Ng Eng Kooi v PP [1970] 1 MLJ 267 and PP v Abdul Rahman Akif (supra) had cited with approval the Privy Council case of PP v Yuvaraj (supra). The law on statutory presumptions as stated by PP v Yuvaraj (supra) has become part of our law. The Federal Court in Abdul 29 Rahman Akif (supra) echoed the principle as laid down in PP v Yuvaraj (supra), when it reinstated the conviction and death sentence imposed by the High Court when the accused failed to offer any explanation to rebut the presumption of trafficking as the presumption stood unrebutted. [65] The learned trial Judge had found mens rea possession under section 37(da). Paragraph 24 of the grounds merely states the prosecution may prove knowledge by the application of the presumption under section 37(d) of the DDA 1952. The learned trial Judge did not invoke the presumption under section 37(d) to invoke the presumption under section 37(da) which is not allowed as that would amount to double presumption. Therefore the learned High Court Judge did not run foul of the principle as enunciated in Alma Nudo Atenza v PP & Anor Appeal (supra). [66] The learned Deputy Public Prosecutor submitted that the learned trial Judge was not wrong in stating the alternatives of proving possession and trafficking so long as the presumption under section 37(d) is not used to further invoke the presumption under section 37(da). The learned Deputy Public Prosecutor referred to the Federal Court case of Raman Kunjiraman v PP [2014] 9 CLJ 29 which explained the ratio of Muhammad bin Hassan (supra) in prohibiting the use of double presumption of the DDA 1952 where the defence counsel therein submitted that the learned trial Judge had misdirected himself when he invoked the section 37(da) presumption and in the alternative the 37(d) presumption. The defence argued that for the former to apply there must be an affirmative finding of possession whilst in the case of 37(d) it is “deemed possession”. This is what the Federal Court said in its judgment: 30 “[29] It was also contended that the learned Judge misdirected himself when “he invoked the 37 (da) presumption and in the alternative the 37 (d) presumption.” [30] A careful reading of the judgment of the learned trial Judge reveals that the learned Judge was fully aware of the danger of breaching the rule of double presumption when he said in no uncertain term that “the invocation of s. 37 (d) precluded the invocation of s. 37 (da)”. Furthermore, the ratio in Muhammad Hassan v PP [1998] 2 CLJ 170 in effect, only says that, one cannot rely on the presumption of possession under s. 37 (d) of the Act to invoke a further presumption of trafficking under s. 37 (da) of the Act. In other words, Muhammad Hassan only prohibits the use of double presumptions under ss 37 (d) and 37 (da) of the Act. Contrary to the argument of the counsel, there is nothing to prevent the learned trial Judge from analysing all the alternatives available to him under the Act. The learned trial Judge has not breached the rule of double presumptions by taking into consideration the various alternatives in the reservoir of choices or alternatives available to him to determine the culpability of the appellant. Judges may expatiate on the various alternatives available without the need to incur the obloquy of counsel.” [67] We are of the view that from the grounds of judgment of the learned trial Judge there was no occasion that the learned High Court Judge invoked the double presumption as prohibited by Muhammad bin Hassan (supra). Be that as it may, the other complaint by the defence was that the learned trial Judge after invoking section 37(da) relied on the direct trafficking definition under section 2 to make a finding of “trafficking” at paragraph 26 of the grounds. However, our reading of the paragraph does not appear to be 31 so. The learned High Court Judge was merely stating in the event the presumption is not applicable the prosecution could also rely on the definition section 2 of the DDA 1952 to prove trafficking. Issues (c ), (d), (e) : On the issue of innocent carrier and defence being an afterthought: [68] On the defence of innocent carrier, the learned High Court Judge had made findings of fact that he did not believe the defence of the appellant as being an innocent carrier. It is incredible to believe that within such a short span of a few hours, after the appellant meet up with Mohammad Azizi, he was willing to follow what was directed to him by Mohammad Azizi, namely to collect the package P23 at the Pos Laju National Courier. [69] The learned trial Judge also disbelieved that the hand phone P44 which allegedly belonged to Mohammad Azizi was given to the appellant for the purpose of collecting the package from the Pos Laju National Courier as the phone contained the tracking number of the package P23. The learned trial Judge found that logically, one would just copy the tracking number from the hand phone P44 to the phone belonging to the appellant. There was no necessity for the appellant to bring the hand phone P44 which belonged to Mohammad Azizi to the Pos Laju for the purpose of collecting the package just because the appellant needed to show the tracking number to Pos Laju National Courier before collecting the package, P23. Thus, the learned trial Judge drew an inference from the facts and evidence that were adduced, that in all probability, the hand phone belonged to the appellant, not Mohammad Azizi as contended by the defence. 32 [70] The learned trial Judge also found that the appellant failed to explain what was the purpose for the appellant to collect the package for and on behalf of Mohammad Azizi. It was the appellant’s evidence that he was willing to collect the package P23 for and on behalf of Mohammad Azizi as he would be paid after collecting the parcel for Mohammad Azizi as he needed money to pay rental for his house. However it was the finding of the learned trial Judge that, even if the appellant was hard pressed for money to pay rental, surely the appellant could have used the cash which he had with him (RM358.00) at the material time as the money which was in his possession was his capital for his business. The learned trial Judge found that the reason given by the appellant as to why he was willing to collect the package for Mohammad Azizi was devoid of merit and a mere concoction, as the defence failed to explain the presence of the money on his person when he was apprehended by the police. [71] The appellant further said in evidence that he believed that the contents of P23 were clothings. The appellant said that when he wanted to open the package P23 in the premise of Pos Laju National Courier, he was prevented from doing so by one of the employee of Pos Laju National Courier by the name of Amir Hamzah bin Ruslan who asked the appellant to open the package outside the premise of Pos Laju National Courier. The learned trial Judge found that such evidence is unacceptable as a mere clerk could not have prevented the appellant from opening the package within the premises of Pos Laju National Courier. The fact that Amir Hamzah bin Ruslan failed to follow procedure when he released to the appellant the package P23 when the appellant was not the recipient of the said package, should not be an issue, as it is undisputed that it was the appellant who came 33 to Pos Laju National Courier and presented the tracking number through the hand phone P44 to Amir Hamzah bin Ruslan, to claim for the package, P23. [72] In the circumstances, it is clear that the appellant had chosen to turn a blind eye to the obvious facts which would have raised suspicion on the mind of a reasonable person that something was not quite right about the package, P23. [73] The learned trial Judge had made findings of facts as to the existence of Mohammad Azizi where the learned High Court Judge found that Mohammad Aziz was a mere invention and such person was non-existent (refer to page 49 of the grounds in Jilid 1). We do not find any error in such findings of fact by the learned High Court Judge. [74] In addition the learned trial Judge found that there is not an iota of evidence given by the appellant as to his friend, Chukwudi whom the appellant said he knew in the course of his business of buying and selling of plugs of motorcycles. The appellant failed to give details and information regarding Chukwudi as to what was his address, contact number and his photo to the police to enable the police to pursue further in their investigation of this Chukwudi. Further, the issue of this friendship between Chukwudi and the appellant was only raised in the defence. This was never raised nor put to the prosecution witnesses in the cross examination, especially the Investigation Officer. This shows that Chukwudi was an afterthought and recent invention by the appellant. These are findings of fact which we found no reason to intervene. 34 Issue (f): Whether the learned High Court Judge erred when he took into account the conduct of the appellant when he was apprehended by the police as pointing to guilty knowledge of the drugs: [75] It was submitted by the defence that the appellant did not attempt to flee when he was apprehended by the police outside the Pos Laju National Courier premises. It was contended that P23 fell out of his grip because he was hit from behind by the police which led him to loose his grip on P23. It was not that he let go of P23 when the raiding police came. These were put to the prosecution witnesses during the prosecution’s stage but was denied by the prosecution witnesses. [76] The learned trial Judge had audio visual advantage of this evidence and His Lordship had disbelieved the appellant in this respect. These are findings of facts made by the learned trial Judge which we are constrained not to intervene. It is also to be noted that this piece of evidence need to be looked at together with the totality of the evidence in the case. There was no evidence to support the contention of the appellant when he tried to put the blame on Mohammad Azizi and Chukwudi, which led to the learned trial Judge forming the view that the defence was a mere invention. Hence the learned trial Judge did not err when His Lordship took into account the conduct of the appellant when he was apprehended by the police as pointing to guilt of the appellant. 35 Conclusion: [77] Given the circumstances, unanimously, we found that the learned trial Judge did not err when he found that the appellant had actual mens rea possession and went on to invoke the statutory presumption of trafficking in the drugs under section 37 (da) as the amount was in excess of the statutory limit. Hence the learned trial Judge was correct when he called the appellant to enter his defence on the charge of trafficking of the drugs. The Federal Court case of Siew Yoke Keong v Pendakwa Raya [2013] 3 MLJ 6, fortified the application of the law by the learned trial Judge at paragraph 37: “[37]……the learned trial Judge was right when he held that the prosecution had proved actual possession of the prescribed drugs against Siew. Having made the affirmative finding of possession, and as the amount of dangerous drugs in the case was more than 15 grammes, the learned trial Judge invoked (and in our view rightly) the presumption of trafficking under section 37 (da) of the DDA. In our judgment, the learned trial Judge was right in calling upon Siew to enter his defence on the charge of trafficking against him.” [78] As there was no presumption under section 37(d) invoked against the appellant in this case by the learned trial Judge, the issue of the appellant having to carry the burden of rebutting the presumption of knowledge (and possession) under section 37(d) never arise at all. Therefore, in the present case, for the appellant to earn an outright acquittal, he has to rebut on a balance of probabilities, the presumption of trafficking under section 37(da) of the DDA as the said presumption was invoked. The appellant’s line of defence was “no knowledge” and “no possession”. Therefore, the appellant 36 had completely failed to discharge his burden of rebutting the presumption of trafficking which applied against him. There was no material for the learned trial Judge to make a finding that the drugs were not for the purpose of trafficking. [79] Hence, premised on PP v Yuvaraj (supra), the consequence of such failure on the part of the appellant has to result in a conviction as the presumption of trafficking stood unrebutted. We found that the learned High Court Judge did not err when His Lordship found that the prosecution had proved its case beyond reasonable doubt. [80] Given the aforesaid, we found that the conviction against the appellant is safe. We therefore dismissed the appeal and affirmed the conviction of the appellant and sentence of the appellant on the charge preferred. Signed by: Zabariah Mohd Yusof Judge Court of Appeal Putrajaya Dated: 31.12.2019 37 COUNSEL: Mohd Aimi Zaini bin Mohd Azhar, Zainuritha Alfa binti Abu Hassan for the Appellant [Messrs. Aimi Zainuritha & Co] DPP Mangairkarasi a/p Krishnan for the Respondent [Attorney General’s Chambers]