21.10.2013 and 10 strokes of whipping. [2] Criminal Appeal J-05(SH)-38-01/2017, was the accused’s appeal against his conviction and sentence under the said amended charge. However, for the purposes of this judgement the parties will be referred to as they were in the trial before the learned trial judge. The Original Charge “Bahawa kamu pada 21 Oktober 2013, lebih kurang jam 3.45 petang di Unit Khas Pemeriksaan Penumpang (UKPP), Lapangan Terbang Antarabangsa Senai, di dalam daerah Kulaijaya, dalam negeri Johor 3 Darul Takzim, telah didapati mengedar dadah berbahaya iaitu Methamphetamine seberat 1,399.7 gram, dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama.” Prosecution’s Case [3] In brevity, it was the prosecution’s case that the accused, an Indian national upon his arrival at Senai International Airport, Johor on 21.10.2013, was randomly checked by the customs authorities before leaving the arrival hall of the airport. He was then carrying a black trolley bag which upon scanning was found to have contained some suspicious orange coloured items on the left and right handed walls of the bag. After detailed examination, four plastic packets of crystallise substance were found. Each was retrieved from the left and right handed walls and from the top and bottom layers of the bag. [4] Subsequent analysis by the chemist confirmed the substance to be Methamphetamine as defined under section 2 of the DDA with a net weight of 1399.7 grams (herein after referred to as “the said drugs”). 4 [5] Here, we must mention that it was also not disputed that there was another Indian national by the name of Saburdeen who had also arrived at the same time as the accused and in the same flight; and had been arrested first before the accused was arrested. Defence Case [6] The accused testified that his friend by the name of Rahmad had promised him a job in Malaysia. Initially he had wanted to leave for Malaysia from Madras but Saburdeen had asked the accused to accompany him to attend a friend’s wedding in Delhi and to leave for Malaysia from Delhi. According to the accused, Rahmad also told him to go with Saburdeen. On his way to the airport in Delhi, the accused’s sling bag was torn apart. [7] Saburdeen then contacted his friend to ask for a replacement bag. Saburdeen’s friend, Ravi, handed over the bag to Saburdeen and Saburdeen then passed the bag to the accused. It was also the accused’s contention that Saburdeen’s friend had asked the accused to bring the bag to Malaysia and promised to pay the accused for agreeing to do so. The accused was told that someone would be waiting for him to collect the bag. The accused was informed that the bag was as a sample prototype. According to the accused he did not inspect the bag. 5 [8] Saburdeen also left his own bag behind and carried the bag given by his friend. Upon arrival at Kuala Lumpur International Airport (KLIA), while on transit to Senai, Saburdeen had made a promise to pay the accused if he delivered the bag. However, at Senai Airport, Saburdeen and the accused were detained by the customs officers. [9] The accused denied having knowledge of the drugs inside the said bag. The Findings of the High Court [10] The learned High Court Judge accepted the evidence of the accused. His Lordship found that in his oral testimony as well as the cautioned statement (D31), the accused had stated that he was given the said bag by Saburdeen’s friend. His Lordship found that the accused did not have any knowledge of the impugned drugs in the bag. He agreed that the accused’s purpose of coming to Malaysia was to look for a job in Johor Bahru whom his friend, Rahmad, had promised to help. [11] His Lordship also found that the accused had no opportunity to inspect what was inside the bag because the bag was given to him on his way to the airport. The learned High Court Judge opined that the mere act of carrying the bag was insufficient to constitute an offence of 6 trafficking. The accused, in his Lordship’s opinion, had at the earliest available opportunity i.e. 3 days after the arrest, informed the investigating officer, through his cautioned statement, D31, that the bag was given to him by Saburdeen’s friend to be collected by someone upon his arrival. [12] His Lordship found that the accused had successfully rebutted the presumption of trafficking at the close of the defence’s case. The prosecution, in His Lordship’s view had only succeeded in proving the offence of passive possession under subsection 12(2) of the DDA. The learned High Court Judge admitted that the High Court had erred when it prepared an amended charge under subsection 12(2) to be read to the accused when in fact, it was not necessary. Instead, the High Court should have proceeded to amend the charge and then imposed the sentence upon the accused without the need to read and explain the amended charge to the accused. [13] However, the learned High Court Judge stated that the error did not in any way vitiate the trial and the accused was not prejudiced by it and there was no miscarriage of justice. Upon hearing both the mitigation by the accused and rebuttal from the prosecution, the learned High Court 7 Judge sentenced the accused to 15 years imprisonment from the date of his arrest and 10 strokes of the rattan. Issue [14] There was no dispute that the said drugs were found in the bag that was carried by the accused from Delhi to Malaysia. However, the only issue was whether the accused had knowledge of the said drugs inside the bag. Our Decision [15] We had scrutinised the grounds of judgment of the learned High Court Judge and considered the submissions made by the learned Deputy Public Prosecutor (DPP) and learned counsel for the accused respectively, written as well as oral. We were unanimous in our finding that there was merit in the prosecution’s appeal and therefore allowed their appeal in J-05(SH)-56-01/2016. We found the accused guilty and convicted him of the offence under section 39B (1) (a) of the DDA, as per the original charge, and hence sentenced him to death by hanging pursuant to section 39B(2) of the same Act. Correspondingly, the accused’s appeal in J-05(SH)-38-01/2017 was dismissed. We now give our reasons. 8 [16] When the accused was brought to court, he was charged with trafficking in dangerous drugs. The word “trafficking” includes carrying any dangerous drugs otherwise than under the authority of the DDA (See section 2 of the DDA). [17] Subsection 37(d) of the DDA provides that: “(d) any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known, the nature of such drug;” [18] Section 37 of the DDA provides for the presumption of certain facts. Under subsection 37(d), the presumption is on possession and knowledge. If any drug is found in any person, he is presumed unless disproved by him, that he has possession and knowledge of the drug. These two elements need to be present. There are a plethora of authorities on this but suffice for us to refer to the decision of this Court in Toh Su Kuan v PP [2005] 3 CLJ 740, where it was held, inter alia: “[1] `Possession with men’s rea’ or `possession which incriminates’ must have certain characteristics. The possessor must be aware of his possession, must 9 know the nature of the thing being possessed, and must have power of disposal over it…” [19] In simple words, possession must be with knowledge. In this instant case, it was not disputed that the bag in which the said drugs were found was carried by the accused person from Delhi until the time he was arrested at Senai International Airport. He had the bag in his custody and control at the time of his arrest. Under subsection 37(d) of the DDA, the accused was therefore presumed to have knowledge of the said drugs unless, as alluded before, he could disprove it. See also the decision of this Court in Ali Husseinzadeh Bashir v PP [2015] 1 CLJ 918 and Nachilongo Doreen (W/Zimbabwe) v PP [2014] 2 MLJ 597. [20] On the issue of knowledge, the following was how the learned High Court Judge came to the conclusion that the accused had no knowledge that the bag contained the impugned drug. “In the defence which was his oral testimony as well as his cautioned statement marked as D31, the accused had stated that he was given the black trolley bag P5A (1) by Saburdeen’s friend when his own sling bag was torn apart. The accused then put his clothes inside the black trolley bag which he then brought it to Malaysia. The accused mentioned this fact in his cautioned statement in D31. The accused thought he was just using the black trolley bag given by 10 Saburdeen’s friend and to be collected by someone upon his arrival at the Senai airport. In the cautioned statement the accused had stated that he did not have any knowledge of the impugned drug stuffed in between the inner wall of the bag. His purpose in coming to Malaysia was basically in search of a job in Johor Bahru whom his friend Rahmad had promised to help. He told the investigating officer SP13 and SP14 that he had stored Rahmad’s hand-phone number in his hand-phone which was seized by SP7, later handed over to SP13 and SP14. The court observed that the facts of the instant case revealed that the accused had no opportunity to prise open the black trolley bag P5A (1) and to check the inner wall of P5A (1) when it was given to him by Saburdeen’s friend on his way to Delhi airport to know the existence of the impugned drug. The prosecution witnesses admitted in cross-examination that a cursory look at the black trolley bag would not reveal that there were drug stuffed in between the inner wall of the bag P5A(1). At best the accused was caught while carrying the black trolley bag through the customs inspection counter and the mere act of carrying was insufficient to constitute an offence of trafficking. The court has analysed the oral testimony of the accused and also the cautioned statement D31 and found that the accused had at the earliest opportunity which was 3 days after he was arrested stated that the black trolley bag he was carrying was given to him by Saburdeen’s friend to be taken to Malaysia and to be collected by someone upon his arrival in Senai Airport. In the instant case the court was of the view that the accused had successfully rebutted the presumption of trafficking at the close of the defence’s case. At best the prosecution has only succeeded in proving an offence of passive possession under Section 12 (2) and read with Section 39A 11 of the Act. The court accepted and believed the evidence by the accused that he was not trafficking in dangerous drug when he was caught. He has no knowledge that the black trolley bag contained the impugned drug. The prosecution has therefore failed to prove beyond reasonable doubt that the accused was trafficking in dangerous drug based on the evidence presented to the court.” [21] Learned counsel for the accused, in submitting that the learned High Court Judge was correct in his decision that the accused had no knowledge of the said drugs, had also pointed out the fact that it was the accused’s first time coming to Malaysia, looking for a job as promised by his friend, Rahmad; and that there is no way the accused could know the bag contained the said drugs because the said drugs were invisible to the naked eyes. Learned counsel for the accused further submitted that the bag was given to the accused by Saburdeen, hence it was important for Saburdeen to be called as a witness. The fact that Rahmad and Saburdeen were not called is therefore fatal to the prosecution’s case, and the accused must therefore be acquitted and discharged. [22] The learned DPP submitted that the learned High Court Judge erred when he found the prosecution failed to prove the offence of trafficking but only passive possession. She said the defence by the accused person was actually the defence of an innocent carrier. The accused had never 12 claimed possession of the said drugs or that the said drugs were for his own consumption. The accused denied knowledge in toto. Even if the bag was given to him, the learned DPP submitted, there appeared to be reasons for suspicion as there was a bulging feel at the top layer of the bag which was easily spotted by PW7 and PW4. The bag was given by Ravi who the accused hardly knew and to be given to a stranger yet to be identified in Malaysia and that the accused would be paid if he was successful; all these facts the learned DPP contended, could have trigged his suspicion. Further, Saburdeen was also at the Senai International Airport and put in the same inspection room as the accused and yet the accused never pointed his finger onto Saburdeen then. His belated disclosure during investigation, 3 days after his arrest according to the learned DPP, was not sufficient. The learned DPP also drew our attention to discrepancies in the accused’s cautioned statement, D31 with his testimony in court as to where the bag was actually handed over to him. In D31 the accused said Saburdeen’s friend had come to the Delhi Airport to hand over the bag. In his testimony the accused said Saburdeen’s friend had given the bag when the accused was on the way to the airport. In D31, the name Ravi and Rahmad were not mentioned. Also not mentioned was the fact that the accused’s bag was torn off. Hence the learned DPP submitted there was no reason for the prosecution to call Rahmad or Saburdeen to court. 13 [23] We had carefully considered the submissions of both parties. We were of the view that whether the accused was trafficking or was only in passive possession of the drugs would depend on the surrounding circumstances. This Court had previously held that when an accused is found to be carrying from one place to another controlled drugs of a quantity much larger than is likely to be needed for his own consumption, he cannot be said to be in passive possession of the drugs. See Venkatesan Chinnasami v PP [2011] 1 LNS 1736 and Eze Ifeanyi Boy v Pendakwa Raya [2016] MLJU 1692. In Venkatesan’s case, supra, the drugs were Ketamine and weighed RM14,888.5 grams. In Eze’s case, supra’ the drugs were Methamphetamine and weighed 1393 grams. [24] In the instant case, the drugs were 1,399.7 grams of Methamphetamine. There was no evidence at all that the said drugs were meant for the accused’s own consumption. So, like in the case of Venkatesan, supra, and Eze, supra, the learned High Court Judge’s finding that the accused was in mere passive possession of the drugs, in our view, could not hold water. [25] We therefore agreed with the learned DPP that the defence that was put up by the accused was one of innocent carrier and not passive possession. The accused did not deny that he carried the bag from India 14 to Malaysia, but denied he ever knew the content of the bag. In exhibit D31 which was recorded on 25.10.2013, 4 days and not 3 days after his arrest (he was arrested on 21.10.2013), the accused had, inter alia, stated the following: “Saya telah memohon visa untuk mendapatkan kerja di Malaysia melalui ejen-ejen di India. Ejen tidak dapat memberi jaminan bila saya boleh dapat kerja di Malaysia. Maka saya telah membuat keputusan untuk pergi sendiri ke Malaysia untuk membuat survey untuk mendapatkan kerja di Malaysia. Maka saya bersama kawan saya bernama Saburdeen telah menempah tiket untuk pergi ke Malaysia. Saya kenal beliau sejak kecil, kami daripada kampong yang sama. Beliau bekerja di Malaysia dan balik cuti perayaan Haji di kampong, maka semasa beliau balik ke Malaysia, saya telah bergerak bersama beliau. Kami telah pergi ke Delhi untuk menghadiri majlis perkahwinan kawan sebelum bertolak ke Malaysia. Pada 17/10/13 kami telah bergerak ke Delhi dan berada di situ selama 3 hari. Disitu kawan Saburdeen telah menyuruh kami membawa beg untuk dihantar ke Malaysia. Pada 21/102013 pagi kawan Saburdeen telah datang ke Airport Delhi untuk memberikan beg tersebut. Beg yang diberi adalah beg kosong, beliau menjanjikan akan memberi duit sekiranya menghantar beg tersebut. Barang-barang saya telah dipindah masukkan dalam beg beliau dan menyuruh saya membawa beg tersebut. Beg saya telah saya tinggalkan disitu. Sama juga dengan Saburdeen beg beliau telah ditinggalkan dan membawa yang diberi oleh kawannya.” (emphasis added) 15 [26] The above excerpt shows that it is true, as submitted by the learned DPP, Rahmad and Ravi’s names were nowhere mentioned in D31. Not only that, it seemed, the accused came to Malaysia on his own accord as his agents in India could not confirm when he could get a job in Malaysia. This obviously contradicts with his testimony in court that he came to Malaysia because his friend, Rahmad, had promised to find him a job in this country. In both D31 and his testimony in court, the accused had stated the bag in which the impugned drugs were found, was given by Saburdeen’s friend and not by Saburdeen as submitted by learned counsel for the accused. He also merely said “Di situ kawan Saburdeen telah menyuruh kami membawa beg untuk dihantar ke Malaysia” (There Saburdeen’s friend asked us to carry the bag to Malaysia) and “Barang-barang saya telah dipindah masukkan dalam beg beliau dan menyuruh saya membawa beg tersebut” (my belongings were transferred into his bag and asked me to carry the bag) without a word that his own bag was torn off. Hence, we were of the considered view that the accused’s story that his bag was torn off was an afterthought. We were also of the view that the learned High Court Judge erred when his Lordship failed to consider that there were discrepancies in the accused’s statement in D31 with his testimony in court. In D31 the accused had clearly said that in Delhi he was asked by Saburdeen’s friend to carry the bag to Malaysia and Saburdeen’s friend had gone to the Delhi Airport to hand over the bag 16 to the accused. While in his testimony in court, the accused said he received the bag on his way to Delhi Airport. As the saying goes, a lie will lead to another lie. If what the accused said was the truth, his story would be consistent throughout. [27] We further were of the considered view that the fact that there was no mention of Rahmad’s role before the accused gave his testimony in court and the fact that during investigation the accused said that the bag was given by Saburdeen’s friend, justified the non-calling of Rahmad and Saburdeen. [28] We also relied on the case cited by the learned DPP i.e. Hossein Shahsavaendi Ahmad v PP [2015] 7 CLJ 882 wherein this Court observed: “[9] We had occasion to look at the cautioned statement of Hossein that was given to the recording officer. We did see the name “Ali Reza” in that cautioned statement as submitted by Mr Foong. But there were no other particulars in the cautioned statement pertaining to this person that could have assisted the police to pursue a useful investigation into tracing who this person was and determining whether he was a real person or a figment of Hossein’s imagination. It would be only reasonable to expect Hossein to furnish a better and fuller particularisation of this so-called “Ali Reza”, bearing in mind that he was a person who purportedly 17 was living in Iran. Surely by just mentioning a name like “Ali Reza” and expecting the police to launch a search for him throughout the length and breadth of Teheran, if not the entire Iran, would be most unreasonable in any circumstance. To our mind, in order to enable the police to initiate investigations into the existence of a person named to the police by an accused person, the information so furnished must be sufficient in the circumstances. Particulars on his full name and address would feature as top priority. Telephone number would definitely help. At least, the information given ought to be able to help police to make a basic profile on the person so-named.” [29] In the instant case, not only, as alluded earlier, the name of Rahmad was not mentioned in D31, no proof of his particulars had ever been furnished to the investigating officer, SP14. [30] We also agreed with the learned DPP that the accused had every opportunity to protest his innocence at the Senai International Airport when the said drugs were found, if indeed Saburdeen was involved, as Saburdeen was also there in the same inspection room. The Federal Court in Alcontara Ambross Anthony v. PP [1996] 1 CLJ 705 had decided as follows: 18 “In my view the real reason why the 1st accused did not protest, as any innocent man naturally would in the circumstances, is because he knew all along that there were drugs concealed at the underside of the box. His silence when the drugs were found is not evidence of his innocence. Rather it is evidence of his resignation to the fact that he had been caught. If indeed he was innocent he would have protested his innocence at the available opportunity. That would be the natural reaction of an innocent man. Instead both he and the 2nd accused kept quiet when the inspection of the box was being carried out. A victim of circumstances or a frame up would have told the police straight away and vigorously that the box belonged to someone else. After all they knew what the police were there for.” [31] Also, if indeed Saburdeen’s evidence was so important to the accused, the accused could always subpoena him but the accused did not do so. Here, the accused was the sole witness in his defence. [32] From the Appeal Records, we observed that the accused was not an illiterate person. He was well educated. In D31 he gave his qualification as the holder of a Diploma in Mechanical Engineering. In his testimony in court he admitted that he could speak English and had worked in Abu Dhabi for 3 years including in Abu Dhabi Gas Plant. Hence, it was not reasonable at all for a man with such qualification and experience to simply accept a bag from a stranger whom he hardly knew, to be delivered 19 to an alien at another country. A reasonable man like the accused should have every reason to be suspicious especially when there was a bulging feel at the top layer of the bag. This issue was not novel as this was not the first case where drugs were found being carried in such a way. Was the accused so naïve as not to hear stories about drugs mule being arrested as such?. As we mentioned earlier, the accused was not an illiterate person. In all the circumstances of the case, the accused should have every reason to examine the bag but he did not. In our considered opinion, the accused was guilty of wilful blindness and the learned High Court Judge erred in relying only on the external appearance of the bag. See PP v Herlina Purnama Sari the decision of the Federal Court in Criminal Appeal No. 05-179-08-2015(B) per Raus Sharif, PCA, as His Lordship then was. [33] PW9 said the accused looked restless. The defence said the accused was startled. Even if the accused looked startled as submitted by the defence, it did not mean he had no knowledge of the said drugs. As observed by this Court in P.P v Akbar Jafaris-horestani Mohammed [2012] 1 LNS 608, “a modus operandi of cross border or professional drugs trafficker are deceiving and cunning to avoid detection or suspicion by law enforcement officer”. They display “various ploys and deception, 20 among others a docile conduct during the duration of their arrest and examination of the drugs”. Conclusion [34] We found that the learned High Court Judge had erroneously held that the accused was in passive possession of the said drugs. It was evidenced that the accused was moving the said drugs in the bag he was carrying from Delhi, India to Malaysia. The bag was definitely in his control and under his custody at the time of arrest. [35] The discrepancy between his statement in D31 and his testimony in court should have raised doubt upon his credibility and the truth of his innocence. Coupled with the evidence that the said drugs were in large quantity and found neatly concealed in the bag it would affirm the inference that he indeed had knowledge of the said drugs being hidden inside the bag. In P.P v Kulandai Sepathi Raj [2016] 9 CLJ 192, this Court had stated that if a person deliberately and wilfully shuts his eyes to the plain truth because he blindly refuses to know it, he is imputed to have knowledge of the thing. He is liable to have possession of the same. [36] Based on the reasons enumerated above, with due respect to the learned High Court Judge we were of the view that the learned High Court 21 Judge had erred in arriving at the decision that he did. We totally agreed with the submission of the learned DPP and therefore as stated earlier, we unanimously allowed the appeal in J-05(SH)-56-01/2016. We set aside the order of the High Court and substituted it with an order that the accused is found guilty as per the original charge preferred against him and convicted him accordingly. He was therefore sentenced to death by hanging. Following that, the accused’s appeal in J-05(SH)-01/2017 was dismissed. Sign Dated: 21 Disember 2017 (ZALEHA BINTI YUSOF) Judge Court of Appeal Malaysia Bernard George (Tetuan Tay, Bernard & Cheong) Peguambela & Peguamcara bagi pihak Responden No. 19A, Jalan Harimau Tarum Century Garden, 80250 Johor Bahru, Johor. Kwan Li Sa Timbalan Pendakwa Raya Mewakili pihak Perayu Jabatan Peguam Negara No. 45 Persiaran Perdana, Presint 4, 62100 Putrajaya.