Samim Sainsha (W/India) v Pendakwa Raya (B-05(M)-475-10/2017)

1 IN THE COURT OF APPEAL MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: B-05(M)-475-10/2017 BETWEEN SAMIM SAINSHA (W/INDIA) … APPELLANT (NO. PASSPORT: F2882895) AND PUBLIC PROSECUTOR … RESPONDENT IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR CRIMINAL TRIAL NO. 45A-11-02/2014 BETWEEN PUBLIC PROSECUTOR AND SAMIM SAINSHA (W/INDIA) (NO. PASSPORT: F2882895) 2 CORAM: MOHTARUDIN BIN BAKI, JCA RHODZARIAH BINTI BUJANG, JCA MOHAMAD ZABIDIN BIN MOHD DIAH, JCA GROUNDS OF JUDGMENT Introduction

(1) The appellant was charged and convicted of an offence under section 39B of The Dangerous Drugs Act 1952 (“DDA”), to wit, trafficking in 745.6 grams of Methamphetamine at the Passengers Examination Unit 2 of the Low Cost Carrier Terminal at Kuala Lumpur International Airport (“the Airport”). The charge, in Bahasa Malaysia, reads as follows: Bahawa kamu pada 1 Julai 2013, lebih kurang jam 1250 pagi di Cawangan Pemeriksaan Penumpang 2 (CPP2) Balai Ketibaan Antarabangsa, Terminal Pengangkutan Tambang Murah (LCCT) Lapangan Terbang Antarabangsa Kuala Lumpur (KLIA), di dalam negeri Selangor Darul Ehsan telah didapati mengedar dadah berbahaya iaitu Methamphetamine seberat 745.6 gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah seksyen 39B(1) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama. 3 The undisputed facts

(2) The primary background facts adduced by the prosecution in support of the charge are largely undisputed, and the first of which is that the appellant was on board Air Asia flight no. AK1242 from Calcutta on the date as stated in the charge. Upon her arrival at the Airport, she was asked by the Customs Officer on duty at the said Unit, that is, PW8 to scan a brown coloured bag which she was pulling and her handbag which she did willingly and without any fuss. Another Customs Officer, PW4 who was on duty at the scanner noticed a greenish image on the monitor. The appellant was then asked by another Customs Officer, PW6 to take out the content of the bag which was unlocked but with a cabin baggage access tag. Inside the bag were women clothings and once emptied, PW6 pressed inside the bag and felt something like sand inside it. The empty bag was re-scanned and the greenish image remained. PW8’s further physical examination of the bag by cutting open the inside of it led to the discovery of the drug inside the lining which had been re-stitched. The drugs were initially tested by PW8 whose finding that it was Methamphetamine was confirmed by the chemist PW5. Based on the aforesaid evidence, the learned High Court Judge found a prima facie case has been established in that the appellant had custody and control of the drug and raised the presumption of knowledge against her under section 37(d) of the DDA. As for trafficking, the fact that 4 the appellant was travelling with the bag with the drugs concealed therein, the learned High Court Judge held that her action came within the definition of trafficking under section 2 of the DDA based on the decision of Nachilongo Doreen v Public Prosecutor (2014) 2 MLJ 597. The defence

(3) In her sworn testimony, the accused said she was promised a job in Malaysia by an employment agent named Abdullah and that upon her arrival at KLIA, someone would contact her. Abdullah’s and that contact person’s handphone number were saved in her handphone and she said she did not deny pulling the said bag containing the drugs but claimed that she had mistakenly taken someone else’s bag which was actually similar to that bag. Upon the discovery of the drugs, she was shocked and told the Customs Officers so. The appellant also claimed that whilst the examination was done by the Customs Officer that contact person did call her.

(4) His Lordship found the defence of the accused of taking a wrong bag was a mere afterthought and fabrication although it had been put to the relevant prosecution witnesses because she never lodged a report about mistakenly taking someone’s luggage either to the police or to Airport’s authority. Her defence was therefore highly improbable said His Lordship because firstly, it is illogical, even if the bag was similar in looks, 5 that the weight and other details would be the same for the appellant not to realise that it was not hers and the journey from the aeroplane to the Customs check point took at least 15 minutes. It also cannot be a coincidence, said His Lordship further that Indian style woman clothings were found in that bag which despite the submission by the appellant’s counsel that when they were tried on by the appellant the clothes were tight but according to the learned High Court Judge, from the photographs the length (at the feet and hands) fitted her and suited her body size. The learned High Court Judge also found that there was no failure on the part of the Investigating Officer to investigate this Abdullah because no full information on him was given by the appellant such as house or email address. The learned High Court Judge held that there was no reason why the prosecution witnesses especially PW6 would want to lie just to get the accused convicted for based on State of Kerala v M.M. Mathew

(1978) SCC 65, “… prima facie public servants must be presumed to act honestly, conscientiously and their evidence has to be accessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case.” 6 The defence of innocent carrier was therefore rejected by His Lordship who accordingly concluded that the accused has failed to rebut the presumption of knowledge under section 37(d) of the DDA and raised any reasonable doubt on the prosecution’s case. The appeal

(5) Before us two issues were specifically canvassed by the appellant’s counsel which are:

(ii) The appellant had raised a reasonable doubt on her knowledge of the drugs On the first issue, it is not disputed that the chemist when giving evidence did not in detail allude to her qualification but only said, “Latar belakang dan pengalaman sepertimana yang direkodkan sebelum ini dalam kes-kes lain.” This, according to learned counsel for the appellant, was against section 45 of the Evidence Act 1950 and he cited the case of Public Prosecutor v Lin Lian Chen (1991) 1 MLJ 316 which held that the prosecution must establish the expertise of the chemist. However as counsel had rightly pointed out in his written submission, the Supreme Court in the appeal against that decision as reported in (1992) 2 MLJ 561) did not make any 7 pronouncement on this issue in view of their decision on the sufficiency of the evidence pertaining to custody, control or possession of the drugs in the said case. The learned Deputy Public Prosecutor (“DPP”) instead referred us to another Supreme Court decision, that is Junaidi bin Abdullah v Public Prosecutor (1993) 4 CLJ 201 which held that, [6] The speciality of the skill required of an expert witness under section 45 of the Evidence Act 1950 would depend on the scientific nature and the complexity of the evidence sought to be proved. In a non-jury trial, it is for the trial Judge Himself, as both judge of fact and law, to determine the weight to be attached to such evidence notwithstanding the outstanding qualification or experience (or the lack of it) of the expert. The lack of qualification or experience on the part of the expert must neccessarily affect the weight of the evidence rather than its admissibility. As a rule, a chemist in drug cases does not give any opinion as to the ownership, control or possession of the substance sent for analysis, but he merely reports the result of the chemical examination of the substance. The only reason for sending the exhibits to the chemist is to determine their identity and to confirm what other witnesses have suspected. This type of opinion must in our view be distinguished from opinions which are of very 8 technical or complicated nature, such as those given by handwriting, trademark, copy-right or ballistic experts. Without being derogatory it is common knowledge that even animals, such as snuff dogs when sufficiently trained, are able to detect certain dangerous drugs. We are therefore of the view, that in this type of cases where the opinion of the chemist is confined only to the elementary nature and identity of substance, the Court is entitled to accept the opinion of the expert on its face value, unless it is inherently incredible or the defence calls evidence in rebuttal by another expert to contradict the opinion. (emphasis added) Further elucidation of this issue was made by a subsequent Federal Court’s decision in Khoo Hi Chiang v Public Prosecutor & Another Appeal (1994) 1 MLJ 265 which, in a passage we would reproduce below, nails the issue on the head and moved us to reject this legal argument canvassed by learned counsel for the appellant. The passage reads: “In identifying a drug, a chemist conducts various tests and the result of the tests conducted by him will reveal the nature of the drug. In the process, he identifies the drug by direct observation of the result of the experiments and, by the same token, he ascertains its weight by using scientific methods. In this respect, AB Wilkinson in The Scottish Law of Evidence at p 63 says that ‘where the identification is by experts using scientific criteria, 9 the opinion is nearly always based on impression and not on conscious reflection on data’. Viewed in that light, the chemist’s conclusion is clearly based on objective observation of facts as immediately perceived by him. The question of subjective assessment and interpretation of the nature of the drug analysed does not come into play at all for the simple reason that it is not based on any opinion. Be that as it may, we hasten to add that a chemist’s evidence may be impugned by adducing evidence to show that his findings are not valid scientifically as was successfully done by the accused in PP v Ang Soon Huat. In the premises, it is clear that the evidence of the chemist on the identity and weight of the drug constitutes evidence of fact and not of opinion. (See also the case of State of Gujarat v Shantaben 4 at p 138.) The chemist’s evidence on the identity of the drug is factual evidence and not opinion evidence within the meaning of s 45 of the Evidence Act 1950. Such evidence is therefore admissible in a court of law either given by him orally like any other witness or, as is specially provided by law, can be set out in a report admissible pursuant to and in accordance with s 399 of the Criminal Procedure Code (FMS Cao 6) (‘the Code). At the risk of repetition, we would say that in our judgment, the question of adducing evidence to show the expertise of the chemist does not arise. (emphasis added) 10 We are of course bound by the principle of stare decisis to follow what had been pronounced by the apex courts on this issue and in addition would also say that given the absence of any cross-examination to contradict the expertise of the chemist, his evidence and that of his report which was served on the appellant well before the trial (see page 80 of Volume 3B of the Appeal Record) must be accepted. Further, as admitted by the learned counsel for the appellant, this issue was not even raised by the defence before the learned High Court Judge although that omission was not a bar to us to determine the same. With respect, we had also to disagree with learned counsel that just because this case involves synthetic drug whereas Khoo Hi Chiang’s case (supra) was in respect of raw opium the principle elucidated therein is distinguishable. For the record Junaidi’s case (supra) was in respect of possession of a revolver without lawful excuse under section 51 of the Internal Security Act 1960 and the chemist was called to give evidence on the serviceability of the revolver. On the second issue

(6) It is true that the defence of the appellant that the bag was not her’s was put to PW4, PW6 and PW8 and that they all agreed that she had behaved normally when asked to scan the bag. The learned DPP submitted that there was no need, as suggested by learned counsel for 11 the appellant, that the prosecution should call rebuttal evidence to show that the bag had been wrongly taken. We would agree with him on that because the evidence as highlighted by the learned High Court Judge against her was simply overwhelming. She was pulling the bag alone and not only that when PW8 was cross-examined it was put to him that from the time he met the accused, whether she told him that the bag was hers and he said yes. The exact question posed was: S : Katakan, kamu sejak mula jumpa OKT telah mengatakan bahawa beg ini kepunyaaan OKT? J : Ya Further when PW6 was cross-examined it was only put to him that the accused told him that she had “… tersilap ambil barang orang lain?” not bag and to which PW6 answered “Tiada”. Now although it was correctly put to PW4 that appellant had told the Customs Officers that she took the wrong bag but which PW4 said she did not hear, the inconsistencies in the case put by the defence to the witnesses as highlighted above does not lend credence to the defence at all. 12 Further, as held by His Lordship, it was just too much of a coincidence that there would be two similar looking bag containing Indian women’s clothings and which we agree fitted her as shown in the photographs at the fitting session at pages 60 to 67 Appeal Record Volume 3B and we would also like to add, placed exactly at the same spot in the overhead compartment. Surely the accused would know which part of the luggage compartment in the aeroplane that she had kept the bag. We would also add that if indeed the bag was not hers and she had taken someone else’s, we see no impediment for the accused to lodge a missing luggage report with Airport authorities, and/or the police in support of the same. As for her normal reaction, we do not find such evidence in itself sufficient to rebut the presumption for it had to be considered specifically with her defence of mistakenly taking the bag. The same goes to her coming here on the offer of job by Abdullah, for again this must be looked at together with her main defence of having mistakenly taken the bag. So even if Abdullah is not a fictitious person, that makes scant difference to her defence of being an innocent carrier because she had taken someone else’s bag. Thus, on a maximum evaluation of the evidence adduced we totally agree with the learned High Court Judge that she has failed to rebut 13 the presumption under section 37(d) on a balance of probability and was therefore rightly convicted and sentenced for the offence as charged. Date : 27 March 2019 signed RHODZARIAH BINTI BUJANG Judge Court of Appeal Malaysia Putrajaya Note: This copy of the Court’s Grounds of Judgement is subject to editorial revision. 14 Parties appearing: For the Appellant: Tetuan Shamsul Sulaiman Peguambela & Peguamcara Suite 114 MBE, Lot KP 0203B Alamanda Shopping Complex 62000 PUTRAJAYA For the Respondent: Puan Jasmee Hameeza binti Jaafar Jabatan Peguam Negara Putrajaya Cases Referred to :

1. Nachilongo Doreen v Public Prosecutor (2014) 2 MLJ 597

2. State of Kerala v M.M. Mathew (1978) SCC 65

3. Public Prosecutor v Lin Lian Chen (1991) 1 MLJ 316

4. Junaidi bin Abdullah v Public Prosecutor (1993) 4 CLJ 201

5. Khoo Hi Chiang v Public Prosecutor & Another Appeal (1994) 1 MLJ 265