Samuel Ikechukwu Umegolu v Pendakwa Raya (B-05(M)-201-05/2017)

The appellant was charged under the section 39 B (1) (a) of the Dangerous Drugs Act 1952 (DDA) as follows: “Bahawa kamu pada 7.2.2012 di antara jam lebih kurang 1.00 tengahari sehingga 8.2.2012 jam lebih kurang 7.55 pagi, di tandas Wad 6 C, Bilik 28, Hospital Serdang, di dalam Daerah Serdang, di dalam Negeri Selangor Darul Ehsan, telah memperedarkan dadah berbahaya iaitu Methamphetamine sejumlah berat 641.9 gram dan oleh yang demikian, kamu telah melakukan suatu kesalahan di bawah seksyen 39B (1) (a) Akta Dadah Berbahaya 1952 dan boleh di hukum di bawah seksyen 39B (2) Akta yang sama.”

After a full trial the learned trial Judge found that the prosecution has proven a prima facie case and called for the defence. The appellant gave evidence on oath and at the end of the defence case, the learned trial Judge found that the defence failed to raise a reasonable doubt on the case of the prosecution and found the appellant guilty of the offence under section 39 B (1) (a) of the DDA and sentenced the appellant to death by hanging. 3

Aggrieved by the decision of the learned trial Judge the appellant filed an appeal to the Court of Appeal which is the appeal before us.

After hearing submissions from both parties and perusing through the Records of Appeal, unanimously, we found that there is no appealable error deserving of any appellate intervention. The conviction of the appellant is safe. We dismissed the appeal and affirmed the decision of the learned trial Judge.

Herein below are the reasons for our decision.

On or around 10.20 a.m. on 7.2.2012, the appellant was detained by the police led by SM Hassan bin Jamil, at Level 3, MTB Kuala Lumpur International Airport (KLIA), Sepang, Selangor. The appellant was on his way out to the Immigration inspection counter at Level 3 of the same.

The appellant was then brought to the Narcotics Criminal Investigation Office, KLIA. Body inspection was carried out on the appellant but nothing incriminating was found.

The appellant was then brought to Serdang Hospital, Selangor (Hospital) by PW 4 who did an X-Ray examination. The X-ray result on the appellant showed the presence of foreign substance in his stomach. As a result, the appellant was detained at the Hospital for further examination. 4

During the duration of the detention of the appellant at the Hospital, the appellant had excreted in his bowels capsules, details of which are as follows: ITEM DATE AND TIME AMOUNT OF CAPSULES

1.

7.2.2012 @ 1.15 p.m. 22 2.

7.2.2012 @ 3.00 p.m. 22 3.

7.2.2012 @ 4.30 p.m. 10 4.

7.2.2012 @ 9.00 p.m. 18 5.

7.2.2012 @ 10.15 p.m. 1 6.

8.2.2012 @ 1.30 a.m. 1 7.

8.2.2012 @ 4.15 a.m. 1 8.

8.2.2012 @ 7.55 a.m. 2 Total Amount of Capsules 77 [10] All the capsules were handed over to the Investigation Officer Mohd Firdaus bin Ali (PW 11). The capsules were then sent to the chemist, PW 1 to be analyzed. PW 1 confirmed that the 77 capsules contained 641.9 grams of dangerous drugs methamphetamine. FINDINGS OF THE LEARNED HIGH COURT JUDGE AT THE END OF THE PROSECUTION’S CASE: [11] The learned trial Judge was satisfied that the drugs which was found on the appellant were Methamphetamine which falls under the 1st Schedule of the DDA and the weight of the same was 641.9 grams. At page 10 of the grounds in RR Jilid 1, the learned trial Judge made the following findings: 5 “Sepertimana yang diperuntukkan di dalam Seksyen 39B (1) (a) ADB 1952, ketiga-tiga elemen ini hendaklah di buktikan oleh pendakwaan bagi membolehkan satu kes prima facie dibuktikan ke atas OKT:

Dadah tersebut adalah dadah berbahaya seperti yang tersenarai dalam Akta Dadah Berbahaya 1952 dengan berat bersih seperti dalam pertuduhan;

Dadah tersebut berada dalam milikan OKT; dan

OKT telah melakukan perbuatan memperedarkan dadah tersebut.” Further at page 38 of the grounds at Jilid 1, the learned trial Judge said: “…….Mahkamah berpuas hati bahawa 3 elemen pertuduhan telah berjaya dibuktikan oleh pihak pendakwaan iaitu:

Mahkamah juga berpuas hati bahawa dadah yang dijumpai bersama OKT adalah dadah jenis Methamphetamine sejumlah berat 641.9 gram seperti mana yang tersenarai di dalam Jadual Pertama ADB 1952.

OKT mempunyai milikan terhadap dadah tersebut. Pada setiap masa yang material, dadah tersebut berada di dalam kawalan dan milikan OKT. Malah, dengan cara menelan 77 kapsul tersebut juga menunjukkan bahawa OKT cuba untuk mengelakkan dadah tersebut dijumpai oleh pihak berkuasa.

OKT telah pada tempat, masa dan tarikh telah melakukan kesalahan mengedar dadah atau “trafficking” iaitu dengan mengambil kira tindakan OKT menyembunyikan barang kes dadah tersebut dengan cara menelan 77 kapsul tersebut terjumlah kepada tafsiran pengedaran di bawah 6 seksyen 2 Akta Dadah Berbahaya 1952. Malah barang kes dadah yang dibawanya mengandungi dadah jenis Methamphetamine dalam kuantiti yang banyak adalah jelas bahawa ianya bukanlah untuk kegunaan sendiri. Maka, anggapan pengedaran di bawah Seksyen 37 (da) (xvi) ADB 1952 terhadap OKT, adalah terpakai. Oleh yang demikian, Mahkamah memerintahkan OKT dipanggil untuk membela diri.” The Defence [12] The appellant came from Lagos, Nigeria and had lived there with his younger sister. He works in the construction sector in Lagos with a salary of RM21 per day. [13] The appellant had financial problems and he conveyed this to his friend, “Edeke” who came from the same village as him. Edeke then informed this to “Oga” who promised the appellant a better job at a place called Abijan. [14] However, after his passport was given to him around November 2011, the appellant discovered that there was a Malaysian Visa in his passport. According to “Edeke”, “Oga” had a change of mind and wished to send the appellant to Malaysia instead. [15] Around January 2011, the appellant had gone to Abijan, where the appellant stayed at “Oga’s” house for 2 weeks. According to the appellant:

“Oga’s” instruction was that he was to travel to Malaysia; 7

(ii) he was instructed to swallow the 77 capsules, which contained “Betacola” which is a form of anti nauseatic herbal medicine;

(iii) he had to swallow the capsules to avoid from paying tax. Subsequently, upon arriving in Malaysia, the appellant was instructed to hand over the capsules to someone by the name of “Boy”. [16] After having swallowed the capsules, the appellant took a flight to Malaysia on 5.2.2011. Upon arrival in Malaysia on 6.2.2011 at or around 9.00 p.m., the appellant made a call to “Boy” as instructed and he was told by “Boy” to wait at the airport. [17] On 7.2.2011, as the appellant was about to exit towards the Immigration counter, the police detained him and they took him to the Hospital for an X-Ray examination. According to the appellant, he had informed the police that he had foreign substance in his body which consists of betacola. [18] The appellant said that whilst he was in the Hospital, there was another arrestee i.e. one by the name of Mamdou Pathe Diallo (DW 2) who was placed in the same room and Ward as the appellant. Both the appellant and DW 2 used the same toilet which was situated in the room at Ward 6C, to excrete the foreign substance, namely capsules which they had in their stomachs. [19] The appellant alleged that after he had excreted, all the capsules were placed in the right sink. The other arrestee, DW 2 also placed the 8 capsules which he excreted in the same sink. Hence there is the likelihood that the capsules excreted by the appellant and DW 2 being mixed. FINDINGS OF THE LEARNED TRIAL JUDGE AT THE END OF THE DEFENCE CASE: [20] One of the issues raised by the defence is the doubt of the identity of the drugs which were tendered in court, given that at the time of the excretion of the capsules there was another arrestee, also caught with capsules in his stomach and he was placed in the same room and used the same toilet as the appellant. In this regard, the learned trial Judge found that the excretion of the 77 capsules by the appellant was witnessed by the police who was on shift duty at the material time. Based on the evidence the learned trial Judge found that there is no room for doubt that the drugs seized by PW 4, PW 5, PW 6 and PW 10 after the excretion by the appellant, whereby each of them had marked each of the capsules, which were handed over to PW 11, the investigation officer. PW 11 in turn placed his markings on each of the capsules and later sent for analysis to PW 1, the chemist. After analysis, PW 1 sent it back to PW 11, who later sent it to the store keeper as recorded in the store registration book in exhibit P 51 for safe keeping until the date of the trial. The capsules were the same capsules which were ultimately tendered in court. The following are details of how the markings were made by the relevant prosecution witnesses: 9 Date: 7.2.2012 Time of excretion Amount of Capsules Witness Markings By witness Markings by IO (PW 11 1.15 p.m. 22 capsules P25 (1-22) PW 4 F1-F22, 7/2/12 & signature FF 1-FF 22 & signature 3.00 p.m. 22 capsules P26 (1-26) PW 4 G1-G22, 7/2/12 & signature FG 1-FG 22 & signature 4.30 p.m. 10 capsules P27(1-10) PW 6 H1-H10, 7/2/12 & signature FH 1-FH 10 & signature 9.00 p.m. 18 capsules P28 (1-18) PW 5 A1-A18, 7/2/12 & signature FA 1-FA 18 & signature 10.15 p.m. 1 capsule P29 (1) PW 5 AW 1, 7/2/12 & signature FAW 1 & signature Date: 8.2.2012 1.30 a.m. 1 capsule P 30 (1) R1 & signature FR 1 & signature 4.15 a.m. 1 capsule P 31 (1) R 2 & signature FR2 & signature 7.55 a.m. 2 capsules P 32 (1-2) R 3-R4 & signature FR 3-FR 4 & signature All the exhibits were tendered in court and were identified by the relevant prosecution witnesses according to the markings as stated in the above said table. The learned trial Judge found that based on the aforesaid, there is nothing to suggest that the handling of the drugs has created a doubt on the identity of the drugs exhibits. 10 [21] The learned trial Judge had examined the evidence of PW 11 carefully who gave evidence that, although the appellant and the other arrestee, were placed in the same room, they were each under the watchful supervision of 2 different/distinct sets of police team monitoring the excretion of the capsules. The photographer and the investigation officer were also different and separate. Therefore, there cannot be the possibility of any mixed up of the capsules excreted from the appellant as suggested by the defence. [22] The learned trial Judge found that the issue on the mixed up due to the presence of another arrestee at the time when the appellant excreted the capsules at the Hospital was merely a bare assertion and presumption by the appellant. [23] The defence raised the issue of the absence of search list which was prepared by PW 6 which raised doubts on the number of capsules excreted by the appellant. On this issue, the learned trial Judge held that it is not fatal to the case of the prosecution. The learned trial Judge observed that the tendering of the exhibits in court by the prosecution’s witnesses were consistent with the markings made by PW 4, PW 5, PW6, PW 10 and PW 11. The total amount of the capsules is also consistent with the police report which was lodged by the prosecution witnesses and the photographs which was taken by PW 19. Hence the learned trial Judge agreed with the submission by the prosecution that the search list and the handing over list are merely corroborative evidence. The absence of the search list and the handing over lists in the present case had not affected the chain of the exhibits. 11 [24] On the defence of the appellant that he did not know that the capsules contained drugs but he knew it as medicine known as betacola, due to its similarity in colour and shape, the learned trial Judge held that such suggested defence was premised upon articles as could be found in IDD 47 (1-3) which was downloaded from the internet which was from doubtful origin. [25] The learned trial Judge held that the concealed manner in which the drugs were brought showed the overt act by the appellant to avoid detection by the authorities. It has never been disputed that the appellant had swallowed the drugs. When the appellant raised the defence that what he was swallowing was betacola and not dangerous drugs and it was to avoid tax, essentially the appellant is raising the defence of innocent carrier. The learned Judge found the appellant knew of the contents of the 77 capsules which he had swallowed before coming into Malaysia. The learned trial Judge was of the view that the fact that the 77 capsules swallowed by the appellant as remedy for the anti nauseatic feeling at any given time should had raised alarm of suspicion on the part of the appellant when he was asked to do such act, as the amount swallowed to prevent vomiting, was large. The learned trial Judge also said that there was no evidence from the appellant that showed that the appellant had opened the capsules to confirm that the contents were indeed betacola, before swallowing it, as he had plenty of time to do so. Hence the defence of innocent carrier cannot stand. The learned trial Judge made these findings at page 55 of the grounds at Jilid 1: “Edeke memberitahu OKT bahawa kandungan kapsul adalah ubatan herba yang dikenali sebagai “Bitter Kola, digunakan sebagai penghalang dari muntah. Namun secara logiknya 12 perlukah OKT menelan 77 kapsul ini hanya untuk menghalang beliau daripada muntah? Mahkamah berpendapat jumlah 77 kapsul yang ditelan ini adalah jumlah yang sangat banyak untuk ditelan bagi mengelakkan muntah pada satu masa dan OKT juga wajar berasa waswas dan ragu-ragu apabila disuruh oleh (sic) berbuat demikian meskipun diberi alasan untuk mengelakkan cukai. Berdasarkan keterangan saksi dan dokumen yang dikemukakan, OKT jelas mempunyai pengetahuan terhadap kandungan 77 kapsul tersebut dan tindakan OKT menelan 77 kapsul tersebut sememangnya berniat untuk dikesan (sic) daripada pihak berkuasa. Mahkamah juga bersetuju dengan pihak pendakwaan bahawa dari D 53 jelas menunjukkan tiada sebarang maklumat atau butiran lanjut berkaitan dengan penama Edeke dan Oga, yang dikatakan sebagai pemilik dadah tersebut. Malah, mahkamah juga mendapati tiada keterangan dari OKT yang menunjukkan OKT telah membuka kapsul tersebut bagi mengesahkan dan memeriksa ianya benar-benar “Bitter Kola” sebelum menelannya sedangkan OKT mempunyai masa dan peluang untuk berbuat demikian. Oleh yang demikian, pembelaan OKT atas dasar innocent carrier ini wajar ditolak dan tidak munasabah sama sekali.” and had invoked the presumption under section 37 (da) (xvi) of the DDA in proving the element of trafficking. [26] After hearing the defence case, the learned trial Judge found that the defence of the appellant are mere afterthoughts and not reasonable. The learned Judge agreed with the submission by the prosecution that the testimony by the appellant were mere concoctions bereft of support. The learned Judge held that “Edeke”, “Oga” and “Boy” are fictitious characters created by the appellant, whose existence was not supported by any corroborative evidence. 13 [27] The learned trial Judge also held that the cautioned statement of the appellant, D 53 failed to state any details of Edeke and Oga which the appellant claimed to be the owners of the drugs. [28] Based on the aforesaid, the learned trial Judge held that the prosecution had succeeded in proving possession and knowledge and that the court found that the defence failed to rebut the presumption under section 37 (da) (xvi) of the DDA, the defence failed to raise a reasonable doubt on the prosecution’s case. Hence the appellant was found to be guilty of the offence charged against him and he was sentenced to death by hanging. THE ISSUES RAISED IN THE APPEAL: [29] The appellant raised the following issues in the appeal before us:

The learned trial Judge convicted the appellant based on double presumption of his knowledge and then trafficking: The defence cited the judgment of the Federal Court in Alma Nudo Atenza v PP [2019] 5 CLJ which held that: “[147] …..the most severe effect, tantamount to being harsh and oppressive, arising from the application of a “presumption upon a presumption” is that the presumed element of possession under sub-s. 37(d) is used to invoke the presumption of trafficking under sub-s 37(da) without any consideration that the element of possession in sub-s 37 (da) requires a “found” possession and not a “deemed” possession. The phrase “any person who is found in 14 possession of” entails an affirmative finding of possession based on adduced evidence. (See: Mohammed bin Hassan (supra)”, The defence submitted that the appellant was not found to have knowledge of the drug even though he was found in possession of the same. He then rebutted the presumption of his possession and knowledge of the drug where he believed that it was betacola.

(ii) The learned trial Judge erred in the assessment of the mens rea. This is a case of actual possession and presumed trafficking; It is the defence case that the appellant’s knowledge is that what he was swallowing was betacola, an anti nauseatic capsule and that he did not know that what he was carrying in his stomach was dangerous drugs.

(iii) The learned trial Judge erred as she had misapprehended the defence and she dismissed the defence as an afterthought; The learned trial Judge on one hand, noted that the drugs may be mistaken as betacola, however later misunderstood the appellant’s version of fact and applied the wrong facts. The learned trial Judge wrongly concluded that the appellant swallowed those wrapped capsules to avoid himself from vomiting and made remarks that it is illogical for the appellant 15 to have swallowed 77 capsules just to prevent from vomiting (Refer to page 55, paragraph 2, Jilid 1). It was submitted by the defence that the learned trial Judge disregarded the appellant’s version and applied Rasoul Bagherbejandi Ahmad & 2 ors v PP [1015] 1 LNS 772 to the present case. For the defence of the appellant, the defence submitted that it was not an afterthought. It was raised in his 112 statement (Refer to Jilid 3 page 106 at paragraph 2). The defence further submitted that such defence was already suggested at the prosecution’s stage. Despite the learned trial Judge made this observation at page 27 Jilid 1 in the judgment where Her Ladyship said that: “Saya telah mengambil perhatian dan pertimbangan hujahan pihak pembelaan di dalam hujahan di peringkat pendakwaan dan mengambil kira pihak pembelaan telah meletakkan pembelaan mereka di peringkat ini. Seperti yang disahkan oleh doctor (SP 7) dan pegawai penyiasat (SP 11), bentuk dan saiz “Bitter Kola” (sic) adalah serupa dengan bentuk dan saiz ketulan kapsul yang di sita dalam kes ini.”, Her Ladyship still concluded that the defence is an afterthought. Hence the learned trial Judge had erred in arriving at such conclusions. 16 To bolster this argument, the defence submitted that, there has been no investigation done on the 112 statement of the appellant on the betacola. The defence has suggested this at the earliest opportunity when it was put at the prosecution’s case. It cannot therefore be an afterthought. The learned trial Judge had clearly misdirected herself in law and fact.

(iv) The learned trial Judge in her grounds failed to consider and neither did she evaluate the defence as to whether it raised a doubt. No effort was done to evaluate the defence by the learned trial Judge; The defence submitted that the appellant had consistently, even at the earliest opportunity in the prosecution’s case and investigation stage (refer to Jilid 2 (2) page 157) established that he was told to deliver the betacola to “Boy” by swallowing to avoid paying tax, not as what the learned trial Judge concluded that it was to prevent vomiting. Hence the defence submitted that the appellant had proved his case on a balance of probabilities that he reasonably believed that the wrapped capsules were betacola as supported by the testimony of PW

[30] The defence also submitted that there is no exact evaluation or emphasis by the learned trial Judge on the appellant’s knowledge of the drugs despite the appellant consistently explained that he was told to carry betacola to “Boy” in Malaysia with phone number in exhibit P 39, however no investigation was done on that, i.e. “Boy’s” phone number in exhibit P

17 [31] Counsel for the appellant submitted that the appellant had rebutted the presumption of his possession and knowledge of the drug where he believed that was betacola. [32] It was further submitted that the learned trial Judge automatically assumed possession to knowledge despite the learned trial Judge’s acknowledgement of the similarity of the capsules and betacola. This can be discerned from her grounds at page 27-28 of Jilid 1 which reads: “….seperti yang disahkan oleh doctor (SP 7) dan pegawai penyiasat (SP 11), bentuk dan saiz “Bitter Kola” adalah serupa dengan bentuk saiz ketulan kapsul yang disita dalam kes ini. Jika dibandingkan warna ketulan kapsul yang disita dalam kes ini melalui gambar yang dirakam oleh jurugambar (Eksibit P 18 dan P19) dengan warna “Bitter Kola” yang dicetak dalam artikel yang dicetak melalui internet, warna mereka juga adalah serupa. Jadi ia adalah munasabah bagi OKT untuk mempercayai bahawa ketulan kapsul yang ditelan olehnya adalah “Bitter Kola.” [33] Hence the appellant submitted that the conviction is unsafe as there has been a breach of natural justice due to the error of law and facts as the conviction was premised upon double presumption. [34] The defence asserted that the learned trial Judge had misdirected the facts as narrated by the appellant and failed to evaluate the totality of the evidence before her where the appellant had successfully raised the defence of innocent carrier on a balance of probabilities. 18 OUR FINDINGS: On the Issue of Double Presumption: [35] It was never shown by the defence, as to where exactly in the grounds of decision that the learned trial Judge had invoked the double presumption under the DDA against the appellant. Our perusal of the grounds could not find any. [36] The submission by the appellant which referred to the grounds of the learned trial Judge at page 14 in Jilid 1, is a regurgitation by the learned Judge of the submissions by the prosecution. Those were not the learned trial Judge’s conclusion and findings. This is clear from the wordings of the paragraph at page 14 of the grounds which was a continuation from paragraph 13 of the same which states: “Elemen ketiga Pihak pendakwaan berhujah bahawa anggapan di bawah Seksyen 37 (da) (xvi) ADB adalah digunapakai bagi membuktikan elemen ini….. Malah secara alternatifnya, maka pihak pendakwaan mengunapakai anggapan di bawah seksyen 37 (d) Akta dadah Berbahaya 1952 yang menyebut:……” In fact, at the end of the grounds, the learned trial Judge at page 56 of Jilid 1 said that she found that the defence failed to rebut the presumption under section 37 (da) (xvi) of the DDA only. Nothing said of another presumption under the DDA invoked by the learned trial Judge. 19 [37] Hence we found that this issue raised by the defence on the double presumption issue is devoid of merits. Whether the learned trial Judge erred in the assessment of the mens rea of the appellant: [38] It has never been disputed that the appellant had custody and control of the 77 capsules that he had swallowed. The defence was that the appellant did not have knowledge that the capsules which he swallowed contained dangerous drugs as he believed that it was “betacola” which is an anti nauseatic traditional herbal medicine. According to the appellant he swallowed it to avoid from having to pay tax in Malaysia and to hand it over to someone called “Boy” upon arriving in Malaysia. [39] We agree with the learned Judge that essentially, by raising such defence, the appellant is raising the defence of an innocent carrier. The defence of innocent carrier brings to the fore the concept of willful blindness. Charron J in the Supreme Court of Canada in R v Briscoe [2010] SCC 13 said that: “[21] …..The doctrine of willful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v The Queen [1985] 1 S.C.R. 570, and R v Jorgensen [1995] 4 S.C.R. 55. As Sopinka J. succinctly put it in Jorgensen (at para 103): [1] finding of willful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he 20 knew or strongly suspected that looking would fix him with knowledge?’ [22] ……….As the Court explained in Sansregret (at p. 584): ‘…….wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant….in willful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.(Emphasis added) [23] ……..The rule that willful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. …..A court can properly find willful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realized its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is willful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice (Emphasis added)” [40] The Federal Court in PP v Herlina Purnama Sari [2017] 1 MLRA 499 also explained the concept of willful blindness: “[45] Wilful blindness necessarily entails an element of deliberate action. If the person concerned has a clear reason to be suspicious that something is amiss but then embarks on a deliberate decision not to make further enquiries in order to avoid confirming what the actual situation is, then such a decision is necessarily a deliberate one. The key threshold element in the doctrine of willful blindness itself is that of suspicion followed by (and coupled with) a deliberate decision not to make further investigations. Whether the doctrine of willful blindness should be applied to any particular case would be dependent on the relevant inferences to be drawn by the trial judge from all the facts 21 and circumstances of the particular case, giving due weight, where necessary, to the credibility of the witnesses. (see PP v Tan Ah Kok [1995] 4 MLRH 256). [46] The concept of “willful blindness” had been discussed in a number of local cases but it seems to have its genesis in the dissenting judgment of Yong Pung How CJ (Singapore) in the case of Public Prosecutor v Hla Win [1995] 2 SLR 424. The doctrine of “willful blindness” can be summarized to be applicable to a situation where the circumstances are such as to raise suspicion sufficient for a reasonable person to be put on inquiry as to the legitimacy of a particular transaction. To put it another way, if the circumstances are such as to arouse suspicion, then it is incumbent on a person to make the necessary inquiries in order to satisfy himself as to the genuineness of what was informed to him. Should he fail to embark upon this course of action, then he will be guilty of “willful blindness”. In other words, he is then taken to know the true situation. He then cannot be said to have either rebutted the presumption of knowledge or to have raised a reasonable doubt as to his knowledge of the situation. [47] Most of the cases where the concept was held to apply concerned cases in which the accused was asked to carry certain articles, or a package, or a bag, or to swallow certain items. In these circumstances, where the request to do any of those things mentioned would be such as would arouse the suspicion of a reasonable person as to the contents, it was upon the accused to make sufficient inquiries so as to dispel or to set straight such suspicions. Should the accused not make any or any sufficient inquiries under those circumstances, the concept of willful blindness would apply so as to fasten upon him or her the necessary knowledge as to the nature of those contents. In other 22 words, if he deliberately ‘shuts his eyes’ to the obvious, because he ‘doesn’t want to know’, he is taken to know.” [41] Wilful blindness, applied correctly, stands in place of a requirement of knowledge. It is a situation where the accused knew of certain facts if he deliberately shut his eyes to the circumstances, his willful blindness being evidence from which knowledge may be inferred. [42] The defence contended that the learned trial Judge disregarded the appellant’s version and wrongly applied Rasoul Bagherbejandi Ahmad & 2 ors v PP (supra). However, it cannot be denied that the facts in Rasoul Bagherbejandi Ahmad is similar wherein the appellants there swallowed the capsules upon the suggestion of another accused who told the appellants that the capsules were medicines that could give them energy. This court found that the appellants could not be so naïve to swallow the medicine with the plastic wrappings intact. This court further held that, what made the story of the appellants as improbable was the fact that the capsules were swallowed at 5-6 capsules at one go. The facts showed that the appellant knew what they were swallowing and it certainly was not an energy giving pill. [43] Coming back to the mainstream, the appellant in our present appeal swallowed the 77 capsules to conceal it from the authorities so as to avoid paying tax in Malaysia. To the appellant he believed the capsules as betacola not dangerous drugs. The issue is whether, in these circumstances (where the instructions was for the appellant to swallow the 77 capsules to avoid paying tax) would be such as would arouse the suspicion of a reasonable person as to the contents, and whether it was 23 upon the appellant to make sufficient inquiries so as to dispel or to set straight such suspicions. [44] It was never established that betacola is subjected to tax in Malaysia; hence there is no evidence to support the appellant’s assertion that there is the necessity to have it concealed from the authorities so as to avoid paying tax. This was never considered by all parties at the trial. If it is not taxable then why the need to have it concealed? That would have negated the defence of innocent carrier by the appellant entirely. [45]

During examination in chief and cross examination of the appellant, he said that his purpose of coming to Malaysia was to seek for employment in the construction sector which was promised to him by someone by the name of “Oga”;

(ii) However, the appellant did not know anything about the job, place of work, salary of the work. How could someone travel far to a distant land for a job which he does not even have a clue as to what the job is. What if the job is not suited for him? Is that not suspicious enough?;

(iii) It was in evidence that “Oga” promised him work in Abijan, however subsequently he saw a Malaysian visa in his passport to go to Malaysia. He was told to bring betacola to Malaysia to be delivered to someone called “Boy” in Malaysia. However the manner of bringing it to Malaysia is unusual, namely the appellant was to swallow the betacola so as to 24 hide from the authorities to avoid from paying tax. Why the need to send the appellant to deliver the betacola? Why not this “Boy” come to “Oga” to take the betacola, rather than paid the appellant, return ticket and all, plus USD 600 to do the job of merely delivery of betacola to “Boy” in Malaysia. All this just to avoid paying tax? Clearly the manner in bringing the capsules was intended to cheat the administration of justice;

(iv) The appellant had a ticket to Malaysia whereby he was to spend 3 days in Malaysia. His intention to Malaysia was solely to send the capsules to “Boy”. It raised the question as to why “Oga”, who, according to evidence is a wealthy man, would want to avoid paying tax for 77 capsules of betacola. Here we are not talking about a consignment load of medicine where the tax may be enormous, but for 77 capsules, why take all these risks to cheat the authority of a foreign country? How much was the tax that “Oga” was trying to avoid paying? For 77 capsules, “Oga” insisted that it needed to be swallowed to conceal from the authorities from having to pay tax. Given the aforesaid, surely there are reasons to arouse suspicions. For 77 capsules to be brought to Malaysia and if it is true that tax has to be paid (which we form the view that it has not been established whether betacola is required to be paid tax by the Malaysian authority) surely “Oga” has the means to pay the tax for the 77 capsules. Why the need to take such high risk of transporting the capsules in the way it was done, as there is the possibility of the capsules exploding or bursting in the stomach of the appellant. This was affirmed by PW 7. “Oga”, being a wealthy man, has the means to bring the 77 capsules 25 to Malaysia, but why used the appellant (and he has to swallow the capsules to avoid detection from the Malaysian authorities). The appellant was paid USD 600 to transport the capsules to Malaysia. Why was “Oga” willing to spend on tickets to Malaysia for the appellant for a 3 day stay and also gave him USD 600, when he could have brought the capsules to “Boy” himself. If “Oga” was so concerned of spending his money in paying for tax for 77 capsules, why was he ever so willing to buy a ticket for the appellant and in addition paid him USD 600. From the facts and evidence adduced, if that is not clear enough that the appellant was used as a drug mule, we do not know what is. [46] In view of the aforesaid, the circumstances do raise suspicions sufficient for a reasonable person to be put on inquiry as to the legitimacy of the transaction. As such, it is then incumbent on the appellant to make the necessary inquiries in order to satisfy himself as to the genuineness of what was informed to him. The appellant clearly failed to embark upon this course of action, who we found to be guilty of “willful blindness”. The appellant is taken to know the true situation. The appellant knew these facts and that he had deliberately shut his eyes to the obvious facts situation and circumstances, his willful blindness being evidence from which knowledge may be inferred that he knew what he was swallowing was drugs. [47] Although it was not evaluated in detail in the grounds of decision of the learned trial Judge, Her Ladyship did refer to the act of the appellant in swallowing the drugs as inferring knowledge on the part of the appellant. The learned trial Judge considered the manner in which the 26 capsules were brought into Malaysia from Dubai with the sole intention of hiding it from the authorities. The learned trial Judge made specific reference to the part of the judgment of Rasoul Bagherbejandi Ahmad (supra), which states as follows: ”Both the appellants claimed that they swallowed the capsules upon suggestion of the 3rd accused as they believed in the 3rd accused’s assurance that the same were medicine that could give them energy. However we think that they could not be so naïve to swallow the medicine with the plastic wrappings intact. It is elementary, even to a simpleton, that medicine is not taken with its plastic wrappings intact and not in 6 or 5 capsules at one go. In our view both the appellants verily knew what exactly they were swallowing.” It can be inferred that the learned trial Judge was obviously not persuaded by the story of the appellant that he has no knowledge that what he was swallowing was dangerous drugs but betacola. Hence the learned Judge’s conclusion at pages 36-37 in her grounds when she said: “Oleh yang demikian, isu yang dikemukakan ini tidak mematahkan keterangan bahawa OKT mempunyai pengetahuan bahawa kandungan kapsul yang ditelannya adalah dadah.” [48] Therefore, the learned trial Judge did not err in her finding of mens rea on the part of the appellant that what he was swallowing was dangerous drugs. 27 [49] In this regard, the learned trial Judge also referred to the article marked as ID D47 (1-3) adduced by the defence, which was downloaded from the internet, which relates to betacola. Given that the article was not marked as an exhibit, and that Her Ladyship doubted the source of origin of the article, it is safe to infer that the learned trial Judge did not consider the contents of the article. Therefore, we do not agree with the submission by the defence that the learned trial Judge had acknowledged the similarity of the capsules and betacola, given that the article was never marked as an exhibit. Even assuming that the capsules and betacola bore some similarities, taking the defence case at its highest, it still does not dispel the fact that the appellant has knowledge that what he swallowed were not betacola but dangerous drugs, given the circumstances as aforesaid. [50] We agreed with the submission by the defence that the learned trial Judge wrongly concluded that the appellant swallowed those wrapped capsules to avoid himself from vomiting and made remarks that it is illogical for the appellant to swallow 77 capsules just to resist vomiting. Be that as it may, such wrong conclusion by the learned trial Judge, in this respect, does not have any vital effect on the conviction of the appellant. [51] At this juncture we like to reiterate that it is trite law that an appeal is a continuation of proceedings by way of rehearing and an appeal court may subject the evidence to a critical re-examination - see PP v Azilah Hadri & Anor [2015] 1 CLJ 579. In Ahmad Najib Aris v PP [2009] 2 CLJ 800, Zulkefli Makinuddin FCJ said in his judgment that: “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 28 prosecution. The Court of Appeal is in a 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 and with no reasons for the findings. In a case involving purely question of fact, the Court of Appeal is free to determine whether or not the various findings of the trial court are correct (see Mohamed Mokhtar v PP [1972] 1 MLJ 122)”. [52] We took this approach in deciding the appeal before us given that the grounds of decision by the learned trial Judge appears to be most cursory as far as the knowledge element is concerned. Whether there were doubts on the identity of the Exhibits: [53] We found that the contention by the defence as to the doubts in the identity of the exhibits are mere conjectures and assumption lacking in substance. [54] This issue arose due to 2 arrests being made at or around the same time and that both the arrestees were placed in the same room and using the same toilet to excrete the capsules. The defence called the other arrestee, Mamadou Pathe Diallo as defence witness DW 2. The defence contended that the capsules that he excreted were placed in the same sink as the capsules excreted by the appellant in our case. The capsules excreted by DW 2 and the appellant were not marked. It was also in evidence that the amount of capsules excreted by the appellant was 77 capsules whilst the capsules excreted by DW 2 was 74 (premised on the facts adduced as per D 45). 29 [55] Therefore it was the defence submission that although DW 2 had pleaded guilty to an alternative charge whereby he had agreed to the facts that he had excreted 74 capsules, however when DW 2 gave evidence in the present case, he said that he was almost certain that he had excreted 75 capsule. This evidence by DW 2, according to the defence was never challenged. Hence, given that there has been a mixed up and confusion of the capsules excreted by the appellant and DW 2, the charge against the appellant could not be sustained, and that the defence has successfully raised a reasonable doubt. Further, the confusion and the mixed up created a doubt on the number of capsules excreted by the appellant, the benefit of which should be given in favor of the appellant. [56] The learned trial Judge had addressed this issue at page 54 of her grounds in Jilid 1. The learned trial Judge found that there is no possibility of the capsules being mixed up as it has been explained by the prosecution through its witnesses by the evidence of PW 5 and PW 10 that they were never involved in the other arrestee at the material time. They were also not aware as to how many capsules that were excreted by the other arrestee. It was affirmed by PW 5 and PW 10 that all the capsules which were excreted by the appellant were excreted during their shift duty and it was under their care, supervision and control until it was handed over to the Investigating Officer, PW 11. PW 5 and PW 10 denied that there was ever any mixed up of the capsules. These were supported by their being able to identify the exhibits through the markings which were made on each capsule (Refer to paragraph 20 of this judgment). [57] The learned trial Judge also considered the evidence of PW 11 who said that although there were 2 arrests made, and both of them were placed in the same room, however both of them were placed under the 30 supervision of 2 different sets of police team to monitor the excretion of the capsules from their stomach. There were 2 different sets of photographers and Investigation Officers. Hence the learned trial Judge found that there was no possibility of any mixed up of the capsules excreted by the appellant and DW 2 refer to page 32-33 of Jilid 1 of the RR). [58] When DW 2 gave evidence in our present case, he said that he had pleaded guilty to the charge of possession of 74 capsules, as per D43 and D45. In view that DW 2 had pleaded guilty to the charge of possession of 74 capsules, that by itself, negated the contention by the defence in our present case that there has been a mixed up of the capsules. [59] Although, the room and the toilet used was the same room/toilet and the timing of the excretion was more or less around the same time, there is no evidence adduced by the defence that supports the contention that there has been a mixed up of the capsules excreted by the appellant and DW 2. At best, it was merely a bare suggestion by the defence during the cross examination of the prosecution’s witnesses at the prosecution stage, that there was a possibility that the capsules excreted by the appellant and DW 2 had been mixed up. Suggestions during cross examinations does not amount to evidence and remain as mere suggestions as they are unsupported by evidence even at the defence stage (refer to Mirza Murtala v PP [2010] 5 MLJ 616; PP v Anwar Ibrahim (No 3) [1999] 2 MLJ 1 approving Emperor v Karimuddi Sheikh AIR 1932 Cal 373). 31 [60] The learned trial Judge had considered the contention by the defence that there is doubt on the identity of the capsules, and it is the learned trial Judge’s findings based on her evaluation of the evidence of the prosecution’s witnesses, PW 5, PW 6, PW 10 and PW 11 that there is no possibility that there has been a mixed up of the capsules excreted by the appellant with the ones by DW 2. We do not find any flaw in such findings. Whether there is a break in the chain of evidence: [61] The learned trial Judge held that the absence of a search list which was prepared by PW 6, by itself is not fatal to the prosecution’s case and it does not affect the chain of evidence of the prosecution’s case. The oral evidence of PW 6 together with his police report proved that PW 6 did seize 10 capsules excreted by the appellant. PW 6 was able to identify the capsules based on the markings P27 (1-10) which could still be seen on the capsules. Therefore the learned trial Judge was of the view that the absence of the search list issued by PW 6 is not detrimental to the case of the prosecution. [62] Similarly with the handing over list of the exhibits, which was not adduced by the prosecution. The learned trial Judge was satisfied with the explanation given by PW 11 that the handing over list was missing when he handed the Investigation Papers to his superiors at the point when another substitute Investigation Officer was about to be appointed. The learned trial Judge held that the absence of the handing over list is not fatal to the prosecution’s case as it had been explained by PW 11. The learned trial Judge also found that the tendering of the drugs exhibits is consistent with the markings made by PW 4, PW 5, PW 6, PW 10 and PW 32 11, and the amount of capsules was consistent with the one stated in the police reports lodged together with the photographs taken by PW 19. As there was no doubt as to the identity of the capsules seized and there was no break in the chain of exhibits, hence there is no necessity to produce the handing over list and the search list. [63] Although the search list prepared by PW 6 was never tendered in court, PW 6 confirmed that after he received the capsules from the appellant, until he handed it over to PW 11, the capsules were placed in his sling bag which was under his care and custody at all material time. PW 6 in his evidence said he had submitted the search list to PW 11. PW 11 confirmed that he had received the search list from PW 6. On 1.11.2012, PW 11 said that the investigation papers were handed to the office for the case to be taken over by another substitute Investigation Officer. PW 11 said that he could not tender the search list as it went missing/misplaced during the handing over of the Investigation papers. The learned trial Judge accepted the explanation by PW 11 and we have no grounds to doubt such acceptance. [64] PW 6 in his evidence confirmed during cross examination that the 10 capsules which he received are the same capsules which he received from the appellant. [65] The learned trial Judge did not find any doubt in the identity of the exhibits from the moment it was excreted by the appellant and neither did she find any break in the chain in the exhibits. The learned trial Judge had accepted the evidence of the prosecution’s witnesses as to the continuity of the chain of the exhibits and given her reasons for holding as such. We do not find any flaws in her findings as to the exhibits, based on the 33 evidence that was before the court. It is clear from the evidence, that the 77 capsules which were excreted was dealt with by PW 5 and PW 10 and it was handed over to PW 11 whereby subsequently it was sent to the chemist for analysis and ultimately the same 77 capsules were tendered in court as exhibits. PW 4 lodged police report as in P3, PW 5 lodged police reports as in P5 and P6, PW 6 lodged police report as in P4 and PW 10 lodged police reports as in P7, P8 and P9. PW 5, PW 6, PW 10 and PW 11 had each identified the capsules based on the markings made by the witnesses. There were evidence of photographs which showed the capsules at each excretion. There was no doubt that it was the same exhibits from the moment it was excreted until the tendering of it in court. [66] Other than the police reports and the identification through the markings on the exhibits by PW 4, PW 5, PW 6 , PW 10 and PW 11, there is also the search lists which were prepared by PW 4 (exhibit P10), PW 5 (exhibits P 12 and P 13) and PW 10 ( exhibits P 23 (a-c)) when they received the capsules, which clearly showed the continuous chain of the exhibits, which ultimately was sent for analysis to PW 1 and which were later adduced in court. [67] With regards to the handing over list, only the handing over list between PW 4 and PW 11 were tendered in court. The absence of the search list prepared by PW 6 and the absence of the handing over list by PW 5, PW 6 and PW 10 are not fatal to the identification of the capsules and neither did it cause a break in the chain of evidence. 34 Both the search list and the handing over list are corroborative evidence. In any event, PW 1 had given his explanation as to why the search list could not be tendered and what is crucial is the capsules which form the subject matter of the charge, which was identified based on the markings, the amount of the capsules which was consistent with the photographs taken by PW 9. Every excretion of the capsules involved PW 5 and PW 10 were recorded and this can be seen through the photographs tendered, namely exhibits P18 (7-21). The learned trial Judge in her judgment said that from the photographs tendered in P18, one could not see the markings on the capsules. This was because the said photographs were taken after the appellant had arranged the capsules after it was excreted and before the photographs were taken. [68] As for PW 4 and PW 6, although there were no photographs taken after the excretion of the capsules received by them, that by itself does not amount to a break in the chain of evidence or renders the capsules doubtful. Although photographs strengthen the prosecution’s case, its absence, nevertheless should not be of much concern, as they are merely corroborative evidence. Its absence is non consequential to the prosecution’s case. [69] The learned trial Judge had heard and given due consideration to the evidence of PW 4, PW 5, PW 6 , PW 10 and PW 11 and had accepted their evidence as being credible. The learned trial Judge was the trier of fact and she had the audio visual advantage as far as credibility of witnesses is concerned and we, the appellate court is fettered to disturb such findings. (Refer to Chew Wai Keong & Anor v PP & Anor Appeal [2018] 3 CLJ 681; PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457; Tan 35 Kim Ho & Anor v PP [2009] 3 MLJ 151; Herchun Singh & Ors v PP [1969] 2 MLJ 209). In support we referred to the Federal Court case of Wan Yurilhami bin Wan Yaacob & Anor v Public Prosecutor [2010] 1 MLJ 749, at page 763 where Zulkefli FCJ held that: “[30] I am also of the view that there was no break in the chain of evidence relating to the exhibits. It is clear that the pills that had been seized by SP 5 are the same pills that were handed over to SP 6 and later sent to SP 4 for him to conduct analysis. Therefore, the question of whether there is the need for the prosecution to produce the search list and the police report to clarify on the identity of the said pills does not arise. No adverse inference under s. 114 (g) of the Evidence Act should be made against the prosecution for not producing the search list and the police report.” In addition, we also refer to Loh Kah Loon v PP [2011] 5 CLJ 345 where the Federal Court held that: “[11] It can be seen from the above that there was no break in the chain of evidence regarding the exhibits. Thus, on the facts of this case, the difference in the weight of the exhibits as found by the police and the chemist, by itself cannot it be said to have created doubt as to the identity of the exhibits. The real question is whether the exhibits recovered by the police is the same exhibits sent to and examined by the chemist and subsequently produced in court as evidence. We have no doubt that it was the same exhibits.” 36 [70] Premised on the aforesaid, the learned trial Judge was not wrong when she found that there was no break in the chain of the exhibits tendered by the prosecution. Whether the defence is an afterthought: [71] It is the findings of the learned trial Judge that the defence of the appellant were mere afterthoughts and not reasonable. The learned trial Judge agreed with the submission of the prosecution that the evidence of the appellant were concoctions and lack the corroborative substance that merits as a defence. The character “Edeke”, “Oga” and “Boy” were fictitious characters as there was no proof as to their existence. [72] It was stated by the learned trial Judge that the appellant in his defence raised facts which were never raised in the prosecution’s case. These are:

The appellant came to Malaysia to work as promised by “Oga” whom he knew through his friend “Edeke”;

“Oga” instructed the appellant to swallow the capsules;

“Edeke” told the appellant that the contents of the capsules were herbal medicine known as betacola, used to prevent vomiting;

The appellant at the point when he was arrested had informed the police of the contents of the capsules. 37 It is trite law that the defence has to put its case at the earliest opportunity available, lest the defence be accused of concocting stories bereft of truth. In the case of Alcontra a/l Ambross Anthony v PP (MR) [1966] 1 MLJ 209 where the Federal Court held that at page 218: “….in criminal trial, the whole point and purpose of the defence having put its case to such prosecution witnesses as might be in a position to admit or deny it, is to enable the prosecution to check on whether an accused’s version of the facts is true or false, and thus avoid the adverse comment, that the defence is a recent invention-in other words, “Kept up its sleeve”, as it were-and revealed for the first time when the accused makes his defence from the witness box or dock, thus detracting from the weight to be accorded to the defence. However failure on the part of the defence to put its case, as aforesaid, can never, by itself, relieve the prosecution of its duty of establishing the case against the accused beyond reasonable doubt.” [73] It was submitted by the defence that although D 53 (cautioned statement of the appellant) was tendered at the defence stage, D 53 was available to the prosecution even before the trial, hence the prosecution was already in the know of the existence of “Oga” and “Edeke”, and hence should have investigated as to its truth. In this regard, we found that although the 2 names were mentioned in D 53, there is nothing in D 53 that reveal the personal details of “Oga” and “Edeke” or their phone numbers. The appellant did have the opportunity to provide all relevant information regarding “Oga” and Edeke” in the cautioned statement, but he did not do so. Hence such failure entitled the learned Judge to disbelieve the story of the defence with regards to “Oga” and “Edeke” (refer to Teng Howe Sing v PP [2009] 3 CLJ). 38 [74] It was also submitted by the defence that the Court overlooked another material fact that “Boy” may be identified through exhibit P 39, a Nokia handphone, which was seized by the police. The defence submitted that the prosecution failed to show the content in exhibit P 39 even though the appellant mentioned that “Boy” called him when he was under police custody and that the High Court should invoked section 114

Evidence Act 1950 against the prosecution. Perusing through D 53, one would see that “Boy” was never mentioned therein. One would have thought that if it is true that indeed “Boy” would be the person that the appellant was supposed to deliver the capsules, surely his name would have cropped up and mentioned to the police at the first instance when the appellant was detained. Further, from the evidence of the prosecution witnesses, “Boy” was never mentioned by the appellant when they had apprehended him, what more the phone number of “Boy”. In this regard we referred to the Federal Court case of Teng Howe Sing v PP [2009] 3 CLJ where it was held that: “[3] The trial Judge was correct to conclude that the appellant had two opportunities to provide information about “Ho Seng” ie, at the time of his arrest and five days later during the recording of his cautioned statement but he failed to do so. In the circumstances, the appellant’s failure to provide relevant information about “Ho Seng” for the police to carry out a thorough investigation into the probability of his defence entitled the trial Judge to disbelieve him. The trial Judge had made a correct finding of fact, upon evaluation of the defence case, that he did not believe the story regarding “Ho Seng” and that it did not raise any reasonable doubt in the prosecution’s case. The judges of the Court of Appeal had expressed that they have no reason to disturb that finding. These 2 concurrent findings of fact by the 39 courts below need not be reviewed by this court. PP v Badrulsham (foll); PPv Munusamy (foll).” [75] Therefore the failure to provide detailed information of “Edeke” and “Oga”, and “Boy” at the time of his arrest and during the recording of his cautioned statement, justified the learned trial Judge in making a finding that the defence of the appellant is clearly an afterthought. [76] The learned trial Judge did not err when Her Ladyship made findings that the prosecution succeeded in proving their case beyond reasonable doubt. The defence failed to rebut the presumption under section 37 (da) (xvi) of the DDA. The defence failed to raise doubt in the prosecution’s case. CONCLUSION: [77] Given the aforesaid, unanimously we find that there is no appealable error that warrants our appellate intervention. The conviction under section 39B (1) (a) of the DDA against the appellant is safe. We therefore, affirm the conviction and sentence by the learned trial Judge. The appeal is dismissed. Signed by: Zabariah Mohd Yusof Judge Court of Appeal Putrajaya Date: 4.11.2019 40 COUNSEL: Fahri Azzat & Asim Ng for the Appellant [Messrs. Fahri & Co] DPP Nahra binti Dollah for the Respondent [Attorney General’s Chambers]