Sangeeta Sharma Brahmacharimayum …Perayu v Pendakwa Raya … Responden (P-05(M)-397-11/2016)

DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN JENAYAH NO: P-05(M)-397-11/2016 [RAYUAN JENAYAH PULAU PINANG NO. 45A-4-01/2015] ANTARA SANGEETA SHARMA BRAHMACHARIMAYUM …PERAYU DAN PENDAKWA RAYA … RESPONDEN CORAM: ABANG ISKANDAR ABANG HASHIM, JCA VERNON ONG LAM KIAT, JCA ABDUL KARIM ABDUL JALIL, JCA GROUNDS OF JUDGMENT INTRODUCTION [1] On 26.10.2016, after a full trial the High Court convicted the appellant an Indian national on a charge of trafficking in 1637.1 gram of methamphetamine under s 39B of the Dangerous Drugs Act 1952 (DDA 1952) and sentenced the appellant to death. This is the appellant’s appeal against the conviction and sentence. Page 2 of 13 SALIENT FACTS [2] The charge preferred against the appellant is as follows: “Bahawa kamu pada 7/10/2013, jam lebih kurang 1.00 pagi, di ruang ketibaan domestic Lapangan Terbang Antarabangsa Bayan Lepas, di dalam Daerah Barat Daya, di dalam Negeri Pulau Pinang, telah memperedarkan dadah berbahaya iaitu Methamphetamine seberat 1637.1 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B (1) (a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B (2) Akta yang sama”. [3] So much of the following facts are not really in dispute. On 7.10.2013, at about 12:15 mid-night flight MH 1194 the appellant disembarked from flight MH 1194 at the Pulau Pinang Bayan Lepas International Airport (LTAB). At the baggage claim area SP3 a police officer on duty observed the appellant who was the last person to collect a bag (exhibit P20) from conveyor belt F behaving in a suspicious manner. The appellant placed the bag on a trolley and headed toward the scanning machine area. Meanwhile, SP3 approached the appellant and identified himself and asked for the appellant’s passport. SP3 then asked the appellant to place the bag into the scanning machine. SP7 who was manning the scanning machine informed SP3 of a suspicious green image in the bag. SP3 then asked the appellant to open the bag in the Customs special examination area. The appellant opened the combination lock of the bag using the combination code 437. SP3 then asked the appellant to empty the bag of its contents. SP3 then brought the bag to the scanning Page 3 of 13 machine for another scan which revealed green coloured images in the top and bottom of the bag. [4] Acting on SP3’s instructions the appellant returned the contents into the bag and locked it. The appellant was then taken to the narcotics office at LTAB. At the narcotics office, the appellant opened the bag using the same combination number 437. After SP3 emptied the bag of its contents, he found the top and bottom of the bag covered with layers. SP3 removed the top and bottom layers and found a chocolate colour plastic package under each layer. SP3 said that when he discovered the two plastic packages, the appellant looked frightened. Inside the plastic packages were crystalline substances suspected to be methamphetamine. SP3 impounded the bag and its contents and made a police report (exhibit P59) on the incident. SP3 also prepared the ‘borang serah menyerah’ (exhibit P60), ‘borang bongkar’ (exhibit P48) and marked all the items impounded. The items suspected of being dangerous drugs were analysed by the chemistry department, Pulau Pinang branch and were found to be methamphetamine weighing 1637.1 gram. [5] At the end of the prosecution case, the learned judicial commissioner (JC) found that the prosecution had established a prima facie case that the bag containing the concealed drugs were in the appellant’s possession and that the appellant had knowledge of the existence of the drugs for the purpose of trafficking in the same. [6] In her defence, the appellant testified that a person called Prince had asked her to go to Malaysia for the purpose of trading in clothing merchandise. She was given USD500.00 and Prince took care of her transportation costs. She was instructed to hand over the bag containing Page 4 of 13 the clothing to Prince’s brother and sister-in-law at the LTAB Bayan Lepas. On 6.10.2013, the appellant went over to Prince’s house to collect the bag and the clothing. Prince asked the appellant to remove the clothes from her sling bag and Prince placed them in the bag together with the other pieces of clothing. The appellant did not examine the bag because the bag only contained clothes and she did not think that there was anything wrong or suspicious. Prince and the appellant then left for the airport where Prince checked-in the bag. When she landed at LTAB, she called Prince on her hand phone. Prince told her to check into a hotel as he could not contact his brother since it was late. The appellant then asked Prince to try to contact his brother as she did not know how to go to a hotel. Meanwhile, the appellant claimed her bag from the conveyor belt. After she was arrested, she had cooperated with the police. She opened the bag by opening the lock; she did not use any combination number because she did not know the combination number. She told SP3 and SP9 that the bag belonged to Prince and was to be handed over to Prince’s brother and sister in law. Whilst under arrest, her handphone rang a few times but she was not allowed to answer the call. She only knew of the concealed drugs after the bag was opened. She did not know of the existence of the drugs and she was an innocent carrier. FINDINGS OF THE HIGH COURT [7] The findings of the learned JC at the close of the defence case may be summarised as follows: i. In her evidence in chief, the appellant said that Prince closed the bag and gave it to her before they proceeded to the airport in a taxi; under cross-examination, the appellant changed her Page 5 of 13 testimony when she said that she went to the airport with Prince and Prince checked-in the bag. The appellant’s version was an afterthought to show that she did not have the opportunity to examine the bag. The appellant had knowledge of the drugs in the bag; ii. The appellant’s evidence that the bag contained clothing to be sold in Penang is untrue, unbelievable, and implausible because the clothes that were recovered from the bag were of the right shape and size of the appellant and they fitted the appellant when she was asked to put them on. This fact was evidenced from the photographs of the appellant wearing the clothes marked exhibits P1 – P15; iii. The fact that SP3 did not mention the combination lock number 437 in his police report and did not give any explanation for the omission did not mean that SP3 was not telling the truth. SP3 was a credible, truthful and reliable witness; iv. The type of business described by the appellant made no sense to her defence leading to the inference that she knew the contents of the bag that she carried. The appellant could not avail herself of the defence of innocent carrier because there was ample evidence that she had knowledge of the drugs that she was carrying; v. The appellant was calm and did not object to SP3 examining the bag. However, when SP3 discovered the two concealed Page 6 of 13 plastic packages containing the drugs, the appellant looked frightened; further she did not have any means of escape. If she was an innocent carrier, she would have immediately informed SP3 that the bag was given to her by Prince; vi. The appellant’s evidence that after she was arrested Prince called her on her handphone is an afterthought as the same was not put to SP3 in cross-examination. The fact of possession was not negated by the non-production of the two handphones seized from the appellant; vii. Even if Prince existed and Prince had given the bag containing the concealed drugs to the appellant and had contacted the appellant at LTAB, the appellant was not an innocent carrier because on the totality of the evidence it is clear that the appellant had knowledge of the drugs in the bag carried by her for the purposes of trafficking; viii. The element of trafficking is proved when the appellant brought in the drugs from India to LTAB; and ix. The appellant failed to raise a reasonable doubt on the prosecution case. The appellant also failed to rebut the presumptions on a balance of probabilities. SUBMISSION OF PARTIES [8] Learned counsel for the appellant mounted the appeal on three main grounds. The first ground relates to the learned JC’s invocation of the Page 7 of 13 presumption of possession and knowledge against the appellant under s 37(d) of the DDA 1952. It was argued that the learned JC invoked the presumption on the grounds that the appellant was at the time of the arrest behaving suspiciously and was carrying the bag towards the scanning machine. Before invoking the presumption the learned JC should have first determined whether the prosecution had made out a prima facie case of possession of the drugs. The appellant did not open the bag by using the combination lock code 437. The learned JC failed to consider SP3’s evidence under cross-examination where SP3 agreed that his evidence on this issue was an afterthought (PP v Basri Salihin [1993] 1 CLJ 420; Choo Yoke Choy v PP [1992] 4 CLJ 1791). The fact that the appellant opened the bag using the combination code 437 is not stated in SP3’s police report (Lee Ah Seng v PP [2007] 5 CLJ 1 (FC)). [9] On the second ground learned counsel argued that the learned JC failed to consider the appellant’s core defence of passive or innocent carrier. The learned JC did not consider the appellant’s cautioned statement where she said that Prince had given her the bag and that she did not know of the concealed drugs (Prasit Punyang v PP [2014] 7 CLJ 392 (CA)). The appellant was not allowed to answer when her handphone rang after she was arrested; and the handphone was not produced at the trial. The unanswered call could have been from Prince or Prince’s brother. As such, it was argued that the police did not conduct the investigation properly (Mary George Unazi v PP [2017] 5 CLJ 33 (CA)). Further, the learned JC’s finding that the clothes in the bag belonged to the appellant is inconsistent with the fact that (i) the clothes were free size and could have fitted any one, (ii) DNA test conducted on the clothes did not connect the appellant, and (iii) the clothes were new. The learned JC also failed to make any finding on the existence of Prince and the Page 8 of 13 prosecution did not put to the appellant that such a person did not exist (Mohd Hazrin Md Sari v PP [2008] 5 CLJ 361). The cross-examination of the appellant by the prosecution in connection with appellant having an opportunity to examine the bag given by Prince is an indirect acceptance of the existence of Prince. [10] Thirdly, learned counsel argued that the learned JC’s finding that the appellant had actual knowledge of the drugs (para. 42 of the written judgment) is inconsistent with his finding at the end of the prosecution case where knowledge of the drugs was presumed under s 37(d) of the DDA 1952. Further, the learned JC erred in relying on s 2 of the DDA 1952 when he found that the appellant was trafficking the drugs when she brought in the drugs from New Delhi to LTAB. Section 2 is a definition section and it cannot be used to convict the appellant. The prosecution failed to prove that there was an overt act on the part of the appellant in trafficking the drugs (Romli Ali v PP [2017] 6 CLJ 652 (CA)). [11] In the alternative, learned counsel submitted that at most, the evidence established that the appellant had possession of the drugs. Therefore, the charge against the appellant should be reduced to a charge of possession under s 39A of the DDA 1952. [12] In reply, learned Deputy Public Prosecutor (DPP) argued that the learned JC had correctly found that the appellant had possession of the drugs based on the evidence adduced. SP3 had witnessed the appellant taking the bag from the conveyor belt. She was alone at the time. She was also the last passenger on the flight to claim her bag at the conveyor belt. SP3’s evidence was corroborated by the CCTV recording which shows the appellant taking the bag from the conveyor belt. The appellant placed Page 9 of 13 the bag on a trolley and pushed the trolley toward the scanning machines. When she was arrested, she was alone. When asked by SP3, the appellant placed the bag in the scanning machine which showed some suspicious images. The appellant opened the bag using the combination number 437. The baggage tag was also in the appellant’s name. The clothes in the bag fitted the appellant. As such, the prosecution had proved that the appellant had control and possession. Accordingly, the appellant was presumed to have knowledge of the drugs in the bag under s 37(d). [13] There was also primary and circumstantial evidence to prove that the appellant had knowledge of the drugs in the bag. The appellant was behaving suspiciously at the conveyor belt area. She took her time retrieving her bag and looked round at the surrounding area. She took about 15 minutes at the conveyor belt area before being arrested. She was the last passenger from her flight to collect her bag from the conveyor belt. She appeared frightened when she was arrested by SP3. The drugs were carefully concealed in the bag and the clothes in the bag fitted the appellant. The fact that the drugs were carefully concealed to evade detection by the authorities showed that the appellant had knowledge of the drugs (Teh Hock Leong v PP [2010] 1 MLJ 741). As such, the learned JC was correct in finding that the appellant had mens rea possession of the drugs. To prove trafficking, the prosecution relied on s 2 of the DDA 1952 where the appellant was carrying the drugs from New Delhi to Malaysia. Learned DPP argued that on the evidence, the reasonable inference was that the appellant was carrying the drugs for the purpose of trafficking (PP v Abdul Manaf Muhamad Hassan [2006] 2 CLJ 129 (FC) and Ong Ah Chuan v PP [1981) 1 MLJ 64). Page 10 of 13 [14] Learned DPP argued that the appellant is not an innocent carrier as contended in her defence because (i) she brought the bag voluntarily and without any compulsion, (ii) she had ample time and opportunity to open the bag and examine the contents, and (iii) SP3’s evidence confirmed the presence of the drugs in the bag. Insofar as Prince was concerned, the appellant did not inform SP3 that the bag was given to her by Prince when she was arrested or when the bag was opened or when the drugs were found. She did not deny ownership of the bag when she was arrested; as such Mary George Unazi, supra is not applicable as the facts are distinguishable. DECISION [15] In this case, it is not in dispute that the appellant was carrying the bag at the material time. In our considered view, since the prosecution had proved the fact that the appellant was in physical control of the bag there is a strong inference that the appellant knew all along that the bag found in her possession contained the drugs. It calls for an explanation by the appellant to rebut the said strong inference (see Lord Wilberforce’s speech in Warner v Metropolitan Police Commissioner [1968] 2 All ER at 394; PP v Abdul Rahman bin Akif [2007] 5 MLJ 1 (FC)). [16] It is also our judgment that there was sufficient evidence to support a prima facie finding of trafficking independent of the presumption under s 37(da) of the DDA 1952 having regard to the definition under s 2 which defines trafficking to include ‘carrying’ any dangerous drugs otherwise than under the authority of the DDA 1952. Page 11 of 13 [17] In this instance, the appellant was apprehended in the act of carrying from one place to another dangerous drugs weighing 1,637.1 grams, which in our view is significantly larger than was likely to be used for her own consumption. In the absence of any contradiction or in the absence of any credible explanation, this fact was sufficient to lead to a strong inference that the purpose for which the appellant was in possession of the drugs she was carrying was to transfer the possession of the drugs to another party (Ong Ah Chuan, (supra); Mohamad Yazri b. Minhat v PP [2003] 2 MLJ 241). For this reason, on the facts as stated, the learned JC was entitled and correct in finding that the prosecution had succeeded in making out a prima facie case of trafficking. [18] In her defence, the appellant forwarded a defence of innocent carrier. This defence is premised on the fact that even though the appellant acknowledged carrying the bag containing the drugs, the appellant did not have any knowledge of the drugs. The question of whether the appellant was an innocent carrier was considered by the learned JC. In considering this matter, we had scrutinised the written judgment of the learned JC. In our view, the learned JC had carefully considered the defence of innocent carrier. As to whether the appellant opened the bag using the combination number 437 which was denied by the appellant, the learned JC found SP3 to be a truthful and reliable witness; that this fact was not stated in SP3’s police report is a normal omission and is not fatal. The learned JC also considered the appellant’s version of conducting the business as an afterthought, and that the appellant did not at the earliest opportunity inform SP3 of Prince after the drugs was discovered. Further, the appellant’s contention that she was not allowed to answer the call from Prince or Princes’s brother after her Page 12 of 13 arrest is an afterthought because that fact in issue was never put to the prosecution witnesses. [19] We find ourselves in full agreement with the findings of the learned JC. Having regard to the facts of this case, in our judgment, the appellant’s story was incapable of rebutting the presumption, neither was it capable of raising a reasonable doubt on the prosecution’s case. ‘Reasonable doubt” is the doubt that is reasonable and real, not something fanciful or imaginary. [20] It is trite law that an appellate court would normally be slow in disturbing the findings of fact arrived at by the trial judge who had the advantage at seeing and hearing the witnesses, unless there are substantial and compelling reasons for disagreeing with such findings. In this case, the learned JC heard the testimonies from both sides. The learned JC considered the testimony of the appellant and found that the appellant’s story at its highest was unbelievable and that it failed to raise any reasonable doubt on the prosecution’s case let alone rebutting the presumption. We find no plausible reason to disturb the findings. We find no merits in the arguments raised by learned counsel for the appellant to the effect that the appellant had no knowledge of the bag found in her possession contained the drugs for the purpose of trafficking of the same drugs. Page 13 of 13 [21] For the foregoing reasons, we had dismissed the appeal. We affirmed the conviction and sentence of death imposed by the learned JC upon the appellant. sgd (Vernon Ong) Judge Court Of Appeal Malaysia Dated : 30th November 2017 Counsel: For the Appellant: Yagoo Subramaniam Messrs Yagoo & Associates For the Respondent: Wan Shaharuddin bin Wan Ladin Timbalan Pendakwa Raya Jabatan Peguam Negara Malaysia