Suhailah binti Abdullah v Pendakwa Raya (S-05(M)-304-07/2017)

The appellant was charged for the following offence: “That you, on 27th of May, 2013 at about 11.15 a.m., at the International Arrival Hall, Terminal 1 of Kota Kinabalu International Airport (KKIA), in the District of Kota Kinabalu, in the State of Sabah, did traffic in a dangerous drug, to wit, Methamphetamine weighing 959.5 grams and that you have thereby committed an offence under Section 39B(1)(a) of the Dangerous Drugs Act 1952 punishable under Section 39B(2) of the same Act.”

At the end of the prosecution’s case, the learned Judge found that the prosecution had proved a prima facie case against the appellant on a charge of possession of the said dangerous drug. The learned Judge amended and reduced the charge to an offence under section 12(2) of the Dangerous Drugs Act 1952, punishable under section 39A(2)(r) of the same Act. The appellant pleaded guilty and was sentenced to 14 years imprisonment with effect from her date of arrest. The prosecution appealed.

The Court of Appeal allowed the appeal and ordered the appellant to enter her defence under section 39B(1)(a) of the Dangerous Drugs Act 1952 [DDA 1952], punishable under section 39B(2) of the same Act, that is, the original charge. The case was then remitted to the High Court. 3

Briefly, on 27.05.2013 at about 11.00 a.m., Senior Customs Officer Garubin @ Gabrien Bin Bilog (PW3) who was on duty at the Customs Examination Unit at Kota Kinabalu International Airport (“KKIA”), saw the appellant pulling a trolley bag wrapped in translucent plastic together with several other bags, and heading out of the arrival hall. PW3 instructed the appellant to have her trolley bag scanned for clearance at the Custom’s scanning machine which was manned by Customs Officer Selasiah Binti Beladan (PW4).

PW4 found a “green image” inside the trolley bag (Exhibit P4); signifying that there was non-organic substance in the trolley bag. PW4 requested Customs Officer Asman Bin Biddara (PW5) to examine exhibit P4. PW5 asked the appellant to open P4. After it was opened with his assistance, PW5 found P4 to contain new clothing in plastic wraps. Thereafter, Senior Customs Officer Paul Yong asked Customs Officer Gerald Gom (PW6) to examine P4 again.

PW6 instructed PW4 to empty the P4 and rescan it. On rescanning, the “green image” remained.

As a consequence, the appellant and P4 were taken to the Customs Operation Room at KKIA for further examination. PW6 suspected something was concealed underneath the covers of P4. So, using a drill, he drilled a hole on the floor or base of P4. Crystalline substance were seen coming out from the drilled hole. 4

PW6 then conducted an initial test on the crystalline substance. PW6 found it to be positive of Methamphetamine.

At about 1.00 p.m. of the same date, having been informed of the case, Aderis Bin Ambutit (PW12), Head of the Customs Enforcement Division Kota Kinabalu, arrived at the Customs Operation Room at KKIA. Using the drug test kit provided by the Customs Department, PW12 himself conducted a preliminary test on the splinters of substance from the drilled hole. PW12 too, found the sample to be positive of Methamphetamine. He then read the caution to the appellant who nodded to signify she understood it.

Customs Supt. Linda Dungkung assisted by Customs Officer Selasiah (PW4) conducted a body search on the appellant. PW12 then instructed Customs Officer Richard Martin (PW11) to handcuff the appellant.

Thereafter, and in the presence of the appellant, P4 was scanned once again before it was weighed at the Malaysian Airlines (MAS) office, located adjoining the Customs Office. The appellant together with all exhibits were then brought back to the Customs Office at Wisma Kastam Sabah, Kota Kinabalu where PW12, with the assistance of PW11, conducted a thorough search of P4 and found one (1) translucent plastic package wrapped with brownish tape inside the base of the top cover or top part of P4 where the earlier hole was drilled; and another one (1) similar package inside the base of the bottom part of P4. 5

These packages, suspected to contain dangerous drugs, were hidden in the concealed compartments which were securely screwed and firmly glued inside the base of the respective top cover and bottom part of P4. The two (2) packages were retrieved and kept in two (2) separate plastic bags of the Customs Department which were labelled before they were kept inside a box with the logo of Jabatan Kastam Diraja Malaysia. A search was also made on the other bags of the appellant but PW12 found only the appellant’s personal belongings in those other bags. . [13] Later that same day, the appellant, the two plastic packages suspected to be drugs and all the exhibits were handed over to the Investigation Officer, Customs Supt. Fardly Harris bin Salleh (PW13) together with the handover list (Exhibit P22) and search list (Exhibit P23).

On 29.05.2013, PW13 sent the two plastic packages suspected to be drugs to the Chemistry Department Kota Kinabalu. Upon analysis by the Chemist, Billing Ak Peter Raig (PW9), PW9 found the two packages to contain Methamphetamine weighing cumulatively 959.5 grammes. Methamphetamine is listed under the First Schedule of the DDA 1952.

As pointed out earlier, the learned Judge’s findings that at the end of the prosecution’s case, the prosecution had proved a prima facie case against the appellant on a charge of possession of the said dangerous drug and the consequent amendment and reduction of the original charge under section 39B(1)(a) of the DDA 1952, punishable under section 39B(2) of the same Act, to a charge for an offence under section 6 12(2) of the DDA 1952, punishable under section 39A(2)(r) of the same Act, was set aside on appeal by the Court of Appeal. In other words, the prosecution had established a prima facie case as charged, against the appellant; and the appellant was ordered by the Court of Appeal to enter her defence.

The appellant gave sworn evidence as follows.

She was a teacher at the Subang Jaya International School. During previous school holidays, she had spent her vacation in New Delhi, India. In May, 2013 she decided to once again, spend her vacation in New Delhi. She purchased her flight tickets at a travel agency located at Subang Jaya.

At the travel agency, she met a Nigerian man named Ike, known to her through her Nigerian boyfriend named Best Oga. Ike approached the appellant and inquired where she was going to which she replied “New Delhi”. Before they parted, Ike asked for her mobile number which she gave without any hesitation.

On her arrival at New Delhi, the appellant testified that she was surprised to receive from Ike a mobile text message stating: “Ike’s friend will be fetching her at the airport.” She immediately enquired from Ike who, why and how will Ike’s friend know her. Next, a Nigerian man introducing himself as “CJ” told her that he was Ike’s friend and that he 7 was there to fetch her. CJ brought the appellant to a white coloured car driven by another Nigerian man known as “Moon”. The appellant testified that she reluctantly followed both CJ and Moon. Once inside the car, CJ told her that she will be brought to a house to spend the night. Upon reaching the house, another Nigerian man greeted her and proceeded to show her the sleeping room. After that, all three Nigerian men left the house.

The next morning, both CJ and Moon brought her breakfast and handed her a mobile phone telling her that Ike wanted to speak to her. Ike told her that while she is in India, both CJ and Moon will act as her tour guide.

On her departure day, i.e. on the 26.5.2013, both CJ and Moon came with a luggage. CJ told her to bring and give the luggage to Ike upon her arrival in Malaysia. The appellant checked the contents of the luggage and found that it contained all new clothes. The appellant claimed that she warned CJ and Moon that she was not carrying any drugs, guns or black money to Malaysia as it is against the Malaysian law. In response, CJ and Moon told her they were into clothes business to which the appellant said that once in Malaysia, she would like to purchase one or two of the clothes inside the luggage and that she would pay Ike for the purchase.

On 26.5.2013, the appellant boarded a flight to Singapore and arrived there the next morning at about 7.30 a.m. On that same day, she took a flight to Kota Kinabalu arriving at about 10.30 to 11.30 a.m., where she was arrested as drugs were found inside the luggage (P4). 8

The learned Judge found that the appellant’s testimony pertained to the circumstances that had led and the reason for the appellant not having knowledge of the drugs found inside the luggage or trolley bag, exhibit P4. The learned Judge found the appellant’s evidence was a bare assertion that was not corroborated by any other piece of evidence to render the same of probative value, i.e. the defence of the appellant was not corroborated by any other evidence to show that she had no knowledge of the dangerous drugs found inside P4.

It was the learned Judge’s specific finding that having assessed the totality of the evidence of the defence and having re-evaluated the evidences of the prosecution, the defence had failed to raise reasonable doubt against the prosecution’s case. The learned Judge found that consequently, the prosecution had proved its case beyond reasonable doubt against the appellant on the charge under section 39B of the DDA

The appellant was found guilty as charged and was consequently convicted and sentenced to death. The appellant appealed. The appeal [25] Learned counsel for the appellant raised four grounds of complaint, which if accepted by us, warrant intervention by this Court. 9 [26] The first error pertains to the failure of the learned Judge to await the grounds of judgment of the Court of Appeal given that the first judge who heard the trial had, at the end of the prosecution’s case, found that trafficking had not proven. What was proved was only a prima facie case for possession. It was the first trial judge’s finding that mere passive physical possession did not satisfy the requirement under section 2 of the DDA 1952 for the offence of trafficking. For that reason, the first judge had amended the charge to one under section 12(2) punishable under section 39A(2)(r) of the DDA 1952. The appellant had then pleaded guilty to that amended charge and was sentenced to 14 years’ imprisonment from the date of her arrest. [27] When the Court of Appeal allowed the prosecution’s appeal and ordered the appellant to enter her defence on the original charge, the defence was heard before a different judge as the first trial judge had retired. Now, before the defence was called, learned counsel for the appellant had submitted that the High Court should await the grounds from the Court of Appeal as to why the defence was called, citing the recent decision of the Court of Appeal in Daniel Akachukwu Agbanusi v Public Prosecutor [2017] 2 MLJ 243. This was refused. According to learned counsel for the appellant, this refusal amounted to a serious error. [28] The second error was in respect of the learned Judge’s finding that the appellant’s defence was a bare assertion because the appellant did not call any other evidence save her own sworn testimony. Learned counsel argued this was erroneous as the learned Judge ought to have evaluated the evidence. Had the learned Judge done so, Her Ladyship 10 would have found that there was no duty to call witnesses [see Tan Foo Su v PP [1967] 2 MLJ 19; Sepideh Golrokhfar Abdollah v PP [2016] MLJU 1687] and that in giving evidence under oath, the appellant had actually subjected herself to cross-examination. [29] The third error was the failure of the learned Judge to completely evaluate the evidence, whether Her Ladyship was relying on direct evidence under section 2 or on the presumption under section 37(da). There was no indication anywhere in the grounds of decision to this effect. [30] Finally, the learned Judge had erred in failing to say whether the appellant was convicted for actual or presumed trafficking. Our findings [31] Having heard the submissions and having carefully and anxiously considered them together with the decision, records of appeal and the applicable principles, we unanimously dismissed the appeal. We found no merits in the appeal as we found that on a totality of the evidence, the conviction is safe. The appeal was accordingly dismissed. The conviction and sentence were affirmed. These are our reasons. [32] Dealing with the first issue of the learned Judge’s failure or refusal to await the grounds of judgment of the Court of Appeal. The argument here is that there is a need to find out why the Court of Appeal had called for the defence. The recent decision of the Court of Appeal in 11 Daniel Akachukwu Agbanusi v Public Prosecutor [supra] was cited in support of this proposition. [33] With respect, we cannot agree with learned counsel for the appellant. The circumstances and the ratio decidendi in Daniel Akachukwu Agbanusi does not purport to offer that proposition. These were the facts in that appeal. [34] The appellant had been charged with an offence of trafficking in dangerous drugs under s 39B(1)(a) of the DDA 1952 and punishable under s 39B(2) of the same Act. At the close of the prosecution’s case, the trial judge held that the prosecution had failed to establish a prima facie case against the appellant. The appellant was then acquitted and discharged without calling for his defence. On appeal by the prosecution, the Court of Appeal set aside the acquittal and ordered the defence to be called as charged. After hearing the defence case, the trial judge found the appellant guilty and proceeded to convict and sentenced him to death by hanging. [35] Amongst the complaints raised before the Court of Appeal was the contention that until the end of the trial, the appellant did not know whether his case was a case of actual trafficking or presumed trafficking. The Court of Appeal found the complaint to be valid when coupled with the prosecution’s confusion which submitted at the end of the defence case that the presumption of possession under s 37(d) was invoked, when in fact, it was never invoked. It was in those conditions that the Court of Appeal expressed the view that the trial judge ought to have explained to the appellant there whether he was facing a case of actual 12 trafficking or presumed trafficking. For those and other reasons, the Court of Appeal found the conviction by the High Court, unsafe. [36] It is our view that there were cogent reasons and real circumstances in Daniel Akachukwu Agbanusi that caused the Court of Appeal to come to that particular conclusion and we have already explained what those reasons were. That decision however, does not establish any new proposition or principle to say that where the Court of Appeal has allowed the prosecution’s appeal and ordered defence to be called, the High Court must not call the defence until the grounds of decision from the Court of Appeal are available. The general proposition remains that there is no need to wait for grounds from the Court of Appeal. [37] But, those circumstances are not present in the instant appeal. At the end of the prosecution’s case, the first trial Judge had found that the prosecution had proved a prima facie case against the appellant on a charge of possession of the said dangerous drug. The learned Judge then amended and reduced the charge to an offence under section 12(2) of the DDA 1952. Upon the appellant’s plea of guilty to that amended charge, the appellant was sentenced to 14 years imprisonment with effect from the date of her arrest. [38] These factual circumstances are vastly and crucially different from those presented in Daniel Akachukwu Agbanusi where the trial judge had held that the prosecution had failed to establish a prima facie case against the appellant. The appellant was then acquitted and discharged. In such circumstances, there was no requirement for the defence to be 13 called. Contrast with the present appeal where instead of adducing evidence in her defence, the appellant pleaded guilty to the amended charge. [39] Further, the prosecution never prevaricated at the trial. There was never any confusion in the prosecution’s stand, that this was a case of actual trafficking. This is evident from the grounds of decision of the first trial judge. In any case, the appellant has not indicated the need or reason to await the grounds save to cite the decision in Daniel Akachukwu Agbanusi. Even if the grounds of the Court of Appeal could be sought, which we cannot see how that to be so, we do not see how the lack of those grounds in this appeal has caused material prejudice to the appellant in that he is not able to conduct his defence or that it has led to a miscarriage of justice – see Federal Court in Lai Weng Keat v PP [2015] 9 CLJ 957. [40] We are of the further view that the learned Judge was entitled to reject the appellant’s request that the defence is not called until the grounds from the Court of Appeal as to why the defence was called were received. In Sing Ching Cheng v PP [2015] 1 LNS 43, following an earlier decision in PP v Sulaiman Saidin [2010] 1 CLJ 184, the Court of Appeal held that it was not open to the Court of Appeal as well as the High Court “to revisit the issue whether a prima facie case had been made out by the prosecution.” That issue of whether the Court of Appeal was right in calling for defence may be challenged at the Federal Court, but it was not available at the High Court or even the Court of Appeal once the first Court of Appeal had allowed the prosecution’s appeal and had ordered defence to be entered. 14 [41] Similarly, in Manimaran a/l Amas v Public Prosecutor & Another Appeal [2015] 1 MLJ 18, the Court of Appeal, citing PP v Sulaiman Saidin [supra] opined: “Whilst the appellants may, when an appeal is pursued further at the Federal Court, argue that the Court of Appeal erred in calling upon the appellants to enter on their defence, we, on our part were in no position to review the said decision of the previous panel of the Court of Appeal. The instant appeal, in our view, should focus on whether the defence had raised reasonable doubt on the prosecution case. [24] We are mindful … [25] In the instant appeal, since all the appellants were called upon by the Court of Appeal to enter on their defence, it must necessarily mean that the Court of Appeal was satisfied that the prosecution had proved all the ingredients of the charge, including the element of common intention, before concluding that a prima facie case had been made out by the prosecution. There was therefore no necessity for us to revisit the issues on whether a prima facie case had been made out. What we need to consider was whether the evidence from the defence had cast a reasonable doubt on the prosecution’s case.” [42] In the instant appeal, the appellant was brought before the High Court where the learned DPP informed the learned Judge of the order of the Court of Appeal. Upon taking cognizance of that order; the learned Judge ensured that the charge was read and explained to the appellant; that the three alternatives were explained to the appellant; that the appellant made a choice; and that the appellant had chosen to give 15 sworn evidence. We cannot find any fault with the directions of the learned Judge; certainly none that would warrant any intervention by us. [43] Moving to the second and third complaints; that the learned Judge was in serious error when Her Ladyship took the position that the defence was a bare assertion and that there was a failure to evaluate the evidence. [44] In the grounds of judgment, the learned Judge can be clearly seen to be reminding herself of what it is she has to address, that all the appellant needed to do was to cast a reasonable doubt on the prosecution’s case. Once the appellant succeeds in casting that doubt, the appellant is entitled to an acquittal. Her Ladyship explained: “If a defence is called and in order to earn an acquittal, the duty of the accused is only to cast a reasonable doubt against the prosecution’s case. He is not required to prove his innocence beyond reasonable doubt; it is however a well-established principle of Malaysian Criminal law that the general burden of proof lays throughout the trial on the prosecution to prove beyond reasonable doubt the guilt of the accused for the offence of which is he is charged.” [45] Even on the matter of “reasonable doubt”; her Ladyship reminded herself of what Sharma J had described “reasonable doubt” to be in the case of PP v Saimin & Ors [1971] 2 MLJ 16: “…it is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that 16 condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge. … A reasonable doubt must be a doubt arising from the evidence or want of evidence and cannot be an imaginary doubt or conjecture unrelated to the evidence.” [46] The learned Judge proceeded to set out the defence which was really the appellant’s explanation of the events leading up to and including the facts and circumstances surrounding her arrest. That explanation was given by way of sworn evidence by the appellant. [47] We have examined that defence against the notes of proceedings and we do not find the consideration and evaluation by the learned Judge at all, wanting. The learned Judge had taken every aspect of the defence into consideration and had evaluated the evidence given in the form chosen by the appellant herself. The learned Judge recognized that the appellant’s defence was in essence, that she was an innocent carrier, that she did not have any knowledge of the drugs that were found in the luggage (P4). [48] In order to establish that defence, the appellant had testified of the circumstances of how and why she had gone to New Delhi, that she was on vacation there; how she came to know a certain person called Ike while she was at the travel agency buying her air tickets to travel that same day, and how she had given him her mobile number without hesitation; that Ike had text her on her mobile to tell her that she will be fetched at the airport at New Delhi; how she then met two persons named CJ and Moon when she landed at New Delhi who then took her to a house where she stayed throughout her trip to New Delhi; how CJ 17 and Moon told her to bring and give Ike the luggage (P4) upon her arrival in Malaysia; that she had warned CJ and Moon that she was not carrying any drugs, guns or black money to Malaysia as it was against the law to which CJ and Moon clarified that they were in the clothes business; that she had then checked the contents of P4 and found it to contain “new clothes”; that she had told CJ and Moon that once she was in Malaysia, she wanted to purchase one or two of the clothes inside P4 and pay Ike. [49] There was nothing else other than the above explanation from the appellant that served as evidence of the appellant as an innocent carrier of the dangerous drugs for which the appellant was charged. It was this evidence that the learned Judge was required to be satisfied with as establishing that the appellant had no knowledge of the dangerous drugs in P4 which she carried from New Delhi to Malaysia. [50] The learned Judge asked herself, quite rightly in our view, whether with this explanation and evidence, can she now safely say that the appellant’s evidence to be a bare denial or an afterthought. And, it was in that consideration that the learned Judge answered in the affirmative, that the defence raised was a bare assertion with no probative value as there was no corroboration in any other evidence. [51] In our view, the learned Judge was prepared to consider that the appellant was truly on vacation in New Delhi even though she had not produced a single souvenir, picture or receipt given that this was not the appellant’s first trip. 18 [52] But, it was the way the appellant followed CJ and Moon, described as “randomly followed them” despite not knowing them that led the learned Judge to say that she “cannot summons myself to feel even an inch of doubt as to the accused guilt. Her whole defence naturally defy gravity of logic, very highly improbable and obviously fictitious in nature.” The learned Judge was not without basis or justification for coming to this conclusion; the learned Judge found the appellant “most of all is in no way unintelligent or naïve female, she is by profession a teacher in an international school in Malaysia. More likely the story is corked up and obviously implied an imprint of a Bollywood script.” [53] We agree with the learned Judge. The evidence supporting the original charge was overwhelming. What the learned Judge may have left out from the appellant’s narration and answers to her counsel did not vindicate her; neither was the evidence helpful in establishing her innocence and complicity. On the contrary, what the learned Judge had omitted from the grounds actually fortify Her Ladyship’s conclusions. [54] One of those matters not mentioned was the appellant’s claim that she had booked herself into a hotel, that this was done online before she departed Malaysia for New Delhi. Yet, she was unable to provide details of that reservation. [55] Despite testifying that she had agreed to stay at the house where CJ and Moon had brought her because it was already late by the time she got to the house from the airport, she offered no explanation as to why she continued to stay at the same house for the entire duration of her vacation to New Delhi. 19 [56] As for her vacation, that CJ and Moon were supposed to act as her tourist guides, the appellant gave no details of her vacation including where she might have been taken. There was absolutely nothing, not a shred of any other evidence which could be used to corroborate or support her explanation so as to give the explanation some probative value. Further, the appellant’s reaction and explanation of how the drugs were discovered actually confirmed the evidence given by the prosecution’s witnesses. The contentions of the appellant are therefore without merit. [57] Finally, on the last complaint that the learned Judge had erred in failing to say whether the appellant was convicted for actual or presumed trafficking, we find the failure to state specifically does not render the conviction unsafe. We find that the learned Judge had actually re-evaluated the evidence of the prosecution before reaching her conclusion that the appellant was not successful in raising a reasonable doubt against the prosecution’s case. [58] On the totality of the evidence before the Court as found in the records of appeal, we are of the firm and unanimous view that the conviction is safe. Having anxiously and very carefully perused the record of appeal, we find ourselves reaching the same conclusion as the learned Judge, that the defence has failed to raise a reasonable doubt on the prosecution’s case against her. As explained earlier, the evidence of the original charge against the appellant was simply overwhelming. 20 [59] The appeal is dismissed and we further affirm the conviction and sentence as pronounced by the High Court. Dated: 9 October 2018 (MARY LIM THIAM SUAN) Judge Court of Appeal, Putrajaya Malaysia Counsel/Solicitors For the appellant: Dato’ Sri K. Rakhbir Singh Messrs Rakhbir Singh & Co. Lot E-27-3, Signature Office KK Times Square Off Coastal Highway 88100 Kota Kinabalu Sabah For the respondent: Zaki Asyraf Zubir (Jasmee Hameeza Binti Jaafar with him) Timbalan Pendakwa Raya Jabatan Peguam Negara Bahagian Perbicaraan dan Rayuan No. 45, Persiaran Perdana Presint 4 Pusat Pentadbiran Kerajaan Persekutuan 62512 Putrajaya