(iv) the learned trial Judge had erred in law and facts because the defence adduced by the Respondent had failed to defeat the presumption of knowledge under section 37(d) of the DDA 1952. [24] In essence, the appeal by the learned DPP, centres on the issue of whether the Respondent, on the facts and circumstances of this case should be protected by her defence of an innocent carrier which will rebut the presumption of knowledge on her part. In this regard learned 13 DPP relied and referred to the Federal Court decision in PP v Herlina Purnama Sari [2017]1 MLRA 499, where the defence of innocent carrier was rejected on the basis that the accused in that case had every opportunity to check what she was carrying and that she should be reasonably suspicious of what she was carrying. In that case the accused was carrying a luggage bag. When it was opened there was a plastic bag containing two boxes of the impugned drugs. Thus the Federal Court viewed that if the accused had checked she would easily notice the two boxes. Further authority cited by learned DPP is the Federal Court decision in Teh Hock Leong v PP [2010]1 MLJ 741. [25] At the outset, it must also be pointed out that the law on the defence of innocent carrier is very facts sensitive. It depends on the test of what and how reasonable the accused had acted given the surrounding circumstances. Both knowledge as well as wilful blindness are more often than not inferred from the facts and circumstances of each case. As such even though some case laws and decisions can serve as useful guidance, it is nevertheless imperative to state that because it requires an intense nature of factual inquiry, they cannot be comprehensive. Though in law the accused has no legal duty not to turn a blind eye but if he chooses to do so, it could be taken as an act of 14 wilful blindness on his part, which in fact amount to actual knowledge in law. [26] Thus whether or not a presumption of knowledge under the DDA is rebutted on a balance of probabilities will depend on the precise factual analysis of each case. [27] In the present appeal the learned trial Judge found the Respondent testified as SD1 was a witness of truth as she had remained consistent and unshakened throughout the event as well as during the trial and her evidence was found to be credible. The learned trial Judge had evaluated the evidence of the defence as mandated under section 182A of the Criminal Procedure Code and having heard the testimony of the Respondent, the learned trial Judge found her evidence credible and had accepted her as a credible witness. [28] As a matter of legal principle, the appellate court should be slow to interfere with findings of facts by the trial court unless there is a plain and overriding error which affected the assessment of facts as enunciated in Low Kian Boon & Anor v PP [2010] 1 MLRA 418 and Topaiwah v Salleh [1968] 1 MLRA 580. 15 [29] The defence raised by the Respondent had focussed on the role played by Dan which according to the learned trial Judge, the existence of whom the investigation had failed to do more. Learned DPP stressed on the issue that the identity of Dan was not disclosed by the Respondent both in her cautioned statement (D53) as well her testimonies before the learned trial Judge. The learned trial Judge saw the various messages in the hand phone of the Respondent in Exhibit P27(2) which he found to have supported the oral evidence of the Respondent of their intimate relationship. Learned DPP criticised this finding, being a finding purely based on information in the hand phone whereas, the Respondent was not able to even provide any other details on Dan. [30] We are not in agreement with learned DPP. We note that in her examination-in-chief, the Respondent when referred to her cautioned statement tendered as Exhibit D53, at Q17 of her cautioned statement, said that upon her arrival at Guongzhou airport from her place, she was brought to the Condominium where Dan lived. The place was described by her as Fu Hong Kondo, located in Wilayah Jiang Xia. She said she had also given the telephone number of Dan to the Customs Officer. In her re-examination she also said that the Condominium where Dan lived had a cctv in the lift, which would record her movement there. 16 [31] Learned DPP further stressed on the point that in concluding that the Respondent had created doubt on the prosecution’s case by rebutting the presumption of knowledge which then amount to raising a defence of innocent carrier, the learned trial Judge failed to consider that the Respondent had not taken any trouble to check what she was carrying in P26 despite having the bag with her at all the material time. It was submitted by learned DPP that the Respondent cannot rely on her own wilful blindness to be protected by the defence of innocent carrier, as decided in all the authorities cited on this point. [32] We agree with learned DPP that the legal principles on this issue is trite. That the defence of innocent carrier will be defeated by an act of wilful blindness. In this case the Respondent was never cross-examined if she had checked the content of P26 before travelling or during travelling and why she did not do so. What we noted was that the way the drugs exhibit were concealed in P26, would not make the drugs easily noticeable upon checking. Thus, even if the Respondent were to open the content to check, she would not be able to see anything suspicious because the drugs exhibit was hidden behind the metal pull of P26 and would not be noticeable to her even if P26 was opened. This was due to the way the drugs was concealed. This particular fact would distinguished this case with the rest of the decided authorities which 17 support the legal proposition that the law will not protect anyone who claims to be innocent carrier when he had turned wilfully blind to the obvious. In PP v Herlina Purnama Sari (supra) for example, the drugs were in the luggage, packed in two boxes on top of all the clothings. Thus any one who opened the bag and checked would easily noticed the two boxes and would arose suspicion as to the content of the two boxes. [33] The Federal Court in that case had also deliberated on the concept of wilful blindness which was summarised “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”. Only when the situation are such, and that it will arise suspicion, then it becomes incumbent for that person to make necessary inquiries to satisfy himself as to the genuineness of the information given to him. It must be also pointed out here that, that person has no legal duty to do so, but if there is at least a reason to be suspicious it would be sufficient to ground a finding of wilful blindness. [34] Back to the present facts, the Respondent was told by her boyfriend Dan to send sample clothings to Kuala Lumpur. Dan was supposed to come along with her and on the way to Guangzhou to 18 commence the journey to Kuala Lumpur which he had to back out, supposedly on some urgent basis. She was then told to carry the luggage carrying the sample of clothing to a person in Kuala Lumpur who would call her upon arrival. The drugs was completely hidden in the luggage and not visible if one were to open it. In this regard the evidence of SP5, the Customs Officer on duty at LCCT at the material time, had explained how the drugs exhibit was completely hidden in P26. The witnesses for the prosecution had explained that to obtain the drugs exhibit he had to tear the cloth lining at the bottom part of the luggage. (At pp 22 and 23) SP6 testified: Q : Bagaimana pembongkaran bermula? : Saya keluarkan pakaian, saya dan Tuan Omar mula mengopek lantai berwarna hitam sehingga habis kerana sebelum ini saya kopek sedikit sahaja. : Tuan masih ingat berapa lapisan dalam beg tersebut? : Ada pakaian dan kain berzip dan 2 batang besi beg tarik yang terpaksa ditarik. : Bermula dengan kopek kain yang berzip? : Buka zip tidak perlu dikoyakkan dan terjumpa lantai plastik berwarna hitam. : Kemudian? : Kopek sehingga habis. : Menanggalkan besi menggunakan apa? : Tarik sekuat hati. 19 : Tuan potong lapik menggunakan apa? : Pisau dan screwdriver, kami cuba untuk mengopek. [35] The Respondent was not probed in cross-examination if she had any suspicion and had made attempt to check what is in P26 carefully. Because her narration was quite impeccable, and there was no room for suspicion that was revealed, to impute any suspicion or curiosity on her part, in order that the doctrine of wilful blindness can be invoked against her as decided in Herlina. [36] Couple with such narration and what was even more telling was the fact that the Respondent had upon arrival, chose to go through the red lane to declare her luggage before the Customs Officer instead of going through the green lane which requires no declaration. This was also evidenced in the picture of the Respondent at the arrival in Exhibit P17A (2-4) where she walked through the red lane knowing that she will have to disclose whatever she was carrying with her. This certainly does not show the conduct of a person with a guilty mind. Besides, all the relevant witnesses for the prosecution, had testified that the Respondent was completely calm and had given her full co-operation during that time when she was apprehended at the LCCT upon her arrival, and had only 20 shown panic and worry only after she was told that they found the incriminating drugs in her bag. [37] From all the above account we do not find error in the finding of the learned trial Judge, that the Respondent had rebutted the presumption of knowledge on a balance of probabilities. We find no error in that finding of facts and the reliance of the learned trial Judge on the evidence of the Respondent as a witness, which the learned trial Judge found to be reliable. The finding of the learned trial Judge in our view, is well supported by necessary evidence and inferences. [38] We are mindful of the legal principle, that the appellate court should be slow to interfere with findings of fact as the trial Judge being the trier of facts is always in the better position to assess the evidence and credibility of a witness (see Low Kian Boon & Anor v PP [2010]1 MLRA 418). We on our part, do not find any appealable errors that warrant interference, on both facts finding and credibility of the Respondent in her testimony. We agreed with the learned trial Judge on the finding as they were finding made supported by clear evidence before him. 21 [39] Having perused through the Appeal Records before us, we agree with the learned trial Judge, that it would not be safe to convict the Respondent on the charge in the circumstances. We therefore dismissed the appeal of the learned DPP, and affirmed the order of acquittal and discharge, of the Respondent made by the learned High Court Judge. sgd ROHANA YUSUF Judge Court of Appeal Malaysia Dated: 4 April 2018 Counsel for the Appellant: Nik Syahril Bin Ab Rahman Timbalan Pendakwa Raya Jabatan Peguam Negara Aras 5, No. 45, Lot 4G7 Presint 4, Persiaran Perdana 62100 PUTRAJAYA Counsel for the Respondent: Tan Choon Hong Tetuan Choon Hong & Associates No. 7A, Level 1, Lorong Sentosa 4 Taman Bayu Tinggi 41200 Klang SELANGOR 22