TPR Pn. Norinna Bahadun v Ekene Boniface Achiada (B-05(M)-264-07/2016)

(a) the appellant was seen walking alone whilst carrying the 2 luggage bags of ECHOLAC brand on a trolley which he was pushing when he was stopped by PW4;

(b) the bags in question each having a luggage tag (Exhibit P27 and P39) with the name of the appellant printed thereon;

(c) the bag marked as Exhibit P26 was opened by the appellant using one of the keys (Exhibit P28) which he took out from his sling bag;

(d) PW4 found the impugned drugs which were concealed inside the metal handle of the said bag;

(e) the bag marked as Exhibit P38 was opened by the appellant using another key (Exhibit P40) which he took out from his sling bag;

(f) PW4 found the impugned drugs concealed inside the metal 14 handle of the said bag; and

(g) the boarding pass (Exhibit P18) and the luggage tags (Exhibits P27 and P39) showed that the appellant had flown from Doha, Qatar to Malaysia carrying the 2 luggage bags. [24] The above evidence clearly showed that the appellant had the 2 luggage bags in the custody or under his control at that point of time. The facts that we gleaned from the evidence of PW4 during cross-examination patently showed that the above evidence was not disputed by the defence. There was, moreover, not even a suggestion made to PW4 that when the drugs were found the appellant denied that the 2 bags and the drugs did not belong to him or that it belonged to Okechu or Ikye. Based on the above evidence, there can be no doubt whatsoever that the learned judge’s finding that the appellant had the bags in his custody or under his control was not a perverse decision. We fully endorse and are indeed in full agreement with the said finding which the learned judge so firmly expressed in the grounds of judgment. [25] One thing is extremely clear, that is that, upon proof of the element of custody or control of the 2 bags, the appellant was, pursuant to section 37(d) of Act 234, deemed to be in possession of the drugs concealed in its metal handles and thus was also deemed to have known the nature of such drugs. We have no reasons whatsoever to disagree with these findings and the invocation by the learned judge of the presumption under section 37(d) of Act 234 as it is well-established and trite principle that the said presumption applies where the essential elements that could activate such presumption have been proven and once this is fulfilled, it behoves the defence to rebut it on the balance of probabilities. We now quote the Privy 15 Council’s decision in the case of Public Prosecutor v Yuvaraj [1969] 2 MLJ 89 which lucidly explained the law as follows: “Generally speaking, no onus lies upon a defendant in criminal proceedings to prove or disprove any fact: it is sufficient for his acquittal if any of the facts which if they existed would constitute the offence with which he is charged are “not proved”. But exceptionally, as in the present case, an enactment creating an offence expressly provides that if other facts are proved, a particular fact, the existence of which is a necessary factual ingredient of the offence, shall be presumed or deemed to exist “unless the contrary is proved”. In such a case the consequence of finding that that particular fact is “disproved” will be an acquittal, whereas the absence of such a finding will have the consequence of a conviction. Where this is the consequence of a fact’s being “disproved” there can be no grounds in public policy for requiring that exceptional degree of certainty as excludes all reasonable doubt that that fact does not exist. In their Lordships’ opinion the general rule applies in such a case and it is sufficient if the court considers that upon the evidence before it it is more likely than not that the fact does not exist. The test is the same as that applied in civil proceedings: the balance of probabilities. This was the test which was approved by the Court of Criminal Appeal in R. v. Carr-Briant [1943] KB 607 a case upon a provision in an English statute in similar terms to that contained in section 14 of the Malaysian Prevention of Corruption Act 1961. For the reasons already indicated their Lordships do not think that, at any rate where such a provision is contained in an enactment, the definitions of “proved” and “disproved” contained in the Evidence Ordinance make any difference between Malaysian law and English law in this respect.” [26] Our conclusion is sufficient to dispose of this issue. Nevertheless, we would go further to say that even if the presumption of knowledge under section 37(d) of Act 234 is not relied on, the manner in which the drugs were carefully and cleverly concealed in this case would not in the absence of a plausible explanation, deny the existence of knowledge on 16 the part of the appellant of the drugs in question. It instead patently indicated as it were the appellant’s mental state of knowledge that the powdery substances concealed in the metal handles of the 2 bags were indeed prohibited items which must be hidden at all costs in order to avoid detection by the authorities. The concealment of the impugned drugs, we would confidently say, certainly did not reflect an innocent mind on the part of the appellant. The Federal Court in Public Prosecutor v Abdul Rahman Akif [2007] 5 MLJ 1 adopted the approach that the fact that an incriminating article was found concealed is no ground for saying that an inference of knowledge of the drug could not be drawn against the respondent. The Federal Court on this point said – “[17] Therefore, the presence of the three packages in the car without a plausible explanation from the respondent could give rise to a strong inference that he had knowledge that the packages contained drug or things of similar nature (see also Lim Beng Soon v Public Prosecutor [2000] 4 SLR 589). We further agree with the prosecution that the fact that the drug was found wrapped in newspaper is no ground for saying that an inference could not be drawn against the respondent that he had the requisite knowledge. In this regard it is pertinent to refer to the observation of the Singapore Court of Appeal Zulfikar bin Mustaffah v Public Prosecutor [2001] 1 SLR 633, at p 639:

For the element of ‘possession’ (within the meaning of s 17 of the Misuse of Drugs Act) to be established, it must not only be shown that the accused had physical control of the drugs at the relevant time; the prosecution must also prove that the accused possessed the requisite knowledge as the contents of what he was carrying: see Warmer v Metropolitan Police Commissioner [1969] 2 AC 256; Tan Ah Tee & Anor v PP [1978-1979] SLR 211; [1980] 1 MLJ 49. In the course of the appeal before us, counsel for the appellant relied heavily on the fact that the contents of the bundles were securely wrapped in newspaper and could 17 not be identified. We were accordingly invited to draw the inference that the appellant had no knowledge of the contents of the bundles.

We were unable to accede to this request. While the fact that the contents of the bundles were hidden from view may have been relevant in determining whether the requisite knowledge was absent, this factor should still not be given too much weight. Otherwise, drug peddlers could escape liability simply by ensuring that any drugs coming into their possession are first securely sealed in opaque wrappings. Rather, the court must appraise the entire facts of the case to see if the accused’s claim to ignorance is credible. As Yong Pung How CJ remarked in PP v Hla Win [1995] 2 SLR 424 (at p 438): In the end, the finding of the mental state of knowledge, or the rebuttal of it, is an inference to be drawn by a trial judge from all the facts and circumstances of the particular case, giving due weight to the credibility of the witnesses.” [27] References in this connection may also be made to the case of Teh Hock Leong v PP [2008] 4 CLJ 764 where the Court of Appeal there said – “[8] Turning to the facts of the present instance, we agree with the learned trial judge that the method employed to bring the drugs in question from Thailand into Malaysia was done in most cunning fashion to escape detection by the authorities. The method employed to convey or transport a drug may sometimes furnish evidence of knowledge. For example, an attempt to carefully conceal a drug may indicate an intention to avoid detection and thereby point to knowledge. Of course it all depends on the facts of each individual case.” [28] As earlier stated, the defence did not suggest to PW4 that the appellant denied at the initial stage of the discovery of the drugs that the 18 bags and the drugs found inside its metal handles did not belong to him. It could be inferred that without such denial at the earliest opportunity, the appellant actually knew about the drugs in question. Besides, at that early stage there was no suggestion by the defence that the appellant informed PW4 about Okechu or Ikye. If it is indeed true that the bags were given to him by Okechu and to be subsequently delivered to Ikye, and that the appellant had no knowledge about the illicit drugs, we would be inclined to say that the logical thing for the appellant to do, upon the discovery of the drugs, was to have told PW4 at that time that the same did not belong to him and he had no knowledge about it. We would go further to say on this aspect that the failure of the appellant to inform PW4 about these 2 persons at the time of his arrest goes some way to support the prosecution’s case and that on the contrary it merely goes to show that less weight ought to be attached to the appellant’s defence which therefore entitled the learned judge to disbelieve the appellant. The Federal Court in Teng Howe Sing v. PP [2009] 3 CLJ 733 alluded to the decision in Public Prosecutor v Badrulsham bin Baharom [1988] 2 MLJ 585 on this issue and said – “[30] With regard to the above contention of the appellant it is our judgement that it is misconceived. By commenting on the failure of the appellant to provide all relevant information regarding “Ho Seng” to the police at the time of his arrest or when his cautioned statement (D2) was recorded five days after his arrest does not mean that the learned trial Judge had imposed on the appellant a duty a speak/disclose them in his cautioned statement nor did he draw any adverse inference against the appellant. The learned trial judge’s comments on the late disclosure of the real identity of “Ho Seng” at the defence stage merely goes to show the weight that the court attached to the appellant’s defence which is permitted by the law. On this point we 19 would like to refer to the case of PP v. Badrulsham bin Baharom [1988] 2 MLJ 585, wherein Lim Beng Choon J at p. 591 said that: … So we are left with nothing more than the bare oral assertion of the accused that it was Noor Azlan who asked him to collect the bag on behalf of the former and that the accused himself had no knowledge of the contents of P3. If that be the case, one would hardly imagine that he would not have told either PW3 or PW5 at the railway station at Alor Setar at the time of his arrest that P3 belonged to Noor Azlan instead of saying that there was nothing in P3.” [31] In Badrulsham’s case, the court was of the view that the failure of the accused to inform the raiding officers that the white plastic bag belonged to Noor Azlan at the time of his arrest and only revealing this information during the interrogation two hours after his arrest, goes some way to support the case for the prosecution. [32] Applying the principle in Badrulsham’s case to the facts of the instant case, the learned 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 recording of his cautioned statement but he failed to do so. We are therefore of the view that 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 learned trial judge to disbelieve him.” [our emphasis] [29] It was strenuously contended for the appellant that the learned judge failed to consider PW4’s evidence that if anyone inspected the 2 bags he would not have known about the drugs. With this evidence, learned counsel submitted, it was impossible for anyone to know about the drugs unless the metal handles were prised using the screw driver in order to remove it from the bags as was done by PW4. In our judgement in this appeal, whether this argument could succeed to draw a salutary 20 effect that could convince us to accept that the appellant had no knowledge about the drugs would require the prosecution’s evidence and in particular PW4’s testimony to be considered in its entirety, not just that part of PW4’s testimony which learned counsel had highlighted above. It ought to be emphasised that the defence never suggested to PW4 that the appellant was shocked or showed other reaction when the drug was discovered that would indicate that he did not know about the drugs. The appellant only made this bare assertion that he was shocked when he gave his evidence during the trial. Such assertion ought, in our opinion, to be dismissed as an afterthought. In any event, we have already stated earlier that the fact that the drugs were concealed in that manner affords no ground for saying that an inference of knowledge of the drug could not be made. The learned judge had also correctly held that, once the element of custody or control of the 2 bags had been proved, the presumption of possession and knowledge of the drugs could be raised. Possession and knowledge are therefore presumed. It is for the defence to rebut the presumption on the balance of probabilities. This question must fall, ergo, is no longer an issue. [30] It is necessary to draw attention to one significant aspect of the prosecution’s case which the learned judge had dealt in his grounds of judgement. The learned judge in this regard, having invoked the presumption under section 37(d) of Act 234 proceeded to consider the element of trafficking wherein His Lordship held that the prosecution had successfully proven direct trafficking within the definition of the word trafficking under section 2 thereof. His Lordship’s finding was premised on the evidence that it was the appellant who transported and carried the drug from Qatar to Malaysia by flight. 21 [31] There was without question, sufficient and clear evidence to support the above finding. The prosecution in fact led irrefragable evidence to show that the appellant had taken the flight from Lagos, Nigeria and stopped in Doha, Qatar, enroute to Malaysia. This evidence could be gleaned from the electronic air ticket issued to the appellant (Exhibit P46) which tallied with the luggage tags issued for the 2 bags (Exhibits P27 and P39). The appellant was seen by PW4 carrying the 2 bags from which the drugs were found cunningly and carefully concealed inside its metal handles which, in our opinion had evinced by this act an intention to avoid detection by the authorities. If PW4 was not vigilant or alert in carrying out this duty in particular whilst inspecting the 2 bags, the impugned drugs would have passed through customs check and therefore avoided detection at the arrival hall of the KLIA. Furthermore, the quantity of the impugned drugs could be said to be much larger than was likely needed for the appellant’s personal consumption. An irresistible inference could therefore be made that when the appellant was caught in the act of transporting and carrying the drugs in quantity much larger than was needed for his personal consumption, he did so for the purpose of trafficking in it unless he could offer a plausible explanation. Such inference could be made even if there is no statutory presumption of trafficking in Act 234. The law as explained by the Privy Council in the case of Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64 allows such inference of trafficking to be made where the quantity of drugs involved is large. Lord Diplock in that case said – “Proof the purpose for which an act is done, where such purpose is a necessary ingredient of the offence with which an accused is charged, presents a problem with which criminal courts are very familiar. Generally, in the absence of an express admission by the accused, the purpose with which he did an act 22 is a matter of inference from what he did. Thus, in the case of an accused caught in the act of conveying from one place to another controlled drugs in a quantity much larger than is likely to be needed for his own consumption the inference that he was transporting them for the purpose of trafficking in them would, in the absence of any plausible explanation by him, be irresistible – even if there were no statutory presumption such as is contained in section 15 of the Drugs Act. As a matter of common sense the larger the quantity of drugs involved the stronger the inference that they were not intended for the personal consumption of the person carrying them, and the more convincing the evidence needed to rebut it.” [our emphasis] [32] On the facts of the prosecution case, we accept that the act of the appellant in transporting and carrying the drugs in the 2 bags on an international flight from one country to another, carefully concealed as it were, was indeed an overt and not an innocent act. The learned judge had made a correct finding in this regard. We find support to this conclusion in the decision of this Court in the case of Wjchai Onprom v PP [2006] 3 CLJ 724 – “… Here the appellant was caught conveying a very large quantity of cannabis from Thailand to Malaysia. In view of the amount involved, it is safe to infer that the drug was intended for a third person or persons, known or unknown. That other person or persons may, to borrow Lord Diplock’s words, be “the actual consumer or a distributor or another dealer”. So this is not a case of mere passive possession. There were overt acts done by the appellant, namely the active concealment of the drug on his person followed by its conveyance from Thailand into Malaysia which reasonably supports the existence of criminal purpose proscribed by the Act. We may add that the very same facts also give rise to a strong inference that the appellant was aware of his possession, knew the nature of the drug possessed and had the 23 power of disposal over it. So much for the prima facie proof of actual trafficking.” [our emphasis] [33] It would be useful to remember that the law must now be taken to be well-settled that the court is perfectly entitled to invoke a presumption under section 37(d) of Act 234 while at the same time making a finding of direct trafficking based on any of the acts which constitutes the act of trafficking as specified in the definition of the word trafficking in section 2 thereof. This is in order to avoid contravening the bar against the use of double presumptions following the case of Muhammed Hassan v Public Prosecutor [1998] 2 CLJ 170. We would rely on the Federal Court’s decision in the case of PP v Lim Hock Boon [2009] 3 CLJ 430 on this question – “[33] A good example where the definition of trafficking in s. 2 of the Act was invoked is in the case of Public Prosecutor v. Abdul Manaf Muhamad Hassan [2006] 2 CLJ 129. There the Federal Court, in order to avoid contravening the bar against the use of double presumptions following the case of Muhammed Hassan v. Public Prosecutor [1998] 2 CLJ 170, substituted the presumption of trafficking under s. 37(da) of the Act relied on by the trial court, to find trafficking in the dangerous drugs by carrying under s. 2 of the Act. The Federal Court ruled that the Court of Appeal ought to have applied the proviso to s. 60(1) of the Courts of Judicature Act 1964 and upheld the conviction and sentence notwithstanding the misdirection by the learned trial judge in applying the double presumptions under s. 37(d) and (da) of the Act to convict the accused. [34] It is worthy of note that there is only one offence of trafficking under the Act. However, there are several acts that may constitute the offence. If the prosecution is not able to bring its case within one of the acts (see Ong Ah Chuan v. Public Prosecutor [1980] 1 LNS 181) under s. 2 of the Act, but is nevertheless able to established the existence of primary facts that draw the 24 presumption under the Act, then the court is enjoined to draw those presumptions, subject of course to the bar as set out by Muhammed Hassan, supra.” [our emphasis] [34] It ought to be mentioned, before leaving the first ground of appeal, that the learned judge evaluated the credibility of the evidence adduced by the prosecution witnesses and was satisfied that all of them, in particular PW4 and PW5, were witnesses of truth and reliable. We have no reasons whatsoever to disagree with the assessment made by the learned judge in regard to the witnesses credibility as His Lordship without doubt had audio visual advantage of watching their demeanour and listening to their testimony whilst giving their evidence. The whole argument of learned counsel on the first ground in the end in no way leaves any margin of doubt in our minds that it is unsustainable, devoid of any merit and therefore must be rejected. [35] The second ground taken in this appeal before this Court, which is the remaining issue for our determination, concerns the argument that the learned judge failed to consider the appellant’s cautioned statement. Before we embark upon a detailed consideration of this ground, there is a preliminary matter which at this juncture, requires our attention. Learned counsel complained that the appellant’s cautioned statement should have been admitted as defence exhibit. The appellant’s cautioned statement was instead marked by the learned judge as IDD52 through PW5, the investigating officer. It is apparent, on our perusal of the notes of evidence, that there was no request made by the defence to tender the cautioned statement as an exhibit. We therefore hold that the learned judge was right when His Lordship merely marked the cautioned statement as identified document. Even so, in our view, when the 25 defence was called, the defence could still seek to admit IDD52 in evidence through the appellant so that the same could be marked as defence exhibit. The defence failed to do so though, and as such IDD52 remained as identified document only and not as evidence. Thus, even if it is true that the learned judge did not consider IDD52, His Lordship was justified in ignoring it. Nevertheless, since the defence sought to show that the learned judge had erred in not considering IDD52, we shall endeavour to consider this document as if it was tendered by the defence as evidence. With this preliminary observation, we shall proceed to consider the second ground in the contention of learned counsel. [36] We begin in dealing with this issue, by reiterating our earlier view that so far as the evidence showed, the appellant did not make any denial at the earliest time possible which was at the point when he was arrested by PW4 on 21.10.2011 upon the discovery of the drugs, that the 2 bags and drugs found concealed inside its metal handles belonged to him. Neither did he disclose to PW4 about Okechu and Ikye. The appellant only offered his version circa 3½ days after his arrest when the cautioned statement was recorded from him. It could therefore reasonably be said that he had ample time to think of his invention that he had narrated in IDD52. Be that as it may, it is clear to us that the appellant did not say in IDD52 that he had informed PW4 about these 2 fictitious characters. Under the circumstances, this version of the appellant’s defence was never more than a concoction which could consequently be dismissed as an afterthought or an idea occurring later. [37] Morever, our perusal of IDD52 showed that the contents thereof were identical to the appellant’s narrative when he gave his evidence during the defence stage as highlighted earlier in this judgment. In fact, 26 Okechu was mentioned in both IDD52 and the appellant’s testimony as the person who gave the 2 bags to the appellant to be given to one Ikye in Malaysia. The law, we apprehend, is that where the trial judge did not consider and expressly make a specific finding in rejecting the contents of the cautioned statement, but the contents thereof are more or less the same as his oral testimony and such testimony was rejected by the learned judge, it is implicit that he must in the event be taken to have rejected the contents of the cautioned statement as well. We would in this regard adopt the law as explained by this Court in Sainal Abidin bin Mading v Public Prosecutor [1999] 4 MLJ 497 where in that case, as here, the defence tendered DI during the prosecution case and hence marked as defence exhibit, Haidar JCA (as His Lordship then was) said at page 507 – “Though the learned judge in his judgment did not expressly made specific finding of rejecting the contents of the cautioned statement since they are more or less the same as his oral evidence and such defence was rejected by him for the reasons stated by him and that he accepted the evidence of PW 4 and PW 5, it is implicit that he must in the circumstances have rejected the contents of the cautioned statement as well.” [38] In this appeal, although the learned judge did not specifically consider IDD52, it is very clear in the grounds of judgment that His Lordship had considered the appellant’s testimony including his evidence relating to Okechu and Ikye and rejected the same for the reasons His Lordship had given. The cautioned statement we find, did not state more than what was raised by the appellant in his narrative and throughout the trial. In Kwok Weng Fatt v PP [2013] 1 LNS 1304, it was – 27 “[18] In our view, although the learned trial Judge did not elaborate on the cautioned statements in his judgment, we find no error to be of no consequence to the facts of the present case. We say so because the cautioned statements do not state more than what was raised by the appellants throughout the trial.” For these reasons, the argument of learned counsel urged for the appellant on the second ground must therefore fail. [39] The remaining question which arose out of the cautioned statement concerns the defence argument that PW5 did not carry out any investigation on Okechu and Ikye. But may it be remembered that these 2 names were only mentioned 3½ days after the appellant’s arrest when IDD52 was recorded from him. He did not inform such vital information to PW4 at the time of his arrest. In his defence, the appellant testified that Ikye telephoned him at the time of his arrest, however, no such question was put to PW4 when he was under cross-examination. We are convinced that the reasons why the appellant did not inform PW4 of these 2 persons and that PW4 was not cross-examined on this issue was because they were in actuality fictitious characters. Furthermore, PW5 in his evidence told the court that the appellant did not furnish details regarding Okechu and Ikye such as their full names, telephone numbers, addresses and the place where he was supposed to deliver the bags to Ikye. [40] The defence contention begs the question whether the appellant’s evidence concerning these 2 names constituted a good and sufficient ‘Alcontara Notice’ which upon such notice being given, the police would be obliged to track down Okechu and Ikye. It is a well-established principle that for the Alcontara Notice to apply, the appellant must provide sufficient and good particulars in the right perspective, not insufficient or vague notice where the prosecution in the result would not be able to carry out 28 investigation to rebut the defence story. Having considered the above relevant evidence, we are satisfied that the relevant information regarding these persons such as their addresses were not provided by the appellant as such the appellant failed to provide a good Alcontara Notice. A bad Alcontara Notice did not help the appellant at all but imposed an obligation on him to lead evidence in relation to his story to rebut the evidence of trafficking against him [Rengarajan Thangavelu v PP [2015] 1 CLJ 993; Phiri Mailesi (Zambian) v Public Prosecutor [2013] 1 LNS 391, [2013] 5 MLJ 780; Marimuthu Seringan v PP [2016] 1 LNS 64]. This obligation to rebut the presumption of trafficking on the balance of probabilities had not been discharged by the defence. We would add, in any event, that the omission on the part of the police to investigate where the information given by the appellant smacks of details is not fatal to the prosecution’s case, on the other hand any reliance by the defence on such inadequate and vague information would make their argument thereon not palatable at all. We would not hesitate to also hold, on the authority of Teng Howe Sing, supra, that such failure entitled the learned judge to disbelieve the appellant. [41] The learned judge had adequately and judicially considered the defence evidence and found that the defence had failed to rebut the presumption under section 37(d) of Act 234 on the balance of probabilities. The appellant’s defence in essence is that he was an innocent carrier. However the learned judge, as we have mentioned earlier, found that the appellant was not an innocent carrier, instead he was guilty of willful blindness. His Lordship’s finding is in our judgment in line with the decision of this Court in Hoh Bon Tong v PP [2010] 5 CLJ 240 where at page 272, Abdul Malik Ishak JCA dealt with the issue of wilful blindness as follows: 29 “[72] In the context of possession of dangerous drug, in order to prove the element of guilty knowledge or mens rea the duty of the prosecution is to prove that the accused knew the nature of the particular dangerous drug that he was in possession of as a dangerous drug or as a prohibited drug. There is no necessity for the prosecution to also prove knowledge pertaining to the name, type or exact qualities of the dangerous drug. Here, the prosecution has done just that and we cannot find any fault in that. [73] The defence on innocent carrier must necessarily bring into the picture the concept of willful blindness. And according to Yong Pung How CJ (Singapore) in Public Prosecutor v. Hla Win (supra) at p. 438, “the concept of wilful blindness qualifies the requirement of knowledge.” And his Lordship continued further by saying (at the same page): As Professor Glanville Williams aptly remarked in his Textbook on Criminal Law, at p. 125: … the strict requirement of knowledge is qualified by the doctrine of wilful blindness. This is meant to deal with those whose philosophy is: ‘Where ignorance is bliss, ‘tis folly to be wise’. To argue away inconvenient truths is a human failing. If a person deliberately ‘shuts his eyes’ to the obvious, because he ‘doesn’t want to know,’ he is taken to know.’ [74] Continuing at the same page, his Lordship said: In Ubaka v. PP [1995] 1 SLR 267, the principles laid down in Warner v. Metropolitan Police Commissioner [1968] 2 All ER 356; [1968] 2 WLR 1303 and modified in Tan Ah Tee v. PP [1980] 1 MLJ 46 were applied by the trial judge. In its grounds of judgment, this court quoted the following passage by the trial judge: 30 Ignorance is a defence when there is no reason for suspicion and no right and opportunity of examination, and ignorance simpliciter is not enough. [75] Here, we have evidence that the drugs were placed inside transparent plastic packets and the contents can be seen from outside. It was mere folly on the part of the accused not to examine what he carried in his pockets. It is a classic case of willful blindness.” [42] One of the defences adopted by the appellant was that he came to Malaysia to survey the education opportunity which according to the learned judge was suspicious as there was not even a document found on him or his bags that could prove his interest to further his education in Malaysia. The appellant was allegedly interested to further his study in Segi College however, there were no documents or phamplets on that college recovered from him despite saying that he had researched on the educational facilities in Malaysia whilst he was in Nigeria. Besides, the appellant only carried the 2 bags for Okechu. The journey taken by the appellant was a long one and it was most suspicious that he did not carry any travelling bag of his own, instead he was merely carrying the 2 bags containing items which according to the learned judge “were hardly valuable to be handed over to Ikye”. We agree with the learned judge that such documents would lend credence to the appellant’s assertion that he was interested to further his study in Malaysia, in particular, at Segi College. [43] Additionally, the fact that the appellant could easily agree to carry the 2 bags for Okechu to be delivered to Ikye both of whom were complete strangers to the appellant had also reasonably aroused the court’s suspicion. We accept the learned judge’s finding that the reason 31 given by the appellant that he carried the bags for Okechu was because he was a nice man was not acceptable as a plausible reason. These suspicious circumstances should have alerted the appellant to the risk involved in carrying the bags which contained items that were hardly valuable for someone he hardly knew to be delivered to another person whom he completely did not know. The defence of innocent carrier adopted by the appellant ought to be considered in the light of the doctrine of wilful blindness. The appellant had obviously shut his eyes to and completely ignored the surrounding circumstance under which he was asked to carry the 2 bags which to our minds should have aroused his suspicion rather than trusting Okechu shortly or to be exact 2 weeks after he knew Okechu when he agreed to carry the bags to be given to Ikye in Malaysia. The appellant’s story on how he came about carrying the 2 bags given by Okechu to Malaysia which the appellant was visiting for the first time for a dubious reason of conducting the alleged survey on educational opportunity is utter nonsense as a person in the right frame of mind would not have done it without any satisfactory reason. The logical conclusion which could be drawn from these suspicious circumstances was that the appellant did not to come to Malaysia for the purpose of education but it was merely an excuse to cover up his unlawful activity of trafficking in the impugned drugs and that he knew that he was carrying the impugned drugs in the metal handles of the bag for the said purpose. [44] For the reasons that we have already indicated, we find no difficulty whatsoever in holding on the strength of the prosecution’s evidence considered in the light of the defence testimony and the well recognised legal principles, that the findings of the learned trial judge that the defence failed to rebut the presumption of possession and knowledge of the drugs 32 under section 37(d) of Act 234 and raised a reasonable doubt in the prosecution’s case, is unassailable. We are satisfied that the prosecution had successfully proved the charge against the appellant beyond reasonable doubt. The conviction and sentence by the High Court is consequently affirmed and the appeal is dismissed. Signed ( IDRUS BIN HARUN ) Judge Court of Appeal, Malaysia Putrajaya Dated: 27 September 2017

Solicitor For The Appellant - Dato’ Ahmad Zaidi bin Zainal Ahmad Zaidi & Partners J-1-10, Block J, Jalan PJU 1A/1 Taipan 2 Damansara Ara Damansara 47301 Petaling Jaya

Solicitor For The Respondent - Puan Norinna binti Bahadun Timbalan Pendakwa Raya Unit Perbicaraan Jabatan Peguam Negara No. 45, Persiaran Perdana Presint 4 62100 Putrajaya