TPR Pn. Tengku Intan Suraya binti Tengku Ismail v BENJAMIN WILLIAM HAWKES (K-05(M)-218-06/2016(ZAF))

IN THE COURT OF APPEAL MALAYSIA AT PUTRAJAYA (APPELATE JURISDICTION) CRIMINAL APPEAL NO : K-05(M)-218-06/2016(ZAF) BETWEEN BENJAMIN WILLIAM HAWKES … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT [In The Matter Of High Court Of Malaya At Alor Setar Criminal Trial No: 45A-15-11-2014 Between Public Prosecutor And Benjamin William Hawkes] CORAM MOHD. ZAWAWI BIN SALLEH, JCA IDRUS BIN HARUN, JCA KAMARDIN BIN HASHIM, JCA 2 GROUNDS OF JUDGMENT [1] Benjamin William Hawkes, the accused, qua the appellant in this appeal, is a South African national. On 21.7.2013, around 8.00 p.m., the accused arrived at the Langkawi International Airport via flight SILKAIR MI368 from Singapore, in transit from Johannesburg. After the accused had been through immigration control, he proceeded to claim his trolley luggage bag (Exhibit P38) (the bag for short) at the baggage carousel at the airport. PW4, a customs officer who was in charge of inspecting incoming passengers’ baggage at the airport was stationed at an x-ray baggage scanner machine at the material time. He saw the accused holding the bag walking towards him. The bag was wrapped with a blue luggage-wrapper plastic. PW4 requested the accused to place the bag into the scanner machine for scanning purposes. A bright object in orange colour was seen inside the bag from the x-ray monitor screen. The object was unusually bright compared to other items inside the bag. This bright object aroused the suspicion of PW4. [2] PW4 then instructed the accused to place the bag at the inspection counter after which he gave the accused a pair of scissors to remove the plastic wrapper. The accused, using the scissors, cut and removed the plastic wrapper wrapping around the bag. At the same time, PW4 requested for the accused’s passport (Exhibit P23) and boarding pass (Exhibit P29) for identification purposes. The particulars printed on the boarding pass matched the information from the baggage tag which was wrapped around the handle of the bag and PW4 was satisfied that the accused was the holder of the passport. PW4 thereafter asked the accused, “This is your baggage?” and the accused replied “Yes”. He also asked the accused to open the bag which had a combination key-lock 3 and the accused himself opened it. PW4 saw some clothes inside the bag. Underneath the clothes, he found a small black document bag (Exhibit P22) (the document bag for short) placed in the middle of the bag. PW4 thereupon asked the accused to open the document bag. When the document bag was opened, it was empty. PW4 held up the document bag and it felt heavy despite being empty. He asked the accused, “What item you bring?” The accused replied, “Don’t know”. [3] PW4 directed the accused to bring the document bag to the scanner machine for scanning which the accused did. The scanning of the document bag showed an image unusually bright in orange colour. As event soon transpired, while the document bag was in the process of being scanned, the accused walked away leaving behind his passport, boarding pass and 2 mobile telephones left on the table and headed to the direction of exit and left the arrival hall without saying anything. PW4 immediately alerted PW5, an airport security personnel who was on duty about 10 feet from PW4. PW5 went after the accused. The accused ran towards the parking area after exiting the arrival hall. PW5 called out to the accused and ordered him to stop. When the accused reached the edge of the parking area, he stopped and surrendered himself. PW5 brought the accused back into the airport terminal. In the meanwhile, PW4, amid the commotion, contacted his superior, PW6, and related the incident to him. [4] PW6, accompanied by several officers, arrived at PW4’s post and upon being briefed by PW4 what had transpired earlier at his post, PW6 inspected the x-ray imaging pictures on the monitor screen. He confirmed that there was suspicious-looking image inside the bag that was scanned. PW6 inspected the bag and found nothing suspicious. He held up the 4 document bag and found that it was heavy despite being empty. PW7, who was PW6’s immediate superior arrived at the airport around 9.00 p.m. after being informed by PW6 earlier. PW6 then handed the accused to PW7, together with Exhibits P8, P22, P23, P29, a boarding pass from Johannesburg to Singapore (Exhibit P28), itinerary sheet (Exhibit P27), e-ticket receipt (Exhibit P26) and 2 mobile telephones (Exhibits P24 and P25) recovered from the accused. PW7 saw the x-ray imaging pictures on the monitor screen. Next, he inspected the bag and found the blue plastic wrapper in the side compartment thereof. PW7 also found some clothes and the document bag inside the bag. When PW7 inspected the document bag, there was nothing inside, but it was heavy. He therefore inspected the two side-walls of the document bag and felt there could be something inside it. PW7 placed the document back into the bag and instructed his officers to escort the accused and bring the bag to the head office for further investigation. [5] At the head office, PW7 carried out a thorough search on the bag and the document bag in the presence of the accused. The search led to the discovery by PW7 of a black rectangle packet concealed in each side of the walls of the document bag. He pierced a small hole on each of the black rectangle packets (Exhibit P58 (A and B)) and found crystal substances which upon being tested with a test-kid were found to be positive for methamphetamine. The accused denied knowing what those substances were when asked by PW7 and he was nervous when PW7 was inspecting the document bag. In fact, the accused cried when the 2 rectangle packets were found concealed in the document bag. PW7 sealed the holes in the 2 rectangle packets (Exhibits P58 (A and B)) back with cellophane tape which he marked as ‘C1’ and ‘C2’ respectively. PW7 also marked all the other items seized from the accused and prepared a 5 search list (Exhibit P26). All the seized items were kept by PW7 in a metal cabinet in his office. He subsequently lodged a police report (Exhibit P63). A handing over exhibits list (Exhibit P64) was also prepared by PW7 and on 22.7.2013 he handed over all the exhibits to the investigating officer, PW9. [6] On 23.7.2013, PW9 handed Exhibit P58 (A and B) which contained the crystal substances placed in a box marked ‘F’ over to the government chemist, PW3, for a detailed analysis of the crystal substances. On 17.9.2013, PW3 returned the exhibits to PW9 together with her chemist report (Exhibit P57). In the report, PW3 confirmed the crystal substances (Exhibits P59 and P60) marked by the chemist as ‘C1-F and ‘C2-F found inside Exhibits P58 (A and B) contained 804.6 and 793.7 grammes of methamphetamine respectively. The combined weight of the incriminating substances was 1,598.3 grammes and methamphetamine is comprised in the First Schedule of the Dangerous Drugs Act 1952 (Act 234) ergo is dangerous drug as defined in section 2 thereof. [7] In the face of the above overwhelming background facts, the accused was accordingly charged and tried in the High Court at Alor Setar under section 39B(1)(a) of Act 234 for an offence of trafficking in dangerous drug, that is methamphetamine, involving 1,598.3 grammes which is punishable under section 39B(2) of the same Act. For completeness we set out the charge against the accused below – “Bahawa kamu pada 21 Julai 2013, jam lebih kurang 9.00 malam di Balai Ketibaan, Lapangan Terbang Antarabangsa Langkawi, dalam Negeri Kedah Darul Aman telah didapati mengedar dadah berbahaya iaitu Methamphetamine seberat 1,598.3 gram dan dengan itu kamu telah melakukan suatu kesalahan 6 di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama.” [8] The accused was convicted of the offence and sentenced to death by the High Court. This appeal is against the said decision in which the accused was convicted and sentenced for the above offence. On 25.8.2017, we dismissed the appeal. At that instant, we did state that reasons in writing would be given for that dismissal in our detailed judgement which would follow in due course and this we now do. The learned judge in his grounds of judgment stated the well-established law that in order to prove an offence under section 39B(1)(a) of Act 234, the prosecution had to prove the following ingredients of the offence: a. the accused was in possession of the incriminating drug at that material time; and b. the accused was in the act of trafficking the incriminating drug at that material time. [9] Now, based on the above material facts upon which the prosecution’s case was found, the learned judge, at the close of case for the prosecution made the factual findings which can be neatly summarized as follows:

(ii) the accused was so situated in regard to the two rectangle packets containing the incriminating drug concealed inside the document bag that the accused had the power to deal with them as owner to the exclusion of all other persons, and that the incriminating drug was within his means the power of disposal if circumstances required him to do so. Hence, the learned judge was satisfied that the accused was in possession of the rectangle packets which contained the incriminating drug which was concealed inside the document bag;

(iii) having found that the accused was in possession of the rectangle packets in which the incriminating drug was found, the learned judge stated that the accused must be shown to 8 have known the nature of the substances, that is the incriminating drug he possessed;

(iv) it was in evidence that the accused walked away when PW4 was in the process of scanning the document bag and the accused’s action of walking away was a relevant fact. When PW7 was inspecting the document bag, the accused looked nervous and he cried when PW7 found the rectangle packets which were concealed in the document bag;

(vi) the total nett weight of the methamphetamine as stated in the charge was 1,593.3 grammes and since the accused was found to be in actual possession of the impugned drug, the accused was presumed, until the contrary is proved, to be trafficking in the said drug; and

(vii) the prosecution had made out a prima facie case on the offence charged and pursuant to section 180(3) of the Criminal Procedure Code, the accused was called upon to enter on his defence. [10] The accused elected to give an unsworn statement from the dock. In his prepared written statement, the accused told the court he had visited Langkawi before and planned to visit Langkawi in July 2013 as a holiday 9 trip. He contacted his friend whom he had met during his earlier visit by the name of Jimmy to receive him at the Langkawi Airport on that fateful evening. The accused stated that he had a document bag kept inside his bag. He had checked in his bag at Johannesburg Airport and only retrieved it at the Langkawi Airport. At the Langkawi Airport, he went to the airport carousel to collect his bag after he had cleared the immigration. He proceeded to the scanning machine. In the event which happened, the accused was instructed to open his bag for inspection. However the officer on duty could not communicate with him in English language and used sign language to instruct him to open his bag. The accused also stated that he told the officer he wanted to go out to get his friend Jimmy who was supposedly waiting for him outside and the officer nodded his head. He also asserted that while he went to look for Jimmy, the bag was not closed adding that he was unable to locate Jimmy outside. He was brought back into the building by PW5. The accused saw the bag was partly opened he when he came back. The accused denied that the bag was wrapped in a blue plastic bag. When he was brought back to the inspection counter, he was handcuffed and directed to sit in a separate room, the accused said. He claimed that it was only later that the bag together with the contents were brought into the room by a customs officer. [11] As regards the document bag, the accused stated that it looked similar to his document bag, and he also claimed that his documents inside the document bag were missing. The accused stated that he did not lock the bag when he left Johannesburg explaining that the zipper in the bag was “sufficient to secure” his belongings. There was no padlock on the bag. He denied the incriminating drug found inside the rectangle packets which were concealed in the document bag was his, and he also denied having any knowledge of them. The accused further denied that the 10 document bag was his. The accused also denied that the bag was scanned twice as established in the prosecution’s case. The accused asserted that his story, the number of times the scanning took place, and what had transpired at the counter could be confirmed by the CCTV recording. Unfortunately, it was never produced by the prosecution. The accused urged the court to re-evaluate the prosecution’s evidence in light of his narrative. No witnesses were called by the defence to testify. [12] The learned judge found that the accused’s denial that the document bag from which the incriminating drug was found was not his was insufficient to raise a doubt in the prosecution’s case. The prosecution’s evidence was that the document bag was found inside the bag and the incriminating drug contained in the rectangle packets was found concealed in the document bag. A mere denial was a bare denial of fact. The learned judge considered the accused’s explanation that he walked away from the inspection counter and headed to the exit of the arrival hall because he wanted to look for his friend Jimmy. His narrative according to the learned judge could not explain as to why he started running away from the exit of the building until the edge of the parking area. [13] The learned judge also rejected the accused’s statement that he told PW4 that he was going out to look for his friend, and that PW4 nodded his head holding that PW4’s narrative was not so. PW4 communicated with the accused in the English language. Although it was in broken English, that could not support the accused’s statement that PW4 could not understand him entirely. The accused claimed that he could not comprehend what PW4 was saying to him, therefore, he wanted to go out to look for his friend. This statement was not accepted by the learned trial judge as firstly, there was no evidence to support that the accused’s 11 purported friend, Jimmy, was a real person. If he was a real person, Jimmy was not called as a witness to support the accused’s story. Secondly, the accused claimed that he had travelled to Langkawi before, therefore, he should know the security procedure in the airport. He could not just walk away like that. Even if the accused was so naive, why did he run when he exited the airport building? Based on these findings, the learned judge was not satisfied that the accused had explained the fact as to why he walked away from the inspection counter and was running away at the parking area. He also did not explain as to why he was nervous and cried when PW7 found the concealed incriminating drug in the document bag. With respect to the accused’s denial that he was brought back to PW4 at the airport building and instead he was brought into a separate room and that the bag was only brought into the room later, the learned judge held that the version of the narrative could not be challenged or cross-examined by the prosecution. The veracity of the truth or probability of its existence could not be tested and therefore the court could not attach much weight to it. Contrary to the accused’s narrative, the learned judge held, the evidence of PW4, PW5, PW6 and PW7 was consistent in that the accused was handcuffed and seated near the inspection counter after he was brought back into the building. [14] In fact, from the prosecution’s evidence, PW6 testified that when he arrived at PW4’s post, he saw that the accused was in handcuffs and sitting there. Likewise, PW7 also gave a similar account when he arrived at the scene. This version of the story was not shaken and their evidence was not discredited. Hence, His Lordship was not satisfied that the accused’s version had in any way created a doubt in the prosecution’s case. The accused’s assertion that the bag was only scanned once in his presence was rejected by the learned judge. His Lordship considered the 12 submission for the accused that the picture in Exhibit P61‘A’ could be the accused’s bag, but not the bags in the other x-ray imaging pictures. The picture in Exhibit P61‘C’ could not be the accused’s bag, because the two pictures that is, Exhibits P61‘A’ and P61‘C’ were different, and they could be referring to two different bags. The learned judge on this point accepted the explanation of PW4 when he was recalled to explain the x-ray imaging pictures that the picture in Exhibit P61‘A’ was first scanned whilst the plastic wrapper was still intact, not removed yet. As regards the picture in Exhibit P61‘C’, the plastic wrapper was already removed and that the document bag was placed back into the bag for the second occasion of the scanning. It was because of that, the positioning of the document bag and the shape of the bag between the two pictures were different, but they were the same. [15] After having meticulously scrutinized the two pictures and also having examined the shapes and sizes of the bag and the document bag physically, the learned judge found that the two x-ray imaging pictures in fact referred to the bag and the document bag. The learned judge had also examined the document bag thoroughly and compared it with the pictures in Exhibits P61‘B’ and P61‘D’ and found that the two pictures showed the same document bag. The other 2 pictures that is, Exhibits P61‘B’ and P61‘D’ which according to learned counsel as referring to two different bags, because the bag in the picture in Exhibit P61‘D’ did not show it had a handle, whereas the picture in Exhibit P61‘B’ showed that there was a handle, were also found by the learned judge to be the pictures of the same document bag. The learned judge explained that the picture in Exhibit P61‘D’ did not show the handle because the scanning image could not capture the entire width of the document bag when it was opened flat. Upon close examination of the picture in Exhibit P61‘D’, His Lordship 13 found that one could still see a small part of the handle at both sides of the image of the document bag. [16] The accused stated that when he walked away from the inspection counter to look for his friend Jimmy, the bag was left opened. The accused implied that anything could have had happened to the bag. The learned judge was not convinced to make any inference favourable to the accused on this alleged fact. If the accused was trying to suggest that someone could have switched his purported document bag with Exhibit P22, and placed it into his bag, His Lordship opined, this meant that he was asserting someone had framed him. However, there was no supporting evidence from the accused’s defence to suggest the possibility that he was being framed. Further, the document bag was found inside the bag in the presence of the accused. If the document bag was not his, he could have informed PW4 at the first available opportunity. He could have told PW4 or other officers that all his documents were missing. But, the accused did not do so. [17] The last part of the accused’s defence alluded to the issue which concerned the CCTV footage which was not produced in court. Learned counsel contended strenuously that if it was produced in court as evidence it would confirm the accused’s version of the story as the truth. It could explain his bag was not wrapped with a blue plastic wrapper, the bag was scanned once, and that he was not brought back to the inspection counter after he returned from the parking area. The learned judge, on the defence argument on this aspect was of the opinion that the evidence of the CCTV footage was merely evidence in support of the prosecution’s case. The failure to tender the CCTV footage could not affect the prosecution’s case in establishing the accused was in possession of the incriminating drug 14 which was found concealed in the document bag which was retrieved from the bag. The evidence of PW4 and PW5 that the document bag was found in the bag was not discredited. PW7’s testimony in regard to having found the incriminating drug contained in the 2 rectangle packets which were concealed in the document bag was not shaken or seriously challenged. Based on the totality of the prosecution’s evidence the learned trial judge found that the prosecution had established the ingredients of the offence charged premising on the existing evidence that the accused was in actual possession of the incriminating drug which was found in the document bag and that the accused had, invoking the statutory presumption under section 37(da) of Act 234, committed the offence of trafficking. The learned judge in the final analysis, concluded that the defence raised a defence of denial which in law was insufficient to cast a reasonable doubt in the prosecution’s case and that on the balance of probabilities failed to rebut the presumption under section 37(da) of Act 234. Accordingly, the accused was found guilty as charged and sentenced to death. [18] Now we turn to consider the appeal. To start off, it ought to be highlighted that there was only one issue raised in the written submission of learned defence counsel which was also the only point taken in the contention of learned counsel in his oral submission before this Court. The argument at the core of the appeal as clearly described in the defence written submission concerns with the issue of the non-production before the trial court of, or the alleged failure to disclose to the defence, relevant evidence relating to CCTV footage from the airport. We will allude briefly to the points taken by learned counsel in his submission. The defence contention in essence was that the prosecution’s failure in this regard had the effect of denying the accused his right to make full answer and defence to the charge against him compromising in the result, the accused’s right to 15 a fair trial and rendering his conviction unsafe. Section 114(g) of the Evidence Act 1950 ought consequently to be invoked. [19] That brings us to the argument that the drug was not in the accused’s black document bag when he came through customs inspection as the document bag (Exhibit P22) produced in court was not his. The CCTV footage at the airport could have conclusively proved whether or not the document bag containing the impugned drug was in the accused’s bag all along when he retrieved it from the luggage carousel or whether the accused’s black document bag was switched with the document bag (Exhibit P22) seized in this case during the period when the accused had walked out of the airport leaving his bag open. We were told that there was a mound of material that would have enabled the learned judge to conclude that there was a reasonable possibility that the lines of cross-examination with the witnesses would have been different had the CCTV footage been made available by the prosecution to the defence. [20] We had considered the evidence on this aspect of the defence case very carefully. It is apparent on our careful perusal of the evidence that the first time the question in connection with the CCTV footage was raised was during the cross-examination of PW4 when he agreed with the suggestion by the defence that there was a CCTV at the arrival hall of the airport which could have recorded everything that had transpired at the relevant time. Similar answer was also given by PW6 when he was cross-examined by learned counsel on this issue. However, we think that this argument is wholly unmeritorious for it is patent from PW9’s evidence that on 25.7.2013 when he went to the office of Malaysia Airport Berhad (MAB) to view the CCTV, the images were not clear. From the CCTV recording, PW9 told the court that this ‘white guy’ was detained by a male person but he could not 16 recognize the person as the recording was not clear. Cross-examined by learned counsel on the reason the CCTV recording was not produced in court, PW9 reiterated that the images were not clear, it only showed movement but it was difficult to identify the persons who were moving as their faces could not be seen. [21] Based on the above evidence, it is extremely clear that the CCTV footage would not be of any evidential value to the prosecution in proving the offence against the accused. The evidence of PW9 that the CCTV recording was not clear remained unshaken during his cross-examination. We accept the decision of the learned judge as correct that the evidence of the CCTV footage was merely evidence in support of the prosecution’s case. In our judgment, such evidence, if adduced, will only help to strengthen the prosecution’s case which without doubt whatsoever has already been proven with overwhelming evidence. The learned judge held that based on the totality of the prosecution’s evidence, all the essential ingredients of the offence charged had been proved. The accused had actual possession of the impugned drug the amount of which far exceeded the statuary weight prescribed under section 37(da) of Act 234 and therefore, invoking the presumption under the said section 37(da) thereof, he committed the offence of trafficking in dangerous drug as specified in the charge. [22] The prosecution’s evidence considered in its entirety, would amply support the finding of a prima facie case against the accused at the close of case for the prosecution since all the elements of the offence had been successfully proven by the prosecution. The learned judge’s finding that the element of possession had been proved by the prosecution was adequately supported by the evidence of PW4 which showed that the 17 accused was seen carrying the bag which contained clothes and the document bag wherein the drug was found concealed. The particulars printed on the boarding pass (Exhibit P29) matched the information from the baggage tag which was wrapped around the handle of the bag. The accused, without any doubt, was having control and thus possession of the document bag at the material time. There was additionally the evidence that when the document bag was in the process of being scanned, the accused walked away towards the airport terminal’s exit and left the arrival hall without saying anything, running away until he reached the edge of the parking area when he surrendered himself to PW5, and that the accused looked nervous and cried when the drug was found. We accept that this evidence justified the learned judge’s conclusion that the accused had knowledge of the impugned drug. [23] The evidence of conduct is certainly relevant and in particular the evidence of the flight of the accused from the inspection counter of the airport when the document bag was in the process of being scanned and that he cried when the drug was found in itself was sufficient to draw the inference of mens rea possession. There is without question that this evidence is relevant and admissible under section 8(2) of the Evidence Act 1950 as it has direct relevance on the issue being considered, that is, the discovery of the impugned drug in the document bag found in possession of the accused. It would be useful to quote from the Evidence Act 1950 section 8(2) – “The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced 18 by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.” [24] It is apparent on reading the above provisions that the conduct of the accused in this case is relevant as it was influenced by the fact in issue or the relevant fact, that is, firstly, when the document bag was being scanned and secondly, when the impugned drug was subsequently found concealed therein. The flight of the accused and the fact that he cried are two positive acts from which the learned judge was correct to draw an inference of knowledge and thus possession of the impugned drug. His Lordship certainly could not resort to any other explanation for the conduct of the accused or draw any other inferences therefrom to render it inadmissible [see Parlan Dadeh v PP [2009] 1 CLJ 717 at page 719 and page 746 paragraph 36]. [25] But, as with other inferences which may be drawn from relevant circumstances, evidence of conduct may also be explained away by the defence. Under section 9 of the Evidence Act 1950, the onus is on the accused to explain his conduct and may be discharged even in the course of the case for the prosecution, for example, by way of cross-examination of relevant witnesses [Parlan Dadeh v PP at page 747 paragraph 36, supra]. Unfortunately for the defence, on the facts of the present case, we have no difficulty to say that the accused’s narrative could not explain as to why he started running away from the exit of the airport terminal until the edge of the parking area and, there was no evidence that Jimmy was a real person and if he was, Jimmy was not called as a witness to support the accused’s story. It was against this factual scenario that the learned judge quite clearly said that His Lordship was not satisfied that the accused had 19 explained his conduct and we would not hesitate to hold that the learned judge was justified in arriving at this conclusion. [26] The accused’s defence that we could glean from his unsworn written statement revealed that the document bag was not his. He had a bag similar to the document bag (Exhibit P22) that was seized on the night in question but his bag contained his personal documents when he left Johannesburg. He also said that the bag was never locked. Clearly, the accused was trying to suggest that someone could have switched this purported document bag with Exhibit P22 and placed it into his bag. In other words, the accused did not commit the offence with which he was charged, the case was a set up. However, as the learned judge correctly said, there was no evidence which could support the accused’s defence to suggest the reasons and the possibility that the accused was set up by someone. The document bag was found in his presence and if it was true that it was not his, the accused could have informed PW4 about it at the first available opportunity. He could have informed PW4 and other customs officers that all his documents were missing but he did not do so. In any event, we could not apprehend why would anyone, for no reasons whatsoever, set him up. We find the accused’s story to be highly fictitious and a mere fabrication to which no degree of credence ought to be attached. [27] It is interesting to note that learned counsel in his written submission argued that the CCTV evidence “could have conclusively proven whether or not P22, the document bag containing the drugs was in the appellant’s bag all along when he retrieved it from the luggage carousel (as contended by the prosecution) or whether the appellant’s document bag was switched with the document bag seized in this case, P22, in the period when the 20 appellant had walked out of the airport leaving his trolley bag open (as raised as a possibility by the defence)”. So far as the evidence showed, from the time the accused fled when the document bag was in the process of being scanned until he was brought back by PW5 to the same place, the bag was with PW4. We would observe that PW4 was never cross-examined by the defence on this line of defence and at no time was it suggested to him that he or any person switched the accused’s so-called document bag with Exhibit P22. Such failure would, in our opinion, have a serious implication on the accused’s credibility and the weight to be attached to his evidence [Siew Yoke Keong v PP [2013] 4 CLJ 149 at paragraph 46]. [28] The learned judge did consider the unsworn statement of the accused very carefully and undertake a maximum evaluation of his defence. The accused attempted to explain on his flight from the place where the document bag was in the process of being scanned by PW4 saying that he wanted to look for Jimmy who was waiting outside but he was not able to locate Jimmy. A pertinent question which immediately arose from this statement was why would he look for Jimmy when the document bag was being scanned or before the end of the scanning process and not when his bag was being scanned earlier. One thing seems very clear to us, that is that, the logical reason why he walked away and shortly thereafter ran away at that point of time was because he knew about the drug concealed in the document bag and he did so because of the impending discovery of the same. He did not, in truth, walk away to look for Jimmy. It is small wonder that the learned judge found that there was no evidence that the accused’s purported friend, Jimmy was a real person and if he was a real person, Jimmy was not called as a witness to support the accused’s story. We would in addition say that the accused 21 did not deny that he cried when the impugned drug was discovered. His unsworn statement was read out in court on 21.3.2016, whereas the evidence that he cried when the drug was discovered was given by PW7 on 28.7.2015. He was therefore fully aware of such evidence yet he did not deny it. The explanation given by the accused on the reason why he walked away was therefore wholly unreasonable and did not prove that he had no knowledge about the drug found concealed in the document bag. [29] The remaining question for our determination is whether the prosecution had contravened section 51A of the Criminal Procedure Code. It was urged by learned counsel on behalf of the accused that the prosecution did not comply with section 51A as it did not deliver or disclose the CCTV recording to the defence. Quite apart from section 51A, learned counsel submitted, the principle of fair disclosure is crucial to the fundamental rights of the accused under Articles 5(1) and 8(1) of the Federal Constitution. We now quote in full the provisions of section 51A of the Criminal Procedure Code – “Delivery of certain documents 51A. (1) The prosecution shall before the commencement of the trial deliver to the accused the following documents:

(2) Notwithstanding paragraph (c), the prosecution may not supply any fact favourable to the accused if its supply would be contrary to public interest. 22

(3) A document shall not be inadmissible in evidence merely because of non-compliance with subsection (1).

(4) The Court may exclude any document delivered after the commencement of the trial if it is shown that such delivery was so done deliberately and in bad faith.

(5) Where a document is delivered to the accused after the commencement of the trial, the Court shall allow the accused –

1. Solicitor For The Appellant - Encik Abdul Rashid Bin Ismail (En. Ooi Zen Jie bersamanya) Tetuan Rashid Zulkifil D2-5-5, Blok D, Solaris Dutamas No. 1, Jalan Dutamas 1 50480 Kuala Lumpur

2. Solicitor For The Respondent - YM Tengku Intan Suraya Binti Tengku Ismail Timbalan Pendakwa Raya Unit Perbicaraan Jabatan Peguam Negara No. 45, Persiaran Perdana Presint 4 62100 Putrajaya