Tran Thi Tat v Public Prosecutor (T-05(M)-146-04/2017 (Vnm))

The appellant is a Vietnamese national. She was charged at the Kuala Terengganu High Court with trafficking in dangerous drugs, namely, 1669.8 grams of methamphetamine which was an offence under s. 39B(1)(a) of the Dangerous Drugs Act 1952 (“the Act”) and punishable under s. 39B(2) of the same Act. The offence was said to be committed at the Domestic Arrival Hall of Sultan Mahmud Airport in Kuala Terengganu on 9 November 2013.

After a trial, the appellant was found guilty, convicted and sentenced to death by the High Court on 27 March 2017. The appellant then filed this appeal.

The appeal was heard on 19 April 2019. At the conclusion of the submissions, the appeal was dismissed by a majority decision. Although I was in agreement with my learned sister and brother on most of the issues raised, I had, with respect, serious reservations on whether the learned trial Judge was right that the prosecution had established the element of mens rea possession. I am therefore compelled to provide reasons for my dissenting view which now follow. 3

The facts leading to the arrest of the appellant are set out in the majority judgment of Stephen Chung JCA and I am grateful for not having to repeat the same. In essence, the appellant was arrested at the Kuala Terengganu airport after she was found to have in her luggage bag dangerous drugs later ascertained by the chemist to be 1669.8 grams of methamphetamine. The drugs were found in a corner of bag which appeared to have been opened and then sealed back with tape. It was SP4 who, after a detailed examination of the bag, found some damage at the corner of the bag. He then used a screwdriver to prise open the taped over corner and discovered the envelopes with the incriminating drugs inside.

The learned trial Judge correctly found that the appellant had custody and control of the bag. However, in order to prove knowledge, the learned Judge appeared to rely on inferences from the surrounding circumstances to conclude that the appellant had knowledge or in other words mens rea possession. The learned Judge then invoked the presumption of trafficking under s. 37 (da) of the Act based on the quantity of drugs and considered 4 that a prima facie case had been established. The appellant was then ordered to enter her defence.

This finding of prima facie was assailed by learned counsel for the appellant. It was argued that there was insufficient direct or circumstantial evidence for the learned Judge to conclude that the appellant had knowledge.

In this respect, the learned Judge appeared to rely on the conduct of the appellant to arrive at the conclusion that the appellant had knowledge. This is how the learned Judge put it (at p. 25 Appeal Record, Vol. 1): “32. Berkaitan dengan elemen pengetahuan jelas bahawa semasa OKT keluar beliau dalam keadaan seperti teragak-agak dan sentiasa melihat ke kiri dan ke kanan. Ini menunjukkan OKT sememangnya mengetahui di dalam penjagaannya dan kawalannya beg [P8] mengandungi dadah.”

However, this view of the appellant’s conduct was at odds with the testimony of SP4 who told the court that at the time of her detention, the 5 appellant had behaved normally, was not alarmed and was calm. The evidence of SP4 at the trial was as follows (Appeal Record Vol. 1 at p. 138): “S: Bila kamu cakap pada sasaran macam itu kamu nampak atau tidak apa reaksi sasaran suspek tersebut? J: Saya dapati sasaran dalam keadaan biasa, tidak terkejut apa-apa, tenang dan ikut saya arahankan.”

It was, therefore, at least clear that two inferences could be made as to the conduct of the appellant at the material time of her arrest to show her knowledge of the impugned drugs. There is no question that under the law, both prior and subsequent conduct to the offence are relevant under s. 8(2) of the Evidence Act 1950. In such a case, it is trite law that where there are two or more inferences that could be made, the inference most favourable to an accused person must be adopted (see Ibrahim Mohamad & Anor v PP [2011] 4 CLJ 113; PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457).

In the circumstances, the finding of the learned Judge on mens rea possession through inferences cannot be sustained. It was significant that the impugned drugs were not visible to the naked eye. They were well concealed and were only found after a concerted effort by SP4 and that too after using a screwdriver to prise open one corner of the bag. It could not be 6 said, by any stretch, that the appellant had knowledge of the drugs. Merely having custody and control does not equate to knowledge. In fact, the conduct of the appellant in remaining calm and fully cooperative with the police only served to disprove knowledge on her part. Without knowledge, the prosecution had failed to establish the ingredient of mens rea possession.

In my view, the learned Judge was in grave error when he evaluated the evidence of the prosecution and made the inference of knowledge based on the appellant’s conduct. Now, the learned Judge was fully aware that when custody and control is established, under s. 37(d) of the Act, an accused may be deemed to have in his possession the drug and to have known the nature and the nature of such drug until the contrary is proved (see para 30 of the Grounds of Judgment). Nevertheless, the presumption of possession and knowledge was not applied probably for the reason that the presumption of trafficking under s. 37(da) of the Act was also applied and there was probably an awareness of the rule against the application of double presumptions on the part of the learned Judge (at that time Muhammed bin Hassan v PP [1998] 2 CLJ 170 was applicable). 7

There was also no submission by the prosecution that possession and knowledge was established through the invocation of the presumption under s. 37(d) of the Act. Instead, before this Court, they dug in their heels to maintain their position that knowledge had been proved by inferences from the surrounding circumstances and argued that the learned Judge was right in his finding.

Be that as it may, there was more than sufficient evidence that the appellant was in custody and control of the bag which contained the drugs which formed the subject matter of the charge. In such a case, the law provides vide s. 37(d) of the Act that where the fact of custody and control is proved, possession and knowledge of the dangerous drug will be presumed. A prima facie case of presumed possession would then be established as opposed to actual possession which is the parlance used in some judgments. For the reasons given by my learned brother Stephen Chung JCA, the finding of possession was not displaced by the evidence of the appellant such that possession was proved beyond reasonable doubt.

As it is now settled through the recent judgment of the Federal Court in Alma Nudo Atenza v PP & Another Appeal [2019] 5 CLJ 780 that the 8 presumption of trafficking cannot be applied together with the presumption of possession, it will not be permissible to convict the appellant on the charge of trafficking by use of the presumption as was done by the learned trial Judge in the present case.

Given the circumstances, and for the reasons given, there were merits in the appeal and appellate intervention was warranted. The conviction on the charge for trafficking was unsafe. Accordingly, the appeal was allowed. The conviction and sentence passed by the High Court was set aside and substituted with conviction for possession under s. 12(1) and punishable under s. 39A(2) of the Act. Dated: 08 July 2019 Signed (HARMINDAR SINGH DHALIWAL) Judge Court of Appeal Malaysia 9 Counsel: For the Appellant: Ghazali bin Ismail (M/s Ghazali Ismail & Co) For the Respondent: Dhiya Syazwani Izyan Binti Mohd Akhir Timbalan Pendakwa Raya Jabatan Peguam Negara Malaysia