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

After a trial, the appellant was found guilty, convicted and sentenced in accordance with the law. The appellant had appealed against the conviction and sentence. The facts of the case [3] On 9.11.2013 the appellant arrived at the Kuala Terengganu airport via a transit flight from Kuala Lumpur. SP4 and SP5 saw the appellant walking slowly, looking to the left and right, with hesitation and carrying a large bag (P8). SP5 followed the appellant and gave a gesture to SP4. They detained and instructed the appellant to bring the bag to a room for inspection. They found some lady garments which were not proportionate to the heavy weight of the bag. Upon a close inspection, they saw a corner of the bag which had been prised opened and cello-taped over. After prising with a screwdriver at the Page 3 of 13 said corner, they found a brown envelope. After removing the inside lining of the bag, another envelope was found. Both envelopes contained crystalline substance suspected to be dangerous drugs. The government chemist (SP3) analyzed the substance and found it contained 1669.8 grams of methamphetamine. The learned judge found the appellant to be in possession and trafficking in the said drug by invoking the presumption under section 37(da) of the Act and called upon the appellant to present her defence.

The appellant testified that she came to Malaysia upon the request of her friend by the name of Nguyen Thih Thanc Truc to look for a job and to find a suitor. She was asked to travel to India first before going to Malaysia and had stayed at her friend's house in India. She said the wheels on her trolley bag were damaged and her friend brought her to buy a new luggage bag (P8). One day before departure to Malaysia, her friend told her that the new bag had a problem and had to be repaired. She said the bag was returned to her on the night before she left for Malaysia. The appellant said she had no knowledge of the dangerous drugs found in the bag. The Appellant’s submission [5] The appellant submitted that the learned High Court Judge had erred in finding that the appellant had possession and knowledge of the drugs which were found in the bag. It was submitted that since the appellant was carrying the bag at the airport, custody and control of the bag was not an issue in this appeal. However, the question was whether the appellant had knowledge of the drugs in the bag. Page 4 of 13 [6] The appellant submitted that she was travelling to Terengganu for the first time and did not know the Malay or English language and could not read the signs at the airport. The appellant contended that her friend would be waiting for her at the Kuala Terengganu Airport but she could not contact her friend because of her low cellphone battery. It was submitted that when SP4 and SP5 introduced themselves as police, she looked normal, not surprised but calm and followed their instructions. It was submitted that her demeanour of looking hesitant was consistent with what SP5 had described. Unfortunately the learned High Court Judge failed to consider these facts in drawing the inference that the appellant had knowledge because of her demeanour. If these were taken into account, the learned Judge would have drawn some other inferences that she had no knowledge of the drugs.

It was submitted that the learned High Court Judge failed to consider that the appellant was simply an innocent carrier. The appellant had explained that the bag was given to her to replace her damaged bag before leaving for Malaysia. It was submitted that the drugs were concealed so thoroughly that only after careful checks could the drugs be found. It was submitted that SP4 used the screwdriver to open the compartment used to hide the drugs inside the bag. It was submitted that she only carried out an ordinary inspection of the bag when the bag was handed to her and she did not suspect anything nor did she suspect that her friend would conceal the drugs in the bag. The appellant submitted that her friend was the real trafficker and she was an innocent carrier. It was submitted that the prosecution had failed to prove its case beyond reasonable doubt Page 5 of 13 against the appellant and that she should be acquitted and discharged. The Prosecution’s submission [8] The learned Judge had found that the appellant had the knowledge and possession of the dangerous drugs found in the bag and correctly invoked the presumption under section 37 (da) of the Act that the appellant was trafficking in the drugs and based on the large quantity of drugs found to be in the possession of the appellant.

The learned Judge was correct in rejecting the appellant's defence and found that the character Nguyen Thih Thanh Truc was a mere "fictitious character" and no `Alcontara Notice’ was given by the appellant. Further, no information was provided regarding the address of the Nguyen either in Vietnam or in India.

The learned Judge also found that the appellant was not a innocent carrier because the doctrine of wilfull blindness was applicable to her when the appellant did not check the contents of the bag and she had enough time and opportunity to do so. The manner in which the drugs were hidden and the weight of the bag was not proportionate to the contents of her garments. Our decision [11] On evidence, the appellant traveled from Vietnam via India, on transit at KLIA, and arrived at the Kuala Terengganu airport on 9.11.2013 at about 9.10 a.m. where she was seen carrying the bag (P8) exiting the airport terminal building. She was detained by SP4 and SP5 and the drugs were found concealed in the bag. The learned Page 6 of 13 Judge found the appellant to be in custody and control of the bag and that based on the drugs found concealed in the bag, which she took from India to Malaysia, that she had knowledge of and the nature of the drugs in the bag. The learned Judge found that the appellant was in possession of the drugs and invoked the presumption under section 37(da) of the Act that she was trafficking in the drugs. After hearing the defence, the learned judge found that the appellant had failed to rebut the presumption of trafficking and failed to raise any reasonable doubt in the prosecution’s case. The appellant was then convicted and sentenced according with the law.

On the facts, it was not in dispute that the appellant had custody and control of the bag which contained the drugs. Counsel for the appellant had conceded as much that the appellant was carrying the bag at the airport and had custody and control of the bag and that this was not an issue in the appeal.

However, the appellant submitted that she had no knowledge of the drugs which were well-concealed in the bag which was only given to her by her friend on the night of her departure from India to KLIA. The appellant contended that she was an innocent carrier and that her friend was the real trafficker of the drugs. We shall deal with these issues.

In Venkatesan Chinnasami v Public Prosecutor [2011] 1 LNS 1736, the Court of Appeal put it aptly that a defence of innocent carrier referred to a state of affairs where an accused person acknowledged carrying a bag containing the drugs but disputed having knowledge of the drugs and whether the defence would succeed or not would very Page 7 of 13 much depend on the facts of each case. This is a matter that falls within the realm of the trial judge and an appellate court will be slow to interfere with the finding of facts of the trial judge unless it is plainly wrong.

It has been held that ignorance simpliciter is not sufficient to let an accused person off the hook as otherwise every other accused person will invoke that defence. It needs more than that. Ignorance may be a good defence when there is no reason for suspicion and no right or opportunity for examination. The defence of innocent carrier must necessarily bring in the concept of wilful blindness: Munuswamy Sundar Raj v Public Prosecutor [2015] 6 MLJ 214.

The evidence showed that on 16.10.2013 the appellant left Vietnam for India where she stayed with her friend. She left Delhi on 8.11.2013, arriving at KLIA on 9.11.2013 at about 7.00 a.m. on transit, and arriving at the Kuala Terengganu airport on the same day at about 9.10 a.m. where she was arrested with the bag and the drugs (see P27(b)). According to SP2, the bag was checked in from Delhi via KLIA to Kuala Terengganu. There was no allegation and no evidence that the bag was tampered with during the journey.

We referred to the testimony of SP4 who testified that the appellant was the last person from the flight to leave the terminal carrying the bag, after the other passengers had left. She looked hesitant, looking left and right. He, together with SP5, stopped the appellant, checked her passport and instructed her to follow them to a room to inspect her bag. Since she had a Vietnamese passport, SP4 decided to speak in English and was not sure whether she could speak Page 8 of 13 English but the appellant was able to follow their instructions. He instructed her to open the bag for inspection. He saw some female garments in the bag and took them out. He lifted the bag, it felt heavy and he suspected it contained something else because the garments were not heavy. He made a visual inspection of the inside of the bag which did not alert him of anything suspicious. He then made a more detailed examination of the interior of the bag. At a corner, at the bottom of the bag, he saw as if it was damaged and taped over. He lifted the tape and used a screw-driver to prise open that part of the bag and saw what looked like a brown envelope. He priced open further and removed the envelope which was covered with brown tape. He then found and removed a second similar envelope. On inspection, they contained crystalline substance which SP3 found to be methamphetamine. These facts were not in dispute.

The appellant denied that the drugs belonged to her and she had no knowledge of the drugs which were found in the bag. She said the bag was only given to her by her friend on the night she left for KLIA. She only had a quick look of the interior of the bag and she did not suspect anything because Nguyen Thih Thanh Truc was her good friend who would meet her when she arrived at the Kuala Terengganu airport. She submitted that she was not able to contact this friend upon arrival because of low phone battery. It was submitted that she was in no position to know of the drugs which were so well-concealed unless she used a screwdriver. The appellant relied on the case of PP v Li Qian [2018] 7 CLJ 557 to support her contention that she was an innocent carrier and not the trafficker. Page 9 of 13 [19] We were referred to several cases on the defence of innocent carrier. Each case must be read based on the facts of each case. In PP v Li Qian (supra), the drugs were completely hidden behind the metal pull of the luggage which were not noticeable to her even if the luggage was opened. The trial judge found her a witness of truth and her evidence to be credible. Also she was not cross-examined if she had any suspicion or made any attempt to check the luggage carefully. The trial judge found that the respondent had succeeded in her defence and was acquitted and discharged. The appeal to the Court of Appeal was dismissed. In Public Prosecutor v Herlina Purnama Sari [2016] 2 MLJ 724, the accused claimed that she worked for an Indonesian woman by the name of Vivian who asked her to go to meet Vivian’s friend (Jo) to collect some things before proceeding to Laos. She claimed she was given her new luggage and a plastic bag to be given to Jo’s friend in Laos. Without any suspicion, she put the plastic bag inside the luggage. The evidence showed that Vivian was arrested by the Indonesian authority in connection with a drug related offence. The trial judge found that her defence was neither a bare denial nor an afterthought which had been put to the prosecution’s witnesses. The prosecution’s appeal was dismissed. Similarly, in Public Prosecutor v Siti Nurhidayah [2019] 1 MLJ 794, the respondent in that case claimed that she brought the bag on the instruction of her friend Tina (Titin Sukmawati) who later testified as DW2 that she was the Tina referred to. The trial judge found that she had raised a reasonable doubt in the prosecution’s case and acquitted and discharged her. The prosecution’s appeal was dismissed.

However, many were confused or misconstrued the Radhi direction, that it was about who is the real trafficker. In Public Page 10 of 13 Prosecutor v Siti Nurhidayah (supra), the Court of Appeal referred to the decision of Gopal Sri Ram JCA (as he then was) in Yee Wen Chin v Public Prosecutor [2008] 6 MLJ 222 CA which explained the directions given in Mohamad Radhi bin Yaakob v Public Prosecutor [1991] 3 MLJ 169, relying on his own decision in Sochima Okaye v Public Prosecutor [1995] 1 MLJ 538, where it was held that in that case (Radhi’s case) it was ‘an authority for the proposition that a person charged with trafficking was entitled to an acquittal on that charge by showing that he was a mere possessor of the drugs whilst another was the true trafficker. Whenever such a defence is taken two separate exercises must be carried out by the trial judge. He must first determine as a fact whether that other is a real person or a mere figment of the accused’s imagination invented for the purpose of the trial. Next, if he finds that other person to be real the judge must then determine whether that other person is the real trafficker. This is called the Radhi direction and must be administered by a court unto itself when such a defence is taken’.

The apex court in Ghasem Hozouri Hassan v PP [2018] 6 CLJ 133 had ruled that both the above cases are instances where the Court of Appeal had misconstrued what the then Supreme Court meant by separate exercise. The apex court was of the view that the separate exercise is surely not an exercise to determine the real trafficker, but as stated on Mohamad Radhi, the separate exercise is an exercise by the court to consider whether on a balance of probabilities on the evidence, the defence has rebutted the statutory presumption of trafficking as a separate exercise even though the court is satisfied on a balance that the presumption of possession has not been rebutted. Therefore the case of Public Prosecutor v Siti Nurhidayah (supra) must Page 11 of 13 be read in the light of the decision in Ghasem Hozouri Hassan v PP (supra).

Coming back to the facts of this case, SP4 after finding that the few garments in the bag were not proportionate to the weight of the bag, he became suspicious and carried out a more detailed examination of the bag where he saw some damage taped over at a corner of the bottom of the bag. He lifted the tape and used the screwdriver to prise it open and discovered the envelopes containing the drugs. On the evidence that the appellant flew from India via KLIA to Kuala Terengganu with the bag containing the drugs, the learned Judge was entitled to infer that she had the knowledge and the nature of the drugs in the bag. If the appellant had carried out a more careful examination, she would have seen the taped over damage to the inside of the bag and this would have alerted her suspicion.

The appellant explained that the wheels to her trolley bag were damaged and her friend took her to buy a new bag. She inspected the bag before she bought it and did not complain of any damage and there should not be any damage to the inside of the new bag. She said it was her friend who told her there was a problem with the new bag and took it for repair. She said she managed to have a quick inspection because the new bag was only given to her on the night before departure for KLIA. She did not say what time and how much time before she departed for KLIA. Looking at her narrative, her explanations did not tally. She had the opportunity of examination but she closed her eyes to the taped over damage in the new bag and should have asked her friend about it. She did not. If a person deliberately shuts his/her eyes to the obvious, because he/she does Page 12 of 13 not want to know, he/she is taken to know: as per Professor Glanville Williams cited in Munuswamy Sundar Raj v PP (supra).

Further, she said her friend asked her to come to Kuala Terengganu, Malaysia to look for work and to find a suitor and that this friend would meet her at the airport upon her arrival. She said she could not contact her friend due to the telephone’s low battery. However, she did not ask SP4 or SP5 to try to contact her friend and her friend would have turned up anyway if what she said was true. The appellant did not show nor produce any photograph of her friend or her telephone number to SP4 and SP5. These were not shown in court (see D33). These considerations raised questions about her friend Nguyen Thih Thanh Truc.

The appellant supposedly stayed with this friend in India who gave her the bag the night before her departure for KLIA and was supposed to meet her upon her arrival at the Kuala Terengganu airport. This could not be possible unless her friend took an earlier flight from India in order to meet her in Kuala Terengganu or unless they were on the same flight which again would contradict her explanation that this friend would meet her at the Kuala Terengganu airport. The name of Nguyen Thih Thanh Truc was not in the passenger list from Delhi to KLIA (see D9).

The evidence showed that the appellant had bought her ticket departing from KLIA to Ho Chi Minh City on 14.11.2013 (see P27(a)). This meant she was in the country for only six days, from 9th to 14th November, 2013, and could not be looking for work nor getting married in the country. She did not have any work permit and did not tender Page 13 of 13 evidence that she was getting married in the country. Again her explanations did not tally.

All these inconsistencies pointed to her not being truthful about her journey to Kuala Terengganu or to Malaysia. She could have flown directly from Ho Chi Minh City to KLIA instead of via India. Of course according to her she was to meet with this friend in India who gave her the bag. The learned Judge found Nguyen Thih Thanh Truc to be a fictitious person and that the appellant was not credible. These were findings of facts. The learned Judge also found that her explanations did not rebut the presumption nor raised any reasonable doubt in the prosecution’s case and that the prosecution had proven its case against the appellant under the charge beyond reasonable doubt.

On the evidence before us, Justice Umi Kalthum Binti Abdul Majid and I by a majority decision, found that the learned Judge did not err and there was no appealable error which required appellate intervention. We were of the view that the conviction was safe and there were no merits in the appeal. The appeal was dismissed and we affirmed the order of the High Court. Dated: 14th June, 2019 signed STEPHEN CHUNG HIAN GUAN (delivering the majority judgment) Court of Appeal Judge Putrajaya For Appellant : Ghazali bin Ismail Messrs. Ghazali Ismail & Co For Respondent : DPP Dhiya Syazwani Izyan binti Mohd Akhir Attorney General Chambers