- v Ho Yee Onn (S-05(M)-331-06/2018)

23.5.2016 the appellant was brought to Wisma Kastam and the Forensics team came to Cawangan Siasatan, Kota Kinabalu to process the ‘finger dusting lifting on the exhibits seized. Fingerprint was found on the plastic 8 packet branded “GUANYINWANG” marked A3(a) & A4(a) and on the packet of “snek mi” but the result proved negative due to lacking in property (character).

26.5.2016 exhibits P9, P12, P15, P18, P21 & P24 were placed inside a box labelled “F” [P8] and sent to PW5 at the Chemistry Department for drug analysis. A receipt [P37] was received. The result proved positive containing 4396.7 grams of Methamphetamine. PW4 conducted the analysis and the chemist report [P28] dated 29.9.2016 was tendered at trial. The sending and receiving of P33 was without incident, they were said to be sealed by the respective departments and were intact.

26.5.2016 at about 4.33 p.m. an envelope labelled “H” and a box labelled “G” [P54] were sent to Pegawai Sains at the Chemistry Department for DNA analysis. P54 and the DNA report [P53] were received on 12.10.2016. All exhibits were later sent to “Stor Bahagian Penguatkuasaan, Sepanggar” and taken out by PW7 to be brought to Court. [21] These were P7’s investigations into the character of Woo Kah Paul [Woo] and the role he played in the instant case: 9 i. Upon checking the manifest as well as the baggage list with Air Asia AK5112, PW7 found that such a person existed. Woo however did not make any claim for P33 at the Lost & Found counter. ii. On 22.5.2016, PW7 sought the assistance of Jabatan Imigresen Malaysia to assist by obstructing Woo from leaving Sabah, and to obtain details of his movement in and out of Sabah. Jabatan Imigresen responded with the information that there was no record of Woo leaving or exiting Sabah since the last time he landed in Sabah, that is, on 21.5.2016. iii. PW7 applied to Malaysia Airports Berhad (MAB) for a copy of the CCTV recording on 21.5.2016 at both KKIA and KLIA, T2. iv. PW7 also applied to Cyber Security Malaysia to analyze the appellant’s mobile phone for any information that may assist in the investigations. This proved negative. v. PW7 also applied to Jabatan Pendaftaran Negara for Woo’s status and latest address. The department’s reply [P56] revealed an address at Taman Orkid, Cheras, Selangor which upon investigation was found to be a non-existent address. 10 Findings of the trial Court [22] At the end of the prosecution’s case, the learned trial Judge applied the law on double presumption under section 37A, that both sections 37(d) and 37(da) of the Dangerous Drugs Act 1952 may be relied on by the prosecution. However, before the two presumptions may be triggered, the prosecution had to adduce “concrete facts” and prove its case beyond reasonable doubt that the appellant had custody and control of the drugs in question. [23] On the “concrete facts” adduced by the prosecution, the learned judge invoked the presumption under section 37(d) of the Act - that the appellant is deemed to have in his possession the impugned drugs and to have known the nature of such drugs until the contrary is proven after accepting the following evidence. [24] First, the learned judge accepted the evidence of the chemist [PW4] and found the evidence not inherently incredible, that the drugs seized was the type, nature and weight as testified by PW4 and as set out in his report [P28]. [25] As for the element of possession, the learned judge held that the prosecution was entitled to rely on the presumption of possession and knowledge under section 37(d) of the Act, that the prosecution need only establish positive evidence that the appellant had custody and control over P33 at the material time. Therefore, it was presumed that the appellant was 11 in possession of the impugned drugs P9, P12, P15, P18, P21 and P24 (transparent packet containing crystalline substance labelled A3(b) to A8(b) and that the appellant knew the nature of the impugned drugs contained inside those exhibits. [26] The learned judge found that the appellant had direct custody and control over P33 at the material time because– i. the appellant was alone from the time he stepped onto the escalator at the baggage reclaim area till the time he was stopped by PW2; ii. PW1 had observed the appellant picking up P33 from carousel D, placing P33 on the floor, checking and comparing the luggage tag [P47] of P33 with the cut portion of the boarding pass [P7] that he held in his hand; placing P33 thereafter on a trolley and proceeding to walk and push the trolley towards the security clearance area; iii. that the appellant’s response of having taken P33 mistakenly as it looked similar to his was not truthful in view of PW1’s observations as stated above. [27] On the matter of knowledge, the learned judge found from the facts coupled with the behavior of the appellant as described by the prosecution witnesses implied that the appellant had knowledge of the presence of P9, P12, P15, P18, P21 and P24 (transparent packet containing crystalline 12 substance labelled A3(b) to A8(b) found inside P33. The inference was imported as the appellant had no reason to go to carousel D since he did not check in any luggage; yet, he did the same thus inferring that P33 belonged to him. The appellant had conveniently changed his story to one about P33 belonging to Woo and hiding behind the defence of “innocent carrier” when his modus was found out. [28] Her Ladyship was of the view that the appellant had devised a clever scheme and modus to evade detection and to exculpate himself should he be found out. According to the learned judge, the appellant had no reason to go through the charade of checking P46 against P7 when he already knew that the two did not match. Lastly, Her Ladyship noted that the appellant’s conduct was suspicious as testified by PW2, that the appellant looked nervous and that his hands were shivering when he was asked to open P33; that the appellant sat silently with a pale face when he was taken the CPP’s office. [29] The learned judge went on to further presume that the appellant is trafficking under section 37(da) of the Act in the light of the weight of the drugs recovered from the appellant, and because the drugs were packed in such a way to avoid detection by placing the drugs inside a tea packet as if the package contained tea produce. Consequently, the learned judge found that the prosecution had proven a prima facie case against the appellant as per the charge and that the presumptions had not been rebutted. The appellant was then ordered to enter his defence on the charge preferred against him. 13 Defence case [30] In essence, the appellant’s defence is that P33 did not belong to him but to Woo. The appellant first met Woo 3 to 4 months earlier when Woo came to Kuala Lumpur looking for car accessories. The appellant himself who hails from Miri, Sarawak was working as a mechanic before his arrest. Woo had told the appellant that he worked as a car accessories fitter. The day before he left for Kota Kinabalu, he mentioned to Woo that he was leaving for Kota Kinabalu and Woo decided to follow him without telling him why. The appellant was in Kota Kinabalu looking for car accessories upon his father’s request; his father wanted him to look for Isuzu engine spare parts to be sent to Sarawak. [31] Although both of them did not check in or went through the immigration counter together, they sat next to each other on the flight. The appellant claimed that they did not have any conversation with each other as he slept throughout the flight. As for luggage, he did not check in any. However, when he was on the way out of KKIA, he had stopped and had entered the toilet when he received a call from Woo. Woo told him that he had forgotten to reclaim his box (P33) at the conveyor belt and Woo had asked him for a favour to pick up the same for him. Woo told him that he could not return to the “reclaim baggage area” because he had already come out of the Arrival Exit and that he would not be allowed to re-enter. Woo described the box to him and had told him that the box contained dried meat. 14 [32] And, so, when the Customs officer had asked him about the contents of P33, he had replied that it contained “eatery items” and had thus agreed to open the box with the knife provided by the Customs officer when asked to by the officer. According to him, the luggage tag was still attached to the box (P33) when he carried it to the scanner machine. [33] As for the contents of P33 when P33 was opened, the appellant claimed that he had informed the Customs officer that he wanted to call Woo. Instead of allowing him to do so, the Customs officer grabbed and seized his hand phone. He had also informed the officer that Woo was outside the Arrival Hall, waiting for him. This was also ignored and the officer did not go out to look for Woo. Findings of the trial judge [34] At the conclusion of trial, the learned judge found the prosecution witnesses to be honest and credible who had withstood vigorous cross-examination by a very experienced and competent counsel; that they were members of law enforcement agencies who did not know the appellant or bear ill-will towards him, and that they were merely discharging their duties. By comparison, the learned judge found the defence to “be highly improbable” for the following reasons:

28.1 Although Woo was not a fictitious character, the Court found– 15 i. the appellant “giving mixed signal as to their relationship”; and that the appellant was “coy about his relationship with Woo so as to delude the authorities to conclude that they formed common intention to traffic the subject matter in this case”; and ii. that in actual fact, both Woo and the appellant had intentionally planned the sequences of the incident (as disclosed at the prima facie stage) so as to fool the authorities but for the unsuspecting “rover” (PW1) and non-fool proof of their plan. [35] The learned judge thus found that the defence had failed to rebut the presumption on a balance of probabilities and to raise a reasonable doubt on the prosecution case. The appellant was thus convicted and sentenced to death; hence this appeal. The appeal [36] Learned counsel for the appellant canvassed five grounds of appeal before us: i. that the learned judge had breached the double presumption rule whereby she had invoked both presumptions under sections 37(d) and (da) of the Dangerous Drugs Act 1952 to hold at the end of the prosecution case that the appellant had possession and was trafficking in the drugs; 16 ii. that the learned judge had misdirected herself when she made uncertain findings on the elements of possession and trafficking thereby prejudicing the appellant; iii. that the learned judge had erred in law and in fact in respect of the element of common intention when Her Ladyship did not make a finding at the end of the prosecution case on whether the appellant had common intention with Woo to traffic the drugs; and when there was no evidence of common intention adduced by the prosecution at the end of the prosecution case; iv. that the learned judge had misdirected herself when she failed to consider and appreciate the appellant’s defence at the end of the trial according to trite law; and v. that the learned judge had misdirected herself when she failed to consider at the end of the trial as to whether the appellant had rebutted the presumption of possession under section 37(d) of the Act or alternatively the presumption of trafficking under section 37(da) of the Act. [37] The Federal Court recently in the decision of Alma Nudo Atenza v PP [2019] 5 CLJ 780 declared that section 37A of the Dangerous Drugs Act 1952 to be unconstitutional. In their written submissions, learned DPP contended that the Federal Court’s decision has no application since the High Court decision under consideration was decided before the Federal Court rendered 17 its decision. At the hearing of this appeal, learned DPP conceded that the decision of the learned judge that the appellant was guilty as charged was therefore erroneous, unsafe and ought to be set aside, in view of the invocation of double presumption against the appellant under section 37(d) and section 37 (da) of the Act. [38] However, the learned DPP urged this Court to reduce the charge to one of a lesser offence of possession under section 39A(2) of the Act, to find the appellant guilty on this lesser charge and to sentence him to a term of imprisonment between 20 to 25 years in view of the weight of the drugs. Learned DPP relied now on the single presumption under section 37(d) as laid down in Muhammed bin Hassan v PP [1998] 2 MLJ 273. [39] We declined. [40] First, on the matter of the Federal Court decision in Alma Nudo Atenza v PP. The learned judge had indeed invoked both presumptions under section 37(d) and (da) of the Act. We are of the firm view that the Federal Court decision applies to the present appeal and the concession of the learned DPP supports this conclusion. We are obliged to apply the law as it stands and as decided by the apex Court; it is not a matter of retrospective effect but an application of the law as it stands to all pending proceedings. The instant appeal remains a pending proceeding for so long as it is still processing through the appellate process and is thus subject to the rigours of inter alia the doctrine of stare decisis and the principle of prospective overruling. See Veheng Global Traders Sdn Bhd v AmGeneral Insurance (formerly known as Kurnia Insurance (M) Bhd) & Another appeal [2019] 18 7 CLJ 687; Ling Peek Hoe & Another v Ding Siew Ching & Another Appeal [2017] 5 MLJ 385; Public Prosecutor v Dato Yap Peng [1987] 2 MLJ 311. On this ground alone, the appeal must be allowed and the conviction and sentence be set aside. [41] We add that the learned judge had erred in the deployment of the terms “actual possession”, “carrying” and “transporting” in the manner as submitted by learned counsel for the appellant thereby causing prejudice to the appellant. The learned judge had made inconsistent findings on possession and trafficking, using the terms interchangeably to the prejudice of the appellant. The law requires the trial judge to make definitive and certain findings on the element of possession and trafficking at the end of prosecution case [see Seyedalireza Seyedhedayatollah Eheshamiardestani v PP [2014] 6 MLJ 408; Saied Reza Mohammadi Mohammad v PP [2016] 4 MLJ 22; Felix King v PP [2019] 1 MLJ 243 as this impacts on the evidential burden that has to be discharged by the appellant at the end of the trial. [42] As for the alternative charge, we are obliged to nevertheless consider the defence of innocent carrier in the facts and circumstances as relied on by the appellant. Having done so, we unanimously, found from the totality of evidence that the defence of innocent carrier had been successfully established on the facts and law by the appellant thus not only rebutting the presumption under section 37(d) relied on by the prosecution but successfully demolished the prosecution’s case. Under the circumstances, not only is the conviction of the appellant under the original charge unsafe, 19 so would be the alternative charge now urged upon us by the prosecution. These are our reasons. [43] In our mind is the role played by Woo, a matter which is directly related and relevant to the defence of innocent carrier. Having considered the reasons of the learned judge, we find that the learned judge had in fact failed to deal with this defence at the end of trial, as she was required in law to do. All that the learned judge did was to disbelieve the appellant, suspecting that the appellant was hiding his real relationship with Woo. Having called for the appellant’s defence, it was the trial judge’s duty to evaluate that defence of innocent carrier to see if there was in fact evidence to support that defence. What the learned judge did instead was to focus on the issue of common intention to the exclusion of consideration of this defence. We find that the learned judge had erroneously failed in that regard occasioning thereby a miscarriage of justice which we are obliged to put right. [44] The defence of “innocent carrier” was explained in Munuswamy Sundar Raj v PP [2015] 6 MLJ 214 by the Federal Court in the following terms: A defence of innocent carrier refers to a state of affairs where an accused person acknowledges carrying, for example, a bag or a box as in the case before us, containing the dangerous drugs but disputes having knowledge of the drugs. Whether it will succeed or not would very much depend on the facts of each case. 20 [45] Since the defence was that he was an innocent carrier, the learned judge was obliged to consider the issue of deliberate action and whether there was wilful blindness – see Pendakwa Raya v Herlina Purnama Puri [2016] MLJU 1824. In the present appeal, the learned judge was required to consider whether the appellant was truly innocent or was he being wilfully blind to the realities around him. This defence of innocent carrier refers to a state of affairs or a set of factual circumstances where the appellant acknowledges that he was carrying P33 or has explained how he has come to be carrying P33, but has denied knowledge of the drugs found in P33. In the present appeal, the learned judge was required to examine the full circumstances to see if the defence has been borne out by the evidence led and relied on by both the prosecution and the appellant, and that the appellant had not been willfully blind. The amount of drugs recovered does not ipso facto deprive the appellant of this defence – see the Federal Court decision in Soorya Kumar a/l Narayanan & Anor v Public Prosecutor [2013] 1 MLJ 11. [46] Given that the existence of Woo is not in doubt, that the prosecution had accepted that this individual exists, and that from their inquiries Woo is still in Sabah or rather has not left Sabah, it must surely mean that Woo traveled with the appellant as claimed by the appellant. Since Woo was on the same flight as the appellant, this must also mean that he had landed in KKIA as did the appellant, and had traversed the same areas of KKIA as the appellant, save that he did not pick up his box [P33] which he had checked in at KLIA2, and which according to the appellant, Woo had sought his favour to pick up for him for the reasons relied on by the appellant. 21 [47] The evidence shows that the appellant had made known the existence of Woo at the earliest opportunity and had done so repeatedly. He had Woo’s hand phone number on his own hand phone and had requested to call Woo, which was refused. No explanation was proffered for this refusal. He had not only informed PW2 but also PW6 that P33 belonged to Woo and that Woo was waiting outside at the arrival hall for P33. The appellant had further described Woo, explaining that he was wearing a black long sleeved T-shirt with the number 9 on the right shoulder. Despite being told, none of the Customs officers checked out the appellant’s explanation, especially to look for Woo. This is confirmed by the evidence of PW2, PW6 [see pages 50 to 54, 56 and 57 in the records of appeal]. [48] The appellant’s flight landed at 3.40 p.m. in the afternoon and it was not until 6.25 p.m. that the appellant was brought to Wisma Kastam, Kota Kinabalu and at 12.30 a.m. that the investigations were handed over to PW7. The time lapse and the multiple occasions where the appellant raised the matter of Woo clearly indicate that the Customs officers were aware very early on of the existence of Woo and had ample opportunity to verify the appellant’s claim, yet failed to do so with no explanation or reasonable explanation given. In fact, this trail of relevant evidence was not investigated till some 4 months later [see pages 144 to 173 of the record of appeal], long after it had gone quite cold. Thus, learned DPP’s submission that the appellant had only raised the matter of Woo somewhat late is, as we can see, quite clearly not supported at all by the evidence; that it was the ineptness of the investigation that is belated and wanting, and for which the appellant cannot be blamed, worse to be found guilty as charged. 22 [49] The learned judge failed to consider this vital factor; that the presence of a third person other than the appellant was simply not verified; and this is highly relevant to the defence of innocent carrier as relied on by the appellant. Had these pieces of evidence been considered and evaluated as we have now done, Her Ladyship would have found the appellant’s defence both credible and probable. Although the prosecution witnesses had each recounted the events on that fateful afternoon, none of them explained or could explain why they did not look for Woo, especially when the details on the luggage tag [P47] and the boarding pass [P7] did not match. [50] Further, the learned judge had clearly misunderstood the reason why the appellant was checking P47 against P7 and why he was escorted back to carousel D by PW3. The learned judge was of the view that there was no logical reason for the appellant to go to carousel D to take P33 since he did not check in any luggage. Despite knowing that, the appellant consciously went to carousel D to retrieve P33. According to the learned judge, the appellant’s “action of purposely checking P47 against P7 was to give impression to any observing customs officer that the said P33 belongs to him”. [51] The very defence of the appellant was that he was asked to retrieve P33 by Woo, and Woo had called him after he had left the security clearance area. The existence of this phone conversation is actually confirmed by PW1. The explanation offered by the appellant as to why he was checking P47 against P7; that it was to confirm the flight details are plausible and reasonable. As for going back to carousel D, the appellant had explained that it was to check if there was any other box belonging to Woo, not to check 23 for a box belonging to him since he did not check in any. Since this [P33] was the only box bearing Woo’s details, this was indeed Woo’s box. This was confirmed by PW3 – see page 64 of the record of appeal. [52] As for P33 itself, the prosecution had led evidence that the appellant did not check in any luggage. Hence, P33 was not checked in by the appellant. It was checked in by Woo as was shown by the manifest. P33 at the very least, belonged to Woo. The issue then is whether the appellant was aware of the contents of P33 or had knowledge of the drugs seized, the very material question that the learned judge was required in law to resolve. For the same reasons as set out above, we find that the appellant cannot be said to have been wilfully blind as to the obvious and to the contents of P33. His explanation is supported by the evidence led, and the learned judge’s conclusion that the appellant had devised a clever scheme and modus to evade detection and to exculpate himself should he be found out are speculations at best, not supported by any evidence. Even on the matter of common intention, we do not find that proved, and learned DPP is not in any case, urging that upon us in this alternative charge. [53] At the hearing of this appeal, as pointed out earlier, learned DPP’s real contention is that the name of Woo was given belatedly, that there was delayed disclosure. In the Federal Court decision of Teng Howe Sing v PP [2009] 3 CLJ 733, there was a 5 day delay in disclosing the real identity of “Ho Seng” to the police, and even then, the existence of “Ho Seng” was challenged. That is entirely different from our instant appeal where not only does Woo exist, that fact is admitted by the prosecution; the evidence led by the prosecution show that P33 was checked in by Woo; that the luggage tag 24 belonged to Woo; that the appellant did not check in any luggage himself; that the appellant was seen on his hand phone prior to approaching carousel D to retrieve P33; that the appellant had informed the Customs officers at first and every opportunity as to the ownership and existence of Woo. Conclusion [54] For all the reasons set out above and having considered the submissions of learned counsel for the appellant and learned DPP, and having taken on board the concession by the learned DPP that there was an application and reliance on the double presumption by the learned judge, and following the recent decision of the Federal Court in Alma Nudo [supra], such invocation being unconstitutional, the charge of trafficking cannot stand. [55] As for the alternative charge under section 39A(2) of the Act, we find that the defence of innocent carrier made out by the appellant both on the facts and in law. Consequently, the appeal is allowed and the decision of the High Court is set aside together with the conviction and sentence imposed by the High Court. The appellant is accordingly acquitted and discharged. Dated: 18th December 2019 sgd (MARY LIM THIAM SUAN) Judge Court of Appeal Malaysia 25 Counsel/Solicitors For the Appellant: Hamid Ismail Messrs. Hamid & Co 2nd Floor, Lot No 1 Block BC Lorong Ikan Juara 3 Sadong Jaya 88100 KOTA KINABALU For the Respondent: Mohd Zain bin Ibrahim Deputy Public Prosecutor Attorney General’s Chambers