Menurut OKT, setibanya di Malaysia, dia telah diarahkan untuk mengimbas P6 sebanyak empat kali sebelum bagasinya dibuka oleh pegawai kastam dan dadah yang disembunyikan di bawah pelapik bagasi tersebut dijumpai. OKT menyatakan bahawa dia tidak tahu bahawa terdapat dadah dalam beg P6, semasa mengambil beg P6 tersebut, dia tidak nampak bungkusan hitam P17 itu.” [20] So, the appellant’s defence to the charge was that he was an “innocent carrier”, and the basis for his claim of innocence was that he had no knowledge of the drug. This is a very common defence amongst those charged with drug trafficking. [21] Having given careful consideration to the appellant’s explanation in his defence, the learned trial judge found that the appellant failed to discharge his burden of proving that he had no knowledge of the drug. It was his finding that the appellant was not as innocent as he made himself out to be and was caught by the doctrine of wilful blindness. [22] The learned trial judge had given his reasons for rejecting the appellant’s claim that he had no knowledge of the drug, as follows: “Mahkamah juga mendapati bahawa adalah tidak logik OKT tidak mengesyaki apabila beg P6 tersebut berat, sedangkan jumlah pakaian yang dibawa OKT hanyalah 3 helai seluar jeans, 3 helai t-shirt, 3 helai boxer, 2 helai seluar dalam dan 2 pasang stoking. Mustahil berat pakaian tersebut dan beg adalah 17 kilogram. OKT patut syak, mengapa beg tersebut berat, sedangkan jumlah pakaian sedikit. Jika seorang yang waras, sudah tentu akan berasa suspicious, sudah tentu ada sesuatu yang tidak kena di dalam beg P6 tersebut. Selain itu, OKT langsung tidak berasa curiga mengapa sampel pakaian yang sedikit jumlahnya itu tidak dihantar ke Malaysia menerusi perkhidmatan kurier sahaja kerana sudah tentu ia lebih mudah dan lebih murah jika dipos. …………… Didalam kes ini terdapat terlalu banyak sebab untuk syak dan curiga, namum OKT telah secara sengaja, menutup matanya terhadap segala kecurigaan dan ini menunjukkan 9 bahawa OKT mempunyai pengetahuan berkenaan dengan dadah yang disembunyikan dalam beg P6 tersebut. Berdasarkan dapatan fakta yang telah dinyatakan di atas, adalah jelas bahawa doktrin “wilful blindness” adalah terpakai dimana OKT telah secara sengaja menutup mata atau tidak mempedulikan terhadap perkara yang sangat jelas. Maka, OKT tidak boleh dikatakan sebagai seorang “innocent carrier” kerana telah gagal untuk menimbulkan keraguan yang musabah dan juga menyangkal anggapan statutori di bawah seksyen 37(d) ADB atas imbangan kebarangkalian terhadap fakta-fakta kes yang menjurus kepada kewujudan pengetahuan OKT terhadap dadah yang tersorok dalam P6 tersebut.” [23] On the evidence before him, we were not prepared to say with conviction that the learned trial judge was plainly wrong in finding that the appellant failed to rebut the presumption of knowledge under section 37(d) of the DDA. He had seen and heard the appellant giving evidence and was therefore in the best position to assess his credibility and reliability as a witness. This finding necessarily means that the appellant had knowledge of the drug. In legal parlance, it means he was in mens rea or in criminal possession of the drug. [24] Being in possession of any dangerous drug without lawful authority is an offence by itself under section 12(2) of the DDA. Thus, once the trial judge came to the finding that the appellant failed to rebut the presumption of knowledge under section 37(d) of the DDA, the appellant was immediately liable to be convicted of the offence of possession under section 12(2), even if he was to be acquitted of the trafficking charge and even though he was not charged with possession. [25] In other words, even if the learned trial judge had found that the trafficking charge had not been proved, he must nevertheless convict the appellant of the offence of possession, which had been proved. The appellant cannot be heard to say that he could not be convicted of the offence of possession under section 12(2) of the DDA on the ground that 10 he was only charged with trafficking and not with possession. The situation is covered by section 167 of the CPC which provides as follows: “If in the case mentioned in section 166 the accused is charged with one offence and it appears that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed although he was not charged with it.” [26] This brings us to the second part of the issue, and that is whether having proved possession, trafficking had been proved against the appellant beyond any reasonable doubt. Having regard to the elements that make up the offence of trafficking, the fact that possession had been proved against the appellant does not mean that he must as a matter of course be convicted of the trafficking charge. [27] To bring home the trafficking charge, more than mere possession needed to be proved by the prosecution, unless the presumption of trafficking under section 37 (da) applied against the appellant, in which case it would be for the appellant to prove in the negative that he was not trafficking, and not for the prosecution to prove positively that he was trafficking. [28] It is important to appreciate that proof of possession is not proof of trafficking. Under the DDA, possession and trafficking are two distinct offences, the former an offence under section 12(2) and the latter an offence under section 39B. Possession is only one element of the offence of trafficking. While a person who traffics is necessarily in possession of the drug, a person who is in possession is not necessarily trafficking in the drug. 11 [29] Thus, where the presumption of trafficking under section 37(da) of the DDA does not apply, as in the present case, the burden remains throughout with the prosecution to prove beyond any reasonable doubt that the drug in the accused’s possession was for the purpose of trafficking. [30] If the presumption of trafficking under section 37(da) had applied against the appellant, what the trial court had to consider at the close of the defence case was whether the appellant has rebutted the presumption. If he succeeded, he must be acquitted of the trafficking charge, but if he failed, he must be convicted: See Public Prosecutor v Yuvaraj [1968] 1 LNS 116; [1969] 2 MLJ 89, a case under the Prevention of Corruption Act 1961 where Lord Diplock delivering the judgment of the Privy Council said: “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 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 finding will have the consequence of a conviction.” (emphasis added) [31] We must say in passing that the learned trial judge was right in not invoking the presumption of trafficking under section 37(da) against the appellant as the evidence was not compelling enough for the Court to draw the inference that he had knowledge of the drug. The presumption 12 under section 37(da) only kicks in if there is proof of knowledge, direct or circumstantial, without the aid of the presumption under section 37(d). [32] We were mindful of section 37A of the DDA which came into force on 15.2.2014. This provision allows for the invocation of a double presumption, but whether the presumption of knowledge under section 37(d) could be used to further invoke the presumption of trafficking under section 37(da) was not an issue that we were called upon to determine in this appeal. It was also not an issue that was raised in the Court below. [33] As we mentioned earlier, the issue before us was whether the appellant ought to have been convicted of the lesser offence of possession under section 12(2) of the DDA rather than the offence of trafficking as charged. [34] We did not therefore find it necessary to deal with the effect of section 37A of the DDA, save to say that on the face of it, the provision appears to allow for the presumption of possession and knowledge under section 37(d) to be used to further invoke the presumption of trafficking under section 37(da), apparently as a way to overcome the rule against double presumption as decided by the Federal Court in Muhammed Hassan (supra). [35] Without the aid of the presumption of trafficking under section 37(da) but having proved possession at the close of the defence case, the question for the learned trial judge to consider was whether the prosecution had proved beyond any reasonable doubt that the drug in the appellant’s possession was for the purpose of trafficking. 13 [36] As far as the factum of trafficking is concerned, the appellant had no legal burden to prove or to disprove anything. He was entitled to be acquitted by merely raising a reasonable doubt in the trial judge’s mind as to his guilt: Mat v PP [1963] 1 LNS 82; [1963] 1 MLJ 263. [37] Unfortunately, the learned trial judge did not appear to have considered the defence case from this perspective. From the grounds of judgment, he was only concerned with the question whether the appellant had rebutted the presumption of knowledge. [38] It is clear that the only reason why the learned trial judge found the trafficking charge to have been proved was because the appellant failed to rebut the presumption of knowledge under section 37(d) of the DDA. In so doing, he stopped short of considering the further question whether the drug in the appellant’s possession was for the purpose of trafficking. This was a separate exercise that the learned trial judge was duty bound to undertake having found that possession had been proved, but which he omitted to do. [39] In our view this was a misdirection by way of non-direction. It was incumbent on the learned judge to consider whether the drug was for the purpose of trafficking simply because the appellant was charged with trafficking and not with possession. Therefore it was trafficking, and not mere possession, that the prosecution must prove against the appellant before he could be convicted of the offence charged. [40] The question was whether the misdirection by the learned trial judge was serious enough as to render the conviction unsafe and liable to be set aside. First of all, we did not think the learned trial should be faulted 14 for taking the approach that he took. This is because the only defence that the appellant put up was the defence of no knowledge. It was not the appellant’s defence that the drug was not for the purpose of trafficking. [41] Whether or not the appellant was carrying the drug for the purpose of trafficking is a question of fact and a matter of inference, even if there is no statutory presumption of trafficking as contained in section 37(da) of the DDA: See Ong Ah Chuan v PP and Koh Chai Cheng v PP [1980] 1 LNS 181; [1981] 1 MLJ 64 where Lord Diplock delivering the judgment of the Privy Council said in dealing with section 15 of the Singapore Misuse of Drugs Act, 1973: “Proof of the purpose for which the 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 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 is no statutory presumption such as is contained in section 15 of the Drugs Act.” (emphasis added) [42] In the absence of evidence coming from the appellant himself that the drug was not for the purpose of trafficking, there was absolutely no material, let alone a plausible explanation by the appellant, for the learned trial judge to come to a finding that the drug was not for the purpose of trafficking, even if he had given the matter his consideration. 15 [43] Any finding of fact must be based on evidence and nothing else and this applies even where the burden is merely to raise a reasonable doubt in the prosecution’s case. The Court does not deal in conjecture or speculation and there are good reasons for this which we need not elaborate on. [44] In the circumstances, we were of the view that the learned trial judge’s failure to deal with the matter was a failure of no consequence because even if he did, he would have come to the conclusion that the appellant’s defence of “innocent carrier” was not capable of rebutting or explaining away the prima facie case that had been established against him at the close of the prosecution’s case. [45] For the same reason, the appellant’s defence of no knowledge could not have cast a reasonable doubt in the trial judge’s mind as to the appellant’s guilt. Any reasonable tribunal properly apprised of the law would have come to this conclusion. [46] Since the appellant had been proved to have had knowledge of the drug and therefore in “possession” of the drug by his failure to rebut the presumption of knowledge under section 37(d), the defence of no knowledge or “innocent carrier” could no longer be a ground for acquitting the appellant of the trafficking charge. [47] The appellant could only be acquitted of the trafficking charge if he could give an innocent explanation as to the purpose for which he carried the drug into Malaysia, for example for his own consumption or for any purpose other than trafficking. 16 [48] But it is clear that the appellant failed to do so. In fact, not a word was uttered by him in his defence that the drug was not for the purpose of trafficking. In the absence of such evidence, there was no evidential basis for us, in our appellate jurisdiction, to come to a finding that the appellant had succeeded in raising a reasonable doubt as to his guilt. We were unanimous in finding that trafficking, and not mere possession, had been proved against the appellant beyond any reasonable doubt. [49] There is no shortage of authority on what proof beyond reasonable doubt means, but if one is required, we refer to Public Prosecutor v Saimin [1971] 1 LNS 115; [1971] 2 MLJ 16 where Sharma J said: “It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.” [50] It was for all the reasons aforesaid that we dismissed the appellant’s appeal and affirmed his conviction and sentence. Signed ABDUL RAHMAN SEBLI Judge Court of Appeal Malaysia Dated: 13 November 2018. 17 For the Appellant: Naran Singh of Messrs Naran Singh & Co. For the Respondent: Samihah Bt Rhazali, DPP of the Attorney General’s Chambers.