Winfred Mukiri Nkiiri v Pendakwa Raya (B-05(M)-369-08/2019)

1 IN THE COURT OF APPEAL MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: B-05(M)-369-08/2019 BETWEEN WINFRED MUKIRI NKIIRI … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT [In the Matter of High Court of Malaya at Shah Alam, Selangor Criminal Appeal No: BA-45A-2-01/2018 Between Public Prosecutor And Winfred Mukiri Nkiiri] CORAM KAMALUDIN MD. SAID, JCA HADHARIAH SYED ISMAIL, JCA NORDIN HASSAN, JCA 2 GROUNDS OF JUDGMENT Introduction [1] This is the appellant’s appeal against the decision of the trial judge at the Shah Alam High Court on 19.4.2019 in finding him guilty after a full trial for an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 for trafficking in dangerous drugs Methamphetamine 818.6 grams and sentence him to death under section 39B(2) of the same Act. [2] The appellant was charged at the High Court as follows-Pertuduhan "Bahawa kamu pada 17/9/2017 jam lebih kurang 6.50 petang di Cawangan Pemeriksaan Penumpang 1 (CPP1), Balai Ketibaan Antarabangsa, Lapangan Terbang Antarabangsa Kuala Lumpur 1 (KLIA), di dalam Daerah Sepang, dalam negeri Selangor Darul Ehsan, telah didapati mengedar dadah berbahaya iaitu Methamphetamine seberat 818.6 gram dan dengan itu, kamu telah melakukan suatu kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah Seksyen 39B(2) Akta yang sama". The Prosecution’s case [3] On 17.9.2017 at about 6.50 a.m. at the passengers’ Checking Counter 1 (CPP1) KLIA, the appellant scanned her luggages i.e. 3 one black bag and another purple bag with brand name TRAVELMAN ORIGINAL at the scanner machine together with hand bag with brand name CLUB MONACO which were identified as P6, P7 and P8 respectively. The result of the scaning showed suspicious images. The Custom Officer on duty at the counter, Nor Harizatul Afzan (SP3) directed PIK Abd Rahman bin Samad (SP6) to check the contents of P6 and P7. SP6 took P6 to the scanner machine D to scan again. After scanning, SP3 saw suspicious green image inside P6 and he then informed SP6. The appellant is a Kenyan citizen by the name Winfred Mukiri Nkiiri and holder of passport number AK0000707. She had boarded the Ethiopian Airlines ET 638 from Addis Ababa, Ethiopia to Kuala Lumpur, Malaysia. The appellant carried 2 bags and a hand bag with her. The bag tags is under the appellant’s name. SP6 asked the appellant to open the purple bag (P7) which was unlocked. Inside the bag there were fabric materials (materials) in various brands. SP6 conducted the physical examination on P7 and further asked the appellant to open the black bag (P6) which was also unlocked. Inside the bag, there were full with the appellant’s personal items. SP6 asked the appellant to take out all her personal items and SP6 saw green image at the pull-rod of P6. SP6 asked the appellant to put back all her items into the bags (P6) and (P7) and thereafter pushed the bags by using trollys to the CPP 1 Office for further examination. SP6 informed the CPP 1 Head Unit about the appellant’s case and the Head Unit then informed the Custom Enforcement Division, Royal Malaysian Custom KLIA Branch. The appellant was kept under watch by SP6 in CPP 1 room while waiting for the officers from the Custom Enforcement Division to arrive. The 4 appellant looked very restless while being in the room. At about 9.00 p.m. the Custom Officers arrived at the CPP1 room. They were Mohd Sufyan bin Zakaria, Mohammad Syawal bin Mohd Norizan, lzuwan bin Mohd Ali, Mohd Faiz bin Zulkapli and Syaliana binti Jemat. SP6 gave short briefing about the detention of the appellant to the officers and started the process of searching and identifying the bags carried by the appellant in the present of the appellant. When the contents of P6 were taken out, SP6 found gold lining covering the 2 pull-rod inside P6. When the the pull-rod was unscrewed and opened, there were small size metal rods with brown plastic packets inside it. The hole of the pull-rod in P6 which were supposed to be filled up with springs, was instead filled up with the brown plastic packets. SP6 found several brown plastic packet inside the pull-rod of P6 and on further examination the brown plastic packets contains crystal powder substances and after testing with TRUNAC apparatus, showed they were dangerous drugs Methamphetamine. When the contents of P7 were taken out, SP6 found the interior of P7 is the same like P6. There was gold lining covering the 2 pull-rod inside P7. When the pull-rod was unscrewed and opened, there were also small size pull-rods with brown plastic packets inside it suspected to be dangerous drugs Methamphetamine. When the appellant’s hand bag (P8) was examined, there were many personal items inside P8 including e-ticket booking Hotel Everest (P98), boarding pass Ethiopian Airlines (P99), boarding pass Rwanda Air (P100), boarding pass Ethiopian Airliness from Addis Ababa to Kuala Lumpur (P101), boarding pass Ethiopian Airlines from Lagos to Addis Ababa (P102), a 5 yellow book of Republic of Tanzania Vaccination (P103), Kenyan pasport (P104), Auto Branch (P114), Corporate Bank card (P117), Health care Card (P119), Quantum Card (P120), Ecobank Card (P122), Alliance Global Card (P123) which are under the appellant’s name. SP6 administered caution to the appellant in English language which she understood. The Investigating Officer in this case is the Custom Officer Superintendent Mohd lzzad bin Ishak (SP7). He arrived at the CPP 1 office at about 12.00 midnight. SP6 gave a short briefing about the appellant’s detention and the list of items seized to SP7. SP6 handed over the search list (P138), list of seized items (P16), all the items seized related to the case, and the appellant who was arrested to SP7 for his further investigation. SP6 made a police report at KLIA Police Station at 12.26 a.m. on 18.9.2017. The report number is KLIA SEPANG/018304/17 (P135). SP6 had identified the appellant and all the items seized from the apellant during the trial. The clear crystal powder subtances found inside the brown plastic packets in P6 and P7 brought by the appellant during the material time by SP6 were analysed by the Goverment Chemist, Rahman bin Mamat (SP4) and the result of his analysis confirmed they were dangerous drugs Methamphetamine with the weight of 818.6 grams. SP4 prepared Chemist Report (P37) under section 399 of the Criminal Procedure Code which confirmed the result of the analysis was done on the clear crystal powder subtances. Methamphetamine is a dangerous drugs listed under the First Schedule of the Dangerous Drugs Act 1952. 6 Finding at the end of the Prosecution’s case [4] The finding of the trial at the end of the prosecution’s case is found at paragraphs 5 to 28 of the grounds of judgment. The appelant was found having custody and control of P6 and P7 and knowledge of the type of drugs hidden inside the pull-rod of P6 and P7 based on presumption under section 37 (d) of the Dangerous Drugs Act 1952. The finding is premised on the evidence of SP3 and SP6 who saw the appellant carried 2 bags i.e. P6 and P7 on the trolly with a hand bag (P8). The bag tags on P6 (P136) and P7 (P137) was registered under the appellant’s name which is the same with the name in the passport (P104). At the material time, the appellant was the only person arrested carrying the dangerous drugs. The appellant was seen very restless when the process of investigation and search on P6, P7 and P8 was carried out by SP6 in CPP 1 Room. Further, the boarding pass seized at the material time showed the name of the appellant as passenger of the flight from Addis Ababa, Ethiopia to KLIA Sepang, Malaysia and the appellant was carrying the bags P6, P7 and P8 in the said flight where the drugs were found inside the pull-rod of P6 and P7. The appellant was the only person having custody and control over the 2 bags. The trial judge has invoked the presumption under section 37 (d) of the Dangerous Drugs Act 1952. Hence, the court found presumption of posession and knowledge related to the dangerous drugs has been proved at the end of the prosecution’s case. [5] The trial judge found the appellant was traficking in the dangerous drugs when the ingredient of traficking has been established by invoking section 2 of the Dangerous Drugs Act 1952 that the 7 appellant was carrying the dangerous drugs from Addis Ababa to Malaysia. The weight of the drugs i.e.

818.6 grams metamphetamine and the manner the drugs were hidden in the pull-rod of P6 and P7 shows the intention of the appellant to avoid detection of traficking the dangerous drugs from the authorities and the Court made an inferrence that the appellant has the intention to traffic the dangerous drugs to third parties upon arrival in Malaysia. The Defence Case [6] The appellant’s defence has been set out in detail in the grounds of judgment. The appellant gave evidence that the bags, P6 and P7 was given to her by her friend Sharon whom she met in Lagos, Nigeria while on transit to Malaysia. Sharon requested her to send African material to Sharon’s friend in Malaysia using the bags P6 and P7 because the appellant’s bag (P8) which she carried from Kenya is small and not enough to put her things. The appellant was helping Sharon to pass the materials to Sharon’s friend in Malaysia without any payment from Sharon. Sharon will ask her friend to pick up P7 and the materials from the appellant’s hotel. Sharon put all the materials inside P7 and gave P6 to the appellant to put her things. She was arrested by the customs officers at the passengers’ arrival cheking counter. She claimed not to have any knowledge of the dangerous drugs hidden in the pull-rod of P6 and P7 because the drugs cannot be seen by naked eye. She did not check the pull-rod in Lagos when Sharon gave her the bags. She was shocked when the drugs were found in P6 and P7. She managed to call Sharon and Sharon said not to worry because Sharon will ask someone to bring RM 5,000 to settle the case. Sharon did not allow 8 her to reveal Sharon’s name to the authority and told the appellant to admit that all the things inside P6 and P7 belonged to the appellant. Sharon never told her that to whom the RM 5,000 should be given. The customs officer confiscated her handphone when they saw the appellant was talking to Sharon. Sharon’s friend never come to settle her case. [7] The appellant admitted that she never told the customs officer about Sharon because Sharon had told her that if Sharon’s name is mention, Sharon will not send anybody to help her. She tried to contact Sharon again by using the handphone which she borrowed from one of the prisoner when she was brought to Court. She admitted that she did not really know Sharon, could not remember Sharon’s telephone number and cannot produce evidence that she had called Sharon at the KLIA. She agreed that there is no evidence that Sharon exists. She did not deny that the custom officers had recorded her cautions statement and made admission to the custom officers that P6 and P7 belonged to her. Finding at the end of Defence’s case [8] At this stage the trial judge considered the defence’s case and the entire prosecution’s case to prove whether the prosecution has proved the case beyond reasonable doubt as envisaged under section 182A of the Criminal Procedure Code. The appellant need to raise a reasonable doubt and rebut the presumption of posession and knowledge under section 37(d) of the Dangerous Drugs Act 1952 on the balance of probabilities. 9 [9] The trial judge finding at the end of defence’s case is found at paragraphs 32 to 76 of the grounds of judgment. The trial judge has dealt with the defence’s case under various issues i.e the knowledge on P6 and P7 which she carried from Addis Ababa to Malaysia contained dangerous drugs and P6 and P7 were given to her by Sharon while in Lagos, Nigeria, DNA and finger print, P8, conduct of the appellant, Alcontara Notice, Investigation and presumption under section 114(g) of the Evidence Act 1950. [10] On knowledge, the appellant said the bags P6 and P7 were given to her by Sharon and she did not suspect any illegal items inside P6 and P7 and she did not carefully and thoroughly check the contents of P6 and P7. She did not see the drugs because the drugs were hidden inside the pull-rod of P6 and P7. The drugs were in a hidden manner which it is impossible to see with naked eyes. She denied trafficking in dangerous drugs. The trial judge found this defence has no basis the reason being, if the defence is accepted, drugs traffickers may use the tactic of trafficking dangerous drugs by hiding the drugs inside the bags and escape from being prosecuted. (Ali Hosseinzadeh Bashir v Public Prosecutor [2015] 1 CLJ 918). [11] About Sharon, the appellant only mentioned that she met Sharon in Lagos, Nigeria but did not know Sharon’s full name, address and telephone number. There is no evidence that she had called Sharon or recieved call from Sharon when she arrived in Malaysia. She never informed the custom officers about Sharon when she was arrested. Sharon’s name was only raised for the first time during trial. She failed to call Sharon as defence’s witness to support the appellant’s evidence since the appellant is the only person who 10 knows Sharon, her telephone number and address (Tobechi Chinonso Madu v Public Prosecutor [2015] 1 LNS 57). There is no evidence that Sharon exists and the trial judge found Sharon is a fictitious person (Yen Wen Chin v Public Prosecutor & Another Appeal [2008] 6 CLJ 773). [12] The dangerous drugs were found wrapping inside the brown plastic packet hidden inside the pull-rod covered by gold lining in P6 and P7. The appellant had contended that these items were not sent for DNA or finger print examination. The trial judge made a finding that it is not necessary for the prosecution to rely on DNA and finger print evidence the reason being, the appellant was seen carrying P6 and P7 which contains the dangerous drugs by SP3 and S6 at the custom checking counter during the material date. She was the only person there and the fact is not disputed by the appellant. The dangerous drugs were found inside P6 and P7 carried by the appellant (Public Prosecutor v Mansor Mohd Rashid & Anor [1996] 3 MLJ 350; Mazlani bin Mansor v Public Prosecutor and other Appeals [2014] 2 MLJ 18; Ali Hosseinzadeh Bashir v Public Prosecutor (supra)). [13] The relevancy of hand bag (P8) was raised however, the trial judge made a finding that P8 is not relevant since the dangerous drugs were found inside P6 and P7 and the appellant has knowledge about the drugs inside P6 and P7. [14] The trial judge also made a finding that the conduct of the appellant being restless during the process of searching and identifying the case items in CPP 1 room shows inference that the appellant knew about the dangerous drugs inside P6 and P7. The conduct of the 11 appellant is relevant under section 8 of the Evidence Act 1950. The appellant has failed to rebut the presumption of posession and knowledge (Parlan Dadeh v Public Prosecutor [2008] 6 MLJ 19) [15] Sharon’s name was mentioned by the appellant in her defence that it was Sharon who passed the bags P6 and P7 that contained the dangerous drugs when she met Sharon in Lagos, Nigeria. The trial judge found the information about Sharon does not comply as a notice to the prosecution following the case of Alcontara a/l Ambross Anthony v Public Prosecutor [1996] 1 MLJ 209 on reason that the appellant failed to give complete description about Sharon, the full name, address and telephone number for further investigation. Be that as it may, the existence of Sharon was never proved by the appellant (see also Luo Wenqin v Pendakwaraya [2019] 1 LNS 517;Tobechi Chinonso Madu v Public Prosecutor (supra); Ali Hosseinzadeh Bashir v Public Prosecutor (supra)). [16] The non-calling of custom officer Ahmad Firdaus to confirm the appellant’s evidence about Sharon was considered and the trial judge was of the view that adverse inference under section 114 (g) of the Evidence Act 1950 does not apply on reason that the existence of Sharon was never told to the custom officer but was brought for the first time during the trial. The appellant has also admitted that there was no prove that Sharon exists therefore, Ahmad Firdaus is not a material witness to the prosecution and did not leave any gap in the prosecution’s case. The prosecution’s evidence is overwhelming against the appellant’s involvement in trafficking the dangerous drugs (Ti Chuee Hiang v Public Prosecutor [1995] 2 MLJ 433; Munusamy v Public Prosecutor 12 [1987] 1 MLJ 492). The Issue [17] The appellant in her petition of appeal raised various issues. However, the appellant’s counsel wishes to raise only one issue i.e. that the trial judge failed to consider the appellant’s defence that she is an innocent carrier. The trial judge referred to the fact that the drugs were found hidden in the pull-rod which the appellant might not have seen the hidden drugs. The Appeal [18] In arguing the issue, firstly, the appellant’s counsel raised a question whether the trial judge was correct in holding there was willful blindness on the part of the appellant. Secondly, if it is accepted that there was willful blindness then the appellant would be deprived of relying on the defence of innocent carrier. Thirdly, the appeal centered arround the issues that the appellant had made enquiries to Sharon and that if she had done so it means that there is no deliberate action to shut her eyes (willful blindness) and with or without enquiries, does the law expect the appellant to check the contents of the bag? Is it a fair and reasonable expectation or does the law still expect the appellant to unscrew and dismantle the bags P6 and P7 to check the screwed compartments? [19] Counsel relied on the case of PP v Herlina Purnama Sari (2017) 1MLRA 499 where Raus PCA (as former CJ then was) held that the willful blindness necessarily entails an element of deliberate action. It was submitted that Sharon's conduct is subjective and benefit of 13 the doubt should be given to her. She acted reasonably in her circumstances. She was obliged to Sharon for being an old friend, a fellow Kenyan who met in Nigeria, and who helped her obtain wigs at the market at a good price. The appellant testified that she seemed genuine. [20] Since the enquiries were made by the appellant, therefore there was no "deliberate act" by the appellant to shut her eyes from-the contents of P6 and P7. The appellant cannot be faulted for not enquiring. The drugs were concealed and screwed into the metal pull-frame of P6 and P7. The concealment for the present case is distinguishable from the concealment in Herlina Purnama Sari (supra). For this case, the impugned drugs were hidden behind metal bolts (screwed) which could only be removed by special tools. These tools were not found on the appellant nor on her belongings. So someone else has the tools. The drugs were items that were not conspicuously open and discoverable. [21] It was submitted that it is absurd to expect the appellant to use a tool to pry open a luggage bag belonging to someone else just to check what is inside. The duty to make enquiries (to establish the defence of innocent carrier) does not extend to using tools to dismantle the bags. Therefore, the trial judge had erred by failing to give due consideration to the facts of the case that leaned in favour to the appellant, as well as failure to give fair consideration to her defence. There is no evidence that the appellant knew that there were dangerous drugs concealed within the pull-rods of the two bags she carried. [22] By reason of the above said, the appellant counsel urged this Court 14 to consider that the appellant was used as a drug mule, who obliged an old friend who appeared genuine to her and who helped her obtained wigs at a good price at the market. The benefit of the doubt should be given to the appellant in the said circumstances. [23] In reply the prosecution submitted that the appellant’s argument that she is an innnocent carrier when coming to Malaysia to buy jewelleries and flower ornament to take back to Kenya has no basis. The trial judge has considered the defence of ‘innocent carrier” in length in his grounds of judgment. The trial judge has made a finding of fact on element of posession which he decided that the appellant has the custody and control over P6 and P7 and presumed to have knowledge on the dangerous drugs hidden inside the pull-rod of P6 and P7 based on section 37(d) of the Dangerous Drugs Act 1952 unless prove otherwise. It is an undisputed fact that P6 and P7 was under the control and custody of the appellant when examination and arrest were made. The trial judge has made a correct finding of facts based on the evidence before him. Our decision [24] It is trite law that this Court should not put a brake and not going any further the moment it sees that the trial judge says that that is his finding of facts unless there are substantial and compelling reasons for disagreeing with the finding (Dato Seri Anwar Ibrahim v PP & Another Appeal [2004] 3 CLJ 737). [25] The appellant argued that she has no knowledge of the dangerous drugs concealed and screwed into the metal pull-frame of P6 and P7. The drugs were placed in a hidden manner which it is impossible 15 to see with naked eyes. She is not a drugs trafficker. We observed that the trial judge has made a finding at the end of the trial of the mental state of knowledge, or drawn an inference from all the facts and circumstances of the case, giving due weight to the credibility of the witnesses. The trial judge found this defence has no basis the reason being, if the defence is accepted, drugs traffickers may use the tactic of trafficking dangerous drugs by hiding the drugs inside the bags and escape from being prosecuted. [26] At Jilid 1 page 37 at paragraph 36, the trial judge made his finding on wilful blindness as follows - "[36] Dengan hormatnya, alasan dadah berbahaya yang tersembunyi yang dijadikan antara alasan membela diri oleh tertuduh tidak dapat diterima oleh mahkamah ini. Dalam dapatan mahkamah ini, sekiranya alasan tersebut diterima, pengedar dadah berbahaya boleh mengedar dadah berbahaya dengan menyembunyikan dadah berbahaya tersebut dalam beg yang dibawa mereka dan terlepas daripada tindakan pendakwaan. [37] Malahan pihak berkuasa juga terhalang daripada mengambil tindakan terhadap pengedar dadah berbahaya jika dadah berbahaya tersebut disembunyikan dan pengedar dadah berkenaan menggunakan alasan tiada pengetahuan kerana dadah berbahaya tersebut tersembunyi dan tidak boleh dilihat dengan mata kasar." [27] We incline to interfere with the finding of the trial judge that such defence has no basis by referring to the case of Ali Hosseinzadeh Bashir v Public Prosecutor (supra) where Abdul Rahman Sebli (CJA as he was then) said as follows- 16 “[40] The argument is that since the drugs were hidden from view the appellant could not have known of their presence. The answer to this contention is the familiar decision of the Singapore Court of Appeal in Zulfikar Mustaffah v. PP [2001] 1 SLR 633 which the Federal Court cited with approval in PP v. Abdul Rahman Akif [2007] 4 CLJ 337. We are quite surprised that counsel had pursued this line of argument. We reproduce below what the Court of Appeal said at p. 639: “21. for the element of 'possession' (within the meaning of the Misuse of Drugs Act) to be established, it must not only be shown that the accused had physical control of the drugs at the relevant time; the prosecution must also prove that the accused possessed the requisite knowledge as to the contents of what he was carrying: see Warner v. Metropolitan Police Commissioner [1969] 2 AC 256; Tan Ah Tee & Anor v. PP [1978] 1 LNS 193; [1978-79] SLR 211; [1980] 1 MLJ 49. In the course of the appeal before us, counsel for the appellant relied heavily on the fact that the contents of the bundles were securely wrapped in newspapers and could not be identified. We were accordingly invited to draw the inference that the appellant had no knowledge of the contents of the bundles.

22. We were unable to accede to this request. While the fact that the contents of the bundles were hidden from view may have been relevant in determining whether the requisite knowledge was absent, this factor should still not be given too much weight. Otherwise, drug peddlers could escape liability simply by ensuring that any drugs coming into their possession are firstly securely sealed in opaque wrappings. Rather the court must appraise the entire facts of the case to see if the accused's claim to ignorance is credible. As Yong Pung How CJ remarked in PP v. Hla Win [1995] 2 SLR 424 (at p. 438): In the end, the finding of the mental state of knowledge, or the rebuttal of it, is an inference to be drawn by a trial judge from all the facts and circumstances of the 17 particular case, giving due weight to the credibility of the witnesses”. [28] The appellant also argued that enquiries were made by the appellant, therefore there was no "deliberate act" by the appellant to shut her eyes from-the contents of P6 and P7. At Jilid 2(3), page 178, line 37 the evidence inter alia states that Sharon brought the purple bag with the goods that she wanted the appellant to take together. The black bag was also brought by Sharon to put the appellant’s things. She asked Sharon if there is nothing inside the bag of which Sharon said nothing and when she opens the bag, nothing was in the black bag. [29] The appellant’s contended that she was an innocent carrier and Sharon was the true trafficker. The trial judge has made a finding that Sharon is a fictitious figure created by the appellant the reason being, the appellant failed to produce any evidence to show that Sharon exists. The appellant’s defence of “innocent carrier” and the principle of “willful blindness” was considered by the trial judge however, he found the appellant failed to prove the defence or was unsuccessful on the balance of probabilities to rebut the presumption of posession or raise a reasonable doubt on the whole of prosecution’s case.” [30] Where a defence of innocent carrier is led, it necessarily raises the issue of "willful blindness". It is the principle of the law that the defence of innocent carrier should be taken into account with the principle of willful blindness (PP v. Klong K'Djoanh & Another Appeal [2016] 5 CLJ 533, Unegbe Azuka Sunday v. PP [2016] 1 LNS 423). 18 [31] The concept of 'willful blindness' has also received judicial consideration by our courts in the cases of Roslan bin Sabu @ Omar v. Public Prosecutor [2006] 3 CLJ 607; [2006] 4 AMR 772. The concept of 'willful blindness' had been discussed in a number of local cases but it seems to have had its genesis in the dissenting judgment of Yong Pung How CJ (Singapore) in the case of Public Prosecutor v. Hla Win [1995] 2 SLR 424. The doctrine of 'willful blindness' can be summarised to be applicable to a situation where the circumstances are such as to raise suspicion sufficient for a reasonable person to be put on inquiry as to the legitimacy of a particular transaction. To put it another way, if the circumstances are such as to arouse suspicion, then it is incumbent on a person to make the necessary inquiries in order to satisfy himself as to the genuineness of what was informed to him. Should he fail to embark upon this course of action, then he will be guilty of 'willful blindness'. In other words, he is then taken to know the true situation. He then cannot be said to have either rebutted the presumption of knowledge or have raised a reasonable doubt as to his knowledge of the situation. (The Federal Court in PP v Herlina Purnama Sari (supra). [32] It was also held that willful blindness necessarily entails an element of deliberate action. If the person concerned has a clear reason to be suspicious that something is amiss but then embarks on a deliberate decision not to make further inquiries in order to avoid confirming what the actual situation is, then such a decision is necessarily a deliberate one. The key threshold element in the doctrine of willful blindness itself is that of suspicion followed by (and coupled with) a deliberate decision not to make further investigations. Whether the doctrine of willful blindness should be 19 applied to any particular case would be dependent on the relevant inferences to be drawn by the trial judge from all the facts and circumstances of the particular case, giving due weight, where necessary, to the credibility of the witnesses. (See PP v. Tan Kok An [1996] 2 CLJ 96; [1995] 4 MLRH 256) [33] It is not disputed that the appellant gave evidence that during transit in Lagos, Nigeria she stayed one day there to buy wigs and met a friend named Sharon who was also from Kenya and married a Nigerian man. At the hotel, Sharon requested her to send African materials to Sharon’s friend in Malaysia by using P6 and P7 given by Sharon. In other words, the defence seems to shift the blame on Sharon who gave her the bags P6 and P7 as the true trafficker and she had no knowledge of the dangerous drugs found inside P6 and P7. [34] In our view, what is important is that during cross-examination by the prosecution, the appellant stated that she had no knowledge about Sharon’s occupation and never been to Sharon’s house. The last time she met Sharon was in 2005. The appellant did not feel strange or suspicious on request by Sharon to ask her to send the materials by using P6 and P7. She did not really know Sharon, her full name, address and her telephone number. The appellant can refuse Sharon’s request to carry P6 and P7 including the materials to be delivered to Sharon’s friend in Malaysia. There is no reasonable reason for the need to carry P6 and P7 including the materials to be delivered to Sharon’s friend in Malaysia when she did not have particulars of Sharon’s friend in Malaysia. Logically speaking, how then the materials can be delivered to Sharon’ friend in Malaysia. The appellant admitted that P6 and P7 belongs to her. 20 She claimed that Sharon had stopped her from revealing Sharon’s name otherwise a person who will come with RM 5,000 to help her would not be there to settle her arrest. [35] The trial judge rejected the appellant’s defence of innocent carrier. With the established facts, an inference is made that the appelant knew about the drugs which were concealed inside P6 and P7 but chose to shut her eyes and guilty of willful blindness. [36] The most telling evidence is that the appellant had brought the drugs from Lagos, Nigeria to Malaysia. This was sufficient to lead to a strong and irresistable inference that the purpose for which the appellant was in posession of the drugs to another party in our country (Methan Aydroos Mohamed Pillai Naina Mohamed v Pendakwaraya [2013] 1 LNS 968). [37] In Jorge Crespo Gomez V. PP [2020] 8 CLJ 292, the Federal Court held as follows- “[35] On the absence of knowledge on the part of the appellant, on the contents of P13 and the defence of innocent carrier, we found that the learned JC and the Court of Appeal had considered the circumstances in which P13 was given to the appellant which should have raised suspicion for a reasonable person to be put on an inquiry as to the legitimacy of such a transaction. The appellant said that the spare parts in P13 was supposed to be delivered to Thailand. For that he was promised USD1000 together with all expenses paid for his stay in Caracas and for the multiple flight tickets to land in Malaysia. All these trouble just to carry the six metal cylinders to Thailand. One would wonder why all that trouble just to deliver it to Solomon in Thailand when the items could have easily been sent from Caracas direct to Thailand by courier without the 21 necessity of asking the appellant to do it and incurring expenses. Why the stop in Malaysia? [36] As the circumstances are such as to arouse suspicion, it is incumbent on the part of the appellant to make the necessary inquiries to satisfy himself as to the genuineness of the transaction. There was concurrent findings by the learned JC and the Court of Appeal that the only inference that can be deduced from the suspicious circumstances which was not queried by the appellant, is that the appellant knew what he was carrying in the metal cylinders were drugs. The failure to make inquiries from Solomon as to why the need to personally sent the items via Malaysia en route to Thailand, the appellant is deemed to know and that the appellant was guilty of wilful blindness. The appellant had all the opportunity to enquire and to check the bag, but did not do so as he was shutting his eyes to the obvious (see Hoh Bon Tong v. PP [2010] 5 CLJ 240). In the course of the law he is taken to know. [37] Therefore in such circumstances, the Alcontara notice purportedly issued by the appellant through his cautioned statement, D66, is irrelevant and of no consequence. [38] Further, it matters not whether Solomon is the real trafficker, as it was the appellant who was in possession of the drugs. It is also of no consequence whether the investigating officer failed to investigate Solomon or his phone numbers”. [38] At Jilid 1, page 47, paragraph [54], the trial judge found: "[54] Mahkamah ini mendapati bahawa tertuduh tidak membuat apa-apa pertanyaan langsung kepada SHARON mengenai kandungan sebenar bagasi P6 dan P7. Tertuduh langsung tidak mengesyaki apa-apa apbila SHARON memberikan P6 dan P7 kepada tertuduh. Walhal tertuduh bukan kawan rapat dan baru berjumpa kali kedua selepas 12 tahun tidak berjumpa. Tertuduh sengaja menutup matanya kepada perkara-perkara yang mencurigakan mengenai bagasi tersebut. Dalam dapatan mahkamah ini, inferens yang 22 boleh dibuat oleh mahkamah ini ialah tertuduh sebenarnya mempunyai pengetahuan tentang dadah berbahaya yang disembunyikan dalam P6 dan P7" [39] In our view, the circumstances of the present case, the enquiries related to Sharon are irrelevant and of no consequence.The argument does not have any merit. The trial judge found the information about Sharon does not comply as an Alcontara notice to the prosecution on reason that the appellant failed to give complete description about Sharon, the full name, address and telephone number for further investigation. Be that as it may, there is no evidence that Sharon exists and the trial judge found Sharon is a fictitious person. Conclusion [40] We found the trial judge did not err or has not committed any error in evaluating the evidence before him including the finding on the defence of “innocent carrier” related to Sharon raised by the appellant in this case and there is no compelling reason to disagree with the finding. We are satisfied that the conviction is safe. [41] It is our unanimous decision that the appellant’s appeal is dismissed and we affirmed the decision of the High Court. Dated this 6 October 2020 sgd KAMALUDIN MD. SAID JUDGE COURT OF APPEAL MALAYSIA PUTRAJAYA 23 Parties

1. Arik Zakri bin Abdul Kadir for the Appellant (Messrs The Chamber of Arik And Kamal)

2. Dhia Syazwani Izyan binti Mohd Akhir, Deputy Public Prosecutor for the Respondent (Attorney General Chambers)