Xiao Qing v Pendakwa Raya (B-05(M)-514-10/2018)

A China National (the appellant) was charged under section 39B(1)(a) of the Dangerous Drugs Act 1952 (DDA 1952) which read as follows: “Bahawa kamu pada 17 Ogos 2015, lebih kurang jam 1.50 pagi, di Cawangan Pemeriksaan Penumpang 2, Balai Ketibaan Antarabangsa, Lapangan Terbang Antarabangsa Kuala Lumpur 2, di dalam daerah Sepang, dalam negeri Selangor, telah didapati mengedar dadah berbahaya iaitu Methamphetamine seberat 2,422 gram dan dengan itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1) (a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama.”

The appellant claimed trial and at the end of the prosecution’s case, the learned trial Judge found that a prima facie case was made out against the appellant. Defence was called and at the end of the defence, the learned trial Judge found the appellant guilty of the offence charged, convicted the appellant as per charge and sentenced her to death as provided for under section 39B(2) of the DDA 1952. Aggrieved, the appellant appealed, which is the appeal before us.

After hearing submissions from both parties and perusing through the Appeal Records, unanimously we found that there is no appealable error on the part of the learned trial Judge. The conviction and sentence imposed by the learned trial Judge under the DDA 1952 is safe. We affirmed the decision of the learned trial Judge. Herein below are our reasons for deciding so. 3 BACKGROUND:

On 17.8.2015, at or around 1.50 a.m. at Cawangan Pemeriksaan Penumpang 2 (CPP2 KLIA 2), the appellant who had alighted from a flight from Hong Kong to Malaysia had her baggage, P7 scanned. From the scan there appeared to be some images from her baggage which were suspicious.

Custom Officer, Muhammad Rafiq bin Mohd Razali (PW 5) who was on duty at CPP2 KLIA 2 at the material time, directed the appellant to the inspection counter and asked for the appellant’s passport and air ticket. The appellant was also directed to open her baggage and upon inspection, PW 5 saw that it contained few sandals, T-shirt, clothings, underwears and several new handbags.

PW 5 then put his hand inside the handbag and felt something hidden inside the handbag bag, which was sewn between the leather in the hand bag. PW 5 took the handbag to be re-scan again and saw images which appeared suspicious. PW 5 also saw traces of glue at the stitches at the back of the handbag. PW 5 then took the appellant and her baggage to CPP2’s office and informed his Head of Unit of the incident who subsequently informed the Enforcement Division of the Customs Department.

When Custom Officers Azhar and Abdul Aziz from enforcement arrived, a further search was conducted by PW 5 at CPP2’s office. 4 [8] At CPP2’s office, PW 5 examined the 8 handbags and directed PW 2 to take photographs during the search and the markings of exhibits. PW 5 marked:

the red bag “Jingpin” as RA(P7);

(ii) the white handbag as RA1(P45); and

(iii) the rest of the handbags as RA2-8 (P46-P52). [9] PW 5 cut the stitching of the handbags with a knife and found black plastic packets. PW 5 took the black plastic packets out which was marked as RA1(1) which were subsequently adduced in court as exhibits P20 - P27. PW 5 cut the black plastic packets slightly and found that it contained “serbuk kristal jernih”. Initial test using a test kit revealed that it was methamphetamine. [10] PW 5 read the caution to the appellant. After completion of the search, PW 5 went to Pejabat Penguatkuasaan KLIA together with the appellant and the exhibits together with the other Custom Officers for the handing over of the case to the investigating officer, Tuan Noor Mohd Azri bin Brahin, PW 6. [11] The appellant was subsequently arrested and charged under section 39B(1)(a) of the DDA 1952. [12] The “serbuk kristal jernih” was then sent for analysis to the government chemist, Mohamad Hanif bin Omar, PW 3 who confirmed that it was methamphetamine which was weighed at 2,422 grams. Methamphetamine is listed under the 1st Schedule of the DDA 1952. 5 [13] 2 handphones were also seized from the appellant, namely, I-phone (P37A) and handphone I-mei (P37B). PW 6 handed over the two hand phones, P37A and P37B to Nik Noraisyiah binti Mohd Razak, PW 4 of Unit Forensic for analysis. After analysis, PW 4 prepared a report marked as P39. [14] It is observed that during cross examination of SP 4, the defence counsel applied for the contents of the conversation of the appellant in the “WeChat” application in the P37A to be downloaded as the basis of the defence was that an individual by the name of Clitin was the person who gave the baggage P7 which contained the impugned drugs and instructed the appellant to deliver the P7 to someone in Malaysia. The learned trial Judge allowed the application by the defence and parties were given time to take the appropriate actions (Page 29 of the RR Jilid 2(1). [15] At the next trial date, the defence counsel informed the court that the handphone, P37A could not be switched on as it had expired and required the permission of the administrator in China. As a result the defence counsel sought for further time be given for him to download the SMS that was in the said handphone and to translate the SMS from Mandarin to Bahasa Malaysia. It was also allowed by the court (Page 30 of RR Jilid 2(1). [16] On the next hearing date counsel for the defence informed the court that PW 4 had succeeded in translating the information from the handphone P37A from Mandarin to Bahasa Malaysia and the prosecution tendered it in the form of a CD to court. After reading and examining the contents of the CD, the defence decided not to use and tender the CD and its contents as exhibit in court (Refer to page 31 of the RR Jilid 2(1)). 6 Submission by the prosecution: [17] It was submitted by the prosecution that all the elements had been proved, namely:

the appellant had custody and control of the drugs;

(ii) the drugs consists of 2,442 gram of methamphetamine; and

(iii) the appellant traffic in dangerous drugs. [18] The baggage P7 is within the possession of the appellant as borne out from the tag of the bag, marked as P43. Inside P7 are the handbags (P45-P52) which contained the drugs which was concealed, stitched and sewn inside the bag. The learned trial Judge correctly invoked the presumption under section 37(d) of the DDA 1952 based on the facts of the case. There was clear evidence of physical custody and control of the drugs which were found in the baggage, P7 which was in the possession of the appellant at the material time. [19] The element of knowledge was proved from surrounding circumstances, namely:

The appellant was shocked when confronted;

(ii) The method and the manner which was devised by the appellant to carry and transport the drugs; 7

(iii) The way the drugs were stitched in between layers of leather in the handbags indicate an intention to conceal and avoid detection (Teh Hock Leong v PP [2008] 4 CLJ 764). [20] The appellant was trafficking in dangerous drugs. The learned trial Judge was correct when he applied section 2 of the DDA 1952 to make a finding that the act of the appellant fell within the said section to constitute the act of “trafficking” in the drugs. There was direct evidence that pointed to the act of trafficking, namely the appellant was transporting the drugs from Hong Kong to Kuala Lumpur. The act of the appellant could also amounted to concealing, transporting and importing and also carrying dangerous drugs. The amount which was large, namely 2,422 grams suggested a strong inference that the drugs was not meant for personal consumption but for distribution/trafficking. (Mohamad Yazri bin Minhat v PP [2003] 2 MLJ 241). [21] The appellant was not an innocent carrier as claimed. She was guilty of wilful blindness as there were reasons to suspect that the contents of the baggage was not what it appeared to be. There was failure on the part of the appellant to enquire or to check the contents of the baggage when she had the opportunity to do so, before she embarked on the flight to Kuala Lumpur. She was paid handsomely for her effort to carry the baggage to Kuala Lumpur and for it to be delivered to someone whom she did not know in Kuala Lumpur. The appellant was paid including return ticket, lodging just to deliver sample items to Kuala Lumpur when the facts show that it would be more convenient and cheaper to have it delivered by courier. 8 [22] The appellant failed to prove the existence of the male individuals by the name of Clitin and Charles, whom she claimed to have given her the baggage. [23] The learned trial Judge had applied the correct burden of proof at the end of the trial in convicting the appellant. [24] The defence had urged the court, in the alternative for a reduction of the charge to section 6 of the DDA 1952 which was misconceived as the said section is inapplicable to the case in question. The evidence and the facts in the present case supported the charge against the appellant. Submission by the defence: [25] From the submission, the main issue raised by the Defence is whether the appellant is an innocent carrier or whether the doctrine of wilful blindness applied in the circumstances of the case. [26] It is the submission of the defence that it is important to see in this case as to how the drugs were placed before the arrest of the appellant. In the present case the drugs were not within sight if one were to look into the baggage. By looking at the hand bags one would not know the presence of the drugs which was inside the hand bags within the layers of leather which was glued and sewn onto the branded hand bags. Someone like PW 4 who often comes across cases of drugs hidden in bags, also could not have detected the drugs which was kept in the baggage until he used the scanner to scan the baggage. Hence it is reasonable and believable that the appellant would not know and neither 9 would she be able to detect the existence of the drugs even if she was to examine the baggage. [27] Further the act of the appellant showed that she was an innocent carrier. PW 4 said that when the baggage P7 was scanned, the appellant did not appear panicky nor behaved suspiciously. The defence referred to the case of PP v Li Qian [2018] MLJU 377 and submitted that the facts of that case is very much similar to our present case. [28] Alternatively, the defence submitted that the appellant be given a second chance and that the charge be reduced to section 6 punishable under section 39A(2) of the DDA 1952 and an appropriate sentence of imprisonment be imposed. [29] It is clear that the appellant was used as a drug mule by certain unscrupulous drugs syndicate which reaped profits from every drug transaction. The findings of the learned High Court Judge: [30] The learned trial Judge laid out the ingredients of the offence which needed to be proven by the prosecution, namely:

that the item seized are drugs under the DDA 1952;

(ii) the appellant was in custody and control of the drugs and that the appellant had knowledge of the same; and

(iii) the appellant committed an act of trafficking. 10 [31] The learned trial Judge accepted the evidence of the chemist, PW 3 who confirmed that the drugs were methamphetamine and weighed 2,422 gram, which is listed under the 1st Schedule of the DDA 1952. [32] On the 2nd element, the appellant was seen carrying the baggage P7 which bore a luggage tag, P43 in her name. P7 contained the handbags P45-P52 which contained the impugned drugs. These drugs were placed in the bags concealed between the leathers sewn on the hand bags. The learned trial Judge held: “Mahkamah berpandangan daripada keadaan kes ini, Tertuduh mempunyai jagaan, kawalan, milikan dan pengetahuan ke atas dadah berbahaya tersebut. (Parlan Dadeh v PP [2008] 6 MLJ). Mahkamah juga membuat dapatan bahawa Tertuduh memiliki dadah berbahaya tersebut secara affirmatif. (Ibrahim Mohamad v PP [2011] 4 CLJ 113). Dengan itu mahkamah menggunapakai anggapan dibawah seksyen 37 (d) ADB 1952.” [33] As for the 3rd element, the learned trial Judge applied section 2 of the DDA 1952 and found that the appellant had committed an act of trafficking in the drugs which falls under section 2 of the same. However the learned trial Judge did not specify which of the acts under the definition does the act of the appellant falls under. [34] As to the issue of innocent carrier, although the learned trial Judge referred to it, there was no affirmative findings nor analysis on the said defence, save and except that the learned trial Judge referred to his earlier cases whereby he had reduced the charges in those cases which he had heard, to section 6 of the DDA 1952. In those cases, on appeal to the 11 Court of Appeal it had been overturned and the death sentence were imposed against the said accused in the respective cases. His Lordship has no information as to what happened to those cases in the Federal Court. [35] In any event, in our present case, the learned trial Judge said that after a maximum evaluation of the prosecution’s case, he found that the prosecution had proved a prima facie case against the appellant and that defence was ordered to be called. [36] The appellant chose to give evidence under oath and called 2 witnesses, namely SD 1 (the appellant herself) and Cik Yuan Qian (SD 2), who is a friend of the accused, who had introduced Clitin to the appellant. [37] From the evidence of the appellant, she had befriended an African man named Clitin through “WeChat” a week before she was arrested. She was introduced to Clitin by her friend, SD 2 after the appellant attempted to borrow some money from SD 2 to pay her house rent. [38] Clitin promised to give to the appellant 4500 RMB for the appellant to bring samples of items to Malaysia. According to the appellant, Clitin was in the business of international exports and imports, but it was not clear as to what was the nature of products in this business of international exports and imports. [39] The appellant in her testimony said that the baggage, P7 was obtained from Charles, a business friend to Clitin in Guangzhou, China. At Guangzhou, Charles gave the appellant USD 400 and a return ticket to 12 Malaysia. Then Charles brought the appellant to several shops to obtain samples of items which were to be brought to Malaysia. [40] The appellant then took a taxi to go to the bus station in Guangzhou before boarding the flight from Hong Kong to Malaysia. In Malaysia, the appellant was arrested. [41] According to the appellant, she had communicated with Clitin through “WeChat”. [42] The testimony of SD 2 was that she had the occasion to travel to Malaysia 2/3 times bringing items given by Clitin which consisted of clothings, bags and shoes and she was paid 1000-3000 RMB each time she brought in those items. SD 2 introduced the appellant to Clitin for her to obtain cash from Clitin. There appeared to be no problem when SD 2 brought those items to Malaysia given by Clitin to her during those 2/3 times that she came to Malaysia. [43] The learned trial Judge found that the defence of the appellant was that she did not know about the drugs in the hand bags as it was concealed and sewn into the same. She placed the blame on Clitin. [44] The learned trial Judge found that the existence of Clitin and Charles was not proved by the appellant. Even if the existence of Clitin was proved, the appellant still failed to raise a reasonable doubt on the case of the prosecution. The learned trial Judge held that the defence of the appellant was a bare denial. The learned trial Judge said in his judgment at page 18 of RR Jilid 1 as: 13 “[52] Demeanor SD 1 dan SD 2 adalah meragukan. Mahkamah ada mencatit demeanor mereka menurut s. KTJ dalam Nota Prosiding.” [45] The learned trial Judge held that the prosecution had proved the charge against the appellant beyond reasonable doubt. OUR FINDINGS: [46] Although the oral submission by the defence before us focussed on the issue of the defence of the appellant as an innocent carrier, for the sake of completeness, we find it appropriate to also address the other grounds as raised in the Petition of Appeal, which the defence claimed that the learned trial Judge had erred, when His Lordship:

applied the presumption under section 37(d) of the DDA 1952 when he failed to discuss the elements of custody and control of the said drugs;

(ii) applied the definition section under section 2 of the DDA 1952 to make a finding of trafficking without stating the act of the appellant fell within which stipulated acts in the definition;

(iii) found that the appellant was not an innocent carrier without giving justification for his finding; and

(iv) found that the defence was a bare denial. 14 Alternatively the defence urged this court to consider reducing the charge to that under section 6 of the DDA 1952 punishable under section 39A(2) of the same. Whether the learned trial Judge erred when he applied the presumption under section 37(d) of the DDA 1952 when he failed to discuss the elements of custody and control of the said drugs and how that was applied in the present case: [47] It has been overly emphasised that possession involves the element of custody and control with knowledge. The case of Abdul Rahman Akif v PP [2007] 4 CLJ 337 referred to the case of Chan Pean Leon v PP [1956] 22 MLJ 237 where Thomson J dealt with the issue of possession where he observed that: “…A movable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need. To put it otherwise, there is a physical element and a mental element which must both be present before possession is made out. The accused must not only be so situated that he can deal with the thing as if it belonged to him, for example have it in his pocket or have it lying in front of him on a table. It must also be shown that he had the intention of dealing with it as if it belonged to him should he see the occasion to do so, in other words, that he had some animus possidendi. Intention is a matter of fact which in the nature of things cannot be proved by direct evidence. It can only be proved by inference from the surrounding circumstances. Whether these 15 surrounding circumstances make out such intention is a question of fact in each individual case……. Here again knowledge cannot be proved by direct evidence, it can only be proved by inference from the surrounding circumstances. Again the possible variety of circumstances which will support such an inference is infinite.” [48] The submission by the defence merely hinged on the issue of whether the appellant was an innocent carrier and whether the issue of wilful blindness applies. [49] The learned trial Judge had invoked the presumption under section 37(d) of the DDA 1952. In his grounds at paragraph 27 page 13-14 of RR Jilid 1, His Lordship had scrutinised the facts that constituted possession as follows: “[27] Mengenai elemen 2, Tertuduh telah membawa bagasi P7. Bagasi P 7 itu atas namanya seperti tag bagasi P43. Dalam P 7 terdapat antara lain beg-beg tangan P 45 hingga P 52 yang berisi dadah berbahaya yang disorokkan dan dijahit di dalamnya. Mahkamah berpandangan daripada keadaan kes ini, tertuduh mempunyai jagaan, awalan, milikan dan pengetahuan ke atas dadah berbahaya tersebut. (Parlan Dadeh v PP…) Mahkamah juga membuat dapatan bahawa Tertuduh memiliki dadah berbahaya tersebut secara afirmatif……..Dengan itu Mahkamah menggunapakai anggapan di bawah seksyen 37 (d) ADB 1952.” [50] From the aforesaid, the learned trial Judge did consider the facts before making a finding of possession and subsequently applying the presumption under section 37(d) DDA 1952. From the evidence, the 16 appellant was seen lugging the baggage P7 and subsequently had it scanned whereby the result of the scan showed the suspicious images present from inside the baggage. Further inspection by PW 5 found that the baggage P7 contained several handbags which were scanned and concealed in the layers of leather which were stitched into the hand bags, plastic packages which was ultimately found to contain “serbuk kristal jernih” [51] From the evidence by the prosecution witness, PW 5 saw the appellant on the material date and time at the check point of customs. The appellant was alone at the material time and that the bag tag, P43 bore the name of the appellant. There was also the evidence of the flight ticket of the appellant from Hong Kong to Kuala Lumpur (P42). The search list, P44 was prepared by PW 5 which listed the contents of the baggage, P7 which were seized from the appellant. The search list was signed by the appellant confirming the baggage, P7 and the items which were found in the same. These facts proved that the baggage, P7 and logically whatever items found in the said baggage were within the physical care, custody and control of the appellant before her arrest. [52] On the element of knowledge, the learned trial Judge had invoked the presumption under section 37(d) of the DDA 1952. We are of the view that the learned trial Judge has every right to invoke such presumption after finding that the appellant had physical custody and control of the baggage, P7 and its contents. There was no error on the part of the learned trial Judge in so doing. It is then left to the appellant to rebut the presumption on a balance of probabilities. Therefore the issue raised by the defence in paragraph 1 of the Petition of Appeal has no merits. 17 Whether the learned trial Judge erred when he applied the definition section under section 2 of the DDA 1952 to make a finding of trafficking without stating which of the stipulated acts in the definition was the act of the appellant: [53] The learned trial Judge in his grounds held that: “[28] Mengenai elemen 3, Mahkamah berpendapat Tertuduh telah melakukan pengedaran dadah berbahaya tersebut menurut seksyen 2 ADB 1952.” [54] Although the learned trial Judge did not stipulate in his grounds as to which of the acts as defined in section 2 of the DDA 952 that the act of the appellant fell under, to constitute “trafficking”, that by itself would not render his findings on “trafficking” erroneous. [55] As can be discerned from the evidence which was led by the prosecution, the starting point of the evidence was when the appellant was seen carrying the baggage, P7 from the moment she entered the arrival hall towards PW 5 when she was told to put the baggage onto the scanner machine. [56] Section 2 of the DDA 1952. Section 2 defines “Trafficking” as: “…..includes the doing of any of the following acts, that is to say, manufacturing, importing, exporting, keeping, concealing, buying, selling, giving, receiving, storing, administering, transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug otherwise than 18 under the authority of this Act or the regulations made under the Act.” [57] From the aforesaid evidence, it showed that the appellant was arrested in the act of conveying and transporting a large amount of drugs via Air Asia flight AK 131 from Hong Kong to Kuala Lumpur. Therefore such “conveyance and transporting” act of the appellant carrying the baggage, P7 falls within the category of “trafficking” under section 2 of the DDA 1952. It can also fall under “importing” as it was the act of bringing in the drugs from another country (Hong Kong) to Kuala Lumpur. There were evidence of the flight tickets of the appellant in exhibits P41 and P42 which proved her being on the flight from Hong Kong to Malaysia. [58] Lord Diplock at page 68H and 69A in Ong Ah Chuan v PP [1981] 1 MLJ 64 had the occasion to elaborate on the meaning of “transporting” of drugs: “It must mean moving the drugs from one place to another; it may mean moving them also to another person but it need not be so. Whether it bears the wider or the narrower meaning depends upon the context in which the verb appears. In their Lordships’ view the immediate context of the verb “transport”, to which attention has been drawn, attracts the maxim noscitur a sociis. This, and the fact that it appears in the definition of the verb to “traffic”, of which the natural meaning in the context of trafficking in goods involves dealings between two parties at least, and that the evident purpose of the Act is to distinguish between dealers in drugs and the unfortunate addicts who are their victims, all combine to make it clear that “transport” is not used in the sense of mere conveying or 19 carrying or moving from one place to another but in the sense of doing so to promote the distribution of the drug to another.” [59] The act of carrying/keeping/concealing, amongst others is also within the definition of “trafficking”. The evidence also show that the act of the appellant can amount to “concealing and carrying” the said drugs from Hong Kong to Kuala Lumpur which also fall within the definition. The fact that the drugs were hidden from sight, when it was sewn in the layers of leather in the handbags showed the element of “concealing” and “keeping” which also constitute trafficking under section 2 of the DDA

[60] The Federal Court in PP v Lim Hock Boon [2009] 3 CLJ 430 at page 458 acknowledged that the prosecution may bring its case under any of the acts stipulated under the definition of “trafficking” under section 2 of the DDA 1952. However Agus Agil v PP [2010] 9 CLJ 125 elaborates further on the application of section 2 of the DDA 1952 as to the words “concealing and carrying” when the court held that: “It is trite law that mere keeping, concealing or carrying of the drug is not sufficient to constitute trafficking. However, in Ong Ah Chuan case Lord Diplock also said at p. 69 that:- Proof of the purpose of which an 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 20 consumption in them would in the absence of any plausible explanation by him, be irresistible-even if there were no statutory presumption such as is contained in section 15 of the Drugs Act. As a matter of common sense the larger the quantity of drugs involved the stronger the inference that they were not intended for the personal consumption of the person carrying them, and the more convincing the evidence needed to rebut it.” (emphasis ours) [61] Therefore, in the circumstances, as the quantity of drugs was very large, namely 2,422 grams, than what is likely intended for own personal consumption, it is an irresistible inference that the appellant was transporting the drugs for the purpose of trafficking, in the absence of any plausible explanation by the accused. This court in Mohamad Yazri bin Minhat v PP [2003] 2 MLJ 241 said that: “Whether he is a trafficker in those circumstances depends on the facts and circumstances of the given case, including the quantity of the drugs and any transaction the accused proposed to enter into.” [62] In Koh Tiong Hock v PP [2011] 2 CLJ 377 at page 390, this Court held that, for offences under section 39B(1) of the DDA 1952, it is irrelevant to the guilt of the accused whether the purpose of the accused transporting the drugs for distribution was achieved or not as the gist of the offence is the transporting of the drugs for the purpose of distribution, irrespective of the success of distribution. [63] There is no doubt that the act of carrying of the baggage, P7 which contained the impugned drugs from Hong Kong to Kuala Lumpur by the 21 appellant falls within the definition of “trafficking” under section 2 of the DDA 1952. This is fortified by the fact of the large quantity of the drugs found in the baggage, P7 gave a strong inference that the appellant was trafficking in drugs. The learned trial Judge did nor err when His Lordship held that the appellant in transporting and carrying the drugs from Hong Kong to Kuala Lumpur committed the act of trafficking which fell within section 2 of the DDA 1952. [64] From the overwhelming evidence, there are acts of the appellant which fall within the act of trafficking, namely, importing, exporting, keeping, concealing, transporting, carrying, sending, delivering to name a few. In fact in the grounds at paragraph 27, the learned trial Judge had mentioned the words “Tertuduh telah membawa bagasi… yang disorokkan……” namely “carrying” and “concealing”. [65] Therefore the learned trial Judge did not err when he relied on the definition section of “Trafficking” under the DDA 1952 to make a finding of “Trafficking” against the appellant based on the evidence tendered by the prosecution. Whether the learned Judge erred when he found that the appellant was not an innocent carrier without giving justification for his finding: [66] It was submitted by the defence that there was no discussion by the learned trial Judge at all in the grounds on the issue of innocent carrier. Neither were there any findings by His Lordship on whether the appellant was an innocent carrier. Instead the learned trial Judge referred to earlier cases which His Lordship had decided, which were on all fours with the present case. In those earlier cases, he had reduced the charges from 22 section 39B (1) to section 6 of the same and the decisions were overturned by the Court of Appeal and the accused persons therein were convicted under section 39B (1) and sentenced to death under the same. [67] As held in Hoh Bon Tong v PP [2010] MLJU 2184, which was referred to by the Court of Appeal in Singapore in PP v Hla Win [1995] 2 SR 424, the defence of innocent carrier involved the doctrine of wilful blindness. Yong Pung How C.J. (Singapore) in PP V Hla Win held that “the concept of wilful blindness qualifies the requirement of knowledge.” His Lordship referred to Warner v Metropolitan Police Commissioner [1968] 2 AER 356 and modified in Tan Ah Tee v PP [1980] 1 MLJ 49 held that: “Ignorance is a defence when there is no reason for suspicion and no right and opportunity of examination, and ignorance simpliciter is not enough.” (emphasis ours) [68] There has been several cases decided which decided on the application of wilful blindness, one such case is PP v Herlina Purnama Sari [2016] 2 MLJ 724 where this court held that: “[45] Wilful 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. ……..Whether the doctrine of wilful blindness should be 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 23 of the particular case giving due weight, where necessary, to the credibility of the witnesses……… [46]……….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 “wilful 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. [47] Most of the cases where the concept was held to apply concerned cases in which the accused was asked to carry certain articles, or a package, or a bag, or to swallow certain items. In these circumstances, where the request to do any of those things mentioned would be such as would arouse the suspicion of a reasonable person as to the contents, it was upon the accused to make sufficient inquiries so as to dispel or to set straight such suspicions. Should the accused not make any or any sufficient inquiries under those circumstances, the concept of wilful blindness would apply so as to fasten upon him or her the necessary knowledge as to the nature of those contents. In other words, if he deliberately shuts his eyes to the obvious, because he “doesn’t want to know”, he is taken to know.” [69] The defence is essentially, the appellant had no knowledge about the drugs in the handbags as it was well hidden from the naked eye and was sewn between the layers of the leather of the handbags. However it was hard to believe that the appellant did not check the contents of the baggage, P7 before taking the flight to Kuala Lumpur. It is undisputed that the drugs were found in the hand bags in the baggage, P7. Although the appellant claimed that she was an innocent carrier, however from the 24 evidence, there were facts that would have raised suspicion on the contents of the baggage, P7, namely:

The baggage, P7 was given by someone whom the appellant had only known a week before her flight to Kuala Lumpur;

(ii) There was ample opportunity for the appellant to check the contents of the baggage, P7 before embarking on the flight to Kuala Lumpur. For someone to travel to a foreign country, it would be prudent to be sure of the contents of bags that one carries, what more if the bag was given by someone else, for fear that you may be carrying contrabands or items contravening the law. The appellant was not prohibited from checking the contents of P7 before taking the flight. She could have but she chose not to;

(iii) P7 contained samples of items and the appellant was paid RMB 4500 (USD 500.00) to bring the samples to Kuala Lumpur. This payment appeared lucrative for a simple task of merely carrying and delivering the samples to someone in Kuala Lumpur. In addition return ticket fare and lodging were paid entirely by Clitin. The costs of getting the appellant to bring the baggage, P7 to Kuala Lumpur was higher than the costs of the baggage and the sample items in the bag. It would have been convenient and much cheaper if the sample items were just couriered to the recipient. Why the trouble getting the appellant to bring it to Kuala Lumpur. There was nothing special about the sample items that were in the baggage, P7 that warrants it to be personally transported by the appellant. 25 Further why engaged the appellant to deliver the sample, but not Clitin or Charles himself?;

(iv) The appellant did not know to whom she was supposed to deliver the baggage, P7. She did not have any details of the recipient of the baggage, P7 and neither did she know the destination the baggage was supposed to be delivered to in Kuala Lumpur. She was only told that the person would contact her upon her arrival in Kuala Lumpur;

The appellant has never met with Clitin and does not know his full name, his address, the whereabout of his office, the name of the business of Clitin and neither had she gone to Clitin’s shop or office. All the above are grounds that ought to have aroused suspicion on the part of the appellant. The appellant is an educated person, a graduate in Economics from the University of Xihua and she did not bother to ask and enquire as to what were the contents of the baggage, P7 especially when she was to travel to another country where she would be subjected to immigration and customs checks at the entry and exit points of a foreign country. Her duty was merely to bring the baggage to Kuala Lumpur for a fee, that was the only knowledge that she had as far as the baggage, P7 was concerned. With the aforesaid background facts surely alarm bells of suspicion ought to have been aroused to a person of reasonable intelligence such as the appellant, as to the very true purpose of the trip and the delivery. Something is not right about the whole arrangement. 26 [70] The conduct of the appellant, displayed an act of wilful blindness towards the contents of the baggage, P7. She is then taken to know the contents of the baggage. Therefore the defence of innocent carrier fails. [71] The defence referred to the case of PP v Li Qian [2018] MLJU 377 (Li Qian), a decision by this court which, according to the defence is on all fours with our present case where this court held that it was not safe to convict the accused therein under section 39B of the DDA 1952 in the circumstances. [72] A perusal of the facts of Li Qian disclosed that the facts can be distinguished from our present case. In Li Qian the drugs were concealed behind the metal pull of the bag which was not noticeable even if the bag was opened. It was held in Li Qian that: “…What we noted was that the way the drugs exhibit were concealed in P 26, would not make the drugs easily noticeable upon checking. Thus, even if the Respondent were to open the content to check , she would not be able to see anything suspicious because the drugs exhibit was hidden behind the metal pull of P 26 and would not be noticeable to her even if P 26 was opened. This was due to the way the drugs was concealed. This particular fact, would distinguished this case with the rest of the decided authorities which support the legal proposition that the law will not protect anyone who claims to be innocent carrier when he had turned wilfully blind to the obvious. In PP v Herlina Purnama Sari (supra) for example, the drugs were in the luggage, packed in two boxes on top of all the clothings. Thus any one who opened the bag and checked would easily noticed the two boxes and would arose suspicion as to the content of the two boxes.” [73] Further the defence of the accused in Li Qian was that she knew the person “Dan” who gave her the bag which contained the drugs as she 27 had an intimate and romantic relationship with “Dan”. The narrative by the accused was found by the trial Judge to be a reasonable explanation in that the accused was supposed to take the flight to Malaysia together with “Dan”, however “Dan” received a last minute call through his handphone which made him unable to go on the flight with the accused to Malaysia. The fact also showed that the accused informed the Customs Officer when she arrived at the airport that the bag was not hers. The Custom Officers was also shown the SMS given by Dan which stated, “When you arrived at Malaysia the taxi driver will help you call the hotel.” The learned trial Judge also referred to “the act of the Customs Officer who prevented the respondent from answering her phone, as tantamount to a material loophole in the case of the prosecution. If that had been allowed the learned trial Judge opined that the Customs Officer would be able to plan to trap the caller and to get him, or produce him before the Court either as an accused person or a witness”. There was cogent evidence in that case to show that “Dan” was the main player in putting the drugs found in the bag which was later passed to the accused to be carried. The learned trial Judge found the evidence of the accused in Li Qian to be credible and had accepted her as a credible witness. Li Qian involved “findings of facts by the learned trial Judge, and as a matter of legal principle, it would not be proper for this court to interfere with findings of facts by the trial court unless there is a plain and overriding error which affected the assessment of facts as enunciated in Low Kian Boon & Anor [2010] 1 MLRA 418 and Topaiwah v Salleh [1968] MLRA 580.” [74] Unlike our case, the learned trial Judge disbelieved the narrative by the appellant. There was no evidence to show that Clitin was involved 28 in putting the drugs in the bag, P7. The appellant said that the bag, P7 was purchased by Charles, whose existence was not proven, save for the bare assertion by the appellant. Hence Li Qian cannot be said to be similar on the facts with our case. Whether the learned trial Judge erred when he found that the existence of Clitin and Charles was not proven when there are corroborative evidence from the witnesses that confirm the inexistence: [75] The learned trial Judge at paragraph 27 of the grounds held that the existence of Charles and Clitin was not proved by the defence. Even if Clitin exists as stated by SD 2, the defence of the accused failed to raised a reasonable doubt on the prosecution’s case. [76] There was no proof or documents to show the existence of Charles or Clitin, especially on the agreement that the appellant was to deliver the baggage, P7 to Kuala Lumpur. Even SD 2 said that she did not know Charles (exhibit D 75 and page 156 RR JIlid 2 (2). [77] Although the appellant said in evidence that the “WeChat dalam telefon Yuan Qian boleh tunjuk keujudan Clitin” (Page 144 of RR Jilid 2(2)), this remained as a bare assertion devoid of any supporting evidence. The message was between her and her boyfriend not Clitin. There has been no other evidence to show proof of any communication between the appellant and Clitin. [78] SD 2 in her evidence testified that she had on few occasions came to Malaysia bringing in items to Kuala Lumpur at the behest of Clitin and there were no problems. This piece of evidence would not support the 29 appellant’s defence. Although the appellant said in her evidence that SD 2 had given the details of Clitin to the investigation officer, that was never asked of SD 2 when she was giving evidence. [79] Similarly with Charles, there is no details as to the full name, address, contact number provided to the investigation officer. [80] The prosecution had attempted to obtain the contents of the conversation between the appellant and Clitin from the handphone of the appellant which was seized, but to no avail. In fact the defence had applied to download the conversation which was allowed by the court and it was downloaded in a CD. However, after going through the contents of the CD, the defence decided against using and tendering it in court as exhibit. Hence there was no suppression by the prosecution as to the effort to verify the existence of Clitin and Charles who could explain as to the presence of the drugs in the baggage P7. [81] From the aforesaid, there is nothing to show the existence of Clitin and Charles as alleged by the appellant. In any event since it was the appellant who claimed that her trip to Kuala Lumpur was on the behest of Clitin and Charles, it is incumbent for the defence to bring Clitin and Charles to testify in support of her story. The burden is not on the prosecution to bring Charles or Clitin to court as “he who asserts must prove” (section 101 and 103 of the Evidence Act 1950). Although SD 2 said that Clitin was introduced by her to the appellant, her testimony had to be treated with caution as there is no supporting evidence to corroborate her testimony. 30 [82] There is thus no cogent evidence to show that Clitin and Charles exist, especially as to their involvement in the presence of the drugs in the baggage, P7 which was carried by the appellant to Kuala Lumpur from Hong Kong. [83] In any event, what has to be noted is that the charge is on possession and not ownership of baggage, P7. The evidence show that it was the appellant who was arrested with physical custody of the baggage, P7 in her hand at the material time and place. Whether the learned trial Judge had erred when he applied the burden of proving the prosecution beyond reasonable doubt when he was evaluating the defence case: [84] This is with regards to the findings of the learned trial Judge which is as follows: “[50] Isu-Isu yang perlu diputuskan di akhir kes ialah:

50.1 sama ada pembelaan dapat menimbulkan sebarang keraguan yang munasabah ke atas kes pendakwaan;

50.2 sama ada Tertuduh dapat menyangkal anggapan di bawah seksyen 37(d) ADB 1952?

50.3 sama ada pendakwaan telah membuktikan kesnya melampaui keraguan yang munasabah?” [51] Mengenai isu 1, Mahkamah berpandangan pembelaan gagal menimbulkan sebarang keraguan yang munasabah ke atas kes pendakwaan. Pembelaan adalah satu penafian …… 31 [53] Mengenai isu 2, Mahkamah berpandangan pembelaan gagal menyangkal anggapan di bawah seksyen 37 (d) ADB 1952 atas imbangan keberangkalian. [54] Mengenai isu 3, Mahkamah berpandangan bahawa pendakwaan telah membuktikan kesnya melampaui keraguan yang munasabah.” [85] From the findings of the learned trial Judge there has been no error as submitted by the defence. As far as rebutting the presumption under section 37(d) of the DDA 1952 is concerned, the burden is on a balance of probabilities. Whereas as for proving the charge against the accused, the burden on the prosecution is proof beyond reasonable doubt. It is the finding of the learned trial Judge that the defence failed to raise a reasonable doubt on the case for the prosecution. There is no error on the part of the learned trial Judge when he made such findings in paragraphs 51-53 in his grounds. Whether the defence of the appellant was a bare denial: [86] The learned trial Judge found that the defence of the appellant was a bare denial of her knowledge of the drugs. [87] We are of the view that the learned trial Judge did not err when making such findings because the appellant was trying to put the blame on Clitin and Charles for her misfortune. There was no evidence to support the appellant’s assertion as to the existence of Clitin or even Charles. Neither was there any evidence to show that the drugs were placed in the handbags in baggage P7 by Clitin or Charles. The appellant denied that 32 she was the one who placed the drugs in the bags and she had no knowledge of the drugs in question. This contradicted with the evidence as the bag has the name tag of the appellant which implied that the baggage was hers. [88] Based on the aforesaid, there is no plausible reason to believe the narrative of the appellant which denied that the baggage was hers but was given by Clitin. The “WeChat” in her handphone which the appellant claimed to contain the conversation between her and Clitin was never adduced as evidence, although the defence was given every opportunity to download the contents of the conversation from the handphone. The evidence of SD 2 showed that she did not know of any arrangement or conversation between the appellant and Clitin of the drugs in the baggage P7. SD 2 also did not know anything about the drugs that was present in the baggage, P7. [89] The cautioned statement of the appellant, P74 disclosed that she had made reservations of lodging in Malaysia at a Hotel in Kepong based on information by Clitin. However, there is no such proof or details of any reservations provided by the appellant or SD 2 that the appellant had indeed made reservations of any lodging at any Hotel at Kepong. [90] As to the voice message which Clitin allegedly had made to the appellant in the presence of the investigation officer, PW 6 at PW 6’s office, this was never raised nor asked to the prosecution witnesses at the prosecution’s stage. Hence this amounted to an afterthought or a recent invention which the court will disregard. 33 [91] Given the aforesaid, the learned trial Judge did nor err when he found that the defence were mere afterthought. Whether the learned trial Judge erred when he found that the demeanour of SD 1 and SD 2 was in doubt when he failed to justify such findings: [92] The learned trial Judge in his grounds held at page 18 paragraph 52 of RR Jilid 1 that: “[52] Demeanor SD 1 dan SD 2 adalah meragukan. Mahkamah ada mencatit demeanor mereka menurut s. KTJ dalam Nota Prosiding.” [93] Our perusal of the Notes of Proceedings did not disclose any notations made by the learned trial Judge of the demeanour of SD 1 and SD 2. Such failure in any event, is not fatal to the prosecution’s case. Whether alternatively the charge against the appellant can be reduced to section 39A(2) of the DDA 1952: [94] It was suggested by the defence that alternatively the charge against the appellant could be reduced to possession under section 6 of the DDA 1952 which is punishable under section 39A(2) of the same. [95] In this respect we referred to Section 6 of the DDA 1952 which provides that: “6. Any person who keeps or has in his possession, custody or control any raw opium, coca leaves, poppy-straw or cannabis or the seeds of the plants from which they may be 34 obtained either directly or indirectly, except under and in accordance with an authorization such as is referred to in sections 4 and 5 or with any regulation made under section 7 thereof, shall be guilty of an offence against this Act and liable on conviction to a fine not exceeding twenty thousand ringgit or to imprisonment for a term not exceeding five years or to both.” The charge against the appellant is for trafficking in methamphetamine which is outside the scope of section 6. Hence section 6 is not applicable. [96] Even if one is to consider a reduction of the charge to one of possession under section 12(2) of the DDA 1952, is also not possible because the facts and evidence support the charge of trafficking. For clarity we reproduced section 12(2) and (3) of the DDA 1952 which provide as follows: “12. (2) No person shall have in his possession, custody or control any dangerous drug to which this Part applies unless he is authorized to be in possession, custody or control of such drug or is deemed to be so authorized under this Act or the regulations made thereunder.

Any person who contravenes subsection (2) of this section shall be guilty of an offence against this Act and shall be liable on conviction to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding five years or to both.” [97] The charge against the appellant is for trafficking in methamphetamine which is outside the scope of section 6 or section 12(2) of the DDA 1952. Therefore, a reduction of the charge, be it under section 35 6 or 12(2) of the DDA 1952 is not possible in view of the overwhelming evidence of trafficking of methamphetamine under section 39B(1) of the same. Hence there is no merits in reducing the charge to an offence of possession as suggested by the defence. Conclusion: [98] Premised on the aforesaid, there is no merits in this appeal which warrant appellate intervention in the decision of the learned trial Judge. The conviction and sentence is safe. The appeal is dismissed. The conviction and sentence meted out by the learned trial Judge is hereby affirmed. Signed by: Zabariah Mohd Yusof Judge Court of Appeal Putrajaya. Date: 27.12.2019 COUNSEL: Tan Choon Hong for the Appellant [Messrs. Tan Choon Hong & Associates] DPP Datuk Nazran bin Mohd Sham for the Respondent [Attorney General’s Chambers]