Yan Lanhua v Pendakwaraya (B-05(M)-481-10/2017)

1 DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA [BIDANG KUASA RAYUAN] RAYUAN JENAYAH NO: B-05(M)-481-10/2017 ANTARA YAN LANHUA (W/CHINA) (No. Pasport: E 3451301) ...PERAYU LAWAN PENDAKWA RAYA ...RESPONDEN [Dalam Perkara Mahkamah Tinggi Malaya di Shah Alam Bicara Jenayah Selangor No:45A-89-09/2014] Antara Pendakwa Raya Dan Yan Lanhua KORUM: UMI KALTHUM ABDUL MAJID, HMR RHODZARIAH BUJANG, HMR MOHAMAD ZABIDIN MOHD DIAH, HMR 2 GROUND OF JUDGMENT [1] This is an appeal against the decision of the learned High Court Judge who on 28.9.2017 found the Appellant guilty of trafficking 2,156.8 grams of methamphetamine and was sentenced to death by hanging. [2] The amended charge against the Appellant reads: "Bahawa kamu pada 15 November 2013, jam lebih kurang 4.15 petang, di Cawangan Pemeriksaan Penumpang 2 ( CPP2), Lapangan Terbang Tambang Murah (LCCT), Lapangan Terbang Antarabangsa Kuala Lumpur(KLIA), di dalam daerah Sepang, di dalam negeri Selangor Darul Ehsan telah mengedar dadah berbahaya iaitu Methamphetamine seberat 2,156.8 gram dan dengan itu kamu telah melakukan kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1951 yang boleh dihukum di bawah Seksyen 39B(2) Akta yang sama.” [3] On 2.1.2019 we heard this appeal and we unanimously came to the conclusion that there was no merit in this appeal. We found the conviction and sentence handed down by the learned trial judge was safe. Hence the appeal was dismissed and the conviction and sentence was affirmed. We now give our grounds for our decision. Facts of the case [4] Facts leading to the arrest and charging of the Appellant as narrated by the prosecution witness are as follows: a) At about 4.15 pm on 15 November 2013, the Appellant arrived at the Low Cost Carrier Terminal at Kuala Lumpur International 3 Airport on board Air Asia Flight AK 1087 from Shenzhen, China. b) Customs officer, Mohammad Asyran bin Mohammad Khir (PW5) spotted her and requested to scan her blue luggage bag (exhibit P16) and the other two items (exhibits P17 and P18) that she was carrying. c) Customs officer Ku Azizah bt Ku Baharum (PW4) noticed suspicious green images when she scanned the blue bag and notified PW5 who requested the Appellant to open her bag for inspection. d) Inside the bag were children's items that included three small pillows (exhibits P16 A to C), shoes and clothing. e) The items in the bag were removed and scanned again. This time the suspicious images were seen only in the three pillows. f) Whereupon, the Appellant was instructed to bring along her bags and was escorted to the Narcotics Office for a thorough examination of her bag. g) PW5 began his examination of the blue bag and its contents at about 5 p.m. upon the arrival of the Investigating Officer, Keith Jonathan (PW7) ("Investigating Officer") and his team. h) The examination was conducted in the presence of the Appellant and Customs Officer Ngu Siu Siu who acted as interpreter. i) PW5 removed some of the stitches on the three small pillows and found three blue packages wrapped in clear plastic concealed in exhibits P16A and P16B and two packages in exhibit P16C. 4 j) The packages were unwrapped and substance suspected to be drugs were found therein. No incriminating items were found in exhibits P17 and P18. The blue bag and its contents and two mobile phones (exhibits P18A and P18B) were seized from the Appellant. k) PW5 labelled all the items seized by recording the date and placing his signature on them and prepared a search list which he served on the Appellant. PW5 testified that the Appellant refused to acknowledge receipt of it although the contents in the search list was explained to her by Customs Officer Ngu Siu Siu. He then lodged a police report about her arrest. l) At about 9.45 p.m. on same day, the Appellant and the items seized were handed by PW5 to the Investigating Officer who kept the exhibits in his locker, to which no one had access. m) On 19 November 2013, the Investigating Officer recorded the Appellant's statement. The Investigating Officer testified that the Appellant's passport showed that this was her second trip to Malaysia. The next day, on 20 November 2013, the Investigating Officer placed the plastic packets containing the substance suspected to be drugs in a box and sent it to government chemist, Suhana binti Ismail (PW6), for analysis. n) On 18 June 2014, he received the exhibits back and chemist report dated 25 February 2014. o) Under cross examination, the Investigating Officer acknowledged that the Appellant in her section 112 statement had denied knowledge of the presence of drugs in the blue bag 5 and had alleged that the blue bag had been given to her by a person of African origin named Baba. p) The two mobile phones seized from the Appellant were sent by PW8, who took over the investigation from the original Investigating Officer, for forensic examination. The forensic report was produced and marked in Court as exhibit P25B. It showed that the Appellant had received calls and 9 sms messages in Chinese on her phones upon her arrival in Kuala Lumpur. [5] Those are the facts gathered from the evidence given by the witnesses during the case for the prosecution. Findings by the Trial Judge at the End of Prosecution’s Case [6] At the end of the case for the prosecution, the learned trial judge made the findings that the unchallenged evidence of the government chemist PW6 proved that the substance found in the blue bag contained 2,156.8 gram of methamphetamine, a dangerous drug listed in the First Schedule of the Dangerous Drugs Act 1951 (“Act”). [7] Since the Appellant was seen carrying the blue bag P16 during the arrest, the learned trial judge found the Appellant was having physical custody and control of the P16. She then invoked the presumption under section 37(d) of the Act and the Appellant was presumed to have possession and knowledge of the nature of the drug found in the blue bag. 6 [8] Since the Appellant was arrested in the act of bringing or transporting a large amount of drugs from China to Kuala Lumpur, the element of transport under section 2 of the Act had been made out. The Appellant would be a trafficker under section 2 if she was transporting the drugs for the purpose of distribution. [9] Although there was no direct evidence that the drug was brought in for the purposes of distribution, the quantity involve was much larger than was likely needed for the Appellant’s own personal consumption. Hence, the learned trial judge found the prosecution had proved that the drugs were in possession of the Appellant for the purpose of trafficking. [10] Learned trial judge then found the prosecution had succeeded in proving prima facie case against the Appellant. Defence’s Case [11] Only the Appellant was called to give evidence for the defence. She gave evidence under oath. She denied knowledge of the presence of drugs in the blue bag and she alleged that the blue bag was given to her by Baba. [12] She further testified that she was born in Hubei, China and only received 6 years of primary education. At the age of 16 she ran away from home to Guangzhou when her elder sister drowned and her mother blamed her for the former's death. She got married at the age of 18 and had 2 children who are teenagers. 7 [13] She met Baba at the church she attended. She had known him for almost a year. He spoke Mandarin and they constantly kept in touch through social media and often met. He was close to her and her children. He owned a factory that produced pillows like the ones recovered from the blue bag. [14] She had been to the factory once before. She came to Malaysia at the behest of Baba, who had asked her to bring some clothing samples to his friend, Jie-Ke, in Kuala Lumpur. [15] Baba explained to her that he could not courier the samples as on numerous occasions other samples had gone missing when he couriered them to his friend. [16] The Appellant further stated that Baba promised to pay her RMB10,000.00 for her services after she had delivered the samples to his friend. Baba paid for her air ticket and gave her some pocket money for her stay in Kuala Lumpur. [17] Baba handed her the blue bag at the airport. She opened it and had a quick glance but did not see any suspicious items. She trusted Baba and did not think it was necessary to examine the contents in the bag thoroughly. [18] The Appellant admitted bringing the blue bag and its contents to Malaysia with her. Upon her arrival at KLIA, she purchased a local Sim card and called Baba. 8 [19] Baba subsequently sent her a message to her mobile phone to inform her which hotel to check into. But unfortunately she was arrested when drugs were found in the blue bag. [20] Under cross examination, the Appellant acknowledged she did not know his real name and his personal particulars nor the details of the person to whom she was to deliver the blue bag. [21] She denied Baba was a fictitious person. She disagreed that she ought to have examined the contents in the blue bag before agreeing to take it to Malaysia. She also denied if she had examined the three small pillows she would have known because of the weight that something was concealed in them. Findings by the Trial Judge at the End of Defence Case [22] The learned trial judge concluded that the gist of the defence case was that the Appellant was an innocent carrier. That from the beginning to the end, she did not know and did not suspect there were drugs in the blue bag given to her by Baba. [23] The learned trial judge found the defence of the Appellant was unmeritorious in all respects. The Appellant’s story as to how she came into possession of the blue bag was wholly unconvincing and was an invention to distance herself from any knowledge that she might have had as to its contents. 9 [24] The learned trial judge appreciated the fact that the accused had mentioned the existence of Baba to the Investigating Officer, but this fact should not be accorded too much weight in light of the fact she knew nothing about him and this was a common defence raised by all traffickers. [25] The learned trial judge did not accept the Appellant’s evidence that she had not refused to sign the search list as alleged to by PW5. PW5 had not met the Appellant before the date and had no reason to concoct evidence against her. Her refusal to sign the list showed that she had knowledge that she was carrying drugs in the blue bag. [26] The learned trial judge observed that the Appellant did not appear to be a gullible nor naive person. The trial judge further reasoned that it was clearly in the evidence that Baba was not someone she was close to as alleged by her. She had no reason to blindly trust him. His explanation to her for asking her to deliver the clothing samples to his friend personally instead of posting it to him was ludicrous and ought to have told her something was amiss. [27] The conduct of Baba in giving her the blue bag only at the airport and promising to message her the name of the hotel she was to check into only upon her arrival at Kuala Lumpur should have further aroused her suspicion. The appellant had herself to be blamed for her folly for not examining the contents in the blue bag. [28] Finally, the learned trial judge found, the factual matrix was such that the Appellant ought to have been suspicious that there were drugs in 10 the blue bag and that she was asked to be a drug courier. The learned trial judge found the Appellant’s reasons for not making further inquiries and checking the items in the blue bag though she had the chance and opportunity to do so was also telling. If she had lifted the pillows, she would have known from the weight of the pillows that something was concealed in them. The learned trial judge then went on to find that the proper inference to be drawn from the facts and circumstances was that the Appellant had wilfully shut her eyes to the obvious truth of the matter. The Appellant did not want to know and chose not to find out that she was carrying drugs. Her lack of compulsion to ascertain the contents in the blue bag demonstrated that she knew it contained drugs and accepted the assignment fully aware of the consequences of her conduct. The Appellant’s story that she did not know there were drugs in the blue bag was implausible and a complete fabrication. The Appellant was not an innocent carrier but a trafficker. [29] The learned trial judge concluded that the evidence of the Appellant failed to rebut the statutory presumption of possession under section 37(d) of the Act and did not cast a reasonable doubt as to the truth of the prosecution’s case. She found the prosecution had succeeded in proving the charge of trafficking against the Appellant beyond reasonable doubt. The learned trial judge then proceeded to convict the Appellant as per the amended charge and sentenced her to the hung by the neck until she is dead. 11 Grounds of Appeal [30] There were 7 grounds of appeal listed in the Petition of Appeal. However, during the hearing of this appeal the learned counsel for the Appellant informed the court that the Appellant was relying only on two grounds to show that the conviction was not safe and hence this had to be set aside or the charge reduced to passive possession under section 12 read together with section 39A(2). The two grounds were: a) there was no affirmative finding of mens rea possession of the drugs in the three small pillows (exhibits P16(A) to (C)); and b) no mens rea possession, at the highest only passive possession. Finding and Decision of this Court [31] Regarding the first ground, that is, there was no affirmative finding by the trial judge on the mens rea possession of the drugs in the 3 small pillows (P6(A) to P6(C)), it was submitted by the learned counsel for the Appellant that the learned trial judge failed to appreciate that whilst there was direct evidence of physical custody and control of the blue luggage bag (P16) there was no direct evidence of custody and control of the three small pillows found inside P16. The learned trial judge only found there was custody and control of P16 and made assumption that the Appellant also had custody and control of the drugs concealed in the three small pillows1. [32] Learned counsel further submitted that the learned judge, therefore should not make any inference as to knowledge of the contents of the three 1 Appellant’s written skeletal Submission 12 small pillows as it would be harsh to draw inference upon another inference, i.e. inference of custody and control of the blue bag P16 and thereafter inference of custody and control of the P16 A to C and to the knowledge of the contents of the three small pillows. [33] The learned counsel then went on to cite Lin Lian Chen v PP [1992] 1 CLJ (Rep) 285, in which the Supreme Court held that the presumption under section 37(d) of the Act did not arise as the vehicle in which the drugs were carried did not ipso facto fall within the words "anything whatsoever containing any dangerous drug. Learned counsel then cited the case of Syed Ali Syed Abdul Hamid and Anor v PP [1982] CLJ (Rep) 340 in which the Federal Court quoted Tong Peng Hong V PP [ 1955] 21 MLJ 232, where Thomson J explained “The words "anything whatsoever" by themselves have as wide a meaning as any words can have but that meaning is governed and greatly restricted by the word "containing". A thing containing another thing is not synonymous with a thing in which that other thing is. To take an extreme example, it is not correct to say the earth contains the fly which at the moment is walking up the wall of my Chambers. Both by derivation and by ordinary usage the word “containing" implies some measure of holding or restriction…” [34] After going through the Appeal Record especially the grounds of judgement and the submissions by both parties, we unanimously came to the conclusion, with respect, that there was no merit in the learned counsel’s submission. 13 [35] First and foremost, it is not in dispute that the Appellant brought the blue bag (P16) and its contents including the three small pillows into Malaysia. The blue bag was recovered from the Appellant who was carrying it. The Appellant did not dispute that the drugs were found in the three small pillows which were in the blue bag she carried. She was only disputing that she had knowledge of the drugs found inside the said pillows. [36] Based on these facts, the learned trial judge held that “…Having established that the accused had physical custody and control of the blue bag, the prosecution was entitled to rely on the presumption of the possession in section 37(d) of the Act…”. This finding by the learned trial judge was the focus of the learned counsel for the Appellant’s submission during the appeal. Basically, it was contended on behalf of the Appellant that it was wrong for the learned trial judge to draw inference upon another inference, that is, infer custody and control of the blue bag P16 and thereafter make inference of custody and control of the three small pillows and to the knowledge of the contents of the said small pillows2. [37] With the greatest of respect to learned counsel, we find it was grossly misleading to say that the learned trial judge found the Appellant was in custody and control of the blue bag by way of an inference. It was not by way of inference. The Appellant was found to have physical custody and control of the blue bag by way of direct evidence, that is, she was seen carrying the bag. The evidence of SP4 and SP5, which was not challenged, showed the blue bag was recovered from the Appellant who was seen carrying it. The Appellant also did not dispute the fact that inside the blue 2 See the last 3 lines of Para 6a at page 4 Appellant’s skeletal written submission 14 bag she carried were the three small pillows. Therefore, the prosecution had proven the element of custody and control of the blue bag as well as the three small pillows by way of direct evidence and not by way of inference as alleged by the learned counsel. [38] Having established that the Appellant had custody and control of the bag, the learned trial judge was right to invoke section 37(d) of the Act which reads: "any person who is found to have had in his custody or under his control anything whatsoever containing any dangerous drug shall, until the contrary is proved, be deemed to have been in possession of such drug and shall, until the contrary is proved, be deemed to have known the nature of such drug." It made no difference the Appellant was not seen carrying the three small pillows in her hand but was seen carrying the blue bag inside which the said pillows were found because the fact remained that the Appellant had custody and control of not just the blue bag but also the said pillows inside the blue bag. By virtue of section 37 (d) above, the Appellant was deemed to have in her possession the said drugs found in the three small pillows. [39] Since the learned trial judge had invoked the presumption under section 37(d), it is not right for the learned counsel to allege that there was no affirmative finding of mens rea possession of the drugs in the three respective exhibits P16 A to C. Thus, we found the first ground of appeal was devoid of any merit. 15 [40] Regarding the 2nd ground of appeal, that is, Appellant had no mens rea possession, it was submitted by learned counsel that from the evidence adduced there was great doubt whether the Appellant was conscious of her possession. The defence was not one of bare denial. The Appellant utilised whatever means that she have to explain her version of the story. The best evidence showed during the case was that P16 did not contain her personal belongings. She protested on her innocence when she refused to sign the search list. [41] According to the learned counsel, at best the Appellant was only liable for passive possession. However, this court once again, with respect to the learned counsel, could not agree with this proposition. [42] It is true that mens rea possession is an element of the offence of trafficking. But it is an element like the mental element in other crimes which cannot be established by direct evidence save in a case where an accused expressly admits the commission of the offence. It has, like the mens rea in other offences, to be established by circumstantial evidence. In other words it is an ingredient that is to be inferred from the totality of the circumstances of a particular individual case.3 [43] In this case, the gist of the defence was that she had no knowledge of the drugs found inside the said three small pillows. She admitted carrying the blue bag and the 3 pillows containing drugs but disputed having knowledge of the drugs. In other words, she claimed to be an innocent carrier. 3 The Hock Leong v PP [2008] 4 CLJ 764. 16 [44] It is settled law that the success of the defence of innocent carrier depends very much on the facts of each case, a matter that falls within the realm of the trial judge. Ignorance simpliciter is not sufficient to let an accused person off the hook as otherwise every other accused person will allude to that defence. It needs more than that. Without any reason for suspicion, or there is no right or opportunity of examination, ignorance can be a good defence. A hypothetical scenario can be when an accused person receives a package which contains illicit drugs from say, England, when not a shred of evidence could establish him having been aware of the circumstances of the drugs being sent to him or having any nexus to him. Prior to the parcel appearing at his door step he would not have had any reason for suspicion or the opportunity to inspect the parcel bearing in mind that the package was beyond his reach until it reached his hands. The rider is that everything depends on the facts. To rebut the presumption of possession under section 37(d) of the Act, it was not sufficient for the accused to merely deny knowledge, she must go further and show she did not suspect and had no reason to be suspicious of the items in the said bag, that is, she was not guilty of wilful blindness. Under the doctrine of wilful blindness if a man deliberately shuts his eyes to facts which he would prefer not to know, he is taken to have actual knowledge of the facts to which he shut his eyes.4 [45] Reverting to this appeal, from the factual matrix of this case we could not help but agree with the learned trial judge who observed that even if one was to accept the Appellant’s account of how the Appellant came into 4 Venkatesan Chinnasami v Public Prosecutor [2011] 1 LNS 1736 17 possession of the blue bag, the question arose as to whether she had grounds to be suspicious of the contents in the blue bag. [46] The Appellant did not appear to be a gullible nor naive person. It was patently clear on the evidence that Baba was not someone the Appellant was close to as alleged by her. The Appellant had no reason to blindly trust him. Baba paid for her ticket and gave her money for her expenses to convey the blue bag to his friend without even giving her any particulars of his friend. His explanation to her for asking her to deliver the clothing samples to his friend personally instead of posting it to him was ludicrous and ought to have told her something was amiss. [47] Additionally, the conduct of Baba in giving her the bag only at the airport and promising to message her the name of the hotel she was to check into only upon her arrival at Kuala Lumpur, should have further aroused her suspicion. The factual matrix was such that the accused ought to have been suspicious that there were drugs in the blue bag and that she was asked to be a drug courier. [48] Thus, we were in agreement with the learned trial judge who found the Appellant's reasons for not making further inquiries and checking the items in the blue bag though she had the chance and opportunity to do so was telling. If she had lifted the pillows, she would have known from the weight of the pillows that something was concealed in them. The proper inference to be drawn from the facts and circumstances was that the accused had wilfully shut her eyes to the obvious truth of the matter. The accused did not want to know and chose not to find out that she was carrying drugs. Her 18 lack of compulsion to ascertain the contents of the blue bag demonstrated that she knew it contained drugs and accepted the assignment fully aware of the consequences of her conduct. [49] On the existence of the person "Baba", the learned trial judge found him to be a fictitious person. We found no reason to depart from the learned trial judge’s finding on this fictitious character. As correctly observed by the learned trial judge, the Appellant claimed she was close to Baba but oddly did not know anything more about him save and except that he was of African origin. Neither did she know the name nor location and address of his factory or his shop. Her inability to furnish any particulars demonstrated Baba was a fictitious person. We, like the trial judge, appreciated the fact that the accused had mentioned the existence of Baba to the Investigating Officer, but this fact should not be accorded too much weight in light of the fact she knew little about his personal particulars and that this was a common defence raised by many traffickers. [50] For the above said reasons, this court found there was no appealable error on the part of the trial judge. The learned trial judge correctly decided that the defence evidence did not rebut the presumption of possession invoked against the Appellant and did not raise a reasonable doubt on the prosecution’s case. The conviction and sentence was safe. Hence, we dismissed the appeal. The conviction and sentence handed down by the trial judge was affirmed. 19 Sgd MOHAMAD ZABIDIN MOHD DIAH Hakim Mahkamah Rayuan Malaysia Bertarikh: 2.1.2019 Mewakili perayu: Mak Kah Keong Mak Rongjie [Tetuan K.K.Mak & Co] Mewakili responden: TPR Mangai Jabatan Peguam Negara