Yuvaneswaran A/L Rajoo v Public Prosecutor (B-05(M)-224-05/2017)

(a) In the first place, the appellant could not be that naïve to travel to India on an all expenses paid for by Ganesh just to carry bag P9 containing saree materials which were not proven to be costly, that it outweighs the expenses spent and payment of RM1,800.00 made to the appellant. If it were just to bring back those materials, courier service would suffice which would cost less to Ganesh. The only inference is that the appellant knew that he was to carry an important consignment worth more in value than the saree materials;

(b) The way the travel arrangements and delivery of P9 were made appeared to be clandestine. The appellant’s version only proved that he was actually involved in the drug transaction. The perpetrators Ganesh, Jessy and the others were obviously careful in covering their tracks and the appellant, in such suspicious circumstances, should be fully aware of it. His participation in the transaction clearly proved that he had Criminal Appeal No: B-05(M)-224-05/2017 8 knowledge of the drugs that he was carrying in P9. He was not an innocent carrier;

(c) In such suspicious circumstances, the appellant should have examined P9 carefully and not just casually. With the weight of P9 to be unnecessarily heavy, the appellant should have realized something amiss with P9. Yet he took it and travelled with it back to KLIA. Moreover P9 was delivered to the appellant by two strangers in New Delhi. Hence, the appellant was guilty of willful blindness and as such he is taken to have knowledge of the drugs in P9. Having said that, since the drugs were well concealed in P9, the inference is that it was concealed with the knowledge of the appellant and the saree materials were just used as a camouflage. The other indication that the appellant had knowledge of the drugs was his reaction to willingly settle any customs duties when he was confronted by PW10 and Fairuz when they tested him by telling him there was customs duty imposed on the saree materials. The appellant’s reaction is an indication that he wanted to quickly pass through the customs without the drugs being detected; and

(d) The names such as Ganesh, Jessy and Ganesh Travels could not be verified by the prosecution. The telephone numbers of these characters given by the appellant/or found in his hand phone were all registered in the names of others. It is therefore doubtful whether these characters existed as claimed by the appellant. Criminal Appeal No: B-05(M)-224-05/2017 9 [23] The appellant was thus convicted and sentenced to suffer the mandatory death penalty as provided under section 39B(2) of the Act. Hence, the appeal before us. The Appeal [24] Before us, learned counsel for the appellant canvassed the following three (3) issues, namely:

(a) The learned JC committed an error in law when his Lordship invoked double presumptions under section 37(d) as well as under section 37(da) of the Act in contravention of the principle propounded in Muhammed Hassan’s case;

(b) The learned JC did not undertake a maximum evaluation of the evidence adduced by the prosecution; and

(c) The learned JC had failed to appreciate and appraise the appellant’s defence of an innocent carrier in its totality. Our Deliberation and Decision [25] In regard to the first issue, learned counsel’s complaint was that the learned JC had invoked the double presumptions under section 37(d) and section 37(da) of the Act. As the new provision in allowing the invocation of the double presumptions only came into effect on 15.2.2014, the learned JC erred when he invoked the double presumptions against the appellant who had allegedly committed the offence on 25.10.2013. It is trite that penal provision cannot be enforce retrospectively. Learned counsel relied on Soorya Kumar a/l Narayanan & Anor v. PP [2013] 1 MLJ 1. Criminal Appeal No: B-05(M)-224-05/2017 10 [26] On appraisal of the grounds of judgment of the learned JC, we disagreed with the learned counsel’s complaint on this issue of double presumption. We noted that the learned JC had relied on the statutory presumption under section 37(d) of the Act to establish presumed knowledge after holding that the prosecution had proven custody or control of the bag P9 in which the impugned drugs were concealed, and because there was no evidence upon which an inference could be made that the appellant had known the contents of the powdery substance found in the wall of the bag P9. The learned JC’s findings can be seen at pages 14-15 of the Appeal Record, Volume 1, as follows: “11. The next ingredient that the prosecution has to prove is that the accused had possession of the said drugs. From the evidence of the prosecution witnesses PW10, statement P68, PW6 and PW7, the accused was seen carrying the bag P9 containing the drugs. Such evidence clearly proved that the accused was having custody or control of the bag P9. The prosecution had also invoked the presumption of knowledge of the drugs under section 37(d) DDA and in the result, with the aid of the presumption, the prosecution had proven the accused had knowledge and possession of the said drugs found in P9.

As for the third ingredient of trafficking in the said drugs, the prosecution had proven that the accused was carrying or transporting P9 from Colombo, Sri Lanka to KLIA as direct trafficking under section 2 DDA meaning of trafficking. In addition, the amount of the drugs is so huge that it could not be used for self consumption by the accused. The only conclusion in view of the huge amount of the drug must be for the purpose of trafficking.”. [Emphasis added] Criminal Appeal No: B-05(M)-224-05/2017 11 [27] We did not find anywhere in the judgment of the learned JC that he had relied on the statutory presumption under section 37(da) of the Act to prove the element of trafficking except to rely on direct trafficking under section 2 of the Act. Perhaps, learned counsel had assumed that the learned JC had invoked the presumption of trafficking under section 37(da) of the Act based merely upon the learned JC’s comment that “…. the drugs is so huge that it could not be used for self consumption…”. We stand guided by the decision of the Federal Court in Soorya Kumar (supra) that the learned JC should have been slow in making the inference of trafficking based on the quantity of the drugs involved in this case as there are sufficient evidence for the learned JC to rely on direct trafficking under section 2 of the Act. The comment of the learned JC on the quantity of the drugs cannot be construed or equated with an invocation of the presumption of trafficking under section 37(da) of the Act. [28] We noted that at the end of his decision, the learned JC did not mention at all on the issue of rebutting the presumption of trafficking under section 37(da) of the Act other than the presumption of knowledge and possession under section 37(d) of the same. At page 21 of the Appeal Record, Volume 1, learned JC said this: “22. In addition, the defence was also unable to rebut the presumption of knowledge under section 37(d) DDA invoked by the prosecution on a balance of probabilities as the amount of the drugs was too huge for self consumption. Hence, the prosecution had proven its case beyond reasonable doubt against the accused. There was overwhelming evidence that the accused was caught red handed with the drugs. The prosecution witnesses were neutral and had given credible evidence of what transpired on the material day.”. [Emphasis added] Criminal Appeal No: B-05(M)-224-05/2017 12 [29] We turn next to the second issue raised by learned counsel that the learned JC had failed to undertake a maximum evaluation on the evidence adduced by the prosecution. Had this been done, learned counsel argued that the court would have found that no prima facie case of trafficking in dangerous drugs been made out against the appellant. Learned counsel gave two reasons for his complaint:

(a) Learned JC had failed to consider that the prosecution had led two sets of evidence; and

(b) Learned JC had failed to critically evaluate the weight and creditworthiness to be attached to Fairuz’s statement (P68). [30] In regard to the failure of the learned JC to consider that the prosecution had led two sets of evidence, learned counsel submitted that the learned JC had failed to acknowledge that there appears to be two sets of evidence led by the prosecution based on P68 in comparison to the evidence of PW10 and PW13. The evidence of PW10 in court during the course of the trial shows that the prosecution sought to establish that PW10 witnessed the first inspection; PW10 witnessed the second inspection at counter D; and that, PW10 was the recording officer in the Search List (P53). [31] Learned counsel submitted that the evidence of PW10 was highly questionable particularly regarding her presence at counter D during the first inspection of the bag P9 where PW10 allegedly heard the conversation between Fairuz and the appellant regarding customs duties. Learned counsel argued that based on P68, the role played by PW10 was of much less significance. PW10 was only mentioned twice in P68. The first being that she was the officer that had conducted the first scan of P9 and secondly, Criminal Appeal No: B-05(M)-224-05/2017 13 she, together with Fairuz had escorted the appellant to CPP1 for further inspection. On this issue of two sets of contradictory evidence led by the prosecution, learned counsel cited to us the decision of Vincent Ng JC (as he then was) in PP v. Lee Eng Kooi [1993] 2 MLJ 322 and the decision of this Court in Akhbar Jafarisshonestani Mohamad v. PP [2014] 5 MLJ 827. [32] Upon perusal of the Appeal Records and P68 itself, we noted that through the evidence of PW6 and PW7, PW10 was indeed present during the first and second inspection. In P68, Fairuz had stated that the scanning was done by PiK 11809, which is PW10’s body number. This shows that PW10 was present at counter D. This is further supported by the evidence of PW7 at page 36, Appeal Record, Volume 3B and the evidence of PW6 during re-examination at pages 25-26, Appeal Record, Volume 2A, as follows: “Q: Kamu setuju pembongkaran dilakukan oleh Mohd Fairuz bin Johar, Ummi Kalsom bte Dasuki Gopeng dan Norazoha bte Salim. Saya setuju pembongkaran kes dilakukan oleh Mohd Fairuz bin Johar, Ummi Kalsom bte Dasuki Gopeng dan Norazoha bte Salim. Boleh nyatakan kedudukan Norazoha semasa pembongkaran. Semasa pembongkaran barang kes dilakukan oleh Mohd Fairuz bin Johar dan Ummi Kalsom bte Dasuki Gopeng, Norazoha bte Salim hanya ada sebentar sahaja ketika itu semasa pembongkaran barangan kes berlaku. Kenapa kamu kata sebentar sahaja. Maksud saya sebentar kerana Norazoha tugasannya di bahagian scanner machine, dia mengiringi OKT dan Mohd Fairuz bin Johar ke bilik pemeriksaan CPP1. Criminal Appeal No: B-05(M)-224-05/2017 14 Semasa pembongkaran dilakukakan siapa sepenuhnya ada di situ. Tugas-tugas pembongkaran sepenuhnya dilakukan oleh Mohd Fairuz bin Johar dan Ummi Kalsom bte Dasuki Gopeng.” [33] We agreed that there were contradictions in the evidence of PW10 with that of P68 but they were not material though such that it had occasioned great injustice or prejudice to the appellant. On account that P68 was never subjected to further clarification under examination in chief or cross-examination and re-examination as Fairuz had died before the case went on into trial, we certainly disagreed with learned counsel that the prosecution’s case had led to two sets of evidence. [34] As regard to contradiction between the evidence of PW10 and P68 as to who wrote the Search List (P53), it is not a material contradiction. It does not matter who actually recorded P53. PW10 claimed that she prepared P53 but Fairuz, being the leader of the team who conducted the examination of the bag P9, it become his responsibility to do the Search List and he had claimed so. The contradiction, if any, is not material and does not change the fact that the impugned drugs were recovered from the bag P9 that was carried by the appellant. [35] The case of Lee Eng Kooi, supra, is easily distinguishable from the fact in the present case. In Lee Eng Kooi, supra, the evidence of the arresting officer in court differed materially from his arrest report. This does not happen in the present appeal before us. [36] On the second issue regarding the inaccuracy and unreliability of P68 due to the many amendments sought by the prosecution pertaining to the body numbers of the respective customs officers, the date and the time Criminal Appeal No: B-05(M)-224-05/2017 15 recorded in P68, we were of the considered view that these are not material. We considered that the amendments were sought due to genuine mistakes made by the recording officer, PW13. The amendments do not in anyway changed the material evidence in P68. All the mistakes were on the part done by PW13 and not on the substantive evidence given by Fairuz. It could also have happened due to typographical error by the recording officer. [37] We agreed that the two issues argued before us by learned counsel regarding the allegations that the prosecution had led two sets of evidence and on the issue of the weight and creditworthiness of P68 were not considered by the learned JC in his judgment. Nevertheless, an appeal being considered as a continuation of a trial, we take it upon ourselves to consider the two issues raised by learned counsel and we find that after considering the entire evidence, the issues raised were bereft of any merit. [38] Now we come to the third ground of appeal regarding the failure of the learned JC to adequately consider the appellant’s defence. On appraisal of the learned JC’s decision, we disagreed with learned counsel’s complaint. We find that the learned JC had duly and sufficiently considered the defence of the appellant in his judgment. This can be found at pages 18-21 of the Appeal Record, Volume 1, as follows: “19. Therefore, the gist of the accused’s defence is that he was an innocent carrier having no knowledge of the drugs.

At the end of the trial, the duty of this court is to decide after having considered all the evidence, whether the prosecution has proven its case beyond reasonable doubt. Criminal Appeal No: B-05(M)-224-05/2017 16

As for the defence, it is my considered view that the accused had not raise a reasonable doubt on the prosecution’s case on the following reasons: 1) In the first place, the accused could not be that naïve to travel to India on all expenses paid by Ganesh just to carry bag P9 (sic) containing saree materials which were not proven to be costly that it outweighs the expenses spent and payment RM1,800.00 made to the accused. If it were just to bring back those materials, courier service would suffice would cost less to Ganesh. The only inference is that the accused knew what he was doing to carry an important consignment worth more in value than the saree materials. 2) The way the travel arrangements and delivery of P9 were made appeared to be clandestine. The accused’s version only proved that he was actually involved in the drug transaction. The perpetuators Ganesh, Jessy and the others were obviously careful in covering their tracks and the accused in such circumstances which were suspicious should be fully aware of it. His participation in the transaction clearly proved that he had knowledge of the drugs that he was carrying in P9. He was not an innocent carrier. 3) In such suspicious circumstances, the accused should have examined P9 carefully and not just casually. With the weight of P9 to be unnecessarily heavy, the accused should have realized something amiss with P9. Yet he took it and travelled with it back to KLIA. Moreover P9 was delivered to the accused by two stranger in New Delhi. Hence, the accused was guilty of willful blindness and as such he is presumed to have knowledge of the drugs in P9. Having said that, since the drugs were well concealed in P9, the inference is that it was concealed with the knowledge of the accused and the saree materials were just used as a Criminal Appeal No: B-05(M)-224-05/2017 17 camouflage. The other indication that the accused had knowledge of the drugs was his reaction to willingly by settle any customs duties when he was confronted by PW10 and Mohd Fairuz bin Johar when they tested him by telling him there was customs duty imposed on the saree materials. The accused’s reaction as such is an indication that he wanted to quickly pass through the customs without the drugs being detected. 4) The names such as Ganesh, Jessy and Ganesh Travels could not be verified by the prosecution. The telephone numbers given by the accused/or found in his hand phone on these characters were all registered in the names of others. It is therefore doubtful whether these characters existed as claimed by the accused.

In addition, the defence was also to rebut the presumption of knowledge under section 37(d) DDA invoked by the prosecution on a balance of probabilities as the amount of the drugs was too huge for self consumption. Hence, the prosecution had proven its case beyond reasonable doubt against the accused. There was overwhelming evidence that the accused was caught red handed with the drugs. The prosecution witnesses were neutral and had given credible evidence of what transpired on the material day.

In the result, I found the accused guilty as per charge and convicted him. The accused was sentenced to death by hanging by the neck until dead.”. [39] We found that this issue raised by learned counsel is also bereft of any merit. In the present case, based on the evidence, it is our considered view that the appellant is not an innocent carrier but a trafficker. The appellant is not a naïve person. He had every opportunity to check for himself the bag P9. The whole transaction as narrated by the appellant in his defence would, Criminal Appeal No: B-05(M)-224-05/2017 18 in the normal circumstances, capable of raising suspicion sufficient to put him on inquiry as to the legitimacy of the whole transaction. We agreed with the learned JC that the appellant was guilty of wilful blindness for shutting his eyes to the obvious. [40] In PP v. Herlina Purnama Sari [2017] 1 MLRA 499, Raus Sharif, PCA (now CJ Malaysia) had the occasioned to deal with the same issue and expounded lucidly the following principle: “[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. The key threshold element in the doctrine of wilful blindness itself is that of suspicion followed by (and coupled with) a deliberate decision not to make further investigations. 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 of the particular case, giving due weight, where necessary, to the credibility of the witnesses. (See PP v. Tan Kok An [1995] 4 MLRH 256) [46] The concept of ‘wilful 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 ‘wilful blindness’ can be summarized 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 Criminal Appeal No: B-05(M)-224-05/2017 19 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.”. Conclusion [41] For all the reasons above stated, we hold that there is no merit in the appeal. The conviction is safe and amply supported by the evidence on record. Therefore, the appellant’s appeal is dismissed and the conviction and sentence of the High Court is hereby affirmed. Dated: 7 May 2018 signed (KAMARDIN BIN HASHIM) Judge Court of Appeal Malaysia Criminal Appeal No: B-05(M)-224-05/2017 20 Counsel For the Appellant: Datuk N. Sivanathan (Miss Jasmine Cheong, with him) Messrs Sivanathan Suite No. 1, L 17-01, PJX Tower No. 16A, Persiaran Barat 46050 Petaling Jaya For the Respondent: Tengku Intan Suraya bte Tengku Ismail Deputy Public Prosecutor Appellate & Trial Division Attorney General’s Chambers Putrajaya