IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: B /2011 [IND] BETWEEN AND

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1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CRIMINAL APPEAL NO: B /2011 [IND] BETWEEN MOHAMED NASAR SHEAK DAWOOD APPELLANT AND PUBLIC PROSECUTOR RESPONDENT [In the matter of criminal trial no: 45A In the High Court of Malaya in Shah Alam] Between PUBLIC PROSECUTOR And MOHAMED NASAR SHEAK DAWOOD CORAM: Mohamed Apandi bin Haji Ali, JCA Linton Albert, JCA Hamid Sultan bin Abu Backer, JCA Hamid Sultan Bin Abu Backer, JCA (Delivering Judgment of The Court) 1

2 GROUNDS OF JUDGMENT [1] The appellant s appeal against conviction and sentence of death pursuant to section 39(B) (1)(a) of the Dangerous Drugs Act 1952 (DDA 1952), came up for hearing on and on the same day we heard the appeal and dismissed the same. [2] The charge against the accused reads as follows: Bahawa kamu, pada jam lebih kurang 8.40 pagi di Cawangan Pemeriksaan Penumpang (CPPI), Lapangan Terbang Antarabangsa Kuala Lumpur, di dalam Daerah Sepang, di dalam Negeri Selangor Darul Ehsan, telah mengedar dadah berbahaya, iaitu 4017 gram Ketamine dan oleh yang demikian, kamu telah melakukan satu kesalahan di bawah seksyen 39B (1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B (2) Akta yang sama. Brief Facts [3] The accused who arrived from Hyderabad was carrying two bags (P21 and P28). PW4 from the Customs instructed the appellant to scan both bags. Suspicious objects were seen in both the bags. Subsequently, ten plastic packets of crystal powder were recovered from the bottom part of P28 which was said to be sewn by black cloth. Another ten plastic packets of crystal powder were recovered from P21 upon opening a well sewn lining. PW3 who was the chemist confirmed that the crystal packets contained 4017 grams of ketamine. 2

3 [4] Prosecution had adduced documentary evidence to show nexus to the bag and the accused from the time of the appellant s departure from Hyderabad until arrest. [See P54, 55, 27, 29, 35, 36, 20, 37, 38 and 39]. This documentary evidence was never challenged (emphasis added). Submission of the Appellant [5] The learned counsel for the appellant confined the submission to two issues namely:- (i) Whether there was knowledge on the part of the appellant to suggest possession of the dangerous drugs; (ii) Whether the act of trafficking was committed by the appellant in this case. [6] The submission can be summarised as follows: (a) There was no evidence to show the appellant was acting suspiciously. In consequence, there was affirmative evidence on the balance that the appellant s conduct was not consistent with trafficking. (b) The act of trafficking was not duly established. And says: (2) The learned trial judge relyid on s.2 of the Act in order to make an inference of trafficking against the appellant. 3

4 (3) In the present case the only evidence which the learned trial judge had relied upon in order to conclude that the accused was in custody or control of the drugs is because of the act of carrying the bag, by virtue of the interpretation given by s.2 of the Act. (4) The law is well settled that having only custody or control over the said drugs is insufficient to establish possession. The physical act of custody or control must be accompanied with evidence that the accused had knowledge of the said drugs. (5) In the absence of any statutory presumption, knowledge has to be proved either by direct evidence or circumstantial evidence. Mere knowledge alone without exclusivity of either physical custody or control or both is insufficient in law to constitute possession, let alone trafficking. (6) In the present case, the learned trial judge made the inference that the accused had knowledge of the said drugs by relying on the weight and not conduct after he was arrested, in particular there was no act of fleeing from the scene. On this point the view the trial judge had clearly overlooked the other inferences that could have been made from the act of not fleeing or not absconding. Where there are two or more inferences that could be made the inference most favourable to the accused must be drawn. (7) This goes against the fundamental principle laid down by the Supreme Court. Mohamad Radhi Yaacob v. Public Prosecutor [1991] 1 CLJ 311: To satisfy this test, of importance is not the words used by the Judge but rather the actual application of the test to the facts of the case. In this case, the learned Judge offered practically no reason why the defence notwithstanding its falsity and unconvincing nature, had failed to cast a reasonable 4

5 doubt on the prosecution case, other than to state by way of lip service the duly placed by the law on the defence to earn an acquittal. (8) For the above reasons My Lords, we find that the conviction of the accused that he was involved in the act of trafficking for merely carrying the bag where the said drugs were found was not a cogent reason to make an inference of trafficking, especially in the absence of any other evidence to show that there was direct trafficking. (9) Even if there was possession of the drugs by the mere act of carrying, it was a mere passive possession. There was no positive possession, and the Appellant s action would suggest that he was an innocent carrier in this case. (10) The case of Ong Ah Chuan v PP [1981] 1 MLJ 64 is still relevant to this issue: To prove that the accused was transporting, carrying, sending delivering or distributing the cannabis so as to constitute trafficking under s.2 of the Act, it would be necessary for the prosecution, first and foremost, to prove that the accused was in possession of the drug or that he was at least in custody and control of the drug found. Trafficking in the context of the instant case cannot be proved by mere passive possession alone. (11) We are fully aware the position of Court when dealing with s.2 of the Act, especially in the light of PP v Lim Hock Boon [2009] 3 CLJ 457 s case. 5

6 (12) However, even though there was an act of carrying, we humbly submitted that this Honourable Court shall also consider that there was no affirmative evidence on the part of the appellant s conduct which can be construed as trafficking. (c) No affirmative evidence whatsoever that the appellant knew that he was carrying the drugs. And relies on the case of Ganapathy Rengasamy v Public Prosecutor [1998] 2 CLJ 1 in respect of the definition of knowledge and possession, where the Federal Court stated: The word "possession" is a vague and general word which cannot be closely defined. It implies some general knowledge as to the existence of a chattel and some idea of its whereabouts in order to exercise some control over it though not necessarily full or exact knowledge. The burden on the prosecution throughout was to prove its case beyond a reasonable doubt. But, once the prosecution proved that the appellant had custody or control of the bag containing the drugs in question, then by s. 37(d) of the Act, he was deemed to have been in possession of such drugs and to have known of the nature of such drugs, and so, the onus had shifted to him, to prove the contrary, on a balance of probabilities. Based on the totality of the evidence, there was no affirmative evidence whatsoever that the appellant knew he was carrying heroin; only the presumption under s. 37(d) of the Act says so, and he had rebutted it by his own denial on oath. [7] The learned Deputy Public Prosecutor has filed a comprehensive submission and relies on the judgment of the learned trial judge. In the instant case, the learned trial judge had written a 20 page judgement setting out the facts and law and the defence case to justify conviction 6

7 and sentence. We do not wish to repeat save to summarise the learned trial judge findings as follows: (1) Evidence by the prosecution witnesses showed no break in chain of evidence from the time the exhibits were seized up till the day the exhibits were brought to Court. (2) Custody and control, possession and knowledge. Evidences proved that the appellant had custody over P21 and P28 as they were on the trolley pushed by the appellant from the moment they were lifted from Carousel A. Apart from that, documentary evidences such as the passenger name record (P54) showed that the appellant had two bags checked in, the passenger manifest (P55), baggage tags (P27 and P 29), baggage claim tags (P35 and P36) on the appellant s passport (P20), boarding pass (P37), Customs Declaration Form (P38) and Departure Card (P39), all these are linked to the appellant. (3) Trafficking. The drugs were 4017 grams in weight and were hidden from plain sight, proving that the intention was for trafficking rather than personal consumption. (4) The defence. (i) The appellant testified that his employer requested him to send some electrical items to Malaysia but instead the appellant had in his bags dried food products. Furthermore, that was the 1 st time the appellant met with Sayed and Ali. And the appellant could not have been too naïve to transport nothing related to him and was given by two strangers. The trip was also fully sponsored and was promised a fee of Rup.5,000 when he returned to India. 7

8 (ii) Evidence showed that this was not the 1 st time the appellant travelled to a foreign country as his passport had a stamp from Saudi Arabia. (iii) This was carefully planned trip, evident from the address of the Lotus Hotel (P46) and Airport Limo receipt (P49). (iv) The appellant was a seamstress in India and the way the cloth was sewn into the bag was a cunning way of conceiling the drugs. (v) The appellant was not an innocent carrier as he could have sensed something was amiss when the employer s instruction was not complied with. [8] We have read the petition of appeal, appeal record and the able submission of the parties. After much consideration to the submission of the learned counsel for the appellant, we take the view that the appeal has no merits. Our reasons inter alia are as follows: (a) In the instant case, custody, control and possession has been established not only by physical possession of the bags but also by way of documentary evidence which was not challenged, thereby attracting sections 2 and 37(d) of the DDA 1952 to anchor a prima facie case for the prosecution. The remaining issue is only whether the appellant has rebutted trafficking. The Court of Appeal when dealing with s.2, 37(d) and the issue of possession as well as defence duty to rebut at page 7 paragraph 10 in Phrueksa Taemchin (Thailand) v Public Prosecutor [2013] 6 MLJ 808, had this to say: 8

9 [10] It is important to observe that section 37(d) uses the phrase 'deemed to have been in possession' and does not mention trafficking. And section 37(da) uses the phrase 'found in possession' (actual possession), and mentions trafficking. That is to say that 37(d) may become operational the moment custody and control of the drugs is established; though case laws have placed caveat to say without proof of knowledge it is insufficient to apply the presumption of possession. In addition courts have asserted that knowledge has to be proven by direct or circumstantial evidence. And a further caveat to say that mere knowledge alone without exclusivity of either physical custody or control or both is insufficient in law to constitute possession, let alone trafficking. For example, in a case where husband and wife are staying in the same house and the husband with the knowledge of the wife in a locked room to the exclusion of the wife is involved in trafficking of drugs; based on the Federal Court decision of Ibrahim Mohamad v PP [2011] 4 CLJ 143, it is unlikely that a charge for trafficking or possession can succeed against the wife at the prosecution stage or at least at the defence stage based on her story of non involvement and the fact the husband is the trafficker, and she has no custody or control. On the assumption she says that she has access to the room, she may be liable only for possession if the court accepts the story the husband is the trafficker based on the case of Mohamad Radhi bin Yaakob v PP [1991] 3 MLJ 169 and Sochima Okaye v PP [1995] 1 MLJ 538. Radhi's case was followed in the case of Sochima where Justice Gopal Sri Ram JCA (as he then was) accepted the proposition that in law a person in possession of a dangerous drug would be entitled to an acquittal on a charge of trafficking by demonstrating either on a balance of probabilities or by raising a reasonable doubt that there is another who is the real trafficker. And if the wife is called to enter defence for possession, and if she is able to convince the court she has no 'animus possidendi', she will be 9

10 entitled to an acquittal, [see Chan Pean Lean v PP [1956] 22 MLJ 237 ]. (b) In Phrueksa Taemchin (Thailand) v Public Prosecutor [2013] 6 MLJ 808, the Court of Appeal consisting the same coram as in the instant appeal, also asserted that the courts have not prohibited the assistance of section 37(d) for purpose of establishing trafficking, pursuant to section 2 of the DDA Basically, both these sections only pass some burden to the accused to explain his involvement relating to the drug which is said to be in his custody, control and possession by fact or law. [See Maggie Taissya Olyvia v. Public Prosecutor [2014] 2 MLJ 683]. (c) It is well settled that it is in the hands of triers of facts to assess the quality of evidence and to determine whether the evidence on record justifies a conviction as well as sentence. We have perused the evidence in detail and we are satisfied that there are sufficient material to support the charge and; the perspective taken by the trial court on the relevant issues in our view was a reasonable consideration of the evidence on record, and the court had followed Radhi's direction and rightly applied the maximum evaluation and beyond reasonable doubt test. [See Tong Kam Yew & Anor v. PP [2013] 4 MLJ 888; Chin Kek Shen v. PP [2013] 7 CLJ 435; Thenegaran a/l Murugan & Anor v. Public Prosecutor [2013] 5 CLJ 850]. 10

11 [9] We are of the considered view it is a safe decision and appellate intervention is not warranted and the appeal has no merit. Accordingly we dismiss the appeal. We hereby order so. Dated: 30 July 2015 Sgd (DATUK DR. HJ. HAMID SULTAN BIN ABU BACKER) Judge Court of Appeal Malaysia Note: Grounds of Judgment subject to correction of error and editorial adjustment etc. Counsel For Appellant: Mr. K. Viknesvaran Messrs Viknes Ratna & Co Advocates & Solicitors No , Tingkat 5, Block C Jalan 1/50, Diamond Square Off Jalan Gombak Kuala Lumpur [Ref: VRC/1110/Crim/M.Nasar/13] Counsel For Respondent: Puan Samihah bt Rhazali Timbalan Pendakwa Raya Bahagian Pendakwaan Jabatan Peguam Negara Putrajaya. 11