Public Prosecutor v Ni Komang Yuningsih [2017] MLJU 781

PUBLIC PROSECUTOR V NI KOMANG YUNINGSIH [2017] MLJU 781

Court of Appeal (Putrajaya)

Drug Trafficking

Facts

1.     In this case, the Respondent who is an Indonesian woman, was charged with trafficking in dangerous drug weighing 1728.2 gram under Section 39B (2) of Dangerous Drugs Act 1952 (Act 234).

2.     At the conclusion of the defence case in the trial court, the Respondent was acquitted and discharged. The prosecution filed an appeal with this court after being dissatisfied with the decision.

3.     During the prosecution’s case at the High Court, the prosecution stated that on 19 October 2012, at approximately 1.30 a.m., a custom officer, Amir Zakwan bin Mohd Kassim (SP6), was on duty at the LCCT’s international arrival hall.

4.     He noticed the Respondent was carrying a pink handbag while pushing two trolley bags (P4 and P5) (P6). The Respondent was asked to search her P4 and P5 bags, at his request. A suspicious image appeared inside P4 when those bags were scanned. For identification purposes, SP6 examined the Respondent’s passport (P8).

5.     He then accompanied the Respondent to the inspection counter to thoroughly inspect bag P4. When asked to open the bag, the Respondent became agitated and concerned, saying things like “mengapa mahu buka beg saya?”

6.     When P4 was physically searched, SP6 found that the bag’s left and right-side walls were protruding from the inside.

7.     Subsequently, the Respondent and her belongings were brought to the CPP2 office for further scrutiny. Nur Maidizah binti Maidin (SP8), the raiding officer at CPP2, gave the Respondent the order to empty the bag.

8.     SP8 also noticed that the side walls of the bag were protruding and unusually thick. When the empty P4 bag was scanned again, the same picture showed up.

9.     In front of the Respondent, SP9 and his team, SP8 started to cut open the cloth covering the bag’s side walls. It was observed that a black package was used to secure the bag’s left side wall.

10.  Behind the cloth cover of the bag’s right-side wall, a similar package was found. A powdery substance believed to be drugs was found in both packages.

11.  Then SP8 made a police report. She then delivered the Respondent and all the exhibits to SP9.

12.  Norhaya binti Jaafar (SP7), a government chemist examined and verified that the items recovered from P4 contained 1728.2 grammes of methamphetamine.

13.  At the conclusion of the prosecution’s case, the learned trial judge declared that the prosecution had established a prima facie case against the Respondent. Based on the testimony of SP6 and SP8, it was determined that the Respondent had custody and control of P4.

14.  Consequently, with the presumption of law under section 37(d) of the Act invoked, the Respondent was presumed to have possession and knowledge of the drugs in P4.

15.  In this regard, the learned trial judge concluded that the Respondent was aware of the nature of the content of 2 plastic packages found in P4.

16.  As a result, the trial court determined that the prosecution had established a prima facie case, and the Respondent was summoned to enter her defence.

17.  During the defense’s case, the Respondent reiterated that in September 2012, she met a Nigerian man (John Amadi) on the Yahoo messenger website.

18.  After getting to know each other through the website for a while, John Amadi invited the Respondent to Malaysia to discuss their wedding.

19.   John Amadi invited the Respondent to travel to India to meet his brother, Prince, and discuss their upcoming wedding in Malaysia before she arrived in Malaysia.

20.  Respondent departed for India on October 14, 2012, and Prince Amadi, John Amadi’s brother, met her there. During the Respondent’s four-day trip to India, Prince took her on sightseeing tours.

21.  Prince handed over one of the Respondent’s luggage bags to John Amadi on October 18, 2012, as she was leaving for Indira Ghandi International Airport. The Respondent saw some Indian clothing and shoes when Prince opened the luggage bag in the taxi.

22.  Following that, the Respondent was arrested at LCCT on October 19, 2012, for allegedly carrying a drug-filled bag. According to the officers who arrested her, the bag was given to the Respondent’s boyfriend, John Amadi, in Malaysia by a man named Prince in New Delhi.

23.  The Respondent’s cell phone rang once at the CPP2 office, and she informed the officers that her Nigerian boyfriend had called. She was then permitted to respond to his second call. 

24.  John Amadi said he was waiting for her outside LCCT and that she should meet him at KLCC. Customs officers, however, refused to let her.

25.  The trial judge came to the conclusion that the defence had addressed all of the comparable facts brought up by the prosecution. The defence maintained that the Respondent was an innocent carrier throughout the entire trial.

26.  In addition, the trial judge determined that the Respondent’s testimony in court, particularly in regards to John Amadi and his existence and function, was consistent with her cautioned statement (exhibit D31), which was made the same day she was arrested.

27.  Based on the Respondent’s credible testimony, which is represented by exhibits D31 and D33, the trial judge concluded that the presumption of knowledge established under Section 37(d) of the Act had been successfully rebutted.

28.  The Respondent was determined to be an innocent carrier. She was thus released and acquitted.

Issue

1.     Whether the trial judge had erred in law and fact when acquitting the Respondent by deciding that the Respondent to be an innocent carrier.

Ratios

1.     The Court believed that the Respondent never denied having physical custody and control of the bag at the time of her arrest.

2.     The defence qualified the mental element that the Respondent had no knowledge she was carrying drugs in her bag by referring to Prince’s concept of an “innocent carrier.”

3.     She backed up her claim by claiming that because the drugs were hidden from sight in the bag, she would not notice anything was wrong.

4.     The learned trial judge concluded that the Appellant had raised a credible doubt in her mind about the Respondent’s knowledge of the drugs at the conclusion of the defence case.

5.     However, the Court unanimously agreed that the trial judge had made an error on this point.

6.     The case of Zulfikar bin Mustaffah v. PP [2001] 1 SLR 633 was cited, in which it was determined that: –

“While the fact that the contents of the bundles were hidden from view may have been relevant in determining whether the requisite knowledge was absent, this factor should still not be given too much weight. Otherwise, drug peddlers could escape liability simply by ensuring that any drugs coming into their possession are first securely sealed in opaque wrappings. Rather the court appraise the entire facts of the case to see if the accused’s claim to ignorance is credible.”

7.     The Court disagreed with the learned trial judge and found that the Respondent’s exonerating statement that she was unaware of the drugs seized was insufficient to support the defence case.

8.     In addition, according to the Court, the Respondent offered no convincing justification for her voluntary decision to bring the bag that was last-minutely given to her by a person she had only known for four days.

9.     She also declined to say why, given that she had the entire transit time at Chennai Airport, she did not check the aforementioned bag.

10.  In light of the foregoing information, the Court determines that the Respondent committed wilful blindness by purposefully failing to exercise the diligence necessary to ensure that her bag was empty of any evidence.

11.  The Court cited the Federal Court decision in Public Prosecutor v Herlina Purnama Sari [2017] 1 MLRA 499, in which the then PCA, Mohd Raus Sharif, described the situation as follows:

“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.”

12.  As a result, the Court emphasised that it is obvious that the Respondent in this case purposefully chose not to see what was immediately apparent and refrained from asking about the contents of her own bag despite knowing that the bag contained the contested drugs.

13.  As a result, she cannot be regarded as an innocent carrier as a result.

14.  The Respondent continued, “I was emotionally driven or blinded by my love for John Amadi and did not see how his brother or lover would use my innocence to be a drug carrier”.

15.  Despite this, the Court felt that the Respondent, a 28-year-old woman with a diploma, is unlikely to put herself in a precarious situation where she could be used to commit a crime out of love.

16.   In actuality, the Respondent had voiced her worries regarding online fraud, human trafficking, and other illegal activities.

17.  In any case, once custody and control are established, Section 37(d) of the Act presumes knowledge.

18.  The Court also confirmed that, under Section 37(d) of the Act, it is the Respondent’s burden to rebut knowledge at the conclusion of the trial, which she had failed to do on the balance of probabilities.

19.  As a result, the Court determined that the prosecution’s evidence is overwhelming, unshakeable, and powerful in proving that the Respondent was aware of the drugs in P4.

20.  As stated in Section 182A(1) of the Criminal Procedure Code, in order to determine whether the learned trial judge was correct in law in finding the Respondent not guilty of an offence, all relevant evidence must be considered after the trial.

21.  This clause mandates that, after the prosecution has presented its case, the trial judge shall take into account not only the Accused’s explanation but also compare it to the evidence presented by the prosecution.

22.  In light of the aforementioned, the Court found that it is improbable that the Respondent was unaware of the illegal exhibits that were found in her bag, enabling the learned trial judge to grant her the right to be released.

Decision

1.    The Court of Appeal granted the prosecution’s appeal, overturned the order of acquittal and discharge, and replaced it with an order convicting the Respondent.

Key Take Away

1.      Section 37 of the Dangerous Drugs Act 1952 (Act 234) is a statutory presumption which enables the Court to presume that any person with dangerous drugs in his possession was trafficking those dangerous drugs.

2.     The Public Prosecutor must demonstrate through direct or indirect evidence that the Accused was in possession of a dangerous drug and that the weight of the dangerous drug in his possession exceeded the weight limit specified by the subsection in order for this presumption to take effect.

3.     To conclude, if the Public Prosecutor proves that a person had in his possession 250 grammes of drugs then that person shall be presumed to have been trafficking that drug.

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