IN THE COURT OF APPEAL OF MALAYSIA
(CRIMINAL JURISDICTION)
CRIMINAL APPEAL NO. B-05-65-02/2013
BETWEEN
TOBECHI CHINONSO MADU
.. APPELLANT
AND
PUBLIC PROSECUTOR
.. RESPONDENT
(Selangor Criminal Trial No. 45A-308-10 of 2011)
BETWEEN
PUBLIC PROSECUTOR V. TOBECHI CHINONSO MADU
CORAM:
MOHTARUDIN BAKI, JCA
AHMADI HAJI ASNAWI, JCA
ABDUL RAHMAN SEBLI, JCA
JUDGMENT
[1]
The charge against the appellant, a Nigerian national was as
follows:
“Bahawa kamu, pada 6 Jun 2011, jam lebih kurang 3.45 petang di Kawasan
Tuntutan Bagasi E, Balai Ketibaab Antarabangsa, Aras 3, Bangunan MTB,
KLIA, Sepang di dalam daerah Sepang, di dalam Negeri Selangor Darul Ehsan,
telah
didapati
mengedar
dadah
berbahaya
iaitu
1252.7
gram
Methamphetamine dan oleh yang demikian kamu telah melakukan satu
kesalahan di bawah Seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang
boleh dihukum di awah Seksyen 39B(2) Akta yang sama.”
[2]
At the conclusion of the trial he was found guilty by the Shah
Alam High court and sentenced to death. This is his appeal against
the conviction and sentence. The facts can be summarized as
1
follows. On 6.6.2011 Corporal Zulkefli bin Zainal (SP6) and his team
were on observation duties at Level 3 of the Kuala Lumpur
International Airport (‘the KLIA’) arrival hall. They saw the appellant
walking proceeding towards the Customs scanning machine
carrying a black bag-pack (P27) and a laptop bag.
[3]
SP6 noticed that the appellant did not put his bags on the
scanning machine but instead went straight for the exit door. SP6
stopped the appellant and introduced himself as a police officer and
directed the appellant to take his bags to the Customs scanning
machine. The scan did not reveal anything suspicious. The
appellant was then taken to the KLIA Narcotics Office and was
physically examined. Nothing illegal was found.
[4]
SP6 then examined the black bag-pack which was locked with
a padlock. The padlock was opened by the appellant using the key
that he took out from his trousers pocket. In the bag SP6 found
clothes and 2 big plastic packets, each containing 6 soap boxes with
the brand name ‘Dudu-Osun’, making a total of 12 soap boxes. SP6
also found another 15 soap boxes of the same brand name in the
other plastic bag, making a grand total of 27 soap boxes.
[5]
In each of the 12 soap boxes in the 2 big plastic packets, SP6
further found a transparent plastic packet wrapped with a black
carbon paper containing substances believed to be drug. The
contents of the other 15 soap boxes were similar to the contents of
the 12 boxes. Out of the 27 soap boxes 14 contained substances
believed to be drug while the other 13 contained soap bars (sabun
mandi).
2
[6]
The substances were sent to the Chemist for analysis and
were confirmed to contain 1,252 grams of Methamphetamine. There
was no challenge to the analysis and the chain of evidence relating
to the custody and movement of the drug exhibits, i.e. from the
seizure by SP6 to the time they were handed over to the
Investigating Officer (SP7) and finally to the Chemist (SP2) for
analysis.
[7]
On these facts the learned trial judge found that a prima facie
case of trafficking had been established against the appellant and
called for his defence. The appellant chose to give evidence on oath.
Essentially his defence is that he did not know the soap boxes
contained drugs. According to him while he was queuing up to check
in at Lagos Airport Nigeria, a person by the name of Ossy
approached him and asked him to carry the 27 soap boxes in his
bag as he had excess luggage. He said he agreed and put them in
his bag, locked the bag and checked them in.
[8]
Having considered the appellant’s defence, the learned trial
judge found that the explanation failed to cast any reasonable doubt
in the prosecution case. She found the appellant’s story to be
improbable, unreasonable and illogical.
[9]
Basically the appellant’s complaint in this appeal is that the
learned trial judge failed to deal with the defence properly and
sufficiently.
In
other
words
there
was
insufficient
judicial
appreciation of the evidence. The central issue is whether the
learned judge had erred in rejecting the appellant’s claim of no
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knowledge. The learned judge’s finding in this regard is that the
appellant failed to rebut the presumption of knowledge under
section 37(d) of the Dangerous Drugs Act 1952 (‘the DDA’). It was
argued however that she ought to have found otherwise.
[10] According to counsel the evidence points to the fact that the
appellant had no knowledge that the soap boxes contained drugs.
It was argued that since the appellant had duly checked 2 of the
unsealed soap boxes at Lagos Airport and found the contents to be
soap bars, it was unnecessary for him to check all 27 boxes. It was
submitted that the learned trial judge was wrong in finding the
explanation to be unreasonable and illogical.
[11] It was further submitted that Ossy is a real person and that it
was SP7’s duty as Investigating Officer to investigate whether he
was the passenger who sat next to the appellant on the same flight
to Malaysia.
[12] When knowledge becomes an issue the court must direct its
mind to section 37(d) of the DDA, which provides that a person
found in custody or control of anything containing any dangerous
drug shall, “until the contrary is proved” be deemed to have been in
possession of such drug and shall also be presumed to have known
the nature of the drug. This is a presumption of law and must be
invoked once custody or control is established by the prosecution:
see Muhammed Hassan v PP [1998] 2 CLJ 170; [1998] 2 MLJ 273
F.C. where Chong Siew Fai CJ (Sabah and Sarawak) delivering the
judgment of the court said at page 190:
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“The ‘deemed’ state of affairs in s. 37(d) (ie, deemed possession and deemed
knowledge) is by operation of law and there is no necessity to prove how that
particular state of affairs is arrived at. There need only be established the basic
or primary facts necessary to give rise to that state of affairs ie, the finding of
custody or control. Such presumptions as under s. 37(d) (and, for that matter,
the one under s. 37(da) are sometimes described as “compelling presumptions”
in that upon proof of certain facts by a party (in our present case, proof of
custody or control in s. 37(d) by the prosecution), the court must in law draw a
presumption in its favour (ie, presumptions of possession and knowledge)
unless the other party proves the contrary. Such a presumption has the
compelling force of law. It is a deduction which the law requires the trial court
to make.”
(emphasis ours)
[13] The case, which binds this court and the court below was
followed in the Federal Court case of PP v Zulkifli Arshad [2010] 6
CLJ 129 F.C.
[14] The presumption under section 37(d) clearly applied against
the appellant as he was found to be in custody and control of the
drugs at the time of his arrest. He therefore had a legal burden (as
opposed to evidential burden) to prove on the balance of
probabilities that he had no knowledge of the drugs. Whether the
appellant had succeeded in discharging that burden depends on
whether the learned trial judge accepted his claim of no knowledge.
In this regard the learned judge had considered his explanation and
she rejected it. We have no reason to disagree with her. On the
evidence she was perfectly entitled to come to that conclusion.
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[15] As to the question of the role played by Ossy the only
evidence before the court was the appellant’s bare assertion that
Ossy asked for his favour to carry the 27 boxes of soap. Other than
that there is no evidence that Ossy even exists. There was this
person by the name of Omatu Chine Ostia seated next to the
appellant in the same flight but it was not established that Ossy and
Omatu Chine Ostia are one and the same person.
[16] The mere fact that Ossy’s name was mentioned during the
police investigation is not evidence that Ossy actually exists. How
were the police to investigate the existence of this person when the
appellant did not even give his full name and his residential
address? The poor investigating officer may end up chasing a wild
goose. We therefore found no merit in the appellant’s argument that
the police’s failure to investigate the existence of Ossy must be held
against the prosecution.
[17] In any event, since the appellant had a legal burden to
discharge (to disprove knowledge) it was his duty to call Ossy to
give evidence and not for the police to investigate if it was true that
Ossy had asked him to carry the soap boxes: Baharom v PP [1960]
1 LNS 9; [1960] MLJ 429; Liew Siew & Anor v PP [1969] 1 LNS 90;
Chu Tak Fai v PP [1998] 4 CLJ 789. Hence, since Ossy was not
called to give evidence there was no way the court could verify the
truth of what Ossy told him at Lagos Airport. In fact the evidence is
hearsay and inadmissible as the object was to prove the truth of
what Ossy told him: PP v Subramaniam [1956] MLJ 220 P.C.
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[18] Even if the appellant’s claim is true, the principle of willful
blindness would operate against him: PP v Hla Win [1995] 2 SLR
424. In that case Yong Pung How CJ quoted with approval the
following passage by Professor Glanville Williams in his book
‘Criminal Law’:
“…the strict requirement of knowledge is qualified by the doctrine of willful
blindness. This is meant to deal with those whose philosophy is: Where
ignorance is bliss, ‘tis folly to be wise.’ To argue away inconvenient truths is a
human failing. If a person deliberately ‘shuts his eyes’ to the obvious, because
he ‘doesn’t want to know’, he is taken to know.”
[19] As for the appellant’s argument that the appellant’s conduct at
the airport shows his innocence, this must be tested against the rest
of the evidence, including his own explanation in discharging his
burden of proof. As mentioned earlier the learned trial judge had
considered his explanation and found it to be untrue. Our learned
brethren Abdul Wahab Patail JCA put the matter in the right
perspective in Tan Ong Keong v PP [2012] 4 CLJ 223 when he said
at page 232:
“To put it another way, it is always possible to structure an interpretation or
inference consistent with innocence. But if in every case an accused is
acquitted simply because it is possible to construct such an interpretation or
inference, the law cannot be enforced. Indeed, not only will the law become
impossible to be enforced, but the courts will be viewed as being naïve and
gullible. Although this might be much appreciated by the accused persons, the
courts will cease to be respected by the general public who expect the courts
to exercise at least some modicum of wisdom.”
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[20] For reasons aforesaid, we found no reason to interfere with
the verdict arrived at by the learned trial judge. In the circumstances
we dismissed the appeal and affirmed the conviction and sentence.
Sgd
ABDUL RAHMAN SEBLI
Judge
Court of Appeal Malaysia
Dated: 14 January 2015
For the Appellant:
Suzanna binti Ismail of Messrs Ismail &
Partners.
For the Respondent:
Nurshafini binti Mustapha, DPP of the
Attorney General’s Chambers.
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