Back
2022 MarsdenLR 2068
FEDERAL COURT PUTRAJAYA
SATHYA VELLO – Appellant
Versus
PP – Respondent
[Criminal Appeal No: 05(M)-10-01-2020(B)]
Knowledge of drug presence is presumed under s 37(d) for custody; failure to rebut leads to conviction.
Headnote:(A) Dangerous Drugs Act 1952 – Sections 39B(1)(a), 37(d), and 37(da) – Appellant charged with drug trafficking offenses – Acquittal of second accused – Appellant's defense of 'innocent carrier' rejected – Presumption of knowledge established under s 37(d) due to physical custody of drugs, no evidence of knowledge of presence – Burden on appellant to prove lack of knowledge, which he failed to do – Conviction upheld as prima facie case established and not rebutted – No legal error in trial judge's approach (Paras 8-90).
(B) Appeal – Grounds of appeal included failure of trial judge to inform accused of basis for defense – No legal obligation to inform as long as prima facie case established – Appellant failed to cast reasonable doubt on trafficking purpose despite knowledge (Paras 36-67).
Introduction
[1] In the High Court at Shah Alam, Selangor, the appellant and a lady companion by the name of Ponnarasi d/o Ravi (second accused) were charged with two counts of drug trafficking under s 39B(1)(a) of the Dangerous Drugs Act 1952 ("the DDA ") read with s 34 of the Penal Code and the charges against them were as follows:
First Charge
"Bahawa kamu bersama-sama pada 26 September 2013, jam lebih kurang 1.10 pagi bertempat di kawasan ketibaan antarabangsa LCCT, Kuala Lumpur International Airport (KLIA) dalam daerah Sepang, di dalam negeri Selangor Darul Ehsan, bagi mencapai niat bersama telah memperedar dadah berbahaya iaitu Methamphetamine sejumlah berat 1,853 gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah s 39B(2) Akta yang sama dan dibaca bersama s 34 Kanun Keseksaan."
Second Charge
"Bahawa kamu bersama-sama pada 26 September 2013, jam lebih kurang 1.10 pagi bertempat di kawasan ketibaan antarabangsa LCCT, Kuala Lumpur International Airport (KLIA) dalam daerah Sepang, di dalam negeri Selangor Darul Ehsan, bagi mencapai niat bersama telah memperedar dadah berbahaya iaitu Methamphetamine sejumlah berat 2,201 gram dan dengan itu kamu telah melakukan suatu kesalahan di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah s 39B(2) Akta yang sama dan dibaca bersama s 34 Kanun Keseksaan."
[2] They claimed trial to the charges at the conclusion of which the second accused was acquitted and discharged of both charges whilst the appellant was convicted of both and sentenced to death. The appellant appealed against his conviction and sentence whilst the prosecution appealed against the acquittal of the second accused.
[3] The appellant's appeal was dismissed by the Court of Appeal whilst the prosecution's appeal was struck out as the second accused could not be traced for service of the notice of hearing. We dismissed the appellant's appeal on 8 February 2022 by a unanimous decision and affirmed the decision of the Court of Appeal affirming the decision of the High Court.
The Background Facts
[4] The facts are straightforward and may be summarised as follows. At the time and place specified in the two charges, the appellant and the second accused had just arrived from Chennai, India by Air Asia flight AK1258. The appellant was seen pushing a trolley and heading towards the Customs clearance area with the second accused beside him. On the trolley were two luggage bags.
[5] As the appellant and the second accused were behaving suspiciously, Corporal Pannir Selvam a/l Subramaniam (PW3) who was on duty at the airport together with ASP Mohideen bin Ismail (PW2) stopped them and requested them to have their bags scanned at the scanning machine. This was done and the scan showed suspicious images on the monitor screen even after the contents of the bags were emptied. When PW2 lifted the empty bags, he found them to be exceptionally heavy. He also noticed that the fabric at the bottom of the bags were bulging. He then decided to carry out a physical examination on the two bags in the presence of the appellant and the second accused.
[6] The physical examination resulted in the discovery of two brown lace packages containing crystalline substances suspected to be dangerous drugs hidden in a specially constructed compartment at the bottom of each bag. PW2 had to use a screwdriver to unscrew and remove the handles of the bags to carry out his examination.
[7] The crystalline substances were seized and sent to the Chemistry Department for analysis and were confirmed by the Chemist Maimonah binti Sulaiman (PW1) to be 1,853 grams and 2,201 grams respectively of methamphetamine, a dangerous drug listed in the First Schedule to the DDA . These formed the subject matter of the two trafficking charges.
Appellant Not Presumed To Be Trafficking
[8] There is no evidence that the appellant had knowledge of the drugs hidden in th
