The court clarified the need for precise findings when applying statutory presumptions and imposed a 10-year sentence considering the appellant's age and familial circumstances.

Zabariah Mohd Yusof FCJ:

[1] This constitutes the judgment of the unanimous decision of this court. The appellant, a Peruvian national was convicted for the offence of trafficking in dangerous drugs and sentenced to death by the High court, which was subsequently affirmed by the court of Appeal on the following charge:

"That you on 26 February 2013, at about 3.30pm, at International Arrival Hall, Carousel F Level 3, MTB Kuala Lumpur International Airport, in the district of Sepang, in the state of Selangor, did traffic in dangerous drugs to wit 779 grams of Cocaine, and thereby committed an offence under s 39B(1) (a) of the Dangerous Drugs Act 1952 and punishable under s 39B(2) of the same Act."

[2] The appellant appealed to the Federal court, which is the appeal before us against the conviction and the death sentence imposed. At the same time the appellant also raised the issue of the constitutionality of the imposition of the death sentence. This judgment deals with the conviction and sentence issue only. The constitutionality issue on the death penalty is being dealt with in a separate judgment by my learned brother and sister Judges, Azahar Mohamed CJM and Nallini Pathmanathan FCJ.

Background

[3] The appellant was arrested by police at the Kuala Lumpur International Airport when he was seen carrying his luggage containing car spare parts including metal cylinders from which six packets of dangerous drugs were found.

[4] The luggage bore a tag with his name on it and it tallied with the baggage claim which was found in the appellant's possession.

[5] Apart from the car spare parts and cylinders, undergarments and toiletries were also found in the luggage, which were subsequently sent for DNA analysis. A DNA profile was successfully obtained from a toothbrush and it matched with the appellant's DNA sample obtained from blood specimen. The clothes were tried on the appellant and it fitted him.

[6] At the end of the prosecution's case the learned Judicial Commissioner (JC) held that the prosecution had proven a prima facie case against the appellant.

[7] The case for the appellant was that he came from Caracas, Venezuela to Panama City and from Panama City to Sao Paulo, Brazil. From Brazil he went to Dubai and finally to Kuala Lumpur. From Kuala Lumpur the appellant had planned to take a bus to Thailand as he was instructed by one Soloman to send the car spare parts to someone yet to be identified in Thailand. Upon completion of the task he would be paid USD1,000. The appellant claimed no knowledge of the drugs in the metal cylinders found in the luggage bag. The appellant also claimed that he did not see how the metal cylinders were cut by the police as he only saw them after they were already cut into two pieces.

[8] The appellant pleaded the defence of innocent carrier.

[9] The appellant also gave a statement which was marked through the Investigating Officer, PW6 as exh D66, to support his oral testimony in court.

Findings By The High court

[10] The learned JC rejected the defence of the appellant of innocent carrier. His Lordship held that the defence is a bare denial of his knowledge of the existence of the drugs in the metal cylinders.

[11] The defence was also held to be an afterthought as the appellant's version of events was never put during the prosecution's case.

[12] Soloman's existence was held to be in doubt and in all probability it was a concoction of the appellant as there were no details or description given by the appellant to the police save for the evidence that it was Soloman who had requested him to send the car spare parts to Thailand after which he would be paid.

[13] The learned JC held that the prosecution had succeeded in proving its case beyond reasonable doubt. The appellant was found guilty and convicted as charged under s 39B(1)(a) of the Dangerous Drugs Act 1952 ( DDA ) and was sentenced to death by hanging.

[14] The appellant subsequently appealed to the court of Appeal.

Findings By The court Of Appeal