An accused can successfully claim the defense of innocent carrier if they rebut the presumption of knowledge regarding illegal substances, proving lack of awareness due to deception.

Tengku Maimun Tuan Mat CJ:

Introduction

[1] The appellant was charged in the High Court at Shah Alam for the offence of trafficking in dangerous drugs. The charge reads:

"Bahawa kamu pada 7 Disember 2014, lebih kurang jam 3:40 petang di Cawangan Pemeriksaan Penumpang 1 (CPP1), Lapangan Terbang Antarabangsa Kuala Lumpur (KLIA), dalam daerah Sepang, dalam negeri Selangor Darul Ehsan, telah mengedar dadah berbahaya iaitu Methamphetamine berat bersih 1142.8 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."

The Prosecution's Case

[2] Briefly, on 7 December 2014, at about 3:40pm, Customs Officer Noornashriq bin Misnan ("PW2") was on duty at the scanner machine at KLIA. PW2 saw the appellant, who was carrying a luggage ("P7") and a backpack ("P6"). The appellant placed the two bags on the scanner machine. When exhs P6 and P7 were scanned, a green image appeared in P6.

[3] PW2 requested Earizal bin Mohd Khalil ("PW6") to examine P6 further. PW6 took out the contents of P6 before it was scanned again. The green image remained. The appellant and the two bags, P6 and P7 were then brought to the inspection room of the CPPI. At the CPPI, PW6 did further physical examination of P6. He saw stitches at the back of P6. When the stitches were cut open, PW6 found two packages containing substance suspected to be dangerous drugs.

[4] The investigating officer, Noor Mohd Azri bin Brahim ("PW7") sent the two packages to the Chemistry Department for analysis. Upon analysis by the chemist Suhana binti Ismail ("PW3"), the substance was confirmed to be Methamphetamine, weighing 1142.8 grammes. Methamphetamine is listed as dangerous drugs under the First Schedule of the Dangerous Drugs Act 1952 ("the DDA ").

Findings Of The Trial Judge At The End Of The Prosecution's Case

[5] The learned trial judge considered whether the prosecution had proven the following elements of the offence:

(i) That the subject matter of the charge is dangerous drugs listed under the First Schedule of the DDA ;

(ii) That the appellant had custody and control of the drugs; and

(iii) That the appellant was trafficking in the said dangerous drugs.

[6] Having evaluated the evidence of PW3, the learned judge found that the prosecution had proved the first element of the charge. As for the second element, ie whether the appellant had custody and control of the drugs, the learned judge relied on the evidence of PW2 and PW6 and invoked s 37(d) of the DDA to presume that the appellant had knowledge of the drugs. PP v. Abdul Latif Sakimin was cited by the learned judge in holding that PW2 and PW6 had no interest or motive to testify against the appellant. In respect of the final element of the charge, the learned judge applied s 2 of the to find that the appellant was trafficking in dangerous drugs when she carried the drugs concealed in P6, from Shanghai, China to Malaysia.

[7] The trial judge thus found that the prosecution had proved a prima facie case. The appellant was called upon to enter her defence.

The Defence

[8] The appellant, an Australian, gave evidence under oath. Her evidence in gist was that she travelled to Shanghai at the request of her fiancee Captain Daniel Smith. The purpose of her travel was to meet Commander James Yates and to collect Captain Daniel Smith's retirement papers from Commander James Yates. Commander Yates however failed to turn up. Instead Tega Collins came to meet the appellant at the hotel in Shanghai, where Captain Daniel Smith's retirement papers were given to the appellant by Tega Collins. In return, Tega Collins gave the backpack exh P6, which contains new clothes to the appellant. P6 was to be given to Tega Collins' relatives in Melbourne, the destination that the appellant was bound for, as Christmas gifts.

[9] The appellant's defence was therefore one of innocent carrier as she contended that she had no knowledge of the drugs and that she