GOPAL SRI RAM, JCA.,

ORAL JUDGMENT

This is the Judgment of the Court.

The appellant before us was charged with an offence of trafficking 580.3 grams of methamphetamines, an offence under section 39B(1)(a)Dangerous Drugs Act 1952

The main argument raised in support of the appeal is that the learned trial judge did not judicially appreciate the defence evidence. The appellant did not dispute that he was carrying the wet items. His story was as follows. He has a friend called Ah Keong who from time to time gives him work to do. The appellant has a wife who runs a restaurant in Chiang Mai. He visits her regularly. On 18 June 1999 he left for Chiang Mai to visit his wife. About 2 days after his arrival there, his wife received a telephone call from Ah Keong requesting that the accused bring back to Kuala Lumpur some items of clothing that he (Ah Keong) had left behind in Chiang Mai. And that is how the appellant came to have the wet items in his backpack.

The learned trial judge found that the prosecution had established a prima facie case of trafficking at the close of its case. In particular he was satisfied that the element of mens rea possession had been proved. This is how he put it:

“On the evidence, there can be no doubt whatsoever that the accused was carrying the drug at the material time and place as stated in the charge. The only question is: did the accused know that he was carrying methamphetamine? In my opinion, from the whole evidence, in particular, the evidence of the wet items, prima facie, the accused knew that what he was carrying was methamphetamine. Turning the methamphetamine into a solution and, thereafter, having the towels and underpants soaked with the solution was a cunning way of carrying the prohibited drug. The objective was clearly to avoid detection by the authorities.”

In a later passage in his judgment he had this to say about the appellant's version:

“To my mind, the story as given by the accused is inherently incredible. It does not make sense. Thus I am inclined to hold the view that the story about having a friend by the name of Ah Keong and having a Thai wife is nothing but a mere fabrication. It is most unusual for a person to travel on a along journey by air carrying wet clothing, all the more so if the wet clothing belong to someone else. Prior to departure, the accused, while at the hotel, had every opportunity to have the wet clothing dried. But why didn't he do so?

On the hypothesis that the accused's story about having a Thai wife and a good friend, Ah Keong, were to be believed, it is very strange that neither the accused nor his wife appeared to be suspicious or at least curious as to why Ah Keong took all the trouble to make a long distance phone call from Malaysia just to ask the accused to carry his wet towels all the way from Chiang Mai to Malaysia.

Further there are several materials inconsistencies in his evidence which, to my mind, do adversely affect his credibility.”

With respect to learned counsel, we are unable to agree with him that there has been a serious misdirection on the facts by the learned judge. We are also with respect unable to agree that there has been a failure by the learned judge to judicially appreciate the evidence. As can be seen from the foregoing passages the learned judge asked himself the correct question and subjected the totality of the evidence led before him to critical examination. We find ourselves entirely in agreement with the view he has expressed about quality of the defence and the explanation given by the appellant.

It is true that mens rea possession is an element of the offence of trafficking. But it is an element like the mental element in other crimes which cannot be established by direct evidence save in a case where an accused expressly admits the commission of the offence. It has, like the mens rea in other offences, to be established by circumstantial evidence. In other words it is an ingredient that is to be inferred from the totality of the