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2020 MarsdenLR 2473
COURT OF APPEAL (PUTRAJAYA)
NOR BEE BINTI ARIFFIN, J, LEE SWEE SENG, J, NORDIN BIN HASSAN, JJCA
Konradt Prosch – Plaintiff
Versus
Public Prosecutor – Defendant
CRIMINAL APPEAL: NO. B-05(M)-165-03/2018
Suzanawati binti Ismail with Nor Azzahra binti Norhaznan (Suzana Ismail & Partners) for the appellant.
Nurul Farhana binti Khalid for the respondent.
Possession and trafficking of drugs are proven through established presumption; inadequate defence and conscious avoidance of knowledge substantiated culpability for trafficking.
Headnote:(A) Dangerous Drugs Act 1952 - Sections 39B(1)(a), 39B(2), 37(d) - Conviction for trafficking in dangerous drugs upheld by the Court of Appeal, ruling that possession was sufficiently proven through credible evidence and established presumption under section 37(d) - The quantity of drugs (1382.6 grams of methamphetamine) inferred intent to traffic - Appellant's claim of being an 'innocent carrier' rejected as unconvincing - The requirements for trafficking were satisfied and no substantial errors by the trial judge were found. (Paras 1-51)
(B) The trial judge correctly applied the presumption of knowledge regarding the nature of the drug due to the appellant's custody and control of the bag containing the drugs - The appellant’s defence was inadequate not to raise a reasonable doubt concerning the prosecution's evidence - Failure to investigate further by the appellant established the basis for the doctrine of 'wilful blindness'. (Paras 10-50)
| Table of Content |
|---|
| 1. facts of the case establishment (Para 1 , 2 , 3 , 4) |
| 2. trial judge's findings at prosecution close (Para 5 , 6) |
| 3. appellant's defence and appeal grounds (Para 7 , 10 , 29) |
| 4. application of presumption of possession and trafficking (Para 11 , 12 , 14 , 16) |
| 5. knowledge and control in drug trafficking (Para 13 , 19) |
| 6. evaluation of chemist's evidence credibility (Para 22 , 37) |
| 7. credibility and reliability of witnesses in court (Para 23 , 30 , 32) |
| 8. trial judge's fidelity to appellate review standards (Para 25 , 26 , 28) |
| 9. doctrine of wilful blindness in drug trafficking (Para 44 , 46) |
| 10. conclusion of the court's decision (Para 51) |
Dato’ Nordin bin Hassan J:
Introduction
[1]The appellant, a South African national, is appealing against the decision of the Shah Alam High Court judge in convicting the appellant for an offence of trafficking in dangerous drugs under section 39B(1)(a)Dangerous Drugs Act 1952section 39B(2)
The Prosecution’s case
[2]The case for the prosecution, established through its witnesses and accepted by the trial judge is relatively straight forward which is as follows. On 25.10.2014, at about 11.00 am, Lance Corporal Vyarra Sugara bin Kassim (SP5) together with other police personnel from the Narcotic Division of the Kuala Lumpur International Airport (“KLIA”) were on duty at the baggage claim area at level 3 of the Main Terminal Building. SP5 then noticed the appellant pulling a green trolley bag and acting suspiciously. SP5 then approached the appellant, introduced himself as a police officer and instructed the appellant to scan his bag at the scanning machine. At that time, SP5 observed that the appellant looked afraid. However, no suspicious object was detected by the scanning machine. Thereafter, SP5 instructed the appellant to bring his bag to the office of the Narcotic Division for further examination. At the office, examination on the appellant was conducted but nothing incriminating was found. Upon the instruction of SP5, the appellant opened his bag and among the items found in the bag was a plastic bag with the words “MRP.COM” written on it. The plastic bag contained a box which was wrapped with present paper and inside the box, SP5 found 2 aluminium foils. Further examination revealed that the aluminium foils contained crystalline substances suspected to be dangerous drugs.
[3]Next, the crystalline substances were sent to the Chemist, Suhana binti Ismail (SP2) for analysis and she confirmed that the substances contained 1382.6 grammes of methamphetamine, a dangerous drug listed under the First Schedule to the DDA .
[4]Further, a hair comb found in the same bag was also sent to the Chemistry Department for DNA testing and was found that it matches with the appellant’s DNA.
The findings of the trial judge at the close of the prosecution’s case
[5]At the close of the prosecution’s case the trial judge had made the following findings:
(i)that the evidence of the Chemist was credible and accepted her evidence which proved that the crystalline substances contained methamphetamine, a dangerous drug listed under the First Schedule to the DDA ;
(ii)that the custody and control of the impugned drugs by the appellant had been established by the prosecution and as such the presumption of possession under section 37(d) DDA
(iii)that the prosecution had established the element of trafficking as defined under section 2DDA
[6]Consequently, the trial judge found that, on the maximum evaluation of the prosecution’s case, a prima facie case had been established for the offence of trafficking in dangerous drugs against the appellant as per the charge. Hence, the appellant was called to enter his defence.
The Defence
[7]The appellant gave evidence on oath and in essence his defence was that he was an “innocent carrier”. He had no knowledge of the drugs in the box as it was handed to him by a person called “Frank” when they were in South Africa. Frank had asked him to deliver the box to his brother “Mike” in Mala
