Possession of drugs triggers a presumption of trafficking under the Dangerous Drugs Act; the defense of being in transit is insufficient if possession is legally proven.

Abdull Hamid Embong FCJ

(delivering judgment of the court):

The appellant, a Peruvian, arrived at the Kuala Lumpur International Airport on 10 October 2006, en route from Buenos Aires to Phuket. Upon arrival at KLIA, the appellant went to Gate H to take a Malaysia Airline flight to Phuket, scheduled at 6.10pm. He then passed through the immigration checkpoint counter. An immigration officer on duty (‘PW19’) stamped his passport, granting him a social pass which allowed the appellant to stay in Malaysia for 90 days. PW19 also stamped the immigration Form 26 and handed it over to the appellant. When he emerged from the immigration counter, Inspector Basri Husain (‘PW4’), who was on surveillance duty at the KLIA, approached the appellant and introduced himself as a police officer. A quick body search on the appellant showed he was not carrying any contraband. The appellant was then brought to the KLIA Police Station where a police report was made.

The appellant was later brought to the Serdang Hospital where an x-ray examination was done on his abdomen. His bowel was detected to be filled with foreign bodies, oblong in shape.

The appellant was then warded in Ward 6C of the hospital. Medication was given to him to induce bowel movements. This resulted in the appellant, in the following five days, discharging out a total of 141 pellets suspected to be dangerous drugs. Upon analysis by the chemistry department, the pellets were found to contain 790.6g of cocaine, (‘the said drugs’) now the subject of the charge against him.

The trial judge found the appellant to be in possession of the said drugs and invoked the presumption under s 37(da)(ix) Dangerous Drugs Act 1952 (‘DDA’)

THE DEFENCE

The appellant said that upon arrival at KLIA he went to the transit section, where upon presenting his airline ticket he was given a boarding pass to Phuket, to depart from Gate H. He then went to the information counter to change his flight to an earlier one but found it unmanned. He then went to the immigration counter to make enquires about a change in his flight schedule. He spoke in Spanish but was not understood. Then he saw two persons beyond the immigration counter, one of whom waved at him. These two persons were policemen. At the immigration counter, his passport was seized by a policeman and given to the immigration officer. He said that he passed through the immigration checkpoint because he thought that the person who waved at him was there to help him.

The appellant admitted that he had swallowed the said drugs, found in his bowel, but denied that they were to be trafficked into Malaysia.

The learned trial judge found that the appellant had failed to rebut the s 37(da) presumption, rejected his defence as an afterthought and found that he had failed to raise a reasonable doubt on the prosecution’s case.

The Court of Appeal affirmed the finding of guilt by the learned trial judge and opined that the said drugs were clearly not in transit as expounded in the case of Public Prosecutor v Jorge Enrique Pellon Tellon Part V of the DDAPart V’ of the

Before us, learned counsel for the appellant submitted that there had been a break in the chain of the prosecution’s evidence. The thrust of the submission on this gap issue, according to learned counsel goes to the identity of the said drugs itself. Learned counsel contended that there had been a failure by the primary witnesses who recovered the pellets from the appellant, to properly identify the 11 pellets discharged by the appellant on 11 October 2006, the 17 pellets discharged on 12 October 2006, the 21 pellets discharged by the appellant on 13 Octoberv 2006, the 11 pellets on 14 October 2006, and the four pellets discharged on 15 October 2006. All these pellets were handed over to PW17 who marked the pellets and lodged separate police reports upon their recovery. It was submitted that the identification of these pellets were doubtful si