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2010 MarsdenLR 3860
COURT OF APPEAL, PUTRAJAYA
ABDUL MALIK ISHAK, JCA
HOH BON TONG – Appellant
Versus
PP – Respondent
CRIMINAL APPEAL NO: J-05-74-2008
In drug trafficking cases, possession of contraband establishes a presumption of trafficking if quantities exceed statutory limits. Knowledge is inferred from conduct and circumstances, including the doctrine of wilful blindness, which precludes an 'innocent carrier' defense where an accused deliberately avoids verifying the nature of transported contents.
Headnote:(A) Dangerous Drugs Act 1952 - Sections 39B(1)(a) and 39B(2) - Trafficking in dangerous drugs - Presumption of trafficking - Statutory presumption under Section 37(da)(xvi) - Proof of possession - Mens rea - Knowledge of the nature of the drugs - Burden of proof on the accused to rebut presumption - Appellate interference - Generally, findings of fact based on the credibility and demeanour of witnesses by a trial court are to be deferred to unless perverse, illegal, or lacking in sound reasoning. (Paras 3, 24, 26, 36, 61)
(B) Evidence - Unsworn statement from the dock - Status of - Conflicting judicial views addressed - Must be considered as evidence but carries less weight than sworn testimony subjected to cross-examination - Cannot, by itself, easily rebut a presumption of law or prove a material fact without corroboration. (Paras 23, 24, 37)
(C) Criminal Law - Innocent carrier defense - Requires absence of knowledge and lack of control over substance - Wilful blindness doctrine - Ignorance is no defence where one deliberately shuts eyes to obvious facts - If a person deliberately avoids checking contents of packages, they are taken to have knowledge. (Paras 10, 17, 73, 75)
Facts of the case:
An individual was apprehended while in possession of controlled substances. The accused argued the defense of an "innocent carrier," claiming to be keeping the items briefly for another person without knowledge of their content. The prosecution relied on the discovery of the substances upon the accused's person and the surrounding circumstances of the arrest to prove trafficking.
Findings of Court:
The court upheld the conviction, finding that the trial judge did not err in assessing the evidence. The trial court correctly preferred the testimony of prosecution witnesses over the unsworn statement of the accused, based on perceived demeanour and the inherent unreasonableness of the defense version.
Issues: Whether the accused had the requisite knowledge (mens rea) of the nature of the substance possessed for the purpose of a trafficking charge and whether the defense of innocent carrier was substantiated.
Ratio Decidendi: Knowledge can be inferred from surrounding circumstances, including the accused's conduct during the arrest. The doctrine of wilful blindness applies where an accused fails to verify the contents of packages in their custody. Given the quantity and packaging, the statutory presumption of trafficking was applicable and not successfully rebutted by the defense.
Result: Appeal dismissed. Conviction and sentence confirmed.
JUDGMENT
Abdul Malik Ishak JCA:
Appeal
[1] The appellant ("the accused") was charged with trafficking in 81.43 grammes of methamphetamine on 30 August 2002 at 2.40am in front of room 2119, 21st floor, New York Hotel, Jalan Abdullah Tahir, Johor Bahru under s. 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under s. 39B(2) of the same Act.
[2] At the end of the prosecution's case, the learned Judicial Commissioner found that the prosecution had made out a prima facie case against the accused on the offence charged and called upon the accused to enter on his defence (see s. 180(3) of the Criminal Procedure Code and the case of Balachandran v. PP [2005] 1 CLJ 85, FC). According to s. 180(4) of the Criminal Procedure Code "a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction".
[3] At the conclusion of the trial, the learned Judicial Commissioner found that the prosecution had proved its case beyond reasonable doubt (see s. 182A(1) of the Criminal Procedure Code ) and found the accused guilty as per the charge and convicted him accordingly (see s. 182A(2) of the Criminal Procedure Code ). The accused was sentenced to death.
[4] This is the accused's appeal against the conviction and sentence.
The Facts Of The Case
[5] Acting on information received, on 30 August 2002 at about 2.00am, Chief Inspector Arsad bin Kamaruddin (PW5) led a police party comprising of three other police personnel to the 21st floor of New York Hotel at Jalan Abdullah Tahir, Johor Bahru and there they took up positions behind the door leading to the stairway adjacent to room 2119.
[6] About half an hour later, PW5 saw a male Chinese (subsequently identified as the accused) and a female Chinese by the name of Chong Ching Chyee (PW2) approaching room 2119. Without further ado, PW5 emerged from his hiding place and identified himself as "polis". According to PW5, both the accused and PW2 fled but were subsequently arrested at about five metres from room 2119.
[7] PW5 did a body search on the accused. From the front right trouser pocket, PW5 found a transparent plastic packet containing substances suspected to be syabu (exh. P11). From the left front trouser pocket, PW5 found a transparent plastic packet. Inside that transparent plastic packet were 13 other smaller plastic packets each containing substances suspected to be syabu (exhs. P13B1 to P13B13).
[8] The contents of these plastic packets were later analysed by the government chemist (PW4) and found to contain 81.43 grammes of methamphetamine, a dangerous drug, and the subject matter of the charge.
[9] Nothing incriminating was found on PW2. Both the accused and PW2 were arrested. PW2 was subsequently released and she became a witness for the prosecution.
The Defence Of The Accused
[10] The accused gave his evidence from the dock. In essence, the defence of the accused was this. That he was an innocent carrier having physical possession of the drugs momentarily. His evidence may be summarised in this way.
[11] At the behest of PW2 (also known as Coco), the accused had given PW2 a lift home in the early hours of 30 August 2002. PW2 had a boyfriend known as Ah Siong. The accused also knew Ah Siong about one year before he was arrested. The accused had seen PW2 and Ah Siong together several times. Ah Siong was unable to send PW2 home because he was busy.
[12] According to the accused, as he was driving nearer to PW2's house she received a telephone call through her handphone from Ah Siong who told her that Ah Siong was in New York Hotel and that Ah Siong wanted her to fetch something from her house to be delivered to him. PW2 requested the accused to send her to meet Ah Siong. The accused agreed.
[13] On arrival at PW2's house, PW2 entered her house. About ten minutes later, PW2 emerged from her house and the accused then sent her to meet Ah Siong at New York Hotel.
[14]
