IN THE COURT OF APPEAL MALAYSIA AT PUTRAJAYA
CRIMINAL APPEAL NO : R-05-118-05/2014
ABU BAKAR BIN UMMAR …APPELLANT
PUBLIC PROSECUTOR . RESPONDENT
(In the Matter of High Court of Malaya at Kangar Criminal Case No : 45A-03-11/2012
PUBLIC PROSECUTOR And
ABU BAKAR BIN UMMAR) CORAM:
MOHTARUDIN BIN BAKI , JCA ZAKARIA SAM, JCA UMI KALTHUM ABDUL MAJID, JCA
GROUNDS OF JUDGMENT
1. The Appellant was charged for an offence of drug trafficking under section 39B (1) (a) of the Dangerous Drugs Act 1952 (“the Act”). The charge reads as follows:
“Bahawa kamu pada 12 Ogos 2012 jam lebih kurang 8.10 pagi di Laluan Import, Unit Khas Pemeriksaan Penumpang (UKPP), Pos Imigresen Wang Kelian, Kaki Bukit, di dalam daerah Padang Besar, dalam negeri Perlis, telah didapati mengedar dadah berbahaya iaitu Cannabis berat bersih 37,459 gram dan dengan itu kamu telah melakukan kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah seksyen 39B(2) Akta yang sama”.
The Prosecution’s Case
2. The Appellant was arrested when he was passing through customs check point at Special Investigation Unit (Unit Khas Pemeriksaan), at Immigration Inspection Post Wang Kelian, Padang Besar, Perlis. At the material time the Appellant was driving a Honda Accord registration number MCC1739 (P67). The Appellant was alone in the car. The Appellant was stopped by PW9 (Customs Officer Ku Ahmad Redzuan bin Ku Hashim). PW9 proceeded to inspect the car’s boot and he did not find anything incriminating. However, on top of the rear seat in the Appellant’s car, PW9 found a blue object which later was found to be a bolster (bantal). Upon further inspection of the car, PW9 discovered that there was a modification being made at the floor of the car located near the
driver’s seat. PW9 then turned off the ignition key and pulled it out and immediately reported his findings to PW 11 (Customs Officer Johari bin Yahya). PW11 inspected the car and he suspected that there was a modification being made to the floor of the car. PW11 then instructed PW9 to conduct a thorough inspection of the car. After a thorough inspection, PW9 found that there were two holes at the floor of the car and there were modifications made underneath the driver’s seat and the front passenger’s seat. PW9 then informed Unit Pencegahan dan Narkotik, Jabatan Kastam Padang Besar.
3. PW10 (Customs Officer Indera bin Idris) and a few other officers from Unit Pencegahan dan Narkotik came and they met PW9 and PW11. PW10 then took the Appellant and the car to the Customs Office at Padang Besar. In the presence of PW9, PW11 and the Appellant, PW10 conducted a detailed inspection of the car. PW10 removed /took out the front passenger seat and found a hidden makeshift compartment at the car floor. PW10 opened the compartment and pulled out 20 slabs wrapped in transparent plastic from inside the compartment. After that, PW10 proceeded to remove the driver’s seat. He also discovered that there was another hidden makeshift compartment underneath the driver’s seat at the floor. He opened it and took out another 18 slabs wrapped in transparent plastic.
4. PW10 confiscated a total of 38 slabs of compressed dried leaves which were suspected to be dangerous drugs Cannabis. The 38 slabs of dried leaves were marked by PW11. PW11 then handed all the 38 slabs of dried leaves, the car (P67) and few other items to Investigation Officer Zulhilmi Bin Daud (PW12).
5. PW12 then sent the 38 slabs to the Chemist Department for analysis. Upon analysis, PW5 (Chemist Marhayani binti Mohd Saad) confirmed the substance in the slabs was dangerous drugs Cannabis with a nett weight of 37,459 grams (P14B-P51B).
6. The prosecution called 2 witnesses, PW6 (Mr. Teh Ling Han, who is an engineer from Honda Malaysia) and PW7 (Encik Fazil bin Hamzah, assistant mechanical engineer from the Public Works Department), who testified that the compartments under the floor of the car were specially made and not part of the original car. The prosecution then invoked the presumption of knowledge of the concealment of the dangerous drugs by the Appellant under section 37(h) of the Act. Further, the prosecution submitted that, based on the aforesaid facts of the case, the prosecution had proved that the Appellant had trafficked in the dangerous drugs pursuant to the definition of “trafficking” in section 2 of the Act.
Findings of the T rial Judge
7. At the end of the prosecution’s case, and upon the maximum evaluation of the prosecution’s evidence, the learned trial judge found the prosecution had successfully proven a prima facie case against the Appellant. The learned trial judge was satisfied that P14B -P51B seized by PW10 were dangerous drugs as analysed by PW5.
8. The Appellant was found to be the owner of the car, and in control of the car when he was detained at the Immigration Post Wang Kelian. The Appellant was the driver of the car. The manner in which the drugs were hidden in special compartments at the floor of the car raised the presumption that the Appellant had the knowledge about the existence of the drugs in the car which were hidden in the car. The prosecution was
able to prove, through the evidence of PW6 and PW7 that the compartments were specially made with the intention of hiding/concealing dangerous drugs. The learned judge allowed the prosecution to invoke the presumption under section 37( h) of the Act which provides –
37. In all proceedings under this Act or any other regulation made thereunder -(a) ….
(h) if any dangerous drug is found concealed in any compartment, specially constructed for the purpose, on any vehicle, it shall until the contrary is proved, be deemed to have been so concealed with the knowledge of the owner of the vehicle and of the person in charge of the vehicle for the time being;.”
9. In view of the above, the learned trial judge thus found that the prosecution had successfully proven the Appellant was in possession of the dangerous drugs and that he was transporting/carrying the said drugs within the meaning of “trafficking” under section 2 of the Act. The learned trial judge ordered the Appellant to enter his defence.
The Appellant’s defence
10. The Appellant chose to give a sworn statement in his defence. The Appellant stated he came from Johor and the reason he went to Hadyai was at the request of his friend named Ijat to buy clothes for Ijat’s wife and Ijat’s children. Ijat also gave RM2,000.00 to the Appellant for this purpose. According to the Appellant, he was also needed to bring/drive back into Malaysia a car. On 10.8.2012, the Appellant went to Hadyai together with DW3 (Norazizan bin Mustafa). DW3 sent the Appellant to Hadyai and DW3 came back to Perlis leaving the Appellant alone at Hadyai. Appellant stayed overnight at Wing Star Hotel, Hadyai. Via telephone, Ijat informed the Appellant that the Appellant was to drive back
into Malaysia using a car that was parked at the hotel parking lot. Ijat informed the Appellant that the key to the car was placed under the floor mat inside the car. The next day, on 11.8.2012, the Appellant drove to Satun. The Appellant stayed there for one night and returned to Malaysia on 12.8.2012. Upon reaching the Customs Check Point at Wang Kelian, the Appellant was arrested.
11. The Appellant said he had no knowledge about the car. The car was registered under his name because Ijat had bought the car and registered it under his name (the Appellant’s) without his knowledge. He had never driven the car while in Malaysia and the first time he drove it was in Thailand.
12. DW2 testified in court that she was the girlfriend of Ijat and not Ijat’s wife as claimed by the Appellant. She testified that the Appellant is a relative of her ex-husband. She also said that Ijat did tell her that he was going to Thailand on 9.8.2012. She had not met Ijat since that date.
13. DW3 is a friend of Ijat. The Appellant had contacted him when the Appellant reached Kangar. DW3 confirmed that he had fetched the Appellant when the latter had reached Perlis and that the Appellant had slept in his house that night. DW3 further confirmed that he had sent the Appellant to Hadyai and left him there.
Findings of The Trial Judge
14. At the end of defence case, the learned trial judge found that the Appellant’s defence did not raise any reasonable doubt against the prosecution’s case. The testimony of the DW2 did not support the
Appellant’s evidence that the reason why he went to Hadyai was to buy clothes for Ijat’s wife and children at the request of Ijat. DW2 was not Ijat’s wife and the children referred to as Ijat’s children could not be so since DW2 was not Ijat’s wife. On the other hand, the evidence of DW3 only supported the Appellant’s contention that the Appellant did not drive P67 to Hadyai. However the Appellant failed to dislodge the presumption of his knowledge that the drugs that were found inside the concealed compartment’s in P67 on the balance of probabilities. The Court also found that the Appellant had failed to raise any reasonable doubt on the prosecution’s case. Therefore, the learned trial judge found that the prosecution had proven its case beyond reasonable doubt. The Appellant was found guilty as charged and sentenced to death as mandated under section 39B(2) of the Act.
15. Before us, the Appellant challenged the decision of the learned trial judge on two grounds –
15.1 the presumption under section 37 (h) of the Act was not applicable to the Appellant. Therefore the conviction under section 39B of the Act should be substituted with a conviction under section 6 of the Act;
15.2 the defence of the Appellant that he was innocent carrier was a probable defence.
16. It was submitted by learned counsel for the Appellant the presumption under section 37(h) of the Act was not applicable in this case. The learned trial judge had erred when he relied on the evidence of PW6 to support his findings that the modifications were made to the floor of the
car to create hidden compartments underneath the car seats. DW6 failed to produce the original floor plan of the vehicle certified by expert from the car manufacturer Honda. It was not safe to rely on the evidence DW6 alone on this point as there was no supporting documentary evidence.
17. In reply, learned DPP submitted that the Appellant had the knowledge of the existence of the drugs in the car. This could be seen from the the way the drugs were hidden in the car. The drugs were stored in specially made compartments underneath the car seats to avoid being detected by the relevant authority. Therefore the prosecution had proven that the Appellant knew about the existence of the drugs. The case of Teh Hock Leong v PP  4 CLJ 764 , C.A., at paragraph 8, page 769 was cited as follows:
“ Turning to the facts of the present instance, we agree with the learned trial judge that the method employed to bring the drugs in question from Thailand into Malaysia was done in a most cunning fashion to escape detection by the authorities. The method employed to convey or transport a drug may sometimes furnish evidence of knowledge. For example, an attempt to carefully conceal a drug may indicate an intention to avoid detection and thereby point to knowledge. Of course it all depends on the facts of each individual case.”
18. In Wjchai Onprom v PP  3CLJ 724, C.A., Gopal Si Ram JCA said at page 733 –
“ Now, adopt a similar approach to the present case. Here the appellant was caught conveying a very large quantity of cannabis from Thailand to Malaysia. In view of the amount involved, it is safe to infer that the drug was intended for a third person or persons, known or unknown. That other person or persons may, to borrow Lord Diplock’s words, be “the actual consumer or a distributor or another dealer”. So this is not a case of mere passive possession. There were overt acts done by the appellant, namely the active concealment of the drug on his person followed by its conveyance from Thailand into Malaysia which reasonably supports the existence of criminal purpose proscribed by the Act. We may add that the very same facts also give rise to a strong inference that the appellant was aware of his possession, knew the nature of the drug
possessed and had the power of disposal over it. So much for the prima facie proof of actual trafficking.”
19. Furthermore, PW6 the engineer from Honda has 10 years experience in dealing with market quality of Honda. He testified that he had inspected P67 and found that there were a modifications being made to the car floor. The modifications resulted in a slight raise to the height of the front passenger seat, driver seat and rear passenger seat. PW6 also testified that he found two compartments under the front passenger seat and the driver seat. These modifications cannot be found in any factory made Honda car. The evidence by PW7 and PW8 confirmed that modifications were made to the car floor.
20. On the second issue, learned counsel for the Appellant submitted in the alternative, the Appellant was an innocent carrier of the drugs. Based on the Appellant’s cautioned statement recorded by the recording officer at page 467 AR Volume 3, it was recorded that the Appellant took the car keys from under the car mat. The Appellant brought the car from Hadyai to Satun. The car was registered under the Appellant’s name because Ijat had used his name to purchase the car. It was submitted that the Appellant’s defence was probable and it should not be disregarded by the learned trial judge. Learned counsel for the Appellant submitted that the Appellant should be charged only for possession of drugs under section 6 read with section 39A(2) of the Act.
21. In response, learned DPP submitted that the Appellant was not an innocent carrier. The prosecution had proven that the car belonged to the Appellant. The Appellant had failed to rebut the presumption that he knew about the existence of the drugs inside P67 hidden in the car. The
evidence of DW2 and DW3 did not support the Appellant’s defence about the reason why he had to gone to Hadyai.
22. It was submitted that the prosecution had proven that the Appellant had committed the act of trafficking as defined in section 2 of the Act. Section 2 of the Act provides –
‘ “trafficking” includes the doing of any of the following acts, that is to say, manufacturing, importing, exporting, keeping, concealing, buying, selling, giving, receiving, storing, administering, transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug otherwise than under the authority of this Act or the regulations made under the Act;’
23. Furthermore the amount of drugs recovered from P67 was in large quantity which was unlikely to be used for personal consumption. In the case of Ong Ah Chuan v PP  1 MLJ 64 at page 69, paragraph A, left, Lord Diplock said ;
“ Proof of the purpose for which an act is done, where such purpose is a necessary ingredient of the offence with which an accused is charged, presents a problem with which criminal courts are very familiar. Generally, in the absence of an express admission by the accused, the purpose with which he did an act is a matter of inference from what he did. Thus, in the case of an accused caught in the act of conveying from one place to another controlled drugs in a quantity much larger than is likely to be needed for his own consumption the inference that he was transporting them for the purpose of trafficking in them would, in the absence of any plausible explanation by him, be irresistible — even if there were no statutory presumption such as is contained in section 15 of the Drugs Act.
As a matter of common sense the larger the quantity of drugs involved the stronger the inference that they were not intended for the personal consumption of the person carrying them, and the more convincing the evidence needed to rebut it…”
24. In dealing with the first and second issues together, we found the Appellant had the custody and control of the car when he was arrested. The Appellant committed the acts of “transporting”, “carrying” and “concealing” the drugs in the car when he was arrested. On the facts and circumstances of this case, we found the Appellant had failed to rebut the statutory presumption of knowledge under section 37(h) of the Act and had failed to raise any reasonable doubt on the prima facie case presented by the prosecution. The Appellant failed to give any plausible explanation on the following findings made by the learned trial judge:
24.1 the Appellant was the driver of the car when he was arrested;
24.2 the car was registered under the Appellant’s name;
24.3 the drugs were found in two separate compartments underneath the front passenger seat and driver seat . These compartments were made as a result of modifications made to the floor of the car. In this context, we do not find any reason to differ from the finding of facts by the learned trial judge when he accepted the evidence of PW6 and PW7 on the modifications so made to the car;
24.4 the drugs were in a large quantity as to dismiss the possibility for individual use.
25. Therefore the Appellant’s defence that he was an innocent carrier must fail. The learned judge was right to accept the learned DPP’s submission on the applicability of the presumption under section 37(h) of the Act. The way the drugs were concealed in the car raised the presumption that the Appellant had the knowledge about the existence of
the drugs in the special compartments underneath the driver and the front passenger seats.
26. Furthermore, we found there were contradicting evidence on the manner on how the Appellant got the car at Hadyai. The Appellant in his evidence before the court at page 219 of RR Volume 2 said the following:
“J: Setelah saya sampai dihotel, saya menghubungi Ijat dan memberitahu saya sudah sampai di Hotel Wing Star. Selapas itu saya mematikan telefon. Pada malamnya jam pukul 10.00 malam , Ijat menghubungi saya, Ijat cakap kereta yang hendak dibawa balik sudah ada dibawah tempat parking hotel berkenaan.”
Whereas, the Appellant in his own cautioned statement (D1) at page 467 AR Volume 3 said this –
“….Sampai di Hatyai, sebelum saya check-in hotel, Mahzan telah pulang ke Malaysia. Setelah itu saya ‘parking’ kereta dan meletak kunci kereta dibawah alas kaki. Dan saya terus menelefon kawan saya bernama Ijat, bahawa saya sudah sampai dan saya terus pergi check in hotel Wing Star. Saya bermalam di situ semalaman. Pada keesokan harinya, kawan saya yang bernama Ijat telah memberitahu saya , keretanya ada ditempat asal.”
Therefore the learned trial judge was right to find that the Appellant had failed to rebut the presumption under section 37(h) about the modifications to the car and eventually had failed to raise reasonable doubt on the prosecution’s case.
27. Having considered the evidence presented in totality, we agreed with the learned trial judge that the prosecution had proven its case beyond reasonable doubt. We find the learned trial judge had adequately considered the defence case and we find there were no merits in the appeal. We were also satisfied that the conviction of the Appellant was
safe. We unanimously dismissed the appeal and affirmed the conviction and sentence imposed by the learned trial judge.
(UMI KALTHUM BINTI ABDUL MAJID)
Court of Appeal Malaysia Putrajaya
Counsel for the Appellant: Mr. Mak Kah Keong
Tetuan T.L Chen & Co
For the Respondent: Intan Nur Halwani
Deputy Public Prosecutor Attorney General’s Chambers