IN THE COURT OF APPEAL , MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION)
CRIMINAL APPEAL NO: P-05-48-02/2015
DEON JACOBUS ALFRED CORNELIUS … APPELLANT
[In The Matter Of The High Court Of Malaya At Penang Criminal No. 45A-14-04/2014]
Public Prosecutor And
Deon Jacobus Alfred Cornelius
MOHTARUDIN BAKI, JCA TENGKU MAIMUN TUAN MAT, JCA AHMADI HAJI ASNAWI, JCA
GROUNDS OF JUDGMENT
 The appellant was charged with the following offence:
“Bahawa kamu pada 4 Oktober 2013, lebih kurang jam 11.40 pagi di balai ketibaan Lapangan Terbang Antarabangsa Pulau Pinang, dalam Daerah Barat Daya, dalam Negeri Pulau Pinang, telah didapati mengedar dadah berbahaya iaitu Methamphetamine seberat 1949 gram, dan dengan itu kamu telah melakukan satu kesalahan di bawah Seksyen 39B (1) (a) Akta Dadah Berbahaya, 1952 yang boleh dihukum di bawah Seksyen 39B (2) Akta yang sama”.
 The appellant was ordered to enter his defence upon proof of a prima facie case being established against him. Having heard his defence, the learned High Court Judge found him guilty of the offence and convicted him of the same. He was sentenced to death.
 The appeal before us was in respect of the said conviction and sentence. We heard the appeal and after due consideration of the issues raised, we unanimously dismissed the appeal and now we give our reasons.
THE PROSECUTION’S CASE
 The salient facts of the prosecution case reproduced as set out by the learned High Court judge as below:-
(i) On 4th October 2013, the appellant arrived at Penang International Airport from Johannesburg South Africa via Singapore. At the arrival hall, Custom Officer Surendran a/l
Visvanathan (SP4) who was operating the scanning machine, scanned the appellant’s bag. SP4 then detected a suspicious image in the said bag. SP4 thereafter asked his colleague, Custom Officer Abdul Shukor bin Ahmad (SP5) to examine the bag.
(ii) Before SP5 examine the bag, he asked the appellant whether the bag belongs to the appellant and the appellant answered in the affirmative. SP5 then asked the appellant to open the bag and having examined the said bag, SP5 found it contained some clothing and a laptop bag.
(iii) SP5 then opened the said laptop bag and found no laptop in it. The laptop bag was scanned and a suspicious image appeared on the screen of the scanning machine. SP5 reported this matter to his superior officer, Jitvinder Singh a/l Hardev Singh who then instructed SP5 to bring the appellant and the bag to the meeting room of Unit Khas Pemeriksaan Penumpang (UKPP).
(iv) At the UKPP meeting room, SP5 was instructed to guard the appellant and the bag until the arrival of the Custom narcotic team. At about 11.30 am, Custom Officer Ban Lee a/l Tan Pett (SP6) who headed the narcotic team arrived at the said meeting room. Upon his arrival, the appellant and the bag was handed over to him.
(v) SP6 then examined the bag and checked the appellant’s passport and found that the bag ‘tag’ bore the same name as in the appellant’s passport.
(vi) Subsequently, SP6 examined the appellant’s bag and found it contained a black laptop bag, without a laptop in it. After
further examination, SP6 found a black plastic hidden at the wall of the bag which contained crystalline white substance.
(vii) SP6 thereafter examined the white substance with a ‘test kit’ and the result showed that it is dangerous drugs. SP6 informed the appellant about the drugs found in the laptop bag. SP6 then arrested the appellant and brought him together with the bag and its contents to Customs Office at Bagan Jermal.
(viii) At the Customs Office, a thorough examination of the laptop bag was carried out by SP6 and SP6 found there were 2 plastic packets in which it contained the crystalline white substance suspected to be drugs.
(ix) Next, SP6 marked all the exhibits that he had recovered and on the same day, 4.10.2013 at 3.05 pm, SP6 handed over the appellant and all the exhibits to the investigation officer, Mohd Imran bin Nazharuddin (SP7). Thereafter, SP6 lodged a police report no LTA Bayan Lepas 000910/13 in relation to the seizure of the same.
(x) On 7.10.2013 at 3.16 pm, SP7 sent the black plastic packets which contained the crystalline white substance to the chemist Teoh Choon Peng (SP3) for analysis and were confirmed by SP3 to contain 1949 grams of Methamphetamine. Methamphetamine is listed under the First Schedule of Dangerous Drugs Act 1952.
FINDINGS OF TRIAL JUDGE
 At the close of prosecution case, based essentially on the facts summarised as above, the learned High Court Judge was satisfied that
the prosecution had established a prima facie case against the appellant. At the trial stage, the defence counsel’s arguments were as follow:-
(a) The appellant had no knowledge of the drugs hidden in the said laptop bag. The bag belongs to the appellant’s friend ‘Tony’ and the appellant was an innocent carrier;
(b) No DNA was taken from any of the relevant exhibits seized from the appellant to show his involvement or knowledge of the said drugs;
(c) The appellant’s conduct shows his innocence as he remained calm when the bag was examined at the airport and also when he was arrested. He had also given full cooperation to the Custom Officers.
 The learned High Court Judge concluded that the appellant had the control and custody of the laptop bag as he was seen alone and was carrying the bag that had the laptop bag in it from where the dangerous drugs was found. Consequently, with the presumption of law under S.37(d) of Dangerous Drugs Act 1952 (the Act), the appellant was presumed to have possession and knowledge of the drugs in the laptop bag that he carried in his luggage bag. In this respect, the learned High Court Judge held that the appellant knew the nature of the contents of the 2 plastic packets found in the laptop bag. The drugs were carefully concealed at the wall of the laptop bag which was inside a luggage bag and transported from Johannesburg, South Africa into Penang, Malaysia. Having said this, His Lordship referred to S.2 of the Act and made a finding of trafficking of the said drugs which includes the act of carrying. It was also held that the quantity of the drugs indicated that it
was not meant for the appellant’s own consumption and the evidence irresistibly points to the appellant trafficking the drugs.
 It was agreed that the appellant did mention about ‘Tony’ in his cautioned statement and that the laptop bag belongs to ‘Tony’. However, His Lordship held that an exculpatory statement or self-serving statement of this kind, should not be made as a foundation of an acquittal especially at the close of prosecution case as it has not been tested by cross examination. There was no sufficient information provided by the appellant about ‘Tony’ for the Investigating Officer (SP7) to investigate about ‘Tony’. Failure to do a DNA test should not be given an exaggerated consideration as this omission does not compromise the prosecution’s case. According to the learned High Court Judge, DNA test from the exhibits seized would only be a corroborative evidence besides other credible evidence adduced by prosecution. The DNA evidence is not of a mandatory requirement. Therefore, His Lordship was satisfied that the prosecution had succeeded in proving a prima facie case and the appellant was called upon to enter his defence.
 The appellant gave evidence on oath. He came to Penang for a vacation from South Africa. His friend Tony had asked his favour to pass a laptop bag to Tony’s friend in Penang. The appellant went to Tony’s house with his luggage bag and ‘Tony’ had asked the laptop bag to be kept inside his luggage bag. Subsequently, ‘Tony’ himself placed the laptop bag in the appellant’s luggage bag when the appellant went to the washroom. At the Penang Airport, when the appellant was apprehended by Custom Officers, the appellant told them about ‘Tony’.
The appellant’s hand phone rang 4 times and one of the Customs Officer read the message in his hand phone which states ‘Deon, answer the phone, its ‘Tony’ calling’. In essence, the appellant denied any knowledge of the drugs in the laptop bag and claimed that he was an innocent carrier.
FINDINGS OF THE TRIAL JUDGE AT THE END OF TRIAL
 At the close of the defence, the learned High Court Judge found that the appellant had not raised a reasonable doubt on the prosecution’s case. The appellant was convicted and sentenced to death. In a nutshell, the reasons given are as follows:-
(a) The appellant did not rebut the presumption of law under S.37(d) of DDA 1952 on the balance of probabilities;
(b) The appellant had ample opportunities to examine the content of the said laptop bag which he did not do. His ‘wilful blindness’ only support a strong inference that the appellant had knowledge of the drugs in the laptop bag;
(c) The appellant’s failure to ask or put to the arresting officer, (SP6) about ‘Tony’, the phone calls and the message he received from ‘Tony’ during prosecution stage only show that the defence is an afterthought or a recent invention by the appellant;
(d) The character ‘Tony’ is an invention by the appellant to support his defence of no knowledge about the drugs in the laptop bag.
 Before us, the learned counsel for the appellant had canvassed 3 pertinent grounds as below:-
(i) The appellant had no knowledge of the impugned drugs found in the laptop bag;
(ii) The trial judge did not consider the content of the appellant’s cautioned statement (D65) and his defence on the existence of Tony;
(iii) The conduct of the appellant at the airport and the cooperation he gave throughout the investigation shows his innocence rather than guilt.
 It was never disputed by the appellant that he was in physical custody and control of the laptop bag at the time of his arrest. The defence proceeded along the line of ‘innocent carrier’ to qualify the mental element that the appellant had no knowledge that he was carrying drugs in the laptop bag given by ‘Tony’. In our assessment, looking at the evidence in totality, the appellant could not exculpate his involvement in the trafficking of the seized drugs by saying that he had no knowledge or rather an ‘innocent carrier’ in this transaction. In our view, how could he be ‘innocent’ when he voluntarily agreed to hand over a bag to a third party that he hardly knows in another country without enquiring further as to the contents of the said bag. The appellant, without any such inquiry, which he would have been reasonably expected to make in any event, had agreed to give the bag
to someone just as a favour for his friend Tony. The appellant should
have refused to carry out such an assignment if no satisfactory explanation as to its contents was forthcoming from Tony who he was in contact with.
 The law is quite clear on the aspect of knowledge and we would like to refer to the Federal Court case of Parian Dadeh v PP  1 CLJ 717 at page 718, where at Held (i) it states:
“Proof of knowledge is very often a matter of inference. The material from which the inference of knowledge can be drawn varies from case to case. It would be sufficient for the prosecution to prove facts from which it could properly be inferred that the accused had the necessary knowledge.
 The contention of no knowledge of the drug is inherently incredible as the amount of drugs involved in this case is rather big to claim innocence on the existence of the same. The weight of 1, 949 gm can be felt and would raise a suspicion to any reasonable person who carries an empty laptop bag even if it was concealed at any part of the bag. The appellant himself has admitted that the said bag was hard and heavy but he did not suspect anything because of the trust he had on ‘Tony’. We agree with the DPP’s submission that when the presumption of law under S.37(d) of the Act was used by the trial judge on the finding of knowledge, it is the appellant’s duty to rebut the same with a stronger evidence, which in this case, the appellant had failed. (see PP v Badrulsham bin Baharom  1 LNS 72).
(ii) Cautioned Statement
 The learned counsel for the appellant submitted that the High Court Judge did not consider the appellant’s cautioned statement (D65) and his defence on the existence of Tony. It was argued that the learned High Court judge erred when he did not appreciate the details given by the appellant about ‘Tony’, the fact that ‘Tony’ called the appellant a few times when he was arrested and a message from ‘Tony’ was read by a Customs Officer. The appellant’s cautioned statement was recorded three days after his arrest and he repeated the same in the court when his defence was called. Essentially, whatever the appellant had said in his cautioned statement had formed a large part of his defence. This argument based on the factual aspect of the present case and relies upon the credibility of the appellant and the inherent probability of his testimony. In this regard, the learned High Court judge had thoroughly considered the defence put by the appellant. After carefully weighing all the evidence, the learned High Court judge found that the appellant had the knowledge about the drugs in the laptop bag. In the words of the learned High Court judge at page 24 (paragraphs 48 and 49) and at page 26, (paragraphs 53, 55 and 56) of his grounds of judgment:
“ Having analysed the defence put forth by the accused, firstly if ‘Tony’ does really exist and the accused story about the laptop bag were to be believed, the accused has the opportunity to examine the content of the laptop bag when it was shown to him at ‘Tony’s house. The accused had hold the said bag when shown by ‘Tony’ and that is why in his testimony he said the bag was hard and heavy. However, he did not open or examine the said bag which can be opened easily.
 Accused failure to examine or open the laptop bag is against the character of a body guard, who always cautious, alert and meticulous in every aspect especially when it concerned the accused himself.
 In the present case, the accused has reasons for suspicion and had opportunity to examine the laptop bag. His ‘willful blindness’ only support a strong inference that the accused has knowledge of the drugs in the laptop bag.
 SP6 is the arresting officer who examined and found the drugs in the laptop bag. Having gone through SP6 evidence, nothing was asked or put to SP6 by the defence that the accused told him that the drugs belongs to ‘Tony’, his handphone number is in the accused’s handphone and also SP6 was asked to call ‘Tony’ but he refused. This should be done as it will give SP6 the opportunity to confirm or deny these facts.
 Failure to put forth the defence version during prosecution stage will only show that the defence is an afterthought or a recent invention by the accused. In the circumstances, this court is entitled to disbelieve this line of defence”.
 In our judgment, the above finding was correctly made upon a consideration of the circumstances and the factual matrix of the case. The appellant should have been curious as to why would ‘Tony’ give him a laptop bag to pass the same to someone whom he doesn’t know in another country. ‘Tony’ insisted the laptop bag to be kept in the appellant’s luggage bag despite the appellant’s offer to hand carry the bag as it has laptop in it. ‘Tony’ himself had placed the said laptop bag in the luggage bag in the absence of the appellant. All these facts should have triggered the appellant’s suspicion, but he never queried ‘Tony’ about this. In our view, the appellant had deliberately shut his eyes to
the obvious and refrained from inquiry because he knew about the impugned drugs in the laptop bag. On the evidential status of the appellant’s cautioned statement, we would like to refer to the case of PP v Mansor Md Rashid & Anor  1 CLJ 233 at page 250, where Chong Siew Fai CJ (Sabah & Sarawak) had this to say:-
“In relation to the use of the exculpatory statement of the 1st respondent (D25), we note that the learned trial Judge had used the statement to conclude that Amran occupied room “K” in the house. Learned Counsel for the 1st respondent had also submitted before us that the 1st respondent’s statement (D25) showed that he did not negotiate nor did he ask the 2nd respondent to buy the cannabis. With respect, we are of the view that the approach is wrong. A purely exculpatory or self-serving statement is not evidence of the facts stated though it may be admitted to show the reaction or attitude of the accused at the time when he made it. And, in considering whether there is a case to answer, the trial judge ought not take into account such statement as the basis for finding an order of acquittal and discharge”.
 The presumption of knowledge of the drugs could not be rebutted even if it was argued that the conduct of the appellant at the airport showed his innocence rather than guilt. It was submitted that the calm and cool demeanour of the appellant when he was apprehended showed his lack of knowledge of the said drugs recovered from the bag. However, we are unable to accept this argument because evidence of conduct is not conclusive in showing a person’s guilt or innocence. If that being the case, all that a drug trafficker has to do to avoid detection is to act innocently to be a confident trickster.
 The trial judge had meticulously gone through and appreciated the evidence before him as it was detailed in his grounds of judgment. We are satisfied that no substantial miscarriage of justice had occurred. There are no appealable errors. It is safe to convict the appellant. For the reasons aforesaid, the appeal is dismissed. We affirmed the conviction and sentence imposed on the appellant by the High Court.
(MOHTARUDIN BIN BAKI)
Court of Appeal Malaysia.
Dated : 25th April 2016
Counsel for the Appellant:
Encik Hussaini Bin Abdul Rashid Messrs Hussaini & Co Bangunan Seri Hussaini,
97C-G-1, Jalan P. Ramlee,
Counsel for the Respondent:
Puan Farah Ezlin Yusop Khan Timbalan Pendakwa Raya Bahagian Perbicaraan dan Rayuan Jabatan Peguam Negara Malaysia PUTRAJAYA