DALAM MAHKAMAH RAYUAN MALAYSIA

(BIDANG KUASA RAYUAN)

RAYUAN JENAYAH NO: K-05-190-06/2011

ANTARA

METHAN AYDROOS MOHAMED PILLAI

NAINA MOHAMED

... PERAYU

DAN
PENDAKWA RAYA

... RESPONDEN

[ Dalam Mahkamah Tinggi Malaya di Alor Setar

Di dalam Negeri Kedah Darul Aman
Perbicaraan Jenayah No. 45A-31-2009 ]

Pendakwa Raya

lawan

Methan Aydroos Mohamed Pillai Naina Mohamed

Koram :

Azahar bin Mohamed, HMR

Balia Yusof bin Wahi, HMR
Mohd Zawawi bin Salleh, HMR

JUDGMENT OF THE COURT

[1]

Methan Aydroos Mohamed Pillai Naina Mohamed (the

appellant), was charged and tried in the High Court at Alor Setar
for trafficking in 5,759.3 grammes of Ketamine, an offence in
contravention of section 39B(1)(a) of the Dangerous Drugs Act
1952 (the Act), and punishable with mandatory death penalty
prescribed under section 39B(2) of the same Act.

[2]

The offence was said to have been committed on 11.5.2009

at around 4.00 pm at Pejabat Kastam Lapangan Terbang Sultan

Abdul Halim, in the District of Kota Setar, in the State of Kedah
Darul Aman. The dangerous drugs were found concealed in a bag
the appellant was carrying at the time of his arrest at the Sultan
Abdul Halim Airport, Alor Setar (the airport).

[3]

The learned High Court judge at the conclusion of the trial

convicted the appellant on the charge and sentenced him to death

as prescribed by the Act. The appellant then appealed to this court.
We heard his appeal and we unanimously dismissed it. We now
give our reasons.

[4]

The essential facts of the case and the sequence of events,

which the learned High Court judge held made out a prima facie
case against the appellant are as follows. At the material time, the
appellant, an Indian citizen arrived at the airport from New Delhi via
Kuala Lumpur International Airport.

Encik Ramli bin Ahmad

(PW3) and Encik Ahmad Zamzuri bin Azmi (PW2) were both
customs officers on duty at the airport. At that time, PW3 saw the
appellant coming from the baggage claim area. PW3 observed that
the appellant was walking hurriedly by pushing a bag and was also
seen carrying a sling bag on his shoulder towards the customs
checking area.

[5]

In light of the appellants demeanor and bearing in mind the

direction by his superior officer to conduct surveillance on

foreigners, PW3 instructed PW2 to stop the appellant. PW2 then
stopped the appellant and directed him to go to the customs
checking area. At the checking area, PW2 instructed the appellant
to open his bag which was locked with a padlock and bears a
baggage tag under the appellants name.

[6]

The appellant then took out a key from his trousers pocket

and opened the bag. While opening the bag, PW3 noticed that the
appellants hands were shaking. At that point, he also noticed that
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the appellant only half opened the bag. The appellant brought out
some sarees from his bag. This aroused PW3s suspicion. He
then instructed PW2 to conduct a thorough inspection of the said
bag. Upon inspection of the bag it was found, among others, to
contain some sarees covering a few photo frames. PW2 then took
the photo frames and the appellant to the scanner machine. The
result of the scan showed that there was dark parallel line images
filling the photo frames. Upon being informed of the result of the
scan, PW3 directed PW2 to bring the appellant together with his
bag and the photo frames to the customs office at the airport.

[7]

Thereafter, PW3 called Encik Mazlan bin Mamat (PW7), a

customs enforcement officer to inform him of the discovery. Not

long after that, PW7 and a team of enforcement officers arrived.
PW3 then handed over the appellant and the bag together with its
content to PW7 for further investigation.

Tuan Mohd Shukri bin

Tuan Yahya (PW6), a customs enforcement officer then

conducted a thorough examination of one of the photo frame. He
dismantled the photo frame and discovered that underneath the
cover photo and wooden cover was a transparent plastic packet
containing white powdery substance. Altogether PW6 found a total
of 14 photo frames. It was found that in each of the photo frames

there was a transparent plastic packet containing white powdery

substances suspected to be dangerous drugs.

[8]

Subsequently, the transparent plastic packets were sent to the

Chemistry Department for chemical examination and analysis. The

packets were later confirmed by the chemist, Puan Marhayani binti
Md Saad (PW5) to contain ketamine as listed in the First Schedule
of the Act weighing in total, 5,759.3 grammes.

[9]

That, in a summary, is the prosecutions case.

[10] At the end of the prosecutions case, on the basis of the

primary evidence adduced by the prosecution which we have
summarized above, the learned High Court judge held that a prima
facie case had been made out against the appellant in respect of
the offence charged. In his judgment, the learned High Court judge
has explained as to why he came to that finding. In the words of the
learned High Court judge:

Tertuduh didapati membawa 14 bingkai gambar-gambar itu

dalam beg tariknya selepas dia mendarat di Lapangan Terbang
Sultan Abdul Halim, Alor Setar dari New Delhi melalui KLIA. Ini
disahkan melalui passport Tertuduh Ekshibit P18A, Departure
card P18C, Boarding Pass dari KLIA ke Alor Setar P18A,

Boarding Pass dari Delhi ke KLIA P18E, Kad keratan tag dari
KUL-A0R P18G.

Dadah itu dijumpai dari milikan fisikal Tertuduh. Dalam kes Hoh
Bon Tong v PR (2010) 5 CLJ di muka surat 268 menjelaskan:

Keeping, concealing, storing, transporting and carrying

dangerous
possession.

drugs

involve

the

prerequisite

element

of

But you certainly cannot keep, conceal, store,

transport or carry dangerous drugs unless you are in

possession of them.

Dalam pada itu, conduct Tertuduh bergegas keluar menarik beg

tariknya itu menimbulkan kecurigaan kepada SP3.

Keputusan

kes Mahkamah Persekutuan Parlan Dadeh v PR (2009)1 CLJ 717

terpakai.

Jumlah dadah berbahaya yang dibawa Tertuduh adalah banyak

iaitu 5,759.3 gram.

Jumlah ini menunjukkan ia dibawa untuk

tujuan pengedaran bukan untuk kegunaan sendiri seperti yang

diputuskan oleh kes PP v Suzie Adrina [2006] 3 CLJ 889, Ong Ah
Chuan v PP [1981] 1 IWLJ 64 dan Wichai Onprom v PP [2006] 3
CLJ 724.

Tertuduh mempunyai pemilikan ke atas dadah

berbahaya tersebut. Beg itu berkunci. Dia yang membuka kunci

mangga beg itu di mana kunci itu diambil dari poket seluarnya.
Tertuduh mempunyai kawalan dan jagaan dan pengetahuan ke
atas dadah itu seperti yang diperuntukkan oleh kes PP v Mohd
Radzi Abu Bakar [2006] 1 CLJ 457 dan PP v Denish Madhavan

[2009] 2 CLJ 209. Pengetahuan dapat di infer dari fakta dan

keadaan seperti yang diputuskan oleh kes Parlan Dadeh v PP
[2009] 1 CLJ 717, Emmanuel Yew Teiku v PP [2006] 3 CLJ 587
dan Wong Nam Looi v PP [1998] 1 CLJ 37

[11] The learned High Court judge then called upon the appellant
to enter his defence.

[12] The appellant elected to give evidence on oath. He was the

only witness in his own defence. In essence, the appellant did not
dispute that he had carried the bag containing the photo frames.
However, it was his defence that he had no knowledge at all about
the drugs found inside the photo frames as he was merely carrying
the bag for a person by the name of Halim.

[13] According to the appellant, he came to Malaysia to buy

photostat machine.

He came with a sling bag containing his

clothings. He also brought along a bag belonging to Halim. Halim

gave the bag to him on 10.5.2009 at about 2.00 pm at Mount Road
Chennai. The appellant claimed that he had never checked the
contents of the bag. The bag was locked with a padlock and Halim
had given him the key to the padlock.

[14] Before us, the appellant raised 3 principal grounds in support

of his appeal.

[15] First, learned counsel for the appellant argued that the
learned High Court judge seriously misdirected himself when he
applied the wrong standard of proof at the conclusion of the trial.
He brought to our attention the following part of the judgment of the
learned High Court judge as follows:
kes prima facie gagal disangkal oleh tertuduh.

[16] Learned counsel then argued that the learned High Court
judge applied the wrong standard in that the evidential burden on
the appellant was merely to raise a reasonable doubt on the
prosecutions case as opposed to rebutting the prima facie case.

[17] We saw no merit in this argument. The passage from the

judgment of the learned High Court judge should not be read in
isolation but must be read and considered in its proper context.
More importantly, the judgment must be considered as a whole. In
this regard, it is important to note that the form of words used by the
learned High Court judge in his judgment is a matter of his choice.
A judgment is the expression of the view of a judge arrived at after
due deliberation of the evidence and of the submissions advanced
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before him. But judges write their judgments in their own style.
Each judge has an individual manner or style of expression. For
that reason in the context of the present case, what is most
important is whether or not in substance and effect the learned High
Court judge in his judgment had applied the correct burden of proof
(see: Nur Azmi Soaib v Public Prosecutor [2013] 1 CLJ 563).
The cardinal principle in our criminal justice system is that the
prosecution must prove the guilt of the accused beyond reasonable
doubt. This refers to the standard of proof which must be satisfied
by the prosecution before a Court finds the accused guilty. If, at the
end of and on the whole of the case, there is a reasonable doubt,
created by the evidence given by the prosecution or the accused,
the accused is entitled to an acquittal (see: Mohamad Radhi bin
Yaakob v PP [1991] 3 MLJ 169 and Balachandran v PP [2005] 1
CLJ 85). It is not necessary for the defence to prove anything and
all that is necessary for the accused to do is to give an explanation
that is reasonable and throws a reasonable doubt on the case made
out for the prosecution (see: PP v Datuk Hail Harun Idris & Ors
[1977] 1 MLJ 180). The general burden of proof lies throughout the
trial on the prosecution to prove beyond reasonable doubt the guilt
of the accused for the offence with which the accused is charged.

Section 182A of the Criminal Procedure Code (CPC) which

governs the procedure at the conclusion of the trial reads:

(1)

At the conclusion of the trial, the Court shall consider all

the evidence adduced before it and shall decide whether
the prosecution has proved its case beyond reasonable
doubt.

(2)

If the Court finds that the prosecution has proved its

case beyond reasonable doubt, the Court shall find the
accused guilty and he may be convicted on it.

(3)

If the Court finds that the prosecution has not proved its
case beyond reasonable doubt, the Court shall record
an order of acquittal.

[18] Coming back to the present case, in considering this matter

we had closely scrutinized in its entirety the judgment of the learned
High Court judge. It is true that in one part of his judgment, he said
kes prima facie gagal disangkal oleh tertuduh; an unhappy choice
of words as it appears to be indicative of putting a higher burden on
the appellant to establish his innocence. Nevertheless, a careful
reading of the judgment in its entirety reveals that the learned High
Court judge had in substance directed himself correctly on this
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aspect of the law. This is what the learned High Court judge said in
another part of his judgment:

1.

Kes prima facie gagal disangkal oleh tertuduh;

2.

Pembelaan

Tertuduh

adalah

penafian

semata-mata.

Mahkamah Persekutuan dalam kes DA Duncan v PP

(1980) 2 MLJ 195 memutuskan bahawa: this denial did
not cast a doubt on the prosecution case against the
appellant. Mahkamah Tinggi dalam kes PP v Ling Tee
Huah (1982) 2 MLJ 324 memutuskan bahawa a mere
denial without proof to reasonably dislodge the prosecution
evidence is not sufficient;

3.

Pembelaan Tertuduh tidak menimbulkan was-was yang

munasabah terhadap kes prima facie

pendakwaan.

Tertuduh meletakkan kesalahan ke atas Halim yang

kewujudannya tidak dibuktikan;

4.

Demeanour

Tertuduh

semasa

memberi

keterangan

meragukan.

Keputusan Mahkamah Persekutuan dalam

kes Khoon Chye Him v PP (1961) MLJ 105 mengenai

demenour Tertuduh diikuti;

5.

Kes prima facie pendakwaan kekal.

membuktikan

kesnya

melampaui

munasabah terhadap Tertuduh.

11

Pendakwaan telah
keraguan

yang

[19] In our view, the passage above as a whole shows that the
learned High Court judge directed himself along the approach
indicated in the cases of Mohamad Radhi bin Yaakob v PP
(supra) and Balachandran v PP (supra) and the provisions of
Section 182A of the CPC. Accordingly, we found no merit in the
arguments of learned counsel for the appellant under this head of
complaint.

[20] We turn next to the second ground raised by learned counsel

for the appellant, that is, the learned High Court judge had erred in
law and facts when he failed to hold that the appellant was an
innocent carrier. It will be recalled that the appellant denied any
knowledge of the presence of the drugs in the bag.

[21] Now, a defence of innocent carrier refers to a state of affairs

where an accused person acknowledges carrying a bag containing
the dangerous drugs but disputes having knowledge of the drugs.
Whether the defence of innocent carrier succeeds or not must
depend on the facts of each case (see: Nur Azmi Soaib v Public
Prosecutor [supra]).

In our judgment, the defence of innocent

carrier advanced by the appellant was decided wholly on the facts

and the prevailing circumstances of the case, based on the
credibility of the appellant and the inherent improbabilities of his
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testimony.

Upon evaluating the defence of innocent carrier the

learned High Court judge concluded:

Pembelaan Tertuduh tidak menimbulkan was-was yang

munasabah terhadap kes prima facie pendakwaan.

Tertuduh

meletakkan kesalahan ke atas Halim yang kewujudannya tidak

dibuktikan.

[22] We found ourselves in full agreement with the findings of the

learned High Court judge. Having regard to the facts of the case, in
our judgment, the appellants story was incapable of raising a
reasonable doubt on the prosecutions case. Reasonable doubt is
the doubt that is reasonable and real, not fanciful or imaginary. It is
preposterous to accept the appellants defence that he agreed to
assist Halim, who was virtually a stranger, in carrying the bag from
one country to another.

The appellant had more than enough

opportunity to look at what was inside the bag. But he merely relied
on what was said by Halim. In our view, he shut his eyes to the
obvious and consciously refrained from enquiring because he knew
what was inside the bag and the photo frames. Having regard to
the facts and the prevailing circumstances of this case, in our view,
the state of affairs are such that he is guilty of willful blindness to
the obvious truth of the matter (see: PP v Hla Win [1995] 2 SLR
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424 and Pendakwa Raya v Alfian [2012] 2 MLJ 357). More than
that, the analysis and the inferences drawn by the learned High
Court judge that the appellant had the requisite knowledge of the
offending drugs concealed in the bag were supported by the fact
and circumstances of this case.

[23] Finally, we now turn to consider the appellants contention that

the learned High Court judge had erred in finding that the
appellants act of carrying the bag containing the drugs in question
constituted an offence of trafficking. Learned counsel argued that
the appellant was in passive possession of the offending drugs. In
support thereof, he brought to our attention the Federal Court case
of Soorya Kumar Narayanan & Anor v PP [2012] 9 CLJ 141.
There, the appellants were arrested and charged with trafficking in
197,246.9 grammes of cannabis under section 39B(1)(a) of the Act
read with section 34 of the Penal Code. The facts of the case
disclosed that at the material time, the appellants were seen loading
eight sacks of the proscribed drug onto a lorry at a river bank in
Seberang Perai, Penang. It was not disputed that the drug was
earlier ferried to the place by boat by people unknown. The High
Court convicted the appellants as per the charge. The appellants
appealed, but the appeal was dismissed by the Court of Appeal.

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The appellants further appealed to the Federal Court. In allowing

the appeal and substituting the conviction of trafficking under
section 39B with one for possession under section 6 read with
section 39A of the Act, the Federal Court held that at best, the
appellants were caught while carrying the drugs from the river bank
onto the lorry and that the mere act of carrying is not sufficient to
constitute the offence of trafficking.

It was further held by the

Federal Court that on the facts and in the circumstances of the

case, the trial judge had therefore erred in making an inference of
trafficking solely on the quantity and weight of drug found.

[24] Reverting to the present case, learned counsel further argued

that taken at its highest, the prosecution could only prove the
offence of possession of the ketamine against the appellant.

[25] We did not find any merit in this argument. Based on all the
evidence, the learned High Court judge had not erred in law and
facts when he decided that the appellant had the custody and
control of the bag which contained the impugned drugs. What is
more, as we have said earlier, based on the facts and
circumstances that existed in this case, the inference that could be
drawn was that the appellant had the knowledge of the drugs
hidden in the bag. That being the case, the learned High Court
15

judge was entitled and correct in making a finding that the appellant
was in possession of the drugs.

[26] That is not all.

In our judgment, on consideration of the

evidence and the material available on the Record of Appeal, there

was more than sufficient admissible evidence to support a finding of
trafficking independent of the trafficking presumption under s.37(da)
of the Act having regard to the definition under section 2 of which
defines the offence as:

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.

[27] In this instant case, the appellant was apprehended in the act
of carrying ketamine weighing in total 5759.3 grammes, which in our
view an amount much larger than was likely to be used for his own
consumption. And what is more glaring was the manner on how the
drugs were concealed in the photo frames; this indicated an
intention to avoid detection. Drugs traffickers would use all kinds of
tricks or deception to conceal the drugs from being detected by
16

enforcement agencies (see: Teh Hock Leong v PP [2008] 4 CLJ

764).

And the most telling evidence is that the appellant had

brought the drugs from India into Malaysia. This was sufficient to
lead to a strong and irresistible inference that the purpose for which
the appellant was in possession of the drugs he was carrying was to
transfer the possession of the offending drug to another party in our
country (see: Ong Ah Guan v Public Prosecutor [1981] 1 MLJ 64
and Mohamad Yazri b. Minhat v PP [2003] 2 MLJ 241). Thats
why, the case of Soorya Kumar Narayanan & Anor v PP relied on
by learned counsel for the appellant is distinguishable on its facts
and did not support the appellants case.

[28] For all these reasons, we had dismissed the appeal. The
learned High Court judge did not make any appealable error which
merited our intervention. We found the conviction of the appellant
safe.

We affirmed the conviction and the sentence of death

imposed by the learned High Court judge upon the appellant.

Dated this day, 10th September 2013.

( DATO AZAHAR BIN MOHAMED )

Judge
Court of Appeal
17

For the Appellant

For the Respondent :

G. Ram Vincent &

Afifuddin Ahmad Hafifi
Messrs. Salehuddin Saidin
& Associates

Mangaiarkarasi a/p Krishnan

Deputy Public Prosecutor
Attorney Generals Chambers

18