402
Nachilongo Doreen
v. PP
[2014] 5 MLRA
[19] The first issue is the crux of the appeal. It is not in dispute that the
appellant arrived in Malaysia on 23 February 2011 at 6.10am but only cleared
the Immigration at 2.27pm. It is also not in dispute that the bag, P17 was not
locked.
[20] It was the submission of learned counsel that the prosecution has failed
to explain what happened to this unlocked bag during the eight hours and who
handled and managed this bag during the period when the appellant has yet
to clear the immigration. There was also no evidence led by the prosecution to
show proof of the bag’s weight when the appellant checked in at Johannesburg
and the weight upon arrival in Malaysia. In short the appellant’s case is that the
eight hours’ duration had created a gap in the prosecution’s case and that the
prosecution has not proved custody and control of the bag P17.
[21] On the second issue, learned counsel for the appellant argued that the
learned trial judge had applied the wrong standard of proof, warranting the
acquittal or retrial of the appellant. Learned counsel made reference to the
grounds of judgment of the learned trial judge at the conclusion of the trial
wherein the learned trial judge states:
“Since the prosecution had proven a prima facie case against the acccused and
she had not been able to cast a reasonable doubt in the prosecution’s case, the
court found that the prosecution had proven her guilty as charged, convicted
and sentenced her to the mandatory sentence of death.”
[22] The basis of complaint by the appellant is that under s 182A of the
Criminal Procedure Code, the test to be applied at the conclusion of the trial is
whether the prosecution had proved its case beyond reasonable doubt whereas
the learned trial judge had used the prima facie standard of proof which is the
standard to be applied at the conclusion of the prosecution’s case.
[23] We found both issues raised by the appellant to be without merits. On the
first issue, the defence was that the appellant was detained by the Immigration
Authority for eight hours. Hence, it was submitted that the appellant could not
collect the bag and since the bag P17 was not in the possession of the appellant
for the duration of eight hours, somebody else could have planted the drugs in
the unlocked bag.
[24] Having perused the notes of proceedings, we find that there was no
evidence to establish that the appellant was in fact detained by the Immigration
Authority for eight hours. The Immigration Officer at KLIA (SP5), whilst
agreeing that the appellant cleared the immigration point eight hours after
her arrival and that she did not collect her bag until she was cleared by the
Immigration, merely states:
“Tidak ada dalam system dia telah ditahan selama lapan jam. Kalau ditahan
pun tidak masuk dalam system. Tidak ada sebab dia ditahan sebab semua
passport complete dan tiket pun ada. Passport valid.”
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