Missing Witnesses Tip the Scales: Court of Appeal Frees Drug Suspect in Fair Trial Victory

In a landmark ruling emphasizing the sanctity of fair trial rights, the Court of Appeal of Malaysia , led by Mohd Radzi Abdul Hamid JCA , unanimously acquitted Santoshkumar a/l Sukumaran —convicted by the High Court in Klang of trafficking 106.18 grams of methamphetamine under section 39B(1) of the Dangerous Drugs Act 1952. The original sentence of life imprisonment and 12 strokes of the whip was set aside, hinging on the prosecution's failure to offer co-arrestees as witnesses to the defence after a prima facie case was established.

The Raid That Sparked a Legal Firestorm

On 16 September 2020, a police team surveilled a house in Kapar, Selangor, spotting an Indian man cleaning the front porch. The raid netted Naveen a/l Jeyakumar outside, and inside, Santoshkumar (the appellant) and Vijaya Kumara Kumar a/l Gunaseelan emerging from a room. Inspector Harfes bin Mat Nupih (SP2) claimed Santoshkumar held and tossed a paper packet containing "Syabu" (methamphetamine), which was seized. Four others— Kavidha , Praveen , Kupae , and Murugan —were also arrested at the scene. Only Santoshkumar was charged. The High Court found actual possession and trafficking based solely on SP2's testimony, rejecting presumptions under sections 37(d) and 37(da) of the DDA.

The timeline unfolded: conviction at trial, appeal focused solely on procedural fairness regarding the unoffered witnesses.

Defence's Cry: "Where Are Our Witnesses?"

Appellant's counsel zeroed in on one issue—prejudice from the prosecution not offering the co-arrestees post-prima facie. They argued these individuals, arrested together with statements recorded, were crucial to rebut possession and suggest alternatives like Murugan throwing the packet or equal house access. Heavy reliance on Rosli Yusof v PP [2021] 5 MLRA 150 , where the Federal Court mandated offering investigated arrestees to ensure fairness.

The prosecution countered: Santoshkumar alone handled the packet, proving knowledge under section 8 of the Evidence Act 1950. Co-arrestees' locations distanced them from the drugs (e.g., Murugan sleeping, others in kitchen). Appellant's inconsistent defences—Murugan tossing it, or drugs in a red packet by his sofa—were "afterthoughts," rendering witnesses immaterial. Rosli Yusof was fact-specific, they claimed.

Echoes from the Bench: Prosecutorial Duty Runs Deep

The Court dissected the prosecution's discretion, affirming Rosli Yusof 's binding principle: prosecutors may choose their witnesses but must offer those investigated (statements recorded) to the defence, exercised in fairness. This isn't optional—it's a "vital corollary" of fair trial rights.

Distinguishing cases like Aaron Chong Chernlin v PP , the judges noted closer proximity here: Vijaya exited the same room as Santoshkumar, Murugan nearby. No explanation for withholding them or their statements under section 51A CPC. Citing Md Zainudin Raujan v PP and Ganapathy Rengasamy v PP , courts must scrutinize all evidence, even "weak" defences, asking if reasonable doubt lingers.

Precedents underscored: - Ibrahim Mohamad v PP et al.: On possession. - Teh Geok Hock v PP : Trafficking definition. - Law Kian Ming v PP : Reiterated duty, acquitting over unproduced co-arrestees. - Masoumeh Gholami Khaveh v PP : Witness importance to defence , not just prosecution.

The bench rebuked pre-judging witness utility: "It is not up to the prosecution to determine whether or not any evidence will actually be useful to the defence."

Key Observations Straight from the Judgment

> "the prosecution has discretion whether to call any particular witness, but such discretion is subject to two limitations, viz (i) the discretion must be exercised with due regard to considerations of fairness and good faith; and (ii) the witnesses who had been investigated by the police and from whom the statements have been recorded must be offered to the defence." ( Quoting Rosli Yusof )

> "a person's right to defend himself or herself against a criminal charge includes the right to obtain and adduce other evidence in support of his or her defence. It is desirable in the interest of justice for the defence to obtain the fullest possible access to the facts relevant to the issue in the case."

> "the respondent had effectively pre-empted and circumvented the Court's judicial function in conducting an evaluation of all the evidence"

> "Even if the witness may not give evidence favourable to the accused, the Prosecution still has the duty to make that witness available to the accused." ( From Masoumeh Gholami )

Justice Served Without the Full Deck? Acquittal and Ripples Ahead

The appeal succeeded: "we find and hold that the appellant's conviction and sentence are not safe." High Court orders quashed, Santoshkumar walks free.

This reinforces prosecutorial accountability in drug cases, where co-arrestees often hold rebuttal keys. Future trials demand witness offers post-prima facie, lest convictions crumble on appeal. A procedural safeguard now etched deeper into Malaysian criminal jurisprudence, prioritizing defence access over convenience.