1. Conviction under Section 39B(1) Dangerous Drugs Act 1952 — drug seizure during raid — failure to offer co-arrestees as witnesses to the defense. (Para 1 , 4 , 5 , 6 )
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2026 MarsdenLR 1605
COURT OF APPEAL (PUTRAJAYA)
AZMAN ABDULLAH, J, MOHD RADZI ABDUL HAMID, J, NADZARIN WOK NORDIN, JJCA
Santoshkumar al Sukumaran – Plaintiff
Versus
Public Prosecutor – Defendant
CRIMINAL APPEAL NO B-05(SH)-497-10 OF 2024
Important Points
The prosecution must offer to the defense any witnesses who were investigated and from whom statements were recorded. Failure to do so, without a valid reason, violates the accused's right to a fair trial and may result in the conviction being set aside.
Subject
Criminal Law - Drug Offenses
Act Referred
Dangerous Drugs Act 1952: S.39B(1), S.37(d), S.2
Criminal Procedure Code: S.51A, S.182A
Evidence Act 1950: S.8
Criminal Procedure Code: S.51A, S.182A
Evidence Act 1950: S.8
Headnote
(A) Dangerous Drugs Act 1952 - Section 39B(1) - Trafficking - Prosecution's duty to offer arrestees as witnesses - While the prosecution has discretion in calling witnesses, such discretion is subject to considerations of fairness and good faith; witnesses who have been investigated by the police and from whom statements have been recorded must be offered to the defense as a vital element of the right to a fair trial. (Paras 23, 32)
(B) Criminal Procedure Code - Section 182A - Evaluation of evidence - The trial court is duty-bound to consider all evidence in its totality, including defenses that may appear weak or as an afterthought, to determine if the prosecution has proved its case beyond reasonable doubt. (Paras 24, 25, 27)
(C) Right to Fair Trial - A person's right to defend themselves includes the right to obtain and adduce evidence in support of their defense; the prosecution has a duty to make available witnesses investigated by the police to ensure the defense has the fullest possible access to relevant facts. (Paras 23, 35)
Facts of the case:
An individual was arrested during a police raid on a residence and charged with trafficking dangerous drugs after being observed throwing a packet containing the substance. Several other individuals present at the residence were also arrested and their statements recorded by the police. However, none of these other arrestees were called as witnesses for the prosecution, nor were they offered to the defense as witnesses after the trial court found a prima facie case. The trial court subsequently convicted the accused, finding the defense to be an afterthought and a bare denial.
Findings of Court:
The court found that the prosecution failed to offer the other arrestees as witnesses to the defense without providing any plausible reason. This failure undermined the accused's right to a fair trial. The court rejected the argument that the arrestees' evidence would have been immaterial due to the inconsistencies in the accused's defense, noting that it is the court's role, not the prosecution's, to evaluate the materiality of evidence and determine if a reasonable doubt exists.
Issues: Whether the prosecution's failure to offer persons arrested alongside the accused as witnesses to the defense prejudiced the accused and amounted to a serious miscarriage of justice.
Ratio Decidendi: The prosecution's discretion to call witnesses is limited by the requirement to act with fairness and good faith, specifically necessitating that witnesses investigated by police and from whom statements were recorded be offered to the defense. The prosecution cannot pre-empt the court's judicial function by deciding which witnesses might be useful to the defense. A conviction cannot be deemed safe if the accused was deprived of the opportunity to adduce evidence from such witnesses, as this violates the cornerstone of criminal law that a conviction must rest on the strength of the prosecution rather than the weakness of the defense.
Result: Appeal allowed; conviction and sentence set aside.
(B) Criminal Procedure Code - Section 182A - Evaluation of evidence - The trial court is duty-bound to consider all evidence in its totality, including defenses that may appear weak or as an afterthought, to determine if the prosecution has proved its case beyond reasonable doubt. (Paras 24, 25, 27)
(C) Right to Fair Trial - A person's right to defend themselves includes the right to obtain and adduce evidence in support of their defense; the prosecution has a duty to make available witnesses investigated by the police to ensure the defense has the fullest possible access to relevant facts. (Paras 23, 35)
Facts of the case:
An individual was arrested during a police raid on a residence and charged with trafficking dangerous drugs after being observed throwing a packet containing the substance. Several other individuals present at the residence were also arrested and their statements recorded by the police. However, none of these other arrestees were called as witnesses for the prosecution, nor were they offered to the defense as witnesses after the trial court found a prima facie case. The trial court subsequently convicted the accused, finding the defense to be an afterthought and a bare denial.
Findings of Court:
The court found that the prosecution failed to offer the other arrestees as witnesses to the defense without providing any plausible reason. This failure undermined the accused's right to a fair trial. The court rejected the argument that the arrestees' evidence would have been immaterial due to the inconsistencies in the accused's defense, noting that it is the court's role, not the prosecution's, to evaluate the materiality of evidence and determine if a reasonable doubt exists.
Issues: Whether the prosecution's failure to offer persons arrested alongside the accused as witnesses to the defense prejudiced the accused and amounted to a serious miscarriage of justice.
Ratio Decidendi: The prosecution's discretion to call witnesses is limited by the requirement to act with fairness and good faith, specifically necessitating that witnesses investigated by police and from whom statements were recorded be offered to the defense. The prosecution cannot pre-empt the court's judicial function by deciding which witnesses might be useful to the defense. A conviction cannot be deemed safe if the accused was deprived of the opportunity to adduce evidence from such witnesses, as this violates the cornerstone of criminal law that a conviction must rest on the strength of the prosecution rather than the weakness of the defense.
Result: Appeal allowed; conviction and sentence set aside.
Legal Category Hierarchy
Advocates:
Mohd Hisham Nazir (Hisham Nazir & Co) for the appellant.
Shamala Jaganathan (Deputy Public Prosecutor, Attorney General's Chambers) for the respondent.
Mohd Hisham Nazir (Hisham Nazir & Co) for the appellant.
Shamala Jaganathan (Deputy Public Prosecutor, Attorney General's Chambers) for the respondent.
Table of Contents
2. Whether failure to offer co-arrestees as witnesses prejudiced the accused — duty of prosecution to make investigated witnesses available versus prosecutorial discretion. (Para 13 , 18 , 19 , 20 , 21 )
3. Prosecution's discretion to call witnesses is limited by fairness; investigated witnesses must be offered to the defense to ensure a fair trial and full access to facts. (Para 22 , 23 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 )
4. The prosecution must offer witnesses who were investigated and from whom statements were recorded to the defense as a vital element of a fair trial. (Para 23 )
5. Appeal allowed — conviction and sentence set aside. (Para 3 , 36 )
6. What is the prosecution's duty regarding witnesses who were investigated and gave statements but were not called as prosecution witnesses?
The prosecution has a duty to make available to the defense witnesses who had been investigated by the police and from whom statements have been recorded, as this is a vital corollary of an accused's right to a fair trial. (Para 23 )
7. To what extent does the prosecution have discretion in choosing which witnesses to call during a trial?
Prosecutorial discretion is subject to two limitations: it must be exercised with due regard to considerations of fairness and good faith, and witnesses who were investigated and provided statements must be offered to the defense. (Para 23 )
8. How should a trial court evaluate a defense that is characterized as an afterthought?
Even if a defense is an afterthought or unbelievable, the court must still consider the entire evidence to determine if it raises a reasonable doubt in the prosecution's case, as the burden of proof remains with the prosecution. (Para 25 , 26 , 27 , 28 )
9. Can the prosecution decide that a witness is not material to the defense and therefore refuse to offer them?
No. The prosecution cannot determine if evidence is useful to the defense; that is the right of the accused. Only the court can decide if the defense is unbelievable after evaluating all available evidence. (Para 28 , 29 , 30 )
Mohd Radzi Abdul Hamid JCA:
INTRODUCTION
[1]The Appellant was convicted pursuant to section 39B(1)Dangerous Drugs Act 1952
[2]At the hearing of this Appeal, Learned Counsel for the Appellant focused his client’s appeal on only one issue that is, whether the Prosecution’s failure to offer to the defence as witnesses persons who were arrested together with the Appellant after the Appellant was ordered to enter his defence, had prejudiced the Appellant in the preparation of his defence and therefore amounted to a serious miscarriage of justice.
[3]After hearing submissions, we unanimously decided in favour of the Appellant and set aside both conviction and sentence. The following are our reasons.
BACKGROUND FACTS
[4]On 16.9. 2020 at about 6 p.m., a police team headed by SP2 (Inspector Harfes bin Mat Nupih) had undertaken a surveillance of a house located at Lot 6857-1, PSN Hamzah Alang, Kapar, Selangor. After 15 minutes of observation, they saw an Indian man cleaning the floor at the front portion of the house. The Police team then raided the house and apprehended one Naveen a/l Jeyakumar.
[5]SP2 and his team then entered the house and at that point in time, SP2 saw 2 Indian men coming out from the second room at the right side of the house. They were later identified as Santoshkumar a/l Sukumaran (the Appellant) and Vijaya Kumar a/l Gunaseelan. When SP2 entered the house and saw the 2 Indian men, he specifically saw the Appellant holding a paper packet which he threw onto the living area floor. SP2 then directed the Appellant to pick up the paper packet with the words “IK Yellow Multifunction Business Paper’. Upon opening the packet, SP2 found a translucent plastic packet containing white granular and powder substances suspected to be the dangerous drug known as “Syabu”. That packet was seized by SP2 and all three Indian men were arrested.
[6]Apart from those three Indian men, other individuals who are occupiers of the house at the time of the raid were also arrested. They were Kavidha, Praveen, Kupae and Murugan. Eventually, only the Appellant was charged. At the trial, none of the other arrested persons were called as witnesses for the Prosecution and neither were they were offered to the defence as witnesses after the High Court made a finding of prima facie.
[7]In this trial, the Learned High Court Judge (‘HCJ’) found both mens rea possession and trafficking without triggering presumption of knowledge under section 37(d)section 37(da)DDA
DECISION OF THE HIGH COURT
[8]In arriving at his finding of a prima facie case against the Appellant, the Learned HCJ accepted without any doubt SP2’s version of the arrest that is the Appellant was seen holding and then throwing the paper packet containing the dangerous drugs. Since it was only the Appellant who was seen holding and throwing the paper packet, then it was only the Appellant who had custody and control of the packet and knowledge of its contents. For those reasons, there was no failure in the Prosecution’s decision to not call the other arrested persons to give evidence in order to exclude any possibility of access and possession to the drugs by persons other than the Appellant.
[9]After finding mens rea possession by the Appellant, the Learned HCJ was satisfied and found that the Appellant had concealed and kept the dangerous drugs which acts fall within the definition of trafficking under section 2DDA
[10]Reference was made to the decisions in Ibrahim Mohamad & Anor v PP , Sahrul Mazlee Mohd Khalid v PP [2022] 1 LNS 4 ; Roichand bin Maasum v PP Teh Geok Hock v PP Mohamed Yazri Minhat v PP
[11]At the end of the trial, the Learned HCJ found that the Appellant had failed to raise a reasonable doubt in the Prosecution’s case. He found that the defence preferred by the Appellant at the prosecution and defence were inconsistent. At the Prosecution stage, the defence had put to the Prosecution’s witnesses was that it was Murugan who threw the packet on the floor and there were others who h
