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2026 MarsdenLR 744
COURT OF APPEAL PUTRAJAYA
MOHD RADZI, ABDUL HAMID, JJ
SANTOSHKUMAR SUKUMARAN – Appellant
Versus
PP – Respondent
[Criminal Appeal No: B-0S(SH)-497-10-2024]
Important Points
Subject
Criminal Law - Drug Offences and Criminal Procedure
Act Referred
Evidence Act 1950: S.8
Criminal Procedure Code: S.51A, S.182A, S.112
Headnote
(B) Criminal Procedure - Trial - Duty of Court - Section 182A of Criminal Procedure Code - Duty of Court to evaluate all evidence, including defence, irrespective of whether deemed an afterthought - Court must not descend into arena and must maintain neutrality to preserve fairness of trial. (Paras 24, 25, 27, 30)
Facts of the case:
The appellant was convicted for trafficking in dangerous drugs after a raid on a premises where several individuals were detained. During the trial, the appellant argued that the prosecution failed to offer for the defence other individuals present at the scene who had been investigated and from whom police statements were taken. The trial court convicted the appellant, rejecting the defence as an afterthought and concluding that the appellant's sole physical possession of the drug package negated the need to call other potential witnesses.
Findings of Court:
The Court held that the prosecution has a duty to make available to the defence any witnesses who were investigated during the same police operation. The prosecution's failure to do so, regardless of their own assessment of the witness's relevance, violates the fairness of the trial. The Court reiterated that an accused has the right to access relevant evidence to raise a reasonable doubt, and the prosecution's discretion cannot override the judicial function of evaluating all material evidence.
Issues: The central issue was whether the prosecution’s failure to offer witnesses, who were arrested and investigated along with the accused, to the defence prejudiced the appellant's right to a fair trial and resulted in a miscarriage of justice.
Ratio Decidendi: The prosecution is bound to offer all witnesses from whom statements were collected during the investigation to the defence. Denying the defence access to these witnesses, regardless of the prosecution's perception of their importance, infringes upon the right to a fair trial and prevents the Court from performing its duty to evaluate the totality of the evidence.
Result: Appeal allowed; conviction and sentence set aside.
| Table of Content |
|---|
| 1. overview of charges and factual circumstances of the drug arrest. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. high court's reliance on prosecution evidence and rejection of defense claims. (Para 8 , 9 , 10 , 11) |
| 3. parties' arguments regarding the prosecution's duty to provide defense witnesses. (Para 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21) |
| 4. prosecution must make investigated arrestees available to the defense to ensure a fair trial. (Para 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35) |
| 5. the appeal is allowed and conviction/sentence is set aside. (Para 36) |
JUDGMENT
Introduction
[1] The appellant was convicted pursuant to s 39B(1) of the Dangerous Drugs Act 1952 ('DDA') by the High Court sitting in Klang for the offence of trafficking 106.18 grams of the dangerous drug Methamphetamine. Following the conviction, he was sentenced to life imprisonment and 12 strokes of whipping. Aggrieved by that decision, the Appellant filed this appeal, both against conviction and sentence.
[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 September 2020 at about 6.00pm, 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 of the second room on the right side of the house. They were later identified as Santoshkumar a/l Sukumaran (the Appellant) and Vijaya Kumara 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 were 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 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 the presumption of knowledge under s 37(d) nor the presumption of trafficking under s 37(da) of the 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 decisio
