MUGUNTHAN A/L MANICKAM v Pendakwa Raya

Case Significance

Illustrates the limits of the adverse-inference presumption under section 114(g) of the Evidence Act 1950 in a drug-trafficking appeal: the failure to call a witness who is not essential to the prosecution's case does not undermine an otherwise safe conviction.

This Court of Appeal decision is one of three linked criminal appeals brought by the same appellant, heard together, against convictions under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952) recorded by the High Court at Shah Alam. The facet of the appeal emphasised here was the prosecution's failure to call a named material witness, Sathianathan a/l Marimuthu, and whether that omission attracted an adverse inference under seksyen 114(g) Akta Keterangan 1950 (section 114(g) of the Evidence Act 1950), under which the court may presume that evidence which could be produced but is withheld would, if produced, be unfavourable to the party withholding it. The appellant contended that the missing witness was central to the res gestae of the seizure, engaging seksyen 8 of the Evidence Act 1950 on conduct and surrounding circumstances, and that the gap should have entitled him to an acquittal. The panel of Hashim bin Hamzah, Azman bin Abdullah and Azmi bin Ariffin JJCA considered whether the uncalled witness was truly essential to the unfolding of the narrative or merely one whose evidence would have been cumulative, and whether the prosecution had otherwise made the witness available. The court also revisited the statutory presumption of possession under seksyen 37(d), which the trial judge had found the appellant failed to rebut on a balance of probabilities, the defence being no more than a bare denial. After scrutinising the grounds of the High Court judge, the submissions and the whole of the evidence, the Court of Appeal held that the failure to call the named witness did not warrant an adverse inference sufficient to disturb the conviction. It mengesahkan sabitan dan hukuman (affirmed the conviction and sentence) and dismissed the appeal, maintaining the High Court's decision. The judgment is a useful illustration of the limits of section 114(g) where an uncalled witness is not essential to the prosecution's case.