SANTOSHKUMAR A/L SUKUMARAN v Pendakwa Raya

Case Significance

Confirms that the prosecution's fair-trial duty in a section 39B trafficking case includes offering relevant persons arrested with the accused as witnesses to the defence; a failure to do so, where those persons are connected to the scene, can render the conviction unsafe.

This Court of Appeal decision concerns a drug-trafficking conviction under section 39B(1) of the Dangerous Drugs Act 1952. The appellant had been convicted by the High Court at Klang of trafficking in 106.18 grams of methamphetamine and sentenced to life imprisonment and 12 strokes of the cane. He appealed against both conviction and sentence. The drugs were found during a raid on a residential house at which the appellant was arrested together with several other people; a police officer said he saw the appellant throw down a paper packet later found to contain the drug. Notably, the trial judge convicted on affirmative findings of possession and trafficking without invoking the statutory presumptions of knowledge or trafficking under section 37 of the Act.

At the hearing the appellant focused on a single issue: that the prosecution's failure to offer to the defence, as witnesses, the persons who had been arrested with him — after he was ordered to enter his defence — had prejudiced the preparation of his defence and amounted to a serious miscarriage of justice. Several occupiers of the house had been arrested but not charged, and one of them had been seen coming out of the very room from which the appellant emerged, yet none were called by the prosecution or offered to the defence, nor were their recorded statements tendered.

The Court of Appeal found no plausible reason for the prosecution's failure to offer the arrestees, holding that this undermined the appellant's defence and led to a serious miscarriage of justice, and that the prosecution had failed in its duty to make available all credible and relevant witnesses and to conduct its case fairly. It concluded that the conviction and sentence were not safe. The appeal was allowed and both conviction and sentence set aside. The judgment illustrates the fair-trial duty on the prosecution to offer relevant arrestees to the defence.