SEOW BOON SENG v Pendakwa Raya [TIMBALAN PENDAKWA RAYA]

Case Significance

Illustrates the requirement to give reasons justifying a differential outcome between co-accused running the same defence: an unexplained inconsistency, acquitting one accused while convicting the other on the same defence narrative, rendered the section 39B(1)(a) conviction unsafe and led to an acquittal on appeal.

This Court of Appeal decision concerns the safety of a trafficking conviction where two accused ran the same defence but were treated differently by the trial court. The appellant had been the first accused, tried in the High Court at Shah Alam together with a second accused, who was his wife, both on charges under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952). At the close of the defence case the High Court judge convicted the appellant and sentenced him to imprisonment for thirty years from the date of arrest, while acquitting and discharging the second accused. The appellant challenged the conviction on the ground that the trial judge had failed to explain why the second accused was acquitted while he was convicted, when the narrative of the defence case was the same for both accused. The court considered the appellant's argument that his defence was not a bare denial or an afterthought, and the requirement that a court give reasons that explain a differential outcome between co-accused advancing an identical defence. The panel of Ahmad Zaidi bin Ibrahim, Azman bin Abdullah and Noorin bin Badaruddin JJCA found that special circumstances existed justifying appellate intervention, because the trial judge had not adequately explained the basis on which the same defence narrative could result in an acquittal for one accused and a conviction for the other, which rendered the conviction unsafe. The court allowed the appeal against conviction, set aside the High Court's decision and the sentence of thirty years' imprisonment, and ordered the appellant discharged and acquitted. The judgment is a useful illustration of the requirement to give reasons that justify a differential outcome between co-accused running the same defence, and of when an unexplained inconsistency renders a conviction unsafe. The judgment reinforces that a trial court which reaches divergent conclusions about co-accused whose cases rest on the same evidence and the same defence must articulate the distinguishing features that justify the difference; where it does not, an appellate court may treat the resulting conviction as unsafe and intervene even though the trial court had the advantage of seeing the witnesses.