PANDITHAN A/L THANGARAJOO v Pendakwa Raya

Case Significance

Illustrates the limits of an adverse-inference argument under section 114(g) of the Evidence Act 1950: where the prosecution's evidence is cogent and intact and the section 37(d) presumption is not rebutted, an appeal alleging suppression of evidence and a failure of justice will not succeed.

This Court of Appeal decision forms part of the disposal of three consolidated criminal appeals brought by the same appellant against convictions on drug charges tried at the High Court in Klang, and relates to the second of those appeals. The charges arose under the Dangerous Drugs Act 1952, encompassing trafficking under section 39B(1)(a) and possession under section 12(2). A prominent strand of the appellant's argument concerned the evidence: he invoked section 114(g) of the Evidence Act 1950 and the principle that an adverse inference may be drawn where a party withholds or suppresses evidence, and relied on sections 8 and 9 of the same Act, contending that gaps in the prosecution's evidence and the non-production of certain material should have told against it and given rise to a reasonable doubt. He also framed his complaint in terms of a failure of justice or substantial injustice warranting appellate intervention. The Court of Appeal examined these arguments against the record of both the prosecution and the defence cases. It found that the evidence of the prosecution witnesses had remained intact throughout, that the defence had not succeeded in raising any reasonable doubt about the truth of the prosecution's case, and that the appellant had failed to rebut the statutory presumption arising under section 37(d) of the Dangerous Drugs Act 1952. Applying the principle that an appellate court will not disturb a trial court's findings unless they are plainly wrong, the court was unable to identify any error, suppression of evidence or resulting injustice that would justify its intervention. It held the convictions on all charges to be safe and dismissed the appeals against both conviction and sentence, affirming the sentences. The judgment illustrates the limits of the adverse-inference argument under section 114(g) where the prosecution's evidence is otherwise cogent and intact.