NAVINDRAHKUMAR A/L ASOK KUMAR v Pendakwa Raya

Case Significance

A Court of Appeal affirmation of a section 39B(1)(a) Dangerous Drugs Act 1952 trafficking conviction on a common-intention basis, addressing agent provocateur under section 40A, adverse inference under section 114(g) of the Evidence Act 1950, and the custody-control-knowledge and innocent-carrier defences.

This Court of Appeal decision concerns consolidated criminal appeals against convictions for drug trafficking. The two appellants had been jointly charged, in furtherance of a common intention under section 34 of the Penal Code, with trafficking in 153.3 grams of heroin, an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 (Akta Dadah Berbahaya 1952) punishable under section 39B(2). Following a full trial, the High Court at Johor Bahru convicted both accused and sentenced each to imprisonment for the remainder of their natural life, fixed at 30 years from the date of arrest on 13 July 2018, together with 12 strokes of the cane. The first accused appealed against both conviction and sentence, while the fifth accused, the appellant in this appeal, appealed against conviction only. Before the Court of Appeal the defence raised several grounds, including that a prosecution witness had acted as an agent provocateur within the meaning of section 40A of the Dangerous Drugs Act 1952, that adverse inferences ought to be drawn under section 114(g) of the Evidence Act 1950 for the alleged suppression of material documentary evidence such as CCTV footage and telephone call logs, and that the transaction was a negotiated sale in which one accused was no more than an innocent carrier lacking the custody, control and knowledge required for trafficking. The Court examined the totality of the evidence, including the acts and conduct from which a common intention could be inferred, and held that the defence had failed to raise any reasonable doubt in the prosecution case. Finding no merit warranting appellate interference with the trial judge's findings, the Court unanimously held the conviction to be safe and dismissed the appeals against conviction; the question of sentence fell to be considered in light of the discretion introduced by the Abolition of Mandatory Death Penalty Act 2023.