RAGUNATHAN A/L THANGIAH v Pendakwa Raya

Case Significance

Illustrates the interaction of the section 37(da) trafficking presumption under the Dangerous Drugs Act 1952 with an adverse-inference argument under section 114(g) of the Evidence Act 1950: uncalled co-suspects do not attract an adverse inference where possession is proved against the appellant himself.

This Court of Appeal decision is the third of three related criminal appeals by the same appellant, heard together, against trafficking convictions under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952) from the High Court at Johor Bahru, one of the underlying trials involving a co-accused. The point drawn out in this appeal is the operation of the statutory presumption of trafficking and the appellant's complaint about the prosecution's witnesses. Once possession of the drugs was established, seksyen 37(da) of the Dangerous Drugs Act presumed the appellant to have been trafficking, casting on him the burden of rebutting that presumption on a balance of probabilities. The appellant argued that an adverse inference should have been drawn against the prosecution under seksyen 114(g) Akta Keterangan 1950 (section 114(g) of the Evidence Act 1950) for its failure to call, as witnesses, other suspects who had been remanded together with him, and that his conduct did not show the connection to the drugs the prosecution alleged. The panel of Azman bin Abdullah, Lim Chong Fong and Lim Hock Leng JJCA considered whether the uncalled suspects were witnesses essential to the prosecution's case such that their absence attracted an adverse inference, or whether they were not material once possession had been proved against the appellant himself. The court also weighed whether the appellant had adduced anything capable of rebutting the section 37(da) presumption. After scrutinising the grounds of the High Court judge, the submissions and the evidence as a whole, the court held that no adverse inference was warranted and that the presumption had not been rebutted. It dismissed the appeal and affirmed the conviction and sentence, maintaining the decision below. The judgment illustrates the interaction of the section 37(da) trafficking presumption with the section 114(g) adverse-inference argument over uncalled co-suspects.