DAVINDRAN A/L SUNDARAJEN v Pendakwa Raya [Timbalan Pendakwa Raya (TPR), Jabatan Peguam Negara]

Case Significance

Illustrates the distinction between material and immaterial discrepancies in a trafficking prosecution, and appellate deference to a trial judge’s findings of fact where the whole of the evidence was properly analysed.

This Court of Appeal decision determines an appeal against conviction for drug trafficking under "seksyen 39B(1)(a) Akta Dadah Berbahaya 1952" (section 39B(1)(a) of the Dangerous Drugs Act 1952). The appellant had been convicted in the High Court of trafficking in cannabis of a net weight of 965.18 grams, the prosecution having relied on the statutory presumption of trafficking under section 37(da)(vi) of the Act and on conduct evidence admissible under sections 8 and 9 of the Evidence Act 1950, which the Court treated as relevant to the appellant’s state of mind and involvement. On appeal, a central complaint was a discrepancy between the search list ("Borang Bongkar") and the handover form ("Borang Serah") for the exhibits, and the appellant characterised his answer to the case as more than a bare denial, contending that the trial judge had failed to give proper weight to those inconsistencies. The Court rejected these arguments. Applying the settled approach in Andy bin Bagindah v Public Prosecutor, affirmed by the Federal Court in Wan Marzuki bin Wan Abdullah v PP, it reasoned that contradictions and discrepancies exist in every case and that the question is whether they are material, going to the very root of the charge; here the omission concerning one exhibit was not material and had in any event been explained by a prosecution witness. The Court stressed that the trial judge had analysed the whole of the evidence, including the oral testimony of the witnesses he had the advantage of seeing and hearing, and that his findings of fact were entitled to due respect and should not lightly be disturbed on appeal. Satisfied that the High Court judge had not erred, the Court held the conviction safe, found no merit in the appeal, and unanimously affirmed the conviction and sentence, the appellant thereafter pursuing a further appeal to the Federal Court. The judgment illustrates the distinction between material and immaterial discrepancies and appellate deference to a trial judge’s findings in a trafficking prosecution.