Pendakwa Raya v Jothisvaran A/l Ponnusamy

Case Significance

Illustrates that gaps in the prosecution's evidence and an incomplete investigation, reinforced by an adverse inference under section 114(g) of the Evidence Act 1950, can defeat a prima facie case in a section 39B(1)(a) trafficking prosecution regardless of the quantity of drugs involved.

This High Court decision at Johor Bahru sets out the reasons for acquitting the accused at the close of the prosecution case in a drug-trafficking prosecution, following the Public Prosecutor's appeal against that acquittal. The accused faced three charges under seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 (section 39B(1)(a) of the Dangerous Drugs Act 1952) arising from a single incident — trafficking in monoacetylmorphines weighing 72.04 grams, methamphetamine weighing 351.90 grams, and cannabis weighing 1,088.62 grams — each carrying, at the time of charge, a mandatory death sentence. The prosecution case was that a narcotics team keeping observation stopped a car, found nothing on its driver, and then approached the accused as he walked towards the car carrying a plastic package.

At the close of the prosecution case the court had to decide, on a maximum evaluation of the evidence, whether a prima facie case had been established. On analysing the facts it found many gaps and unanswered questions in the prosecution case that the prosecution witnesses had failed to resolve, and it drew support from the principle that failure to call material witnesses may attract an adverse inference under section 114(g) of the Evidence Act 1950, and that the investigation had been incomplete. Citing the Federal Court's statement in Sia Soon Suan v PP that the requirements of strict proof in a criminal case cannot be relaxed to bridge a material gap in the prosecution evidence, the court held that the court's decision must rest on the evidence adduced, irrespective of any impression of guilt or innocence.

Concluding that the prosecution had failed to establish a prima facie case on any of the three charges, the court ordered the accused dilepas dan dibebaskan (discharged and acquitted) without being called to enter his defence. The judgment illustrates that gaps in the prosecution's evidence and an incomplete investigation can defeat a prima facie case even where a large quantity of drugs is involved.