Abdul Kalam Sajeev v Pendakwa Raya

n-05m-109-03-2023 Court of Appeal (Mahkamah Rayuan) 19 March 2025 • N-05(M)-109-03/2023 • 37 min read

6 cases cited (0 SG, 6 foreign)

Catchwords

Appeal against conviction and sentence – Section 39B(1)(c) of the Dangerous Drugs Act 1952 – Section 9(1) of the Poison Act 1952 – Whether the elements of possession and knowledge was proven – Whether preparatory acts amount to trafficking - Whether the presumption of adverse inference under section 114(g) of the Evidence Act 1950 can only be drawn if there has been withholding or suppression of evidence and not merely on account of failure to obtain evidence - Whether failure to cross-examine the accused persons was fatal to the prosecution’s case - Whether High Court Judge had considered and evaluated the defence in its entirety

Practice Areas

Criminal Procedure Criminal Law Evidence

Judges (3)

Ahmad Zaidi bin Ibrahim Coram Azman bin Abdullah Coram Noorin binti Badaruddin Delivered

Counsel (3)

Sharonpal Singh & Associates Firm Noorhisham Bin Mohd Jaafar Counsel Respondent Sharonpal Singh Counsel Appellant

Parties (2)

Pendakwa Raya Respondent Abdul Kalam Sajeev Appellant

Case Significance

Applies the wide statutory definition of trafficking to reject a 'merely preparatory acts' argument, while allowing the sentence appeal and re-sentencing the appellant to 30 years and whipping in place of the death penalty.

This Court of Appeal decision forms part of a group of five connected appeals from a joint trial at the Seremban High Court concerning drug-trafficking convictions under section 39B(1)(c) of the Dangerous Drugs Act 1952 (Akta Dadah Berbahaya 1952) and a related charge under section 9(1) of the Poisons Act 1952. This appeal is that of the second-named appellant. The argument on which this judgment is instructive is the contention that the conduct proved against the appellant consisted of preparatory acts that did not, in law, amount to trafficking.

The court analysed the boundary between preparatory conduct and the statutory concept of trafficking, which under the Act extends beyond sale to a range of acts done in relation to a dangerous drug. Testing the evidence against the elements of possession and knowledge, the court was satisfied that the prosecution had proved that the appellant had the requisite custody and control of the drugs and knowledge of their nature, and that the acts established fell within the trafficking definition rather than short of it. The court also addressed the appellant's reliance on section 114(g) of the Evidence Act 1950, restating that an adverse inference is available only where evidence has been withheld or suppressed, not where the prosecution simply did not gather some item, and it rejected the suggestion that any failure to cross-examine had been fatal to the prosecution. Concluding that the trial judge had considered and evaluated the defence in its entirety, the court held the conviction to be safe and dismissed the appeal against it.

On sentence the outcome differed. The court found merit in the appeal against sentence, set aside the death sentence, and imposed instead 30 years' imprisonment from the date of arrest (3 August 2018) with 12 strokes of whipping on each of the two charges, ordered to run concurrently. The decision is a clear application of the trafficking definition and of the re-sentencing power under the reformed capital-punishment regime.

Summary

Abdul Kalam Sajeev's appeal, one of five Indian nationals convicted of joint drug trafficking in Port Dickson. The Court of Appeal upheld the conviction but substituted the death sentence with 30 years' imprisonment and 12 strokes of whipping.

Did the argument that the acts were merely preparatory succeed?

No. The court held that the statutory concept of trafficking extends beyond sale to a range of acts done in relation to a dangerous drug, and that, with possession and knowledge established, the proved conduct fell within the trafficking definition rather than short of it. The conviction was held safe.

How did the court re-sentence the appellant?

The court allowed the appeal against sentence and set aside the death sentence, substituting 30 years' imprisonment from the date of arrest (3 August 2018) and 12 strokes of whipping on each of the two charges, with the sentences to run concurrently.