Radhakrishnan Syam v Pendakwa Raya

Case Significance

Illustrates an appellate court substituting a term of imprisonment and whipping for a death sentence in a section 39B(1)(c) trafficking case, and confines the section 114(g) adverse-inference presumption to genuine withholding or suppression of evidence.

This Court of Appeal decision was one of a group of linked criminal appeals heard together, arising from a single trial in the High Court at Seremban in which several accused persons were convicted of trafficking in dangerous drugs. The appellant relevant to this appeal was convicted under section 39B(1)(c) of the Dangerous Drugs Act 1952 (Akta Dadah Berbahaya 1952), with a related charge engaging section 9(1) of the Poisons Act 1952, and sentenced to death. Because the appellant is a natural person named only as a party, this analysis refers to that party by role.

The appeal ranged across both conviction and sentence. On conviction, the Court examined whether the essential ingredients of possession and knowledge had been proved, and whether the preparatory acts relied upon by the prosecution were capable in law of amounting to trafficking. It also addressed the reach of the adverse-inference presumption under section 114(g) of the Evidence Act 1950, reaffirming that such an inference is properly drawn only where there has been a withholding or suppression of evidence, and not merely because the prosecution failed to obtain a particular piece of evidence. A further ground concerned whether a failure to cross-examine the accused was fatal to the prosecution's case, and whether the trial judge had evaluated the defence in its entirety.

On sentence, the Court took the considered view that there was merit in the appeals against the death sentence for the trafficking offences. It allowed the appeals against sentence, set aside the sentence of death, and substituted terms of imprisonment together with strokes of whipping, with the relevant sentences ordered to run concurrently and to run from the date of arrest. The judgment is a useful illustration of an appellate court's careful reworking of a capital sentence in a drug-trafficking case, and of the limits it placed on the section 114(g) presumption where evidence was simply not gathered rather than deliberately withheld.