Sainulabdeen Siyad v Pendakwa Raya

n-05m-111-03-2023 Court of Appeal (Mahkamah Rayuan) 19 March 2025 • N-05(M)-111-03/2023 • 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 Sainulabdeen Siyad Appellant

Case Significance

Shows the Court of Appeal substituting imprisonment and whipping for a death sentence in a section 39B(1)(c) trafficking appeal, while restating that the section 114(g) presumption applies only to withheld or suppressed evidence.

This Court of Appeal decision forms part of a set of connected criminal appeals decided in a single judgment, all traceable to one trial in the High Court at Seremban concerning trafficking in dangerous drugs. The appellant in this appeal had been convicted under section 39B(1)(c) of the Dangerous Drugs Act 1952 (Akta Dadah Berbahaya 1952), with an associated charge engaging section 9(1) of the Poisons Act 1952, and sentenced to death at first instance. As the appellant is a natural person named only as a party, this analysis identifies that party by role rather than by name.

The Court's reasons address the recurring questions in trafficking prosecutions. On conviction, it considered whether the prosecution had proved the elements of possession and knowledge, and whether the acts characterised as preparatory were sufficient in law to constitute trafficking. It revisited the proper use of the presumption of adverse inference under section 114(g) of the Evidence Act 1950, holding that the presumption is engaged only where evidence has been withheld or suppressed, not where the prosecution has merely failed to secure evidence. It also weighed whether the failure to cross-examine the accused was fatal to the prosecution's case and whether the trial judge had properly evaluated the whole of the defence.

Turning to sentence, the Court was of the considered view that the appeals against the death sentence had merit. It allowed the appeals against sentence, set aside the death sentence imposed for the trafficking offences, and replaced it with a substantial term of imprisonment together with strokes of whipping, the relevant sentences running concurrently from the date of arrest. The judgment illustrates how the Court of Appeal, while leaving the convictions to stand, was prepared to intervene on sentence and calibrate a custodial term in place of the ultimate penalty, and it clarifies the disciplined use of the section 114(g) presumption in the evaluation of a drug-trafficking case.

Summary

Sainulabdeen Siyad'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.

What was the outcome of the appeal against sentence?

The Court allowed the appeal against sentence, set aside the death sentence for the trafficking offences, and imposed instead a substantial term of imprisonment with strokes of whipping, running concurrently from the date of arrest.

When can an adverse inference under section 114(g) be 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.