Santoshkumar A/L Sukumaran v Pendakwa Raya (B-05(SH)-497-10/2024)

The Appellant was convicted pursuant to section 39B(1) of the Dangerous Drugs Act 1952 (‘DDA’) by the High Court sitting in Klang for the offence of trafficking 106.18 grams of the dangerous drug Methamphetamine. Following the conviction, he was sentenced to life imprisonment and 12 strokes whipping. Aggrieved by that decision, the Appellant filed this Appeal, both against conviction and sentence.

At the hearing of this Appeal, Learned Counsel for the Appellant focused his client’s appeal on only one issue that is, whether the Prosecution’s failure to offer to the defence as witnesses persons who were arrested together with the Appellant after the Appellant was ordered to enter his defence, had prejudiced the Appellant in the preparation of his defence and therefore amounted to a serious miscarriage of justice.

After hearing submissions, we unanimously decided in favour of the Appellant and set aside both conviction and sentence. The following are our reasons. S/N fqyQVRsli0m9y7jizXPRQ

On 16.9. 2020 at about 6 p.m., a police team headed by SP2 (Inspector Harfes bin Mat Nupih) had undertaken a surveillance of a house located at Lot 6857-1, PSN Hamzah Alang, Kapar, Selangor. After 15 minutes of observation, they saw an Indian man cleaning the floor at the front portion of the house. The Police team then raided the house and apprehended one Naveen a/l Jeyakumar.

SP2 and his team then entered the house and at that point in time, SP2 saw 2 Indian men coming out from the second room at the right side of the house. They were later identified as Santoshkumar a/l Sukumaran (the Appellant) and Vijaya Kumar a/l Gunaseelan. When SP2 entered the house and saw the 2 Indian men, he specifically saw the Appellant holding a paper packet which he threw onto the living area floor. SP2 then directed the Appellant to pick up the paper packet with the words “IK Yellow Multifunction Business Paper”. Upon opening the packet, SP2 found a translucent plastic packet containing white granular and powder substances suspected to be the dangerous drug known as “Syabu”. That packet was seized by SP2 and all three Indian men were arrested.

Apart from those three Indian men, other individuals who are occupiers of the house at the time of the raid were also arrested. They were Kavidha, Praveen, Kupae and Murugan. Eventually, only the Appellant was charged. At the trial, none of the other arrested persons were S/N fqyQVRsli0m9y7jizXPRQ called as witnesses for the Prosecution and neither were they were offered to the defence as witnesses after the High Court made a finding of prima facie.

In this trial, the Learned High Court Judge (‘HCJ’) found both mens rea possession and trafficking without triggering presumption of knowledge under section 37(d) nor the presumption of trafficking under section 37(da) of the DDA.

In arriving at his finding of a prima facie case against the Appellant, the Learned HCJ accepted without any doubt SP2’s version of the arrest that is the Appellant was seen holding and then throwing the paper packet containing the dangerous drugs. Since it was only the Appellant who was seen holding and throwing the paper packet, then it was only the Appellant who had custody and control of the packet and knowledge of its contents. For those reasons, there was no failure in the Prosecution’s decision to not call the other arrested persons to give evidence in order to exclude any possibility of access and possession to the drugs by persons other than the Appellant.

After finding mens rea possession by the Appellant, the Learned HCJ was satisfied and found that the Appellant had concealed and kept the dangerous drugs which acts fall within the definition of trafficking under section 2 of the DDA. S/N fqyQVRsli0m9y7jizXPRQ

Reference was made to the decisions in Ibrahim Mohamad & Anor v PP [2011] 4 CLJ 113; [2011] MLJU 1491; [2011] 1 MLRA 181, Sahrul Mazlee Mohd Khalid v PP [2022] 1 LNS 4; [2022] 3 MLJ 919 and Roichand bin Maasum v PP [2022] MLJU 99; [2022] 1 LNS 129 on the finding of possession and the decisions in Teh Geok Hock v PP [1989] 2 CLJ 977; [1989] 3 MLJ 162 and Mohamed Yazri Minhat v PP [2003] 2 CLJ 65; [2003] 2 MLJ 241; [2003] 2 AMR 404 on the finding of trafficking.

At the end of the trial, the Learned HCJ found that the Appellant had failed to raise a reasonable doubt in the Prosecution’s case. He found that the defence preferred by the Appellant at the prosecution and defence were inconsistent. At the Prosecution stage, the defence had put to the Prosecution’s witnesses was that it was Murugan who threw the packet on the floor and there were others who had equal access to the house whilst at the defence stage, the Appellant gave evidence that the drugs were actually found in a red packet in a waste basket near a sofa where Murugan was sleeping. When tested against the evidence of SP2, the Learned HCJ found the Appellant’s defence was merely an afterthought and bare denial. It could not raise a reasonable doubt in the Prosecution’s case on both elements of possession and trafficking. S/N fqyQVRsli0m9y7jizXPRQ

As stated earlier, the only issue raised in this Appeal is whether the Appellant was prejudiced in the preparation of his defence when the Prosecution failed to offer those arrestees to the defence as witnesses. ARGUMENTS By the Appellant 13. Learned Counsel advanced the argument that the Prosecution’s failure to offer those arrestees as witnesses to the defence after a finding of prima facie is made, had offended the principle of fair trial against the Appellant. Those arrestees if offered to the Appellant could have given the opportunity to the Appellant to better prepare his defence in discharging his burden to raise a reasonable doubt in the Prosecution’s case. It was argued that the defence of access by others to the house and that Murugan is the one who had actually threw the packet onto the floor was sufficiently put to the Prosecution’s case. Since those persons were arrested together with the Appellant and statements were recorded from them by the Police, then the Prosecution had the duty to offer those arrestees to the defence after they were not called as witnesses for the Prosecution’s case. To support his case the Appellant placed heavy reliance on the Federal Court decision in Rosli Yusof v PP [2021] 7 CLJ 681; [2021] 4 MLJ 479; [2021] 5 MLRA

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In that case, 4 other persons were also arrested apart from the appellant/accused. One of the arrestees was a person named Kamarul. The appellant’s case was that Kamarul had driven a Proton and had picked up the appellant to go to a house where Kamarul picked up a Toyota car. Kamarul then drove the Toyota followed by the appellant in the Proton. They then went to another place where Kamarul met a male Thai national. Only Kamarul had a conversation with that Thai man. Kamarul then left the Toyota after which Kamarul and the appellant went to have a meal. Afterwards, he drove Kamarul to where the Toyota was parked. Kamarul then drove the Toyota car that carried gunny sacks containing cannabis to an agreed meeting point whilst the appellant drove in a Proton behind him. After they both stopped and parked at the meeting point, Kamarul hurriedly took the keys to the Proton and drove away leaving the appellant. After Kamarul left, the appellant was arrested. The appellants say that he had no knowledge of the gunny sacks containing cannabis and that Kamarul and the Thai man was responsible over them.

At the close of the Prosecution’s case, none of the arrestees were offered as witnesses to the defence and neither did the Prosecution serve their statements to the defence under section 51A of the Criminal Procedure Code. In the appeal to the Federal Court, counsel for the appellant argued that the Prosecution had the duty to offer witnesses who were arrested and statements taken from them, more so when they were not called as witnesses for the Prosecution. S/N fqyQVRsli0m9y7jizXPRQ

In counter argument, the Prosecution took the position that Kamarul and the other arrestees were not arrested together with the appellant but was arrested at a different location, different time and subject to a different police report. Thus, they were unconnected to the arrest of the appellant who was found alone at the crime scene. It was within the Prosecution’s discretion to choose and call any particular witness that will support its case and that there was no obligation on the Prosecution to call any of the arrestees as its witnesses. Furthermore, the appellant was not prejudiced by the non-calling of the other witnesses.

The Federal Court accepted the arguments for the appellant and held that the appellant was deprived of a fair trial when the Prosecution failed to offer the arrestees to the defence. Mohd Zawawi Salleh FCJ speaking for the Federal Court stated, inter-alia, the following: “[37] We now turn to the mainstream of the present appeal. The nub of learned counsel's argument is not about the failure of the prosecution to call these arrestees as its witnesses but the critical issue is the failure of the prosecution to make them available to the defence. No explanation was proffered by prosecution on this failure. [38] In our view, it is settled law based on the authorities cited to us by learned counsel for the appellant in his submission that the prosecution has discretion whether to call any particular witness, but such discretion is subject to two limitations, viz (i) the discretion must be exercised with due regard to considerations of fairness and good faith; S/N fqyQVRsli0m9y7jizXPRQ and (ii) the witnesses who had been investigated by the police and from whom the statements have been recorded must be offered to the defence.” By the Respondent 18. Learned Deputy Public Prosecutor argued on the other hand that the facts in Rosli Yusof must be distinguished and therefore the decision of the Federal Court must be confined to its facts. She argues that unlike in Rosli Yusof, the Appellant in the present case was seen by SP2 throwing the paper packet onto the floor. Only he was in physical possession of the packet. Applying section 8 of the Evidence Act 1950, his act of throwing the paper packet showed that the Appellant had knowledge of the drugs. Thus, the Appellant’s possession of the packet containing the drugs had satisfied the test of possession as discussed in Ghasem Hozouri Hassan v PP [2019] 6 MLJ 231; [2018] 6 CLJ 133 and PP v Denish Madhavan [2009] 2 CLJ 209; [2009] 2 MLJ

194.

Further, relying on the evidence of SP2, the evidence of the arrestees were not material to the Prosecution’s case since Naveen was at the front portion of the house cleaning the floor, Praveen was not at the house at the time of the raid, Kavidha and Kupae were at the kitchen at the material time and not at the living hall, Murugan was not seen to be holding the packet and was sleeping until awoken by the raiding team and Vijaya Kumar was not seen holding the packet although he was seen exiting the second room with the Appellant. S/N fqyQVRsli0m9y7jizXPRQ

More importantly, it was argued, that the Appellants’ defence was so inconsistent that the offering of those arrestees would not have had any material importance to the Appellant’s case. These inconsistencies can be seen when it was suggested that Vijay could have been in possession, the packet was found at Murugan’s leg and it was Murugan who threw the paper packet. Then at the defence stage, the Appellant testified that the drugs were found in a red plastic packet in a waste bin at the sofa where Murugan was sleeping.

Thus, looking at the totality of the evidence, the Learned HCJ was correct in arriving at his finding that the Appellant’s defence was merely an afterthought and a bare denial. Even if the arrestees were offered to the Appellant, they could not have given evidence capable of raising a reasonable doubt in the Prosecution’s case.

Similar to Rosli Yusof, the sole issue here is not about the Prosecution’s failure to call any of the arrestees as the Prosecution’s witness but about the failure of the Prosecution’s duty to offer as witnesses to the defence arrestees who were arrested with the accused and from whom statements were taken.

In this Court’s view, the elucidation of the law on that duty by the Federal Court in Rosli Yusof was clear and does not require further discussion. It applies generally to every criminal trial and not limited S/N fqyQVRsli0m9y7jizXPRQ only to the facts in that case. This can be seen from the following paragraphs: “[38] In our view, it is settled law based on the authorities cited to us by learned counsel for the appellant in his submission that the prosecution has discretion whether to call any particular witness, but such discretion is subject to two limitations, viz (i) the discretion must be exercised with due regard to considerations of fairness and good faith; and (ii) the witnesses who had been investigated by the police and from whom the statements have been recorded must be offered to the defence. … [45] It is trite law that it is not the duty of the appellant to prove his innocence or to call a particular witness to support his defence (see Tan Foo Su v. PP [1967] CLJU 179; [1967] 1 LNS 179; [1967] 2 MLJ 19; and Sandra Margaret Birch v. PP [1977] CLJU 114; [1977] 1 LNS 114; [1978] 1 MLJ 72). The law places upon the prosecution the burden to prove guilt of the appellant beyond reasonable doubt and not on the appellant to prove his innocence. Well-entrenched in jurisprudence is the rule that the conviction of the appellant must rest not on the weakness of the defence but on the strength of the prosecution. This principle is the corner stone of our criminal law. [46] Before parting, we consider it apposite to emphasise that a person's right to defend himself or herself against a criminal charge S/N fqyQVRsli0m9y7jizXPRQ includes the right to obtain and adduce other evidence in support of his or her defence. It is desirable in the interest of justice for the defence to obtain the fullest possible access to the facts relevant to the issue in the case. In this regard, the prosecution has a duty to make available to the defence witnesses who had been investigated by the police and from whom the statements have been recorded. This is, as we alluded to earlier, an important or vital corollary or element of an accused's right to a fair trial.”

It is also important to add that in any criminal trial, it is the Court who is the trier of facts and law. It is also the duty of the Court to subject the Prosecution’s evidence to maximum evaluation at the end of the Prosecution’s case and then, if the accused is called to enter his defence, to evaluate the defence case and test them against the Prosecution’s evidence. In Md Zainuddin Raujan v. Public Prosecutor [2013] 4 CLJ 21; [2013] 3 MLJ 773, the Federal Court described the duty pursuant to section 182A of the Criminal Procedure Code as follows: "At the conclusion of the trial, s. 182A of the Criminal Procedure Code imposes a duty on the trial court to consider all the evidence adduced before it and to decide whether the prosecution has proved its case beyond reasonable doubt. The defence of the accused must be considered in the totality of the evidence adduced by the prosecution, as well as in the light of the well-established principles enunciated in Mat v. PP…” S/N fqyQVRsli0m9y7jizXPRQ

In performing the duty to evaluate the defence’s evidence, the Court cannot disregard any defence put up by the accused even if it appears weak or an after-thought. In Ganapathy Rengasamy v PP [1998] 2 MLJ 577; [1998] 2 CLJ 1, the Federal Court expressed the following: “It needs to be remembered that however weak a defence may be, trial judges being judges of both fact and law should not just brush aside the defence on the basis that the prosecution witnesses are to be believed and not the defence. Where the law casts the onus of giving an explanation upon an accused person, and the explanation is given, which is consistent with innocence, the court is duty bound to consider whether it might reasonably be true, although not convinced of its truth. On the issue of the court's duty to consider the defence, the age old decision in Mat v PP [1963] MLJ 263 is still good law today as it was then. This was followed by the Supreme Court in Mohamad Radhi bin Yaakob v PP [1991] 3 MLJ 169.”

In Gunalan Ramachandran & Ors v PP [2006] 1 CLJ 857; [2006] 2 MLJ 197, [2006] 2 AMR 465, the Federal Court reiterated the principles which must be considered by trial courts at the close of defence in the following words: "To earn an acquittal, the court may not be convinced of the truth of the defence story or version. Raising a reasonable doubt in the guilt of the accused will suffice. It is not, however, wrong for the court to be convinced that the defence version is true, in which case the court must order an acquittal. In appropriate cases it is also not wrong for the court S/N fqyQVRsli0m9y7jizXPRQ to conclude that the defence story is false or not convincing, but in that instance, the court must not convict until it asks a further question, that even if the court does not accept or believe the defence explanation, does it nevertheless raise a reasonable doubt as to his guilt? It is for this reason that in dealing with the defence story or explanation, the majority of judges rightly prefer to adopt straightaway the legally established "reasonable doubt" test, rather than to delve in the "believable and convincing" test before applying the reasonable doubt test."

In Muhammad Faizal Dzulkifli v. PP [2017] 3 CLJ 424; [2017] 2 MLJ 228, the treatment of a defence seen as an afterthought is described by the Court of Appeal as follows: “[34] So, an afterthought defence is a defence that smacks of a recent invention on the part of an accused person. It is a defence that was never revealed during investigation, nor confronted to the relevant prosecution witnesses during their cross-examination in the prosecution stage. Such being its nature, it is quite incapable, or difficulty of belief. Indeed, it arouses suspicion as to its veracity. But, the fact that it is unbelievable does not relieve the prosecution of its attendant duty throughout the entire case, to prove its case beyond reasonable doubt. Neither does it automatically mean that the court must therefore convict the accused person, on account that the defence has been a mere afterthought. Rather, on authority of the case of Mat v. PP [1963] CLJU 82; [1963] 1 LNS 82; [1963] MLJ 263 it is still incumbent on the court to consider the entire evidence before it to see S/N fqyQVRsli0m9y7jizXPRQ whether the accused person has raised a reasonable doubt in the prosecution's case. If such a lingering, as opposed to a fleeting or whimsical, doubt is created in the mind of the court, then the accused person is entitled, as a matter of law, to be acquitted and discharged forthwith, from the charge levied against him."

Thus, based on those decisions, it is clear that the unassailable duty to consider all evidence rests with the Court and it is not up to the Prosecution to determine whether or not any evidence will actually be useful to the defence before deciding whether any arrestees can be offered as witnesses. Whilst the Prosecution may form its own opinion on the relevance or materiality of any witness to its case, the same cannot be done towards the defence case. That is the right of the accused person. Only he can determine if any witness will be material to his case and if he requires such witness in discharging his burden of proof to raise a reasonable doubt. Ultimately, it is the Court who decides if the defence is truly unbelievable and even then, the Court must still satisfy itself that there remains no lingering doubt on the culpability of the accused.

Therefore, this Court cannot agree with the Respondent’s argument that given the contradictions in his defence and that there is no evidence showing any other person except for the Appellant holding the paper packet, the arrestees even if offered would not have served any real defence to the Appellant’s defence. Since the trial Court has made a finding of prima facie, then it can be said that the Court had found that the Appellant’s case at that stage was incapable of raising S/N fqyQVRsli0m9y7jizXPRQ any reasonable doubt in the Prosecution’s case. Be that the finding of the Court, the Court must yet keep its mind open and unbiased in determining the merits of the Appellant’s case at the defence stage. The Prosecution still carries the burden of proving its case throughout the trial and with it, the burden to close any gap in proving its case beyond a reasonable doubt.

Thus, the Respondent cannot in any way interfere with the statutory duty of the Court to evaluate all evidence and all evidence includes the testimonies of the arrestees if the Appellant so requires. By arguing that the arrestees would not have likely given any evidence favourable to the Appellant even if they were offered as witnesses, the Respondent had effectively pre-empted and circumvented the Court’s judicial function in conducting an evaluation of all the evidence including those that could have been made available to the Appellant. The Court must remain uncurtailed and neutral until it makes its findings and arrive at its decision at the end of the trial. Subject to the rules of evidence, the Court cannot direct the accused on how he should present his defence including his choice of witnesses. In an adversarial system, it is the respective parties who will have conduct of their case without interference of the Court. In Teng Boon How v PP [1993] 4 CLJ 545; [1993] 3 MLJ 553, the Federal Court through Edgar Joseph Jr FCJ stated the following: “Secondly, it was argued that in considering the defence of the appellant, the Judge had misdirected himself inasmuch as his comments on the defence suggested that the vital witness for the S/N fqyQVRsli0m9y7jizXPRQ defence, being the taxi driver Loh, should be disbelieved because his name had not been disclosed by the appellant in a cautioned statement to the police and that it was not until the trial that there was such disclosure. … It was Lord Greene MR who explained that justice is best done by a Judge who holds the balance between the contending parties without himself taking part in their disputations. If a Judge, said Lord Greene, in Yuill v. Yuill (ibid), should personally conduct the examination of witnesses, "he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict". And, it was Lord Denning MR who in Jones v. National Coal Board (ibid), emphasised the importance of the Judge not descending into the arena and thereby depriving himself of the ability to take a detached view when forming his conclusion. This is how he put it: Yes, he (the Judge) must keep his vision unclouded. It is all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth: and the less dust there is about the better. Let the advocates one after the other put the weights into the scales - the 'nicely calculated less or more' - but the Judge at the end decides which way the balance tilts, be it ever so slightly... So also, it is for the advocates, each in turn, to examine the witnesses, not for the Judge S/N fqyQVRsli0m9y7jizXPRQ to take it on himself lest by so doing he appear to favour one side or the other... And it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost... The Judges' part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a Judge and assumes the robes of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that: 'Patience and gravity of hearing is an essential part of justice; an over speaking judge is no well-tune cymbal'.”

It would be equally pertinent to refer to the decision of this Court in Masoumeh Gholami Khaveh v PP [2013] 5 CLJ 59; [2013] 5 MLJ 688 where it was held that although the witness was not important to the Prosecution’s case, the Court must give weight to the importance of the witness to the defence case. Even if the witness may not give evidence favourable to the accused, the Prosecution still had the duty to make that witness available to the accused: “[18] In our judgment, in the context of the present case, this is a serious misdirection. Even though Amin was not an important witness S/N fqyQVRsli0m9y7jizXPRQ in the unfolding of the narrative of the prosecution's case, that did not relieve the learned trial judge from determining whether Amin was in point of fact an important and material witness as far as the defence was concerned. The learned trial judge misdirected herself in that she overlooked and failed to appreciate the importance of Amin to the defence's case as he was the one who could raise a reasonable doubt on the prosecution's case. This was never considered by the learned trial judge. In the light of this unsatisfactory feature, in our judgment, the appellant had been seriously prejudiced. In PP v. Asnawi Yusuf [2012] 3 CLJ 41; [2011] 4 MLJ 16, this court held that it is the bounden duty of the prosecution to secure the attendance of witnesses once they were offered as witnesses to the defence. Likewise, in the present case the prosecution has the bounden duty to secure the attendance of Amin. The appellant may waive the attendance of Amin. It is true that if Amin was produced in court, he might not be able to give favourable evidence for the appellant, but that did not detract from the prosecution's duty to produce him in court. The appellant cannot be deprived of Amin's attendance in order to prove her innocence.”

It is not disputed by the Respondent that all the arrestees were in remand pending investigation and statements were taken from them. No reason was offered why these arrestees were not offered as witnesses to the defence at the end of the Prosecution’s case. It should be noted that unlike in Rosli Yusof where Kamarul had left the appellant after driving off with the Proton, Vijaya Kumar was seen walking out of the second room with the Appellant and Murugan was also in proximity to both of them when SP2 entered the house. The S/N fqyQVRsli0m9y7jizXPRQ proximity of these persons to the accused was certainly greater compared to Kamarul who was later arrested at a different location and time. Since the Federal Court opined that at least Kamarul and the Thai man should have been offered to the appellant despite them being arrested at different places and time, then what more the arrestees in this Appeal? On the same consideration, at the very least, Vijaya Kumar and Murugan ought to have been offered to the Appellant. In Rosli Yusof, the following was said about Kamarul: “[40] In our view, the objective of a fair trial requires the prosecutor to call the arrestees or at the very least Kamarul Hisham and the Thai national as witnesses unless there is some good reason not to do so. The prosecution did not proffer any explanation for the non-calling of these witnesses. These witnesses are persons who had been arrested contemporaneous or in proximity to the arrest of the appellant and pursuant to the same investigation. … [43] The investigating officer (SP8) had investigated all these witnesses and submitted the single set of investigation papers to the Deputy Public Prosecutor who then decided not to charge them. In the circumstances, the prosecution cannot be heard to say that it did not know what evidence these witnesses would give because statements had been recorded from them. Necessary arrangements should have been made by the prosecution to make them available to the defence during the proceedings in the High Court. S/N fqyQVRsli0m9y7jizXPRQ [44] We agree with the submission of learned counsel for the appellant that the learned trial judge and the Court of Appeal had committed serious misdirection in placing the burden on the appellant to call these witnesses to establish his defence that Kamarul Hisham was the actual trafficker and the failure to do so was a decisive factor in the assessment of the defence case. [45] It is trite law that it is not the duty of the appellant to prove his innocence or to call a particular witness to support his defence (see Tan Foo Su v. PP [1967] CLJU 179; [1967] 1 LNS 179; [1967] 2 MLJ 19; and Sandra Margaret Birch v. PP [1977] CLJU 114; [1977] 1 LNS 114; [1978] 1 MLJ 72). The law places upon the prosecution the burden to prove guilt of the appellant beyond reasonable doubt and not on the appellant to prove his innocence. Well-entrenched in jurisprudence is the rule that the conviction of the appellant must rest not on the weakness of the defence but on the strength of the prosecution. This principle is the corner stone of our criminal law.”

The decision in Rosli Yusof was referred to with approval and applied in another case before a different panel of this Court in Law Kian Meng v PP & Another Appeal [2023] CLJU 597; [2023] 4 MLJ 281. In that case, 2 Taiwanese individuals were arrested with the both accused at the same hotel where they were arrested. One of the issues on appeal was the Prosecution’s failure to produce these arrestees and offer them as witnesses to the appellants. Not only did they fail to produce S/N fqyQVRsli0m9y7jizXPRQ them, the Prosecution did not even tender their recorded statements to the police. This had handicapped the appellant’s defence: “[30] …Likewise, in PP v. Asnawi Yusuf (supra) this Court had ruled in a similar manner when a number of offered witness were not produced by the prosecution when required by the defence then the accused must be acquitted. [31] This principle was reiterated by the Federal Court in Rosli bin Yusof (supra). In that case the core issue concerned the duty of the prosecution to make available any witness whose evidence may assist an accused… … [33] Both Lin Wen Hua and Chen Heng Tai are the two Taiwanese suspects who were arrested together with the appellants but were subsequently released and allowed to return to Taiwan. [34] It was the defence of the appellants that the two trolley bags containing the drugs belonged to both Lin Wen Hua and Chen Heng Tai, and that Chen Heng Tai was the actual occupant of room 203 at the time of the police raid… … S/N fqyQVRsli0m9y7jizXPRQ [37] However, despite the challenges mounted and suggestions made by the defence in respect of the gaps in the prosecution's case, particularly as to the role of Roxan, Sia Oh Bong, Lin Wen Hua and Chen Heng Tai, during the unfolding of the prosecution's narrative, and the need for the prosecution to negate or rebut the defence narrative put or suggested to several of the prosecution's important witnesses, the prosecution did not call any of these four witnesses to negate the same or tender their s.112 CPC statements at the trial to throw some light on these assertions by the defence… … [40] The failure of the prosecution to provide these statements to the defence and the refusal of the trial court to order their production has severely prejudiced the defence and denied the appellants their right to a fair trial. This is especially so when the appellants were both initially detained under the preventive detention laws for some 17 months before being charged with the offence of trafficking. The passage of such a long time from their arrest to charge had resulted in some of the material witnesses being not available. This handicap to the defence could have been remedied if the prosecution had provided the s.112 CPC statements of these individuals to the defence, or the prosecution themselves tendered these statements to court to negate the defence case as suggested to the prosecution witnesses. Alas, this was not done, and we are of the view that, in the circumstances of the facts of the case, the prosecution has failed to discharge its duty to call S/N fqyQVRsli0m9y7jizXPRQ all credible and relevant witnesses; and had also failed in its duty to conduct the case fairly.”

For the sake of completeness, we would also refer to another decision of a different panel of this Court in Aaron Chong Chernlin v PP [2022] CLJU 2750; [2023] 1 MLJ 60, where the Court sought to distinguish the facts in Rosli Yusof by holding the view that the arrestee in that case was arrested after the arrest of the accused and there was no connection between the arrestee to the drugs and paraphernalia found at the crime scene. Again, the facts in Aaron Chong Chernlin is different to the present Appeal. As stated earlier, both Vijaya Kumar and Murugan were in proximity to the Accused when the raid occurred. More importantly, Vijaya Kumar was seen exiting from the same room as the Appellant.

Returning to the present Appeal, this Court finds no plausible reason why the Respondent failed to offer the arrestees to the Appellant. Not only were they not produced and offered to the Appellant, their recorded statements were also not tendered so as to close any gaps in the discharge of the Prosecution’s burden of proving its case beyond a reasonable doubt. We find that the Appellant’s defence was undermined by the Respondent’s failure and this led to a serious miscarriage of justice. To say that the arrestees could not do better than to improve the Appellant’s seemingly already confused defence at the Prosecution stage is to employ a tactic that spells unfairness. This Court can do no better than to reiterate what the Federal Court expressed at the conclusion of its decision in Rosli Yusof: S/N fqyQVRsli0m9y7jizXPRQ S/N fqyQVRsli0m9y7jizXPRQ For the Appellant : Encik Mohd Hisham Nazir Messrs. Hisham Nazir & Co. Subang Jaya For the Respondent : DPP Shamala Jaganathan Attorney General's Chambers Putrajaya S/N fqyQVRsli0m9y7jizXPRQ