YUGARAJAN A/L LETCHIMANASAMY & ANOR V PUBLIC PROSECUTOR

Citation: Yugarajan a/l Letchimanasamy & Anor v Public Prosecutor [2020] 4 MLJ 7961

Date of Judgement: 15 June 2020 

Court: Court of Appeal (Putrajaya) 

Bench: Hamid Sultan, Hadhariah Ismail and Abu Bakar JCA 

Introduction 

A notable Court of Appeal ruling in Malaysian criminal jurisprudence pertaining to drug trafficking under the Dangerous Drugs Act 1952 (“DDA”) is Yugarajan a/l Letchimanasamy & Anor v. Public Prosecutor [2020] 4 MLJ 796. The appellants were found guilty by the High Court of conspiring to trade hazardous substances and were given the death penalty. On appeal, nevertheless, the Court of Appeal granted their request and cleared them. This case emphasizes the need for judicial conclusions on common purpose under section 34 of the Penal Code, the unconstitutionality of using the DDA’s double presumptions, and the prosecution’s obligation to call important witnesses. 

Facts of the case 

After receiving information from ASP Saiful Muzir, a police unit conducted an ambush at a jetty in Kuala Kedah, Kedah, on January 22, 2015. The information given was that an Indian man arriving in a black coloured Toyota Vios (‘car’) would be involved in the trafficking. The first appellant drove the car in which the appellants came. After checking the backseat, Sergeant Saiful, an undercover police officer, walked up to the vehicle, opened the rear door, and gave the ambush team the signal. When police arrived and took the appellants into custody, they found a bag on the backseat. In the bag he found an envelope and in the envelope he found some transparent packets. In the packets he found a substance which contained 20g of monoacetylmorphine, 96.3g of heroin, and 222.1g of methamphetamine. 

Section 34 of the Penal Code and section 39B(1)(a) of the DDA were used to charge the appellants. Premises under DDA sections 37(d) (possession) and 37(da) (trafficking) were used by the prosecution during the trial. According to the defense, a stranger had requested a ride, put the bag in the car, and then left it there while getting out. This version was rejected by the trial judge, who found the appellants guilty. 

Legal Issues 

• Whether invocation of double presumptions rendered conviction and sentence of accused unlawful. 
• Whether prosecution’s failure to make agent provocateur available to defence as witness gravely prejudiced defence’s case as he was the only one who could confirm or contradict their version of events. 
• Whether prosecution’s failure to make witness available as well as trial judge’s failure to address and rule on issue of common intention/prior concert contained in the charges were fatal omissions entitling accused to be acquitted and discharged 

Legal Reasoning 

The learned JC did not accept the defence by the appellants. According to the appellants they had given a lift to a man they didn’t know. The first appellant said that the bag probably belonged to the individual they had picked up when the second appellant inquired about it. 

• Whether invocation of double presumptions rendered conviction and sentence of accused unlawful. 

The initial matter related to the trial judge’s enforcement of dual presumptions according to the Dangerous Drugs Act 1952—namely, the presumption of possession with awareness as stipulated in section 37(d) and the trafficking presumption outlined in section 37(da). The Court of Appeal ruled this as illegal, referencing the Federal Court’s ruling in Alma Nudo Atenza v Public Prosecutor. That ruling clarified that neither presumption can be relied upon at the same time since that would permit a trafficking conviction solely based on custody or control, circumventing the requirement to establish possession with knowledge. This “stacking” of assumptions breaches the principle that the prosecution is required to establish the accused’s guilt beyond a reasonable doubt. Although the trial took place prior to the Alma Nudo decision, the Court determined that the ruling was retroactive, as the Federal Court had not confined its application to cases arising after. Consequently, the trial judge’s application of both presumptions made the convictions and sentences invalid. 

• Whether prosecution’s failure to make agent provocateur available to defence as witness gravely prejudiced defence’s case as he was the only one who could confirm or contradict their version of events. 

The second problem involved the absence of a crucial witness, Detective Sergeant Saiful, who served as the provocateur in the case. Even though the prosecution presented him as a witness for the defense, they did not secure his availability for cross-examination. The Court highlighted that when a witness—particularly one as pivotal to the occurrences as Sgt Saiful—is presented, the prosecution is obligated to ensure that witness’s availability. Neglecting to do so leads to an unfavorable inference under section 114(g) of the Evidence Act 1950, particularly as Sgt Saiful was the sole individual capable of validating or contradicting the appellants’ assertion that a third party had placed the bag with drugs in their car. The Court deemed the prosecution’s reasoning—that Sgt Saiful had retired and was worried for his safety—unpersuasive and inadequate. This failure deprived the appellants of a fair trial and greatly harmed their defence, introducing reasonable doubt in the prosecution’s case 

•  Whether prosecution’s failure to make witness available as well as trial judge’s failure to address and rule on issue of common intention/prior concert contained in the charges were fatal omissions entitling accused to be acquitted and discharged

The third point highlighted the trial judge’s neglect to analyze the aspect of common intention, which was crucial as the appellants faced joint charges under section 34 of the Penal Code. The Court observed that the judgment lacked any findings or analysis regarding the existence of a pre-arranged scheme or prior agreement among the appellants to traffic drugs, which is necessary for liability under section 34. This exclusion was considered critical, as it indicated that an essential part of the prosecution’s argument was not covered. The Court emphasized that when common intention is part of a charge, the trial court must assess whether it has been established beyond a reasonable doubt. The lack of such evidence rendered the conviction legally invalid and indefensible. 

Ratio Decidendi 

The sentence and conviction were flawed because the trial judge utilized the statutory presumptions of possession and trafficking under sections 37(d) and 37(da) of the Dangerous Drugs Act 1952, which is prohibited after the Federal Court’s ruling in Alma Nudo Atenza v Public Prosecutor.2 The simultaneous application of these assumptions represents a significant legal mistake as it evades the prosecution’s obligation to establish guilt beyond a reasonable doubt. This ruling is applicable retroactively and makes the convictions void. 

“The learned JC erred in applying double presumptions for possession and trafficking of the drugs. We are of the view that the appellants could not be convicted and sentenced based on the charges against them.” — [Judgment, para 37] 

Furthermore, the inability of the prosecution to present the agent provocateur (Sgt Saiful) after proposing him as a witness to the defence represented a significant procedural mistake. It breached the appellants’ entitlement to a fair trial and warranted a negative inference under section 114(g) of the Evidence Act 1950. 

“The failure of the prosecution to make available Sgt Saiful simply means the appellants must also be accordingly acquitted for the charges against them.” — [Judgment, para 43] 

The trial judge’s neglect to address the aspect of common intention as outlined in section 34 of the Penal Code, vital to the joint charge, made the decision legally flawed. 

“The failure to state whether common intention had been proven and the reasons for it, renders the decision to convict and sentence the appellants undefendable.” — [Judgment, para 54] 

Obiter Dictum 

The Court remarked that a conviction for the minor charge of mere possession could not be upheld, due to the lack of Sgt Saiful. As he was the sole individual who could confirm the appellants’ account (that an unknown individual abandoned the bag), his absence cast doubt on the issue of possession. 

“We are also not inclined to say there is evidence for the offence of mere possession of the drugs… it cannot be concluded that it is proven beyond reasonable doubt.” — [Judgment, para 55] 

The Court additionally noted that retired witnesses claiming fear for their safety cannot validly excuse their absence, as this would compromise the justice system. This acted as a signal for upcoming situations. 

“For us to accept such an explanation would result in encouraging retirees not to testify to court for fear of their own lives. This would affect the administration of justice by the courts.” — [Judgment, para 48] 

Outcome of the Case

In the matter of Yugarajan a/l Letchimanasamy & Anor v Public Prosecutor, the Court of Appeal granted the appeal and reversed the convictions and death penalties given to both appellants by the High Court. The appellants were found guilty of collectively trafficking three categories of harmful drugs—methamphetamine, heroin, and monoacetylmorphine—relying on the presumption clauses of the Dangerous Drugs Act 1952. Nevertheless, after examination, the Court of Appeal identified significant legal errors that made the convictions unreliable. 

A key mistake was the trial judge’s dependence on the presumptions of possession outlined in section 37(d) and trafficking described in section 37(da) of the Act. The Federal Court ruled this method of using double presumptions as illegal in Alma Nudo Atenza v PP. Even though that decision was made post-trial, the Court of Appeal determined that it was applicable retroactively, rendering the trial court’s rationale essentially defective. 

Another significant problem was the prosecution’s inability to present the agent provocateur, Detective Sergeant Saiful, as a witness. Even though the prosecution had presented him to the defence, he was never summoned, and his statements could have supported the appellants’ account of what happened—that an unknown person had put the bag with drugs in their car. His absence harmed the defence and warranted making a negative inference against the prosecution under section 114(g) of the Evidence Act 1950. 

Finally, the trial judge did not provide any conclusions regarding the presence of common intention between the two appellants, which was an essential factor as the charge relied on joint liability under section 34 of the Penal Code. As a result of these major legal mistakes, the Court determined that the convictions were indefensible and subsequently directed that both appellants be acquitted and released from all charges

Reference(S)

1 Yugarajan a/l Letchimanasamy & Anor v Public Prosecutor [2020] 4 MLJ 796.

2 Alma Nudo Atenza v. PP & Another Appeal [2019] 3 MLRA 1.