Kuganesan a/l Kalaiselvan v Public Prosecutor

Appellant(s): Kuganesan A/L Kalaiselvan

Respondent(s):

• Pendakwa Raya
• [Pendakwa Raya]

• YA Dato' Paduka Azman Bin Abdullah
• YA Datuk Hayatul Akmal binti Abdul Aziz
• YA Tuan Muniandy a/l Kannyappan

• The appellant was charged jointly with two others under section 39B(1)(a) of the Dangerous Drugs Act 1952 read with section 34 of the Penal Code (common intention) for trafficking 191.9 grams of methamphetamine found in his trouser pocket during a police raid; one co-accused was acquitted at the close of the prosecution case, and the other absconded after being granted police bail and was never tried.
• The appellant's defence was that the drugs belonged to the absconded co-accused, who had allegedly thrown the drug packet onto the floor before fleeing, and that the investigating officer's evidence confirmed this co-accused had admitted responsibility for the drugs in his cautioned statement.
• The trial judge convicted the appellant and imposed the mandatory death sentence, finding that he failed to raise reasonable doubt "on a balance of probabilities" that the drugs were not found in his possession, before invoking the presumption of trafficking under section 37(da) of the Act.

• Whether the trial judge erred in failing to appreciate the significance of the absconded co-accused's cautioned statement admitting responsibility for the drugs, which was consistent with the defence version raised since the prosecution's case.
• Whether the prosecution's failure to exclude the possibility that the absconded co-accused was the real culprit, particularly in light of his own admission, created a fatal gap in the prosecution's case regarding exclusive possession and knowledge.
• Whether the trial judge misdirected himself on the burden of proof by requiring the appellant to raise reasonable doubt "on a balance of probabilities" before invoking the section 37(da) presumption, instead of first making an affirmative finding of possession and knowledge beyond reasonable doubt.

• The Court held that the absconded co-accused's cautioned admission was material evidence that the prosecution failed to rebut, creating a gaping hole in the prosecution's case on the issue of possession, especially given that the appellant was charged with common intention alongside that co-accused.
• Applying the principle in Public Prosecutor v Lin Lian Chen, the Court found that mere physical discovery of drugs on the appellant did not exclude the reasonable possibility that the absconded co-accused was the true offender, and the prosecution bore the burden to exclude such possibility, which it failed to do.
• The Court found the trial judge committed a fatal misdirection by conflating the standard of proof, wrongly requiring the appellant to raise doubt "on a balance of probabilities" rather than merely raising a reasonable doubt; the conviction and death sentence were set aside and the appellant was acquitted and discharged.