Criminal Law

Citation(2013) 14 SAL Ann Rev 273
Date01 December 2013
Published date01 December 2013
Introduction

13.1 In 2013, the Singapore judiciary issued a number of important and interesting decisions on corruption, drug offences, commercial sex with minors, and the interpretation of criminal law statutes. On the one hand, the Judiciary continues to develop a criminal law jurisprudence that seeks to sensitively differentiate between levels of blameworthiness, and rigorously identify the elements of an offence that should be proved before an individual is subject to criminal sanctions. In doing so, judges have been careful to ground their decisions and reasoning in legislative text. This may reflect the Judiciary's desire to avoid being perceived as engaging in judicial legislation.

13.2 In several cases, Singapore judges closely examined legislative text and intent in elaborating on the specific elements comprising an offence. Among others, and as further explained below, the Court of Appeal emphasised that an accused seeking to rebut the presumption of knowing the nature of the drugs as imposed by the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘MDA’) only needs to show that he did not know the nature of the drugs, rather than lack of recklessness or negligence regarding their nature. By insisting on the careful scrutiny of criminal law statutes, rather than their broad interpretation, these decisions place a limit on prosecutorial powers and the reach of the criminal law.

13.3 On the other hand, judges were willing to adopt a stricter approach towards the accused when motivated by social objectives and protective concerns, especially those recognised by Parliament. Singapore courts did not hesitate to approve of Parliament's removal of the defence of reasonable mistake of age for the offence of commercial sex with minors. Also, in a number of high-profile corruption cases, Singapore judges did not hesitate to criticise the accused who had taken advantage of individuals from whom they had received sexual gratification. Judges take a broader approach to interpreting criminal laws when seeking to protect those perceived as vulnerable.

General concepts

Knowledge: Rebuttal of presumed knowledge under s 18(2) of the Misuse of Drugs Act

13.4 The following cases dealt with the question of how an accused is able to rebut the presumption of knowing the nature of the drug, as imposed by s 18(2) of the MDA when certain facts are in place. The relevant provisions are:

18.–(1) Any person who is proved to have had in his possession or custody or under his control –

(a) anything containing a controlled drug;

(b) the keys of anything containing a controlled drug;

(c) the keys of any place or premises or any part thereof in which a controlled drug is found; or

(d) a document of title relating to a controlled drug or any other document intended for the delivery of a controlled drug,

shall, until the contrary is proved, be presumed to have had that drug in his possession.

(2) Any person who is proved or presumed to have had a controlled drug in his possession shall, until the contrary is proved, be presumed to have known the nature of that drug.

(3) The presumptions provided for in this section shall not be rebutted by proof that the accused never had physical possession of the controlled drug.

13.5 In Mervin Singh v Public Prosecutor[2013] SGCA 20 (‘Mervin Singh’), the Court of Appeal considered whether the two appellants had successfully rebutted the presumption set out in s 18(2) of the MDA. The Central Narcotics Bureau (‘CNB’), on 27 November 2008, trailed a car driven by Sallehuddin, a friend of the first appellant, Mervin Singh. There was a third person in the car, Rizal. The first appellant asked Sallehuddin to stop at a car park at Tampines Avenue 9, alighted and walked to the void deck. There, he made two outgoing calls to Subashkaran, the second appellant. He then received an incoming call from the second appellant. Shortly after, the first appellant walked towards a lift, the door opened, and the second appellant walked out. The first appellant walked into the lift and carried out a pink detergent box. The second appellant then walked to a car parked near the block and while getting grocery bags from the car, was arrested by police. The first appellant got another call from one Nizam (also known as ‘Sopak’), who instructed the first appellant to meet him at a specific coffeeshop in Tampines. The first appellant asked Sallehuddin to drive him to the coffeeshop. On the way there, they were stopped and arrested by the police. The pink box was found between the first appellant's legs and was not sealed. Nine packets of drugs that were subsequently tested to be diamorphine were removed. The police later raided both the first and second appellant's flat and room respectively. They found diamorphine, a blue sealer, a box of aluminium foil, two pieces of aluminium foil, each containing a straw, and a rolled up note in the first appellant's flat. They also found two cartons of contraband cigarettes in the second appellant's room.

13.6 The main issue was whether both appellants had rebutted the presumption of knowledge regarding the nature of the drugs, which was activated by s 18(2) of the MDA. The Court of Appeal affirmed the legal principles set out in the earlier case of Nagaenthran a/l K Dharmalingam v Public Prosecutor[2011] 4 SLR 1156 (‘Nagaenthran’). An accused, when seeking to overturn the presumption imposed by s 18(2) of the MDA (Nagaenthran at [27], cited in Mervin Singh at [26]):

… can do so by proving, on a balance of probabilities, that he genuinely believed that what was in his possession was something innocuous (eg, washing powder, when it was in fact heroin (see Warner v Metropolitan Police Commissioner[1969] 2 AC 256)), or that he thought it was a controlled drug other than the one actually found in his possession (eg, where he genuinely believed he was carrying “ice”, rather than heroin (see Khor Soon Lee v PP[2011] 3 SLR 201)).

13.7 Based on these principles, the Court of Appeal confirmed that an accused only has to prove that he did not know the nature of the drugs. He does not need to prove that he was not reckless or was not negligent regarding the nature of the drugs. The Court of Appeal's confirmation that knowledge is the level of culpability required by s 18(2) of the MDA is to be welcomed, given earlier case law that had at times used the language of negligence or recklessness to describe the culpability of the accused under this same MDA provision.

13.8 The Court of Appeal found that the first appellant had successfully rebutted the presumption of knowledge imposed by s 18(2) of the MDA, contrary to the lower court's finding. The first appellant had claimed that he thought the pink box he collected contained contraband cigarettes instead of drugs, but the lower court had found this explanation not ‘compelling’. The Court of Appeal observed (at [35]) that the lower court had not elaborated on why it found the first appellant's story not ‘compelling’ and, more importantly, that the first appellant was only required to rebut the presumption of knowledge ‘on a balance of probabilities, and not to provide “compelling” evidence’ [emphasis in original].

13.9 However, with respect to the second appellant, the Court of Appeal decided (at [58] and [59]) that he had failed to rebut the presumption of knowledge triggered by s 18(2) of the MDA because he had failed to disassociate himself from the phone call used to contact the first appellant and explain why his DNA had been found on the pink box and the two sheets of newspaper used to wrap one of the nine packets containing the drugs.

13.10 In this case, the Court of Appeal confirmed that all an accused needs to show to rebut the presumption of knowing the nature of the drugs imposed by the MDA is that he did not know the nature of the drugs. Nevertheless, as further explained below, Singapore judges have used language in some decisions that can be further improved. This is to ensure that Singapore courts clearly and consistently indicate that a lack of knowledge is the level of culpability that an accused needs to show to rebut the presumption of knowledge imposed by s 18(2) of the MDA.

13.11 The accused, in Public Prosecutor v Tiben A/L Katharsan[2013] SGDC 53, was entering the Woodlands Immigration Checkpoint when he was stopped by the police who found upon a search that the accused had a packet of diamorphine or heroin under the lining of the helmet he had been wearing. He was charged with importation of a packet of diamorphine under s 7 of the MDA.

13.12 To establish the charge, the Prosecution invoked the presumptions in s 18 of the MDA. As the accused had physical custody of the helmet, s 18(1) of the MDA applied and he was presumed to have had the drug in his possession unless he could prove otherwise.

13.13 The court found (at [30] and [31]) that the accused failed to rebut the s 18(1) presumption and that s 18(2) of the MDA would also apply:

Since the accused was presumed under s 18(1) of the MDA to have had possession of the controlled drug, s 18(2) of the MDA was triggered. The issue here was whether the accused had proved the contrary of what s 18(2) presumes, ie, whether he has proved that he did not know or could not reasonably be expected to have known that the controlled drug in the helmet was diamorphine.

The accused agreed he had ample time and opportunity to see what had been placed inside the helmet. He did not bother to take the simple step of checking despite the fact that he was told the helmet contained dangerous things and he thought he was doing something illegal. Further, he said he suspected that it contained drugs. In my judgment, the accused had turned a blind eye and I found that he had failed to rebut the presumption.

13.14 In order to rebut the presumption of knowledge activated by s 18(2), the court held that the accused would have to prove that he ‘did...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT