Abdoll Mutaleb bin Raffik v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 26 April 2023
• Neutral Citation: [2023] SGCA 12
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeals No 21 of 2019 and 8 of 2020
• Hearing Date: 18 August 2020,20 January 2021,04 August 2022
• Citation: [2023] SGCA 12
• Year: 2023
• Plaintiff Counsel: Hassan Esa Almenoar (R Ramason & Almenoar) and Diana Foo (Tan See Swan & Co),Thrumurgan s/o Ramapiram, Tan Jun Yin, Haneef Abdul Malik (Trident Law Corporation) and Sureshan s/o T Kulasingam (Sureshan LLC)
• Defendant Counsel: Lau Wing Yum and Kenny Yang (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act,Criminal Procedure and Sentencing,Charge,Alteration,Statements,Voluntariness,Voir dire
• Published date: 11 May 2023

Tay Yong Kwang JCA (delivering the judgment of the court): Introduction

These are appeals against the decision of the High Court Judge (“the Judge”) in HC/CC 32/2018 (“CC 32”). CC 32 was a joint trial of three accused persons, namely, Mohd Zaini bin Zainutdin (“Zaini”), Mohd Noor bin Ismail (“Noor”) and Abdoll Mutaleb bin Raffik (“Mutaleb”). The three accused persons faced the following charges under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”): Zaini and Noor were each charged under s 7 of the MDA read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) for importing, in furtherance of a common intention between them, not less than 12 bundles of granular/powdery substance which was found to contain not less than 212.57g of diamorphine. Mutaleb was charged under s 7 read with s 12 of the MDA for abetting by engaging in a conspiracy with Zaini, Noor, one male known as “Apoi” and others, to import into Singapore not less than 12 bundles of granular/powdery substance which was found to contain not less than 212.57g of diamorphine.

The Judge convicted all three accused persons on their respective charges. Zaini and Noor were sentenced to life imprisonment with 15 strokes of the cane each as the Judge found that the conditions under s 33B of the MDA were satisfied. Mutaleb was sentenced to death as he could not fulfil the conditions under s 33B of the MDA in that he was found not to be a mere courier and he was not issued a certificate of substantive assistance.

Zaini did not appeal. Mutaleb appealed against his conviction and sentence in CA/CCA 21/2019 (“CCA 21”). Noor appealed against his conviction and sentence in CA/CCA 8/2020 (“CCA 8”).

The Judge’s grounds of decision on conviction for all three accused persons are set out in Public Prosecutor v Mohd Zaini bin Zainutdin and others [2019] SGHC 162 (the “1st GD”). The decision on sentence in respect of Mutaleb and Zaini can be found in the 1st GD, while the decision on sentence in respect of Noor is found in Public Prosecutor v Mohd Zaini bin Zainutdin and others [2020] SGHC 76 (the “2nd GD”) because Noor was sentenced later.

This court heard CCA 21 and CCA 8 on separate occasions because several issues arose, such as the need for Noor’s allegations on appeal to be remitted to the Judge for the taking of further evidence as well as the issue of amendment of Mutaleb’s charge. For the reasons set out below, we dismiss Noor’s appeal and allow Mutaleb’s appeal against conviction on the original capital offence charge but substitute a charge of attempted possession of drugs against him.

Brief overview of CC 32 Facts

The facts have been set out comprehensively in the 1st GD. We would therefore state only the facts which are relevant for the appeals.

In a statement recorded on 19 September 2015 at 2.35pm, Zaini stated that on 10 September 2015, Noor, a man known as “Apoi” and him packed 15 bundles of diamorphine into Zaini’s car, a Honda Civic bearing registration number JQR 6136 (the “Car”) in Malaysia.

On the morning of 11 September 2015, Noor drove the Car from Malaysia to Singapore with Zaini as a passenger. They reached the Tuas Checkpoint sometime after 10am. Central Narcotics Bureau (“CNB”) officers searched the Car and found 13 bundles of drugs in the Car’s hidden compartments. Both men were arrested. A 14th bundle was recovered from the Car subsequently on 21 September 2015. These bundles were found to contain 6,434.8g of a granular or powdery substance. On analysis, the substance was found to contain not less than 249.63g of diamorphine (collectively, the “Drugs”): 1st GD at [6].

Shortly after his arrest, Zaini received phone calls from Apoi and these were recorded by the CNB officers. During these phone calls, Zaini claimed to be at a casino and asked Apoi “how long [he would] have to wait roughly”. Neither Apoi nor Zaini mentioned the name “Mutaleb” during the conversations.

When questioned by CNB officers, Zaini gave information about what he was supposed to do with the drugs. It was disputed whether Zaini informed the CNB officers that he was to deliver the drugs to Mutaleb at Chai Chee: 1st GD at [7].

From about 6.00pm to 8.00pm, Zaini was instructed by SSSgt Ika Zahary Bin Kasmari to call Mutaleb. Three monitored and recorded phone calls were then made from Zaini’s mobile phone to Mutaleb’s mobile phone in the presence of CNB officers. Through the phone calls, Mutaleb and Zaini made an appointment to meet on the night of 11 September 2015 at the car park of Block 2 Chai Chee Road (the “Location”) for Zaini to pass Mutaleb “thirteen” in exchange for a total of “thirty nine thousand Singapore money”. During their phone conversations, neither Mutaleb nor Zaini said expressly that “thirteen” referred to 13 bundles of drugs.

Following this, two CNB officers went to the Location in the Car to wait for Mutaleb with a white plastic bag containing 13 bundles of mock drugs. The two CNB officers decided to hand over only 11 bundles, withholding two bundles, so as to delay the transaction and allow the arresting officers to move in to arrest Mutaleb.

They arrived at about 9.05pm. Mutaleb arrived at the Location about 35 minutes later. He accepted the plastic bag containing the mock drugs from the CNB officers in the Car. Shortly thereafter, Mutaleb dropped the plastic bag while he was walking away and he was then arrested by CNB officers in the vicinity.

Mutaleb was searched by the CNB officers and $1,600 was found in the left pocket of his shorts. The CNB officers subsequently searched Mutaleb’s unit at Block 23 Chai Chee Road and recovered four bundles of cash amounting to $34,950 in a haversack between the side table and the bed, along with three bundles of cash amounting to $2,050 in a pair of grey pants. The three amounts of cash added up to $38,600.

In an oral statement made by Zaini on 11 September 2015 at about 8.30pm, he said that he knew Mutaleb as “Boy Amy” or “Abang” and that the 13 bundles of drugs were to be passed to Abang. In a later statement recorded on 19 September 2015 at 2.35pm, Zaini explained that there was only one person from Singapore whom Apoi called Abang and that was Mutaleb. Zaini also knew Mutaleb as “Rafi”.

The charges

The respective charges against the three accused persons are set out below. The charge against Zaini read:

… on 11 September 2015, at about 10.54am, at Tuas Checkpoint, Singapore, together with one [Noor], and in furtherance of the common intention of you both, did import into Singapore not less than twelve (12) bundles containing 5,520.4 grams of granular/powdery substance which was analysed and found to contain not less than 212.57 grams of diamorphine, a Class A controlled drug listed in the First Schedule to the [MDA], without any authorisation under the MDA or the Regulations made thereunder, and you have thereby committed an offence under Section 7 of the MDA read with Section 34 of the [Penal Code], and which offence is punishable under Section 33(1) of the MDA, or you may alternatively be liable to be punished under Section 33B of the MDA.

[emphasis in original]

The charge against Noor read:

on 11 September 2015, at about 10.54am, at Tuas Checkpoint, Singapore, together with one [Zaini], and in furtherance of the common intention of you both, did import into Singapore not less than twelve (12) bundles containing 5,520.4 grams of granular/powdery substance which was analysed and found to contain not less than 212.57 grams of diamorphine, a Class A controlled drug listed in the First Schedule to the [MDA] without any authorisation under the MDA or the Regulations made thereunder, and you have thereby committed an offence under Section 7 of the MDA read with Section 34 of the [Penal Code], and which offence is punishable under Section 33(1) of the MDA, or you may alternatively be liable to be punished under Section 33B of the MDA.

[emphasis in original]

The charge against Mutaleb read:

… between 10 September 2015 and 11 September 2015, in Singapore, did abet by engaging in a conspiracy with one [Zaini], one [Noor], one male known as “Apoi”, and others, to do a certain thing, to wit, to import into Singapore a Class A controlled drug listed in the First Schedule to the [MDA], and in the pursuance of that conspiracy and in order to the doing of that thing, on 11 September 2015 at about 10.54am at Tuas Checkpoint, Singapore, the said [Zaini] and [Noor] did import into Singapore not less than twelve (12) bundles containing 5,520.4 grams of granular/powdery substance which was analysed and found to contain not less than 212.57 grams of diamorphine, without any authorisation under the MDA or the Regulations made thereunder, and you have thereby committed an offence under Section 7 read with Section 12 of the MDA, punishable under Section 33(1) of the MDA, or may alternatively be liable to be punished under Section 33B of the MDA.

[emphasis in original]

It can be seen from the above that the eventual charges that were brought against the accused persons were in respect of 12 bundles of drugs. The Judge also noted this at [85] of the 1st GD, observing that a total of 14 bundles were recovered while Zaini stated in his statement that Apoi had initially told Mutaleb that about 12 bundles of drugs would be delivered. The eventual arrangement was for Zaini to deliver 13 bundles to Mutaleb and the CNB officers handed over only 11 bundles of mock drugs to Mutaleb. The Judge found (at [86] of the 1st GD) that these discrepancies were ultimately not material as it was not a situation where Mutaleb rejected the delivery on the basis of the number of bundles that he was to receive or did actually receive. Further, an additional bundle would not have made a difference as to whether the delivered drugs crossed the threshold for capital punishment.

The parties’ cases at trial The Prosecution’s case

In respect...