Abdul Karim bin Mohd v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 17 October 1995
• Date: 17 October 1995
• Docket Number: Criminal Appeal No 21 of 1995
• Court: Court of Appeal (Singapore)

Abdul Karim bin Mohd

Plaintiff

and

Public Prosecutor

Defendant

[1995] SGCA 78

M Karthigesu JA

,

L P Thean JA

and

Goh Joon Seng J

Criminal Appeal No 21 of 1995

Court of Appeal

Criminal Law–Statutory offences–Misuse of Drugs Act (Cap 185, 1985 Rev Ed)–Trafficking in controlled drugs–Amount of drugs and paraphernalia in possession of accused indicative of trafficking–Accused claiming most of drugs for personal consumption–Expert evidence that possible for person to consume significant quantity accused claimed he consumed–Whether presumption of trafficking rebutted–Criminal Procedure and Sentencing–Charge–Alteration–When appropriate to amend amount of drugs being trafficked in charge of trafficking under the Misuse of Drugs Act (Cap 185, 1985 Rev Ed)

The appellant was convicted on two charges of trafficking heroin under the Misuse of Drugs Act (Cap 185, 1985 Rev Ed). The appellant's defence was that the heroin was for personal consumption by him and his wife. The drug-related paraphernalia found in his residence was indicative of trafficking. The evidence of all the prosecution witnesses was that the appellant either did not suffer any withdrawal symptoms or only suffered from mild withdrawal symptoms, inconsistent with claims of personal consumption. The trial judge rejected the appellant's submission, and the evidence of the Defence's expert witness, a doctor, who opined that a person was capable of consuming a quantity of heroin each day close to the amount submitted by the appellant. The appellant appealed, purporting to rebut the presumption that the drugs in his possession were for trafficking by submitting that most of the large quantity of drugs in his possession was for his and his wife's consumption, and only a tiny portion (whose weight did not attract the death penalty) was for trafficking.

Held, dismissing the appeal:

(1) The evidence provided no basis to make a finding of the level of daily personal consumption by the appellant and his wife as claimed by the appellant. It was necessary to make such a finding for the appellant's only defence to trafficking raised at the trial to succeed: at [37].

(2) Where there was no reliable evidence on which a meaningful apportionment of drugs found in an accused's possession could have been made between consumption and trafficking, apart from the accused's own claims of consuming huge quantities of the drug, any such apportionment would have been speculative. There was therefore no basis to amend the charge to reflect a lesser amount of drugs being trafficked: at [39].

Ong Lee Koon v PP [1995] 1 SLR (R) 682; [1995] 2 SLR 750 (refd)

Yeo Hee Seng v PP [1994] 3 SLR (R) 992; [1995] 1 SLR 193 (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 121

Misuse of Drugs Act (Cap 185, 1985 Rev Ed) ss 5 (2), 17

Ram Goswami (Ram Goswami) for the appellant

Lee Sing Lit (Deputy Public Prosecutor) for the respondent.

M Karthigesu JA

(delivering the grounds of judgment of the court):

1 On 19 April 1995, the appellant was convicted in the High Court on two charges of trafficking in heroin. The first charge was in respect of 3.59g of diamorphine (heroin) contained in three packets of substance found on his person when he was arrested by officers of the Central Narcotics Bureau (“CNB”) at about 2.00pm on 22 April 1994 along the corridor on the ninth floor of Block 422, Ang Mo Kio Ave 3, Singapore, and the second charge, as amended at the trial, was for being in possession, also on 22 April 1994, of more than 15g and not less than 104.91g of diamorphine at his flat #08-2516, Block 422, Ang Mo Kio Ave 3, Singapore, for the purpose of trafficking. The second charge as originally framed was in respect of not less than 104.91g of diamorphine contained in 15 packets and two containers of substance. He was sentenced to eight years' imprisonment with effect from 22 April 1994 and eight strokes of the cane on the first charge and to death on the second charge.

2 We heard his appeal on both charges on 25 September 1995 which we dismissed for the reasons we now give.

3 On 22 April 1994 at about 1.00pm a team of CNB officers led by Insp Adam bin Fashe Huddin (“Insp Adam”) kept watch on the appellant's flat at #08-2516, Block 422, Ang Mo Kio Ave 3, Singapore. At about 2.00pm the appellant was seen leaving his flat which was on the eighth floor and going up to the ninth floor. Some of the CNB officers moved in and arrested the appellant who put up a brief struggle. The appellant was searched and a bunch of keys and an envelope containing three sachets of substance were recovered from his person. The three sachets of substance were later analysed by the Department of Scientific Services and found to contain 3.59g of diamorphine, the subject matter of the first charge. Narcotics Officer Kang Cheong Hee (“NO Kang”), one of the arresting officers, asked the appellant in English who he was waiting for to hand over the drugs and the appellant replied in English that he was waiting for a male Malay. This exchange between NO Kang and the appellant was flatly denied by the appellant. However, NO Kang testified that this exchange had taken place which he had recorded in his pocket book and read out the question and answer as recorded by him in his pocket book when giving evidence at the trial. The other arresting officers could not confirm this exchange between NO Kang and the appellant.

4 Insp Adam arrived on the scene soon after the foregoing events had taken place and on his instructions the appellant was gagged and led back to his flat. It was explained in evidence that the appellant was gagged as a precaution against him raising an alarm when entering the flat. Entry was gained by the use of one of the keys from the bunch of keys seized from the appellant. The sole occupant of the flat was the appellant's wife, Saidah bte Nasir Khan (“Saidah”), who was asleep in the master bedroom.

5 The appellant's flat was searched for drugs with the assistance of the appellant. It was at this point that NO Kang told Insp Adam of the exchange he had with the appellant. Insp Adam despatched two CNB officers in search of the male Malay. The officers returned shortly afterwards to the flat with a male Malay, who gave his name as Mohamed Azhar bin Mohamed Yusof (“Azhar”), whom they said they had arrested on the ground floor of the block.

6 The appellant directed the CNB officers to a wardrobe and a “Reebok” bag on the dressing table. The following items were found in the wardrobe:

(a) an NTUC plastic bag containing a large plastic bag of a substance believed to be heroin;

(b) ametal container containing a sachet of substance believed to be heroin and a plastic container containing 209 Mogadon tablets and 137 DF118 tablets.

7 In the “Reebok” bag were found:

1. (a) 13 sachets of a substance believed to be heroin;

2. (b) a large digital weighing scale;

3. (c) a small digital weighing scale;

4. (d) 528 unused plastic sachets;

5. (e) a double scoop spoon;

6. (f) a plastic container containing a substance believed to be heroin and a spoon;

7. (g) a pair of pliers;

8. (h) a stack of envelopes.

8 Asmall plastic container containing a substance...