Adnan bin Kadir v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 28 September 2012
• Neutral Citation: [2012] SGHC 196
• Court: High Court (Singapore)
• Hearing Date: 02 August 2012
• Docket Number: Magistrate’s Appeal No 122 of 2012
• Plaintiff Counsel: The appellant in person
• Defendant Counsel: Lee Lit Cheng, Wong Woon Kwong and Ruth Wong (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Statutory Offences,Misuse of Drugs Act
• Published date: 04 October 2012

Chan Sek Keong CJ: Introduction

This is an appeal against sentence by Adnan bin Kadir (“the Appellant”). He pleaded guilty in the District Court to one count of importing 0.01g of diamorphine into Singapore, which is an offence under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the current MDA”), and was sentenced to five years’ imprisonment and five strokes of the cane.

The facts

The Appellant is a 41-year old male. The charge which was proceeded upon by the Prosecution (“the Diamorphine Charge”) reads as follows:

… [T]hat you, on 21st December 2011 at or about 6.36 a.m., at Immigration Checkpoint Authority, Woodlands Checkpoint, Singapore, did import into Singapore … one packet containing 0.35 grams of granular/powdery substance which was analyzed and found to contain 0.01 gram of Diamorphine … and you have thereby committed an offence under section 7 of the Misuse of Drugs Act, Chapter 185 and punishable under Section 33 of the said Act.

The relevant parts of the Statement of Facts which the Appellant admitted to in the District Court (“the SOF”) are as follows:

…

2 On 21st December 2011 at about 6.36 a.m., acting on the information received, the accused [ie, the Appellant] was stopped by [officers from the Immigration and Checkpoints Authority] when detected at the car arrival green channel. The accused was travelling in a motor vehicle bearing a Malaysian registration number JHY 4607 (‘the car’). He was later referred to [the Central Narcotics Bureau (“CNB”)] and CNB officers conducted a search on him. 3 Upon questioning, the accused surrendered one plastic packet containing brown granular substance, which was hidden under the driver’s seat cover. The accused also informed CNB officer that the brown granular substance was ‘Pei Hoon’ (street name for Heroin). 4 The accused was placed under arrest, and the exhibit was thereafter seized and marked as ‘ABK-A1’. …

…

5 On 13th February 2012, [the Health Sciences Authority] issued a certificate … stating that the exhibit marked as ‘ABK-A1’ was found to be one packet containing 0.35 gram of granular/powdery substance which was analyzed and found to contain 0.01 gram of Diamorphine.

…

7 The accused was aware that he was importing drugs into Singapore in the said vehicle.

…

In addition to the Diamorphine Charge, the Appellant was also charged with importing into Singapore, on the same occasion (ie, at or about 6.36am on 21 December 2011), one packet containing 0.05g of crystalline substance, which was analysed and found to contain methamphetamine (“the Methamphetamine Charge”).

The proceedings in the court below

On 28 May 2012, the Appellant (who was unrepresented) initially claimed trial in the court below. After noting that the Appellant had earlier indicated at a pre-trial conference that he wished to plead guilty, the senior district judge (“the SDJ”) asked him whether he had a defence to importation. The Appellant stated that he wished to plead guilty. The SDJ reminded the Appellant that he should be sure that he wished to plead guilty. The SDJ also pointed out to the Appellant that he was the only person who would know if he had a defence. The Appellant then pleaded guilty to the Diamorphine Charge and consented to the Methamphetamine Charge being taken into consideration for the purpose of sentencing.

The Appellant had no antecedents. In his oral mitigation plea, he stated that: (a) the drugs were for his own consumption; (b) his wife had passed away in 2010; and (c) he had five children and an elderly mother-in-law to support. He stated that he was remorseful and pleaded for leniency.

The Deputy Public Prosecutor (“DPP”) prosecuting the case, DPP Joshua Lai (“DPP Lai”), took issue with the Appellant’s assertion that the drugs were for his own consumption because an earlier version of the SOF had stated that the Appellant intended to deliver the drugs to someone in Singapore. Nonetheless, DPP Lai submitted that this discrepancy had no legal effect on the Appellant’s plea of guilt on the ground that personal consumption was not a defence to a charge of importation.

The SDJ sentenced the Appellant to the mandatory minimum sentence of five years’ imprisonment and five strokes of the cane. In his written grounds of decision (as reported in Public Prosecutor v Adnan bin Kadir [2012] SGDC 203), the SDJ pointed out that during his perusal of the court files, he had seen the earlier version of the SOF, which stated that the Appellant intended to deliver the diamorphine to someone in Singapore. However, he went on to hold that this was immaterial: 10 More fundamentally, irrespective of whether the drugs were meant for delivery or for his personal consumption, I did not see this having any material impact on sentence. There was no qualification of his plea of guilt to the charge of drug importation. All the necessary elements of the offence were established and admitted. In my view, the circumstances of the offence would not have warranted the imposition of a sentence beyond the prescribed mandatory minimum, given his lack of antecedents and plea of guilt at the pre-trial stage. Moreover, the quantity of drugs involved was relatively small. [emphasis added]

The hearing of this appeal on 2 August 2012

In support of his appeal against sentence, the Appellant filed a written mitigation plea dated 6 July 2012 in which he reiterated, inter alia, that the drugs were for his own consumption. He also stated that a urine test which was conducted on him on the day of his arrest (viz, 21 December 2011) had produced a positive result.

At the oral hearing on 2 August 2012, the Appellant again repeated his statement that the drugs which he brought into Singapore were intended for his own consumption. When I queried the DPP appearing in this appeal, DPP Ruth Wong (“DPP Wong”), as to whether if what the Appellant said was true, it could constitute a defence to the charge of importation, she stated that it would not. I queried her further on why, for instance, if the Appellant had been charged for trafficking in the same drugs, he would be entitled to plead as a defence that the drugs were for his own consumption, but he could not do so if he had been charged for importing the same drugs. Such an anomaly would be obvious if the drugs involved were diamorphine (as in this case) and the quantity found on him was 15.01g of diamorphine. DPP Wong’s response was that the offence of “importation” was different from trafficking in that importation as defined in the current MDA meant the act of bringing into Singapore, and that the purpose of doing so was irrelevant.

In view of this anomaly, I decided to look further into the nature of the offence of importation to satisfy myself that as a matter of law the Appellant would not be able to plead possession of the drugs for personal consumption as a defence to the charge of importation. Accordingly, I adjourned the hearing and directed DPP Wong to file written submissions on this issue for further consideration.

The written submissions

The written submissions, which were drafted by DPPs Lee Lit Cheng and Wong Woon Kwong (hereinafter referred to as “the DPPs”), reiterated that there is no defence of personal consumption to the offence of importation under s 7 of the current MDA. The purpose of the importation is only relevant as a sentencing consideration. In support of this argument, the DPPs relied on the legislative history of the current MDA and also the decisions of the courts on the meaning of importation. I shall examine first the statutory framework and its legislative history.

The statutory framework The relevant sections of the current MDA

The relevant sections of the current MDA are as follows: Interpretation 2. In this Act, unless the context otherwise requires —

…

“traffic” means — (a) to sell, give, administer, transport, send, deliver or distribute; or (b) to offer to do anything mentioned in paragraph (a),

otherwise than under the authority of this Act, and “trafficking” has a corresponding meaning;

…

PART II OFFENCES INVOLVING CONTROLLED DRUGS AND SUBSTANCES Trafficking in controlled drugs 5.—(1) Except as authorised by this Act, it shall be an offence for a person, on his own behalf or on behalf of any other person, whether or not that other person is in Singapore — (a) to traffic in a controlled drug; (b) to offer to traffic in a controlled drug; or (c) to do or offer to do any act preparatory to or for the purpose of trafficking in a controlled drug.

(2) For the purposes of this Act, a person commits the offence of trafficking in a controlled drug if he has in his possession that drug for the purpose of trafficking. Manufacture of controlled drugs 6. Except as authorised by this Act, it shall be an offence for a person to manufacture a controlled drug. Import and export of controlled drugs 7. Except as authorised by this Act, it shall be an offence for a person to import into or export from Singapore a controlled drug. Possession and consumption of controlled drugs 8. Except as authorised by this Act, it shall be an offence for a person to — (a) have in his possession a controlled drug; or (b) smoke, administer to himself or otherwise consume — (i) a controlled drug, other than a specified drug; or (ii) a specified drug.

…

PART III EVIDENCE, ENFORCEMENT AND PUNISHMENT ...

Presumption concerning trafficking 17. Any person who is proved to have had in his possession more than —

...

(c) 2 grammes of diamorphine;

...

… shall be presumed to have had that drug in possession for the purpose of trafficking unless it is proved that his possession of that drug was not for that purpose.

It can be seen from the above provisions...