Adri Anton Kalangie v Public Prosecutor

• Judge: Sundaresh Menon CJ
• Judgment Date: 16 July 2018
• Neutral Citation: [2018] SGCA 40
• Citation: [2018] SGCA 40
• Defendant Counsel: April Phang, Chan Yi Cheng and Lim Shin Hui (Attorney-General's Chambers)
• Published date: 19 July 2018
• Hearing Date: 23 March 2018
• Plaintiff Counsel: Appellant in person
• Date: 16 July 2018
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeal No 34 of 2017
• Subject Matter: Criminal Procedure and Sentencing,Statutory offences,Misuse of Drugs Act,Prospective overruling,Criminal law,Sentencing

Sundaresh Menon CJ (delivering the grounds of decision of the court): Introduction

The accused in the present case was arrested at Changi Airport in March 2016 and found to be in possession of methamphetamine which he had brought into Singapore from Guangzhou, China. He was charged with one count of importation of not less than 249.99g of methamphetamine under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). Subsequently, in April 2017, we released our decision in Suventher Shanmugam v Public Prosecutor [2017] 2 SLR 115 (“Suventher”), in which we laid down a sentencing framework for the offence of importation of cannabis in any quantity between 330g and 500g under s 7 of the MDA. In July 2017, the accused pleaded guilty and was then sentenced on the basis of a sentencing framework which was adapted from Suventher for use in the context of the importation of methamphetamine.

The accused appealed against the sentence that was imposed. One of issues presented in the appeal was whether the doctrine of prospective overruling applied such that the pre-Suventher sentencing benchmark and precedents should have been applied instead. In our judgment, the answer was “no” – the doctrine did not apply in the present case and the basis on which the accused was sentenced, namely, by reference to an analytical framework extrapolated from Suventher, was unimpeachable. In the circumstances, we dismissed the appeal. We now provide the grounds of our decision and take the opportunity to clarify the operation of the doctrine of prospective overruling, particularly in relation to judgments establishing or clarifying sentencing frameworks and guidelines. For ease of reference, we will refer to such judgments as “sentencing guideline judgments”.

The admitted facts Background

The accused, Adri Anton Kalangie (“the Accused”), was a 41-year-old male Indonesian citizen at the time of the offence in March 2016.

In 2008, the Accused was introduced to a Nigerian man known to him as “Frank”. The Accused was told that Frank could help him find a job, but nothing came out of their meetings at that time.

Some years later in 2013, Frank called the Accused and offered him a job at a trading company in China. The Accused flew to Guangzhou on a fully-paid flight and then learnt that Frank was in fact a drug syndicate leader in the business of transporting drugs between China and Indonesia. Frank invited the Accused to work for him and promised a remuneration of IDR$10m (around S$1,000) per delivery of drugs from China to Indonesia. Enticed by this offer of generous remuneration, the Accused agreed.

Thereafter, up to February 2016, the Accused performed six successful deliveries of methamphetamine from Guangzhou to Jakarta, four involving direct flights from Guangzhou to Jakarta and two involving flights that transited through Singapore. Before each trip, the Accused would ingest or insert into his body around 40 pellets of methamphetamine. After reaching Jakarta, he would then retrieve and deliver the pellets to the intended recipients.

Facts leading to the present offence

On 20 February 2016, the Accused left Singapore for Guangzhou in preparation for a drug delivery.

About a month later, on 17 March 2016, the Accused received 43 pellets of methamphetamine at his hotel room in Guangzhou.

On 20 March 2016, the Accused swallowed 29 of the pellets and inserted another ten pellets into his body. He also concealed one pellet in his shoe and three pellets in the pocket of his pants, over which he wore a pair of jeans.

On 21 March 2016, the Accused departed Guangzhou for Singapore, intending to transit in Singapore en route to Jakarta. However, the Accused missed his connecting flight from Singapore to Jakarta and decided to remain in the transit hall at Changi Airport in Singapore.

On 23 March 2016, at about 5.30am, a customer service officer (“the CSO”) approached the Accused in the transit hall. When he was asked whether he was drunk, the Accused claimed that a child had purchased alcohol for him. The CSO informed him that a child would not be allowed to do so under Singapore law. Upon hearing that, the Accused cried and apologised repeatedly, saying in Bahasa Indonesia, “I know I’m wrong”, “I am afraid to be beaten”, and “don’t beat me up”.

The CSO inquired into the circumstances of the Accused and then escorted him first to the transit counter where he was issued a new departure ticket for Jakarta, and thereafter to the relevant departure gate for the flight. On the way to the gate, the Accused repeated the above-mentioned utterances in louder tones and continued crying. Just as they reached the gate, the Accused pulled the CSO to one side and admitted that he was in the wrong. On questioning, the Accused admitted that he was in possession of drugs and pointed to his shoe and stomach when asked where the drugs were. The CSO called for assistance and the Accused was arrested and sent to a nearby hospital for a medical examination.

It appeared that the Accused had acted in this strange manner because he thought that there had been some leakage of the pellets in his body, although a urine test that was administered turned out negative for controlled drugs. An X-ray taken at the hospital also showed no obvious leakage or rupture of the pellets.

Subsequently, a search was conducted on the Accused. Three pellets were recovered from the pocket of his pants and one pellet from his left shoe. Between 23 March 2016 and 4 April 2016, the Accused excreted a total of 39 pellets, which were seized by officers of the Central Narcotics Bureau (“CNB”). In total, 43 pellets were recovered from the Accused. These were sent to the Health Sciences Authority (“HSA”) for examination and found to contain not less than 275.44g of methamphetamine. The street price for the 43 pellets of methamphetamine was estimated to be around S$62,495.

According to the Accused, his objective was to bring the drugs from Guangzhou to Jakarta. He was promised IDR$16m (around S$1,648) for this delivery. He admitted that he knew the pellets contained methamphetamine. He also admitted to having knowingly imported methamphetamine into Singapore, which he was not authorised under the MDA or the regulations thereunder to do.

The proceedings below

The Accused was represented by counsel in the proceedings below. On 17 July 2017, the Accused pleaded guilty to one count of importation of 43 pellets containing not less than 249.99g of methamphetamine under s 7 of the MDA, punishable under s 33(1) of the same Act. Sentencing submissions were heard on the same day.

The Prosecution’s submissions on sentence

The Prosecution sought a sentence of at least 27 years’ imprisonment and 15 strokes of the cane, relying on the following arguments: Suventher had laid down the sentencing framework for the offence of importation of cannabis in quantities ranging from 330g to 500g of cannabis. This framework should be extrapolated to derive a similar table of indicative starting sentences for the offence of importation of methamphetamine in quantities ranging from 167g to 250g as follows:

Sentencing band	Quantity of cannabis (based on Suventher)	Quantity of methamphetamine (proposed)	Imprisonment (years)	Caning
1	330–380g	167.00–192.99g	20–22	15 strokes
2	381–430g	193.00–216.99g	23–25
3	431–500g	217.00–250.00g	26–29

Based on the table and the quantity of methamphetamine that the Accused had been charged with importing, namely, 249.99g, the appropriate starting custodial sentence was between 26 and 29 years’ imprisonment, in addition to 15 strokes of the cane. The Prosecution also highlighted several aggravating factors: the drugs delivered were worth more than S$60,000; given his conduct in the transit hall and the relatively large payments that he accepted for the deliveries, the Accused was clearly aware of the risk he was taking in making the deliveries; the Accused had taken active steps to evade detection. The submissions of the Defence

The Defence submitted that a sentence of no more than 20 to 23 years’ imprisonment and 15 strokes of the cane was appropriate on the basis of the following submissions: A number of mitigating factors were in play: The Accused had stumbled upon the drug syndicate while looking for a proper job. He was not someone who had set out to be involved with drug deliveries. The drugs concerned were not meant to be delivered to persons in Singapore and therefore its social harm would not be felt in Singapore. It was fortuitous that the Accused happened to be in Singapore on the occasion of his arrest. The Accused was made use of by the syndicate as a drug mule. This explained the “very cruel” fact that he was made to ingest and insert drug pellets into his body. The Accused had rendered the fullest assistance to the authorities from the outset by providing the contact details of Frank and other critical information. While the Accused had made six previous deliveries, insofar as the present charge was concerned, it was the sole offence that he was being sentenced for and he should be considered a first time offender. Given that the present offence was committed prior to the release of the decision in Suventher, the sentence should be calibrated downwards from that which would have been derived from the sentencing framework laid down in Suventher. In any event, in Suventher, the Court of Appeal did not disturb the sentence imposed by the trial judge of 23 years’ imprisonment and 15 strokes of the cane, even though the quantum of drugs involved was at the very top end of the range (that is, 499.9g of cannabis) and would by the Suventher framework have warranted between 26 and 29 years’ imprisonment. The precedents cited by the Prosecution could be factually distinguished.

The decision below ...