Ali bin Mohamad Bahashwan v PP

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Andrew Phang Boon Leong JA,Judith Prakash JA
• Judgment Date: 05 March 2018
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeals Nos 33, 34 and 35 of 2016
• Date: 05 March 2018

Ali bin Mohamad Bahashwan

and

Public Prosecutor and other appeals

[2018] SGCA 13

Sundaresh Menon CJ, Andrew Phang Boon Leong JA and Judith Prakash JA

Criminal Appeals Nos 33, 34 and 35 of 2016

Court of Appeal

Criminal Law — Abetment — Whether conduct other than that of main offender which was inevitably incidence of main offence automatically attracted accessory liability — Section 107 Penal Code (Cap 224, 2008 Rev Ed) — Section 12 Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal Law — Statutory offences — Misuse of Drugs Act (Cap 185, 2008 Rev Ed) — Man instigating flatmate to collect bundle of heroin — Whether claim that he intended to consume portion of drugs was in principle valid defence against charge of abetting flatmate to traffic in drugs — Whether amount of heroin he and his flatmate jointly intended to consume might in principle take amount of heroin they were each charged for trafficking in below amount warranting capital punishment — Sections 5, 5(1)(a), 12 and 17 Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal Procedure and Sentencing — Charge — Effect of omissions — Trafficking charges failing to state that offending drugs were intended to be delivered to someone — Whether charges were defective — Section 127 Criminal Procedure Code (Cap 68, 2012 Rev Ed)

Statutory Interpretation — Construction of statute — Whether s 12 Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the Act”) made abettor liable to be punished as if he had committed offence under the Act which he as principal could not by terms of that offence have committed — Section 12 Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Held, dismissing the appeals:

(1) Selamat's charge was not defective. Although it did not specify the person to whom Selamat was alleged to have transported the bundle, that was not a material omission under s 127 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) because it was clear to Selamat that he was being accused of having intended to give the bundle to Ali. That is why he and Selamat advanced a personal consumption defence. It was also implicit that the word “transporting” in the charge meant, in this context, parting with possession of the drugs to another person: at [27] to [29].

(2) Ali's charge was not defective. Although the charge could have stated expressly that Ali had instigated Selamat to take the drugs to someone, Ali was left with no doubt as to the substance of the charge he was facing, which was again evidenced by his seeking to advance a personal consumption defence jointly with Selamat: at [30].

(3) The rule in Liew Zheng Yang was endorsed. A person incurred no criminal liability under s 5 read with s 12 of the MDA for abetting another to traffic in drugs to himself if the drugs were intended for his own consumption. Such a person might be referred to as a “consuming-recipient”. He would be so liable only if the Prosecution was able to prove beyond a reasonable doubt that he himself intended to traffic in the offending drugs. That part of the Court of Appeal's decision in Chan Heng Kong v PP[2012] SGCA 18 which held otherwise should no longer be followed: at [3], [75] and [82].

(4) The rule would operate as follows. If there was evidence that the accused was the intended recipient of the drugs which he had been charged with abetting another to traffic in, then the Prosecution had the burden of proving beyond a reasonable doubt that he intended to traffic in those drugs. In so far as he attempted to say that the drugs were for his own consumption, that attempt would go towards raising a reasonable doubt as to whether he intended to traffic in the drugs. But if there was no evidence that he was the intended recipient, or if he was not alleged by the Prosecution so to be, or if he denied being such, there would be no reasonable doubt that he was not a consuming-recipient. And it was possible for a person to be a consuming-recipient in respect of a portion of the offending drugs and also to have an intention to traffic in the remaining portion: at [76] and [77].

(5) The MDA's policy of differentiating between traffickers and mere addicts entailed the rule in Liew Zheng YangENR on a proper understanding of two interrelated dimensions of the offence of abetting another to traffic in drugs. First, the question whether s 12 of the MDA was effective to make an abettor liable to be punished as if he had committed an offence under the MDA which he as principal could not, by the very terms of that offence, have committed, had to be answered by having regard to the policy of the MDA. Second, there was a principle that the legislative policy behind a primary offence had to inform and indeed exclude, in the appropriate case, the application to that offence of the rules on accessory liability: at [35], [39], [47] and [49].

(6) The principle that the legislative policy behind a primary offence had to inform the application to it of the rules of accessory liability was essentially a specialised principle of statutory interpretation derived from the English case of R v TyrrellELR[1894] 1 QB 710, which held that a victim was exempt from being an accessory to a statutory offence committed against him. This principle extended to persons to whom the legislature did not intend to make liable for committing the statutory offence in question. Such intent was to be inferred principally by asking whether and, if so, how the legislature intended to criminalise conduct which was inevitably incidental to the offence. The intended receipt of drugs constituted such conduct in relation to the offence of drug trafficking, and in so far as the recipient participated in the trafficker's offence, it was reasonable to ask how Parliament intended to treat him by looking at the policy of the statute creating that offence, that is, the MDA: at [49], [51], [53], [55] to [58], [62] and [63].

(7) The differential treatment of traffickers and mere addicts was a clear and well-established policy of the MDA. As was evident from relevant ministerial statements, the distinction was premised on the MDA's provision for more severe penalties for the offence of trafficking than for the offences of possession and consumption, and for an addict's treatment and rehabilitation. That distinction in the MDA's policy was capable of affecting the elements of the offences of trafficking and abetment of trafficking because there was no evidence of legislative intention to the contrary in that context, unlike in the context of the offence of importation: at [35], [66], [67], [73] and [74].

(8) The Judge made two errors in asking whether, taking into account the amount of heroin Ali and Selamat jointly intended to consume, they had proved on a balance of probabilities that less than 15g of the 21.12g of heroin in the bundle was for sale and had therefore rebutted the presumption of trafficking under s 17(c) of the MDA. First, Ali could not be presumed under s 17 of the MDA to have intended to traffic in the heroin in the bundle because Ali never came into possession of the bundle, such possession being necessary to trigger that presumption. Second, there was no such thing in law as a joint personal consumption defence: at [3], [86], [87], [95] and [98].

(9) Each accused person had to be treated individually and independently for the purpose of the charge which had been brought against him. Therefore, the amount that Ali intended to consume could not be credited to Selamat, and vice versa, for the purpose of either of their attempts to establish that the portion of the heroin intended for personal consumption took its total quantity below the capital amount. In any event, there was no factual basis for the idea that Ali and Selamat jointly intended to consume half the heroin in the bundle. It was Ali who paid for and had full ownership over the heroin in the bundle. Selamat had only a mere expectation to receive some amount of heroin from Ali in exchange for making drug deliveries: at [3] and [98] to [100].

(10) There was no reasonable doubt that Ali intended to traffic in the bulk of the heroin in the bundle in so far as he intended (a) to sell at least half the bundle for profit and (b) to give a substantial portion of the remaining heroin to Selamat. As for Selamat, he failed to rebut the presumption of trafficking under s 17 of the MDA because he had the intention to transport the bundle to Ali. His contention that he made the delivery simply to obtain drugs in return from Ali simply meant that he was a courier. In any event, the assertion that half the bundle was intended to be consumed by them was incredible because it did not match their own evidence on their rate of consumption and the number of days the supply was meant for: at [99], [101] and [105].

(11) Ragunath was unable to rebut the presumption under s 18(2) of the MDA that he knew that the bundle contained heroin because various material inconsistencies in his evidence strongly suggested that he had been less than truthful and that his account of being under the impression that he was helping a friend deliver a bundle of medicine was unbelievable: at [128] to [138].

[Observation: In an exceptional case, the facts might warrant a finding that the co-accused persons were operating as a joint-entity, such as where they both paid for the drugs, which jointly belonged to them, and they jointly intended to consume all of the offending drugs: at [98].]

Case(s) referred to

Adnan bin Kadir v PP [2013] 1 SLR 276 (refd)

AG's Reference (No 53 of 2013); R v Wilson [2013] EWCA Crim 2544 (refd)

Bachoo Mohan Singh v PP [2010] 4 SLR 137 (folld)

Chan Heng Kong v PP [2012] SGCA 18 (overd)*

Club 35, LLC v Borough of Sayreville (2011) 420 NJ Super 231 (refd)

Harven a/l Segar v PP [2017] 1 SLR 771 (refd)

Lee Ngin Kiat v PP [1993] 1 SLR(R) 695; [1993] 2 SLR 511 (folld)

Liew Zheng Yang v PP [2017] 5 SLR 611 (folld)

Lim Lye Huat Benny v PP [1995] 3 SLR(R) 689; [1996] 1 SLR 253 (folld)

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