Arun Ramesh Kumar v PP

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JCA,Steven Chong JCA,Chao Hick Tin SJ
• Judgment Date: 27 January 2022
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeal No 16 of 2021

Arun Ramesh Kumar

and

Public Prosecutor

[2022] SGCA 11

Andrew Phang Boon Leong JCA, Steven Chong JCA and Chao Hick Tin SJ

Criminal Appeal No 16 of 2021

Court of Appeal

Criminal Law — Statutory offences — Misuse of Drugs Act — Defence of “bailment” — Accused person claiming that he collected drugs on behalf of another person and was told that they would be collected from him — Whether defence was open to accused person who collected drugs — Whether defence was open to accused person who purportedly intended to return drugs via third party — Sections 2 and 17 Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Held, dismissing the appeal:

(1) As recognised by this court in Ramesh a/l Perumal v PP[2019] 1 SLR 1003 and Roshdi bin Abdullah Altway v PP[2022] 1 SLR 535, an accused person who took custody of drugs could not without more be liable for trafficking if he intended to and in fact returned them to the person who initially entrusted him with the drugs. This was because such a transfer would not necessarily form part of the process of distributing drugs to end-users, which was the principal legislative policy behind the MDA. An arrangement so described was referred to as one of “bailment” by way of shorthand, albeit that it was not concerned with the law of bailment or notions of legal entitlement or property in the drugs. It was held that where a “bailee” received drugs intending to return them to the “bailor”, the key inquiry as to whether the “bailee” was liable for trafficking, or possession for the purpose of trafficking, was if he knew or intended that the “bailment” was in some way part of the process of supply or distribution of the drugs: at [26] and [27].

(2) The manner in which the appellant came to possess the drugs took him outside of the defence of “bailment”. The appellant did not claim to have received the drugs from “Sara” but had, on his own evidence, collected them on “Sara's” behalf with the purpose of delivering to someone who would collect them from him. Where this took place, it would follow that the subject accused did possess knowledge or intention that the arrangement was part of the supply or distribution chain. Ultimately, whether or not the act of collecting or obtaining drugs on behalf of another person would enable an accused person to successfully raise the defence of “bailment” or whether on the contrary the accused would be considered to be moving those drugs towards their ultimate consumer would depend on the precise facts and circumstances: at [28] and [30].

(3) The claim by the appellant that he ought to have been asked about his intention was unmeritorious. The questions by the CNB officers did involve ascertaining his intention as regards the drugs, and he had accordingly attested to having an intention for them that did not involve returning the drugs to “Sara”: at [32].

(4) The defence of “bailment” did not ordinarily contemplate that a purported “bailee” could claim that he intended to return the drugs via a third party. Such an act would presumptively form part of the process of moving the drugs along the chain of supply and distribution, thereby coming within the definition of “traffic” in s 2 of the MDA. In any event, the appellant had knowledge of “Sara's” involvement in supplying and distributing the drugs, such that his defence of “bailment” should be rejected: at [34] and [35].

(5) The appellant's allegation against his previous counsel was unfortunate, particularly as he did not give the latter a chance to respond. The court would not look favourably on such serious allegations and would not hesitate to make adverse costs orders against those who persisted in making them without the support of strong and cogent evidence: at [36] and [37].

(6) The said allegation was also baseless and did not assist his case. Although it was not clear what aspect of his evidence the appellant claimed his counsel had permitted him to change at trial, the appellant's conviction rested on evidence he had provided of his own accord, even before the involvement of counsel, namely, his investigative statements. This evidence pointed to his actual knowledge of the drugs in question and provided no basis for rebutting the presumption of trafficking in s 17 of the MDA: at [37] and [38].

(7) There was also no basis for the appellant's appeal against sentence. In arriving at the appellant's sentence, the Judge had exercised his discretion under s 33B(1)(a) of the MDA, which stipulated life imprisonment and caning of not less than 15 strokes as an alternative to the imposition of the death penalty. The aggregate sentence of caning imposed of 24 strokes in respect of the two charges under s 5(1)(a) read with s 5(2) of the MDA on which he was convicted thus represented the mandatory minimum, and was capped pursuant to ss 328(1) and 328(6) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed). There was no scope for an alternative penalty: at [39].

Case(s) referred to

Masoud Rahimi bin Mehrzad v PP [2017] 1 SLR 257 (refd)

Moad Fadzir bin Mustaffa v PP [2019] SGCA 73 (refd)

Mohammad Farid bin Batra v PP [2020] 1 SLR 907 (folld)

Murugesan a/l Arumugam v PP [2021] SGCA 118 (refd)

Ong Ah Chuan v PP [1979–1980] SLR(R) 710; [1980–1981] SLR 48 (refd)

Ramesh a/l Perumal v PP [2019] 1 SLR 1003 (folld)

Roshdi bin Abdullah Altway v PP [2022] 1 SLR 535 (folld)

Syed Suhail bin Syed Zin v PP [2021] 2 SLR 377 (refd)

Thennarasu s/o Karupiah v PP [2022] SGCA 4 (refd)

Facts

The appellant was arrested on 3 April 2018. A key that was seized from him was used to open a drawer in his locker in a cleaners' room in Harbourfront Tower One. Three plastic bags which respectively contained four packets of methamphetamine, five packets of diamorphine and a digital weighing scale were seized. The appellant testified that he had placed all three plastic bags in the locker. He testified that he had been asked by one “Sara” to do a favour for him, in exchange for a RM1,500 loan from “Sara”. On “Sara's” instructions, he had gone to collect a plastic bag inside a dustbin at Tuas. He was told to wait for someone to collect the plastic bag from him but nobody showed up, so he thought of putting it in his workplace locker. He subsequently opened the plastic bag and saw the three plastic bags inside.

He knew that the first plastic bag contained methamphetamine, as he looked inside the bag and had previously consumed the drug. However, he testified that he was not aware of the contents of the second plastic bag which contained diamorphine. The drugs were subsequently analysed by the Health Sciences Authority and certified to contain a total of not less than 79.07g of diamorphine and 324.41g of methamphetamine.

The appellant was convicted following trial on two charges under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) of possession for the purpose of trafficking in the drugs. The trial judge (“the Judge”) found that the appellant had possession of as well as knowledge of the drugs, and that the appellant could not rebut the presumption of trafficking under s 17 of the MDA. The Judge found that the appellant was a courier and sentenced him to life imprisonment and 24 strokes of the cane.

The appellant appealed against his conviction and sentence. He argued that he intended to return the drugs to “Sara”. He submitted that: (a) the officers from the Central Narcotics Bureau (“CNB”) who had recorded certain of his investigative statements ought to have asked him about what he intended to do with the drugs; (b) his statements that someone would collect the drugs from him did not detract from an intention to return them to “Sara”, since he had obtained the information from “Sara”; (c) he had not mentioned in all his statements that, having seen the methamphetamine and the weighing scale, he intended to deliver the drugs to someone else; and (d) although he had given a different version of events at trial, this was only because his counsel had agreed and confirmed at the time that he could do so.

Legislation referred to

Criminal Procedure Code (Cap 68, 2012 Rev Ed) ss 22, 23, 328(1), 328(6)

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) ss 2, 5(1)(a), 5(2), 17, 33B(1)(a)

Appellant in person;

Dwayne Lum, Samuel YapandPavithra Ramkumar(Attorney-General's Chambers) for the respondent.

27 January 2022

Andrew Phang Boon Leong JCA (delivering the judgment of the court ex tempore):

Introdu...