Aziz bin Abdul Kadir v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 06 May 1999
• Neutral Citation: [1999] SGCA 33
• Docket Number: Criminal Appeal No 4 of 1999
• Date: 06 May 1999
• Year: 1999
• Published date: 19 September 2003
• Plaintiff Counsel: P Suppiah (P Suppiah & Co) and Faizal Wahyuni (Faizal Wahyuni & Co)
• Citation: [1999] SGCA 33
• Defendant Counsel: Lee Sing Lit (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: Charge,Acquittal of one accused,Joint charge of trafficking with common intention,ss17 & 21 Misuse of Drugs Act (Cap 185),Whether conviction of the other accused proper,Criminal Procedure and Sentencing,Statutory offences,Joint charge not amended,Misused of Drugs Act (Cap 185),Trafficking,Whether acquittal of one accused is prejudicial to the other accused,Criminal Law,Whether presumption under s17 rebutted,Whether s 21 can be utilised to establish possession under s 17,Controlled drugs

Judgment:

KARTHIGESU JA

(delivering the grounds of judgment of the court): This was an appeal against the conviction of the appellant for trafficking in controlled drugs by having in his possession on 5 June 1998, for the purpose of trafficking, 4,872.7g of cannabis and 5,678.12g of cannabis mixture. These are offences under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 1993 Ed) (`the Act`). We heard his appeal on 5 April 1999 and dismissed it. These are our reasons.

2.The appellant (Aziz) was jointly charged with one Raseed bin Ghouse (Raseed) for the above offences pursuant to their common intention to traffic in controlled drugs. At the end of the trial, Raseed was acquitted and discharged on the basis that neither the requisite possession nor common intention to traffic were proven against him beyond a reasonable doubt. The prosecution did not appeal against his acquittal. It is necessary, however, to review all the evidence below by reason of the arguments raised before us by Aziz`s counsel.

3. The prosecution`s case

On 5 June 1998, officers of the Central Narcotics Bureau (CNB) began their surveillance of Aziz and Raseed after a briefing by ASP Lai Chin Fatt at about 5pm. Thereafter, the officers proceeded to their respective assigned positions to track both suspects` movements. Sergeant David Ng (Sgt Ng), Corporal Jordan Lim (Cpl Jordan) and Corporal Kassim bin Karim (Cpl Kassim) were directed to proceed to Blk 135, Bedok North Avenue 3 and keep a look out for Raseed. Sergeant Chew Swee Leong (Sgt Chew), Sergeant Goh Teck Hock (Sgt Goh), Sergeant Paul Tan (Sgt Tan) and Staff Sergeant Daniel Lim (Ssg Lim) proceeded to Blk 1024 Eunos Avenue 3 to look for the appellant`s taxi, SHA 7058M (the taxi). These officers trailed the taxi at different stages throughout the evening of 5 June 1998.

4.At about 6pm, Raseed was seen boarding the taxi along Bedok North Avenue 3. The taxi was driven by Aziz while Raseed sat at the front passenger seat. The taxi proceeded to Blk 1024 Eunos Avenue 3, where Aziz got out and stood by the taxi while Raseed remained seated inside. Sgt Ng, Cpl Jordan (in a staff car) and Cpl Kassim (on motorcycle) waited in the vicinity. At about 6.30pm, the taxi drove past both CNB vehicles and the trail continued.

5.At 7pm, Aziz and Raseed arrived and parked at Palmer Road. Sgt Ng and Cpl Jordan saw the appellant leave his taxi and walk towards Keramat Habib Nor Mosque at Palmer Road. Cpl Kassim saw Raseed leave the taxi and head towards the Malayan Credit Building. Both suspects returned to the taxi at 7.10pm and had a conversation. At 7.30pm, they boarded the taxi and left.

6.They were followed to Bendemeer Road. An Indian man was seen boarding the taxi and sitting behind the driver`s seat. The taxi travelled a short distance and entered a car park. The Indian man emerged from the taxi a short while later carrying a small white plastic bag about the size of a video tape. The taxi moved on with Aziz still driving and Raseed in the front passenger seat.

7.At 8.20pm, the taxi arrived at Serangoon Road where the suspects had drinks at Yasin Eating House. They then proceeded to Blk 57, New Upper Changi Road. Aziz spoke to a Malay man at the void deck of the block while Raseed walked to a nearby shop. The CNB officers did not notice anything else happening. The two suspects returned to the taxi at 9.15pm and then drove to Jalan Kubor, arriving at about 9.35pm.

8.The taxi was parked along Jalan Kubor and both suspects alighted. Aziz walked to the Sultan Mosque at North Bridge Road and Raseed made his way to a back lane between Jalan Kubor and Jalan Kledek. The CNB officers lost sight of Raseed. A short while later, Ssg Lim and Cpl Jordan saw them return to the taxi, have a conversation before walking to Delight Food Galleria for drinks.

9.Raseed and the appellant left Delight Food Galleria at about 10.15pm. Cpl Jordan observed them walking into a back lane off Jalan Kubor, but did not see their destination. They emerged at 10.55pm. Raseed was empty handed, while Aziz walked behind him carrying a dark coloured bag, which he placed in the boot of the taxi. Cpl Jordan identified this as P101, a blue `Admiral` bag (the blue bag). The suspects then drove a short distance to North Bridge Road where Raseed alighted in front of the Al Azhar Coffee Shop. Aziz reversed the taxi into Jalan Pinang and parked before joining Raseed.

10.Meanwhile, Sgt Goh and Sgt Tan had positioned themselves at Jalan Pinang. They observed Aziz park the taxi along Jalan Pinang. At about 11.10pm, they saw Aziz return to the taxi, open the boot and arrange some things. The officers were standing behind their own car parked some 15m behind the taxi along Jalan Pinang. After about 15 minutes, Aziz closed the boot and returned to the coffee shop. At 11.40pm, Aziz and Raseed returned to the taxi and drove off. They were then arrested at the junction of Kallang Road and Lavender Street at 11.45pm by Sgt Chew, Sgt Ng, Cpl Kassim and Cpl Jordan. Ssg Lim and Sgt Goh were also at the scene of arrest.

11.Aziz was escorted to the rear of the taxi and questioned by Ssg Lim, with Cpl Kassim acting as interpreter. The following questions and answers were recorded by Ssg Lim and Aziz appended his signature to the piece of paper:

Q: What is inside?

A: Barang [things].

Q: Apa barang ? [What barang?]

A: Barang salah [Illegal things].

Q: How much?

A: Tengok sendiri [see for yourself].

Q: Where?

A: Dalam [inside].

Pointed to the bag.

Open bag.

Q: What is inside?

A: Barang .

12.Ssg Lim testified that Aziz gestured to a black `USA IZZI Collection` bag (the black bag). The black bag contained a few bundles wrapped in aluminium foil. Based on his 18 years` of experience in the line, Ssg Lim stated that `barang` was understood in the context to mean drugs and `barang salah` meant illegal drugs.

13.Later at about 12.50am, a party of CNB officers led by Inspector Jason Tan (Insp Tan) arrived. Insp Tan further questioned Aziz as follows (translated from Malay):

Q: What is inside the boot?

A: I don`t know.

Q: Whose bag is that? (pointing to the dark coloured bag in the boot).

A: That Indian fellow. I don`t know who he is.

Q: What is inside the bag?

A: Barang salah .

14.After the arrest, Aziz and Raseed were brought back to Jalan Kubor where the CNB officers raided No 2 Jalan Kledek and arrested three persons found in the house. Nothing turned on these three persons nor the raid at Jalan Kledek. None of the prosecution`s witnesses actually saw either Aziz or Raseed enter a house along Jalan Kledek or Jalan Kubor.

15.A search of the taxi at 5.35am on 6 June 1998 by Sgt Tai Kwong Yong and Sgt Patrick Phoa in the presence of Aziz and Raseed uncovered 15 packages of what were later certified as cannabis or cannabis mixture. Six packages were in the black bag, three were in a large plastic bag and six were stacked in pairs at the back of the right end of the boot.

16.After this, Aziz and Raseed were searched by ASP Paschal Reibeira (ASP Reibeira), the investigating officer. The following items, inter alia, were found on Aziz: cash in the sum of S$1,339, $14 in Brunei currency, a handphone, a pager and a calculator. Raseed was found with, inter alia, cash in the sum of $4,589, a fake Rolex watch, a Seiko watch, one house key and a pager on his person.

17.On 11 June 1998, a more thorough search was made of the taxi by ASP Reibeira. He found more cannabis hidden in the boot, in crevices inside the boot and on the right side of the driver`s seat. A green weighing scale, a chopper, a knife, a hammer and a pair of scissors were also found in the boot while two paper cutters, a pair of scissors and empty transparent plastic sachets were found in the side pouch of the driver`s door.

18.Aziz was questioned on 11 June 1998 about the additional cannabis and items found. He denied that the drug exhibits were his. He said they belonged to the Indian man he picked up in his taxi, who carried one shoulder bag and one plastic bag which the Indian man put into the boot. Raseed said he did not know anything about the drug exhibits and items seized.

19.A Department of Scientific Services (DSS) officer analysed all the vegetable matter seized (P80, P84, P86 to P92), save for four packages, in accordance with DSS laboratory protocol. These four packages were not included in the overall weight of the subject matter of the two joint charges. The officer found that the vegetable matter analysed contained 4,872.7g of cannabis and 5,678.12g of cannabis mixture. In addition, some of the drug trafficking paraphernalia, namely the green weighing scale (P93), one chopper and one knife (collectively P94) and two cutters (P98) were stained with tetrahydracannabinol and cannabinol. The two cutters were found in the driver`s door pouch while the rest were found in the boot. The officer`s findings were not challenged by both defence counsel below.

20. Cautioned statements from Aziz and Raseed

The prosecution adduced the cautioned statements of both Aziz and Raseed. In his statement made on 6 June 1998, Aziz claimed that the black bag and a plastic bag were placed in the boot by an Indian passenger whom he picked up somewhere near Serangoon Road and Desker Road. This passenger alighted along Victoria Street at Jalan Kubor but left the bags in the boot. Aziz said he then parked his car at Jalan Kubor and proceeded to Sultan Mosque for prayers. When he returned, he remembered the bags left in the boot, so he pushed the two bags towards the inner compartments of the boot to make space for other things. He then went for coffee at Jalan Pisang when Raseed approached him and asked him for a ride to Bedok.

21.In his cautioned statement, Raseed said that he was having his coffee at a coffee shop in front of Sultan Mosque when he saw a taxi driver going to a taxi. He approached the driver and asked to be taken to Bedok. He then recounted the...