Azman bin Mohamed Sanwan v PP

• Judgment Date: 06 March 2012
• Date: 06 March 2012
• Docket Number: Criminal Appeal No 14 of 2010
• Court: Court of Appeal (Singapore)

Azman bin Mohamed Sanwan

Plaintiff

and

Public Prosecutor

Defendant

[2012] SGCA 19

Chan Sek Keong CJ

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Criminal Appeal No 14 of 2010

Court of Appeal

Criminal Law—Statutory offences—Misuse of Drugs Act (Cap 185, 2001 Rev Ed)—Presumptions of possession and knowledge—Sections 18 (2) and 21 Misuse of Drugs Act (Cap 185, 2001 Rev Ed)

Criminal Procedure and Sentencing—Statements—Admissibility—Whether appellant's self-inculpatory statements were obtained by threat, inducement or promise

The appellant (‘the Appellant’) was jointly charged and jointly tried with one Tamil Selvam (‘Tamil’) and one Balasubramaniam s/o Murugesan (‘Bala’) under the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (‘MDA (2001 Ed)’) for trafficking in a capital quantity of cannabis. At the end of the trial, the High Court judge (‘the Trial Judge’) convicted the Appellant whose self-inculpatory statements, P97 and P132, the Trial Judge found to be admissible after having conducted a voir dire for each of those statements. Tamil and Bala, on the other hand, were acquitted with no appeals arising therefrom.

On the Appellant's appeal against his conviction, the crucial issue that emerged was whether P97 and P132 were made voluntarily without any inducement, threat or promise by the investigating officer (‘the IO’) who recorded both statements in the presence of an interpreter (‘the Interpreter’) well after the Appellant had been transferred from the Central Narcotics Bureau's premises to Queenstown Remand Prison. In resisting the appeal, the Prosecution argued, inter alia, that P97 and P132 were admissible statements because the IO had not made any threat, inducement or promise as alleged by the Appellant. The Prosecution further argued that even if P97 and P132 were to be excluded, the Appellant would still fail to discharge his burden of proof in rebutting the presumptions of possession and knowledge under the MDA (2001 Ed), thereby making any setting aside of the Appellant's conviction inappropriate.

Held, allowing the appeal and setting aside the Appellant's conviction:

(1) There were serious doubts about the correctness of the Trial Judge's finding that there was no threat, inducement or promise made by the IO when P97 and P132 were obtained from the Appellant. Accordingly, P97 and P132 should not have been admitted in evidence against the Appellant at the trial: at [19] to [24] and [26].

(2) All interpreters should independently keep meticulous notes of what transpired in the course of their duties. In the present case, the Interpreter's evidence did not unequivocally support the IO's version of events at the material time: at [25].

(3) With P97 and P132 excluded, there was no direct evidence of such a degree of conclusiveness as to establish the Appellant's guilt on the criminal standard of proof. The statutory presumptions of possession and knowledge under the MDA (2001 Ed) which the Trial Judge applied against the Appellant could not be invoked to fill up the gaps in the evidence against the Appellant because, without the evidence contained in P97 and P132, the Prosecution's case against the Appellant was no different from that against Tamil and Bala, both of whom had been acquitted by the Trial Judge with no appeals by the Prosecution therefrom: at [28] to [35].

PP v Azman bin Mohamed Sanwan [2010] SGHC 196 (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 122

Criminal Procedure Code 2010 (Act 15 of 2010)

Evidence Act (CaP97, 1997 Rev Ed) ss 17 (2) , 24

Misuse of Drugs Act (Cap 185, 2001 Rev Ed) ss 18 (2) , 21; ss 5 (1) (a) , 5 (2) , 18 (1)

Amolat Singh (Amolat & Partners) and Joseph Tan Chin Aik (DSCT Law Corporation LLC) (both assigned) for the appellant

Chay Yuen Fatt and Toh Shin Hao (Attorney-General's Chambers) for the respondent.

Judgment reserved.

V K Rajah JA

(delivering the judgment of the court):

Introduction

1 This is an appeal brought by Azman bin Mohamed Sanwan (‘the Appellant’) against the decision of a High Court judge (‘the Trial Judge’) convicting him of a capital charge brought under the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (‘the MDA (2001 Ed)’) while acquitting his two co-accused, namely, Tamil Salvem (‘Tamil’) and Balasubramaniam s/o Murugesan (‘Bala’), of the same capital charge (see Public Prosecutor v Azman bin Mohamed Sanwan [2010] SGHC 196 (‘the Judgment’)) (the offence which the Appellant was charged with was allegedly committed on 28 April 2007, before the current version of the Misuse of Drugs Act (ie, the Misuse of Drugs Act (Cap 185, 2008 Rev Ed)) came into force). That charge reads as follows:

YOU ARE CHARGED at the instance of the Attorney-General as Public Prosecutor and the charges against you are:

That you, 1) AZMAN BIN MOHAMED SANWAN

2) TAMIL SALVEM

3) BALASUBRAMANIAM S/O MURUGESAN

on the 28 thday of April 2007 at or about 8.20 a.m., at the carpark in front of Block 108 Yishun Ring Road, Singapore, in furtherance of the common intention of the three of you, did traffic in a controlled drug specified as a Class'A' Controlled Drug listed in the First Schedule to the Misuse of Drugs Act (Chapter 185), to wit, by having in your possession for the purpose of trafficking, 1525.7 grams of cannabis, in motor vehicle bearing the registration number SGT 809 X, without any authorisation under the said Act or the regulations made thereunder, and you have thereby committed an offence under section 5 (1) (a) read with section 5 (2) of the Misuse of Drugs Act, read with section 34 of the Penal Code, Chapter 224, and punishable under section 33 of the Misuse of Drugs Act.

[emphasis in original in bold]

2 Having heard the submissions for the appeal, we reserved judgment and now deliver our judgment.

The background facts

3 The arrest of the Appellant, Tamil and Bala was made on 28 April 2007 at the car park in front of Block 108 Yishun Ring Road (‘the Yishun car park’). The Appellant, Tamil and Bala were friends. At the time of the arrest, the Appellant was running an operation of collecting carton boxes at Tekka Market for a living, while Bala was operating a shop in the same vicinity. Tamil had been released from a Singapore prison almost a year earlier and had no settled occupation.

4 On 27 April 2007, the Appellant, Tamil and Bala, together with three other friends (viz, Sundrammurthy s/o Vellasamy (‘Sundrammurthy’), Sundrammurthy's brother, Kumaran s/o Vellasamy (‘Kumaran’), and Kumaranathan s/o Silvasamy (‘Kumar’)), met in Johor Bahru for a night of drinks and karaoke. Their means of transport from Singapore to Johor Bahru for the night out were two motor vehicles: a blue Mitsubishi Lancer motor car bearing vehicle registration number SGT 809 X rented by the Appellant one month before his arrest, and a black Honda Civic motor car bearing vehicle registration number SCQ 143 X owned by Sundrammurthy. According to the Appellant, all six persons stayed at a karaoke lounge in Johor Bahru until around 6.30 am the following morning (ie, the morning of 28 April 2007). All six persons returned to Singapore at around 7.25 am that same morning in the two said cars without any incident at the Singapore customs checkpoint. At the time, the Appellant was driving SGT 809 X(with Bala and Tamil as passengers), while Sundrammurthy was driving SCQ 143 X (with Kumaran and Kumar as passengers).

5 Upon returning to Singapore on 28 April 2007, the drivers of the two cars drove directly to the Yishun car park. Upon reaching the Yishun car park at around 7.55 am, Sundrammurthy handed the keys to SCQ 143 X over to Tamil, who, according to the Appellant, had borrowed SCQ 143 X from Sundrammurthy. Sundrammurthy, Kumaran and Kumar were then given a lift in SGT 809 X by the Appellant and dropped off at a nearby main road. Bala was also present in SGT 809 X during the drop-off. Tamil alone stayed behind at the Yishun car park while the drop-off was taking place.

6 The events that followed were observed by several Central Narcotics Bureau (‘CNB’) officers (‘the CNB surveillance officers’), who had secretly been keeping the party under surveillance from the time the two cars entered Singapore on the morning of 28 April 2007. The Appellant and Bala returned to the Yishun car park in SGT 809 X after Sundrammurthy, Kumaran and Kumar were dropped off at the nearby main road. Upon their return, both SGT 809 X and SCQ 143 X were shifted such that they were parked next to each other at the Yishun car park. The Appellant, Tamil and Bala then remained in close proximity of the two cars for some time, during which the Appellant was seen revving up the engine of SCQ 143 X several times. The CNB surveillance officers testified that smoke appeared to have been emitted from the exhaust pipe of SCQ 143 X while the Appellant was revving up the engine. Thereafter, the Appellant joined Tamil and Bala at the rear of SCQ 143 X. All three persons were seen meddling with the boot and the rear bumper of SCQ 143 X where the smoke-emitting exhaust pipe was situated. The Appellant was then observed moving over to SGT 809 X, opening its boot, taking out a blue paper bag and bringing the paper bag to the rear of SCQ 143 X. The three men continued meddling with the rear bumper of SCQ 143 X. A while later, Bala was seen retrieving from the underside of the rear bumper of SCQ 143 X what appeared to be a dark-coloured bundle. Shortly thereafter, all three men stood up and the Appellant was observed carrying a blue paper bag similar to the one he had earlier taken out from the boot of SGT 809 X. He brought the bag to SGT 809 X and closed the boots of both cars. The Appellant then hugged Tamil and Bala in turn before entering SGT 809 X alone. At that point, the CNB surveillance officers moved in and arrested all three men.

7 After the arrest was made, the boot of SGT 809 X was opened and a blue paper bag was found lying...