Azman bin Mohamed Sanwan v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 06 March 2012
• Neutral Citation: [2012] SGCA 19
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeal No 14 of 2010
• Published date: 13 March 2012
• Year: 2012
• Hearing Date: 04 March 2011
• Plaintiff Counsel: Amolat Singh (Amolat & Partners) and Joseph Tan Chin Aik (DSCT Law Corporation LLC) (both assigned)
• Defendant Counsel: Chay Yuen Fatt and Toh Shin Hao (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Evidence
• Citation: [2012] SGCA 19

V K Rajah JA (delivering the judgment of the court): Introduction

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)¹ (“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 and others [2010] SGHC 196 (“the Judgment”)). That charge reads as follows:²

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 28th day 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 809X, 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 bold in original]

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

The background facts

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.

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,³ and a black Honda Civic motor car bearing vehicle registration number SCQ 143 X owned by Sundrammurthy.⁴ According to the Appellant, all six persons stayed at a karaoke lounge in Johor Bahru until around 6.30am the following morning (ie, the morning of 28 April 2007). All six persons returned to Singapore at around 7.25am that same morning⁵ 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).

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 7.55am, Sundrammurthy handed the keys to SCQ 143 X over to Tamil, who, according to the Appellant, had borrowed SCQ 143 X from Sundrammurthy.⁶ 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.

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.

After the arrest was made, the boot of SGT 809 X was opened and a blue paper bag was found lying inside. Inside the blue paper bag were two bundles – one bigger than the other – covered in black plastic wrapping. The contents of the two bundles were sent for analysis at the Health Sciences Authority (“the HSA”), and the larger bundle was found to contain 1,525.7g of cannabis. The actual contents of the smaller bundle were immaterial to the charge tried in the court below and no finding was made in relation to those contents.

The Appellant, Tamil and Bala were jointly charged with as well as jointly tried for the offence of drug trafficking under s 5(1)(a) read with s 5(2) of the MDA (2001 Ed). The trial of the three men lasted for a total of 26 days, in the course of which two voir dires, each lasting two days, were held. The voir dires concerned the admissibility of two self-inculpatory statements given by the Appellant on, respectively, 20 August 2007 and 16 October 2007 to an investigating officer, Assistant Superintendent Adam Tan (“the IO”), while being held in custody at Queenstown Remand Prison. The statement made on 20 August 2007 was marked as “P132”⁷ and that made on 16 October 2007 was marked as “P97”⁸ (it should also be noted that P97 was the last in a series of statements made by the Appellant between 30 April 2007 and 16 October 2007). The contents of P132 and P97 are reproduced below at [17] and [18] respectively.

In the voir dires, the Appellant made several serious allegations against the IO, who was the recorder of both P132 and P97. The Appellant claimed that the IO had, in an interview at the Alpha Division lock-up interview room in the Police Cantonment Complex on 9 May 2007, threatened to implicate the Appellant’s wife if the Appellant refused to co-operate with the CNB. In particular, the Appellant claimed that the IO had specifically brought up the subject of an account book seized from the Appellant’s residence during the CNB’s investigations.⁹ The account book, which bore the handwriting of the Appellant’s wife, was, by the Appellant’s own admission, used to keep records of a loan shark business which the Appellant was helping his brother-in-law, one Kannan s/o Subramaniam, with at the time.¹⁰ The Appellant claimed that the IO had warned him that with that account book, the IO “can pull my [ie, the Appellant’s] wife also”.¹¹ When asked by his counsel to explain what he meant by the phrase “pull my wife also”, the Appellant replied saying, “[the IO] claims that the content [of the account book] … can prove to the Court that my wife [was] also involved in the drugs”.¹² This threat was allegedly made again on 20 August 2007, when the IO, together with an interpreter, Sofia binte Sufri (“the Interpreter”), visited the Appellant at Queenstown Remand Prison for the purpose of serving an additional charge of trafficking in ecstasy (“the ecstasy charge”) on him.¹³ The Appellant further alleged that the IO had also promised him that he would be spared from the death penalty if he co-operated in the IO’s investigations.¹⁴ That was when the Appellant started responding to questions relating to his arrest which were put to him by the IO on 20 August 2007. The brief contents of the conversation were recorded later on that same day in the IO’s field book outside Queenstown Remand Prison, and were subsequently sought to be admitted in court by the Prosecution as P132. The Appellant further claimed that the IO again mentioned the aforesaid threat and promise on a subsequent visit on 16 October 2007, whereupon the Appellant finally caved in and made the self-inculpatory statement which was P97.¹⁵

After hearing all the evidence given and the submissions made by the parties in each voir dire, the Trial Judge ruled that P132 and P97 had not been procured by inducement, threat or promise and were thus admissible. The Trial Judge’s reasoning in respect of his decision on the admissibility of P132 is primarily found at [53]–[56] of the Judgment as follows: 53 When I reviewed the evidence, it was clear that defence counsel did not elicit any admission from [the IO] or [the Interpreter] that any...