Bala Murugan a/l Krishnan and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 12 July 2002
• Neutral Citation: [2002] SGCA 34
• Docket Number: Criminal Appeal No 2 of 2002
• Date: 12 July 2002
• Year: 2002
• Published date: 19 September 2003
• Plaintiff Counsel: Subhas Anandan and Anandan Nalachandran ( Harry Elias Partnership ) (both assigned)
• Citation: [2002] SGCA 34
• Defendant Counsel: Thangavelu ( Rajah Velu & Co ) and Paul Chia ( Tan Gill & Paul ) (briefed),Bala Reddy and Sia Aik Kor (Deputy Public Prosecutors)
• Court: Court of Appeal (Singapore)
• Subject Matter: s 12 Misuse of Drugs Act (Cap 185, 2001 Ed),Courts and Jurisdiction,Prosecution failing to impeach first appellant's credit,Proof of evidence,Inconsistent versions of events,Appeals,Criminal Procedure and Sentencing,Accused's inconsistent versions of events as corroboration of his guilt,Evidence,Whether appropriate for appellate court to interfere with such findings,Trafficking in controlled drugs,Whether necessary to impeach credit before accused's evidence can be disbelieved,Requisite mens rea,Accused challenging trial judge's factual findings,Impeachment,Corroboration,Whether such exoneration relieves co-accused of culpability,Statutory offences,Criminal Law,Abetment of trafficking,Misuse of Drugs Act,Weight of evidence,Relevance of exoneration by co-accused

Judgment

GROUNDS OF DECISION

Introductory

1 The appellants, Bala Murugan A/L Krishnan (‘Bala Murugan’), the first appellant, and Lim Boon Kiat (‘Lim’), the second appellant, along with one Steven Ang Keng Leong (‘Steven Ang’), were tried jointly, convicted and sentenced to the mandatory punishment of death by Judicial Commissioner Tay Yong Kwang for offences under the Misuse of Drugs Act (Cap 185).

Charges

2 The charge against Steven Ang, who did not appeal against his conviction and sentence, was that:

[he] on the 27^th day of June 2001, in a motor car bearing registration number SBQ 8587 H, along Yishun Avenue 2, Singapore, did traffic in a controlled drug specified in Class ‘A’ of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, by having in [his] possession for the purpose of trafficking 37.08 grams of diamorphine at the said place, without any authorisation under the said Act or the regulations made thereunder and [he had] thereby committed an offence under section 5(1)(a) read with section 5(2) of the Misuse of Drugs Act, Chapter 185, and punishable under section 33 of the aforesaid Act.

3 The charge against Bala Murugan was that:

[he] on the 27^th day of June 2001, sometime before 3.40 p.m., did engage with one Steven Ang Keng Leong and other unknown person(s) in a conspiracy to do a certain thing, namely, to traffic in a controlled drug specified in Class ‘A’ of the First Schedule to the Misuse of Drugs Act, Chapter 185, and in pursuance of the said conspiracy and in order to the doing of that thing, an act took place on the 27^th June 2001 at the bus stop in front of Block 289 Yishun Avenue 7, Singapore, to wit, [he] provided 37.08 grams of diamorphine to the said Steven Ang Keng Leong for the purpose of trafficking, and [he had] thereby abetted the commission of the offence of trafficking in the said drugs and committed an offence under section 5(1)(a) read with section 12 of the Misuse of Drugs Act, Chapter 185, and punishable under section 33 of the aforesaid Act.

4 The charge against Lim was that:

[he] on the 27^th day of June 2001, in a motor car bearing registration number SBQ 8587 H, along Yishun Avenue 2, Singapore, did abet one Steven Ang Keng Leong to traffic in 37.08 grams of diamorphine, a controlled drug specified in Class ‘A’ of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, by intentionally aiding the said Steven Ang Keng Leong in conveying him to Yishun in the said motor car belonging to [Lim] in order for [Steven Ang] to take possession of the said drugs for the purpose of trafficking, and [he had] thereby committed an offence under section 5(1)(a) read with section 5(2) and section 12 of the Misuse of Drugs Act, Chapter 185, and punishable under section 33 of the aforesaid Act.

Background facts

5 The background facts which gave rise to the charges and convictions can be summarised as follows.

6 At about 3.00pm on 27 June 2001, Steven Ang who was under surveillance by operatives from the Central Narcotics Bureau (‘CNB’) was observed leaving the car park of Block 12 York Hill, Singapore, in a white motor vehicle SBQ8587H driven by Lim. In the event, the surveillance team trailed the vehicle to a housing estate in Yishun.

7 Sometime after 3.20pm, Steven Ang was seen walking towards the bus stop in front of Block 289 Yishun Avenue 7. The bus stop was directly opposite the factory where Bala Murugan was working. Lim was spotted waiting in his vehicle a short distance away along Yishun Avenue 6 next to Block 289 near the junction where Yishun Avenue 6 and Yishun Avenue 7 intersect.

8 Soon after Steven Ang arrived at the bus stop, Bala Murugan was seen walking along the void deck of Block 289 towards the bus stop, carrying a haversack. When Bala Murugan reached the bus stop, he placed the haversack on the seat and sat down. Steven Ang stood close to him and they appeared to be having a short conversation. Bala Murugan then departed from the bus stop. Steven Ang picked up the haversack and made a call using his handphone. Presently, Lim drove his vehicle in the direction of the junction, turned left into Yishun Avenue 7 and stopped at the bus stop to pick up Steven Ang. Steven Ang made some hand gestures to Lim to open the boot of the vehicle. Steven Ang then placed the haversack into the boot, got into the vehicle and soon both of them were off with Lim at the wheel.

9 Bala Murugan was arrested as he was making his way across the pedestrian crossing at the junction of Yishun Avenues 6 and 7 towards his place of work. About 5 minutes later at about 3.45pm, CNB officers intercepted the vehicle, some 3.7 km away from the bus stop, and arrested both Steven Ang and Lim.

10 After the arrest of Steven Ang and Lim, the vehicle was inspected. Steven Ang informed the officers that the haversack found in the boot of the vehicle contained drugs. The seized drugs were subsequently analysed and found to contain not less than 37.08g of diamorphine.

11 Bala Murugan was first questioned by one Inspector Herman some 40 minutes after his arrest. He categorically denied any involvement with Steven Ang, claiming that he had left his workplace only to buy drinks. He also denied having handed over anything to anyone, let alone a male Chinese earlier. He maintained this story even when giving his s 122(6) statement under the Criminal Procedure Code. However, Bala Murugan somewhat changed his story in his long statement. His revised account was that on the morning of 27 June 2001, he had run into a friend and fellow Malaysian, by the name ‘Sivadas’. Bala Murugan knew Sivadas through a group which met regularly to play soccer on weekends. Sivadas, who had a haversack with him, told Bala Murugan that he wanted to pass the haversack which contained clothing to a friend and asked Bala Murugan to hold on to it for him temporarily. Bala Murugan agreed. Later that day, Sivadas called Bala Murugan on his handphone and asked him to deliver the haversack to the friend on his behalf. This friend, who turned out to be Steven Ang, made arrangements to meet Bala Murugan and they duly met at the bus stop. Bala Murugan handed the haversack over to Steven Ang and as he was returning to work, he was arrested by the CNB. He maintained that he was not aware at any stage that the haversack contained drugs.

12 Subsequently, Bala Murugan changed his story yet again, saying now that he had met Sivadas in fact on 26 June 2001 and kept the haversack at the workplace overnight before handing it over to Ang on 27 June. He admitted that he had communicated with Steven Ang on 26 June to discuss handing over the haversack. He had also attempted to call Steven Ang several more times on 27 June. When asked to explain the inconsistencies in his statements, he said that he had lied to Inspector Herman because in the 40-minute period between his arrest and Inspector Herman’s arrival, the officers holding him in custody had frightened him by accusing him of drug-trafficking, telling him he would be sentenced to death by hanging. Similarly, it was the fear of the death penalty that caused him to say in his long statement that he took custody of the haversack from Sivadas on 27 June and not 26 June.

13 As for Lim, his position which he maintained throughout was that he did not know that he was participating in an act of drug trafficking. It was not in dispute that prior to the incident, Lim was buying heroin in sachets from Steven Ang. On 27 June 2001, at about noon, Lim made an arrangement with Steven Ang to buy five sachets of heroin at the agreed price of $800. Lim arrived at Block 12 York Hill at about 3.00pm in his car. In the event, Steven Ang came to the car park where Lim was waiting and told Lim to drive him to Yishun. Lim was not told of the purpose for the trip nor did he inquire the purpose of the journey to Yishun Avenue 6. There, Steven Ang briefly left the vehicle and returned with a haversack. He requested Lim who was still at the driver’s seat to open the boot. Once it was done, Steven Ang placed the boot and closed it. Soon they drove off. Shortly afterwards, the vehicle was intercepted and both of them were arrested.

14 Lim’s testimony was that he had no knowledge of the fact that Steven Ang’s purpose in going to Yishun was to collect the haversack which contained a large quantity of heroin. His claim was supported by the statements Steven Ang gave to the CNB, in which he stated that he had not informed Lim of his purpose in going to Yishun, and he had never previously used Lim to drive him around to collect heroin. He further testified in the court below that he had asked Lim to drive him to Yishun out of convenience, since Lim had contacted him just as he was about to leave.

15 However, Lim admitted that he suspected that the object of the trip was for Steven Ang to either deliver or collect heroin. He also disclosed that he had, in the recent past, driven Steven Ang on two separate occasions to Queensway Shopping Centre. On those two occasions, Steven Ang had told him to go home first and collect the heroin from him later. Lim had thus concluded that Steven Ang replenished his stock of heroin at Queensway Shopping Centre, and likewise, that after Steven Ang made the trip to Yishun on 27 June, he would be able to collect his ‘order’ of heroin from Steven Ang.

The appeal hearing:

Bala Murugan

16 The primary contention on behalf of Bala Murugan in this appeal was: that the judicial commissioner had erred in rejecting his revised claim that...