Beh Chew Boo v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 13 October 2020
• Neutral Citation: [2020] SGCA 98
• Plaintiff Counsel: Wong Siew Hong and Andy Yeo (Eldan Law LLP)
• Docket Number: Criminal Appeal No 1 of 2020
• Date: 13 October 2020
• Hearing Date: 08 September 2020
• Subject Matter: Statutory offences,Criminal Law,Misuse of Drugs Act
• Published date: 16 October 2020
• Defendant Counsel: Mark Jayaratnam, Sunil Nair and Samuel Yap (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Citation: [2020] SGCA 98
• Year: 2020

Tay Yong Kwang JA (delivering the judgment of the court):

The appellant (“Beh”) faced five charges of unauthorised importation of controlled drugs on the same occasion. The Prosecution proceeded on only the first charge which involved the death penalty. The other four charges were stood down. Beh claimed trial and was convicted by the High Court (“the Judge”) on the charge of importing into Singapore not less than 499.97g of methamphetamine, an offence under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). The Prosecution relied on the presumptions of possession and knowledge under ss 21 and 18(2) of the MDA respectively. The sole issue before the Judge was whether Beh knew that the items which were found to be drugs were in the storage compartment of the motorcycle that he had borrowed and which he rode into Singapore with a female pillion rider.

Beh’s defence was that he did not know about the existence of the drugs in the motorcycle. The Judge found that Beh could not rebut the presumption of knowledge of the presence of the drugs under s 21 of the MDA and therefore found him guilty as charged. Although the Judge held that Beh was a “courier” within the meaning of s 33B(2)(a) of the MDA, the Public Prosecutor did not issue a certificate of substantive assistance under s 33B(2)(b). The mandatory death penalty therefore applied and Beh was sentenced accordingly.

Beh appealed against his conviction and sentence. We reserved judgment after hearing the parties and now deliver our decision. In the unique circumstances of this case, which we explain below, we are of the view that the Prosecution was unable to prove the charge of importation against Beh. Accordingly, we acquit Beh on this charge.

Factual background

The circumstances leading to Beh’s arrest, the discovery of the bundles of drugs, their analysis, and the investigation statements given by Beh were not disputed. These were set out in a seven-page Agreed Statement of Facts.

Beh is a 38-year-old male Malaysian. At the time of the incident in the charge, he was 34 years old. On 26 October 2016, at about 5.20am, he entered Singapore from Malaysia at the Woodlands Checkpoint riding a Malaysian-registered motorcycle with registration number JRN177 (“the Motorcycle”). The registered owner of the Motorcycle was Lew Shyang Huei (“Lew”), Beh’s friend and ex-colleague. Beh’s girlfriend, Ting Swee Ling (“Ting”), was riding pillion on the Motorcycle.

Beh was stopped at the checkpoint for a routine check by Police Constable Israel Rajan (“PC Rajan”). He was instructed by PC Rajan to lift up the Motorcycle’s seat. In the storage compartment under the seat, a blue plastic bag (“A1”), stored beneath a black jacket, a rain-coat and rain-pants, was found, together with a power bank and a set of car keys. The power bank belonged to Yeo Kim Huat Mervin (“Ah Huat”), Beh’s friend. The car keys were for Beh’s Malaysian-registered car. Upon opening A1 and finding several bundles of substance inside, PC Rajan activated the Immigration and Checkpoints Authority (“ICA”) Task Force.

Sergeant Dave Ong Kah Huat (“Sgt Ong”) from the ICA Task Force arrived at the motorcycle checking bay, together with Staff Sergeant Ganesh s/o Amarthalingam (“SSgt Ganesh”), Senior Staff Sergeant Muhammad Khairul bin Khairudin (“SSSgt Khairul”) and Staff Sergeant Razif bin Rahim (“SSgt Razif”) from the Central Narcotics Bureau (“CNB”). SSSgt Khairul and SSgt Razif opened and examined the contents of the bundles in the presence of Beh and Ting. There were four bundles inside A1. The biggest bundle contained, among other things, three black bundles. One of the three black bundles (“A1A4”) contained several blister packages of Erimin-5 tablets. The second of the four bundles was wrapped in plastic (“A1E”) and contained 20 silver packages. The third of the four bundles contained a black bundle which in turn contained ten silver packages. The last of the four bundles was wrapped in a plastic bag and cling wrap (“A1D”) and contained, among other things, two black bundles (“A1D5” and “A1D6” respectively), one of which was opened and found to contain several silver packages.

The seized drug exhibits contained not less than 742.82g of crystalline substance, which was analysed and found to contain not less than 499.97g of methamphetamine. The analysis of the drug exhibits, the HSA results and the chain of custody of the various drug exhibits were not disputed.

It appears from court records that Lew, the owner of the Motorcycle that Beh rode into Singapore, was subsequently arrested in Singapore for some charges under the MDA which were unrelated to the charge here against Beh. On 20 July 2018, Lew was sentenced by the District Court to seven years’ imprisonment (with effect from 29 April 2017) and five strokes of the cane for drug importation and possession of drug-related utensils. Lew was serving his imprisonment term here when the trial against Beh proceeded from July 2019. Lew is still serving his sentence.

The evidence DNA analysis

Beh’s DNA was not found on any of the drug exhibits. However, Lew’s DNA was found on: the interior surface of the plastic bag marked “A1”; the exterior surface of the taped bundle marked “A1A4”; the exterior surface of the plastic bag and cling wrap marked “A1D”; the swabs taken from the exterior of the taped bundle marked “A1D5”; the swabs taken from the cling wrap marked “A1E”; and the interior and exterior surfaces of the plastic bags which were marked “A1F”.

Beh’s statements

The following statements were recorded from Beh: a statement recorded on 26 October 2016 at around 7.04am after Beh was served with a notice under s 33B of the MDA concerning the mandatory death penalty and the possible sentencing alternative (“MDP statement”); two contemporaneous statements under s 22 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”), recorded on 26 October 2016 at about 7.34am and 10.15am (“first contemporaneous statement” and “second contemporaneous statement”); a cautioned statement under s 23 of the CPC, recorded on 27 October 2016 at about 1.56am (“cautioned statement”); and four statements under s 22 of the CPC of the CPC, recorded on 31 October 2016, 1 November 2016, 2 November 2016 (“first”, “second” and “third long statement”) and 5 October 2017. The last statement was mentioned in the Agreed Statement of Facts but was not adduced in evidence by the Prosecution.

Beh gave his MDP statement in the Chinese language (interpreted by Sgt Ong and recorded by SSSgt Khairul). “Ah Siang” refers to Lew:

The bike is not mine. I borrowed the bike from ‘Ah Siang’ as I don’t want to use my car and pay $35 to enter Singapore. I only used to bike to send a power bank to ‘Ah Huat’ at Fernvale Sengkang Blk 473. I do not know anything regarding the contents in the bike.

The first contemporaneous statement was likewise given by Beh in the Chinese language (interpreted by Sgt Ong and recorded by SSSgt Khairul). When Beh was asked about the blue plastic bag containing the bundles of drugs and whom they belonged to, he replied, “I don’t know”. Beh said he did not know the blue plastic bag was in the Motorcycle as he did not check. His reason for riding the Motorcycle into Singapore was to return a power bank to Ah Huat at Fernvale Block 473. Beh provided Ah Huat’s mobile phone number.

The second contemporaneous statement was given by Beh in the Malay language and recorded by SSgt Rozaiman bin Abdul Rahman. Beh identified Ah Huat from a photo-board and said Ah Huat was his supervisor from October 2015 to August 2016 when he worked as a mover with KNT Movers (S) Pte Ltd (“KNT”). Beh denied having any drug dealings with Ah Huat.

The cautioned statement was given by Beh in the Chinese language and recorded by IO Quah. Beh stated in response to the original charge (which alleged joint importation of drugs with Ting), “I don’t plead guilty. I have nothing further to say”.

The first long statement was given by Beh in the Chinese language with the assistance of an interpreter, Mr Wong Png Leong (“Mr Wong”). It was recorded by IO Quah. Beh claimed to own a Honda Accord and a Kawasaki motorcycle, neither of which was registered in his name. He also said he met Ting on 29 June 2016 and they began dating soon thereafter. Beh stated that he could not speak English and would normally communicate in Mandarin and in Hokkien.

The second long statement was given by Beh in the Chinese language, interpreted by Mr Wong and recorded by IO Quah. Beh made the following material points: He called Lew from his home on 26 October 2016 at around 1am to ask if he could borrow the Motorcycle to enter Singapore. He had borrowed the same from Lew before to travel to Singapore. Lew agreed and requested Beh to top up his prepaid telephone card. After calling Lew, Beh called Ting and told her he would pick her up. As it was raining, Beh drove the Honda Accord to Ting’s house and picked her up at around 3.45am. While driving towards Johor Bahru (“JB”) customs, Ting told Beh that she did not think it would rain later and this made Beh decide to use the Motorcycle to enter Singapore. He drove to Lew’s house and parked his car outside before collecting the Motorcycle’s key from Lew personally at around 4.20am. He rode the Motorcycle to his car, unlocked the Motorcycle’s seat upon reaching his car and saw only a black jacket in the storage compartment. He did not check what was underneath the jacket. He placed his car keys and a power bank on top of the black jacket. He and Ting then rode the Motorcycle to JB customs. After clearing JB customs, he and Ting arrived at the Woodlands Checkpoint immigration counter at around 5am. He opened the Motorcycle’s seat for inspection and recalled an officer taking out the power bank, the black jacket and some raincoats. The officer then took out a plastic bag and removed a black...