Chai Chien Wei Kelvin v Public Prosecutor

• Judge: Karthigesu JA
• Judgment Date: 16 October 1998
• Neutral Citation: [1998] SGCA 64
• Citation: [1998] SGCA 64
• Defendant Counsel: Bala Reddy and Kan Shuk Weng (Deputy Public Prosecutors)
• Subject Matter: Criminal Procedure and Sentencing,Whether voluntarily made,Evidence,Making statements to narcotics officers,Weight of statement of accomplice,Inference to be drawn,Statements,s 122 Relevance of Criminal Procedure Code,Proof of evidence,Accused remaining silent when defence called,Whether statements confessions,Whether witness an accomplice,Witnesses,Burden of proof as to voluntariness of statement,Admissibility,Effect of previous inconsistent statements,Weight of evidence,Consideration of confession of person jointly charged
• Court: Court of Three Judges (Singapore)
• Published date: 19 September 2003
• Plaintiff Counsel: R Pala Krishnan (Palakrishnan & Partners) and David Gerald Jeyasegaram (Koh Ong & Partners)

Judgment:

YONG PUNG HOW CJ

(delivering the grounds of decision of the court): There were originally two accused persons jointly tried in the High Court. The first accused, Bryan Yeo Sin Rong (`the first accused`), was charged under s 7 read with s 12 of the Misuse of Drugs Act (Cap 185) (`the Misuse of Drugs Act`) with attempting to export not less than 2,109g of diamorphine from Singapore to Taipei. The charge against the second accused, Chai Chien Wei Kelvin, read as follows:

That you, Chai Chien Wei Kelvin, on 13 January 1998, at Changi Airport Terminal 2, Singapore, did engage with one Bryan Yeo Sin Rong, male aged 26 years, NRIC No S7144064H, in a conspiracy to do a certain thing, namely, to export a controlled drug specified in Class `A` of the First Schedule to the Misuse of Drugs Act (Cap 185), to wit, thirty-six (36) blocks of compressed substance containing not less than 2,109 grams of diamorphine from Singapore to Taipei by the said Bryan Yeo Sin Rong, without any authorisation under the said Act or the regulations made thereunder, and in pursuance of the said conspiracy and in order for the doing of that thing, an act took place in the shower room of Transit Hotel, Changi Airport namely, you strapped the said drugs, which you transported into Singapore, onto the body of the said Bryan Yeo Sin Rong using masking tape and other tapes in order to enable him to transport the said drugs out of Singapore, and you have thereby abetted the commission of the offence by the said Bryan Yeo Sin Rong of attempting to export the said drugs from Singapore, and you have thereby committed an offence under s 7 read with s 12 and punishable under s 33 of the Misuse of Drugs Act.

Both accused were convicted of the respective charges against them. Only the second accused (`the appellant`) appealed against his conviction and sentence. We dismissed the appeal at the conclusion of the hearing and now give our reasons. It is necessary to set out and deal in detail with the evidence adduced in the court below as one of the principal grounds of appeal advanced by the appellant was that, at the close of its case against the appellant, the prosecution had not made out a case against him which, if unrebutted, would warrant his conviction. We begin with the background facts to the case.

2. The background facts

The first accused was arrested by officers of the Central Narcotics Bureau (`CNB`) at 4.54pm on 13 January 1998 at the Boarding Room at Gate E11, Terminal 2, Changi International Airport (`Changi Airport`). The arresting officers were W/ASP Diong Bee Chu (`W/ASP Diong`), Sgt Eddy Razali, Sgt Xavier Dawes and Sgt Heng Chin Kok. The first accused was brought to the Search Room at Gate E11 where more CNB officers later arrived. They were Sgt Ting Ming Ling, S/Sgt Lee Chai Hwa and Sgt Tan Teck Hoe. W/ASP Diong asked the first accused whether he had anything to surrender and the first accused took off his sweater and shirt and revealed numerous brown blocks strapped to his body under his T-shirt. At the Search Room, five blocks fell off the first accused`s body and were retrieved by W/ASP Diong. Shortly thereafter, the CNB officers brought the first accused to the CNB office in the North Wing. Along the way, another two blocks fell off the first accused`s body when the party was outside Gate E5 and another block fell off outside Gate E1. At the CNB North Wing office, nine more blocks fell off. All of these blocks were retrieved by W/ASP Diong. A total of 36 blocks were recovered from the first accused`s body. They were sent for analysis and were found to contain not less than 2,109g of diamorphine. The first accused was accordingly charged under the Misuse of Drugs Act with attempting to export the said diamorphine.

3.W/ASP Diong questioned the first accused at the CNB North Wing office and recorded her questions together with his answers on a piece of paper which the first accused signed. This evidence which was not challenged by the defence was as follows:

Q1: What do you have inside your shirt?

A1: I don`t know.

Q2: Where did you get these things?

A2: Now I know I get arrested, I rather die one person.

Q3: Where did you get it?

A3: Inside the airport.

Q4: So you got it today?

A4: Yes.

Q5: Do you want to say who gave it to you?

A5: I don`t want to be a hero but I don`t want to be a bastard. [Pause.] I don`t know what to say.

Q6: Do you have anything else to say regarding the things on your body?

A6: No.

4.Insp S Krishnan (`Insp Krishnan`), the investigating officer, arrived at the CNB North Wing Office at 5.50pm and took over from W/ASP Diong. At 7.15pm three members of the Scene of Crime Unit of the Criminal Investigation Department arrived at the CNB North Wing office and the blocks of taped matter strapped to the torso of the first accused were photographed. Of the 36 blocks that were recovered from the first accused, 17 had fallen off his body en route from the Boarding Room at Gate E11 to the CNB North Wing office. Nineteen were still strapped to the first accused`s body. Photography of the first accused and the exhibits ended at 8.25pm and five minutes later Insp Krishnan took the accused back to CNB headquarters, arriving there at about 9pm. Insp Krishnan weighed the drugs and then took them to the CNB`s Major Investigation Branch (`MIB`) at Outram Road at 9.40pm.

5.The appellant arrived at Changi Airport at 2.50pm on the same day from Bangkok. He was later spotted by Sgt David Ng at 4.15pm at the Transit Lounge where he was seen talking to the first accused. The first accused and the appellant parted company at 4.25pm. The first accused headed toward Gate E11 and the appellant headed toward the immigration counters for clearance. At 8.10pm that evening, the appellant was arrested in his flat at Lengkok Bahru by a party of CNB officers led by Insp Francis Jeyaraje (`Insp Jeyaraje`). A search was conducted and nothing incriminating was found but the arresting party seized a number of articles belonging to the appellant including a blue carrier bag, a long-sleeved shirt, a black T-shirt and a black pair of jeans. Insp Jeyaraje then handed over the seized items and custody of the appellant to ASP William Chew (`ASP Chew`) who arrived as a second party together with Sgt Quek Hock Hoe and Sgt Chan Poh Huat. ASP Chew and his party left the appellant`s flat at 8.50pm and arrived at the CNB`s MIB at 9pm. A urine sample was taken from the appellant and sent for analysis. No trace of drug substances was found. A brown pullover was subsequently handed over by Insp Chow Toong Chee (`Insp Chow`) to Insp Krishnan. This pullover was reported to have been seized from the appellant at his flat. The significance of this pullover was that it was the prosecution`s case that it was worn by the first accused when he went to the airport, but subsequently exchanged it for the black sweater worn by the appellant when the latter arrived from Bangkok.

6. The first accused`s statements

The first accused made a cautioned statement under s 122(6) of the Criminal Procedure Code (Cap 68) (`CPC`) on 14 January 1998 to Insp Krishnan (P34). This statement was recorded from 4.12am to 4.25am on 14 January 1998 after the first accused had been sent for a pre-statement medical examination. The first accused also made a much longer statement under s 121 of the CPC which was recorded in two parts, the first being completed by 2.10am on 14 January 1998 and the second by 8pm on 15 January 1998. The two parts of this statement were collectively marked as P36. At trial counsel for the first accused challenged the admissibility of these statements on the ground that they were not made voluntarily. The first accused`s statement given to W/ASP Diong (P32) was not challenged.

7. The first accused`s voir dire

The first accused alleged that he had made these statements under duress and inducement. He complained that, in the course of the initial interrogation by DSP S Vijakumar (`DSP Vijakumar`), he was told that `the rope was round his neck` and that he was to tell the truth because DSP Vijakumar could tell if he was lying merely by looking at his eyes. He was also told that if he did not tell the truth DSP Vijakumar would damage his face. The first accused was knocked on the head by DSP Vijakumar when he gave an answer which DSP Vijakumar was not satisfied with. According to the first accused, this occurred only once. He testified that at the end of the interview, he thought that the officers would help take the rope off his neck, by which he meant that he thought that he would face a lesser charge. Counsel for the first accused submitted that this threat, inducement or promise remained impressed in the mind of the first accused when he gave his statements to Insp Krishnan, though there were no complaints against Insp Krishnan himself in so far as any threat, inducement or promise was concerned. These allegations against DSP Vijakumar were denied by him and SS/Sgt Wong Wah Yan (`SS/Sgt Wong`) who was present during the interview by DSP Vijakumar.

8.The learned judicial commissioner was not sufficiently convinced, bearing in mind that the onus of proof was on the defence to raise a reasonable doubt, that DSP Vijakumar and SS/Sgt Wong had told the first accused that they would help take the rope off his neck or that he had been knocked on the head, albeit that this occurred only once. In any event, the learned judicial commissioner did not think that a knock on the head in the manner described by the first accused was sufficient duress. Nor could a call to co-operate be regarded as a threat or inducement even if it was accompanied, as in this case, by a remark that the first accused would be allowed to call his wife if he co-operated. Similarly, a statement to the first accused not to lie because DSP Vijakumar could tell whether or not he was lying merely by looking at his eyes could not be considered a threat, inducement or promise. After considering the...