Chan Chi Pun v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 08 March 1994
• Neutral Citation: [1994] SGCA 36
• Citation: [1994] SGCA 36
• Defendant Counsel: Palaniappan Sundararaj (Deputy Public Prosecutor)
• Published date: 18 December 2003
• Plaintiff Counsel: Spencer Gwee (Spencer Gwee & Co) and Leslie Phua (AC Fergusson) (both assigned)
• Date: 08 March 1994
• Docket Number: Criminal Appeal No 34 of 1993
• Court: Court of Appeal (Singapore)
• Subject Matter: Trafficking in controlled drugs,Admissibility as part of prosecution's case,Cautioned statement,Presumption of knowledge,Principles pertaining thereto,Criminal Procedure and Sentencing,Admissibility of evidence,Statutory offences,ss 25, 26 & 32 Misuse of Drugs Act (Cap 185),Power to question suspects,Evidence,Admissibility,Statements,Power to investigate,Criminal Law,ss 7 & 18 Misuse of Drugs Act (Cap 185),Police,Customs officers,Unlawfully obtained evidence,Whether inadmissible before defence is called,Criminal Procedure Code (Cap 68) ss 122(5), (6) & 123(1)

[Please note that this case has not been edited in accordance with current Singapore Law Reports house style.]

Judgment reserved.

Yong Pung How CJ (delivering the grounds of judgment of the court):

1 This is an appeal against the decision of Kan Ting Chiu JC convicting the appellant on a charge of importing into Singapore not less than 464g of diamorphine on 20 November 1990, an offence under s 7 of the Misuse of Drugs Act (Cap 185) (‘the Act’) and punishable under s 33 of the Act. After hearing arguments by counsel, we dismissed the appeal and indicated that we would give our reasons later, which we now do.

The facts

2 The appellant arrived at Changi International Airport on 20 November 1990 at about 2.50pm from Phuket on board flight TG405. At the time he was in transit enroute to Toronto. In the past, a practice had developed amongst drug carriers to take flight TG405. Hence Senior Customs Officer Said Abdul Rahman bin Said Awad (‘SCO Rahman’) and Higher Customs Officer Juraimi bin Safie (‘HCO Juraimi’) were assigned to keep the passengers from this flight under observation. To do so, they placed themselves in a position in the transit lounge from which they could see the passengers that came out of gate B23, the departure gate assigned to flight TG405.

3 The appellant was first sighted by the officers as he separated from a group of passengers coming from gate B23. After noticing an unnatural bulge at his waist, the officers approached him and carried out a routine check on him. They asked for, and obtained, his passport, air ticket and boarding pass, and he was brought by the officers to the customs bond office. In the customs bond office, he was asked by HCO Juraimi whether he had anything to declare. He replied in the negative. They asked to search him and he voluntarily lifted up both his arms for the officers to do so. When SCO Rahman frisked him, he felt hard objects at the front of the appellant’s body. When SCO Rahman lifted the appellant’s T-shirt, he discovered a vest beneath with sewn-in pouches. The appellant was then asked three questions by the officers. First, he was asked what he was carrying. The appellant stated that he had no idea. Secondly, he was asked where he intended to deliver the vest. The appellant replied that he intended to deliver it to Toronto. Lastly, he was asked how much he was paid. He answered that payment was in the sum of HK$80,000. In consequence, the appellant was arrested, handcuffed by HCO Juraimi and brought to the surveillance room. The Central Narcotics Bureau (‘CNB’) was then notified of his arrest.

4 Inspector Alan Moh from the CNB arrived at the airport at 4.45pm. When he instructed the appellant to take off the vest, he found that there were 16 pouches in the vest, each holding a slab of substance. Photographs were taken of the vest and slabs found therein. At 6.55pm, the appellant was brought back to the CNB. While Inspector Moh attended to the relevant paperwork, Sergeant Tan Lye Huat kept watch over the appellant. Later, at 9pm, Inspector Moh recorded a cautioned statement from the appellant with the aid of Cantonese interpreter Wu Nan Yong. The statement read as follows:

The drug was not meant for Singapore. I was in transit in Singapore to Toronto. I know it is a drug but I do not know whether it is heroin.

5 Upon analysis, the 16 slabs secreted within the vest were found to contain not less than 464g of diamorphine. When a sample of the appellant’s urine was analyzed, no trace of diamorphine was detected.

The appellant’s defence before the High Court

6 The appellant testified that he resided in Hong Kong where he was employed as a chief supervisor in a security company. He was married, and had a blind son who was five years old. He had been enticed to go on this trip by a colleague, one Law Yew Wah (‘Law’), who mysteriously promised that the trip would be beneficial to his son. He went to Hong Kong Airport on the appointed day and, there, he was given two tickets by Law, who failed to inform him of the purpose of his mission. He was told simply to follow the route prescribed by the tickets, which was to go from Hong Kong to Bangkok, on to Phuket, to transit in Singapore and then finally to arrive in Toronto. He was, however, instructed not to take the connecting flight between Bangkok and Phuket.

7 As briefed, the appellant flew to Bangkok where he spent a few days, ostensibly for the purpose of sightseeing. From Bangkok, he boarded a bus to Phuket. He spent a day in Phuket, again ostensibly for the purpose of sightseeing. From there he took flight TG405 bound for Singapore. He testified that at the point when he boarded the flight in Phuket, he was not wearing the vest which contained the diamorphine. However, just as the plane touched down onto the runway at Changi International Airport, an unknown male Chinese came up to him and queried if his name was Chan Chi Pun. When he answered the question in the positive, he was told to follow the man to the airplane toilet, which he did. Whilst he stood at the door of the toilet, the man went into the toilet, came out, and then told him to take ‘it’. Upon entering the toilet, he found the vest in a plastic bag. It was then that he put on the vest. He, therefore, had not been the party responsible for the importation of the drugs as he had received the vest only within the territorial limits of Singapore. He also testified that he was unaware of the contents of the vest, and his cautioned statement which indicated otherwise had been inaccurately translated and recorded.

8 The trial judge rejected the appellant’s defence. He was of the view that the appellant had himself imported the diamorphine into Singapore. In addition, he held that the prosecution had sufficiently established the mental element for the offence charged. Accordingly, he convicted the appellant. The parts of the trial judge’s grounds of decision material to the appeal will be detailed below.

The issues on appeal

9 Before us, counsel for the appellant concentrated on four main issues. The first ground of appeal was against the trial judge’s decision at the end of the prosecution case to call for the defence. The second ground of appeal focused on the three questions asked of the appellant and the answers which he gave to them in the customs bond office prior to his arrest. The third concerned the trial judge’s rejection of the appellant’s account of events. The last ground of appeal was against the trial judge’s conclusion on the sufficiency of the mental element necessary for the offence of importation.

The trial judge’s decision to call for the defence

10 Counsel for the appellant sought to show us that the trial judge had erred in deciding that the prosecution had established a prima facie case at the halfway stage. Upon reviewing the record, however, we found this contention to be devoid of any merit. At the time of the appellant’s arrest, he was wearing a vest in which 16 slabs of substance containing diamorphine were found. He had been sighted in the transit lounge coming from the direction of gate B23, the gate used for the disembarkation of passengers from flight TG405. His air ticket, boarding pass and passport indicated that he had come from Phuket on flight TG405. He had a conversation with the customs officers in which he indicated that he was enroute to Toronto and had been paid HK$80,000 for his efforts. In the circumstances, there was ample evidence from which the trial judge could conclude that a prima facie case had been established by the prosecution.

The conversation within the customs bond office

11 Much was said by counsel for the appellant about the conversation between the customs officers and the appellant inside the customs bond office in which the officers ascertained that the appellant was enroute to Toronto and had been paid HK$80,000. Counsel for the appellant used two lines of argument. The first was a contention that the conversation was in fact completely inadmissible as customs officers do not possess the power to question suspects. Counsel for the appellant contended that the power to question suspects is given only to CNB officers, as s 32 of the Act grants them the same powers as police officers investigating seizable offences. In contrast, ss 25 and 26 of the Act empower customs officers only to search for, seize and detain illegal drugs and make arrests. Counsel contended that as the questioning of the appellant marked the commencement of investigations which lay solely in the province of CNB officers, the answers given by the appellant to SCO Rahman and HCO Juraimi were inadmissible.

12 In our judgment, counsel for the appellant’s argument lacked merit. We observed that this contention could in fact be dismissed on the short ground that evidence unlawfully obtained, once relevant, is in law admissible, and the court would only exercise its judicial discretion to exclude it if its reception would operate unfairly against the accused: Cheng Swee Tiang v PP, following Kuruma s/o Kaniu v R and Callis v Gunn. We did not think this principle of law to be in doubt, and, indeed, counsel did not seek to query it. We thought it useful, nonetheless, to deal with the legality of the questions asked by the customs officers in these grounds of judgment as it was argued fully before us. In our view, s 32 of the Act does not reserve the power to ask questions of suspects to CNB officers alone. Section 32 of the Act provides:

In any case relating to the commission of an offence under this Act, an officer of the Bureau shall have all the powers of a police officer under the Criminal Procedure Code in relation to an investigation into a seizable offence.

13 Thus the purpose of s 32 of the Act is to vest CNB officers with those particular powers found in s 118 of the Criminal Procedure Code (Cap 224) (‘the CPC’). These are to compel the attendance of witnesses...