Chan Heng Kong and another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 06 March 2012
• Neutral Citation: [2012] SGCA 18
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeal No 11 of 2010
• Published date: 13 March 2012
• Year: 2012
• Hearing Date: 03 May 2011,16 March 2011
• Plaintiff Counsel: Cheong Aik Chye (A C Cheong & Co) and Loo Khee Sheng (K S Loo & Co) (both assigned)
• Defendant Counsel: Wong Siew Hong (Infinitus Law Corporation) and Daniel Koh (Eldan Law LLP) (both assigned),Kan Shuk Weng and Gail Wong (Attorney-General's Chambers)
• Subject Matter: Constitutional Law,Criminal Law
• Citation: [2012] SGCA 18

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

This is an appeal by two persons, Chan Heng Kong (“Chan”) and Sng Chun Heng (“Sng”), who were convicted and sentenced to the mandatory punishment of death in Criminal Case No 3 of 2009 for committing the following offences: vis-à-vis Chan, the offence of drug trafficking under s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“the MDA”); and vis-à-vis Sng, the offence under s 5(1)(a) read with s 5(2) and s 12 of the MDA of abetting his younger brother, Sng Choong Peng (“Choong Peng”), to traffic in drugs by instigating the latter to be in possession of drugs for the purpose of trafficking.

The respective offences which Chan and Sng were convicted of both related to the same events that occurred on 23 January 2008, and the drugs involved consisted of not less than 17.70g of diamorphine.

The background facts The parties involved in the events of 23 January 2008

There were a total of four persons involved in the events that occurred on 23 January 2008, namely, Chan, Sng, Choong Peng and one Ang Cheng Wan (“Ang”). All four are Singaporeans. As mentioned earlier, Choong Peng is Sng’s younger brother.

Choong Peng was separately charged and convicted in Criminal Case No 1 of 2009 (“CC 1/2009”) for his involvement in the events of 23 January 2008. However, unlike Sng, he was charged with trafficking in only “not less than 14.99 grams of diamorphine”¹ [emphasis in original omitted], and was eventually sentenced to 22 years of imprisonment and 15 strokes of the cane. Ang, on the other hand, was initially charged with trafficking in 243.90g of granular substance believed to contain diamorphine. This charge was, however, subsequently withdrawn by the Public Prosecutor during the second pre-trial conference on 30 September 2008. Thereafter, a new charge of drug consumption was preferred against Ang in the Subordinate Courts.

The Prosecution’s summary of the events of 23 January 2008

On the morning of 23 January 2008, two teams of Central Narcotics Bureau (“CNB”) officers conducted surveillance at Block 12 Kampong Arang Road (“Block 12”), where Sng and Choong Peng resided, as well as at Woodlands Checkpoint. At the time, the CNB officers were acting on intelligence received that three Chinese men would, later that day, be receiving illegal drugs from a courier from Malaysia travelling in a silver car with a vehicle registration number containing the digits “702”.

At about 1.20pm on the same day, Sng and Choong Peng were seen at the void deck of Block 12. At about 1.45pm, Ang appeared and joined Sng at the void deck of Block 12 while Choong Peng headed in the direction of a nearby circular pavilion located between Block 12 and Block 14 Kampong Arang Road (“Block 14”). Shortly thereafter, Chan was seen driving a silver Toyota Corolla bearing vehicle registration number EP 702P (“EP 702P”) into the car park of Block 12. Chan stopped EP 702P next to the pavilion between Block 12 and Block 14 (“the Pavilion”), alighted and placed a red plastic bag near a rubbish bin at the Pavilion. Chan then returned to EP 702P and parked the car near the lift landing of Block 14.

A short while later, Choong Peng was seen approaching EP 702P. He entered the front passenger door of EP 702P and was observed engaging in a short conversation with Chan in the car. Choong Peng then alighted from EP 702P and moved towards the Pavilion to retrieve the red plastic bag that had been placed there earlier by Chan. After picking up the red plastic bag, Choong Peng joined Sng and Ang at the car park entrance near Block 12. From there, Sng, Ang and Choong Peng together took a taxi to a public housing estate at Chai Chee Avenue. The CNB officers trailed the trio and arrested them when the taxi stopped at Chai Chee Avenue.

After the arrest of Sng, Ang and Choong Peng, the red plastic bag which Choong Peng had earlier retrieved from the Pavilion was seized and was found to contain a pack of “Mamee Monster” snacks. Inside this “Mamee Monster” snack pack were smaller packs of “Mamee Monster” snacks containing a total of 30 sachets of white granular substance. The white granular substance was analysed by the Health Sciences Authority (“the HSA”) and was found to contain not less than 17.70g of diamorphine.

Chan was arrested separately in Geylang on the same day after his encounter with Choong Peng at Block 12. After his arrest, EP 702P was searched by the CNB officers. During the search, a black sling bag containing $7,500 worth of cash in Singapore currency was retrieved from the front passenger seat. Four packs of “Mamee Monster” snacks, each containing smaller “Mamee Monster” snack packs with drug items in them, were also found in a white paper bag bearing the label “Estebel 1833” (“the ‘Estebel 1833’ bag”) on the rear passenger seat. These drug items were analysed by the HSA and were found to contain not less than 71.57g of diamorphine.

Subsequent to the arrest of Sng, Choong Peng, Chan and Ang, a search was also conducted at Sng’s bedroom in his residence at unit #04-11 of Block 12 (“the Flat”), in the course of which more drugs were found. These drugs were analysed by the HSA and were found to contain not less than 11.97g of diamorphine.

The charges against Sng and Chan

Multiple charges were initially preferred against Sng and Chan.² However, all those charges, save for the ones which Sng and Chan were convicted of in the court below (see [1] above), were eventually stood down when the trial commenced. The charges proceeded with read as follows:³

YOU ARE CHARGED at the instance of the Attorney-General as Public Prosecutor and the charges against you are: That you, SNG CHUN HENG,

on or about the 23rd day of January 2008 in Singapore, did abet one Sng Choong Peng in trafficking in a controlled drug specified in Class “A” of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, by instigating Sng Choong Peng to be in possession for the purpose of trafficking 30 packets of substances containing not less than 17.70 grams of diamorphine, without any authorisation under the Misuse of Drugs Act or the regulations made thereunder, when you instructed him to collect the said drug from a certain person which he did on 23rd January 2008 at or about 1.55 p.m. in the vicinity of Kampong Arang Road, Singapore, and you have thereby committed an offence under section 5(1)(a) read with section 5(2) and section 12 and punishable under section 33 of the Misuse of Drugs Act.

… That you, CHAN HENG KONG,

on the 23rd day of January 2008 at about 1.55 p.m. at the vicinity of Kampong Arang Road, 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 delivering to one Sng Choong Peng 30 packets of substances containing not less than 17.70 grams of diamorphine, without any authorisation under the Misuse of Drugs Act or the regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) and punishable under section 33 of the Misuse of Drugs Act.

…

[emphasis in original]

Sng’s and Chan’s respective cases at the trial

The case put forth by Sng at the trial was as follows: Sng claimed that he had ordered 20 and not 30 sachets of heroin to be delivered on 23 January 2008;⁴ Sng revealed that he was a consumer of heroin, and that half of the 20 sachets which he had allegedly ordered were for his own consumption while the other half were for sale;⁵ Sng alleged that there was a mix-up and contamination of the drug exhibits at the CNB’s premises, which rendered it unsafe for the court to convict him of a capital charge;⁶ Sng challenged the admissibility of and the weight (if any) to be attached to the statements which he gave to the CNB officers after his arrest; and Sng claimed that he did not instigate Choong Peng to be in possession of the drugs for the purpose of trafficking.⁷

As for the case advanced by Chan at the trial, it was as follows: Chan did not dispute that he had possession of the five packs of “Mamee Monster” snacks which he brought from Malaysia to Singapore in EP 702P on 23 January 2008 (viz, the pack found in the red plastic bag which Choong Peng retrieved from the Pavilion (see [8] above) and the four packs found in the “Estebel 1833” bag in EP 702P (see [9] above)), one of which (viz, the pack mentioned at [8] above) he placed near a rubbish bin at the Pavilion on 23 January 2008.⁸ However, he denied having knowledge that these “Mamee Monster” snack packs contained illegal drugs. In particular, Chan raised the following points during the trial to establish his lack of mens rea for the offence charged: he thought he was only engaged in an illegal moneylending transaction on 23 January 2008; he had no reason to think that the “Mamee Monster” snack packs contained illegal drugs because “the manee [sic] noodles also probably could be kind of ‘code’ ‘signal’ used by those involved in illegal money transactions”;⁹ he had taken steps to satisfy himself that the “Mamee Monster” snack packs did not contain illegal drugs by feeling the contents of one of the snack packs with his fingers, and had found nothing suspicious about that pack¹⁰ (on appeal, however, Chan stated that the checking had been done in respect of “Mamee Monster” snack packs which he had delivered on a previous occasion, and not in respect of the “Mamee Monster” snack packs which he brought from Malaysia to Singapore in EP 702P on 23 January 2008 (see [19] below)); if he really had knowledge that the “Mamee Monster” snack packs contained illegal drugs, he would not have left them in a visible position on the rear passenger seat of EP 702P when he was passing Woodlands Checkpoint on 23 January 2008;¹¹ and the fact that he did not put up a struggle when he was arrested also suggested that he had no knowledge that...