Su Chee Kiong v Public Prosecutor

JurisdictionSingapore
JudgeTan Lee Meng J
Judgment Date14 January 1999
Neutral Citation[1999] SGCA 6
Docket NumberCriminal Appeal No 10 of 1998
Date14 January 1999
Published date19 September 2003
Year1999
Plaintiff CounselThomas Tham and Yvonne Schelkis (Thomas Tham & Co) and Winston Mok (Winston Mok & Co)
Citation[1999] SGCA 6
Defendant CounselMathavan Devadas (Deputy Public Prosecutor)
CourtCourt of Appeal (Singapore)
Subject MatterWhether possession of drugs proved beyond reasonable doubt,Whether presumption of trafficking proved,Large amounts of heroin and trafficking paraphernalia found in appellant's flat,s 5(1) & 5(2) Misuse of Drugs Act (Cap 185),Appellant alleges items belong to boarder,Criminal Law,Misuse of Drugs Act,Statutory offences,Trafficking
Judgment:

YONG PUNG HOW CJ

The appellant was charged and convicted of the following offence under the Misuse of Drugs Act (`the Act`):

You, Su Chee Kiong, are charged that you on or about 9 January 1998, at about 10.30pm, at Block 158 Mei Ling Street [num ]07-86, Singapore, did traffic in a controlled drug specified in Class A of the First Schedule of the Misuse of Drugs Act (Cap 185), to wit, by having in your possession for the purpose of trafficking, substance containing not less than 81.62g of diamorphine at the said premises, without any authorisation under the said Act or the regulations made thereunder, and you have thereby committed an offence under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act and punishable under s 33 of the said Act.

He was given the mandatory death sentence, and appealed to this court against his conviction.

2. The facts

On the evening of 9 January 1998, the appellant was arrested near the ground floor of Block 158 Mei Ling Street by Central Narcotics Bureau (CNB) officers acting on information received. He was searched and found to have, inter alia, five plastic sachets containing a granular substance, a pager, a bunch of four keys and $1,189 in cash. The granular substance was later analysed and found to contain not less than 1.57g of diamorphine. This was not the subject of the present charge.

3.Upon questioning, the appellant denied that he lived at Block 158 Mei Ling Street and claimed that he lived at Block 26 Teck Whye Lane. The officers went to the address given by him, where a raid revealed nothing incriminating. The keys found on him were tested on the locks of the gate and the main door of the flat at this address, but they did not fit. The team then returned to Mei Ling Street and tested the keys on the letter boxes at Block 158. One of the keys was found to fit the letter box for a flat on the seventh floor. At the seventh floor, the appellant told the officers that his flat was on the left, and led them to unit [num ]07-86 (`the flat`). The officers used the keys found on the appellant to unlock the main door to the flat.

4.The following items were found on the floor of the living room: (1). some granular substance in an unsealed sachet;

(2). a green plastic container with some granular substance and a metal spoon;

(3). two stained straws and a stained plastic sachet; and

(4). two stained pieces of tin foil, nine pieces of paper which were rolled up, two disposable lighters, three pairs of scissors, a pair of tweezers and a butter knife.

A Tanita digital weighing scale and a blue notebook containing 4-digit numbers were found together in a plastic packet on the coffee table. In addition, a phial of powdery substance and an electric sealer were found on a shelf attached to the living room wall. The electric sealer was plugged into the power socket.

5.In a cabinet in the kitchen, the officers found: (1). two plastic containers each containing a granular substance and a plastic spoon;

(2). a kitchen weighing scale;

(3). a sealed plastic sachet containing a granular substance; and

(4). a packet of empty plastic sachets.

At the bottom of a red pail placed in a corner of the kitchen, the officers found a plastic packet containing a granular substance. The plastic packet had been wrapped in a brown paper envelope and was partially hidden under an empty plastic bag. A second electric sealer, with its coil wrapped around, was found in a plastic bag on the kitchen floor. There was also a second Tanita digital weighing scale in the same plastic bag.

6.The appellant was brought to the kitchen, where Inspector Soh Koh Tong (`Insp Soh`) pointed to the two plastic containers in the kitchen cabinet and asked him in Hokkien:

Q: Chit lay see sit mit? (What is this?)

A: Leow. (Thing.)

Q: Sit mit see leow? (What is this thing?)

A: Peh hoon. (White powder.)

Q: Lua chuay? (How much?)

A: Mern chai. `Hor Kia` cho eh. (Don`t know. `Hor Kia` did it.)

The appellant did not elaborate on who `Hor Kia` was.

7.On 12 January 1998, a statement under s 122(6) of the Criminal Procedure Code (CPC) was recorded from the appellant. He said:

The heroin does not belong to me. It belongs to Hor Kia.

The admissibility of this statement was not challenged, and it was admitted into evidence.

8. The defence case

It was not disputed that the drugs found in the flat contained a total of not less than 81.62g of diamorphine. It was also not disputed that the appellant resided at the flat, which he owned jointly with his mother, Mdm Wee Ah Suan (`Mdm Wee`). Mdm Wee resided with her daughter in Teck Whye and had only visited the flat three times after it was purchased in 1993.

9.The appellant`s defence at trial was that the drugs found in the flat, as well as the paraphernalia related to trafficking, did not belong to him but to one Ow Kwong Hoi, whom the appellant knew as `Lau Hor Kia` (`Lau`). Lau was the appellant`s childhood friend. He lived with his family in the adjacent block, Block 157. Sometime in August or September 1997, Lau mentioned to the appellant that it was inconvenient for him to smoke heroin at his own flat with his family living there. The appellant then suggested to Lau that he rent the outer bedroom of the flat for $600 a month for the purposes of consuming heroin. Lau agreed, and the appellant made a set of keys to the flat for him.

10.Subsequently, up to the time of the appellant`s arrest in January 1998, Lau went to the flat two or three times every day. On several occasions, he stayed until 4am or 5am. The appellant could not say whether Lau only went to the flat when he was present. Sometimes, Lau arrived in the morning while he was still sleeping. On other occasions, when Lau came in the afternoons, he and the appellant consumed heroin together. The appellant admitted that the drug-taking paraphernalia found on the floor of the living room, including the tin foil, straws, lighter and rolled-up paper, were used by Lau and himself to consume heroin. Initially, Lau stayed in the outer bedroom to smoke heroin. However, he subsequently joined the appellant in the living room where they watched television while consuming heroin. After consuming the heroin, Lau went into the outer bedroom to rest.

11.Lau supplied the appellant with heroin. He even gave the appellant a pager for this purpose. When the appellant needed heroin, Lau paged him and told him where to meet so that he could pass the heroin to him. Sometimes, Lau went to the flat to deliver the heroin to him. However, if he was busy or with his family and friends, he told the appellant to wait for him at the ground floor of Block 158 or at the market at Block 159.

12.On the day of his arrest, the appellant received a page with the code `05`. He knew that this was a message from Lau asking to meet him downstairs at 6pm. When they met, Lau passed him five sachets of heroin and he paid Lau $300. Lau knew that the appellant`s heroin supply was about to be exhausted because the appellant told him this when Lau was at the flat earlier in the day. The appellant asked Lau, who was alone, why he did not go up to the flat, but Lau replied that he had something to attend to. The appellant then went to the coffee shop at Block 158 to have his dinner where he was subsequently approached by the CNB officers and arrested.

13.The appellant admitted that he lied to the officers about living in Teck Whye. He was afraid that if the officers went to the flat, they would find the drug-taking paraphernalia on the floor of the living room of the flat, and that he would face an additional charge for consumption or possession, in addition to the charge for possession of the five sachets of heroin found on him.

14.He did not know of the existence of the drugs found in the kitchen cabinet and in the red pail. The last time he opened the kitchen cabinet was some three weeks before his arrest, when he mopped the flat. There were no drugs in the cabinet. Therefore, when Insp Soh showed him the two plastic containers of drugs in the kitchen cabinet, he felt curious as to how they came to be there and remarked "How could this be?". There were two or three officers in the kitchen at the time. While he did not dispute the voluntariness or accuracy of the conversation recorded by Insp Soh, he knew that the granular substance in the containers was `pei hoon` because he himself was a drug addict. As for the red pail, it belonged to Lau who told him previously that he was leaving it at the flat for the appellant`s use. When the appellant mopped the flat three weeks before his arrest, the red pail was empty as were the plastic bags on the kitchen floor. He knew because he put the empty plastic bags into the red pail so that the kitchen would look neater.

15.He knew of the existence of the electric sealer and digital weighing scale found in the living room. Some three weeks before his arrest, he woke up from his afternoon nap and saw the two items in the living room. The sealer was placed on the shelf, with the coil wrapped around. He knew that the weighing scale was an `important instrument` because he had heard that such scales were used for weighing heroin. He contacted Lau, who told him that a friend had asked him to keep the two items for a few days. Lau assured him that he would remove them in two or three days. He suspected that Lau might be dealing in drugs and searched the whole flat after his departure, but did not find anything suspicious. While he had never seen Lau packing heroin at the flat, he could not say what Lau did at the flat during the times when he was out or asleep. Later the same day, Lau came to the flat again. This time, he told Lau that he could only allow him to consume drugs in the flat but not carry out other activities. Lau reassured him by saying that he would not...

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