Cheng Siah Johnson v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 24 April 2002
• Neutral Citation: [2002] SGHC 84
• Date: 24 April 2002
• Subject Matter: Withdrawal of charge against another,Criminal Procedure and Sentencing,Plea of guilt,Appellant alleging spiking of drinks by co-accused,Criminal Law,Burden of proof,Whether sharing of drinks between appellant and co-accused,Burden and standard of proof,Effect of discrepancies between evidence of defence witnesses and appellant,s 24 Evidence Act (Cap 97, 1997 Ed),Urine tests,Defence of spiking,Evidence of defence witnesses,Trials,Whether retraction affects accused's ability to discharge evidential burden,ss 8(b)(i) & 33 Misuse of Drugs Act (Cap 185, 1998 Ed),Whether linkage between appellant and co-accused exists,Weight of evidence,Consumption of controlled drug,Misuse of Drugs Act,Evidence,Statements to narcotic officers,Whether evidence sufficient to rebut presumption,Withdrawal of charge,Penalties,Whether statements confessions,Sentencing,Courts' approach to such defence,Weight to be attached to fact,Whether adverse inference to be drawn from defence witnesses' failure to approach authorities before trial,Whether casts doubt upon defence,ss 8(b)(I) & 22 Misuse of Drugs Act (Cap 185, 1998 Ed),Appellant testing positive for controlled drug,Rights of accused,Statutory offences,Presumption of consumption,Whether sentence of 18 months' imprisonment manifestly excessive,Admissibility of evidence,Judge allowing retraction,Whether appellant's statements under ss 121 and 122(6) of Criminal Procedure Code (Cap 68) admissible,Whether practice of sharing drinks at nightclubs relevant,Co-accused absconding,Defence of 'spiking' and unknowingly consuming drinks of others,Defence witness sharing drink with appellant, testing positive for controlled drug and charged for consumption
• Docket Number: Magistrate's Appeal No 22 of 2002
• Published date: 19 September 2003
• Defendant Counsel: Jaswant Singh (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: SS Dhillon (Dhillon Dendroff & Partners)

Judgment

GROUNDS OF DECISION

Introduction

This was an appeal against conviction and sentence. The appellant, Cheng Siah Johnson (‘Johnson’) was convicted and sentenced to 18 months’ imprisonment in the district courts on 29 January 2002 on the following charge:

You, Cheng Siah Johnson Male/28 years NRIC: S7131170-H are charged that you, on or about the 25^th day of May 2001 in Singapore, did consume a controlled drug as specified in Class B of the First

Schedule of the Misuse of Drugs Act, Chapter 185, to wit, Ketamine without authorisation under the said Act or the Regulations made thereunder and you have thereby committed an offence under section 8(b)(i) and punishable under section 33 of the Misuse of Drugs Act.

I dismissed both appeals and now set out my reasons.

The facts

2 The agreed statement of facts tendered by the prosecution stated that, on 25 May 2001 at or about 1.45 am, Johnson was arrested with other persons in Velvet Underground Disco Pub (‘Velvet’) on suspicion of consuming drugs. At the Central Narcotics Bureau Headquarters two samples of urine were taken from him and were marked and sealed in his presence. These urine samples were subsequently found to contain traces of Ketamine.

3 Johnson was formally charged with consuming a controlled drug on 25 June 2001. He pleaded guilty to the charge on 13 November 2001 and sentencing was adjourned to 18 December 2001 for his then counsel to prepare a written mitigation before sentence. There was a further application for a postponement of sentencing on 18 December 2001, before the plea of guilt was retracted on 27 December 2001. The matter thereafter proceeded to trial and four witnesses, namely, Narcotics Officer Mohd Fazuri Bin Isnin (‘DW2’), his fiance Eileen Tan (‘DW3’), Chua Eng Hwee (‘DW4’) and Lim Siah Boon (‘DW5’) were called for the defence. The defence was twofold: the appellant did not consume Ketamine intentionally or knowingly because (1) his drink had been spiked; (2) he had drunk from glasses which did not belong to his party. The defence also attempted to draw a linkage to one "Lim Kee Ling" whom it claimed could be responsible for spiking Johnson’s drinks.

The appellant’s version of facts

4 Johnson testified that on 24 May 2001, he had arranged to meet DW3, DW4 and two other friends, Rudolf and Fabian, outside the entrance of Velvet at about 11.30 p.m. When the group was assembled, all five of them proceeded into Velvet which was described as being "packed shoulder to shoulder". They found space at a long rectangular table of about 15 feet long and stationed themselves there. Johnson remembered that there were about 10 to 15 jugs on the table with about 20 to 30 glasses "huddled together". He ordered a first round of drinks: two jugs of beer and a jug of bourbon coke and the group subsequently left for the dance floor.

5 Upon their return, Johnson claimed that there were a lot more drinks on the long table and the drinks "were in a mess and mixed up". He remembered one incident when he asked DW3 to identify their drinks and was told that their jug was at the left hand side of the long table, away from where they were standing. Subsequently, he claimed that he saw someone from a small round table, about three feet away, taking a drink from that jug. The people at this particular table had apparently placed some of their drinks on the left-hand side of the long table, about one foot away from Johnson’s, because their table was too small to contain all their drink. At that time, Johnson stated that he had already taken a few sips or almost one-half of a mug of beer. He told DW3 of his mistake and asked for a new mug of beer. Johnson also testified that, throughout that night, about eight to ten friends had offered him drinks. He had accepted them because it felt it would be rude not to. In particular, one Lim Kee Ling and ‘SB’ (‘DW5’) whom he knew as "hi and bye friends", were seated at the small round table and had offered him a glass of beer and a bottle of Corona. He drank the entire glass of beer and about three quarters of the bottle of Corona.

The version of facts of the appellant’s witnesses

6 DW2 was the investigation officer in charge of the case. He testified that 37 people were arrested on 25 May 2001. Seven of them were found to have controlled or prohibited drugs in their urine samples. Amongst them, Lim Kee Ling, DW5 and the appellant were charged with consuming Ketamine. Lim Kee Ling had absconded after being charged, one other was acquitted of the charge and a stern warning was given to him whilst another one and the appellant claimed trial.

7 DW3 testified that there were already "10 to 15 mugs" and about 15 glasses of beer on the long table when they arrived. She stated that, as the night went on, the table became very messy and Johnson had difficulty differentiating their drinks from the rest on the table, such that it became a "guessing game" at times. She stated that there were several occasions when she noticed Johnson "pick up a mug and put it back immediately, pick up another mug next to it, put it back immediately and pick up a third mug next to it, look around and in the end drink from it". She emphasised one particular incident when Johnson had asked her to identify their jug of beer. He then took the jug and poured some of the beer from the jug into a mug that he took from the table. Subsequently she had wanted to pour a drink for a friend from that same jug but was told by Johnson that it had been moved to the small round table. She further stated that she went over to the small round table and was told by someone that the jug belonged to them but had only been placed on the long table because there was no space on their table. This person was a friend of "Kee Ling" and DW5. DW3 testified that she was offered a full mug of beer but, as she disliked drinking beer, she passed it to DW5 instead. Kee Ling then picked up another mug of beer and these two mugs were then shared between Kee Ling, DW5 and Johnson.

8 DW3 also stated that the occupants of the small round table had placed jugs of beer, about six or seven mugs and a few Coronas on the long table. These drinks were grouped together with their drinks on the long table and, except for the Coronas, the drinks were otherwise indistinguishable from each other.

9 DW4 testified that Johnson had ordered Vodka with Ribena for the first round of drinks. Many jugs of drinks and glasses had been left on the long table by people who were dancing, standing and sitting. However these did not include the drinks of the people around the small round table which remained on their table. According to DW4, as the night progressed, they were unable to differentiate which were their drinks. He and Johnson simply grabbed whatever drinks were by their side without knowing exactly what they were drinking. DW4 also testified that more than four or five people from the small round table, both men and women, had offered Johnson drinks.

10 DW5 was the friend of Chan Choon Chye. On the night of 24 May 2001, at around midnight, he went alone to Velvet. He had a glass of whisky with friends at the small round table before moving to the long table where he saw Chan Choon Chye. At the long table, a friend of DW3 formally introduced him to Johnson for the first time. DW5 testified that Johnson had offered him a drink from the glasses that were already on the long table. Both of them then drank from the same glass. Other than this glass of beer, he remembered drinking from a common jug using straws with other friends. Although DW5 tested positive for Ketamine, charges were dropped against him and he was discharged after a stern warning.

The decision of the court below

11 The district judge was unable to find that the defence had succeeded in rebutting the presumption in s 22 of the Misuse of Drugs Act (Cap 185) on a balance of probabilities. He did not believe that Johnson, as a 30 year old businessman who had been frequenting pubs since he was 20, had never realised the dangers of taking other people’s drinks. From the numerous shifts in position from his evidence-in-chief and the hesitant way in which he explained why drugs were found in his urine samples, vacillating between alleging that he had drunk from a glass that he had been offered to admitting that he could have drunk from a glass that he had picked up from the table, the district judge concluded that his testimony was not to be believed. Neither did Johnson offer any such explanation in his s 122(6) cautioned statement taken one month after the incident on 25 June 2001.

12 The district judge also noted several material inconsistencies between the testimonies of Johnson, DW3, DW4 and DW5. In his view, the attempt by the defence to draw a "linkage" between Johnson and Lim Kee Ling failed as Johnson’s evidence that both DW5 and Lim Kee Ling had offered him drinks was debunked by DW5 who had testified that it was Johnson who had offered him a drink. There was also no credible reason why Lim Kee Ling would have wanted to spike Johnson’s drinks.

The appeal

13 Before me, counsel for the appellant argued that the district judge had erred in the following respects:

(1) Failing to give any or sufficient weight to the s 122(6) statement and to the s 121 statement of the appellant

(2) Failing to attach any weight to the fact that DW5 who had shared a drink with the appellant and was tested positive for Ketamine had his charge withdrawn

(3) Failing to consider all the circumstances of the case including the fact that it was common practice for patrons of nightclubs to share drinks

(4) Failing to consider the contention that Lim Kee Ling could have spiked the appellant’s drinks

(5) Concluding that DW3’s, DW4’s and DW5’s testimonies in support of the appellant were less likely to be believed because they had failed to offer themselves as witnesses to the authorities prior to the trial.

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