Chia Song Heng v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 31 August 1999
• Date: 31 August 1999
• Docket Number: Criminal Appeal No 14 of 1999
• Court: Court of Appeal (Singapore)

Chia Song Heng

Plaintiff

and

Public Prosecutor

Defendant

[1999] SGCA 64

Yong Pung How CJ

,

L P Thean JA

and

Chao Hick Tin JA

Criminal Appeal No 14 of 1999

Court of Appeal

Criminal Law–Statutory offences–Misuse of Drugs Act (Cap 185, 1997 Rev Ed)–Whether possession of drug for purpose of trafficking–Whether presumption of trafficking rebutted–Sections 5 and 17 Misuse of Drugs Act (Cap 185, 1997 Rev Ed)–Criminal Procedure and Sentencing–Trials–Defence–Accused silent in defence and failed to call witnesses–Whether adverse inferences may be drawn

The appellant, Chia was charged with possession of 87.8g of diamorphine, a controlled drug, for the purpose of trafficking, under s 5 (1) (a)read with s 5 (2) of the Misuse of Drugs Act (Cap 185, 1997 Rev Ed) (“MDA”). After his arrest, Chia was tested and treated by a doctor of Changi Prison Hospital for drug withdrawal syndrome. Chia disputed the doctor's evidence as to his degree of drug addiction and drug consumption rate. According to the doctor's report, Chia would take 650 days to consume all the diamorphine found in his possession. Chia's counsel submitted that based on Chia's statement under s 121 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed), his drug consumption rate was much higher and he would take only about 75 days to consume all the diamorphine found in his possession. The trial judge disbelieved this portion of Chia's statement and instead accepted the doctor's evidence. The trial judge also drew adverse inferences against Chia for electing to remain silent and concluded that Chia failed to prove, on a balance of probabilities that a substantial portion of the diamorphine was for his own consumption. Chia was convicted and sentenced to death. He appealed.

Held, dismissing the appeal:

(1) The combined effect of ss 5 (2) and 17 of the MDA was that, once possession of a controlled drug of more than 2g was proved, the person in possession would be presumed to be in possession for the purpose of trafficking. In this case, there was overwhelming evidence which proved that Chia was in possession of the diamorphine. The burden therefore shifted onto Chia to rebut the statutory presumption of trafficking under s 17 of MDA on a balance of probabilities. However, Chia chose not to testify or call any witnesses in his defence. There was no real attempt to rebut the statutory presumption save for a faint attempt by counsel to dispute the doctor's evidence on Chia's degree of addiction, and on that issue, the trial judge had accepted the doctor's evidence after hearing and considering all the evidence. The trial judge was thus amply justified to conclude that the presumption had not been rebutted on a balance of probabilities. This was all the more so when Chia failed to testify on his own behalf: at [32] and [36].

(2) The trial judge was at liberty to draw any inference as appeared proper from Chia's failure to give evidence on oath, including the ultimate adverse inference that he was guilty of the offence charged: at [37].

(3) Given the evidence against Chia, including his own statements which he did not challenge, it was reasonable for the judge to expect Chia to proffer some explanation in court if he were truly innocent of the offence charged. Failing to do so showed a lack of faith on Chia's part in his own case: at [39].

Fun Seong Cheng v PP [1997] 2 SLR (R) 796; [1997] 3 SLR 523 (refd)

Low Kok Wai v PP [1994] 1 SLR (R) 64; [1994] 1 SLR 676 (folld)

Oh Laye Koh v PP [1994] SGCA 102 (folld)

Sukor bin Abdul Rahman Sidik v PP [1994] 3 SLR (R) 704; [1995] 1 SLR 221 (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) ss 121, 122 (6), 189 (2), 196 (2)

Misuse of Drugs Act (Cap 185, 1997 Ed) ss 5, 17 (consd)

Billy Low and Goh Aik Leng (Billy & Han and Goh Aik Leng & Partners) for the appellant

Jaswant Singh (Deputy Public Prosecutor) for the respondent.

Chao Hick Tin JA

1 The appellant was convicted and sentenced to suffer the punishment of death by the High Court on the following charge:

You, Chia Song Heng are charged that you on or about 1 December 1998, at or about 6.45pm, at Block 63 Kallang Bahru #10-439, Singapore, did traffic in a controlled drug specified in Class 'A' of the First Schedule to the Misuse of Drugs Act (Cap 185), to wit, by having in your possession for the purpose of trafficking, two plastic packets and nineteen sachets containing not less than 87.78g of diamorphine at the aforesaid place 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) and punishable under s 33 of the Misuse of Drugs Act.

He appealed against the conviction and sentence. We heard the appeal on 16 August 1999 and dismissed it. We now give our reasons.

The facts

2 On 1 December 1998 at about 4.40pm, Sergeant Lim Eng Poh (“Sgt Lim”) and a team of CNB officers received instructions to trail a white pick-up bearing the registration number GH 7920Z, which was travelling along Geylang Road towards the city. About five minutes later, the team intercepted the pick-up along Geylang Road beside Ghim Peng Hotel. The driver of the vehicle was the appellant. There was a female passenger, Ng Lian Hua, seated next to him. Both of them were arrested.

3 Amongst the articles seized from the pick-up were two bunches of keys. One was a bunch of 11 keys and the other a bunch of six keys. One of the keys in the second bunch was inserted in the pick-up ignition.

4 Shortly thereafter, at about 5.03pm, Woman Inspector Karen Leong (“WInsp Leong”) arrived at the scene with her team and Sgt Lim handed the appellant and Ng Lian Hua, together with the exhibits, over to her. Both of them were brought by WInsp Leong to the Macdonald's car park at Stadium Walk. There they met up with Woman Inspector Cindy Goh (“WInsp Goh”) who was leading a third team of officers. One of the men with WInsp Goh was SSgt Tai Kwong Yong (“SSgt Tai”).

5 From the two bunches of keys seized, the appellant identified the keys to his rented flat at Block 219 Ang Mo Kio Avenue 1 #08-825 (“the Ang Mo Kio flat”) and Ng Lian Hua's rented flat at Block 63 Kallang Bahru #10-439 (“the Kallang Bahru flat”). The appellant also revealed to SSgt Tai that there were two...