Chin Siong Kian v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 12 February 2000
• Neutral Citation: [2000] SGCA 8
• Docket Number: Criminal Appeal No 21 of 1999
• Date: 12 February 2000
• Year: 2000
• Published date: 07 November 2003
• Plaintiff Counsel: Ho Meng Hee (Ho Meng Hee & Co) and Eugene Lee (Chris Chong & CT Ho Partnership) (both assigned)
• Citation: [2000] SGCA 8
• Defendant Counsel: Low Cheong Yeow (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: Proof of evidence,Charge,s 34 Penal Code (Cap 224),Whether prosecution established case beyond reasonable doubt,Alteration,Evidence,s 30 Evidence Act (Cap 97, 1997 Ed),Request for amendment of charge to joint charge at close of prosecution's case,Statutory offences,ss 5(1)(a), 5(2) Misuse of Drugs Act (Cap 185, 1998 Ed),Common intention,Whether defence believable,Confessions,Complicity,Whether common intention between appellant and co-accused to put latter in possession of drugs,Whether appropriate for court to allow amendment at that stage,Criminal Law,Misuse of Drugs Act,Trafficking in controlled drugs,Circumstantial evidence,Joint trafficking,ss 5(1)(a), 5(2), 17 Misuse of Drugs Act (Cap 185, 1998 Ed)- s 34 Penal Code (Cap 224),s 163(1) Criminal Procedure Code (Cap 68),Whether prima facie case established at close of prosecution's case,Whether co-accused's confessions may be used to incriminate accused,Confessions of co-accused,Criminal Procedure and Sentencing

(delivering the grounds of judgment of the court): On 6 September 1999 the appellant, together with another Wan Yue Kong (`Wan`), was convicted and sentenced to death by Judicial Commissioner Amarjeet Singh (`the trial judge`) under a joint charge of drug trafficking. He appealed against his conviction and sentence. At the conclusion of the hearing we dismissed the appeal and now give our reasons. We should add that Wan did not file any appeal.

The appellant was originally charged in the High Court with the following offence:

That, you, Chin Siong Kian, on or about the 2nd day of March 1999, between 3.50pm to 3.55pm, at the ground floor lift landing of Block 106 Jalan Bukit Merah, 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 giving ten (10) packets of substance containing not less than 122.9 grams of diamorphine in a red plastic bag to one Wan Yue Kong, Nric S7121997F, at the aforesaid place, without any authorisation under the said 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.

A separate capital charge was framed against Wan in relation to the same transaction. Wan also faced a second non-capital charge which was stood down.

Both the appellant and Wan were jointly tried in the same court. At the close of the prosecution`s case the court allowed the prosecution`s application that the capital charges against the two accused be amended to a joint capital charge. In allowing the amendment, the trial judge permitted counsel to further cross-examine any of the prosecution`s witnesses if they so wished. Counsel for the appellant did avail himself of this opportunity.

The amended joint charge against the accused read:

You,

Wan Yue Kong (Nric S7121997-F)

Chin Siong Kian (M`sian Nric 770504-01-5603)

are charged that in furtherance of the common intention of both of you, on or about the 2nd day of March 1999, between 3.50pm and 3.55pm, at the ground floor lift landing of Block 106 Jalan Bukit Merah, Singapore, did jointly 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, 10 packets containing not less than 122.9 grams 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 section 5(1)(a) read with section 5(2) of the Misuse of Drugs Act and section 34 of the Penal Code (Cap 224) and punishable under section 33 of the Misuse of Drugs Act.

The prosecution`s case

On 2 March 1999 a group of Central Narcotics Bureau (`CNB`) officers were keeping surveillance on Wan at Block 403, Clementi Avenue 1. At around 3.10pm Wan and a female Chinese (later ascertained to be one `Bee Lian`) took a taxi from Clementi Avenue 1 to come to the car park of Block 106 and Block 107 of Jalan Bukit Merah. These two blocks face each other, with a car park located in-between. Having alighted from the taxi, Wan walked in the direction of the lift landing at Block 106 while Bee Lian walked towards Block 107.

At the time, one Chee Kiat Chong (`Chong`), a friend of Wan, who was sitting in a coffee shop at Block 107, saw Wan`s arrival in the taxi. About five minutes later, Wan came into the coffee shop and asked Chong whether he would want to go to Tiong Bahru Plaza later. Wan then walked out of the coffee shop and returned about five to ten minutes later to join Chong at the latter`s table. He also ordered some food. About ten minutes later, Wan received a call on his hand phone, whereupon he, without finishing his food, left the coffee shop and walked towards Block 106. Soon thereafter, Chong noticed a Malaysian registered car, with a registration number beginning with `W`, parked near to Block 106.

The arrival of a Malaysian registered car with the number plate WAF 7185 was seen by S/Sgt Lim and Sgt Kassim who were keeping watch at the entrance to the car park. The driver of the car, later ascertained to be the appellant, alighted and opened the boot of the car, took out a red plastic bag and walked in the direction of the lift landing of Block 106. S/Sgt Lim`s and Sgt Kassim`s evidence was that the red plastic bag appeared to contain light coloured bundles. Shortly thereafter, S/Sgt Lim and Sgt Kassim saw the appellant leaving the car park in WAF 7185. Chong also saw the car leaving. The two officers tailed the car until the Woodlands Immigration Checkpoint where the appellant was arrested by a party of CNB officers led by Insp Lester Lim. A search of the appellant`s person and the car produced nothing incriminating.

In the meantime, Wan returned to the coffee shop. After finishing his food, he told Chong that he was leaving for Tiong Bahru Plaza. Chong agreed to follow Wan. Both walked towards Block 106 and Wan contacted Bee Lian to ask her to come down. The three of them then took a taxi to Tiong Bahru Plaza. As they were about to alight from the taxi at the destination, they were arrested by CNB officers. They were then taken back to Block 106, Jalan Bukit Merah, unit [num ]06-1846. This unit (rented from HDB) belonged to Wan`s uncle, one Mark Siak Kong, who had allowed Wan to use it. A search was done outside the unit and two keys were found at a ventilation opening and with the two keys the officers opened the metal grill and wooden door of the unit.

The CNB officers who conducted the search inside the flat included the investigating officer, W/Insp Cindy Goh, and S/Sgt Tai Kwong Yong (`S/Sgt Tai`). In a `Marlboro` cardboard paper box that was placed next to a double-decker bed in the living room cum bedroom, S/Sgt Tai saw two red plastic bags in it. One of the red plastic bags was bigger and double-layered, ie there was another red plastic bag inside it. This bigger red plastic bag was found to contain ten bundles of substance, which were later analysed and found to contain diamorphine. Inside the smaller red plastic bag was another white plastic bag where there were two bundles of substance which were analysed and found to also contain diamorphine.

Other than the two red plastic bags described above, the following were also found in the `Marlboro` box:

(1) a red plastic bag which contained clothes;

(2) a red plastic bag which contained a kettle;

(3) a red plastic bag which contained some empty envelopes;

(4) an empty red plastic bag;

(5) a black plastic bag which contained cash amounting to $3,500;

(6) three clothes hangers;

(7) a sieve set; and

(8) a few pieces of newspapers at the bottom of the box.

Because at the time Wan indicated that there were `some more`, S/Sgt Tai found from under the coffee table, another packet of substance which was later analysed to also contain diamorphine. This packet of substance had no relevance to this appeal. A TANITA digital weighing scale was also found there.

At the end of the search, IO W/Insp Goh put a number of questions to Wan in Hokkien. The questions and answers were recorded by IO W/Insp Goh in her field book and were read back to Wan, who affirmed it by signing against the recording.

Scientific analysis of substance seized

The ten bundles of substance found in the larger red plastic bag in the Malboro box, which were of a gross weight of 4,496g, were analysed by the Department of Scientific Services to contain not less than 122.9g of diamorphine. Their purity level was 2.7%. The two bundles found in the smaller plastic bag was of a gross weight of 883.7g and contained not less than 9.01g of diamorphine. Their purity level was only 1%.

Fingerprint evidence

The various items seized were also examined for fingerprints. The fingerprints lifted from the weighing scale matched the right middle finger of Wan. The other finger impressions obtained were obscure.

Statements made by Wan

A number of statements were recorded from Wan, as well as from the appellant, by IO W/Insp Goh. Wan did not challenge the admission of his statements. Some parts of Wan`s statements implicated the appellant and were relied upon by the prosecution. We now set out those pertinent parts of Wan`s statements:

Oral statement of Wan recorded on 2 March 1999

Q: Ri quo si mi mai? (What`s your name?)

A: Wan Yue Kong.

Q: Pei Hun si mi si ri eh? (Is the heroin yours?)

A: Pei Hun rong zong wa eh, gar ei nan bo guang hi. (All the heroin is mine and has nothing to do with them).

Q: Hi dao eh Pei Hun sin mi si ri eh? (The heroin over there, is it yours?) [Pointing to some packets of heroin under the coffee table]

A: Si, nong zong si wai eh (Yes, all mine)

Cautioned statement of Wan recorded on 4 March 1999

The heroin belongs to me and have nothing to do with my girlfriend Jo Jo [ie Bee Lian] and my friend Ah Chong. Both of them accompanied me to Tiong Bahru Plaza to buy things. Both of them did not know anything about the heroin.

The long statement of Wan recorded on 5 March 1999 at 1055hrs

2 On Monday night (1.3.99), I was in a hotel ... About 3 to 4 am, my girlfriend "Jo Jo" called me on my handphone ... I took a taxi and went to her house ...

3 When I arrived at my girlfriend`s house, we chit-chat until about 8 am ... shopped around at Chinatown areas until about 12 noon. We then took a taxi to my flat at Blk 403 Clementi Ave 1 [num ]13-196 ... At about 2 pm, I received a call on my handphone. The call was from Malaysia and the caller was "Ah Seng". He told me in Hokkien that the "mi kia" (stuff) had arrived. He asked me to go to Block 106 Jalan Bukit Merah at about 3 pm to wait for his call ... we decided to leave in a taxi together.

4 At about some time after 3 pm, the taxi arrived at the car park of Blk 106 Jalan Bukit Merah...