Chou Kooi Pang and Another v Public Prosecutor

• Judge: Chao Hick Tin J
• Judgment Date: 24 August 1998
• Neutral Citation: [1998] SGCA 48
• Citation: [1998] SGCA 48
• Defendant Counsel: Kelvin Lim (Kelvin Lim & Partners) and Teo Choo Kee (Lee & Tan),Jaswant Singh (Deputy Public Prosecutor)
• Published date: 19 September 2003
• Plaintiff Counsel: Tan Teow Yeow (Tan Teow Yeow & Co) and Billy Low Naifah (Billy & Han)
• Date: 24 August 1998
• Docket Number: Criminal Appeal No 4 of 1998
• Court: Court of Appeal (Singapore)
• Subject Matter: Failure to mention material part of defence at earlier stage,Criminal Law,Burden of rebutting presumption on balance of probabilities,Whether first appellant succeeded in rebutting presumption,First appellant's failure to testify,Misuse of Drugs Act,Controlled drugs,Statutory offences,Misuse of Drugs Act (Cap 185, 1997 Ed),Whether defence believable,Criminal Procedure and Sentencing,Possession for purpose of trafficking,Whether trial judge entitled to disbelieve second appellant's defence,Trafficking in controlled drugs,Defence,s 18(2) Misuse of Drugs Act (Cap 185, 1997 Ed),Whether opinion of expert necessary in present case,Purpose of admitting expert evidence,Opportunity of examining contents of bag before arrest,Trials,Whether trial judge entitled to draw inference that first appellant failed to rebut presumption,Evidence,Defence of lack of knowledge of quantity of drugs in bag,Expert evidence,Witnesses,Statutory presumption of knowledge,Presumption of knowledge

Judgment:

YONG PUNG HOW CJ

(delivering the grounds of judgment of the court): This is an appeal against the decision of Rubin J convicting the first and second appellants of the charges they stood accused of. Briefly stated, the charge against the first appellant was for delivering ten packets of drugs containing not less than 290.4g of diamorphine to the second appellant at about 7.55pm on 9 June 1997, an offence under s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 1997 Ed) (the Act) and punishable under s 33 of the Act. The charge against the second appellant was for having the drug in his possession for the purpose of trafficking, an offence under s 5(1)(a) read with s 5(2) of the Act and punishable under s 33 of the Act.

2. The brief facts

The facts leading up to the arrest of the appellants for their offences were quite straightforward. On 9 June 1997, Central Narcotics Bureau (CNB) officers kept surveillance at various locations near the car park in front of Block 603 Ang Mo Kio Avenue 5 as well as along the nearby Serenade Walk to observe the movements of the second appellant from about 2pm.

3.At about 7.50pm, the second appellant emerged from a flat on the seventh level in the block and was seen descending the staircase to the car park below. He was later observed close to a red Malaysian motor vehicle (identified subsequently as bearing registration No JDW 4231). At about 7.55pm, the Malaysian vehicle left the car park and the second appellant was seen carrying a dark coloured bag and returning to the flat on the seventh level via the staircase.

4.Meanwhile, another team of CNB officers trailed the Malaysian vehicle along Ang Mo Kio Avenue 5, Yio Chu Kang Road and thence to Mandai Road. At Mandai Road, the driver of the vehicle (later identified as the first appellant) alighted to make a telephone call at a public telephone booth. He was arrested.

5.Whilst the arrest of the first appellant at Mandai Road was in train, the surveillance of the second appellant at Block 603 Ang Mo Kio Avenue 5 was also in full swing. At 9.10pm, CNB officers observed the second appellant leaving the flat at the seventh level and making his way down carrying a dark-coloured bag. Upon seeing the officers, the second appellant threw away the bag and tried to run away. He was arrested. Inside the bag hastily abandoned by the second appellant were the drugs specified in the charge.

6.Both the appellants claimed trial to their respective charges.

7. The defence

At the close of the prosecution`s case, the trial judge concluded that a case had been made out against both the first and second appellants. The first appellant elected to remain silent throughout the trial. He relied on the statements made to the CNB and called an expert witness to support his defence that he was a person of borderline intelligence and was an innocent courier. The prosecution called another expert witness to testify in rebuttal.

8.The second appellant elected to give evidence from the witness box. He admitted that he collected the drugs from the first appellant but claimed that he did not know that the bag contained so much more heroin than he had been prepared to receive.

9.The court rejected the defences of both of them and they were convicted on their respective charges and sentenced to suffer death.

10. The appeal

The appellants appealed against the decision of the trial judge. For the sake of clarity, both the appellants` appeals will be taken separately, as counsel for both appellants raised quite separate and distinct issues in relation to each appellant.

The first appellant`s appeal

(i) Expert evidence on the mental state of the first appellant

11.The gist of the first appellant`s defence was that he was an innocent courier. As such, an expert witness was called by the defence (DW1) to give evidence on the mental state of the first appellant at the time of the offence. The crux of DW1`s evidence was that an IQ of 79 predisposed the first appellant to be ` simple minded, nave of people`s motives, and shallow in critical thinking ` and as a result ` he followed instructions accordingly thinking all along that he was not transporting any illegal drugs `. The first appellant ` did not feel suspicious all along that he was transporting illegal drugs to Singapore `.

12.This defence was rejected by the trial judge. In our view, the learned trial judge was right in doing so. It has been held by the Court of Appeal in PP v Rozman bin Jusoh [1995] 3 SLR 317 , in dealing with the culpability of an accused person possessing an IQ of 72, at pp 328 and 329:

low or subnormal intellect is not unsoundness of mind and is not a defence to a criminal charge, and an educationally subnormal person can be criminally culpable for his actions. `low intellect` and his disposition of being easily susceptible to manipulation by others is not a defence to a criminal charge. Nor can such low intellect and malleable disposition diminish or eradicate the presence of mens rea.

13.Further, it can be seen that the first appellant had the ability to cope with every day living. The trial judge noted, for instance, that he possessed sufficient intelligence to have passed the Highway Code and obtained a Singapore driving licence. He was also able to hold down a job as a marble grinder, earning about $70 a day for the skills that he possessed. This led the trial judge to conclude that the first appellant `was capable of leading a normal life and deal with life`s routine responsibilities like any other ordinary man`.

14.There was also the evidence of the prosecution`s rebuttal witness, PW 32, which contradicted DW 1`s evidence on...