Criminal Procedure, Evidence and Sentencing

Citation(2018) 19 SAL Ann Rev 441
Publication year2018
Date01 December 2018
Published date01 December 2018

14.1 It has been said that the “golden thread” that runs through criminal law – a corollary of the presumption of innocence – is that the Prosecution bears the burden of proving a criminal charge beyond reasonable doubt.1 Two cases in 2018 – both involving offences under the Misuse of Drugs Act2 (“MDA”) – underscore the importance of this, and the application of the principle.

Fundamental requirement of fairness for Prosecution to run a consistent case that gives accused chance to rebut it

14.2 The first – the Court of Appeal decision of Mui Jia Jun v Public Prosecutor3 (“Mui Jia Jun”) – serves as a salutary reminder4 that, in view of the Prosecution's burden, a trial court should not make a finding that resolves against the accused what would otherwise amount to a vital

weakness in the Prosecution's case when such weakness was not addressed by the Prosecution sufficiently to support such finding. Put another way, it is incumbent on the Prosecution, and not the court, to address any weaknesses in the evidence adduced.

14.3 The case involved two offenders, though the appeal only involved one of these two individuals. The Prosecution's case at trial in Mui Jia Jun was a composite one that comprised two facets of participation – first, that the appellant had handed the co-offender (“Tan”) a bag containing the drugs; and second, that the appellant had sent the co-offender text messages containing instructions regarding the delivery of the drugs. The Prosecution did not suggest, in its opening address or otherwise, that these two aspects of its case were independent bases upon which the appellant could be convicted. On appeal, the Prosecution conceded that although there was reasonable doubt as to whether the first facet of its case had been established, the appellant's conviction could be upheld nonetheless based singularly on the evidence supporting the second facet of its case.

14.4 Tan claimed to have only handled the drugs in the course of separating them for their intended recipients. In spite of his evidence that he had not packed any of the drugs, his DNA was found on the adhesive side of the tape covering the cling wrap around five of the ten bundles. No reasonable explanation was offered by the Prosecution for this, although this suggested that Tan may have been more intimately involved in the preparation of the drug bundles than he had claimed to be. The trial judge reasoned that Tan's DNA could have been left on the exposed adhesive edges of tape at the ends of the bundles while he was handling the bundles for delivery. The Court of Appeal took issue with such a finding, noting that it was wrong to resolve such doubt in the circumstances in the Prosecution's favour and that the trial judge was not entitled to fill in this significant lacuna in the Prosecution's case even assuming there may have been some evidential basis to do so.5

14.5 The Court of Appeal accordingly ordered a retrial of the matter. It highlighted that an accused person was not liable to be convicted based on a case that was not clearly mounted against him at the trial where the evidence, especially that of the defence, might have unfolded differently had the Prosecution clearly advanced that case.6 The Court of Appeal also laid down guidance for the Prosecution to make it explicit when it was seeking a conviction based on any individual facet of its case, if it was advancing a composite case comprising several facets

and such intent was otherwise not reasonably clear to the accused absent an express statement to that effect. Two points in particular were highlighted:7

(a) First, the charge should, if practicable, clearly state the various facets of the Prosecution's case against the accused.

(b) Second, the Prosecution should make clear that it is seeking a conviction of the accused based on any one of the multiple facets of its case. If this cannot be done in the charge, it could be made clear in the opening address at the trial or in other ways in writing.

Chain of custody – Drug exhibits under MDA

14.6 It is trite that vis-à-vis offences under the MDA, the Prosecution bears the burden of proving beyond reasonable doubt that the exhibits seized were, in fact, the substances analysed and that formed the substratum of the charge(s) against the accused.8 The second case, Mohamed Affandi bin Rosli v Public Prosecutor9 (“Mohamed Affandi”), served as a useful and salutary reminder of the importance of the integrity of establishing the chain of possession vis-à-vis such exhibits. For present purposes, it is useful to note that, in that case, two officers from the Central Narcotics Bureau (“CNB”) testified to two mutually exclusive narratives on who had possession of the drug exhibits for a few hours on the day of the seizure. The question that arose was whether this raised a reasonable doubt on the chain of custody, notwithstanding the fact that both narratives entailed a CNB officer taking care, and having carriage, of the exhibits in question.

14.7 The Court of Appeal, in a majority decision, acquitted the accused persons, concluding that a reasonable doubt was raised in relation to the integrity of the chain of custody of the exhibits in this case. The majority (Sundaresh Menon CJ and Chao Hick Tin SJ) noted that the two disparate accounts gave rise to a reasonable doubt as to the identity of the exhibits. In their view, the court had, before it, two complete and mutually exclusive chains of custody of exhibits, neither of which could be disproved, and neither of which therefore could be proved beyond a reasonable doubt.10 In the majority view, it was not for an accused to have to show that the exhibits left the custody of the officers, that unauthorised parties had access to them during such

period, or that the exhibits had been interfered with, but for the Prosecution to prove the chain of custody beyond reasonable doubt.

14.8 The minority (Tay Yong Kwang JA) disagreed with such analysis. Instead, the minority opined that going by either version of events, there was a single unbroken chain of custody of the exhibits. As there was no evidence to suggest that the exhibits ever left the custody of the CNB officers, or were mixed up with other unrelated exhibits, no reasonable doubt was raised in relation to the identity of the exhibits.11 Consequently, the minority concluded that the convictions recorded by the High Court should not be disturbed and dismissed the appeals.

14.9 Whatever the merits of the diametrically opposed outcomes arrived at by the majority and minority of the Court of Appeal in this case, it is perhaps apt for the authors to underscore the fact that the decision is not, and should not be seen, as being reflective of any change in the law. In particular, the majority decision was quick to highlight that none of what the majority decided means that speculative arguments about the possibility of contamination would be entertained, or that in every drug case, the Prosecution bears the burden of calling each and every witness to establish chain of possession.12 Put another way, the majority noted, speculative contentions of a theoretical possibility of a break in the chain of custody would not suffice.13 This coheres with the position taken by the minority that the mere raising of possibilities that fall within the realm of speculation would not rise to the level of creating a reasonable doubt.14

The Prosecution's obligations of disclosure

14.10 In 2011, the seminal case of Muhammad bin Kadar v Public Prosecutor15 (“Kadar (No 1)”) set out the common law duty of the Prosecution in relation to disclosure of relevant material not favourable to its case. In summary, the Prosecution must disclose to the Defence material which takes the form of (a) any unused material that is likely to be admissible and that might reasonably be regarded as credible and relevant to the guilt or innocence of the accused; and (b) any unused material that is likely to be inadmissible, but would provide a real (not fanciful) chance of pursuing a line of inquiry that leads to material that is likely to be admissible and that might reasonably be regarded as

credible and relevant to the guilt or innocence of the accused.16 Following the decision in Kadar (No 1), there have been multiple – largely unsuccessful – challenges brought by the Defence against what is claimed to be purported breaches by the Prosecution of its disclosure obligations. 2018 was no exception, with four cases in particular warranting mention.

14.11 In Public Prosecutor v Muhammad Nabill bin Mohd Fuad17 and Tay Wee Kiat v Public Prosecutor18 (“Tay Wee Kiat”), the High Court reiterated that the starting point in the analysis was to first recognise that, pursuant to s 259 of the Criminal Procedure Code19 (“CPC”), witness statements made by a person other than the accused were inadmissible unless they fell within the scope of the exceptions listed. The court did not have power to depart from or vary the requirements of statute, and the Prosecution's obligations under Kadar (No 1) would not affect the operation of any ground for non-disclosure recognised by any law.20 The Prosecution would therefore only be obliged to disclose the statements to the Defence if they “would provide a real (not fanciful) chance of pursuing a line of inquiry that leads to material that is likely to be admissible and that might reasonably be regarded as credible and relevant to the guilt or innocence of the accused”.21 The High Court, in dismissing the application in both instances, noted that these requirements were not satisfied in either case. The High Court specifically emphasised that even if there were possible inconsistencies to be found in a victim's statements, this did not necessarily or by itself entitle the Defence to disclosure. It noted that to hold otherwise would be to essentially introduce a general “duty” to disclose the victim's...

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