Devendran a/l Supramaniam v Public Prosecutor

• Judge: Chao Hick Tin JA
• Judgment Date: 05 May 2015
• Neutral Citation: [2015] SGCA 25
• Subject Matter: Statutory offences,Misuse of Drugs,Criminal Procedure and Sentencing,Appeal,Criminal Law
• Docket Number: Criminal Appeal No 7 of 2014
• Defendant Counsel: Ng Cheng Thiam and Joshua Lim (Attorney-General's Chambers)
• Published date: 06 May 2015
• Plaintiff Counsel: Wendell Wong, Priscylia Wu (Drew & Napier LLC) and Ramachandran Shiever Subramanium (Grays LLC)
• Court: Court of Three Judges (Singapore)
• Hearing Date: 13 January 2015

Chao Hick Tin JA (delivering the judgment of the court): Introduction

On 12 May 2011, Devendran A/L Supramaniam (“the Appellant”) rode into Singapore on his motorcycle from across the Singapore-Johor Causeway. He was stopped at the Singapore Customs where his motorcycle was searched by customs officers. Six packets of powdery substance were found concealed in the seat of his motorcycle. The substance was established to contain 83.36 grammes of diamorphine. The trial judge (“the Judge”) held that the Appellant failed to rebut the statutory presumption that he knew the nature of the diamorphine. The Judge therefore convicted the Appellant on the charge of importing a controlled drug into Singapore. The Prosecution informed the court that it would not be issuing a certificate of substantive assistance. As mandated under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”), the Judge sentenced the Appellant to suffer the punishment of death. The Appellant appeals to this court against both his conviction and sentence.

Background Agreed facts

The Appellant was about 26 years old at the time of the offence. On the said date, at about 4.45am, the Appellant rode into Singapore from Johor on his motorcycle bearing registration number JMV 4571. When he produced his passport at the Woodlands Checkpoint, he was stopped by the Screening Officer of the Immigration and Checkpoints Authority (“ICA”). Shortly thereafter, officers from the Central Narcotics Bureau (“CNB”) arrived and searched his motorcycle.

The physical search and police dog search yielded no results. The Appellant was then asked to push his motorcycle to the ICA detention yard. There, a backscatter scan was conducted. A backscatter scan, based on similar technology behind scanners in airports, is used to detect if anything is concealed in the subject. The scan indicated that foreign objects were concealed in the motorcycle seat. The CNB officers proceeded to dismantle the motorcycle seat and found six bundles of powdery substance wrapped in newspaper concealed therein. The Appellant was placed under arrest for the importation of drugs.

The six bundles were sent to the Health Sciences Authority (“HSA”) for analysis. The gross weight of the substance in the six bundles was 2,728.1 grammes. The substance contained 83.36 grammes of diamorphine.

The charge

The Appellant was, accordingly, charged under s 7 of the MDA. The charge reads as follows:

YOU ARE CHARGED at the instance of the Public Prosecutor and the charge against you is: That you, DEVENDRAN A/L SUPRAMANIAM,

are charged that you, on the 12th day of May 2011 at or about 5.48 a.m, at Woodlands Checkpoint, Singapore (“the said place”), while riding a Malaysian registered motorcycle bearing registration no JMV4571, did import into the said place a controlled drug specified in Class A of the First Schedule to the Misuse of Drugs Act, Chapter 185 (“the said Act”), to wit, six (6) packets of granular/powdery substances weighing 2728.1 grams which was analysed and found to contain not less than 83.36 grams of diamorphine, without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under section 7 and punishable under section 33 of the said Act, and further upon your conviction under section 7 of the said Act, you may alternatively be liable to be punished under section 33B of the said Act.

Section 7 of the MDA provides as follows:

Import and export of controlled drugs 7. Except as authorised by this Act, it shall be an offence for a person to import into or export from Singapore a controlled drug.

Controlled drugs are defined in the First Schedule to the MDA. Diamorphine is listed as a Class A drug in the First Schedule. The punishment for an offence under s 7 of the MDA is provided for in s 33, which refers to the Second Schedule. According to the Second Schedule, where importation of more than 15 grammes of diamorphine is concerned, the punishment is the death penalty. However, the court has the discretion not to impose the death penalty pursuant to s 33B of the MDA.

The Appellant’s account

The Appellant claimed trial to the charge. He did not contest the actus reus of the offence, ie the physical carrying of the diamorphine from Malaysia into Singapore. He only contested the mens rea. He argued that he did not know that the six bundles concealed in his motorcycle seat contained diamorphine. He did not call any witnesses. His main case was that someone else had planted the drugs in his motorcycle seat. He expounded two theories to substantiate his claim of ignorance.

The first is the “Alagendran Theory”. The day before his arrest, on 11 May 2011, around 5.00–6.00pm, the Appellant lent his motorcycle to a friend named Alagendran. Alagendran returned the motorcycle to the Appellant at 8.30pm, at which point he informed the latter that at around 6.30pm, he had a fight with someone who was armed with a parang, and that the motorcycle was damaged in the process. There were cuts on the front cover near the handle bar as well as the seat cushion. Because of the damage caused, he took the motorcycle and had it repaired. By the time the Appellant saw the motorcycle at 8.30pm, the repairs had already been done. Based on this theory, the drugs could have been concealed in the seat while Alagendran had the use of the motorcycle, or while the motorcycle was sent by Alagendran for repair.

The second is the “Kumar Theory”. On 9 May 2011, the Appellant was informed that his step-brother was arrested in Kedah, Malaysia. Bail of RM2,000 was required to secure his release. The Appellant managed to borrow only RM500 from his friend, Agilan. He then met another friend, Suria, with whom he had previously worked at a shipyard in Pasir Gudang. Suria referred the Appellant to Kumar, who was a fellow colleague at the shipyard in Pasir Gudang. The three met at an eating place in Ulu Tiram, Johor Bahru (“the Shop”). Kumar used his hand phone to call an individual named Gobi and then passed the phone to the Appellant. It bears noting that the Appellant only identified Gobi in his further statement dated 16 May 2011. In his initial statement, he simply referred to his counterpart in that phone conversation as “the person”. Also, the Appellant claimed to have met Gobi twice before, but he was not close to Gobi.1ROP Vol 1: Day 3, pages 24–25.

Gobi asked the Appellant for a few details such as whether he had a Singapore passport, and whether he owned any property. The Appellant replied that he owned the motorcycle. Gobi told the Appellant he would lend him RM1,500 if he was willing to pledge the motorcycle as security. The Appellant agreed, and was instructed to meet Kumar the next day, 11 May 2011, at 10.00pm.

On 11 May 2011, at around 10.00pm, he rode his motorcycle to the Shop to meet Kumar. There, Kumar told him that Gobi wanted to see the motorcycle to check if it was stolen before granting the loan. Kumar rode away with the motorcycle.

Two hours later, around midnight, Kumar called the Appellant and informed him that he was back at the Shop. The Appellant went to the Shop to meet him. There, the Appellant took possession of his motorcycle from Kumar who then instructed the Appellant to ride the motorcycle into Singapore around 4.30am the next day (12 May 2011) to meet “Kumar and a Chinese man” at a Caltex petrol kiosk along Kranji Road. He was then to hand his motorcycle to them. His motorcycle would be returned to him at the bus stop near the Caltex petrol kiosk at around noon that same day. The loan would only be given to him that day after he had returned to Johor Bahru. After receiving Kumar’s instructions, the Appellant rode his motorcycle home. When he rode over bumps on the road, he felt the seat was harder than usual. However, he did not check the seat. On this theory, the drugs could have been concealed while the motorcycle was with Kumar.

In the morning of 12 May 2011, the Appellant rode into Singapore where at Woodlands Checkpoint he was arrested.

The decision below

The Judge convicted the Appellant and sentenced him to death. The grounds for the Judge’s decision are reported as Public Prosecutor v Devendran A/L Supramaniam [2014] SGHC 140 (“the GD”). His reasons can be stated in brief as follows: The actus reus of the offence was made out (the GD at [26]). To establish the mens rea of the offence, the Prosecution relied on the presumptions in ss 18 and 21 of the MDA. The first was that the Appellant was presumed to have been in possession of the diamorphine because it was found in his motorcycle seat, pursuant to either s 18(1)(a) or s 21. The second, following on from the first, was that the Appellant was presumed to have known the nature of the diamorphine by virtue of having the diamorphine in his possession (the GD at [27]). The Appellant contested the second presumption. He had to prove, on a balance of probabilities, that he had no knowledge that the bundles contained diamorphine (the GD at [28]). The Alagendran Theory was unpersuasive. This is for two reasons: First, the story was likely an afterthought. The Appellant only mentioned the events relating to Alagendran on 15 November 2011, around six months after he was arrested. This was despite the fact that the events surrounding Alagendran happened on 11 May 2011, one day before his arrest, and should have been fresh in his mind upon arrest (the GD at [30]–[31]). Second, the story itself was incredible. It was unexplained why the motorcycle had to be repaired with such urgency. Furthermore, the Appellant never arranged to meet Alagendran in Singapore, and hence it could not have been the case that Alagendran was making use of the Appellant to transport the drugs. The only other possible explanation, that Alagendran was trying to frame the Appellant, was even more incredible. The...