Dinesh Pillai a/l K Raja Retnam v PP

• Jurisdiction: Singapore
• Judgment Date: 29 August 2012
• Date: 29 August 2012
• Docket Number: Criminal Motion No 51 of 2012
• Court: Court of Appeal (Singapore)

Dinesh Pillai a/l K Raja Retnam

Plaintiff

and

Public Prosecutor

Defendant

[2012] SGCA 49

Chan Sek Keong CJ, Andrew Phang Boon Leong JA and V K Rajah JA

Criminal Motion No 51 of 2012

Court of Appeal

Constitutional Law—Attorney-General—Prosecutorial discretion—Attorney-General bringing charge where evidence consisted of police statement alleged to be obtained improperly—Police statement found to be made voluntarily—Whether Attorney-General acted in bad faith in prosecuting

Constitutional Law—Attorney-General—Prosecutorial discretion—Whether s 53 Misuse of Drugs Act (Cap 185, 2008 Rev Ed) allowed Attorney-General to bring capital charge in Subordinate Courts—Section 53 Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal Law—Statutory offences—Misuse of Drugs Act—Presumption under s 18 (2) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)—Accused person found to be in possession of controlled drug—Accused person not checking contents of package to be delivered despite suspecting that it contained something illegal—Whether presumption of knowledge of nature of that drug disproved—Section 18 (2) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

This is an application by the applicant to set aside his conviction and sentence in Dinesh Pillai a/l K Raja Retnam v PP[2012] 2 SLR 903 (‘Dinesh Pillai CA’). In Dinesh Pillai CA, the Court of Appeal upheld his conviction by the High Court for the offence of importing into Singapore not less than 19.35 g of diamorphine without any authorisation under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘the MDA’), an offence punishable with death under s 33 read with the Second Schedule to the MDA.

Sometime in November/December 2009, the applicant, who lived in Malaysia, was offered money by one ‘Raja’ to deliver food to a person in Singapore and was told never to open the package of food to be delivered. Unemployed and in financial difficulty, the applicant agreed, despite suspecting that he would be delivering something other than food. On 19 December 2009, the applicant was arrested at Woodlands Immigration Checkpoint and was found to have kept in his motorcycle a brown paper-wrapped packet (‘the Brown Packet’). The Brown Packet was later found to contain not less than 19.35 g of diamorphine.

After his arrest, the applicant gave various statements to the Central Narcotics Bureau officers in which he was recorded as having (a)replied to a question by the investigator that the Brown Packet contained controlled drugs, and (b)admitted that he did not ask Raja what the package contained.

In upholding the applicant's conviction in Dinesh Pillai CA, the Court of Appeal affirmed the High Court's finding that the applicant had not rebutted the presumption under s 18 (2) of the MDA that he knew the nature of the controlled drug which he was carrying because he turned a blind eye to what the Brown Packet contained despite suspecting that it contained something illegal. In this application, the applicant argued that (a)the Court of Appeal in Dinesh Pillai CA had erred in law in affirming the High Court's finding of knowledge on the ground that the applicant was careless, negligent or reckless in not checking the Brown Packet to find out what was in it, (b)s 33 read with s 53 and the Second Schedule to the MDA was unconstitutional ‘as it allows for the prosecution to select the exact punishment to be inflicted upon an individual member of a class of offenders with the same legal guilt’, and (c)the Public Prosecutor acted in bad faith in bringing a capital charge against the applicant based on irrelevant considerations.

Held, dismissing the application:

(1) The applicant's first argument was entirely misplaced. The material issue was not what he actually knew or did not know was in the Brown Packet but was, rather, whether he had proved the contrary of the presumption under s 18 (2) of the MDA on a balance of probabilities. In the circumstances of this case, the applicant had not done so because he made no effort to find out what he was bringing into Singapore in circumstances which would have alerted a reasonable person that he was being asked to do something illegal: at [11].

(2) The applicant's second argument also failed. The purpose of s 53 of the MDA was not to enable the Public Prosecutor to bring a drug trafficking charge in the District Court that was punishable with death so as to effectively reduce it to a non-capital charge. The purpose of s 53 of the MDA was instead to vest in the Subordinate Courts sentencing powers with respect to non-capital drug offences beyond their normal sentencing powers under the Criminal Procedure Code 2010 (previously the Criminal Procedure Code (Cap 68, 1985 Rev Ed)): at [23].

(3) The applicant's third argument was a non-starter as the Public Prosecutor was the sole decider as to the merits of a prosecution. In any event, the fact that the High Court found the applicant guilty on the evidence confirmed the propriety as well as the validity of the Public Prosecutor's prosecutorial decision: at [24].

[Observation: The decision of the Privy Council in Mohammed Muktar Ali v The Queen[1992] 2 AC 93, which considered the constitutionality of certain provisions of the Mauritian Dangerous Drugs Act 1986(‘the MDDA’), did not apply in Singapore because of the differences between the MDDA and the MDA. In particular, the MDDA did not differentiate the quantity of drugs that were being trafficked while the Second Schedule to the MDA calibrated the punishments applicable to the quantity of controlled drugs for which an offender had been convicted for offences under the MDA: at [22].]

Dinesh Pillai a/l K Raja Retnam v PP [2012] 2 SLR 903 (refd)

Mohammed Muktar Ali v R [1992] 2 AC 93 (distd)

Nguyen Tuong Van v PP [2005] 1 SLR (R) 103; [2005] 1 SLR 103 (refd)

PP v Dinesh Pillai a/l Raja Retnam [2011] SGHC 95 (refd)

Teh Cheng Poh alias Char Meh v PP, Malaysia [1980] AC 458 (refd)

Constitution of the Republic of Singapore (1985 Rev Ed,1999 Reprint) Art 12

Criminal Procedure Code (Cap 68, 1985 Rev Ed)

Criminal Procedure Code 2010 (Act 15 of 2010) s 303 (2) (a)

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) ss 18 (2) , 53 (consd) ; ss 7, 18, 33, Second Schedule

Dangerous Drugs Act 1986 (Mauritius) ss 28 (1) (c) , 38 (4)

Eugene Thuraisingam and Mervyn Cheong (Eugene Thuraisingam) for the applicant

Aedit Abdullah SC and Wong Woon Kwong (Attorney-General's Chambers) for the respondent.

Chan Sek Keong CJ

(delivering the grounds of decision of the court):

Introduction

1 This is an application by one Dinesh Pillai a/l K Raja Retnam (‘the applicant’) to set aside his conviction and sentence in Dinesh Pillai a/l K Raja Retnam v PP [2012] 2 SLR 903 (‘Dinesh Pillai CA’). In Dinesh Pillai CA, this court upheld his conviction by the High Court for the offence of importing into Singapore not less than 19.35 g of diamorphine without any authorisation under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘the MDA’), an offence punishable with death under s 33 read with the Second Schedule to the MDA.

2 We dismissed this application at the conclusion of the hearing before us. We now give our reasons for dismissing it.

Facts

3 The detailed facts of the offence are set out in this court's written judgment in Dinesh Pillai CA. For the purposes of the present application, the pertinent facts are as follows. The applicant is a 29-year-old Malaysian male who lived in Skudai, Malaysia. Sometime in November/December 2009, the applicant was introduced to a person called ‘Raja’ who offered to pay the applicant to deliver food to a person called ‘Ah Boy’ in Singapore. The applicant was not told what kind of food he would have to deliver and was told never to open the package of food to be delivered. Unemployed and in financial difficulty, the applicant agreed, despite suspecting that he would be delivering something other than food.

4 On 10 December 2009 and 14 December 2009, the applicant made two such deliveries of ‘food’, without any mishap. The applicant was asked by Raja to make a third...