Dinesh Pillai a/l K Raja Retnam v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 29 August 2012
• Neutral Citation: [2012] SGCA 49
• Court: Court of Appeal (Singapore)
• Hearing Date: 15 August 2012
• Docket Number: Criminal Motion No 51 of 2012
• Plaintiff Counsel: Eugene Thuraisingam and Mervyn Cheong (Eugene Thuraisingam)
• Defendant Counsel: Aedit Abdullah SC and Wong Woon Kwong (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Statutory Offences,Misuse of Drugs Act Constitutional Law,Attorney-General,Prosecutorial Discretion
• Published date: 06 September 2012

Chan Sek Keong CJ (delivering the grounds of decision of the court): Introduction

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 Public Prosecutor [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 grammes 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.

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

Facts

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.

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 delivery to Ah Boy on 19 December 2009. This time, the applicant was arrested at Woodlands Immigration Checkpoint. He was found to have kept in his motorcycle a red plastic bag (“the Red Plastic Bag”) inside which were a brown paper-wrapped packet (“the Brown Packet”), a packet of curry and a packet of freshly cut chilli. The Brown Packet in the Red Plastic Bag was later found, on analysis by the Health Sciences Authority of Singapore, to contain not less than 19.35 grammes of diamorphine.

After his arrest, the applicant gave various statements to the Central Narcotics Bureau (“CNB”) 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 Red Plastic Bag contained.

Procedural History

At the trial before the High Court, the trial judge (“the Judge”) found on the evidence that the applicant had actual knowledge that he was carrying a controlled drug, but that he did not know what kind of controlled drug it was (see Public Prosecutor v Dinesh Pillai a/l K Raja Retnam [2011] SGHC 95 (“Dinesh Pillai HC”) at [44]). The Judge further found that the presumption in s 18(2) of the MDA applied to the applicant’s knowledge of the nature of the controlled drug. Section 18 of the MDA provides as follows:

Presumption of possession and knowledge of controlled drugs 18.—(1) Any person who is proved to have had in his possession or custody or under his control — (a) anything containing a controlled drug; …

shall, until the contrary is proved, be presumed to have had that drug in his possession.

(2) Any person who is proved or presumed to have had a controlled drug in his possession shall, until the contrary is proved, be presumed to have known the nature of that drug.

…

[emphasis added]

In finding that the applicant had failed to rebut the presumption in s 18(2) of the MDA, the Judge stated (see Dinesh Pillai HC at [46]–[47]): 46 It is apparent from section 18 that the presumption of knowledge of the actual nature of the drug in section 18(2) applies only if that drug is proved, or presumed under section 18(1), to have been in the accused’s possession. It is undisputed that [the Red Plastic Bag] was in [the applicant’s] physical possession, and that it was subsequently found to contain a controlled drug, diamorphine. Accordingly, the section 18(2) presumption is triggered and until the contrary is proved by [the applicant] on a balance of probability, [the applicant] is presumed to have known the actual nature of the drug found in his possession, which was diamorphine or heroin. 47 Given the totality of the evidence before me, I find that [the applicant] failed to rebut the presumption that he had knowledge of the actual nature of the drug found in his possession. He is therefore presumed under s 18(2) of the MDA to know that the controlled drug found in [the Brown Packet] was diamorphine or heroin.

On appeal to this Court, we affirmed the Judge’s finding that the applicant had not rebutted the presumption that he knew the nature of the controlled drug which he was carrying. In Dinesh Pillai CA, we held at [20]–[21] as follows: 20 In our view, the crucial question in relation to the s 18(2) MDA presumption in this case is whether it can be rebutted or proved to the contrary by [the applicant] merely asserting that he did not know what was in the Brown Packet when: (a) he did not believe that the Brown Packet contained what Raja said it contained (ie, food); and (b) he had ample time and opportunity to open the Brown Packet to see what was inside it. This is not a case where [the applicant] reasonably believed that the Brown Packet contained some controlled drug other than diamorphine (eg, “ice”, ecstasy, etc) and had good reason for such belief (compare, eg, Khor Soon Lee v PP [2011] 3 SLR 201 (“Khor Soon Lee”), where the Prosecution did not dispute the accused's evidence that he had no suspicion that the bundles found on him at the material time contained diamorphine as, when transporting similar bundles in the past, he had sometimes been told that the bundles contained erimin and ketamine and, at other times, had not been told of the contents of the bundles at all). In the present case, [the applicant] did not bother to take the simple step of peeping into the Brown Packet to see what it contained despite suspecting that it contained something illegal … If, for example, [the applicant] had testified that he had opened the Brown Packet and had seen some yellow substance which he had genuinely, but mistakenly, believed to be some food item, then that testimony might be evidence which the court could have considered to determine whether he had rebutted or disproved the s 18(2) MDA presumption. 21 In our view, [the applicant] has failed to rebut the s 18(2) MDA presumption on a balance of probabilities because he turned a blind eye to what the Brown Packet contained despite suspecting that it contained something illegal. The factual distinction between this case and Khor Soon Lee is that in the latter case, the accused did not have any suspicion that he was carrying anything other than erimin and ketamine (which the court accepted). In contrast, in the present case, [the applicant] was aware that he was carrying something illegal, and he could easily have verified what that thing was by simply opening the Brown Packet. It was not enough for [the applicant] to take the position that he did not open the Brown Packet because he had been told not to do so. In using the expression “turning a blind eye” in this context, we do not mean to say that [the applicant] had actual knowledge that the Brown Packet contained diamorphine. In the context of s 18(2) of the MDA, it is not necessary for the Prosecution to prove wilful blindness as a means of proving actual knowledge on [the applicant's] part of the nature of the controlled drug in the Brown Packet as the Prosecution has no such burden. Instead, it is for [the applicant] to prove on a balance of probabilities that he did not know or could not reasonably be expected to have known that the Brown Packet contained diamorphine. In our view, [the applicant] has failed to rebut the s 18(2) MDA presumption by his mere general assertions that he did not know what was in the Brown Packet as: (a) the nature of the controlled drug in that packet could easily have been determined by simply opening the packet; and (b) there was no evidence to show that it was not reasonably expected of him, in the circumstances, to open the packet to see what was in it. In short, [the applicant] has failed to prove the contrary of what s 18(2) of the MDA presumes in the present case as he neglected or refused to take reasonable steps to find out what he was asked to deliver to Ah Boy on 19 December 2009 in circumstances where a reasonable person having the suspicions that he had would have taken steps to find out (viz, by simply opening the Brown Packet to see what was in it).

Issues before this Court

Before us, the applicant relied on the following grounds in support of his application: this Court erred in law in affirming the finding of the High Court in Dinesh Pillai HC that the applicant had not rebutted the presumption in s 18(2) of the MDA on a balance of probabilities; section 33 of the MDA is 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”;¹ and the Public Prosecutor acted in bad faith in bringing a capital charge against the applicant based on irrelevant considerations.

With respect to ground (a), the applicant’s counsel argued that the issue was whether the applicant had knowledge or did not have knowledge of the nature of the controlled drug in the Brown Packet,...