Dinesh Pillai a/l K Raja Retnam v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 04 April 2012
• Neutral Citation: [2012] SGCA 24
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeal No 6 of 2011
• Published date: 13 April 2012
• Year: 2012
• Hearing Date: 17 January 2012
• Plaintiff Counsel: Eugene Thuraisingam, Mervyn Cheong Jun Ming and Kenneth Chua Han Yuan (Stamford Law Corporation)
• Defendant Counsel: Aedit Abdullah SC, Geraldine Tan and Wong Woon Kwong (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act (Cap 185, 2008 Rev Ed),Importing controlled drugs without authorisation,Drugs contained in a brown packet,Appellant arguing that he did not know the contents of the packet,Whether appellant had requisite knowledge for finding liability under s 7 of the Misuse of Drugs Act,Evidence,Proof of Evidence,Presumptions,Presumptions under s 18 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed),Whether appellant able to rebut presumption of knowledge in s 18(2) of the Misuse of Drugs Act
• Citation: [2012] SGCA 24

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

This is an appeal by one Dinesh Pillai a/l K Raja Retnam (“the appellant”) against his conviction by the High Court judge (“the Judge”) in Public Prosecutor v Dinesh Pillai a/l K Raja Retnam [2011] SGHC 95 (“the Judgment”) of the following charge under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”):¹

YOU ARE CHARGED at the instance of the Attorney-General as Public Prosecutor and the charges against you are:

That you, DINESH PILLAI A/L K RAJA RETNAM,

on 19 December 2009, at about 9.05 p.m., in a Malaysian registered motorcycle bearing registration number JKR 3019, at the Woodlands Checkpoint, Singapore, did import into Singapore a controlled drug specified in Class “A” of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, one packet of granular/powdery substance, which was analysed and found to contain not less than 19.35 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 Misuse of Drugs Act, Chapter 185.

[emphasis in bold in original]

The facts

The appellant is a 29-year-old Malaysian male who lived in Skudai, Malaysia. According to the appellant, his friend, Ravi, introduced him to a person called “Raja” in November/December 2009. Raja offered to pay the appellant to deliver food to a person called “Ah Boy” in Singapore. The appellant expressed his interest and asked what kind of food he would have to deliver. However, Raja told him that it was a “secret”,² saying only that it was something expensive. Raja also warned the appellant that he was never to open the package of food to be delivered because Ah Boy would know and would refuse to accept delivery.³ Unemployed and in financial difficulty, the appellant agreed, despite suspecting that he would be delivering something other than food.⁴

On 10 December 2009, the appellant made his first delivery. Raja gave the appellant a red plastic bag which contained a brown paper-wrapped packet secured with two rubber bands, a packet of curry and a packet of freshly cut chilli. The appellant said that he was instructed by Raja to call him before and after passing Woodlands Immigration Checkpoint (“Woodlands Checkpoint”). After clearing immigration, the appellant called Raja, who then gave him Ah Boy’s contact information and further instructions.⁵ The appellant subsequently contacted Ah Boy, who told him to effectuate delivery at Pasir Ris MRT Station. The appellant successfully delivered the items to Ah Boy, for which he was paid RM200.⁶ The appellant then returned to Johor Bahru, where Raja took his mobile phone and deleted all records of communications between the appellant and Ah Boy.⁷

A second delivery took place on 14 December 2009. On that occasion, it was Ravi, not Raja, who handed the appellant the items to be delivered to Ah Boy.⁸ Those items were similar to the items delivered by the appellant on 10 December 2009, viz, they likewise consisted of a brown paper-wrapped packet, a packet of curry and a packet of freshly cut chilli. Still curious about the contents of the brown packet, the appellant queried Ravi about it, but was likewise told by the latter that it was a secret.⁹ Despite his concerns not being assuaged, the appellant nonetheless decided to proceed with the second delivery. As before, after the appellant passed Woodlands Checkpoint, he called Raja, who gave him Ah Boy’s contact information. The appellant called Ah Boy, who told him to meet at Bedok Bus Interchange. The appellant successfully delivered the items to Ah Boy and received several envelopes from Ah Boy to give to Raja. The appellant testified at the trial that the envelopes contained money which totalled S$9,600. The same routine was followed upon the appellant’s return to Johor Bahru, viz, Raja took the appellant’s mobile phone and deleted the phone records of the appellant’s conversations with Ah Boy.¹⁰ The appellant was paid RM300 for the second delivery.

The appellant attempted to make a third delivery to Ah Boy on 19 December 2009, but was arrested at Woodlands Checkpoint. This attempted delivery is the subject matter of the present appeal. At about 7.00pm on 19 December 2009, Raja gave the appellant a red plastic bag (“the Red Plastic Bag”) to pass to Ah Boy. The appellant did not ask Raja what the Red Plastic Bag contained (it was subsequently found to contain, just as in the case of the first and second deliveries, a brown paper-wrapped packet, a packet of curry and a packet of freshly cut chilli). When the appellant arrived at Woodlands Checkpoint Counter 45 at about 8.19pm, a notification alert sounded as his particulars were being checked. The immigration officer at the counter, Sergeant Chua Guan Bee (“Sgt Chua”), alerted the Immigration and Checkpoints Authority Arrival Car Secondary Team Office (“the ST Office”) located within Woodlands Checkpoint. Sgt Chua also asked the appellant to hand over his motorcycle keys and informed the latter that he would have to do a further verification check.¹¹

In response to the alert triggered by Sgt Chua, an officer from AETOS Auxiliary Police Force, Corporal Mohamed Firoz bin Mohamed Eusoof, was despatched to escort the appellant from the immigration counter to the ST Office. The appellant parked his motorcycle at a parking lot adjacent to the ST Office and waited inside the ST Office for about 30 minutes until officers from the Central Narcotics Bureau (“CNB”) arrived at approximately 8.55pm.¹²

After they arrived, the CNB officers escorted the appellant to his motorcycle. Sergeant Vasanthakumar Pillai (“Sgt Kumar”) was the only CNB officer who understood and spoke Tamil. As the men walked to the motorcycle, Sgt Kumar asked the appellant whether he had anything to declare. The appellant informed Sgt Kumar in Tamil that he had been paid to deliver some items to Ah Boy and that those items were placed under his motorcycle seat. This led to the appellant’s motorcycle being searched in his presence. Staff Sergeant Chew Tai Wai (“SSgt Chew”), the CNB officer conducting the search, found the Red Plastic Bag under the motorcycle seat. Noticing that the Red Plastic Bag contained a brown packet which was unusually hard (“the Brown Packet”), SSgt Chew peeped through a small opening of the Brown Packet and saw a brownish granular/powdery substance, which appeared to be packed in a separate plastic bag.¹³ Of a gross weight of 451.0g, the brownish granular/powdery substance was later analysed by the Health Sciences Authority of Singapore and was found to contain not less than 19.35g of diamorphine.¹⁴ Subsequently, the appellant was arrested on suspicion of importing a controlled drug into Singapore on 19 December 2009 at about 9.05pm.

After his arrest, the appellant gave various statements to the CNB officers. It was in these statements that the appellant revealed that he had previously made two deliveries to Ah Boy. These statements consisted of: the appellant’s conversation with Sgt Kumar after a strip search conducted at about 9.47pm on 19 December 2009;¹⁵ the appellant’s statement to Sgt Kumar recorded at about 11.05pm on 19 December 2009 (the appellant’s “Contemporaneous Statement”);¹⁶ the appellant’s cautioned statement under s 122(6) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“the CPC”) recorded at about 4.40am on 20 December 2009;¹⁷ the appellant’s first statement under s 121 of the CPC (the appellant’s first “long statement”) recorded at about 10.20am on 22 December 2009;¹⁸ the appellant’s second long statement recorded at about 2.25pm on 22 December 2009;¹⁹ the appellant’s third long statement recorded at about 10.22am on 24 December 2009;²⁰ and the appellant’s fourth long statement recorded at about 10.25am on 29 July 2010.²¹

The decision of the Judge

In the Judgment, the Judge set out the law as follows: 18 To secure a conviction [under s 7 of the MDA], the [P]rosecution must show that the [appellant] imported the diamorphine into Singapore without prior authorisation. … The importation of drugs is not an offence of strict liability, so the [P]rosecution must also show that the [appellant] knew, or is taken to have known, that he was bringing the controlled drug into Singapore … The [P]rosecution has to prove not just knowledge of a controlled drug, but knowledge of the specific drug – diamorphine.

…

20 … It is not disputed that the [appellant] physically brought the diamorphine into Singapore and that he was not authorised to do so. The only issue is whether the mens rea of the offence is made out: whether the [appellant] knew, or is taken to have known, that he was carrying diamorphine. The [appellant]’s knowledge for the purposes of section 7 may be proved: (a) by establishing that the [appellant] had actual knowledge that he was carrying diamorphine; (b) by showing that the [appellant] was wilfully blind to the fact that he was carrying diamorphine and (c) by...