Dzulkarnain bin Khamis v Public Prosecutor and anor appeal and anor matter

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 27 April 2023
• Neutral Citation: [2023] SGCA 14
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeals Nos 30 and 32 of 2020 and Criminal Motion No 23 of 2022
• Hearing Date: 19 January 2023
• Citation: [2023] SGCA 14
• Year: 2023
• Plaintiff Counsel: Eugene Singarajah Thuraisingam, Suang Wijaya and Shirin Chew (Eugene Thuraisingam LLP),Andre Darius Jumabhoy (Andre Jumabhoy LLC) and Si Hoe Tat Chorng (Acacia Legal LLC)
• Defendant Counsel: Tay Swee Keng Mark, Nicholas Wuan Kin Lek and Keith Jieren Thirumaran (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act,Criminal Procedure And Sentencing,Appeal,Adducing fresh evidence
• Published date: 28 April 2023

Sundaresh Menon CJ (delivering the grounds of decision of the court): Introduction

The present appeals and criminal motion arose out of the prosecution and subsequent conviction of the appellants, Mr Dzulkarnain bin Khamis (“Dzulkarnain”) and Mr Sanjay Krishnan (“Sanjay”) (collectively, the “appellants”), in respect of charges involving their possession of not less than 2375.1g of cannabis (the “Drugs”). Dzulkarnain claimed trial to a capital charge under s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (the “MDA”) for delivering the Drugs to Sanjay, while Sanjay claimed trial to a capital charge under s 5(1)(a) read with s 5(2) of the MDA for having the Drugs in his possession for the purpose of trafficking.

The appellants were each initially charged with a second offence concerning the trafficking of 2329.1g of cannabis mixture. Following our decision in Saravanan Chandaram v Public Prosecutor and another matter [2020] 2 SLR 95 (“Saravanan Chandaram”), the judge of the General Division of the High Court (the “Judge”) who heard the appellants’ joint trial granted the Prosecution’s application for these charges to be stood down.

At the end of the joint trial, the Judge rejected all the defences raised by the appellants and convicted them on the charge that was pressed against each of them: see Public Prosecutor v Dzulkarnain bin Khamis and another [2021] SGHC 48 (the “GD”). The Judge found that Dzulkarnain’s involvement was limited to the activities specified in s 33B(2)(a) of the MDA. Because the Prosecution had issued Dzulkarnain a certificate of substantive assistance (“CSA”), the Judge imposed the alternative sentence of life imprisonment on Dzulkarnain. Since Dzulkarnain was above 50 years of age, he was not liable for caning (GD at [119]). As for Sanjay, while the Judge found that his involvement was similarly limited, the Prosecution did not issue Sanjay a CSA. Accordingly, the Judge imposed the mandatory sentence of death on him (GD at [124]).

CA/CCA 30/2020 (“CCA 30”) and CA/CCA 32 (“CCA 32”) were Dzulkarnain’s and Sanjay’s respective appeals against the Judge’s decision in respect of both conviction and sentence. On appeal, Dzulkarnain contended that the Judge erred in finding that a box containing the Drugs, which Sanjay had collected from a certain location prior to his arrest, was the same box that Dzulkarnain had left at that location. As for Sanjay, he raised three main grounds of appeal. The first two were procedural in nature. First, he contended the Judge erroneously relied on statements that were not admissible when she made her findings. Second, he maintained that the Prosecution’s case did not present a unified case theory but consisted of inconsistent and incompatible parts and that this prejudiced his Defence. Third, he argued that the Judge erred in finding that he had failed to rebut the presumption under s 18(2) of the MDA, and therefore that he knew the nature of the drugs (the “s 18(2) presumption”).

Sanjay also filed CA/CM 23/2022 (“CM 23”) seeking leave to adduce fresh evidence that was available to and/or readily obtainable by him at trial, but that he did not then adduce. That evidence was Sanjay’s own account of the location of a duffel bag containing the drug exhibits that had been seized from him. Sanjay argued that his evidence would contradict the testimony of a Central Narcotics Bureau (“CNB”) officer concerning his custody over that duffel bag and that this was material to whether the chain of custody of the drug exhibits had been satisfactorily established. Sanjay sought an order that the matter be remitted to the Judge to take further evidence on this point and to set out her findings on remittal.

Following the hearing of these appeals and the criminal motion, we dismissed Sanjay’s application in CM 23 and the appellants’ appeals in CCA 30 and CCA 32, and upheld the Judge’s decision to convict the appellants on the charges that were brought against them. Accordingly, we upheld the sentences imposed by the Judge on the appellants. We now give the detailed grounds for our decisions.

Background The events leading up to the arrest of the appellants

We begin by setting out the facts. On the afternoon of 23 February 2015, Dzulkarnain drove a van to a bus stop near Tuas Checkpoint (the “Tuas Bus Stop”), where he collected a brown box (the “Brown Box”). Later that same day, at around 4.00pm, Dzulkarnain drove the van to Lorong 21 Geylang (“Lorong 21”), and thereafter to Lorong 37 Geylang, Singapore (“Lorong 37”).

Dzulkarnain’s van was initially tailed by a team of CNB officers in an unmarked CNB operations vehicle. The officers were Senior Staff Sergeant Eng Chien Loon Eugene (“SSSgt Eng”) and Sergeant Muhammad Hidayat bin Jasni (“Sgt Hidayat”). However, SSSgt Eng and Sgt Hidayat lost sight of Dzulkarnain’s van at some point along the way. Another team of CNB officers, comprising Inspector Muhammad Faizal bin Baharin (“Insp Faizal”), Staff Sergeant Ace Ignatius Siao Chen Wee and Staff Sergeant Azman bin Mohd Saleh, tailed Dzulkarnain’s van as it was driven to Lorong 21 and then to Lorong 37.

At Lorong 37, Insp Faizal and his team saw Dzulkarnain place the Brown Box behind a green dustbin which had the number “14” marked in white on it (the “Green Bin”), before driving off in the van. The Green Bin was located next to No 14, Lorong 37 Geylang, Singapore (“14 Lorong 37” or the “drop-off point”). Insp Faizal and his team continued to tail the van.

About five minutes after Dzulkarnain left Lorong 37, Sanjay drove to Lorong 37 in his car. SSSgt Eng and Sgt Hidayat saw Sanjay’s car turning into Lorong 37 and followed him. Sanjay stopped beside the Green Bin, alighted from his car and retrieved a brown box from behind the Green Bin at the drop-off point (the “SKP Box”). He then returned to his car and drove off.

Sanjay was subsequently apprehended by a team of CNB officers at around 4.35pm near Lorong 36 Geylang. At around 4.40pm, Dzulkarnain too was arrested by Insp Faizal and his team at an Esso petrol kiosk.

Sanjay’s arrest

Following his arrest, Sanjay was led by Senior Staff Sergeant Wong Kah Hung (Alwin) (“SSSgt Alwin”) and Sgt Hidayat to the rear passenger seat of his car. Sergeant Dadly bin Osman (“Sgt Dadly”) then drove Sanjay’s car to a multi-storey carpark at Block 56A Cassia Crescent (the “MSCP”).

At the MSCP, a body search was conducted on Sanjay, and a handphone, later marked as “SK-HP1”, was recovered. Station Inspector Tay Cher Yeen (Jason) (“SI Tay”) and Sgt Hidayat then searched Sanjay’s car in his presence. The following exhibits, amongst others, were retrieved: the SKP Box containing five bundles of vegetable matter which, following analysis by the Health Sciences Authority (“HSA”), were found to contain not less than 2375.1g of cannabis and 2329.1g of cannabinol and tetrahydrocannabinol; four handphones, later marked by the CNB as “SK-HP2”, “SK-HP3”, “SK-HP4” and “SK-HP5”; a blue notebook (the “Blue Notebook”) and a black notebook (the “Black Notebook”), which contained handwritten entries relating to various drug transactions and prices; and two samurai swords and a 30-cm knife.

Before the SKP Box was opened, Sanjay was asked by SI Tay about its contents. Sanjay purportedly shrugged and did not verbalise his answer. His reaction was recorded by SSSgt Alwin in the CNB operation field book (Sanjay’s “oral statement” and the “CNB field book” respectively). SI Tay then tore away the masking tape sealing the SKP Box and removed five bundles of vegetable matter from within. He then handed each bundle to Sgt Hidayat, who packed and sealed each of the bundles into separate polymer bags, and placed the seized drug exhibits into a green duffel bag (the “drug exhibits” and the “duffel bag”), before handing the duffel bag to SI Tay. From around 7.45pm until about 8.30pm, SI Tay recorded a contemporaneous statement from Sanjay under s 22 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) (Sanjay’s “contemporaneous statement”). In Sanjay’s contemporaneous statement, he informed SI Tay that he did not know what the SKP Box contained.

Apart from Sanjay’s contemporaneous statement, eight other statements were recorded from him during the course of the investigations. In Sanjay’s cautioned statement recorded on 24 February 2015 by the Investigation Officer, Senior Staff Sergeant Ranjeet Ram Behari (Sanjay’s “cautioned statement” and “IO Ranjeet” respectively), Sanjay informed IO Ranjeet that he believed the SKP Box contained “illegal cigarettes” based on what he had been told by someone he referred to as “Malaysia Boy”. Sanjay did not sign his cautioned statement, though the Judge was satisfied that it was an accurate record of what Sanjay had said to IO Ranjeet (GD at [30] and [84]). In any case, this point was not taken on appeal.

In Sanjay’s fifth long statement, which IO Ranjeet recorded on 8 March 2015, almost two weeks after the arrest, Sanjay departed from his earlier account and said that he had been told by one “Boy Lai” to take delivery of some collectors’ hunting knives and that “there may also be contraband … cigarettes” [emphasis added]. This was the first time he mentioned his purported belief that the SKP Box contained collectors’ hunting knives and possibly contraband cigarettes, and was a departure from his earlier account that he believed the SKP Box contained contraband cigarettes based on what Malaysia Boy had told him.

Dzulkarnain’s arrest

Following Dzulkarnain’s arrest, the CNB officers escorted him to a multi-storey carpark at Block 54 Cassia Road. Upon their arrival, the CNB officers conducted a search of Dzulkarnain and his van. Amongst other things, a handphone was seized and later marked by the CNB as “DBK-HP1”.

At around 5.15pm, Dzulkarnain was served the Mandatory Death Penalty Notice by Staff Sergeant Muhammad Fardlie bin Ramlie (“SSgt Fardlie”),...