Han Fang Guan v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 28 February 2020
• Neutral Citation: [2020] SGCA 11
• Date: 28 February 2020
• Docket Number: Criminal Appeal No 31 of 2018
• Published date: 03 March 2020
• Plaintiff Counsel: Low Cheong Yeow (Matthew Chiong Partnership), Favian Kang Kok Boon (Peter Low & Choo LLC) and Josephine Iezu Costan (David Nayar & Vardan)
• Defendant Counsel: Lau Wing Yum, Samuel Yap, Kwang Jia Min and Wu Yu Jie (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Hearing Date: 15 August 2019,10 July 2019
• Subject Matter: Statutory offences,Misuse of Drugs Act,Criminal law,Attempt,Impossible attempt

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

The appellant, Han Fang Guan (“Han”), claimed trial to a capital charge of attempting to possess one bundle containing not less than 18.62g of diamorphine for the purpose of trafficking, an offence under s 5(1)(a) read with s 5(2) and s 12 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”).

Han was tried jointly with one Khor Chong Seng (“Khor”), who had been apprehended by officers from the Central Narcotics Bureau (“CNB”) shortly after entering Singapore through Woodlands Checkpoint, and who was found to be in possession of seven bundles of controlled drugs. Khor agreed to assist in a follow-up operation against the intended recipients of the drugs. He was instructed by the CNB officers to continue communicating with the drug supplier in Malaysia from whom he received instructions, as well as with the intended recipients of the drugs in Singapore. The phone conversations between Khor, the drug supplier in Malaysia and the intended drug recipients were recorded by the CNB officers. It transpired that Khor was instructed by the drug supplier to deliver a single bundle of drugs to Han. The drug supplier put Han and Khor in touch with each other, and they in turn arranged to meet at a location in Toa Payoh. CNB officers were dispatched to the arranged location, where they arrested Han.

The Prosecution’s case against Han was that the drug supplier had instructed Khor to deliver to Han any one of three bundles of similar size, colour and weight, containing similar amounts of diamorphine. Seeking to be fair to Han, the Prosecution proceeded against him in respect of the bundle that contained the smallest quantity of diamorphine.

Following a six-day trial, the High Court judge (“the Judge”) found that the charge against Han was made out and convicted him. Han was not issued a certificate of substantive assistance by the Public Prosecutor, and the Judge found, in any event, that he was not a mere courier. The Judge therefore imposed the mandatory death sentence on him: see Public Prosecutor v Khor Chong Seng and another [2018] SGHC 219 (“the GD”).

This is Han’s appeal against his conviction and sentence. For reasons which we will explain in this judgment, we are satisfied that Han’s appeal should be allowed. In essence, we think that a reasonable doubt has arisen in relation to the charge that was brought against Han. However, we also think that based on Han’s own evidence, consideration should be given to an alternative charge being pressed against him for attempting to commit a different offence. As it turned out, it was not possible for the primary offence, which Han says he did intend to commit, to have been committed. This judgment presents us with the opportunity to reconsider the law on what we will term “impossible attempts”, that is to say, attempts to commit offences that could not possibly have been consummated in the circumstances. Before we do so, we recount the key facts.

Background facts

Sometime before 2 March 2016, Han contacted his drug supplier in Malaysia, known to him as “Ah Tiong”, to place an order for drugs.

On the night of 1 March 2016, Khor collected two motorcycle helmets containing several bundles of drugs from someone in Malaysia, known to him as “Lao Ban”. Before us, it was not seriously disputed that “Ah Tiong” and “Lao Ban” are one and the same person, and in this judgment, we refer to him as “Lao Ban”.

Khor’s task on the night of 1 March 2016, and extending into the early hours of the next morning, was to deliver the drugs to various intended recipients in Singapore. This was to be Khor’s fourth drug delivery. The three prior deliveries had all been executed in a similar manner: Khor would collect the drugs from Lao Ban in Malaysia. The drugs would have been packed in motorcycle helmets by Lao Ban’s associates. Khor would then cross from Malaysia into Singapore on his motorcycle. After clearing the Singapore customs, he would call Lao Ban for instructions. Lao Ban would send him text messages containing phone numbers, code names and the amount of money to collect from each recipient, while also identifying the bundles that were to be handed to each recipient. Khor would then liaise with each recipient and make arrangements for each delivery. After Khor completed the deliveries, he would return to Malaysia and hand the money that he had collected to Lao Ban.

On 2 March 2016, at about 12.10am, Khor entered Singapore through Woodlands Checkpoint. He was stopped and searched by CNB officers. The search revealed that the two motorcycle helmets in his possession contained seven bundles of controlled drugs as follows: A large bundle wrapped in black tape, with a yellow sticker bearing the word “KEN”. The bundle was marked “C1B”. It weighed 458.9g, and was subsequently analysed and found to contain not less than 18.80g of diamorphine. A large bundle wrapped in black tape, with a yellow sticker bearing the word “KEN”. The bundle was marked “C1C”. It weighed 457.3g, and was subsequently analysed and found to contain not less than 19.63g of diamorphine. A small bundle wrapped in black tape, with a yellow sticker bearing the words “KEN 水 500”. The bundle was marked “C1D”. It weighed 49.85g, and was subsequently analysed and found to contain not less than 34.04g of methamphetamine. A bundle wrapped in transparent tape, with a yellow sticker bearing the word “KEN”. The bundle was marked “C1E”. It contained 400 nimetazepam tablets. A large bundle wrapped in black tape, with a yellow sticker bearing the word “KEN”. The bundle was marked “D1B”. It weighed 457.4g, and was subsequently analysed and found to contain not less than 18.62g of diamorphine. The drugs in D1B formed the subject matter of the charge against Han. A bundle wrapped in transparent tape, with a yellow sticker bearing the word “KEN”. The bundle was marked “D1C”. It contained 400 nimetazepam tablets. A bundle wrapped in transparent tape, with a yellow sticker bearing the word “KEN”. The bundle was marked “D1D”. It contained 200 nimetazepam tablets.

For reasons that will become clear later, it is useful to note the following: Four of the seven bundles were wrapped in black tape, while three were wrapped in transparent tape. Each of the seven bundles had a yellow sticker with the word “KEN”, and in one case, there were some other markings on the sticker as well. Three of the bundles wrapped in black tape were large and contained diamorphine, while the fourth was small and contained methamphetamine. The three bundles wrapped with transparent tape each contained nimetazepam tablets.

Khor informed the CNB officers that he had been tasked to deliver the drugs to recipients in Singapore and was awaiting instructions from Lao Ban. As mentioned at [2] above, he agreed to assist in a follow-up operation against the intended recipients of the drugs. The follow-up operation was conducted in the following manner: The CNB officers instructed Khor to communicate with Lao Ban and the intended recipients of the drugs in order to make arrangements to meet the intended recipients. All the phone conversations between Khor and Lao Ban, as well as between Khor and the intended recipients of the drugs were recorded by the CNB officers. Based on the information obtained by and through Khor, CNB officers were despatched to various parts of Singapore to effect arrests.

At about 1.55am on 2 March 2016, Khor called Lao Ban to explain his delay and requested instructions on the drug deliveries. Lao Ban accepted Khor’s explanation and told him that he would send him “the phone number”.

At 2.02am and 2.04am, Khor received two text messages from Lao Ban. Each text message contained a code name, a phone number and an amount of money. For instance, the message sent at 2.04am read “T-98676050=$3600”. Shortly after, Lao Ban called Khor and gave instructions for the delivery of the drugs to three individuals, whom Lao Ban referred to as “99”, “T” and “Ken”. Lao Ban told Khor to deliver “[t]wo big bundles, yellow one” to 99 and “one yellow bundle” to T, while the rest of the bundles would be “[a]ll for Ah Ken”. Lao Ban also told Khor to collect $3,600 from T. As we have already noted, all the bundles had yellow stickers on them, though none of the bundles were in fact yellow.

The call records show that Han received a phone call from Lao Ban at 2.43am, and again at 2.45am. In between, at 2.44am, Khor received a phone call from Lao Ban, who told Khor that he would ask T to call Khor. At 2.45am, Han received a text message from Lao Ban stating “T-86531409=$3600”. At 2.47am, Han called Khor and introduced himself as T.

During this period, Khor also engaged in several recorded conversations with 99 and Ken. Using the information obtained in these conversations, CNB officers arrested 99 and Ken at 3.20am and 3.30am respectively.

Subsequently, over four phone calls that took place between 4.02am and 4.40am, Han and Khor made arrangements to meet at Block 5, Lorong 7, Toa Payoh (“Block 5”). While Han was making those arrangements, CNB officers were despatched to the arranged location to effect his arrest. A CNB officer assumed the place of Khor and travelled to Block 5 in a taxi. Upon reaching Block 5, that officer remained in the taxi and did not alight or attempt to approach Han because the CNB officers had learnt that Han knew what Khor looked like. Instead, after the officer confirmed Han’s identity from within the taxi, CNB officers trailing the taxi in another vehicle alighted to effect the arrest. As the CNB officers approached Han, he started walking away quickly and was eventually arrested at Block 4, Lorong 7, Toa Payoh. He was searched, and $3,600 in cash was found in the front left pocket of his shorts. The cash was bundled with a rubber band and was kept separate from his wallet, which...