Fok Chia Siong v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 13 January 1999
• Neutral Citation: [1999] SGCA 5
• Published date: 19 September 2003
• Year: 1999
• Citation: [1999] SGCA 5
• Court: Court of Appeal (Singapore)

R v Coussionelos [1998] Judgment No. D3777 SADC (12 March 1998) (refd)

Van Damme Johannes v PP

[1994] 1 SLR 246 (refd)

Williams v The Queen

(1978) 140 CLR 591 (refd)

Wong Swee Chin v PP

[1981] 1 MLJ 212 (refd)

Legislation referred to

Evidence Act (Cap 97, 1997 Ed) s 47

Misuse of Drugs Act (Cap 185) s 18(2), 21

Grounds of Judgment :

The appellant, Fok Chia Siong ("Fok") was tried on two charges of importing controlled drugs, namely 1347 grams of cannabis and 573.6 grams of cannabis mixture, into Singapore without any authorisation, being offences under s7 and punishable under s33 of the Misuse of Drugs Act ("MDA"). At the conclusion of the trial below, he was convicted on both charges and sentenced, on the second charge, to ten years imprisonment and ten strokes of the cane. On the first charge, the mandatory death penalty was imposed. Fok appealed against this decision and at the conclusion of the appeal, we dismissed it. We now give our reasons.

The charges

2 The charges against the appellant were as follows:-

That you, FOK CHIA SIONG,

1^ST CHARGE on the 9^th day of October 1997, at about 7.40 pm, in a motorcar JEP 261, at the Inward Car Bay Lane No. 7 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, two slabs of vegetable matter, a portion of which contained not less than 1347 grams of cannabis without any authorisation under the said Act or regulations made thereunder, and you have thereby committed an offence under section 7 punishable under section 33 of the Misuse of Drugs Act, Chapter 185.

2^nd CHARGE on the 9^th day of October 1997, at about 7.40 pm, in motorcar JEP 261, at the Inward Car Bay Lane No. 7, Woodlands Checkpoint, Singapore, did import into Singapore a controlled drug specified in Class "A" of the First Schedule of the Misuse of Drugs Act, Chapter 185, to wit, two slabs of vegetable matter, a portion of which contained not less than 573.6 grams of a mixture of vegetable matter containing tetrahydrocannabinol and cannabinol, without any authorisation under the said Act or regulations made thereunder, and you have thereby committed an offence under section 7 punishable under section 33 of the Misuse of Drugs Act, Chapter 185.

3 A third charge of fraudulently using as genuine a forged document (a passport) being an offence punishable under s 467 read with s 471 of the Penal Code (Cap 224) was stood down.

The facts – Arrest and seizure

4 On 9 October 1997, the appellant Fok drove motorcar JEP 261 into the Woodlands Checkpoint (lane seven) at about 7.40 pm. When he stopped for customs clearance, Higher Customs Officer Gopalan Nelakandan (HCO Gopalan) asked him some routine questions and decided to check the car. The boot was opened and found empty. When the back slabs of the rear seats were folded down, two parcels wrapped in plastic were seen lodged behind them, leaning against the panel between the rear seats and the boot of the car.

5 Different versions of the ensuing conversation were given by the customs officers at the scene and Fok. HCO Gopalan testified that upon discovery of the two parcels, he asked Fok in Malay "apa barang itu?" (what is that?) and Fok replied "Ganja" (cannabis). HCO Gopalan recounted this reply in his police report (P21) made at 10.11 pm that day, stating:

The suspect was asked by me, what is the content of the parcels. The suspect replied that the parcels contained "GANJA".

After this report was made, HCO Gopalan also transferred the contents of the police report into his pocket book and in particular recorded this question and Fok’s reply. During cross-examination, HCO Gopalan further testified that at the time, Fok looked a bit anxious and as if he was going to cry. Senior Customs Officer Nathan Martin (SCO Martin) witnessed the search and discovery of the two parcels by HCO Gopalan while standing next to Fok near the front passenger door of the car. He heard the question asked by HCO Gopalan and confirmed that Fok’s reply (after Fok paused for a moment) was only "ganja". He also confirmed that Fok looked as if he was about to cry as he answered HCO Gopalan’s question.

6 Fok’s case however was that he gave a more complete answer. It was put to HCO Gopalan and SCO Martin that the answer was "ganja" followed by "itu barang bukan wa punya" (these things are not mine), but both officers denied this.

7 After Fok identified the parcels as containing "ganja", SCO Martin handcuffed him. Customs officers searched the car again twice, once using a "narco" dog, but nothing incriminating was found. Fok was brought by SCO Martin and HCO Gopalan to a room in the Inspection Pit Office where he was body searched. This yielded a Malaysian Restricted Passport bearing the name Ong Kok Fu with a photograph resembling Fok and a temporary Malaysian identity card bearing the name Fok Chia Siong. When questioned on this, Fok admitted that the passport was not his and that he had pasted his own photograph on it.

8 SCO Martin and HCO Gopalan, together with SCO Lee Ngiang Kheng (SCO Lee) and SCO K Ramakrishnan Nair (SCO Nair) then brought Fok and the two parcels to the Main Customs Office. There, Fok was seated and the parcels were placed on a table next to him. SCO Lee then instructed SCO Nair to confirm the contents of the two parcels. In the presence of Fok and wearing gloves, SCO Nair cut open one side of both parcels. They contained a greenish vegetable matter. He weighed both parcels separately. The first weighed 1057.84 grams and the second 1150.87 grams. At about 11.20 pm, Central Narcotics Bureau (CNB) investigation officer Inspector S. Krishnan (Insp Krishnan) arrived at the office, was briefed on the facts and took over custody of Fok and inter alia, the two parcels.

The appellant’s statements

9 After his arrest, two statements were recorded from Fok. The first was a cautioned statement recorded on 10 October 1997 at 2.50 am at the CNB Major Investigation Branch office, Room #01-04 in which he said: "The cannabis found in my car does not belong to me. That is all." The second was an investigation statement recorded on 14 October 1997 at about 1.40 pm by Insp Krishnan in the same room. Fok challenged the voluntariness of this statement and a voir dire was convened.

The appellant’s voir dire evidence

10 Fok’s version of the circumstances surrounding the recording of the statement was as follows. After his arrest on 9 October 1998, Fok was brought for a medical examination and thereafter to the CNB office, where his cautioned statement was explained to him by the interpreter Lee Yew Loong (Lee) and recorded by Insp Krishnan. Thereafter he was placed in the Criminal Investigation Department (CID) lock-up. On 11 October 1997, Fok was brought before a Magistrate. The next time he was brought out of the lock-up was on 14 October 1997, sometime between 10 and 11 am, by Insp Krishnan and two other Chinese males, for the purposes of fingerprinting and photography within the CID building. He was then returned to the lock-up.

11 Sometime after lunch that day, Fok was released to a Malay CNB officer and two others. They placed him in a CNB vehicle. At that point, Fok saw Insp Krishnan in a red Ford car in the CID car park. Insp Krishnan got out of his car and walked towards the CNB vehicle. Speaking through a wound down car window, Insp Krishnan told Fok that he would be taking a statement from him and asked Fok to think carefully about it. When Fok arrived at the CNB building, Insp Krishnan took custody of Fok from the three CNB officers and brought him to his office. In the office, Insp Krishnan took out Fok’s passport, wallet, handphone, car keys, a packet of cigarettes and other items from a cabinet, and asked if Fok wanted a smoke before the taking of his statement. When Fok replied in the affirmative, Insp Krishnan took him to a waiting area at a corner outside the CNB Building. They had a smoke and a chat there.

12 During the chat, Fok told the inspector that the car was registered in his girlfriend’s name. Insp Krishnan asked him to co-operate as he had the right to charge his girlfriend. Fok was frightened by this. When he said that the parcels did not belong to him, Insp Krishnan advised him that it was better for him to admit to the charge if he did not want to cause trouble for his girlfriend. He asked the inspector if he would face the death penalty if he admitted the charge, and was assured by Insp Krishnan that, in his experience, after analysis the net weight of the two parcels would not exceed 500 grams. Fok asked the inspector to confirm that if he admitted, his girlfriend would not be implicated, and the inspector gave the assurance. When he asked the inspector if he was certain that the net weight would be below 500g, the inspector also promised him that if it exceeded 500 grams slightly, he would reduce it to below 500 grams. On the strength of these assurances, Fok said he agreed to admit to the offence.

13 After their smoke and conversation, they returned to the inspector’s office. Lee was then found waiting in the office and the recording of the statement proceeded with his assistance. During the course of the recording, Fok asked Insp Krishnan if he could telephone his family and was told that he could do so after the statement was concluded. Fok also said that he had made the same request earlier during their smoke before the recording started.

14 Midway through the recording, there was another smoke break. During this break, on the basis that he had already admitted to the charge, Fok asked Insp Krishnan for time to allow him to think about what he should say later on in the statement, and the inspector agreed. No other matters were discussed. After six or seven minutes, they returned to the office and the recording continued.

15 When the statement was completed, Fok was allowed to call his paternal...