Foong Seow Ngui and Others v Public Prosecutor

JudgeKarthigesu JA
Judgment Date15 September 1995
Neutral Citation[1995] SGCA 72
Docket NumberCriminal Appeal No 26 of 1995
Date15 September 1995
Published date19 September 2003
Plaintiff CounselAlan Wong and Peggy Yee (William Lai & Alan Wong)
Citation[1995] SGCA 72
Defendant CounselPeter Fernando and Surian Sidambaram (Leo Fernando),Lim Choon Mong and Lum Pak Meng (Lim & Lim),Sowaran Singh (Deputy Public Prosecutor)
CourtCourt of Appeal (Singapore)
Subject MatterFailure to disclose defence in s 122(6) statement,s 121(3) Criminal Procedure Code (Cap 68),ss 17 & 18(4) Misuse of Drugs Act (Cap 185),s 122(6) Criminal Procedure Code (Cap 68),Admissibility,Possession for the purpose of trafficking,Defence alleged by co-accused,Criminal Law,Statements,Accused electing not to give evidence,Whether previous statement could be used as evidence of facts stated therein,Evidence,Trafficking in controlled drugs,s 34 Penal Code (Cap 224),Whether possession was for the purpose of trafficking,Misuse of Drugs Act,Whether common intention established against all three appellants,Whether presumption of trafficking rebutted,s 122 Criminal Procedure Code,Whether omission a serious irregularity,s 147(3) Evidence Act (Cap 97, 1990 Ed),Whether failure by accused to disclose defence,Statutory offences,Proof of evidence,Whether s 147(3) of the Evidence Act inconsistent with s 122 of the Criminal Procedure Code,Whether adverse inference drawn against accused for failure to disclose defence in s 122(6) statement justified,Form of statement,Absence of clause at end of recorded statement stating that statement had been read back to accused and that he had been offered opportunity to make corrections,Previous inconsistent or contradictory statement,Statement,Criminal Procedure and Sentencing,ss 5(1), (2) & 17 Misuse of Drugs Act (Cap 185),Joint trafficking,Recording of statement,Whether joint possession proved,Whether statement admissible,ss 5(1), (2) & 17 Misuse of Drugs Act

Cur Adv Vult

The three appellants, Foong Seow Ngiu (Foong), Tan Aik Heng (Tan) and Lim Ping Hwa (Lim), were convicted by the High Court on a charge that, in furtherance of a common intention, they had in their possession on 8 April 1994 at Blk 62, Circuit Road, #08-307, Singapore 32 packets of substance containing not less than 26.37g of diamorphine for the purpose of trafficking and by virtue of ss 5(2) and 17 of the Misuse of Drugs Act (Cap 185) (the Act) they committed the offence of trafficking in that quantity of diamorphine under s 5(1) of the Act. Against their convictions, all of them have now appealed.

The prosecution case

The evidence adduced by the prosecution at the close of its case has been set out in detail in an earlier judgment of this court on appeal by the prosecution against the acquittal of Tan, which was reported in [1995] 2 SLR 244 [ PP v Tan Aik Heng ]. We need only to recapitulate briefly such evidence. On 8 April 1994 at about 12pm, a team of officers from the Central Narcotics Bureau (CNB) kept watch on the flat, #08-307, Blk 62 Circuit Road (the flat), which belonged jointly to Foong and his wife. At about 3pm Foong was seen leaving the flat, and on reaching the ground floor he was arrested by three narcotics officers after a brief struggle. At that time he had with him a brown envelope which contained ten sachets of yellow granular substance, later ascertained to be heroin. After his arrest, Foong was questioned by Acting Staff Sergeant Lim Hang Meng (Ag S/Sgt Lim), and certain answers were given which we shall deal with shortly. The narcotics officers then brought Foong to his flat and they opened the door with the key seized from Foong. On entering the flat they saw Foong`s wife, Ng Soi Muay, seated in the hall watching television. Lim was seen sitting at the entrance of the kitchen facing a large number of drug exhibits which were laid out before him and holding a plastic spoon in his right hand and a small plastic sachet in his left. Tan was seen sitting and leaning against the kitchen archway, facing Lim; Tan appeared to be only talking to Lim and was doing nothing else. All of them, including Foong`s wife, were placed under arrest.

The drug exhibits laid out before Lim and Tan were:

(a) one big packet of granular substance, later discovered to be heroin;

(b) 31 sachets of granular substance, later also discovered to be heroin;

(c) a stack of new empty plastic sachets;

(d) a smaller loose sachet of heroin;

(e) an improvised weighing scale which has a metal rod with hooks at each end, a string tied in the centre and which was taped to a chair in front of Lim and at one end of which was a plastic sachet with a one cent, five cents and 20 cents coin in it serving as counterweight.

(f) three disposable lighters;

(g) a pair of scissors;

(h) a pair of tweezers;

(i) two packets of Marlboro cigarettes;

(j) a plastic container; and

(k) a light brown envelope.

Senior Staff Sergeant Cheong Wah Chow (Sn S/Sgt Cheong), the investigating officer, arrived at the flat at about 4.20pm.
He was briefed on the events that had transpired and took possession of all the exhibits. He seized from Lim a handphone and a wallet containing, amongst other things, four horse betting slips dated 3 April 1994 and one 4-digit slip dated 2 April 1994. A handphone and a wallet containing a shipyard certificate issued to Foong was seized from Foong. He seized from Tan a handphone, a pager and a sum of $3,600 from his pocket, $1,100 from his wallet and $15,500 from the glove compartment of his car.

The big packet and the 31 sachets had 389.97g of granular substance with a net diamorphine content of 26.37g.
The big packet contained 150.30g and the 31 sachets contained 239.67g. The purity level was 6.76%. The ten sachets (seized from Foong on his arrest) contained 73.27g of granular substance with a net weight of 4.76g of diamorphine. The purity level was 6.46%. The difference in purity levels in relative terms was not significant. They were both of the same low grade of heroin.

Urine specimens from the three appellants were taken and on analysis were found to contain the following amounts of morphine:

(i) in Foong`s specimens, 49.29 micro grams per 5ml,

(ii) in Tan`s specimens, 425.4 micro grams per 5ml, and

(iii) in Lim`s specimens, 359.7 micro grams per 5ml.

There was thus evidence that they had taken drugs.

A statement was recorded from Tan under s 122(6) of the Criminal Procedure Code (Cap 68) (the CPC) and was admitted in evidence at the request of his counsel.
The statement read as follows:

I met `Ah Hwa` at the ground floor of Block 62 Circuit Road. `Ah Hwa` brought me to a flat on the 8th storey to chit-chat with his friend. I do not know the name of his friend. About five minutes later, CNB officers came and arrested all of us inside the flat.

The name `Ah Hwa` referred to Lim.

Lim`s statement taken under s 122(6) of the CPC was also admitted.
It read as follows:

When I went to the flat #08-307 at Block 62 Circuit Road, the heroin was already on the floor at the kitchen. The heroin does not belong to me and I do not know its ownership.

However, the admissibility of the statements made by Foong under ss 122(6) and 121 of the CPC was objected to.
These, together with the oral answers given by him to Ag S/Sgt Lim at the time of arrest, formed the subject matter of a voir dire . At the conclusion, the learned trial judge held that these statements were made by Foong voluntarily.

Foong`s statements

The oral answers given by Foong to Ag S/Sgt Lim were to the effect that the brown envelope contained ten sachets of `peh hoon`. His s 122(6) statement was brief and read as follows:

Ah Heng brought the heroin to my flat for packing. The heroin does not belong to me or my wife Ng Soi Muay.

Foong had clarified that Ah Heng was Tan.

His s 121 statement was recorded in two parts which, in so far as material, have been set out verbatim in the earlier judgment of this court: see [1995] 2 SLR 244 at pp 249-250.
Suffice it here to set out a summary thereof. In brief, it stated as follows. On 6 April 1994, Foong asked Lim to order 1lb of heroin from Tan and to ensure that Tan would not short-change him on the weight. Lim assured Foong that that would not happen and said that he would bring Tan to Foong`s flat to pack the pound of heroin into 60 packets. Lim quoted the price of $3,600 per pound which would have to be paid to Tan on delivery of the heroin. Foong explained that he ordered the heroin because he had an order for ten packets from one George at the price of $850 and that he also needed the balance for his own consumption and for future sale to George. On the evening of 7 April 1994 George telephoned Foong and wanted ten packets of heroin to which Foong replied that he did not have the stock at that time but could supply them on the following day. Foong said that on 8 April 1994 Lim and Tan came to his flat and Tan was introduced to him; Tan was carrying a plastic bag. They went to the kitchen where Tan took out the plastic packet of heroin and Foong handed to Lim $3,600, who in turn handed it to Tan. The three of them then took some heroin out for smoking. Foong then asked Lim to assist him to pack ten packets of heroin as he had a customer waiting. Lim then used the plastic spoon to scoop the heroin from the big plastic bag into smaller plastic packets and Foong sealed the ten packets of heroin by using a disposable lighter and metal tweezers. Not long thereafter George telephoned and said that he would soon be arriving at the ground floor of the flat to collect the ten packets of heroin. Foong then put the ten packets of heroin in a brown envelope and went downstairs. Before he left he asked Lim and Tan to continue packing the heroin into smaller packets.

Foong`s defence

Foong gave evidence in his defence. He admitted that the drugs were his. His defence was that he was a moderate drug addict and that the drugs were mainly for his own consumption: the 31 packets and the large packet of heroin seized from his flat were for his own consumption. He knew a person named `George` and he admitted that he supplied George with heroin on request. However, he claimed that he did not sell the drugs to George. He did not make any profit and only charged George $5 per packet for transportation expenses. On 7 April 1994, George paged him three times, asking him for a supply of heroin. He told George that he did not have the drugs. On the morning of 8 April 1994, George paged him again. Foong told him that it was early and asked him to call again at 2pm. Foong eventually made an appointment to meet George in the vicinity of his block.

Foong said that Lim came to his flat at about 3pm after having telephoned to say that he would visit him to settle certain debts in connection with horse racing; Lim also requested to consume drugs at his flat.
Lim brought along Tan who was then introduced to him. On entering the flat, Tan went to the toilet. In the meantime, he sat with Lim on the kitchen floor and smoked a cigarette spiked with heroin. After that he then left the apartment to go downstairs where he was arrested with the ten packets of heroin.

In the cross-examination by counsel for Tan, Foong said that the third call from George on 7 April 1994 was at about 5pm.
At that time, he had only half a small packet of heroin. At 10pm that night, he received 1lb of heroin from one Ah Seng which cost $4,800. However, he paid Ah Seng $3,000 and owed him the balance of $1,800. Foong said that he did not know Ah Seng`s number; Ah Seng normally contacted him by pager.

On 8 April 1994, Foong woke up at 12pm.
He consumed some heroin and prepared the improvised weighing scale. He packed ten packets for George. He then consumed some heroin and packed more heroin. In all, he packed a further 31 small sachets.

Foong said that he implicated Tan because he

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