Fun Seong Cheng v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 14 August 1997
• Neutral Citation: [1997] SGCA 35
• Docket Number: Criminal Appeal No 29 of 1996
• Date: 14 August 1997
• Year: 1997
• Published date: 19 September 2003
• Plaintiff Counsel: Sant Singh (Wee, Tay & Lim) and James Lee Ah Fong (Ng Lee & Partners)
• Citation: [1997] SGCA 35
• Defendant Counsel: Lau Wing Yum (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: ss 5(1)(a), 5(2), 17 & 33 Misuse of Drugs Act (Cap 185),ss 121, 122(5), 122(6), 188, 189 & 190 Criminal Procedure Code (Cap 68),Trafficking in controlled drugs,Procedure not followed,Presumption of trafficking,Inaccuracies in recording of statement,Voir dire procedure,Evidence,Whether s 121 statement for purpose of impeaching appellant's credit proved,Admissibility of evidence,Statements,Meaning of possession,Criminal Law,Misuse of Drugs Act,Lack of rebuttal,Criminal Procedure and Sentencing,Recording of statement,Whether prosecution proved beyond reasonable doubt that appellant was in possession of drugs,ss 24 & 147(3) Evidence Act (Cap 97, 1990 Ed),Voir dire,Statutory offences,Contention that record incomplete or inaccurate,Trials,Admissibility of confession,Whether contention went to question of admissibility,Difference between material and immaterial inaccuracies or omissions in recorded statement

This was an appeal against the decision of the High Court convicting the appellant of the charge of trafficking in seven packets and six sachets of substance containing not less than 251.70g of diamorphine by having them in his possession for the purpose of trafficking at storeroom number 1-64 of Block 308, Bukit Panjang Camp, Singapore on 16 April 1996 at about 6.55pm and thereby committing an offence under s 5(1)(a) read with s 5(2) and punishable under s 33 of the Misuse of Drugs Act (Cap 185) (the Act). We dismissed the appeal and now give our reasons.

On 16 April 1996 at about 6pm, a party of Central Narcotics Bureau (CNB) officers led by ASP Lim Chei Yoo (ASP Lim) arrested the appellant together with Tan Peng Swa (Tan), Kua Teck Meng (Kua) and Goh Liak Seng (Goh) near the Al-Ameen Eating House (the coffeeshop) at Cheong Chin Nam Road off Upper Bukit Timah Road.

Earlier in the day at about 1.25pm, CNB officers had closely trailed and observed Tan driving a motor car bearing registration number SZA 3372T (the car) into the compound of Summer Hotel at Lorong 22, Geylang and thereafter entering the appellant`s camp at about 2pm. It was discovered through subsequent investigations that the appellant, on 10 April 1996, rented the car from C & P Rent-A-Car (Pte) Ltd on a monthly rental of $1,648.

The appellant was taken to the car which was parked close to the coffeeshop upon his arrest. ASP Lim conducted a search of the car. A sum of $13,577 was recovered from the glove compartment and a brown paper bundle containing a stack of 3,024 empty plastic sachets was found in the boot of the car.

From the coffeeshop the CNB officers escorted the appellant to his office at No 3-75 Blk 308 in Bukit Panjang Army Camp (the office). Staff Sergeant Wong Wah Yan (S/Sgt Wong) took a key from the appellant`s rear right trouser pocket and used it to open the door of the office.

The office was shared by the appellant and his colleague Sergeant Soh Sin Sie (Sgt Soh). Both of them also had the keys to the storeroom (the storeroom) in which were kept the SAF sports equipment used by the trainees. On the day of the arrest, Sgt Soh was on leave and the appellant was alone in the office and had access to the storeroom throughout that day. Sgt Soh testified at the trial that when he reported for duty the next day he learned that drugs had been recovered from the storeroom. He denied that the drugs belonged to him. He confirmed that only he and the appellant had access to the storeroom.

The CNB officers conducted a search of the office. ASP Lim found a plastic bag containing a newspaper bundle in the wastepaper basket next to the appellant`s table. The bag contained: (a). torn pieces of white paper, some of which had pieces of masking tape attached; and

(b). three torn empty plastic bags stained with yellowish powder which was later found to be diamorphine.

ASP Lim then questioned the appellant. The following conversation was recorded by Cpl Iqbal bin Mohamed (Cpl Iqbal) and admitted in evidence following a trial within a trial to determine the voluntariness of the answers given by the appellant. The learned judge noted in his grounds of decision that he was satisfied `beyond doubt that no threat promise or inducement had been held out by ASP Lim or any of the other CNB officers at the scene during the conversation between ASP Lim and the (appellant)`. The questions and answers recorded by Cpl Iqbal, reads:

Q1: What`s this?

A1: Drugs.

Q2: Where you pack?

A2: Here.

Q3: How many pounds?

A3: Two pounds.

Q4: How many sachets you pack?

A4: About 100 sachets.

Q5: Where are the rest of sachets you pack?

A5: We finish today. Everything. The cash is in the car.

Q6: Who you gave?

A6: One Malay 70 sachets and another 30 sachets.

Q7: Where is the sealer?

A7: I think they brought it away.

Q8: Who?

A8: Ah San`, the second time we went out we sold the rest of the sachets. We packed 100 packets. We sold 70 to one Malay fellow. `Ah San` told me it`s 70.

Q9: Where`s the wrapper?

A9: Disposed off. Until now this all I know about it.

Q10: Where`s the sealing machine?

A10: We used candles.

Q11: Where are the candles?

The appellant led the CNB officers to a locker in the office where there was a haversack which S/Sgt Wong searched; however, there were no candles there. ASP Lim then asked the appellant.

Q12: Where is the key to the store?

A12: (Appellant pointed to the two keys hanging on the notice board).

S/Sgt Wong seized the two keys which were identified by the appellant. This led ASP Lim to ask the appellant:

Q13: Any drugs in the store?

A13: Yes, quite a number of big packets.

Thereafter, the appellant led the CNB officers to the PTI storeroom. S/Sgt Wong used one of the two keys he had taken from the notice board to open the door. At the doorway to the storeroom, ASP Lim put another question to the appellant:

Q: Where are the drugs?

A: Underneath the table.

At the same time, the appellant used his foot to point to under a table in the storeroom. S/Sgt Wong went to the spot and took out a black sling bag. The bag was found to contain the following:

(a) six sachets of heroin containing altogether not less than 2.40g of diamorphine

(b) a blade cutter

(c) metal teaspoon found to be stained with diamorphine

(d) a Tanita Digital weighing scale

(e) a heat sealer

(f) 231 white envelopes

(g) one brown paper bundle containing 2,795 empty sachets

Then ASP Lim asked the appellant:

Q: How many packets altogether?

A: I`m not sure.

Q: Who is involved in this?

A: Only me and Ah San.

Q: How about the two persons arrested together with you?

A: No sir.

This conversation was read back by ASP Lim to the appellant a day later on 17 April 1996 at about 3.45am at the CNB office and the appellant signed the paper (exh P66) which reproduced the oral conversation above affirming it to be `true and correct`.

As already noted, the appellant had challenged the admissibility of the foregoing conversation. In the voir dire, the appellant testified that he did not answer the questions posed to him by ASP Lim voluntarily. According to the appellant, when he was arrested, ASP Lim did not identify himself whereas the prosecution`s evidence was that ASP Lim identified himself as a narcotics officer in Hokkien. The appellant testified that ASP Lim grabbed him from behind, tripped him and threw him onto the ground. Both S/Sgt Wong and ASP Lim testified that the appellant resisted the arrest and ASP Lim testified that it was only with the assistance of the other officers that they managed to put the appellant to the ground where they handcuffed him. The appellant also said that he was kicked in the buttocks and his face was stepped upon. Once again all the prosecution witnesses denied this version of events. The appellant did not seem to have suffered any physical injury according to the doctor who examined him.

The appellant said that when he was taken to his office, ASP Lim held up what was found in the wastepaper basket and asked him whether the drugs belonged to him. The appellant denied this and then ASP Lim told the appellant, `You better admit or you will get something like those during your arrest.` This was followed by S/Sgt Wong who said, `You better admit, you will only get six months from us whereas you will get 18 from the Army.` Both ASP Lim and S/Sgt Wong denied saying the above to the appellant.

The appellant testified that S/Sgt Wong used the `chungkul stick` on four occasions to threaten him. The first time was when ASP Lim asked `where you pack?` and when he said `I don`t know` S/Sgt Wong swung the `chungkul stick` to the single-seat sofa. The second time was when ASP Lim asked the appellant `Where is the sealer?` and he said `I don`t know. I have the right not to answer.` Then S/Sgt Wong swung the stick in front of the appellant and told the appellant, `You have the right, but do you have the choice?` The third and fourth occasion was when the appellant could not produce the candles. S/Sgt Wong hit the stick onto the bed and then swung it towards the appellant`s stomach level. On one of these occasions ASP Lim was not present in the office. ASP Lim left the office for a while to make a phone call and according to the appellant, S/Sgt Wong also tried to kick the appellant but just when he was about to kick the appellant ASP Lim returned. All the prosecution witnesses in the voir dire denied these allegations by the appellant.

At the end of the voir dire, as noted above, the learned judge admitted the above questions and answers as he was satisfied that the prosecution had proven beyond reasonable doubt that the answers were given voluntarily.

S/Sgt Wong also recovered a floral bag behind the black sling bag. It contained seven white paper packages with masking tape at their borders. On analysis, there were substances inside the packages which contained not less than 249.3g of diamorphine. The white paper wrappings were similar to those found in the newspaper bundle inside the wastepaper basket in the appellant`s office.

In the s 122(6) statement which was taken between 3.32am and 3.40am on 17 April 1996 at the CNB offices the appellant said: `I have nothing to say.`

A s 121 statement was also taken from the appellant. This statement was taken in eight separate sessions. Seven of the sessions were held between 22 April 1996 and 30 April 1996 at the CNB offices and the last session was held on 8 June 1996 at Queenstown Remand Prison. This statement was not admitted in evidence as part of the prosecution`s case but used to impeach the appellant`s credit when he gave evidence in his own defence. We will refer to this matter in greater detail later.

On 24 April 1996 at about 11.15am, the appellant was taken by a party of CNB officers back to Block 308, Bukit Panjang Camp. At about 11.40pm the appellant led them to...