Fung Choon Kay v Public Prosecutor

JudgeKarthigesu JA
Judgment Date24 July 1997
Neutral Citation[1997] SGCA 30
Citation[1997] SGCA 30
Defendant CounselOng Hian Sun (Deputy Public Prosecutor)
Published date19 September 2003
Plaintiff CounselN Ganesan (N Ganesan & Associates) and Dominic Nagulendran (Palakrishnan & Partners)
Date24 July 1997
Docket NumberCriminal Appeal No 28 of 1996
CourtCourt of Appeal (Singapore)
Subject MatterStatutory offences,Possession of controlled drugs,Whether presumption rebutted,ss 5 & 17 Misuse of Drugs Act (Cap 185),Criminal Law,Presumption of trafficking,Whether judge should have made 'reasonable' apportionment in appellant's favour,Possession of diamorphine,Apportionment,Lack of independent evidence supporting assertion of drugs intended for self-consumption,Misuse of Drugs Act,Trafficking in controlled drugs,Whether drugs in appellant's possession for own consumption

(delivering the grounds of judgment of the court)

The appellant was convicted in the High Court on two charges of trafficking in heroin and one charge of consumption of heroin.
The first trafficking charge was in respect of 15 sachets of substance containing 7.20g of diamorphine found on his person when he was arrested by Central Narcotics Bureau (CNB) officers at a telephone booth along Commonwealth Drive. The second trafficking charge was in respect of one packet, one sachet and a loose quantity of some substance containing 18.73g of diamorphine found at his flat at [num ]01-704, Block 91, Commonwealth Drive, Singapore. The appellant claimed trial to the second trafficking charge and pleaded guilty to the other two charges. The trial judge found him guilty and sentenced him to death on the second trafficking charge. The appellant appealed against his conviction. We heard the appellant`s appeal on 7 July 1997. After hearing counsel for the appellant, we dismissed the appeal. We now give our reasons.

The prosecution`s case

On 21 May 1996, at about 1.45pm, a team of CNB officers spotted the appellant behaving suspiciously at a telephone booth along Commonwealth Drive. He was carrying a white plastic bag. The appellant was arrested at the telephone booth. The white plastic bag was found to contain 15 sachets of powdery substance wrapped in a page torn from Her World magazine. Upon analysis, they were found to contain 7.20g of diamorphine. This formed the subject matter of the first trafficking charge.

The appellant then led the CNB officers to his flat at [num ]01-704, Block 91, Commonwealth Drive, Singapore.
The CNB officers arrested Seetoh Fei Lin, the appellant`s girlfriend, at the flat. Staff Sergeant Tan How Boon (S/Sgt Tan) asked the appellant where the rest of the drugs were kept. The accused led S/Sgt Tan and Corporal Chua Kek Kiong to the kitchen and pointed to a red and white plastic bag. The bag was found to contain a packet of a yellowish substance, a plastic container of a similar yellowish substance, a paper box containing a sachet of a similar yellowish substance, a pair of scissors, a white plastic spoon, some empty plastic sachets and a lighter, a daching, a pen, a plastic straw, some empty plastic bags, a copy of Her World magazine, an undergarment and an empty cassette box. Upon analysis, the packet of yellowish substance was found to contain 12.22g of diamorphine, the plastic container was found to contain 6.06g of diamorphine and the sachet was found to contain 0.45g of diamorphine. This formed the subject matter of the second trafficking charge. S/Sgt Tan asked the appellant, `The contents in the plastic carrier found below the stove belonged to who?` The appellant replied, `Mine.` The appellant also said that Seetoh Fei Lin did not own any of the drugs. In his cautioned statement recorded later that day at 10.15pm under s 122(6) of the Criminal Procedure Code (CPC), the appellant stated that the heroin in the flat belonged to him and that Seetoh Fei Lin had not known that there was heroin in the flat.

The appellant then made three investigation statements, recorded under s 121 of the CPC (the s 121 statements).
In summary, the appellant said that he had come to know one `Ah Pang` while working on a construction site. He could not remember which site. The appellant had known him for five to six years. In March 1996, the appellant ran into Ah Pang in a brothel and Ah Pang gave him some free heroin. From then on, when he needed heroin, he would ask his bookie friends to inform Ah Pang that the appellant was looking for him. Ah Pang would then either telephone him or page him. The appellant did not have Ah Pang`s contact number and had no other way of contacting him. When the appellant had no money, Ah Pang would give him a sachet of heroin free. The week before the appellant`s arrest, Ah Pang had twice given him a sachet of heroin free. The appellant claimed that Ah Pang trusted him very much and that he felt obligated to Ah Pang because of the free heroin he had been given.

On 21 May 96, at about 11am, Ah Pang handed the appellant a red and white plastic bag at the hawker centre along Commonwealth Drive and told the appellant to keep it for him until he came back to collect it.
Ah Pang did not say when he would come back. The appellant brought the bag back to his flat, opened the bag and examined its contents. The bag contained, among other things, a packet of yellowish substance containing 12.22g of diamorphine, a plastic container containing 6.06g of diamorphine and a sachet containing 0.45g of diamorphine. This formed the subject matter of the second trafficking charge. The appellant said that he assumed that the sachet of heroin was meant for him, even though Ah Pang had not mentioned this. The appellant claimed that if he had not been arrested he would have consumed this sachet of heroin. At 12pm, Ah Pang telephoned the appellant and asked the appellant to meet him at the car park. They met, and Ah Pang handed to the appellant a plastic bag containing 15 packets of heroin and told him to hand the bag to Ah Pang`s friend. The appellant did not know Ah Pang`s friend. This friend would contact the appellant by paging him. Ah Pang then left. The appellant was arrested by the CNB officers soon after this.

The admissibility of the cautioned statement and s 121 statements was not disputed.
The prosecution had clearly made out a prima facie case that the appellant was in possession of the red and white plastic bag containing a total of 18.73g of diamorphine. Under s 17 of the Misuse of Drugs Act (Cap 185), there was a presumption that he was in possession of all 18.73g for the purpose of trafficking. The onus was now on the appellant to rebut this presumption.

The defence

The appellant claimed that he had intended to return the red and white plastic bag containing heroin to Ah Pang. He also conceded, however, that such re-delivery would constitute an act of trafficking. The crux of his defence therefore was that he had intended to return not more than 15g of diamorphine to Ah Pang. The remaining 3.73g or more of diamorphine would be for his personal consumption. The charge should thus be amended to one of possession of not less than 10g and not more than 15g of diamorphine for the purpose of trafficking. He would then escape the death penalty.

In short, the appellant was seeking to prove on a balance of probabilities that he had intended to consume at least 3.73g of diamorphine so as to rebut the presumption under s 17 of the Misuse of Drugs Act that he was in possession of all 18.73g of diamorphine for the purpose of trafficking.


The appellant gave evidence in his defence.
He said that he began consuming heroin or diamorphine in 1991. At the time of his arrest for drug trafficking, his minimum daily consumption was half a sachet, sometimes going up to three quarters of a sachet or one sachet. He had no heroin for his own consumption except for the bag of heroin Ah Pang had handed to him for safekeeping. He had intended to consume heroin from the bag until Ah Pang returned. He would then pay Ah Pang for the heroin consumed. This crucial part of the...

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