Jagatheesan s/o Krishnasamy v Public Prosecutor

• Jurisdiction: Singapore
• Judge: V K Rajah J
• Judgment Date: 24 July 2006
• Neutral Citation: [2006] SGHC 129
• Date: 24 July 2006
• Subject Matter: Criminal Procedure and Sentencing,Proof of evidence,Accomplice sole witness testifying in support of Prosecution's case,Whether appellate court may intervene to modify or overturn trial judge's findings of fact if findings found to be unreasonable based on appellate court's evaluation of witness's credibility,Weight of evidence,Standard of proof,Evidential weight to be given to accomplice's testimony,What may amount to reasonable doubt,Whether testimony sufficient to found conviction against accused,Appropriate approach for court to take when considering such testimony,Whether grounds for appellate intervention in modifying or overturning trial judge's findings of fact existing where trial judge's inferences not supported by primary or objective facts,Accomplice retracting statement implicating accused and reinstating statement at trial,Prosecution's case against accused for drug trafficking based solely on accomplice's testimony implicating accused,Whether Prosecution proving case beyond reasonable doubt,Whether consistency of evidence relevant test,Evidence,Appeal
• Docket Number: Magistrate's Appeal No 28 of 2006,Criminal Case No 8 of 2005
• Published date: 26 July 2006
• Defendant Counsel: April Phang (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: Subhas Anandan and Sunil Sudheesan (Harry Elias Partnership)

24 July 2006

V K Rajah J:

1 The appellant was tried and convicted in a district court on two charges of trafficking in controlled drugs under s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed). He was sentenced to five years’ imprisonment and five strokes of the cane on each charge. The sentences were ordered to run concurrently. This is an appeal against the convictions.

Factual matrix

2 Sometime in late July 2005, Central Narcotics Bureau (“CNB”) officers arrested Rohaizman bin Rahmat (“Rohaizman”) for possession of controlled drugs. Rohaizman upon being queried by CNB officers implicated Gunaprakash s/o Thuraisamy (“Guna”) as his supplier.

3 Later that month, an undercover CNB officer contacted Guna introducing himself as “Sky”. He told Guna that he was interested in purchasing ecstasy tablets (“tablets”). Guna agreed to procure the tablets for Sky.

4 On 4 August 2005, according to Sky, Guna called him just past noon on his mobile phone and confirmed that he had procured a new stock of tablets. Guna insisted on meeting Sky in person to ascertain the genuineness of the proposed transaction. At about 1.40pm, they met up at the void deck of Block 313 Shunfu Road. Guna, satisfied with Sky’s purported credentials, thereupon confirmed that he would deliver the tablets that evening at Newton Hawker Centre. Guna subsequently called Sky and informed him that he could only supply 90 tablets as he had already agreed to sell ten tablets to other customers. Guna also proposed reducing the transaction price from $1,800 to $1,700. Sky agreed to this.

5 At 5.50pm, Sky conducted a briefing for the CNB officers involved in this operation. He would be accompanied only by Sergeant Bukhari (“Ayie”). Upon receiving confirmation from Ayie that the exchange had taken place, the covering party of CNB officers would promptly arrest Guna.

6 The CNB party reached Newton Hawker Centre at about 6.45pm, and promptly commenced surveillance of the proposed meeting area. Some of the CNB officers noticed two male Indians sitting at a table. One of the Indians matched the description of Guna they had earlier been given. The other person was the appellant. These two persons were later observed leaving their seats and moving in the direction of the main road.

7 At about 6.55pm, Sky and Ayie arrived at Newton Hawker Centre and sat at a table. Guna then joined them. Sky introduced Ayie to Guna. Guna then handed a black plastic bag (“P4”) to Ayie. Ayie brought P4 to a nearby toilet to confirm that it contained the tablets. Once inside the toilet, Ayie opened P4. He found a yellow plastic bag and a red “ang pow” packet. Within these articles were yellow pills (which have been confirmed to be ecstasy tablets). Upon locating the yellow pills, Ayie promptly instructed the covering party of CNB officers to arrest Guna. The appellant, who was waiting near the main road, was also arrested as he had earlier been observed in Guna’s company. At that juncture, unlike Guna, he was not suspected of being implicated in the drug transaction.

8 The appellant was promptly searched. No drugs were found in his possession. His residence was also raided and searched. Again, no drugs were found.

9 During his interrogation by the CNB officers, the appellant consistently and steadfastly maintained his innocence and asserted complete lack of knowledge of Guna’s drug trafficking activities. He was adamant that he had met Guna purely to collect an outstanding loan of $100. Guna, on the other hand, unequivocally implicated the appellant as his supplier.

Guna’s testimony

10 Guna claimed that he had known the appellant for just over a year. They met initially while working for Lux Singapore. Thereafter they became friends. In 2004, he borrowed $100 from the appellant which he later repaid. This, he claimed, was the only loan from the appellant. He had, however, borrowed other sums of money from a loan shark. Guna admitted that he was in dire financial straits.

11 Guna had been unable to secure any permanent employment since 2004. Needing money, he had turned to drug trafficking in 2005. He also claimed to have recently paid substantial telephone bills amounting to between $5,000 and $6,000 on behalf of friends. He did not explain how he obtained funds to pay such large bills. He did not know where these friends currently were nor did he explain how such large telephone bills had been incurred.

12 On 4 August 2005, he allegedly received a call from Sky, literally out of the blue, in connection with a purported transaction for the purchase of 100 tablets. He informed Sky that he needed to call his supplier to ascertain the availability of the tablets. He testified, “I know that [the appellant] has ecstasy tablets because he has told me before that he has them. I needed the money. I did not get any work. I had debts to repay”. After purportedly having ascertained that the appellant would supply him with the tablets he arranged to meet Sky at Newton Hawker Centre at 6.45pm. He stated that he had instructed the appellant to arrive at 6.30pm but later clarified that he had actually fixed the appointment for 6.45pm.

13 When the appellant arrived at about 6.45pm, they both promptly proceeded to a nearby phone booth where the appellant handed P4 over to him. On receiving P4, Guna went alone to the toilet, removed ten tablets and returned to a table where he sat down. He also claimed that the appellant during this interval remained alone at the phone booth.

14 Between 6.55pm to 7.00pm, Sky arrived with a friend. Guna handed P4 containing the 90 tablets to Sky’s companion. Soon after that, Guna was apprehended by the CNB officers. Ten tablets were found in his waist pouch.

15 In the course of cross-examination, Guna initially maintained he was employed by Lux Singapore when he first met the appellant. Later he claimed he was merely a trainee who worked for “one to two months”. He conceded that he was not paid for his “work”. Finally, he acknowledged that he merely went for a training course at Lux Singapore, which lasted for about two to three weeks.

16 Guna admitted having supplied tablets to Rohaizman but declared only in the course of cross-examination that the appellant was also the supplier for this transaction.

17 He maintained during cross-examination that after Sky had called him on 4 August 2005, he had contacted the appellant to make arrangements for the purchase of the tablets. He further clarified that when the appellant joined him at Newton Hawker Centre at about 6.45pm, they had sat at a table for about ten minutes before proceeding to a nearby phone booth. After entering the phone booth the appellant handed P4 to him. Guna then returned to the table alone after visiting the toilet. Departing from his evidence in chief, Guna also asserted that he had visited the toilet to check on the contents of P4. The appellant was still seated at the table when he returned from the toilet. He returned P4 to the appellant. Later he asked the appellant to walk in front of him to the phone booth upon learning that Sky had arrived. At the phone booth he took possession of P4 again.

18 Guna acknowledged having been informed by CNB officers that if he immediately identified his supplier his co-operation would be viewed favourably. Guna also conceded that he had declared to a judge in Court 26 during a mention hearing on 5 August 2005 that he had made a false statement implicating the appellant as his supplier. He explained that he had acceded to this because the appellant was “pestering” him. When pressed by the Defence counsel whether “[b]ecause of the pestering you were prepared to lie to the Court?” he answered affirmatively. When asked why he had given in to the appellant his response was, “I was afraid the friendship will split.”

Appellant’s testimony

19 The appellant was at the material time gainfully employed, drawing a basic salary of $1,500. He claimed to be “financially sufficient”. The appellant emphatically asserted that he had proceeded to Newton Hawker Centre for the sole purpose of collecting the sum of $100 from Guna as repayment of a loan he had extended in July 2005. This was the third such loan he had extended to Guna. The two earlier loans had been repaid. They had first met at Lux Singapore and the friendship with Guna was cemented when the latter was briefly employed as a security officer at Bar None, Marriott Hotel. Guna, on account of their friendship, would allow him to enter the bar without any payment of the requisite cover charge. The appellant vehemently denied having supplied any drugs to Guna.

20 The appellant testified that on the morning of 4 August 2005 he had sent Guna a short message service (“SMS”) message requesting him to call back. When Guna responded, he promptly requested repayment of the outstanding loan which had been extended a month earlier. He needed the money, inter alia, for some urgent alteration to a pair of pants. Guna told him that he was cash strapped as he had just returned from a holiday in Thailand. The appellant was upset that while Guna had delayed repaying the loan, he could nevertheless fritter money away by holidaying in Thailand. Guna subsequently agreed to meet him at Newton Hawker Centre at 6.45pm to repay the loan. The appellant testified that he had also arranged to meet his fiancée at 7.00pm that evening at Scotts Road. (This fact was corroborated by his fiancée who testified that she had also been informed by the appellant that he had a prior appointment with Guna to collect a sum of $100.)

21 The appellant arrived at Newton Hawker Centre at about 6.45pm. He saw Guna approaching him from the direction of the toilet area. They both sat at a table and ordered some refreshment. Guna informed him that the friend who would put him in funds was on the way. Shortly after that, Guna received a call and went to the toilet again. When Guna returned, he informed the appellant that his friend would be late....