Goh Kim Hong v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 03 September 1996
• Date: 03 September 1996
• Docket Number: Magistrate's Appeal No 26 of 1996
• Court: High Court (Singapore)

Goh Kim Hong

Plaintiff

and

Public Prosecutor

Defendant

[1996] SGHC 192

Yong Pung How CJ

Magistrate's Appeal No 26 of 1996

High Court

Criminal Law–Complicity–Common intention–Whether pre-arranged plan existed–Section 34 Penal Code (Cap 224, 1985 Rev Ed)–Criminal Law–Statutory offences–Misuse of Drugs Act (Cap 185, 1985 Rev Ed)–Trafficking in cannabis–Possession–How established–Whether mere knowledge of drugs sufficient–Effect of reliance on s 18 (4) of the Misuse of Drugs Act–Sections 5 (1) (a), 17, 18 (4) and 33 Misuse of Drugs Act (Cap 185, 1985 Rev Ed)–Criminal Procedure and Sentencing–Trials–Close of Prosecution's case–Whether prima facie case made out–Whether defence should have been called–Section 189 (1) Criminal Procedure Code (Cap 68, 1985 Rev Ed)

The appellant Goh Kim Hong (“Goh”) was convicted on a joint charge of trafficking in cannabis. He appealed against conviction on the basis that there was no case for him to answer at the close of the Prosecution's case: the essential elements of the charge, namely the commission of the offence by Goh, that he and his accomplice were in possession and that there was a common intention to commit the offence, were not proven.

Held, allowing the appeal:

(1) It was insufficient for the Prosecution to rely simply on the appellant's knowledge of the drugs in the boot to show that these were in his possession. Mere knowledge is insufficient to establish possession; there has to be an indication that there was some control over the drugs: at [20].

(2) There was no need to show control where reliance was placed on s 18 (4) of the Misuse of Drugs Act (Cap 185, 1985 Rev Ed) (“the Act”), a deeming provision to fix the accused with possession. However, it would have to be shown that such possession was for the purpose of trafficking, and no reliance may be placed upon the presumption in s 17 of the Act: at [21] and [22].

(3) For common intention to exist, there had to be a pre-arranged plan. In the present case, there was no indication of Goh's involvement. All the Prosecution's evidence showed was that Goh was someone who was merely along for the ride. The evidence that the Prosecution adduced did not disclose any common intention to traffic in cannabis. At best, he was guilty of apathy as to the drug trafficking activities that took place. Even if the facts that the Prosecution had adduced were taken together, they would not disclose any pre-arranged plan: at [27] to [29] and [36].

(4) The Prosecution's primary facts and reasonable inferences from those facts did not support the charge at all. In the circumstances, Goh's defence should not have been called: at [38].

Ang Sunny v PP [1965-1967] SLR (R) 123; [1965-1968] SLR 67 (folld)

Foong Seow Ngui v PP [1995] 3 SLR (R) 254; [1995] 3 SLR 785 (folld)

Hartej Sidhu v PP [1994] 2 SLR (R) 541; [1994] 2 SLR 598 (refd)

Haw Tua Tau v PP [1981-1982] SLR (R) 133; [1980-1981] SLR 73 (folld)

Jasbir Singh v PP [1994] 1 SLR (R) 782; [1994] 2 SLR 18 (refd)

Lee Yuan Kwang v PP [1995] 1 SLR (R) 778; [1995] 2 SLR 349 (refd)

Mahbub Shah v EmperorAIR 1945 PC 118 (folld)

Ng Theng Shuang v PP [1995] 1 SLR (R) 407; [1995] 2 SLR 36 (folld)

PP v Ho So Mui [1993] 1 SLR (R) 57; [1993] 2 SLR 59 (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed)s 189 (1) (consd);s 121

Evidence Act (Cap 97,1990 Rev Ed)s 30

Misuse of Drugs Act (Cap 185, 1985 Rev Ed)ss 5 (1) (a), 17, 18 (4),33 (consd)

Penal Code (Cap 224,1985 Rev Ed)s 34 (consd)

Ang Sin Teck (Raja Loo & Chandra) for the appellant

Peter Lim (Deputy Public Prosecutor) for the respondent.

Yong Pung How CJ

1 This was an appeal from the decision of the district judge convicting the appellant on a joint charge of trafficking in cannabis. The co-accused, one Abdul Aziz Bin Ahtam (“Aziz”) was also convicted, but was not involved in this appeal. I allowed the appeal, and now give my reasons.

2 The charge against them read:

You, Abdul Aziz Bin Ahtam, male, 21 years, IC No 7222796D, and Goh Kim Hong, male, 25 years, IC No 6926145J, are charged that you on or about 18 June 1994 at about 1.58am, in motor car bearing registration number SZ 8607 K along Dunearn Road near Hillcrest Road, Singapore, together with Teo Tian Hoe IC No A 0455522 (Malaysia), in furtherance of the common intention of three of you, did traffic in a controlled drug specified in Class 'A' of the First Schedule to the Misuse of Drugs Act (Cap 185), by having in your possession for the purpose of trafficking in not less than 330g and not more than 550g of cannabis in motor car bearing registration number, SZ 8607 K along Dunearn Road, Singapore, without any authorisation under the said Act or the regulations made thereunder and by virtue of s 17 and s 5 (2) of the Misuse of Drugs Act, you have thereby committed an offence under s 5 (1) (a) of the Misuse of Drugs Act read with s 34 of the Penal Code (Cap 224), and punishable under s 33 of the Misuse of Drugs Act (Cap 185).

3 An alternative charge specified that they had in furtherance of their common intention trafficked in the cannabis by transporting it in the car, and had therefore committed an offence under s 5 (1) (a) of the Misuse of Drugs Act (Cap 185) (“MDA”) read with s 34, Penal Code (Cap 224), and punishable under s 33, MDA. The appellant was sentenced to 20 years' imprisonment and 15 strokes of the cane. He was also charged and convicted of the consumption of a cannabinol derivative, but he has not appealed against that conviction.

Brief facts

4 On 18 June 1994, at about 1.40am, a car, bearing licence plate number SZ 8607 K, was stopped at a police road block along Dunearn Road. One of the officers manning the road block noticed that the car had switched from the centre lane to the left lane and stopped for a while, before moving forward to the road block.

5 The driver was Aziz. The appellant was seated in front, while a third person, one Teo Tiang Hoe, Michael, (“Teo”) sat in the rear. The officers inspected the car. Teo opened the boot, where the officers found a green sports bag, bearing the brand “Sanlino”, in which there was a polythene bag. Inside that polythene bag was a block of vegetable matter. An officer, PC Lee Tuan Loy, asked Teo whether the...