Goh Lai Wak v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 02 March 1994
• Neutral Citation: [1994] SGCA 32
• Date: 02 March 1994
• Subject Matter: No special requirement for evidence of an agent provocateur to be treated with caution,Criminal Procedure and Sentencing,Whether trial judge precluded from writing grounds of decision,Witnesses,s 116 Evidence Act (Cap 97, 1990 Ed),Oral judgment given at conclusion of trial,Defence not recognized in Singapore,Evidence,Agent provocateur,s 46(1) Supreme Court of Judicature Act (Cap 322),Impeaching witnesses’ credibility,Judgment
• Docket Number: Criminal Appeal No 62 of 1993
• Published date: 19 September 2003
• Defendant Counsel: Mathavan Devadas (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Tan Teow Yeow (Tan Teow Yeow & Co) and Chua Teck Leong (Derrick Ravi & Pnrs) (assigned)

The appellant was convicted in the High Court on 30 September 1993 of the following charge:

You, Goh Lai Wak, are charged that you, on or about 26 March 1992 between 5.25pm and 5.55pm at Fern Tree Cafe, Miramar Hotel, Havelock Road, Singapore, did traffic in a controlled drug specified in class `A` of the First Schedule to the Misuse of Drugs Act (Cap 185), to wit, four packets of substance containing not less than 120.03g of diamorphine, without any authorization under the said Act or the regulations made thereunder and you have thereby committed an offence under s 5(a) punishable under s 33 of the Misuse of Drugs Act.

After hearing submissions from counsel for the appellant, we dismissed the appeal and we now set out our reasons.

Introduction

The appellant was arrested at Fern Tree Cafe, Miramar Hotel (`the coffee-house`), on 26 March 1992 following an undercover operation mounted by the Central Narcotics Bureau (`CNB`) in which Narcotics Officer Ng Beng Chin (`NO Ng`) had posed as a buyer of heroin. NO Ng had agreed to buy four pounds of heroin from the appellant on 6 March 1992 and the delivery was subsequently arranged to be made at the coffee-house at 6pm on 26 March 1992. At about 5.53pm, the appellant arrived at the coffee-house with a white `NTUC Fairprice` plastic bag. NO Ng had arrived at the coffee-house earlier at about 5.45pm with several officers from the Police Tactical Team. NO Ng waved at the appellant when he saw him enter the coffee-house and the appellant then proceeded to sit at the same table. NO Ng asked for the bag carried by the appellant and took it with him to the washroom to check if it contained the heroin which he had ordered. After ascertaining that the bag contained four packets of powdery substance which he suspected was heroin, NO Ng returned to their table. He gave a pre-arranged signal and the police officers moved in and arrested the accused. A struggle ensued and a revolver with five bullets in the chambers was recovered from the appellant, tucked at his waist. The learned trial judge indicated in his judgment, however, that he had excluded this piece of evidence from his consideration of the guilt of the appellant on the charge of trafficking in drugs. NO Ng took possession of the plastic bag containing the drugs and the four packets of powdery substance were later analyzed and found to contain not less than 120.03g of diamorphine.

Substantial segments of the prosecution evidence were strongly disputed by the appellant. His defence at trial was simply that he had arrived at the coffee-house with a white cloth bag containing five cartons of duty-free Salem cigarettes. He claimed that a Mr Wee, the police informer who introduced NO Ng to the appellant, requested him to deliver the cigarettes to NO Ng. The appellant asserted that NO Ng took the white cloth bag with him to the washroom to check its contents and only returned to the table after five minutes without the white cloth bag but with a white plastic bag instead. He denied possession of the drugs found in the white plastic bag and alleged that NO Ng planted the drugs on him. The appellant denied arranging to supply heroin to NO Ng.

Prosecution evidence

The principal prosecution evidence was the testimony of the agent provocateur, NO Ng. He was introduced to the appellant on 6 March 1992 at about 11.05am, at the same coffee-house by an informer, Mr Wee, who was not called as a witness. NO Ng posed as a buyer of drugs and the appellant was introduced to him as Ah Goh. The appellant apparently had six pounds of heroin for sale and they agreed on the sale of the drugs at the price of $5,500 per pound. NO Ng sought delivery of the drugs on the same day but was told by the appellant that he could not do so, and instead the appellant offered to deliver the drugs on 9 March 1992. They then exchanged pager numbers and agreed to the use of a code, after which they left the coffee-house at about 11.20am.

Counsel for the appellant, during cross-examination, had put it to NO Ng that the three of them had actually met earlier on 1 March 1992 at the same place but not on 6 March 1992. NO Ng denied any earlier meeting and maintained that his first meeting with the appellant was on 6 March 1992. He denied counsel`s assertion that he was introduced by Mr Wee as a businessman who was planning to give Mr Wee boat repair contracts. NO Ng also denied that at this meeting he and Mr Wee only discussed matters regarding boat repairs and that the appellant did not actively participate in those discussions. He denied asking the appellant to supply duty-free cigarettes to him and denied that he had purchased such cigarettes from Mr Wee. NO Ng maintained that he had agreed with the appellant to the purchase of six pounds of heroin at $5,500 each at their first and only meeting on 6 March 1992.

NO Ng paged for the appellant on 10 March 1992 and enquired about the delivery. The appellant replied that he needed another six or seven days. There were no other communications between them until 26 March 1992 when NO Ng paged the appellant at about 3.50pm. The appellant responded that he had about four pounds of drugs for NO Ng but, as his supplier was busy at that time, they should get in touch again later in the day. NO Ng paged the appellant again at about 5.35pm and the appellant confirmed that he had the drugs ready in his car boot. On hearing this, NO Ng arranged for the appellant to meet him at the coffee-house at about 6pm with the drugs.

NO Ng arrived at the coffee-house at about 5.45pm and sat at a table with his back to the entrance of the coffee-house. NO Ng testified that he had only a small brown leather bag and a handphone with him. The appellant walked in at about 5.53pm. In looking around the coffee-house, the appellant had walked past NO Ng, but NO Ng waved to him and he went over and sat at the table. NO Ng testified that he saw the appellant carrying a white `NTUC Fairprice` plastic bag which the appellant placed on the floor. He invited the appellant to order some food and drink. He asked for the `thing` in Hokkien from him. At that time, there was no mention of the contents of the plastic bag as being drugs. The appellant then took the bag from the floor and placed it on the table.

NO Ng told the appellant that he would be taking it to the washroom to check its contents. At the washroom, he unwrapped the plastic bag and saw another white plastic bag with red markings at the side. He unwrapped that bag and came across four newspaper wrappings tied with rubber-bands. He took one out, unwrapped it and saw a transparent plastic bag containing heroin. He then rewrapped the newspaper covering and walked back to his table. On the way back, he gave a pre-arranged signal by looking at his pager and he replaced the bag on the floor. He told the appellant that he would be paying him slowly to avoid suspicion. He then reached out for his handphone pretending to make a call when the police officers moved in and arrested the appellant.

NO Ng stated in cross-examination that he had spent, at most, two minutes in the washroom and maintained that he had managed to unwrap and rewrap the bag in that time. He denied that he was in the washroom for five minutes and that he had substituted a white cloth bag containing cigarettes which the appellant had brought at the request of Mr Wee, with the white plastic bag. It was also put to NO Ng by counsel for the appellant that on 26 March 1992 itself the appellant did not speak to NO Ng on the telephone at all, but NO Ng had asked Mr Wee for five cartons of Salem cigarettes, which Mr Wee informed him would be delivered through the appellant. NO Ng denied this contention.

In view of the nature of the appellant`s defence, a considerable amount of time during the trial was taken up by evidence about the bag. The evidence of the undercover police officers stationed in various positions in the coffee-house essentially supported the evidence that the appellant had carried a white NTUC Fairprice plastic bag into the coffee-house. The officers who participated in the arrest and gave...