Gopu Jaya Raman v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 12 February 2018
• Neutral Citation: [2018] SGCA 9
• Plaintiff Counsel: Chua Eng Hui (RHTLaw Taylor Wessing LLP), Skandarajah s/o Selvarajah (Skandarajah & Co) and Tan Jeh Yaw (Tan Peng Chin LLC)
• Docket Number: Criminal Appeal No 40 of 2016
• Date: 12 February 2018
• Hearing Date: 14 August 2017
• Subject Matter: Criminal Law,Criminal Procedure and Sentencing,Acquittal,Appeal,Misuse of Drugs Act,Statutory offences
• Published date: 14 February 2018
• Defendant Counsel: Mark Tay and Michelle Lu (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Citation: [2018] SGCA 9
• Year: 2018

Sundaresh Menon CJ (delivering the judgment of the majority consisting of Judith Prakash JA and himself): Introduction

The appellant, Gopu Jaya Raman (“the Appellant”), was sentenced to death in the High Court for the importation of diamorphine without authorisation under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). The Appellant had ridden into Singapore through the Woodlands Checkpoint on a motorcycle on 24 March 2014. Three bundles were found hidden in a space on the inside of the motorcycle’s fenders. The space was covered by a lid that was held in place by four screws. The lid was in fact the base for a smaller storage area under the seat of the motorcycle. When the bundles were checked and tested, they were found to contain prohibited drugs. The Appellant’s defence was that he did not know that drugs had been hidden in the space enclosed by the fenders. According to him, although he had carried out drug deliveries on two previous occasions, the drugs that were found in the motorcycle on this occasion had been planted there without his knowledge. Consistent with this, no trace of the Appellant’s DNA was found on any of the bundles. Nor was there any objective evidence to suggest that the Appellant had opened the lid of that space or placed the bundles there. Nonetheless, after a six-day trial, the Appellant was convicted of the importation charge. He also did not receive a certificate of substantive assistance. He was accordingly sentenced to death.

In Harven a/l Segar v Public Prosecutor [2017] 1 SLR 771 (“Harven”), this Court emphasised that when assessing whether an accused person has rebutted the relevant presumptions in the MDA, the court should bear in mind the inherent difficulties of proving a negative, in this context, that the offender was not in possession of the drugs or was not aware of their nature. In this regard, the court should also be mindful of the importance of not approaching its assessment of the evidence having, consciously or otherwise, already adopted a certain starting premise in its analysis. Certain pieces of evidence may be consistent with different possible conclusions, and it is of paramount importance that the court should analyse and assess the evidence before it in a critical and judicious manner. In our judgment, the question of the proper inferences to be drawn from the objective facts and evidence lies at the root of the difficulties that are raised in this case.

Background facts

The Appellant is a Malaysian national. At the material time, he was 28 years old, unemployed and residing in Johor Bahru, Malaysia.

On 24 March 2014, the Appellant rode a motorcycle bearing the Malaysian registration number WWR 1358 (“the Motorcycle”) into Singapore through the Woodlands Checkpoint at about 7.35pm. He was arrested at the Motorcycle Arrival Lane when officers from the Immigration and Checkpoints Authority (“ICA”) discovered three black bundles believed to contain controlled drugs hidden in the Motorcycle in the course of a routine search at about 7.46pm. These bundles were found concealed in a space enclosed by the fenders. When confronted with this discovery, according to the officers at the scene, the Appellant looked confused and lost, denied ownership of the bundles, and said in Malay to ICA officer Corporal Abdul Hakim bin Abdul Razak (“Cpl Abdul Hakim”), “What’s that? That’s not my bike.”

The search was suspended and the Central Narcotics Bureau (“CNB”) was contacted. CNB officers arrived shortly after this at about 8.03pm. At about 8.05pm, the Appellant was brought to the ICA Arrival Car office where CNB officer Corporal Abdul Rahim bin Muhamad recorded a contemporaneous statement from the Appellant between 8.08pm and 8.27pm. In the statement, the Appellant maintained that he did not know about the bundles in the Motorcycle and that he did not know who they belonged to. He further indicated that he had come to Singapore to meet a friend.

A follow-up operation was then carried out by the CNB officers. This was aimed at apprehending any others who might be expected to collect the drugs from the Appellant. Corporal Vengedesh Raj Nainar s/o Nagarajan (“Cpl Vengedesh”) and Corporal Sollehen bin Sahadan (“Cpl Sollehen”) directed the Appellant to communicate with one Ganesh, who the Appellant believed had arranged for the drugs to be placed in the Motorcycle. These communications took place under the supervision and at the direction of the CNB officers. Between 9.52pm on 24 March 2014 and 2.06am on 25 March 2014, Cpl Vengedesh and Cpl Sollehen were beside the Appellant as he contacted a few people regarding the collection of the black bundles. This was done through phone calls and text messages. The phone conversations were conducted over the speaker, so that the CNB officers could hear the conversations, which were in Tamil. Cpl Vengedesh spoke Tamil and could understand what was being said. However, Cpl Vengedesh, who gave evidence below, testified that he could not recall the contents of the conversations. As for Cpl Sollehen, he did not speak Tamil and could not understand the conversations. It subsequently emerged that regrettably, no audio recordings of the conversations were made in the course of the follow-up operation. The Prosecution, however, tendered a four-page extract of the CNB officers’ investigation diary which contained some basic entries concerning the follow-up operation. We will make reference to and consider these entries in the course of this judgment.

At about 9.56pm on 24 March 2014, Cpl Vengedesh informed the other CNB officers involved in the follow-up operation that the Appellant had been instructed by Ganesh to park the Motorcycle near a convenience store along Woodlands Centre Road. A team of CNB officers was deployed on this basis, but the operation was called off at about 3am on 25 March 2014 when no recipient turned up.

The three black bundles found on the Motorcycle were subsequently found to contain not less than 46g of diamorphine, following an analysis conducted by the Health Sciences Authority.

When arrested, Appellant was also found with RM55 and no Singapore currency. He was also carrying two mobile phones, both with Malaysian SIM cards in them, as well as an additional Singapore SIM card in his wallet. Under the seat of the Motorcycle, a scarf and a screwdriver were found on the seat compartment lid. Swabs were taken from the three bundles, the screwdriver and the four screws that held the seat compartment lid in place, but no useful DNA profiles could be generated from them. As for the DNA profile obtained from the scarf and the seat compartment lid, a complicated mixed DNA profile was obtained and this proved to be incapable of interpretation.

One charge of illegal importation was brought against the Appellant under s 7 of the MDA and it read as follows:

That you, GOPU JAYA RAMAN, on 24 March 2014 at about 7.48 p.m., at the Motorcycle Arrival Lane, Woodlands Checkpoint, Singapore, in a motorcycle bearing license plate number WWR 1358, did import into Singapore three bundles containing not less than 1351.4 grams of granular powdery substance which was analyzed and found to contain not less than 46 grams of diamorphine, a “Class A” controlled drug listed in the First Schedule to the Misuse of Drugs Act, Chapter 185, Rev. Ed. 2008, without authorisation under the said Act or the Regulations made thereunder and you have thereby committed an offence under section 7 punishable under Section 33(1) of the said Act.

The proceedings and decision below

The Appellant was generally consistent in his statements. The Appellant admitted that he had made two previous drug deliveries from Johor Bahru, Malaysia to Singapore. He had met Ganesh and someone he knew as “Ah Boy” in January 2014. The Appellant had borrowed some money from Ganesh. When he was unable to settle his loan, Ganesh insisted that the Appellant would have to help deliver drugs to Singapore and threatened to harm his family if he did not do as he was told. He therefore delivered drugs to Singapore using the same Motorcycle on two previous occasions. On both occasions, the drugs had been packed in green bundles, and were covered with a scarf and placed over the seat compartment lid, which itself was then covered by the seat. On those occasions, the drugs had not been hidden in the space enclosed by the fenders where the three bundles were found on 24 March 2014.

However, on this occasion, the Appellant maintained that the drugs had been hidden in the Motorcycle without his knowledge, and that he had not agreed to deliver these drugs. He also maintained that he had seen the three bundles for the first time when the ICA officers discovered them in the course of searching the Motorcycle at the Woodlands Checkpoint. The Appellant claimed that he had borrowed the Motorcycle on 24 March 2014 to visit his girlfriend, Tamil Selvan Revalthi (“Revalthi”), and a friend, one “John”, in Singapore because he wanted to celebrate his birthday, which fell on the previous day (ie, 23 March 2014).

The Appellant also said in his statements that while riding on the Causeway towards Singapore, he received a call from Ganesh who asked him to call him when he arrived in Singapore. When he asked Ganesh why, he was told that the “recipients changed their contact numbers”; he subsequently attempted unsuccessfully to retract this statement during the trial. He also said that this conversation led him to suspect that Ganesh had placed some drugs in the Motorcycle, but he was already approaching Woodlands and there was no time or opportunity to do anything. He also took comfort in the fact that when he filled petrol before he reached the Causeway, he had checked the place in the Motorcycle where the drugs had been kept on the previous occasions and found nothing there.

Aside from this, a critical part of the evidence pertains...