Govindarajulu and Another v Public Prosecutor

JurisdictionSingapore
Judgment Date13 May 1994
Date13 May 1994
Docket NumberCriminal Appeal No 74 of 1993
CourtCourt of Appeal (Singapore)
Govindarajulu Murali and another
Plaintiff
and
Public Prosecutor
Defendant

[1994] SGCA 69

Yong Pung How CJ

,

M Karthigesu JA

and

L P Thean JA

Criminal Appeal No 74 of 1993

Court of Appeal

Criminal Law–Abetment–Abetment by aiding–Whether meaning of “abet” in Misuse of Drugs Act (Cap 185, 1985 Rev Ed) same as that in Penal Code (Cap 224, 1985 Rev Ed)–Whether conviction of abettor contingent on state of mind of principal–Whether acquittal of principal would ipso facto lead to acquittal of abettor–Section 12 Misuse of Drugs Act (Cap 185, 1985 Rev Ed)–Criminal Procedure and Sentencing–Charge–Alternative charge possible on the facts–Whether Prosecution should have charged accused with another offence–Prosecutorial discretion in deciding charge–Court's duty with respect to charges validly preferred–Criminal Procedure and Sentencing–Statements–Cautioned statement–Failure to mention material part of defence–Whether trial judge entitled to rely on material omission in statement to disbelieve accused–Words and Phrases–“Abets”–Section 12 Misuse of Drugs Act (Cap 185, 1985 Rev Ed)

The first appellant was convicted of trafficking diamorphine by delivery, and the second appellant of abetting the first appellant's trafficking by intentional aiding. The appellants appealed. The first appellant argued that the trial judge failed to give sufficient consideration to his defence at trial that he thought he was not delivering heroin because two packets were given to him; he had tasted the packet containing a non-controlled drug and concluded, without tasting it, that the other packet similarly did not contain heroin. The second appellant submitted that: (a) the trial judge erred in failing to consider whether the Prosecution's evidence was sufficient to establish the charge of abetment; (b) he should have been charged under a different charge of trafficking by offering to sell drugs to an undercover narcotics officer; (c) as he was charged as an abettor, his conviction was contingent on the principal - the first appellant's - state of mind, such that if the act contemplated by the principal was different from that performed, the substantive offence was not established against the principal and the charge of abetment should fail.

Held, dismissing the appeals:

(1) When an accused failed to mention the most material part of his defence in his cautioned statement or subsequent detailed statements during investigations before trial, the trial judge was entitled to rely on such material omission to disbelieve the defence: at [32] and [33].

(2) Whether the facts in a given case gave rise to charges for other offences and whether the Prosecution should have charged an accused for those offences was irrelevant. A trial court must concern itself with the charge at hand and decide whether the Prosecution had proved beyond a reasonable doubt each and every element of the charge. It was not for a court of law to consider the moral complicity of each accused person and question the Prosecution's absolute discretion in deciding which charge to prefer: at [40].

(3) The conviction of an abettor turned on the evidence against him, which might be different from that admitted against the principal. As such, an acquittal of the principal might still result in a conviction of the abettor: at [42].

[Observation: “Abets” in s 12 of the Misuse of Drugs Act (Cap 185, 1985 Rev Ed) had the same meaning as in the Penal Code (Cap 224, 1985 Rev Ed), as provided for in s 2 of the Interpretation Act (Cap 1, 1985 Rev Ed). An abettor who, either prior to or at the time of the commission of an act, did anything to facilitate the commission of that act, was said to aid the doing of that act: at [43] and [44].]

Koh Aik Siew v PP [1993] 1 SLR (R) 885; [1993] 2 SLR 599 (refd)

Lee Ngin Kiat v PP [1993] 1 SLR (R) 695; [1993] 2 SLR 511 (refd)

Madan Raj Bhandari v The State of RajasthanAIR 1970 SC 436 (refd)

Ong Ah Yeo Yenna v PP [1993] 1 SLR (R) 349; [1993] 2 SLR 73 (folld)

Sinniah Pillay v PP [1991] 2 SLR (R) 704; [1992] 1 SLR 225 (folld)

Corrosive and Explosive Substances and Offensive Weapons Act (Cap 65, 1985 Rev Ed)

Criminal Procedure Code (Cap 68,1985Rev Ed)s 122 (6)

Interpretation Act (Cap 1,1985 Rev Ed)s 2

Misuse of Drugs Act (Cap 185,1985 Rev Ed)s 12 (consd);ss 5,17, 18 (2),33

Penal Code (Cap 224,1985 Rev Ed)s 107explanation 2, s 326

Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed,1993 Reprint)s 54

Subhas Anandan (M P D Nair & Co) and Thangavellu (Muru Rajah & Partners) for the first appellant

Sant Singh (Chor Pee & Co) and Cheah Kok Lim (Low Yeap & Co) for the second appellant

Ismail Hamid and Lim Tse Haw (Deputy Public Prosecutors) for the respondent.

Yong Pung How CJ

(delivering the judgment of the court):

1 The first appellant was charged as follows:

That you, Govindarajulu Murali, on or about 7 June 1989 at about 4.30pm at the Luna Restaurant, Apollo 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, you delivered two packets of substance containing not less than 325.70g of diamorphine to one Lee Kiong Lock, without any authorization under the said Act or the Regulations made thereunder, and you have thereby committed an offence under s 5 (a) and punishable under s 33 of the Misuse of Drugs Act.

2 The second appellant was charged as follows:

That you, Amrutham Chenchaiah, are charged that you, on or about 7 June 1989 between 2.05pm and 4.30pm at the Luna Restaurant, Apollo Hotel, Havelock Road, Singapore, and elsewhere in Singapore, did abet one Govindarajulu Murali in the commission of the offence of trafficking in a controlled drug specified in class A of the First Schedule to the Misuse of Drugs Act (Cap 185), to wit, you intentionally aided the delivery of two packets of substance containing not less than 325.70g of diamorphine by the said Govindarajulu Murali, without any authorization under the said Act or the Regulations made thereunder, and you have thereby committed an offence under s 12 read with s 5 (a) and punishable under s 33 of the Misuse of Drugs Act.

3 Both appellants were jointly tried and after a very protracted trial were convicted in the High Court on 26 November 1993 of their respective charges. We dismissed their appeals on 18 April 1994 and now set out our reasons.

Prosecution case

4 At about 4.30pm on 31 May 1989, at the Kiong Xi Lounge of the Tai Pan Ramada Hotel, under the surveillance of a party of Central Narcotics Bureau (“CNB”) officers, Narcotics Officer Lee Kiong Lock (“NO Lee”) was introduced as “Mike” by a CNB agent to the second appellant as an interested buyer of drugs. NO Lee queried the second appellant as to what was on offer. The second appellant replied that his connection had 1.5kg of brown sugar (common jargon for heroin from South America and the Golden Crescent) and 450g of pure white heroin for sale. After some haggling over the price, NO Lee offered a price of $50,000. The second appellant was given NO Lee's pager number and he said that he would get in touch with his connection in India. The second appellant was staying in Room 1808, Dai-Ichi Hotel, and he gave NO Lee the telephone number of the hotel. NO Lee was told that, upon confirmation of the order, delivery would be effected within 48 hours but, if more drugs were required, it would take about 12 days.

5 After a number of telephone calls, a second meeting was held at the Sea Breeze Coffee House of the Dai-Ichi Hotel at 7.45pm on 1 June 1989. At this meeting, the second appellant informed NO Lee that his connection's lowest price was $85,000 and also that the connection could arrive in Singapore on 2 June 1989. The price was agreed to. When told by NO Lee that he intended to export the drugs for resale in the United States, the second appellant said that he could also arrange for the drugs to be delivered in the States. The meeting ended with NO Lee asking the second appellant to contact him when his connection arrived so that he could get his money ready. A series of telephone conversations followed concerning the arrival date of the second appellant's connection. Finally at about 8.15pm on 6 June 1989 the second appellant confirmed to NO Lee that his connection had arrived. NO Lee said that he would contact him the following day at about 10.30am.

6 On 7 June 1989 at 10.30am, NO Lee telephoned the second appellant at the Dai-Ichi Hotel and said that the money would only be ready after 1.00pm, whereupon the second appellant said that he had kept the day free for the transaction and also had samples which NO Lee could view to satisfy himself. At about 1.40pm on the same day, NO Lee arranged with the second appellant to meet him at the Luna Coffee House of the Apollo Hotel at 2.00pm that same afternoon. NO Lee arrived there at about 1.50pm and was watched by two parties of CNB officers. At about 2.00pm, NO Lee noticed a male Indian (whom he later identified as the first appellant) walking into the coffee house and occupying a table close to him. The second appellant arrived at 2.05pm. NO Lee asked him for the sample. The second appellant took out a Dai-Ichi matchbox from a black pouch which he was carrying and gave it to NO Lee. NO Lee then excused himself to go to the toilet. He opened the matchbox and saw one packet wrapped in silver foil and one wrapped in brown paper. He tested the drugs in the toilet with his Narcoban drug test kit and, although both samples produced reactions, only the brown powder tested positive for heroin. Nonetheless, he decided not to quibble with the second appellant over the authenticity of the white powder as that would only expose his cover since only CNB officers carried Narcoban drug test kits. Upon his return to the table, NO Lee was informed by the second appellant that he had not brought the drugs for security reasons...

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