Gulam bin Notan Mohd Shariff Jamalddin and Another v Public Prosecutor

• Judge: Karthigesu JA
• Judgment Date: 20 February 1999
• Neutral Citation: [1999] SGCA 12
• Citation: [1999] SGCA 12
• Defendant Counsel: Ramesh Tiwary (Leo Fernando) and Nedumaran Muthukrishnan (K Krishna & Partners),Lee Sing Lit and Karen Loh (Deputy Public Prosecutors)
• Published date: 19 September 2003
• Plaintiff Counsel: Raymond Ng (Tan Lay Keng & Co) and Sadari Musari (Sadari Musari & Partners)
• Date: 20 February 1999
• Docket Number: Criminal Appeal No 19 of 1998
• Court: Court of Appeal (Singapore)
• Subject Matter: Criminal Law,Whether Prosecution proved beyond reasonable doubt that appellants in possession of drugs -Presumption of trafficking,Findings of facts,Voluntariness of statement,Whether charge and notice of warning read in addition to cautioned statement,Statutory offences,Admissibility of statement recorded by investigating officer,Appellate court not to disturb such findings unless reached against weight of evidence,Proof of possession,Confessions,Whether investigating officer who is actively involved in investigations to be disqualified from recording statement on ground of likelihood of bias,s 24 Evidence Act (Cap 97),Trafficking in controlled drugs -Whether appellants were in possession of drugs,Proof of evidence,Voluntariness of statements,Admissibility of statements,Appeal,Whether statements are made because of threat, inducement or promise,Statements,Criminal Procedure and Sentencing,Evidence,Lack of rebuttal,Previous cautioned statement read to first appellant when making s 121 statement,Admissibility of evidence,Admissibility of statement,Meaning of possession,Whether s 121 statement made involuntaril,Finding of trial judge that charge and notice of warning not read to first appellant,Whether there is constituting threat or inducement,ss 5(1)(a), (2), 17 & 33 Misuse of Drugs Act (Cap 185)

(delivering the grounds of judgment of the court): The first and second appellants were originally tried with one Nor Azman bin Mustaffa (`Nor Azman`) in the High Court for having in their possession 392.66g of diamorphine for the purpose of trafficking, an offence under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185) (`the Misuse of Drugs Act`). On 4 September 1998, Nor Azman`s charge was amended and he was charged with abetting the two appellants by conspiring with them to traffic in not less than 14.99g of diamorphine. He pleaded guilty to the amended charge and two other drug-related charges, and was sentenced to a total of 28 years` imprisonment and 15 strokes of the cane. The first and second appellants claimed trial to the following charge:

That you,

1 Gulam bin Notan Mohd Shariff Jamalddin,

2 Mohd Noor bin Bayasin

between 7 to 9 March 1998, at Block 150 Bedok Reservoir Road [num ]01-1727, Singapore, in furtherance of a common intention, you had in your possession, for the purpose of trafficking 1 pail, 1 basin and 36 packets of substance containing not less than 392.66 grams of diamorphine, a controlled drug specified in Class `A` of the First Schedule to the Misuse of Drugs Act (Cap 185), without any authorisation under the said Act or the regulations made thereunder, and you have thereby committed an offence under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act and s 34 of the Penal Code and punishable under s 33 of the Misuse of Drugs Act.

On 16 October 1998, the learned judicial commissioner convicted both appellants as charged and passed the mandatory sentence of death. The appellants appealed against their conviction and sentence. At the conclusion of the hearing we dismissed the appeal and now give our reasons.

The prosecution`s case

The crux of the prosecution`s case was that the second appellant, in furtherance of his common intention with the first appellant, acted to put the first appellant in possession of the drugs from 7 to 9 March 1998. The drugs were first kept in a flat at 89B TG Mansion, Lorong H, Telok Kurau. The appellants wanted the drugs to be transported to a shop, unit [num ]01-1727 Blk 150 Bedok Reservoir Road, which was rented by both the appellants. On 7 March 1998, both appellants kept in contact with each other via telephone as to the mode of transport. Pursuant to their agreement, the second appellant transported the drugs from 89B TG Mansion, Lorong H, Telok Kurau, to unit [num ]01-1727 Blk 150 Bedok Reservoir Road. The first appellant was waiting there when the drugs arrived. Both appellants repacked the drugs into plastic bags using a weighing scale and electric heat sealer. The drugs were kept in the unit from 7 March until 9 March 1998 when they were seized by CNB officers.

The prosecution relied on the Statement of Agreed Facts pursuant to s 376 of the Criminal Procedure Code (Cap 68) (`the CPC`), two statements made by the first appellant which were challenged, statements admitted under s 371 of the CPC and oral testimony.

The statement of agreed facts said that, on 9 March 1998, a party of four CNB officers arrested the first appellant at the carpark of Blk 125 Bedok Reservoir Road. They were Senior Staff Sergeant Ronnie See (`SS/Sgt See`), Sergeant Chen Koi Shen (`Sgt Chen`), Sergeant Mohd Najid bin Hj Sairi (`Sgt Najid`) and Corporal Chong Wee Loong (`Cpl Chong`). The first appellant was seated in his car, a Honda Accord bearing licence plate no EV2024T. He initially tried to escape when he saw the officers but was caught after a short chase. A body search was conducted on him and the CNB officers found a pager, a handphone, two bunches of keys, a key by itself, a wallet containing S$254 and RM34, cash of S$82 and some coins.

At about 7pm, Insp S Krishnan (`Insp Krishnan`) arrived with two other CNB officers. The whole group together with the first appellant then left the carpark at Blk 125 Bedok Reservoir Road and proceeded to Blk 150 Bedok Reservoir Road. The CNB officers led the first appellant to unit [num ]01-1727 Blk 150, Bedok Reservoir Road, which housed a hair dressing saloon known as `Hairview & Face Creation`. That unit was actually sub-divided into two units both bearing the same unit number, and one of the units had been rented to the first appellant (`the shop`) since March 1997, with the saloon continuing to operate in the other unit. The first appellant had informed the owners of the premises that he was in the wedding decoration business and introduced the second appellant to them as his business partner. The first appellant paid the rental for the shop ($1,400 per month) from March 1997 to February 1998, and was given the key to the door of the shop. When the CNB officers led the first appellant to the front entrance of the saloon, they tried to use one of the keys seized from him to open the door but were unsuccessful. One of the officers then tried the key on the door of the adjoining unit (the shop) and managed to open it.

There were many decorations and props in the shop. There was also a colourful sports bag with the word `Offendal` on the floor. Inside were 11 packets of powdery substance. The CNB officers searched the shop and found a big cardboard carton near the sink. In this carton was a smaller cardboard carton sealed with masking tape and some plastic flowers. In the smaller cardboard carton, the officers found 25 packets of granular substance. These 36 packets formed the subject matter of the charge.

In addition, the CNB officers found a black trash bag near the sports bag. In the trash bag was a transparent plastic pail with two basins. The pail and one of the basins contained a yellow granular substance. These were also the subject matter of the charge.

Meanwhile, at about 6.45pm on the same day, another team of CNB officers was waiting to ambush the second appellant at the carpark of Blk 128 Bedok Reservoir Road. They arrested the second appellant as he was coming out of a blue panel van, licence plate no YG5693J. The van was registered in the name of the first appellant. A search was conducted at the residence of the second appellant, unit [num ]11-1087 Blk 125 Bedok Reservoir Road, at about 8.30pm.

At about 9pm, the CNB officers brought the second appellant to the shop. The first appellant had already been arrested. Officers from the Scene of Crime Unit were taking photographs of the exhibits. SS/Sgt See then left with his team and the first appellant whilst another team left with the second appellant. Both teams arrived at 19 Dafne street. The Investigating Officer, Senior Staff Sergeant Wong Wah Yan (`SS/Sgt Wong`), was already present. SS/Sgt See used a key which had been seized from the first appellant earlier to unlock the padlock on the gate of 19 Dafne Street. A search was conducted. The Investigating Officer and another officer together with the second appellant then left for the Major Investigations Branch (`MIB`) Building at Outram Road. At about 11.30pm, SS/Sgt See and his team brought the first appellant to his residence, unit [num ]06-202 Blk 155 Simei Road, and conducted a search.

On the same day, at about 8.30pm, a third team of CNB officers raided 89B TG Mansion, Lorong H, Telok Kurau. 89B TG Mansion had been rented by the first appellant for $1,900 per month from 16 February 1998. The landlord did not enter the flat during the period of the tenancy, from February to March 1998. The officers found a weighing scale, improvised pipes, one roll of aluminium foil, one stack of white envelopes and some empty plastic sachets on the computer table. On the floor were a red pail containing long glass tubes, improvised glass pipes, two spoons believed to be stained with drugs, one glass cutter, one rubber tube and two plastic lighters. There was also a grey pail containing a bowl, a plastic container and three spoons. All the items were seized and taken to the MIB Building.

At the MIB Building, the first appellant and the exhibits seized from him were handed over to the Investigating Officer. The two appellants were sent for their pre-statement medical examination. SS/Sgt See and two officers left the MIB Building together with the first appellant. After the medical examination, the first appellant was brought to the Investigating Officer and handed over to him at about 4.10am. At about 4.45am the Investigating Officer handed the first appellant back to SS/Sgt See and his officers to be brought to Alexandra Hospital for his post-statement medical examination. After that medical examination, they brought the first appellant to the CID lock-up.

It was agreed that the 36 packets, the pail and the basin found in the shop contained not less than 392.66g of diamorphine, the subject matter of the charge against the appellants. In addition a brown envelope containing a packet of drugs found in the carton (exh C23a) and the carton (exh C) were sent for fingerprint examination. The fingerprint found on the underside of the envelope matched the fingerprint specimen of the second appellant. The other fingerprint found on the carton was a poor mark and could not be identified.

The second appellant had allowed one Rashidah bte Ishak, a freelance Muslim wedding service co-ordinator, to store her decoration materials at the shop for $200 per month. She was not given a key to the shop. On 8 March 1998, at about 9am, she met the second appellant at the shop when she went there to collect some of her materials. She had telephoned him the day before to make the appointment. Her things were stored between the front entrance and a wooden cabinet which stood in the middle of the shop. Hence she did not have to go beyond the wooden cabinet when she was in the shop. Whilst she was in the shop, the second appellant was positioned near the cabinet. She was in the shop for only a short while and left after retrieving her things. The second appellant remained in the shop.

The statement...