Hartej Sidhu and Another v Public Prosecutor

• Judgment Date: 26 May 1994
• Date: 26 May 1994
• Docket Number: Criminal Appeal No 5 of 1993
• Court: Court of Appeal (Singapore)

Hartej Sidhu and another

Plaintiff

and

Public Prosecutor

Defendant

[1994] SGCA 79

Yong Pung How CJ

,

M Karthigesu JA

and

L P Thean JA

Criminal Appeal No 5 of 1993

Court of Appeal

Criminal Law–Statutory offences–Misuse of Drugs Act (Cap 185, 1985 Rev Ed)–Trafficking in controlled drugs–Common intention–Agreement between appellants to deal with drugs–Appellants acting in concert pursuant to prearranged plan to sell drug–Whether knowledge and consent present–Section 34 Penal Code (Cap 224, 1985 Rev Ed)–Section 5 (a) Misuse of Drugs Act (Cap 185, 1985 Rev Ed)–Criminal Law–Statutory offences–Misuse of Drugs Act (Cap 185, 1985 Rev Ed)–Trafficking in controlled drugs–Presumption of knowledge of controlled drugs–Whether first appellant had knowledge of contents of cans–Whether presumption rebutted–Section 18 Misuse of Drugs Act (Cap 185, 1985 Rev Ed)–Criminal Law–Statutory offences–Misuse of Drugs Act (Cap 185, 1985 Rev Ed)–Trafficking in controlled drugs–Presumption of possession–Drugs found on one appellant with knowledge and consent of the other–Whether presumption rebutted–Section 18 Misuse of Drugs Act (Cap 185, 1985 Rev Ed)

The appellants were convicted of trafficking in 600.8g of diamorphine and 9,317g of opium in furtherance of the common intention of them both. The brief facts were as follows. The appellants had arranged to meet one “Michael” at Sea View Hotel. Unbeknownst to both appellants, Michael was a narcotics officer. The first appellant was arrested in the coffee house. The brown bag with 12 cans inside it was seized. The second appellant was observed alighting from a car and walking towards the hotel. He was subsequently arrested in the hotel lobby. The trial judge held that there was overwhelming evidence of common intention on the part of each of the appellants to traffic in the drugs.

The appellants appealed. The first appellant argued that: (a) the trial judge had not given proper consideration to the first appellant's defence that he was merely an innocent carrier and a “fall guy” for the conspiracy between the second appellant and one Ram Babu to traffic in drugs; and (b) the trial judge erred in finding a common intention between the appellants to traffic in the drugs.

The second appellant argued that: (a) the trial judge did not fully consider that no drugs were found on the second appellant; (b) the trial judge failed to give sufficient consideration to the second appellant's defence that he had no knowledge of the first appellant's intention to traffic in drugs; and (c) the trial judge erred in finding a common intention between the appellants to traffic in the drugs.

Held, dismissing the appeals:

(1) The first appellant's grounds of appeal were without merit. The trial judge found that the first appellant played an important role in the sale of the drugs to the extent that he determined the price and went to India to bring in the drugs. The trial judge disbelieved the first appellant's evidence that he did not know English. It was the first appellant's own evidence that he knew enough English to complete the immigration forms when he entered Singapore. Also, it was difficult to believe that what little conversation he had with Michael was done solely with hand gestures and “finger language”. There was absolutely no reason to disagree with the trial judge's findings of fact on these matters, especially since he had the advantage of being able to observe the witnesses and to assess their credibility. The evidence was therefore irresistible that the first appellant played a role in the sale of the drugs to the extent that the second appellant had to confer with him before any price could be quoted: at [34] and [35].

(2) The trial judge's finding that the first appellant had knowledge of the contents of the cans was a question of fact arrived at by the trial judge based on his assessment of the truthfulness and veracity of a witness before him. The appellate court would and should be slow to intervene in such a situation. There was in existence a partially opened can from which the trial judge drew the inference that the first appellant must have known the contents of the cans. More significantly, even if there was some dispute as to what was handed to Michael, it was doubted whether the first appellant has succeeded in rebutting the presumptions of possession and knowledge raised against him in ss 18 (1) and 18 (2) of the Misuse of Drugs Act (Cap 185, 1985 Rev Ed): at [36].

(3) The second appellant's grounds of appeal were also unfounded. The law held that “acquiescence or condonation” was not enough to meet the “knowledge and consent” requirement of s 18 (4). There must be some dealing between the parties in relation to the drug, such as an agreement to buy it, or help in concealing it. The trial judge accepted Michael's evidence as the truth and criticised the second appellant as an untruthful witness. The onus on the appellant in such a situation was to show that the findings of the trial judge were clearly against the weight of evidence and unsupportable, but the second appellant failed to do so. The trial judge found as a fact that the second appellant negotiated with Michael for the sale of the drugs. Although the drugs were in the possession of the first appellant, the second appellant clearly knew and consented to it in that there was an agreement between the appellants to deal with the drugs. By the same token, common intention to traffic in drugs was manifest from the circumstances. The appellants acted in concert pursuant to a prearranged plan to sell the drugs: at [38] and [39].

PP v Lim Ah Poh [1991] 2 SLR (R) 307; [1992] 1 SLR 87 (refd)

R v Lou Hay Hung (1946) OR 187 (refd)

Misuse of Drugs Act (Cap 185,1985Rev Ed)ss 5 (a),18 (consd);ss 18 (1),18 (2), 18 (4),33

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

Narindar Singh (N S Kang) and Ramesha Pillai (Mansur Hussain & Pnrs) (both assigned) for the first appellant

N K Rajah (Muru Rajah & Pnrs) and Jacqueline Baruch (J Baruch) (both assigned) for the second appellant

Kamala Ponnampalam (Deputy Public Prosecutor) for the respondent.

Yong Pung How CJ

(delivering the judgment of the court):

1 The two appellants were charged in the High Court as follows:

Amended first charge

That you,	1Hartej Sidhu
2 Sarjit Singh

on or about 16 June 1990 at about 12pm at the Bali Hut Coffee House, Sea View Hotel, Singapore, in furtherance of the common intention of you both, did traffic in a controlled drug specified in Class A of the First Sch to the Misuse of Drugs Act (Cap 185) to wit, two cans of substance containing not less than 600.8g 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) 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.

Amended second charge

That you,	1Hartej Sidhu
2 Sarjit Singh

on or about 16 June 1990 at about 12pm at the Bali Hut Coffee House, Sea View Hotel, Singapore, in furtherance of the common intention of you both, did traffic in a controlled drug specified in Class A of the First Sch to the Misuse of Drugs Act (Cap 185) to wit, ten cans of substance containing not less than 9,317g of opium 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) 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.

2 Following a trial of some ten days in the High Court they were convicted on 21 January 1993 of the above charges. We dismissed their appeals on 16 May 1994 and now give our reasons.

The facts

3 The first appellant is an Indian national. He resided at 460, Patti Baja, Faridka, India and worked as a document and deed writer. The second appellant resided at Block 9, #10-37, Selegie House, Singapore. He was employed as a driver. He also ran a boarding house at 85 Wilkie Road with his son, Baldev Singh.

4 The appellants had arranged to meet one “Michael” at the Bali Hut Coffee House, Sea View Hotel on 16 June 1990. Unbeknownst to both appellants, Michael was a narcotics officer. His real name is Lee Kiong Lock. Also unbeknownst to both appellants, a team of narcotics officers from the Central Narcotics Bureau (“CNB”) was stationed at the hotel to keep watch on the three men. At about 11.45am the first appellant was observed alighting from a taxi carrying a brown bag. Michael met him and led him to the coffee house. There was a dispute on the evidence as to what transpired between the first appellant and Michael at the coffee house which we will address later. What was not disputed was that Michael eventually went out of the coffee house and telephoned the CNB Operations Room to inform Chief Narcotics Officer Lim Chei Yoo (“CNO Lim”)...