Harven a/l Segar v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 10 March 2017
• Neutral Citation: [2017] SGCA 16
• Plaintiff Counsel: Ram Goswami (Ram Goswami) and Cheng Kim Kuan (K K Cheng & Co)
• Date: 10 March 2017
• Docket Number: Criminal Appeal No 30 of 2015
• Hearing Date: 02 December 2016
• Subject Matter: Appeal,Statutory Offences,Criminal Procedure and Sentencing,Acquittal,Criminal Law,Misuse of Drugs Act
• Published date: 23 March 2017
• Defendant Counsel: Kwek Mean Luck, Tan Wen Hsien and Sarah Shi (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Citation: [2017] SGCA 16
• Year: 2017

Chao Hick Tin JA (delivering the judgment of the majority): Introduction

The appellant, Harven a/l Segar (“the Appellant”), was charged with three counts of trafficking in controlled drugs under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”), and was convicted after a two-day trial of all three charges. He is appealing against his conviction on the basis that he did not know that the black bundles found in his possession contained drugs. He submits that based on the evidence before the court, the presumption of knowledge under s 18(2) of the MDA should be held to have been rebutted.

This court has, on numerous occasions, expounded on the burden and standard of proof imposed on an accused person seeking to rebut the presumption of knowledge under s 18(2) of the MDA. The burden of proving a lack of knowledge is undoubtedly for the accused person to discharge, and there are good reasons for having this exceptional evidential rule as part of our criminal law. But, the inherent difficulties of proving a negative (in the present context, a lack of knowledge) must be borne in mind (see Public Prosecutor v Sibeko Lindiwe Mary-Jane [2016] SGHC 199 at [61]), and the burden on an accused person faced with this task should not be made so onerous that it becomes virtually impossible to discharge. How this burden may be discharged is certainly not a matter that can be spelt out in a fixed formula. It is the overall picture that emerges to the court which is decisive as the court is here concerned not with a scientific matter, but with the state of a person’s mind. A factor which is considered to be critical in one case may not be so in another.

Background facts

The Appellant was, at the material time, a 20-year-old Malaysian residing in Johor Bahru and working in Singapore as a prime mover driver at the premises of the Port of Singapore Authority (“PSA”).¹ He had then held that job for about three years. He earned about $2,000 a month and commuted daily (except on his rest days) between Johor Bahru and Singapore for work. On 12 June 2013, at about 9.45pm, officers from the Central Narcotics Bureau (“CNB”) arrested the Appellant outside a 7-Eleven store situated at the entrance to Hoa Nam Building along Jalan Besar.² The CNB officers were then in the vicinity looking out for one Sulaimi bin Ismail (“Sulaimi”), whom they believed to be involved in drug activities.³ The Appellant was apprehended after he was seen meeting and interacting with Sulaimi, and entering the 7-Eleven store with him.⁴ At that time, the Appellant was carrying a black haversack (“the Haversack”). In it, the CNB officers found, inter alia, two round bundles individually wrapped in black tape (“A1” and “A2”), one rectangular bundle wrapped in black tape (“A3”) and an unused roll of black tape.⁵

A1, A2 and A3 (collectively, “the Bundles”) were analysed by the Illicit Drugs Laboratory of the Health Sciences Authority (“the HSA”) and were found to contain the following:⁶ A1 and A2 contained a granular/powdery substance weighing a total of 902g, of which not less than 53.74g was diamorphine.⁷ A3 contained: (i) 232.8g of vegetable matter which was found to be cannabis; and (ii) 259.8g of fragmented vegetable matter which was found to contain cannabinol and tetrahydrocannabinol.⁸

Three charges under s 5(1)(a) read with s 5(2) of the MDA were brought against the Appellant for: trafficking in a Class A controlled drug consisting of two packets of granular/powdery substance weighing a total of 902g which, upon analysis, was found to contain not less than 53.74g of diamorphine (the first charge); trafficking in a Class A controlled drug consisting of 232.8g of vegetable matter which, upon analysis, was found to be cannabis (the second charge); and trafficking in a Class A controlled drug consisting of 259.8g of fragmented vegetable matter which, upon analysis, was found to contain cannabinol and tetrahydrocannabinol (the third charge).

The Appellant’s defence

The Appellant’s sole defence at the trial was that he did not know that the Bundles contained controlled drugs.⁹ He claimed that the Bundles had been passed to him by one “Mogan”. The Appellant became acquainted with Mogan in Singapore in the course of work three weeks before he was arrested. In the course of those three weeks, the Appellant became friends with Mogan. He gave Mogan rides on his motorcycle between Johor Bahru and their workplace in Singapore, and also had breakfast with Mogan when they went back to Johor Bahru together in the morning after their night shifts.¹⁰

The Appellant claimed that on 12 June 2013, Mogan asked him to bring some “jaman” (“things” in Tamil) to Singapore and deliver them to a friend as a favour because Mogan had lost his passport and could not travel to Singapore himself.¹¹ The Appellant agreed to do so because he trusted Mogan as a friend.¹² The Appellant claimed that Mogan passed him a black plastic bag, but he did not know what was inside. He did not ask Mogan about the contents of that black plastic bag,¹³ nor did he have any reason to be suspicious about what was inside.¹⁴ He simply placed the “jaman” in the front basket of his motorcycle.¹⁵ Mogan told the Appellant to call him after he reached Singapore for more details as to who to pass the “jaman” to and where to go to do that. Mogan gave a mobile phone of his (“HS-HP1”) to the Appellant for this purpose.¹⁶

Before the Appellant cleared the Johor Customs, he stopped at a petrol kiosk to pump petrol. It was there that he saw that the black plastic bag which Mogan had passed to him was torn and discovered that there were three black-taped bundles (ie, the Bundles) inside.¹⁷ He thought that they were presents.¹⁸ Because the black plastic bag was torn, the Appellant threw it away and transferred the Bundles from the front basket of his motorcycle to the centre compartment of the Haversack.¹⁹ From the petrol kiosk, the Appellant drove to a food stall some distance away where he stopped to buy a packet of food. He likewise put the packet of food into the centre compartment of the Haversack.²⁰

The Appellant then proceeded to clear the Johor and the Singapore Customs. At the Singapore Customs, he opened the Haversack for inspection by the customs officers.²¹ After clearing customs, the Appellant called Mogan using the mobile phone HS-HP1 to ask him how and where to deliver the “jaman”. Mogan sent a text message to the Appellant on HS-HP1 with the telephone number of his friend, and asked the Appellant to contact the friend. Mogan’s friend turned out to be Sulaimi. The Appellant called the number sent by Mogan, and the person who answered the call (ie, Sulaimi) asked him to go to a 7-Eleven store along Jalan Besar. There, the Appellant met Sulaimi for the first time.²² Sulaimi asked the Appellant whether he wanted a drink and he said “yes”. Hence, they walked into the 7-Eleven store, where Sulaimi picked up some food and drink and the Appellant, only a drink. The Appellant came out of the store first and sat on a stone slab outside, waiting for Sulaimi to pay for the purchases. At that point, he was apprehended by a team of CNB officers. Because of the arrest, he did not have the chance to pass the Bundles to Sulaimi.²³

The High Court’s decision

The High Court judge (“the Judge”) convicted the Appellant of the three charges brought against him. He did not issue a written judgment. Instead, he delivered an oral judgment at the conclusion of the hearing on 30 September 2015, where he explained his reasons for convicting the Appellant as follows: The Appellant had to rebut: (i) the presumption under s 18(2) of the MDA that he knew that the Bundles contained drugs; and (ii) the presumption under s 17 that he had the drugs for the purpose of trafficking.²⁴ One factor in the Appellant’s favour was that he openly gave the Haversack to the customs officers for inspection at the Singapore Customs without attempting to hide the Haversack or the Bundles in it.²⁵ The fact that the Appellant’s DNA was found on the adhesive side of the tape used to wrap A2 was an important consideration. In this regard, the evidence of the Prosecution’s forensic expert, Ms Tang Sheau Wei June (“Ms Tang”), did not support the Defence’s submission that the Appellant’s DNA had been transferred to the adhesive side of the tape because of the way in which the tape was handled.²⁶ The unused roll of black tape found in the Haversack “require[d] explanation”.²⁷ There were sufficient suspicious circumstances to justify the Appellant asking Mogan what the Bundles contained, but he did not do so. These circumstances included the fact that the Appellant did not even know who to pass the Bundles to, and when and how the handover was to take place.²⁸ After the Appellant met Sulaimi at the 7-Eleven store, “nothing was said [and] nothing was done”. The Appellant walked out of the store without handing the Bundles to Sulaimi as he should have done. Again, this “require[d] explanation”, but none was offered.²⁹ On balance, the presumptions in ss 17 and 18(2) of the MDA were not rebutted.³⁰

With regard to sentence, the Prosecution extended the Appellant a certificate of substantive assistance under s 33B(2) of the MDA. Finding that the Appellant was “merely … a courier”,³¹ the Judge sentenced him as follows: On the first charge, the Judge exercised his discretion not to impose the death sentence and sentenced the Appellant to life imprisonment and the minimum 15 strokes of the cane.³² On the second and third charges, the Judge sentenced the Appellant to the minimum punishment of five years’ imprisonment and five strokes of the cane per charge.³³ Since a sentence of life imprisonment had been imposed for the first charge, the sentences for the other two charges were ordered, pursuant to s 307(2) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the...