Heng Aik Ren Thomas v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 12 August 1998
• Neutral Citation: [1998] SGCA 47
• Docket Number: Criminal Appeal No 3 of 1998
• Date: 12 August 1998
• Published date: 19 September 2003
• Year: 1998
• Plaintiff Counsel: Peter Fernando and D Vivekananda (Leo Fernando)
• Citation: [1998] SGCA 47
• Defendant Counsel: Kow Keng Siong (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: Quality of identification evidence,Adaptation of guidelines to three step test for local system,Whether identification evidence of good quality,Turnbull guidelines,Whether case against accused dependent wholly or substantially on correctness of identification evidence alleged by defence to be mistaken,Whether witness's testimony fatal to his identification evidence,Whether any other evidence supporting correctness of identification evidence,Evidence,Identification,Importance of identification evidence to prosecution,Regard to circumstances in which accused observed,Witnesses,Other evidence supporting identification evidence.

Judgment:

KARTHIGESU JA

(delivering the grounds of judgment of the court): The appellant was charged in the High Court for trafficking in a controlled drug as follows:

That you, Thomas Heng Aik Ren, on or about 4 February 1997, at about 5.25pm, at the dry riser compartment at the common corridor (leading to staircase No 9) on the fifth floor of the shopping complex in Tiong Bahru Plaza, Tiong Bahru 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, by having in your possession 32 plastic sachets of substance containing not less than 25.80g of diamorphine for the purpose of trafficking at the said place, 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) and punishable under s 33 of the Misuse of Drug Act.

The appellant was convicted and sentenced to suffer death. He appealed against his conviction. We heard his appeal and dismissed it. We now give our reasons.

2. The facts

The Fire Command Control room (FCC room) of Tiong Bahru Plaza (the Plaza) had a 19 inch closed-circuit television (CCTV) monitor. This monitor showed live views of various locations in the Plaza as taken by CCTV cameras installed at these places. There were 16 such cameras and the views from these cameras were split into 16 image slots on the monitor by a process known as multiplex replay.

3.Evidence regarding the set up of the camera, electronic equipment and monitor and their operations was adduced by the prosecution and was not disputed. The 19 inch CCTV monitor had a horizontal resolution of 850 lines. The broadcast by the 16 cameras was also fed separately to a video tape recorder which only had a capacity to record and replay at a much lower horizontal resolution of 320 lines. The image from each camera was recorded on a video tape simultaneously but on a lapsed time basis. This meant that replay of the images would contain a lapse of about two to three seconds between each scene. The video production was therefore not as continuous nor as sharp as real time observation on its broadcast directly from the camera to the monitor as watched by security personnel. On a replay of the tape each slot could be made to fill the whole screen. Prosecution witness George W Clark (Clark), a supervisor in the Engineering and Research facility, Federal Bureau of Investigation (FBI) Headquarters in the United States of America gave expert evidence on these matters and confirmed the above.

4.On 4 February 1997, sometime after 5pm, prosecution witness Mohamed Khermi bin Mohd Ali (Mohd Khermi), a technician, was in the FCC room. While viewing the monitor, Mohd Khermi noticed a bespectacled male person opening the door at staircase number nine in the direction of the short corridor at 17:25:48 hours. This image appeared on monitor slot number four which was linked to camera number four. Camera number four was installed on the ceiling of the junction of the short corridor leading to staircase number nine and a common corridor which led to some commercial enterprises on the fifth storey of the Plaza. By the side of the staircase door inside the short corridor was a dry riser compartment. The short corridor will be referred to as the `dry riser corridor`. Mohd Khermi noticed that the bespectacled male person was carrying some object and that he placed that object into the dry riser compartment at 17:26:05 hours.

5.At this time, Mohd Khermi enlarged the camera relay from camera number four so that the picture from camera number four filled the entire screen of the monitor. He then noticed the person disappearing by turning right into the common corridor past the overhead camera number four. When asked by the prosecution if he had a clear look at the person`s features, Mohd Khermi said that he saw a clear image of the person`s facial features, clothing and shoes when he walked past camera number four at about 17:26:56 hours.

6.Mohd Khermi then informed security officer Sze Chong Ping (Sze) of what he had seen and instructed him to check the dry riser compartment. He also informed his security supervisor Ismail bin Mohd Yassin (Ismail) of the incident. At about 17:29 hours Sze was seen by Mohd Khermi on the monitor retrieving something from the dry riser compartment. Ismail joined Sze at the dry riser compartment at about 17:29:27 hours.

7.In his statement, Mohd Khermi said that about five to ten minutes later, he saw two male persons at the dry riser compartment. One of the male persons was the same person he had been seen earlier placing the object into the dry riser compartment. He saw both of them opening the door to the dry riser compartment and then that of the air-conditioning compartment. A short while later, both walked away from the view of the camera.

8.In his examination-in-chief, Mohd Khermi said that although his statement mentioned seeing the same person on the monitor five to ten minutes later, he actually saw this same person four times on the monitor that evening. He recalled the two subsequent times he saw the same person after viewing the video recording a few days before the trial. He explained that when the police arrived later on the evening of 4 February, he had not reviewed the tape. He also explained that when he saw the same person five to ten minutes later on the second occasion, it was between 17:39:21 to 17:40:26 hours. He explained that he had come to the conclusion that it was the same person on the second occasion based on the facial features, clothes and glasses worn.

9.The third occasion that Mohd Khermi saw the same person was between 17:42:46 to 17:42:49 hours when the very same person was alone and walking into the dry riser corridor from the direction of staircase number nine and disappearing into the common corridor past the overhead camera number four. Mohd Khermi said that although he could not see or make out the person`s glasses from the video replay, he did see the same person wearing glasses when viewing it live in the FCC room monitor. This same person was seen in the video replay from 17:51:22 to 17:51:46 hours. He was with another man and opened the dry riser door twice and looked in before walking away down the dry riser corridor towards the common corridor.

10.Mohd Khermi was asked by the trial judge about a person in a light coloured T-shirt appearing in camera number four at 17:17:05 hours, as seen in one of the photograph exhibits. This scene took place about eight minutes before Mohd Khermi`s attention was first drawn to the person placing an object into the dry riser compartment. Mohd Khermi said that the person seen in that photograph exhibit was not the same person seen by him on the four occasions he had referred to in his evidence. He thought that it was a different person because they were wearing different clothes.

11.In all, the dry riser compartment door was opened about seven times. The times and the person seen opening it are as follows:

(a)	17:12:37 hours	by security guard
(b)	17:26:05 hours	by person in light coloured T-shirt identified as the
person by Mohd Khermi
(c)	17:26:21 hours	by the same person
(d)	17:28:57 hours	by security guard Sze
(e)	17:51:30 hours	by the same person with man in dark clothing
(f)	17:52:38 hours	by the same person
(g)	17:55:33 hours	by person in dark clothing who was with the same
person at 17:51:30 hours

12.Sze gave evidence that he opened the dry riser compartment at 17:12:37 hours as part of his frequent checks because such compartments were a popular place for people such as school boys to put their school bags in.

13.Sze`s evidence was that after Mohd Khermi had communicated with him and had asked him to check the dry riser compartment, he recovered a black plastic bag from the dry riser compartment at 17:29 hours. In the bag he found two bundles. One bundle was wrapped in newspaper and the other bundle was a plastic packet containing sachets of granular substance. Sze also gave evidence that when he checked the dry riser compartment at 17:12:37 hours he did not see any black plastic bag or anything suspicious in the compartment. The replay of the tape between 17:12:37 to 17:26 hours of the view from camera number four did not show any person other than the person identified by Mohd Khermi opening the dry riser compartment door. Similarly, the tape showed that no one else opened the same door in the subsequent three minutes until Sze did so at 17:28:57 hours.

14.After retrieving the black plastic bag Ismail informed the police, who arrived at about 17:51 hours. This led to the seizure of the black plastic bag and the video cassette on which the events were recorded. Police Constable Abdul Sukor bin Nordin (PC Sukor) of the Central Police Division testified that on being handed the black plastic bag he opened it and found a sealed transparent plastic packet wrapped with newspapers containing sachets of substance. He also found another unsealed transparent plastic packet with similar sachets. In all there were 32 sachets of substance.

15.On 5 February 1997, the exhibits were handed over to an officer of the Central Narcotics Bureau (CNB). On 6 February 1997, the 32 sachets of granular substance in the black plastic bag were handed over to the Department of Scientific Services for analysis. The granular substance was analysed and quantified by Dr Chow Shui Tse (Dr Chow), a scientific officer of the Department of Scientific Services. Dr Chow stated that the 32 sachets contained 25.80g of diamorphine, a controlled drug listed in the First Schedule of the Misuse of Drugs Act (Cap 185) (MDA). The analysis and quantification were not disputed. No opiates were found in the appellant`s urine sample.

16.On 17 March 1997, Inspector Paul Ang Choe Seng (Inspector Paul Ang) made computer print outs of two frames timed at 17:51:22 hours and 17:51:25 hours from the video tape...