Imran bin Mohd Arip v Public Prosecutor and other appeals

• Court: Court of Appeal (Singapore)
• Judge: Sundaresh Menon CJ
• Judgment Date: 18 December 2020
• Neutral Citation: [2020] SGCA 120
• Citation: [2020] SGCA 120
• Docket Number: Criminal Appeal Nos 22, 23 and 24 of 2019
• Hearing Date: 19 November 2020
• Plaintiff Counsel: Daniel Chia Hsiung Wen and Ker Yanguang (Morgan Lewis Stamford LLC) and Prasad s/o Karunakarn (K Prasad & Co),Singa Retnam (IRB Law LLP) and Josephine Iezu Costan (David Nayar and Associates),Dhanaraj James Selvaraj (James Selvaraj LLC) and Mohammad Shafiq bin Haja Maideen (Abdul Rahman Law Corporation)
• Defendant Counsel: Wong Woon Kwong, Chin Jincheng and Shana Poon (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act
• Published date: 23 December 2020

Steven Chong JA (delivering the judgment of the court): Introduction

In cases where two or more persons are charged for the same drug trafficking transaction, it is “common” to frame the charges against each of the co-offenders in common intention under s 34 of the Penal Code (Cap 224, 2008 Rev Ed) (“PC”). Very recently, this court in Public Prosecutor v Aishamudin bin Jamaludin [2020] 2 SLR 769 (“Aishamudin”) at [110] observed that in cases “in which there is a clear distinction between principal offenders who committed the actus reus of the offence and secondary offenders whose involvement was more peripheral, it may be conceptually and practically more desirable to frame charges against the secondary offenders based either on abetment or on joint possession under s 18(4) of the [Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”)], instead of invoking s 34 of the [PC] against all the offenders unnecessarily”, given that the definition of “traffic” under the MDA covers a broad range of activities coupled with the seemingly wide basis for accessorial liability under the MDA.

In respect of a drug trafficking charge against several co-offenders framed in common intention, one complication which may arise is when the mens rea element against one co-offender is premised on actual knowledge of the nature of the drugs while the mens rea element against another co-offender is based on wilful blindness. Indeed, one of the issues before this court arising from the Prosecution’s case as well as the finding in the court below is whether it is factually and legally permissible to frame a charge in common intention against co-offenders and convict them under the MDA on the basis of different types of mens rea, ie, actual knowledge and wilful blindness.

Facts

In the morning of 8 February 2017, Pragas Krissamy (“Pragas”) and Tamilselvam a/l Yagasvranan (“Tamil”) passed Imran Bin Mohd Arip (“Imran”) a white plastic bag (“the white plastic bag”) with two packets containing 894.2g of granular/powdery substance (“the Drugs”). This was subsequently analysed and found to contain not less than 19.42g of diamorphine (hereinafter referred to by its street name “heroin”). This formed the subject matter of the charges under the MDA against Imran, Pragas and Tamil, who were subject to a joint trial (“the trial”) before the High Court judge (“the Judge”) below: Imran was charged under s 5(1)(a) read with s 12 of the MDA for abetment by conspiracy with Pragas and Tamil to traffic the Drugs. Pragas and Tamil were charged under s 5(1)(a) of the MDA read with s 34 of the PC for delivering the Drugs.

After the trial, the Judge convicted Imran, Pragas and Tamil of their respective charges under the MDA. The Judge found, inter alia, that Imran and Tamil had actual knowledge of the nature of the Drugs while Pragas was wilfully blind to the same. As the alternative sentencing regime under s 33B of the MDA was not applicable, the Judge imposed the mandatory sentence of death on Imran, Pragas and Tamil.

Imran, Pragas and Tamil, whom we refer to collectively as the appellants, appeal against their conviction and sentence in CA/CCA 22/2019, CA/CCA 23/2019 and CA/CCA 24/2019 respectively.

Factual background in the Agreed Statement of Facts

The background facts are not in dispute and are drawn from the Statement of Agreed Facts as well as the Judge’s findings in Public Prosecutor v Imran bin Mohd Arip and others [2019] SGHC 155 (“the GD”).

On 8 February 2017, at about 7.05am, officers from the Central Narcotics Bureau (“CNB”) observed Tamil and Pragas entering the carpark of Block 518A Jurong West Street 52, after parking their motorcycles at the motorcycle lots behind Block 517 Jurong West Street 52. Tamil and Pragas walked towards Block 518 Jurong West Street 52 (“Block 518”), with Pragas carrying a black haversack. Before Tamil entered the lift at Block 518, Tamil passed Pragas a handphone (GD at [7]).

At about 7.09am, Tamil came out of the lift at the fourth floor of Block 518. He met Imran, who came out of #04-139 of Block 518 (“the Unit”). Tamil called Pragas, who answered using the handphone. Pragas then walked up the staircase to the fourth floor of Block 518.

Senior Staff Sergeant Wilson Chew Wei Xun (“SSSgt Chew”) and Woman Staff Sergeant Cynthia Lee Shue Ching, who were at #07-08 of Parc Vista Tower 1 (a condominium facing Block 518), saw Pragas opening his black haversack and taking out a white plastic bag which he handed over to Imran. Imran then walked back to the Unit with a white plastic bag. Thereafter, Tamil and Pragas walked down the staircase of the block and towards their parked motorcycles (GD at [8]).

At about 7.10am, a team of officers from the CNB arrested Pragas and Tamil near their parked motorcycles. They seized, among other things, $6,700 (later marked as exhibit “E1”) from Tamil’s black waist pouch as well as three handphones (GD at [10]). At about 7.15am, another team of CNB officers raided the Unit and arrested Imran in the kitchen. An initial search of the Unit revealed the following exhibits (GD at [11]–[12]): ten packets of granular/powdery substance believed to be a controlled drug (marked as “A1A1”) contained in a red and silver polka dot plastic bag (marked as “A1A”) in a right grey “Everlast” shoe (marked as “A1”); ten packets of granular/powdery substance believed to be a controlled drug (marked as “A2A1”) contained in a red and silver polka dot plastic bag (marked as “A2A”) in a left grey “Everlast” shoe (marked as “A2”); ten packets of granular/powdery substance believed to be a controlled drug (marked as “A2B1”) contained in a red and silver polka dot plastic bag (marked as “A2B”) in the same left grey “Everlast” shoe (namely, A2); the white plastic bag (marked as “D1”) containing one piece of cling wrap (marked as “D1A”); and eight packets of duty-unpaid Marlboro Red cigarettes (“the Marlboro Red cigarettes”). The Marlboro Red cigarettes were subsequently destroyed by the Singapore Customs after Imran was administered a stern warning for the possession of duty-unpaid cigarettes, an offence under the Customs Act (Cap 70, 2004 Rev Ed) (“Customs Act”).

During a second search of the Unit at about 11.00am, the following items were seized (GD at [13]): A green and white “City-Link” plastic bag (marked “C1”), which contained a packet of granular/powdery substance believed to be a controlled drug (marked “C1A1A1”). A black plastic bag (marked “C2”), containing two bundles marked “C2A” and “C2B”: Inside C2A, within another clear plastic bag marked “C2A1”, was a packet of granular/powdery substance believed to be a controlled drug (marked “C2A1A”). Inside C2B, within another clear plastic bag marked “C2B1”, was a packet of granular/powdery substance believed to be a controlled drug (marked “C2B1A”).

The heroin which formed the subject matter of the charges against Imran, Pragas and Tamil were contained in bundles C2A1A and C2B1A. The remaining exhibits found in the Unit containing heroin were not the subject of the charges against Imran, Pragas and Tamil.

After an analysis by the Health Science Authority (“HSA”), C2A1A and C2B1A were found to contain not less than 5.79g and 13.63g of heroin respectively, totalling 19.42g (GD at [14]).

The parties’ respective cases at the trial The Prosecution’s case

The Prosecution sought to prove that Imran had engaged in a conspiracy with Pragas and Tamil to have the Drugs delivered to himself, and that Pragas and Tamil had delivered the Drugs to Imran in furtherance of their common intention. The Prosecution’s case against Imran was that he had actual possession of the Drugs, that he had actual knowledge that they contained heroin, and that he possessed the Drugs for the purpose of trafficking.

The Prosecution’s case against Pragas was that he had actual possession of the Drugs before handing them over to Imran, in furtherance of the common intention between Pragas and Tamil. There is some dispute as to whether the Prosecution’s case against Pragas was premised on his actual knowledge of or wilful blindness to the nature of the Drugs. This point is of critical significance to the outcome of Pragas’s appeal and will be discussed in some detail below at [87]–[103].

The Prosecution’s case against Tamil was that Tamil knew and consented to Pragas’s possession of the Drugs. Relying on s 18(4) of the MDA, the Prosecution sought to prove that Tamil was deemed to be in possession of the Drugs. The Prosecution sought to prove that Tamil had actual knowledge of the nature of the Drugs and, in the alternative, pursuant to s 18(2) of the MDA, that he was presumed to have known the nature of the Drugs.

The appellants’ defences

Whilst accepting that Pragas and Tamil had delivered the Drugs to himself, Imran claimed that he had only intended to order one pound in gross weight of heroin, and not two pounds (the approximate gross weight of the Drugs). This defence, if proved, would reduce the pure weight of heroin trafficked to below the threshold for attracting capital punishment under the MDA. At the trial, Imran challenged the admissibility of his first six statements recorded on 8–11 and 14 February 2017 (“the Six Statements”) on the basis that a CNB officer had told his colleague (within Imran’s hearing) in English that “[i]f he [ie, Imran] admits, there’s a good chance for him. If he does not admit, bring back his parents to the station” (“the Disputed Statement”). The Six Statements contained various admissions relating to Imran’s possession and knowledge of the nature of the Drugs, as well as the knowledge that the Drugs delivered to him would contain two pounds of heroin.

Pragas and Tamil both claimed that their common intention was only to deliver contraband cigarettes to Imran. Both of them also claimed, as a matter of fact, that they had only delivered contraband cigarettes to Imran...