Jasbir Singh and Another v Public Prosecutor

JurisdictionSingapore
Judgment Date19 March 1994
Date19 March 1994
Docket NumberCriminal Appeal No 1 of 1993
CourtCourt of Appeal (Singapore)
Jasbir Singh and another
Plaintiff
and
Public Prosecutor
Defendant

[1994] SGCA 46

Yong Pung How CJ

,

M Karthigesu JA

and

L P Thean JA

Criminal Appeal No 1 of 1993

Court of Appeal

Constitutional Law–Accused person–Rights–When right to counsel arises–Reasonable time–Right to be balanced against duty of police to protect public by making effective investigations–Whether accused person has right to counsel before making cautioned statement–Article 9 (3) Constitution of the Republic of Singapore (1985 Rev Ed)–Criminal Law–Statutory offences–Misuse of Drugs Act (Cap 185, 1985 Rev Ed)–Trafficking in controlled drugs–Whether presumption rebutted–Criminal Procedure and Sentencing–Charge–Omission in charge–Charge not specifying criminal act allegedly committed in furtherance of common intention–Whether omission occasioned miscarriage of justice–Criminal Procedure and Sentencing–Trials–Power to postpone or adjourn–Application for adjournment to enable expert evidence to be adduced–Criminal Procedure and Sentencing–Voir dire–Procedure–Accused denied application to cross-examine co-accused on confession at voir dire–Accused may be convicted solely on basis of confession of co-accused–Whether accused has right to cross-examine co-accused during voir dire–Whether court's refusal to allow cross-examination prejudicial to accused–Evidence–Admissibility of evidence–Facts in issue–Defence witness's testimony contradicted earlier statement made to narcotics officer–Earlier statement used to impeach credit of witness at trial–Whether earlier statement inadmissible as informer's statement

The first and second appellants were charged with trafficking in 254.36g of diamorphine (heroin) in furtherance of the common intention of them both. At trial the first appellant claimed that he found the drugs in the flat in which he was staying and that he had brought them to one Fullett (who was a US Drug Enforcement Administration undercover agent) because he wished to find out from Fullett what the “brown powder” was. The second appellant claimed that he innocently tagged along to the meeting with Fullett only in the hope of getting a free lunch and drinks. The trial judge rejected their defences and convicted them. On appeal the first appellant made numerous submissions, including: (a) the relevant act of trafficking - namely, delivery - was not proved; (b) the element of common intention was not proved; (c) the manner of trafficking should have been specified in the charge and the omission resulted in a miscarriage of justice; (d) Fullett's evidence should have been accorded less weight by the trial judge because he was an agent provocateur; (e) he should have been granted an adjournment by the trial judge to procure the attendance of an expert witness; (f) an earlier statement made by a witness he called should not have been admitted, which was in the event admitted for purposes of impeaching the credit of that witness; (g) he should have been allowed to cross-examine the second appellant during thevoir dire of the latter's cautioned statement, especially when after Chin Seow Noi v PP [1993] 3 SLR (R) 566, an accused may be convicted solely on the basis of a co-accused's confession and the accused therefore had an interest in proving the involuntariness of his co-accused's confession; and (h) his constitutional right of access to counsel had been violated, and in particular, he should have been allowed to consult a lawyer before making his s 122 (6) statement. The second appellant made several submissions, including the fact that he was not involved in the alleged negotiations between Fullett and the first appellant for the sale of heroin, such that there could not be said to be a common intention between himself and the first appellant.

Held, dismissing the appeals:

(1) There was no distinction in the situation between a purchaser of drugs being handed the drugs and his taking them for the purpose of finding that there was an act of “delivery” of drugs: at [27].

(2) The law in Singapore did not require the Prosecution to specify in the charge the criminal act allegedly committed in furtherance of the common intention of the co-accused: at [29].

(3) As long as an accused was given sufficient notice of the matter with which he was charged, it was not necessary for the Prosecution to specify in the charge the manner of trafficking concerned: at [30].

(4) As an agent provocateur was a person who enticed another to commit an express breach of the law which the other would not otherwise have committed; where the accused had made the initiative to breach the law, it could not be said that the undercover agent was an agent provocateur: at [31].

(5) Pursuant to s 198 (1) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) the decision to grant an adjournment lay at the discretion of the trial judge, and where the grounds for the request for an adjournment were flimsy, the trial judge's refusal to grant an adjournment could not be faulted: at [35] and [36].

(6) Where a witness gave two wholly conflicting accounts, the first in a statement given qua informer and the second in trial testimony, the statement given qua informer did not fall within the s 23 (1) (a) of the Misuse of Drugs Act (Cap 185, 1985 Rev Ed) prohibition that prohibited information given by informers from being admitted in proceedings; rather, it came within the s 23 (3) exception that allowed for inquiry and full disclosure regarding the informer if the informer wilfully made a material statement which he knew to be false or did not believe to be true: at [37], [38] and [39].

(7) The only issue at a voir direwas to ascertain the voluntariness of a statement and not to determine the truth or otherwise of that statement, and accordingly an accused was not entitled to cross-examine a co-accused during the voir dire of the co-accused. Although an accused may be convicted solely on the basis of his co-accused's confession, the accused did not suffer any real prejudice in being refused permission to cross-examine as any statement subjected to a voir dire was admitted in evidence only after the trial judge found, on the basis of all evidence adduced, that the Prosecution had proven beyond reasonable doubt the voluntariness of the statement: at [42] and [43].

(8) Art 9 (3) of the Constitution of the Republic of Singapore (1985 Rev Ed) did not specify when the accused person was entitled to consult a legal practitioner, or even that the accused person must be informed of such a right. An arrested person must be granted access to counsel within a reasonable time from his arrest. As this right had to be balanced against the duty of the police to protect the public by carrying out effective investigations, the “reasonable time” on the facts was two weeks: at [45] to [49].

(9) That a party to a common intention to traffic in drugs did not require all parties to be involved in negotiations for the sale of the drug; it sufficed that a party had delivered the drugs pursuant to a sale arranged earlier, and the party had been made aware that the subject of the sale was drugs: at [53].

Chin Seow Noi v PP [1993] 3 SLR (R) 566; [1994] 1 SLR 135 (refd)

Hashim bin Saud v Yahaya bin Hashim [1977] 2 MLJ 116 (refd)

Lai Kam Loy v PP [1993] 3 SLR (R) 143; [1994] 1 SLR 787 (folld)

Lee Mau Seng v Minister for Home Affairs [1971-1973] SLR (R) 135; [1969-1971] SLR 508 (folld)

Lee Ngin Kiat v PP [1993] 1 SLR (R) 695; [1993] 2 SLR 511 (distd)

Lim Hong Yap v PP [1977-1978] SLR (R) 262; [1978-1979] SLR 30 (refd)

Ooi Ah Phua v Officer-in-Charge Criminal Investigation, Kedah/Perlis [1975] 2 MLJ 198 (refd)

R v Mealey (Jeremiah) (1974) 60 Cr App R 59 (folld)

Ramli bin Salleh v Inspector Yahya bin Hashim [1973] 1 MLJ 54 (refd)

Wong Kam-ming v R [1980] AC 247; [1979] 1 All ER 939 (refd)

Constitution of the Republic of Singapore (1985 Rev Ed)Art 9 (3) (consd)

Criminal Procedure Code (Cap 68,1985 Rev Ed)ss 122 (6),198 (1)

Evidence Act (Cap 97,1990 Rev Ed)s 62 (2)

Misuse of Drugs Act (Cap 185,1985 Rev Ed)ss 5 (a),17, 18 (1),18 (2), 18 (4),23 (1) (a),23 (3), 33, First Schedule

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

Jeffrey Pinsler (Drew & Napier) for the first appellant

Peter Fernando (Leo Fernando) and Selva K Naidu (Palakrishnan & Partners) (both assigned) for the second appellant

Jennifer Marie, Lau Wing Yum, Yeow Ping Lin and Lionel Tan I Kwok (Deputy Public Prosecutors) 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:

That you,

1Jasbir Singh

2 Charanjit Singh

on or about 24 May 1988 at about 1.55pm at the Plum's Coffee House, Hyatt Regency Hotel, Singapore, in furtherance of the common intention of both of you, did traffic in a controlled drug specified in class A of the First Schedule to the Misuse of Drugs Act (Cap 185), to wit, a plastic packet of drugs containing not less than 254.36g of diamorphine, 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) punishable under s 33 of the Misuse of Drugs Act.

2 Following a trial of some 13 days in the High Court, they were convicted of the above charge. The present appeals were brought against their convictions. We dismissed the appeals on 14 February 1994 and now give our reasons.

The facts

3 The two appellants were arrested at Plum's Coffee House, Hyatt Regency Hotel (“the Hyatt”) at about 1.55pm on 24 May 1988. On that day, they had met with one Michael Fullett at the coffee house. Unbeknownst to both appellants, Fullett was a special agent from the United States Drug Enforcement Administration (“DEA”), who had been requested by the Central Narcotics Bureau (“CNB”) in Singapore to assist them in...

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