Jeffery bin Abdullah v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 24 March 2009
• Neutral Citation: [2009] SGHC 68
• Docket Number: Magistrate's Appeal No 120 of 2008
• Date: 24 March 2009
• Published date: 31 March 2009
• Year: 2009
• Plaintiff Counsel: S K Kumar (S K Kumar & Associates)
• Citation: [2009] SGHC 68
• Defendant Counsel: Mark Tay (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Principle of parity,Where offender convicted of various offences arising out of one incident overall sentence should reflect role and culpability in incident as a whole,Whether principle of parity in sentencing breached because accomplice sentenced to lower sentence for same offence,Whether sentence manifestly excessive,Totality principle,One transaction rule,Proportionality principle,Principles,Criminal Procedure and Sentencing,Sentencing

24 March 2009

Chan Sek Keong CJ:

Introduction

1 This was an appeal by the appellant, Jeffery bin Abdullah, against the sentences imposed on him by the district judge (“the DJ”) for two offences under the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“MDA”), namely:

(a) joint possession of 0.43g of diamorphine for the purpose of trafficking under s 5(1)(a) read with s 5(2) of the MDA and s 34 of the Penal Code (Cap 224, 1985 Rev Ed), which is punishable under s 33 of the MDA; and

(b) possession of 0.41g of diamorphine under s 8(a) of the MDA, which is also punishable under s 33 of the MDA.

The appellant pleaded guilty and was sentenced to seven years’ imprisonment and seven strokes of the cane for the first offence and 12 months’ imprisonment for the second offence, the sentences to run concurrently (see PP v Jeffery Bin Abdullah [2008] SGDC 139 (“the GD”)). One other charge was taken into consideration for sentencing purposes, viz, one charge of possession of a Class A controlled drug under s 8(a) of the MDA, an offence punishable under s 33 of the MDA.

2 The main thrust of the appellant’s appeal was that the sentence for the first offence was manifestly excessive as his accomplice, one Sophian bin Abu Talib (“Sophian”), had received a lower sentence of five years and nine months’ imprisonment and six strokes of the cane for the same offence.

3 After hearing the arguments of both parties, I was of the view that the sentence imposed on the appellant in relation to the first offence was not manifestly excessive, even though it was higher than the sentence meted out to Sophian for the same offence. In any case, I was of the view that since the total sentence imposed on Sophian for all the offences which he had committed (arising out of or in relation to the same incident) was six years and ten months of imprisonment and nine strokes of the cane, there was no basis for the appellant to complain that his total sentence of seven years’ imprisonment and seven strokes of the cane was manifestly excessive. Accordingly, I dismissed the appeal. I now give the reasons for my decision.

The facts

4 On 28 July 2007 at around 2.25am, a party of Central Narcotics Bureau (“CNB”) officers, with the assistance of the Traffic Police, arrested the appellant and Sophian, a cargo delivery driver. Prior to the arrest, the officers had embarked on a four-hour-long vehicle pursuit of the appellant and Sophian, who were in a motor lorry driven by Sophian. The chase began after the appellant had purchased packets of heroin at East Coast Road. During the chase at around 1.10am, while the lorry was travelling along Ayer Rajah Expressway, the appellant tore open two plastic packets and threw the contents out of the lorry before throwing the empty packets out as well. Both empty packets were recovered by CNB officers and seized as exhibits.

5 When the motor lorry ran low on fuel, the appellant and Sophian abandoned it and fled in different directions. Both men put up a violent struggle before necessary force was used to arrest them. CNB officers searched the appellant and recovered a packet containing a granular substance in the sling bag he was carrying. At about 3.20am, a search of the lorry was conducted in the presence of the appellant and Sophian. Another packet of granular substance (to which the appellant admitted ownership) was also recovered behind the passenger seat of the motor lorry. Both packets were seized as exhibits.

6 The exhibits were sent to the Health Sciences Authority (“HSA”) which issued certificates confirming that the two packets seized from the appellant’s sling bag and the passenger seat of the motor lorry contained 0.41g and 0.43g of diamorphine respectively. The HSA also certified that the two empty packets were stained with diamorphine. The appellant admitted that he had only intended to keep one of the packets of diamorphine (the one found in his sling bag) which he had purchased from the suppliers for his own use while the remaining packets were meant to be sold at around $310 or $320 per packet. Therefore, the diamorphine in the packet found in the motor lorry and the two emptied packets were for the purpose of trafficking.

This court’s decision

Examination of the appellant’s sentence in isolation

7 Before considering whether the DJ took into account the principle of parity in sentencing the appellant and Sophian, I shall first consider whether the seven years’ custodial sentence imposed on the appellant was manifestly excessive. The sentencing factors that are generally relevant in relation to the offence of trafficking are (see Sentencing Practice in the Subordinate Courts (LexisNexis, 2nd Ed, 2003) at pp 638–639):

(a) the quantity of the drug in the possession of the offender;

(b) the type of drug;

(c) the duration and sophistication in planning and carrying out the offence; and

(d) the relative levels of participation in relation to the accomplices.

8 The following sentencing precedents for drug trafficking in diamorphine were also relevant:

Case	Sentence	Brief facts
Ong Kee Kwok v; PP Magistrate’s; Appeal No 498; of 1992; (“Ong Kee Kwok”)	7 years’; imprisonment and; 5 strokes of the cane	Possession for purpose of trafficking 0.81g of; diamorphine. Possession charge taken into; consideration. Pleaded guilty.; Had drug antecedents.
Rangasamy; Balasubramaniam v; PP [2000] SGDC 56; (“Rangasamy”)	7 years’; imprisonment and; 6 strokes of the cane	Possession for purpose of trafficking 0.29g of; diamorphine. Two charges for failing to report; for urine tests taken into consideration.; Pleaded guilty. Had drug antecedents.
Sim Kim Yea v PP; [1995] SGDC 2	8 years’; imprisonment	Possession for purpose of trafficking 3.36g of; diamorphine. Pleaded guilty. Had been admitted; to drug rehabilitation centre on five occasions.; No caning because offender was female.
Lur Choo Lai v PP; [1992] SGDC 1	6 years’; imprisonment and; 9 strokes of the cane	Possession for purpose of trafficking 2.45g of; diamorphine. Possession charge taken into; consideration. Pleaded guilty. First offender.
Rozie bin Ahmad v PP; [2001] SGDC 286	7 years’; imprisonment and; 8 strokes of the cane	Trafficking by giving 2.88g of diamorphine.; Claimed trial. Had drug antecedents.

9 The precedents outlined above, while not uniform, set a range of sentences of between six and eight years of imprisonment and between five and eight strokes of the cane. Comparing the present sentence of seven years’ imprisonment and seven strokes of the cane with these precedents, it could not be said that the appellant’s sentence was manifestly excessive. While some offenders, like the accused in Ong Kee Kwok, might have been sentenced...