Jusri bin Mohamed Hussain v Public Prosecutor

• Judge: Yong Pung How CJ
• Judgment Date: 12 August 1996
• Neutral Citation: [1996] SGHC 165
• Citation: [1996] SGHC 165
• Defendant Counsel: Mathavan Devadas (Deputy Public Prosecutor)
• Published date: 19 September 2003
• Plaintiff Counsel: Mahendra Prasad Rai (Robert WH Wang & Woo)
• Date: 12 August 1996
• Docket Number: Magistrate's Appeal No 324/95/01
• Court: High Court (Singapore)
• Subject Matter: s 17When court may do apportionment,Misuse of Drugs Act (Cap 185),Misuse of Drugs Act,Presumption that possession was for the purpose of trafficking,Trafficking in controlled drugs,Criminal Law,Defence of personal consumption,Statutory offences

The appellant was convicted before the district court on a charge of having in his possession for the purpose of trafficking not less than 13.03g of diamorphine. The offence was alleged to have happened on 13 November 1994 at about 8.07pm, at the void deck of Block 5 Marsiling Drive. The appellant was sentenced to 23 years` imprisonment and 15 strokes of the cane. I dismissed his appeal. I now give my reasons.

The agreed statement of facts revealed that at about 8.01pm on 13 November 1994, two police officers were patrolling along Marsiling Drive when one of them spotted the appellant standing suspiciously at the bus stop near Blocks 10 and 11. A brown waist pouch was slung over the appellant`s right shoulder. The officers stopped the police car. At this juncture, the appellant left the bus stop and walked past the patrol car. As the officers alighted, the appellant dashed across the road and ran towards the direction of Block 1. The appellant was arrested after a short chase at the void deck of Block 5 Marsiling Drive at about 8.07pm.

The waist pouch was seized. In it were found a large amount of cash and three envelopes containing plastic sachets that were filled with a yellowish granular substance. There were also found in the pouch, inter alia, a cigarette box containing an empty plastic sachet, a Singapore $1 note containing some granular substance wrapped in a small piece of plastic, and a pager phone.

The appellant was handed over to the investigating officer. A further search revealed, inter alia, more cash, a gold bangle, a gold chain, a receipt for the jewellery and five pawn tickets. The total amount of cash seized from the appellant amounted to just over $3,900. The 17 sachets of granular substance were analysed by the Department of Scientific Services (DSS`) and found to contain 12.94g of diamorphine. The $1 note held 0.09g. It was not disputed that these items belonged to the appellant.

Two prosecution witnesses were called as the defence wished to cross-examine them. Dr Lee Tong Kooi, the scientific officer from the DSS, gave evidence that he analysed the granular substance. He weighed the drugs from the 15 larger packets and the two smaller ones separately. However, he did not ascertain the weight of the substance in each individual packet. He analysed all the substance in the 17 sachets as one exhibit.

The investigating officer, Staff Sergeant Soh Koh Tong (S/Sgt Soh), gave evidence that he raided the appellant`s official residence. Nothing incriminating was found there. However, the appellant told him that he did not live there.

When the appellant was first brought to him at about 3am on 14 November 1994, S/Sgt Soh noticed that he was suffering from drug withdrawal. The appellant was yawning continuously and had watery eyes. The appellant was sent to Changi Prison Hospital after he was escorted to his residence for the search to be conducted. The appellant was discharged on 17 November. S/Sgt Soh confirmed that the appellant told him that he was a drug addict and that he consumed a packet of heroin a day. The appellant also said in his recorded statement that the drugs were for his own consumption and that he had no intention of selling the drugs.

The prosecution closed its case without calling the prison doctor from Changi Prison Hospital, Dr Leow Kee Fong (Dr Leow). It took the view that Dr Leow`s evidence was not relevant at this stage of the proceedings as it was relying on the presumption of trafficking.

The appellant`s defence was that the drugs were for his own consumption. He claimed that he consumed half a sachet to one sachet a day. The appellant testified that he was a heavy drug user. He had been detained in a drug rehabilitation centre on four occasions. Prior to his arrest, his rate of consumption had increased. If he did not take drugs for more than three hours, he would feel weak and cough. Sometimes he felt like vomiting.

The appellant said that he purchased ten sachets on Saturday 12 November 1994, and was given another two sachets by the supplier. He paid $900. On the previous Wednesday or Thursday, he had bought five sachets from the same person and was given an extra sachet. He paid $120 a sachet on this occasion. The empty sachet in the cigarette box used to contain heroin. The contents had been consumed.

The gold bangle and chain belonged to his mother. The $3,920.41 that was found on him was his. He had won the money through gambling. The pager phone belonged to his brother.

The defence called Dr Lim Yun Chin (Dr Lim) as an expert witness to support the appellant`s evidence that the drugs were for his own consumption. Dr Lim testified that he examined the appellant on 21 September 1995, some ten months after the appellant was arrested.

Based on what he was told by the appellant, Dr Lim was of the opinion that the appellant suffered from chronic drug dependency. Given the chronicity of the appellant`s addiction, the appellant would have no problem in consuming half to one or even one and half packets of heroin a day.

In his view, the severity of the withdrawal symptoms is not necessarily a reflection of the severity of the addiction. The severity of withdrawal symptoms depends on a host of factors such as the physical condition of the addict, the pattern of his consumption, the potency of the drugs consumed, the duration of his dependency and the tolerance for drugs. Dr Lim`s evidence was that the description of the withdrawal symptoms described by the appellant was indicative of a severe withdrawal. He was also of the view that it was possible for the appellant to reach this level of addiction in the period of time since he was last released from the drug rehabilitation centre in May 1994.

The prosecution called Dr Leow in rebuttal. This was objected to by the defence, who relied on PP v Ismail bin Sumali (Crim Case 22/94) (unreported), in which Sinnathuray J refused such an application. The district judge, however, referred to two other High Court cases decided after PP v Ismail bin Sumali in which similar applications had been allowed. He held that he would follow the decisions in those later cases and allowed the prosecution`s application.

Dr Leow testified that he examined the appellant at Changi Prison Hospital on 14 November 1994 at about 9.30am for heroin withdrawal. The appellant complained of a running nose, feeling cold, loss of appetite, abdominal pain and said that he vomited thrice. Dr Leow said that the appellant was lethargic and had a running nose, teary eyes, dilated pupils and goose pimples. Dr Leow examinedthe appellant again on 16 and 17 November 1994. The appellant had felt better on 16 November and he had stopped vomiting. He was discharged on 17 November.

Dr Leow was of the view that the appellant suffered from moderate withdrawal symptoms. From the appellant`s history, Dr Leow found the appellant to be a chronic addict. In his view, there is a correlation between the degree of drug withdrawal symptoms and the amount of drug consumed. Although other factors such as age, health and personality could affect the gradient, it would not be shifted out of range. A person who had consumed a moderate amount of heroin would show a moderate degree of withdrawal.

Dr Leow`s conclusion was that the appellant consumed 1/6 of a packet of heroin a day, or between three to five straws of 3cm. If the appellant had consumed half a packet a day, he would suffer from severe withdrawal. The symptoms would include repeated vomiting, profuse diarrhoea, restlessness, and dehydration. Normally it would take between seven to ten days before such an addict can be discharged.

The district judge observed that Dr Leow had examined the appellant on 14, 16 and 17 November while Dr Lim only saw the appellant some ten months after his arrest. It was also not Dr Lim`s evidence that there is no correlation between the severity of drug withdrawal and the amount of drugs consumed. Dr Lim`s evidence was that it was not a reliable indication of the degree of drug addiction. Dr Leow had explained that although the factors listed by Dr Lim are relevant, there would still be a correlation.

Dr Lim`s questioning of Dr Leow`s categorisation of the appellant`s withdrawal symptoms was not significant as, regardless of the classification given, Dr Leow was of the opinion that the symptoms he saw would indicate that the appellant consumed about 1/6 of a sachet a day. Furthermore, Dr Lim was unable to estimate the actual consumption rate of the appellant. His evidence only relates to what the appellant could consume.

The district judge held that the appellant had given various estimates of his consumption rate. He had also said that he could not estimate his rate of consumption. In the event, no precise, consistent or credible figure was given by the appellant as to how long the drugs would last him. The district judge accepted Dr Leow`s evidence. Based on this, the drugs found on the appellant would have lasted him at least 57 days. There was no plausible reason why the appellant would have this amount of drugs on him. The appellant had not given any satisfactory reason. The presumption that the drugs were for the purpose of trafficking was not rebutted.

The district judge was also of the view that the large amount of cash found on the appellant supported his finding that the appellant was a trafficker. The appellant could not satisfactorily account for the money, as he was without a job from May to November 1994, except for a stint of two months as a labourer. He did not even have a proper place to sleep. The appellant`s explanation that he won the money in gambling sessions was not believed. The other valuables and pawn tickets found on the appellant provided further support, as did the pager phone.

Furthermore, there was the way in which the drugs were packed. The appellant`s explanation that he had repacked them in that manner on the previous night was not accepted, as he could not explain...