Khor Soon Lee v Public Prosecutor

• Jurisdiction: Singapore
• Court: Court of Appeal (Singapore)
• Judge: Chao Hick Tin JA
• Judgment Date: 15 April 2011
• Neutral Citation: [2011] SGCA 17
• Citation: [2011] SGCA 17
• Defendant Counsel: Aedit Abdullah and Ravneet Kaur (Attorney-General's Chambers)
• Published date: 26 July 2011
• Plaintiff Counsel: Rupert Seah Eng Chee (Rupert Seah & Co) and Joseph Tan Chin Aik (DSCT Law Corporation)
• Hearing Date: 01 December 2010
• Docket Number: Criminal Appeal No 21 of 2009
• Date: 15 April 2011
• Subject Matter: Criminal Law

Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction

The accused, Khor Soon Lee (“the Appellant”), was charged with and convicted of importing 27.86 grams of diamorphine into Singapore (see Public Prosecutor v Khor Soon Lee [2009] SGHC 291 (“the GD”)). He now appeals against his conviction.

Background and facts

The Appellant, 36 years of age, was charged with the following offence:

That you, Khor Soon Lee, on the 9th day of August 2008 at about 2.00 p.m. at the Woodlands Immigration Checkpoint, Singapore, did import into Singapore on motorcycle JGF 9461, a controlled drug specified in Class “A” of the First Schedule to the Misuse of Drugs Act (Cap 185), to wit, one packet of granular/powdery substance containing not less than 27.86 grams of diamorphine, without any authorization under the Misuse of Drugs Act or the regulations made thereunder, and you have thereby committed an offence under section 7 and punishable under section 33 of the said Act

[emphasis in the original]

On 9 August 2008, the Appellant entered into Singapore on a motorcycle via the Woodlands Immigration Checkpoint (“Woodlands Checkpoint”). As the immigration officer on duty scanned the Appellant’s passport, the computer system indicated that the Appellant ought to be referred to the Arrival Car Secondary Team office. The immigration officer alerted the officers of the Quick Response Team and he stopped the Appellant. A search was conducted and the officers found a black sling bag (“sling bag”) in the front carrier basket of his motorcycle. Therein, under some spare clothes, a further white plastic bag (“the White Outer Plastic Bag”) was found. Inside this White Outer Plastic Bag were two smaller plastic bags: a white plastic bag imprinted with purple flowers (“the Purple Plastic Bag”) and a black plastic bag (the “Black Plastic Bag”), respectively. None of the plastic bags was sealed.²

Three bundles wrapped in black masking tape were found in the Purple Plastic Bag.³ The Appellant was questioned as to what these bundles contained, to which he replied in Malay, “barang” (meaning “things”). When questioned further, he said that they were (again, in Malay) “ubat” (meaning “medicine”).⁴ These bundles were unwrapped in the Appellant’s presence and the Appellant was again asked what the revealed substances were. The Appellant then replied that they were “E5” (Erimin), “K” (Ketamine) and “Ecstasy”, respectively. It should be pointed out that these controlled drugs are not the subject of the present charge or appeal. Instead, the Appellant was charged with, and convicted of, what was in the package contained in the Black Plastic Bag. In that particular plastic bag, there was a black bundle also wrapped with black masking tape which contained a packet of white granular/cuboidal substance. After identifying the contents in the three bundles which were in the Purple Plastic Bag, when asked what the substance in this fourth bundle was, the Appellant stated that he did not know what it was. Later, he ventured to say that it could be “Ice” because of its colour.⁵ It should be noted that this substance was subsequently analysed and was determined to be diamorphine. Returning to the factual background, the Appellant was then placed under arrest.

While the Appellant acknowledged that all the seized bundles were found in his bag, he claimed that the bundles belonged to one “Tony” (also known as Ong Heng Hor, a Malaysian). The Appellant came to know Tony in a hair salon a year prior to the events and, due to an unpaid consignment of Ice the Appellant took from Tony, ended up owing Tony RM1,600. Unemployed, the Appellant became Tony’s drug courier in July 2008 to pay off his debts. Tony informed the Appellant he was looking to transport Erimin, Ketamine, Ice and Ecstasy into Singapore. For each delivery, the Appellant was paid between RM200 to RM300. The delivery that led to the Appellant’s arrest was his sixth job for Tony.

During the consequent investigation, the Appellant revealed and explained the mechanics of the prior deliveries. The Appellant stated that when he received the drugs from Tony, he was sometimes told that the bundles contained “5” (Erimin) and “K” (Ketamine), whilst, at other times, he was not told of their contents.⁶ Additionally, Tony also instructed the Appellant not to open the bundles to check their contents.⁷ Nevertheless, it was never disputed that the Appellant knew that the bundles contained drugs. The Appellant, however, further asserted that he had asked Tony in July 2008 whether heroin (diamorphine) would be involved in the deliveries as he was afraid of the death penalty.⁸ Tony’s response was that he never placed heroin inside the packages that the Appellant was told to carry.⁹The Prosecution did not challenge the Appellant’s evidence on Tony’s response. The Appellant also added that both of them had always travelled together into Singapore in a taxi or on a motorcycle during their previous deliveries although the Appellant was always the one carrying the drugs.¹⁰

The Appellant then recounted the events leading up to his arrest. On 8 August 2008, Tony called the Appellant and told him to look for a motorcycle to make a delivery (which he did). The next day, the Appellant met Tony at a petrol station in Johor Bahru. Tony was seated on a motorcycle himself, and Tony handed him the White Outer Plastic Bag. Apparently, given their previous practice of travelling together (see above at [6]), this was the first time that the Appellant and Tony travelled in separate vehicles.¹¹ This made the Appellant suspicious but he did not question Tony about it as Tony appeared to be in a rush and the Appellant wanted to complete the delivery.¹² The Appellant then took the White Outer Plastic Bag and kept it in his sling bag without checking its contents.¹³ No questions were asked.¹⁴ The two men then rode their respective motorcycles to the Johor Bahru Check Point separately and they agreed to meet at the Kranji Mass Rapid Transit station (“Kranji MRT”) once they cleared the Singapore customs.

That rendezvous at Kranji MRT naturally failed to materialise when the Appellant was arrested at the Woodlands Checkpoint. Nevertheless, after the Appellant’s arrest, he cooperated with the authorities to lure Tony out, and Tony was arrested at Kranji MRT a few hours later. As things eventually turned out, the Prosecution took the view that there was a lack of evidence against Tony and, when both sets of counsel attended a Pre-Trial Conference (“PTC”) on 26 May 2009, the decision to apply for a discharge not amounting to an acquittal (“DNAQ”) was made known to the court. The next day, 27 May 2009, Tony was granted a DNAQ and was repatriated to Malaysia (approximately nine months after being charged).

After hearing the appeal, we directed counsel to file further submissions to address us on the issue of what could have been done to secure Tony’s attendance as a witness at the trial of the Appellant and the effect of Tony’s absence at the trial. Both parties have helpfully clarified the chronology of events leading to the granting of Tony’s DNAQ.¹⁵ On the record, there had been no objection to, or application to delay, the DNAQ; nor was there any other application by the Appellant’s then counsel to secure Tony as a witness for the Appellant at the PTC of 26 May 2009. To be fair to both sets of counsel, it appeared that no one at that stage thought that Tony was a going to be a material witness for either party. From the Appellant’s own Further Written Submissions dated 21 December 2010, the first time that the Appellant’s counsel had made an application pertaining to Tony was approximately two weeks after the PTC of 26 May 2009, on 8 June 2009, when the then Appellant’s counsel requested for an inspection of Tony’s passport. When that request could not be accommodated, the then Appellant’s counsel responded on 19 June 2009 to say that his client’s case was, as a result, prejudiced. It was only on 24 June 2009 that the position pertaining to Tony changed and it was thought that Tony would be required as a witness for the Appellant. The Respondent tried to re-call Tony as a witness and sought the help of the Investigation Officer (“IO”) in this matter to locate Tony. Tony was finally contacted over the phone in Malaysia but (not surprisingly) he dismissed the idea of returning to Singapore to testify at the Appellant’s trial. Several attempts were subsequently made to contact Tony but Tony could no longer be reached over the phone and his whereabouts remain unknown since.

The decision below

The trial judge (“the Judge”) was of the view that the Appellant was presumed to know the nature of the controlled drug (ie, diamorphine) that he possessed by virtue of section 18(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the Act”), and held that the Appellant was unable to rebut the presumption. The Judge reasoned that the Appellant could not rely on his belief that the bundles contained the usual drugs (viz, Erimin, Ketamine and Ecstasy) he had been carrying into Singapore for Tony since the accused bore the risk that Tony could go back on his word. Additionally, even if the Appellant opened the bundles and was later given a false answer by Tony, the Appellant also bore the risk that the answer given to him would turn out to be false. In any event, the Judge found the accused was conscious of the fact that he was in possession of controlled drugs and there was ample opportunity for him to take a look inside the unsealed White Outer Plastic Bag at the four bundles in the Purple Plastic Bag and the Black Plastic Bag. No inspection was done, and in the circumstances, the Judge found the Appellant to be wilfully blind.

Further, the Judge observed that the delivery on 9 August 2008 was peculiar in itself since Tony had suddenly decided to travel on his own instead of travelling...