Koh Aik Siew v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 17 May 1993
• Date: 17 May 1993
• Docket Number: Criminal Appeal No 19
• Court: Court of Appeal (Singapore)

Koh Aik Siew

Plaintiff

and

Public Prosecutor

Defendant

[1993] SGCA 40

Yong Pung How CJ

,

L P Thean J

and

Chao Hick Tin J

Criminal Appeal No 19 of 1992

Court of Criminal Appeal

Criminal Law–Statutory offences–Misuse of Drugs Act (Cap 185, 1985 Rev Ed)–Controlled drugs found in bedroom rented by accused–Whether presumption of trafficking arose–Whether presumption of trafficking rebutted by accused–Sections 2 and 17 Misuse of Drugs Act (Cap 185, 1985 Rev Ed)–Criminal Procedure and Sentencing–Charge–Alteration–Accused charged with trafficking in controlled drugs–Whether charge should be amended to specify manner of trafficking–Whether Court of Criminal Appeal has power to amend charge–Whether amendment of charge would occasion prejudice–Criminal Procedure and Sentencing–Statements–Admissibility–Accused allegedly making cautioned statements–Cautioned statements admitted in evidence in High Court–Whether wrongly admitted statement sufficient ground to justify allowing appeal–Whether other evidence sufficient to justify conviction–Section 169 Evidence Act (Cap 97, 1990 Rev Ed)–Evidence–Proof of evidence–Onus of proof–Voir dire–Accused allegedly making cautioned statements–Whether statements made voluntarily–Whether statements admissible–Whether correct burden of proof applied–Section 122 (6) Criminal Procedure Code (Cap 68, 1985 Rev Ed)

The appellant alleged that he was induced into making the cautioned statement under s 122 (6) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed), thereby rendering the cautioned statement inadmissible. During the voir dire,the trial judge stated that for the statement to be rendered inadmissible, the appellant needed to prove on a balance of probabilities that he did not make it voluntarily and he failed to do so. The trial judge thus found that the accused had not discharged his burden of proof and admitted the cautioned statement in evidence.

Held, dismissing the appeal:

(1) The trial judge misdirected himself in considering the evidence adduced during the voir dire, because it was still for the Prosecution to prove beyond a reasonable doubt that the cautioned statement was made voluntarily. The trial judge therefore applied the wrong burden of proof, and as the court could not be at all certain what the result would have been had he proceeded correctly, the statement was wrongly admitted and had to be excluded. Notwithstanding that the statement was wrongly admitted, however, this would not be sufficient ground to justify allowing this appeal as there was sufficient other evidence that the diamorphine recovered was in the accused's possession which therefore justified the conviction: at [23].

(2) The appellant's argument was that there was no actus reus of trafficking since the evidence of the Prosecution's own witnesses showed that during the critical period “between 8.20pm and 9.06pm” which was stated in the charge, the appellant was having a bath, which meant that it was impossible for the appellant to perform any of the several overt acts enumerated in the definition of “trafficking” in s 2 of the Act. This argument was no longer valid. The proper interpretation of s 17 of the Act was that it presumed the act of possession to be an act in the course of selling, giving, transporting and so on, or offering to do so. Thus the actus reus of possession was presumed to be the actus reus of trafficking. An accused person presumed to be in possession and to traffic had to rebut the presumption by adducing satisfactory evidence that he was not in possession for any of the overt acts of trafficking as defined in s 2: at [27] and [28].

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

PP v Yeoh Teck Chye [1981] 2 MLJ 176 (folld)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 122 (6) (consd)

Evidence Act (Cap 97, 1990 Rev Ed) s 169 (consd)

Misuse of Drugs Act (Cap 185, 1985 Rev Ed) ss 2, 17 (consd);ss 5, 18, 33

Choo Han Teck and Sim Eu Jin (assigned) for the appellant

P O Ram (Deputy Public Prosecutor) for the respondent.

Judgment reserved.

Yong Pung How CJ

(delivering the judgment of the court):

1 The accused Koh Aik Siew was tried in the High Court on the following charge under the Misuse of Drugs Act (Cap 185) (“the Act”):

You, Koh Aik Siew, are charged that you on or about 29 April 1990, between 8.20pm and 9.06pm in Singapore, did traffic in a controlled drug specified in Class A of the First Schedule of the Misuse of Drugs Act (Cap 185), to wit, 676.8g of diamorphine which was in your possession at the bedroom of premises #03-02, Prince Apartment, 34 Jalan Datoh, without any authorization under the said Act or the regulations made thereunder and you have thereby by virtue of s 17 of the Misuse of Drugs Act (Cap 185) committed an offence under s 5 (a) and punishable under s 33 of the said Act.

The undisputed facts

2 Two officers of the Central Narcotics Bureau (“CNB”), Narcotics Officers Ting Ming Ling (“NO Ting”) and Chan King Onn (“NO Chan”), had been observing the activities of the accused since early January 1990. They had observed the accused driving his car, licence plate number EW 321 T, to and from Block 79 Lorong Limau (“Block 79”) and had seen it parked at the foot of Prince Apartment at Jalan Datoh (“Prince Apartment”). On 28 April 1990, they observed the accused at flat #07-165 of Block 79.

3 On 29 April 1990 at about 7.00pm, NO Ting and NO Chan went to Block 77 Lorong Limau to keep a lookout for the accused's car. At about 8.00pm they were joined by NO Ravinder Singh. At 8.20pm, they spotted vehicle EW 321 T moving towards Block 79 and NO Ting instructed NO Ravinder Singh to proceed to flat #07-165 of Block 79 to keep watch. NO Ting and NO Chan then went to the ground floor of Block 79. At about 8.35pm, NO Ravinder Singh came and told NO Ting and NO Chan that the accused was leaving flat #07-165. The accused was duly arrested when he alighted from the lift. NO Ting seized a key pouch from the right hand of the accused. On being questioned, the accused...