Koh Bak Kiang v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 26 February 2016
• Neutral Citation: [2016] SGHC 26
• Date: 08 October 2015
• Docket Number: Criminal Motion No 41 of 2014
• Published date: 02 March 2016
• Plaintiff Counsel: R Thrumurgan and A Sangeetha (Trident Law Corporation)
• Hearing Date: 08 October 2015,03 July 2014,11 September 2014
• Defendant Counsel: Francis Ng and Quek Jing Feng (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Sentencing,Revision of Proceedings,Criminal Procedure and Sentencing,Charge,Alteration

Sundaresh Menon CJ: Introduction

On 29 November 2007, the applicant pleaded guilty to three charges in respect of drug-related offences punishable under the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“the MDA 2001”), which was the legislation then in force. Two were for trafficking in diamorphine (I shall refer to these as “the Disputed Charges”) and one was for the possession of ketamine. The applicant, through counsel who was representing him at that time, in substance had qualified his plea of guilt by asserting in mitigation that, in respect of the Disputed Charges, he did not know the precise nature of the drug that he was trafficking. Despite this, however, his counsel also maintained in explicit terms that “[the applicant] is not qualifying the plea”. The district judge accepted the plea, convicted the applicant, and sentenced the applicant to an aggregate of 25 years’ imprisonment and 24 strokes of the cane. An appeal against the sentence was subsequently dismissed.

On 23 April 2014, some six-and-a-half years after his plea of guilt, the applicant filed a motion which came before me. By this motion, the applicant sought an extension of time to appeal against his convictions on the Disputed Charges. Because of the time that had elapsed between his conviction and the filing of the motion, the applicant had already served a substantial period of his prison term and had also suffered the imposed punishment of caning. Upon reviewing the papers, it became evident to me that the relief sought by the applicant was unattainable for two reasons. First, an appeal does not lie against a conviction on a plea of guilt. Second, and in any event, the applicant had already brought a prior appeal against sentence which had been dismissed. However, it was also evident to me that the applicant’s real complaint was that he ought not to have been convicted on the Disputed Charges because he did not know that he was carrying diamorphine at the time.

The procedural history leading to the filing of this criminal motion is as complicated as it is protracted, and I set it out in some detail at [7]–[22] below. It suffices to say that, by the time I came to my decision on the matter, the parties had reached a consensus on nearly every point of substance. In particular, by then, the parties had agreed that: the convictions on the Disputed Charges were wrongful because the applicant had in fact qualified his plea of guilt; the interests of justice lay in my exercising my revisionary powers to set aside the convictions for the two Disputed Charges; the convictions on the Disputed Charges should be substituted instead with reduced charges of attempted trafficking in a Class A controlled drug other than diamorphine; and the applicant should be resentenced on this basis. I should add that even as to the final point on resentencing, while the parties differed on the exact sentence, the difference between their respective positions was modest.

After hearing the parties, I was broadly satisfied that the proposed course of action was fair and just in the circumstances. I therefore set aside the convictions for the Disputed Charges and convicted the applicant on the terms of the reduced draft charges that the Prosecution had tendered to the court (“the Amended Charges”). The applicant, through his counsel, had no objections to the Amended Charges as they were formulated, and accepted that they were appropriate in the circumstances. As for sentence, I considered that a sentence of 11 years’ imprisonment and 12 strokes of the cane was appropriate for each of the Amended Charges and ordered that they run concurrently. The other conviction for the possession of ketamine, in respect of which the applicant had already been sentenced to 2 years’ imprisonment, was to run consecutively with the sentences imposed for the Amended Charges. This resulted in an aggregate sentence of 13 years’ imprisonment and 24 strokes of the cane.

These are the reasons for my decision.

Background

I will set out the background facts in three broad segments. The first concerns the applicant’s plea of guilt at the hearing on 29 November 2007. I will address this in some detail, covering the charges the applicant faced, the agreed statement of facts, his mitigation plea, and the district judge’s decision. The second relates to the applications the applicant took out subsequent to his conviction and sentence. These include an appeal against his sentence and an application for a criminal revision. The third focuses specifically on the extension-of-time application that was before me.

The hearing on 29 November 2007 The charges

At the hearing in the District Court on 29 November 2007, the Prosecution proceeded on the following charges against the applicant: trafficking in 14.99g of diamorphine under s 5(1)(a) of the MDA 2001 vide DAC 41589/2007 (“the first charge”); being in possession of 24.8g of ketamine under s 8(a) of the MDA 2001 vide DAC 26073/2007 (“the second charge”); and abetting by entering into a conspiracy with one Chia Choon Leng (who was known as “Ah Hiang”) to commit an offence of trafficking in 14.99g of diamorphine under s 5(1)(a) of the MDA 2001 read with s 109 of the Penal Code (Cap 224, 1985 Rev Ed) vide DAC 41588/2007 (“the third charge”). The first and third charges were the Disputed Charges.

A further four charges under the MDA 2001 were taken into consideration for the purposes of sentencing. These comprised one trafficking charge, two possession charges, and one charge for the possession of utensils for drug consumption.

The statement of facts

The applicant was arrested by officers from the Central Narcotics Bureau (“the CNB”) on the afternoon of 4 April 2007 at Katong Plaza, which is located along East Coast Road. Following his arrest, a blue plastic bag was recovered from his car, which was parked at the car park in Katong Plaza. The blue plastic bag contained 321.9g of a powdery substance, which was subsequently analysed by the Health Sciences Authority (“the HSA”) and found to contain 25.07g of diamorphine. The applicant had transported the blue plastic bag from Serangoon Central to the car park at Katong Plaza earlier that day with the intention of delivering the diamorphine to an unknown destination. The drugs in the blue plastic bag formed the subject matter of the first charge (although the applicant was eventually only charged with trafficking in not less than 14.99g of diamorphine rather than the full amount of 25.07g).

On the same day, a white plastic bag containing 24.8g of a crystalline substance, which was analysed by the HSA and found to contain a total of 20.7g of ketamine, was discovered in the applicant’s home. This formed the subject matter of the second charge.

The third charge related to a brown envelope containing a powdery substance that the applicant delivered to one Goh Joon Fong (“Goh”) at a tattoo parlour in Roxy Square early on the morning of 4 April 2007. The applicant had delivered the brown envelope by placing it in one of the drawers in a piece of furniture at the tattoo parlour. The tattoo parlour was raided later that day and the brown envelope was recovered. The contents of the brown envelope were later analysed by the HSA and found to contain not less than 16.74g of diamorphine (although, again, the applicant was eventually only charged with trafficking in 14.99g of diamorphine). The applicant had received the brown envelope from Ah Hiang two days earlier, on 2 April 2007, in the vicinity of Serangoon Central with instructions to deliver it to Goh.

The written mitigation plea

Counsel who was acting for the applicant at that time tendered a substantial written mitigation plea that set out the applicant’s background as well as an account of the events leading to his arrest.

The applicant admitted to delivering drugs for Ah Hiang. He said he was responsible for collecting packages from Ah Hiang (or Ah Hiang’s wife) and delivering them to the intended recipients.

The applicant claimed that a few days before his arrest, he had received an envelope from Ah Hiang before the latter went to Vietnam. Ah Hiang had instructed the applicant to go to a tattoo shop at Katong Plaza and to place it inside a drawer, which the applicant did in the early hours of 4 April 2007.

Later that same morning, the applicant received a call from Ah Hiang’s wife, who told him to go to Ah Hiang’s home in Serangoon North. When the applicant arrived, he handed her some money he had collected for Ah Hiang, and she passed him a plastic bag containing a number of sealed packages. He was told the intended recipient would contact him later. The applicant then placed the plastic bag in his car and drove to Katong Plaza, where he was arrested by CNB officers. He said he was horrified when he was told the sealed packages in the plastic bag contained heroin because Ah Hiang had allegedly assured him that he did not deliver “dangerous drugs”, and dealt only in ice, ketamine and ecstasy.

The mitigation plea also contained further details as to how the applicant was deceived by Ah Hiang into carrying heroin and how the applicant had actually seen the customers take ice, ketamine and ecstasy from the packages he delivered, but never heroin.

The applicant’s counsel read out the mitigation plea at the hearing on 29 November 2007. At the same time, he was recorded as saying explicitly that although the applicant was “not qualifying his plea”, he maintained that he had been “duped into believing that he was not carrying dangerous drugs… [and was] prepared to testify against [Ah Hiang]” [emphases added]. The Prosecution did not contest the narrative that was set out in the mitigation plea at the hearing.

The applicant’s counsel submitted that the applicant should receive the minimum sentence of 20 years’ imprisonment and 15 strokes of the cane for each of the Disputed...