Kong Weng Chong and Others v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 11 November 1993
• Neutral Citation: [1993] SGCA 81
• Docket Number: Criminal Appeal No 39
• Date: 11 November 1993
• Published date: 19 September 2003
• Year: 1993
• Plaintiff Counsel: Robert Rhodes Qc and RS Bajwa (Bajwa & Co)
• Citation: [1993] SGCA 81
• Defendant Counsel: Peter Yap and Chia Ho Choon (Peter Yap & Co),Seng Kwong Boon and Chay Yuen Fatt (Deputy Public Prosecutors),JB Jeyaretnam (JB Jsyaretnam & Co)
• Court: Court of Appeal (Singapore)
• Subject Matter: Trafficking in controlled drugs,Misuse of Drugs Act,s 34 Penal Code (Cap 224),Defence of lack of knowledge that goods transported were drugs,Presumption of trafficking,Criminal Law,Statutory offences,ss 5(a), 12, 17, 18(1), (2) Misuse of Drugs Act (Cap 185),Whether statutory presumptions rebutted on a balance of probabilities

Cur Adv Vult

The second appellant, Tan Seang Hock (`Tan`), and the third appellant, Yeap Kai Pang (`Yeap`), were charged in the High Court under s 5(a) of the Misuse of Drugs Act (Cap 185) (`the Act`) read with s 34 of the Penal Code (Cap 224) for trafficking in a quantity of drugs, namely, 39 packages containing not less than 8.25kg of diamorphine by transporting them from Plaza Hotel, Beach Road, to the car park in Mandarin Hotel, Orchard Road, Singapore, on 16 July 1989. The first appellant, Kong Weng Chong (`Kong`), was charged under s 5(a) read with s 12 of the Act for abetting Tan and Yeap in the commission of that offence. All three of them were tried jointly and at the conclusion of the trial were convicted. Against their convictions, the appellants have appealed.

The evidence adduced by the prosecution and admitted before the trial judge was this. On 16 July 1989, officers of the Central Narcotics Bureau (`CNB`) mounted a surveillance of the three appellants. At 12.10pm, Kong was seen by Acting Narcotics Officer Ng Beng Chin at the lobby of Mandarin Hotel talking to a CNB agent called Warren Lee. Kong and Warren Lee were then seen going across the road to a coffee house at Paragon Shopping Centre. At 12.50pm, they left the coffee house and proceeded to Plaza Hotel at Beach Road in a taxi and on arrival there, they went to the hotel lobby. At about 1.15pm, they were seen talking with Tan and Yeap outside the hotel. Thereafter, at about 1.40pm, Kong and Warren Lee boarded a taxi and left the hotel, and Tan and Yeap followed the taxi in a motor car ABG 5417 driven by Tan. All of them were trailed by Senior Narcotics Officer Chow Toong Chew and his colleagues. However, the officers lost them along Penang Road. The taxi went to Mandarin Hotel; so did the car driven by Tan. On arrival there, Kong alighted and went into the car (driven by Tan) and led the way to the car park. Tan parked the car and handed the key to Kong. The three of them then parted company at the hotel entrance; Tan and Yeap returned to Plaza Hotel and Kong went to look for Warren Lee. Kong found Warren Lee at the coffee house in a building opposite Mandarin Hotel. They returned to Mandarin Hotel and went to the coffee house for tea. After they had placed their orders, Warren Lee walked out, and the officers went to the coffee house and arrested Kong. He was brought to the CNB headquarters.

Tan and Yeap were arrested at Room 634, Plaza Hotel, after their return from Mandarin Hotel. They were also brought to the CNB headquarters.

When all the three accused were brought to the CNB headquarters, the motor car ABG 5417 was searched by CNB officers with the help of two police dogs. Nothing was found at the time. The car was then brought to the back of the building and was driven up a ramp for a further search. The CNB officers still could not find anything. Subsequently, the car was driven to Police Task Force 2 at Queensway where there is a higher ramp. The car was driven up the ramp and the fuel tank was removed and cut open. Inside were found 39 packets of compressed white substance which on analysis were found to contain not less than 8.25kg of diamorphine.

Before the trial judge, the prosecution sought to admit all the statements made by the appellants. Kong disputed the admissibility of all the statements attributed to him except the cautioned statement made under s 122(6) of the Criminal Procedure Code (Cap 68) (`CPC`). Tan and Yeap did not dispute the admissibility of all the statements attributed to them. The statements disputed by Kong consisted of two oral statements and three statements recorded from him under s 121 of the CPC. With regard to the two oral statements, Kong denied that he had made those statements. The prosecution adduced evidence of the circumstances under which he made them, the officers to whom the statements were made and the content of the statements. The trial judge accepted the evidence and found that Kong had made the oral statements. As for the written statements, the trial judge at the conclusion of a voir dire

held that they were not admissible on the ground that the prosecution had not proved to his satisfaction that they had been made voluntarily.

The first oral statement (`first oral statement`) of Kong was made by him to Senior Narcotics Officer Peter Lim in his office at Central Narcotics Bureau. SNO Peter Lim said that he questioned the accused in English with NO Ng Beng Chin acting as the Mandarin interpreter. According to SNO Peter Lim, Kong on being asked whether the car contained anything said that there was `pai fen` by which term he meant `hai ro in`. He also told SNO Peter Lim of his earlier activities that day. He said that he received a telephone call to go to Room 634, Merlin Plaza. He went there and met two men called Tony and Ah Tan. Tan asked him to drive the car to Mandarin Hotel but he declined. Instead, he took a taxi from Merlin Plaza to Mandarin Hotel followed by the two of them in their car. At the Mandarin Hotel, he led them to the car park and after the car was parked, Tan gave him the key to the car.

The second oral statement (`second oral statement`) was made by Kong when he was brought to witness a search of the car at the ramp at the CNB headquarters. NO Ng asked him where he thought `the thing` was, and he replied that it should be somewhere near the fuel tank and that the bolts must be removed near the fuel tank and the paint must be scraped off before `the thing` could be seen.

In the cautioned statement, Kong asserted that he did not know Tan and Yeap, did not abet them to traffick in heroin and did not know that there was heroin inside the car. He said that he received a telephone call to meet them at Plaza Hotel and accordingly, he went there with his friend, Warren Lee. He met them and as he did not know them, one of them asked Warren Lee to drive the car to Mandarin Hotel but Warren Lee refused and asked them to drive the car. After that, he and Warren Lee boarded a taxi to Mandarin Hotel with Tan and Yeap following them in their car. When they arrived at the Mandarin Hotel, Warren Lee waited at the hotel entrance whilst he boarded their car and led the way to the car park where one of them parked the car and handed the car key to him. The three of them parted company at the hotel entrance and he went to look for Warren Lee. He found Warren Lee at the coffee house in a building opposite Mandarin Hotel and he handed the car key to Warren Lee and asked him to drive the car away. Warren Lee invited him to have tea at Mandarin Hotel. They went to the coffee house at Mandarin Hotel and after they had placed their orders, Warren Lee walked out, and the officers came in and arrested him.

The first statements made by Tan and Yeap were oral statements to NO Ng Peng Chin at Police Task Force 2 when the car was being searched. Tan told NO Ng that he was paid RM2,500 to drive the car to Singapore and Yeap added that they were paid RM2,500 by a Malaysian by the name of David to drive the car to Singapore and hand it over to someone unknown to them and that David also told them to inform the person to remove the fuel tank and scrape off the paint.

In his cautioned statement made under s 122(6) of the CPC, Tan admitted that he and Yeap had driven the car from Penang to Thailand under the instructions of David. In Thailand, a person took away the car and returned it after a few days. After that, he and Yeap took turns to drive the car to Singapore. When they were in Singapore, David telephoned and arranged for `Ah Lee and Ah Chong` to meet them. Subsequently, Ah Chong (identified as Kong) arrived at their room in Plaza Hotel. They went downstairs where it was arranged that Ah Chong and Ah Lee would take a taxi to Mandarin Hotel and that he and Yeap would follow in their car. At Mandarin Hotel, Ah Chong came into their car and directed them to the car park. At the car park, he gave the key to Ah Chong and told him that the person in Thailand had said that `the thing` was inside the petrol tank. They then parted company with Ah Chong and returned to the room at Plaza Hotel where they were arrested later.

The second statement made by Tan was one under s 121 of the CPC. Briefly this statement was as follows. On 10 July 1989, Yeap invited him to Shangri-La Niteclub in Penang where he was introduced by Yeap to David. He was told that David would pay them $5,000 if they would drive Yeap`s car to Haadyai, Thailand and then bring something to Singapore, and he agreed to do that. Accordingly, on 11 July, he and Yeap drove the latter`s car to Haadyai and checked into the New World Hotel. There, Yeap handed him $2,500 and told him that David`s friend would take the car from them for a few days and would return it and thereafter they would drive the car to Singapore and deliver it to David`s friends. One evening, a person identifying himself as David`s friend took the car from them; two days later he returned the car saying that `the thing` was in the fuel tank of the car and returned the key to Yeap. Tan said that at that stage, he felt uneasy and was a bit suspicious over the matter and he asked Yeap if `the thing` was serious and what it was. Yeap did not tell him what it was but told him not to worry as it would mix with the petrol in the fuel tank. On 15 July, they returned to Penang and then resumed their journey to Kuala Lumpur. There, they could not get hotel accommodation and proceeded straight to Singapore. On arrival at Singapore, they checked into Plaza Hotel where they shared a room. At the hotel, Yeap made a telephone call and later they received a call and was told that Ah Chong and Ah Lee were on their way to see them. A short while later, a male Chinese (identified as Kong) came to their room and introduced himself as Ah Chong. Yeap told Ah Chong that `the thing` was in the fuel tank and asked Ah Chong to drive the car away but Ah Chong refused and left the room. He...