Lai Kam Loy and Others v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 27 September 1993
• Neutral Citation: [1993] SGCA 73
• Docket Number: Criminal Appeal No 47 of 1993
• Date: 27 September 1993
• Year: 1993
• Published date: 19 September 2003
• Plaintiff Counsel: Alan Wong Hoi Ping (William Lai & Alan Wong) and Liew Chen Mine (Lim & Lim)
• Citation: [1993] SGCA 73
• Defendant Counsel: N Ganesan (N Ganesan & Associates) and Fong Chee Yang (Cheng Fong Tan),Raj Kumar (Raj Kumar & Rama) and Dharmishton Daniel (Sebastian & Daniel),Bala Reddy (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: s 23 Misuse of Drugs Act (Cap 185),Evidence of conspiracy,Proof of evidence,Essence of a conspiracy,Agent provocateur,s 116 illustration (g) Evidence Act (Cap 97, 1990 Ed),Informer,Chain of possession,Witnesses,Impeaching witnesses’ credibility,Credibility of witness not linked to the label attached to him,Evidence,Complicity,Onus of proof,Defence not available in Singapore,Not necessary for prosecution to prove chain of possession of exhibits seized unless doubt raised as to identity of exhibit,Whether adverse presumption to be drawn against prosecution,Failure to call informer as witness,Criminal conspiracy,Criminal Law

The first appellant was charged with trafficking in a controlled drug in the High Court as follows:

That you, Lai Kam Loy, are charged that you on or about 13 May 1991 at about 12.40pm at the car-park of Blk 109 Aljunied Crescent, Singapore, did traffic in, by delivering to one James Ooi Hock Aun, a controlled drug specified in class A of the First Schedule to the Misuse of Drugs Act (Cap 185), to wit, a quantity of not less than 197.03g of diamorphine without any authorization under the said Act or Regulations made thereunder, and you have thereby committed an offence under s 5(a) punishable under s 33 of the Misuse of Drugs Act.

The second and third appellants and one Yeo Choon Poh (`Yeo`) were jointly charged with abetting the first appellant by conspiring with one another and with him to traffic in a controlled drug. The charge against the second and third appellants and Yeo read as follows:

That you, Tee Seh Ping, Yeo Choon Poh, Yeo Choon Chau, are charged that you, on or about 13 May 1991 in Singapore, did engage with one another and one Lai Kam Loy in a conspiracy to do a certain thing, namely, to traffic in diamorphine, a controlled drug specified in class A of the First Schedule to the Misuse of Drugs Act (Cap 185), and in pursuance of that conspiracy, and in order to the doing of that thing (sic), an act took place at or about 12.40pm at the car-park of Blk 109 Aljunied Crescent, where Lai Kam Loy delivered to one James Ooi Hock Aun about five pounds of heroin containing not less than 197.03g of diamorphine, which was kept in car JBU365 belonging to Yeo Choon Poh, and you have thereby abetted the offence of trafficking in the said controlled drug and committed an offence under s 5(a) read with s 12 of the Misuse of Drugs Act punishable under s 33 of the said Act.

Particulars

a) Lai Kam Loy, Tee Seh Ping, Yeo Choon Poh and Yeo Choon Chau came into Singapore from Johor on the morning of 13 May 1991;

b) A meeting was held on 13 May 1991 between 11.45pm and 12.15pm at Luna Coffee-house in Apollo Hotel, Havelock Road, Singapore, where Lai Kam Loy, in the presence of and with the knowledge of Tee Seh Ping and Yeo Choon Chau, agreed to sell to one James Ooi Hock Aun about five pounds of heroin which was kept in the car belonging to Yeo Choon Poh;

c) To facilitate delivery of the heroin, Tee Seh Ping volunteered to lead Lai Kam Loy to Geylang; and

d) At about 12.30pm, outside an eating house in Geylang, Singapore, Yeo Choon Poh handed the key to his car JBU 365 to Lai Kam Loy in order to allow Lai Kam Loy to deliver the drugs kept in his car JBU 365.

At the end of the prosecution case, the deputy public prosecutor applied to add the italicized particulars at (c) to the particulars of the charge and the amendment was allowed by the trial judge. At the end of the trial, the trial judge convicted all three appellants of the charges they faced and acquitted Yeo. All three appellants appealed against their convictions and at the end of the hearing we unanimously dismissed their appeals. We now give our reasons for so doing.

The prosecution case

General outline

On 13 May 1991, Sgt James Ooi Hock Aun (`Sgt James`) of the Central Narcotics Bureau (`CNB`) received information that a drug syndicate had five pounds of diamorphine (heroin) for sale. At about 11.45am that day, Sgt James and his assistant, Cpl Ben Ey (`Cpl Ey`), met up with all three appellants and a CNB informer known as `Ah Hai` at the Luna Coffeehouse in Apollo Hotel.

Ah Hai introduced the appellants to the CNB officers. The discussions were conducted in Hokkien, and the Hokkien words `peh hoon` were used to denote the drugs. The first appellant told Sgt James that the drugs were not at the coffee-house but were somewhere in Geylang and that Sgt James was to follow him to take delivery of it. The first appellant also asked if Sgt James had brought the money to pay for the drugs whereupon Cpl Ey took out a stack of flash notes (genuine notes on the outside with photocopied notes in between) in response. The deal concluded, the first appellant told Sgt James that he was unsure of the way to Geylang whereupon the second appellant volunteered to lead the way. The first and second appellants and Sgt James left in two cars, one a red Mazda driven by the first appellant with the second appellant in the passenger seat and the other a Honda Prelude driven by Sgt James. The persons remaining behind were the third appellant, `Ah Hai` and Cpl Ey. At all times, both the group that remained behind and the group that left had their movements closely monitored by two teams of CNB officers. The unchallenged evidence of the CNB officers who trailed the two vehicles was that, at Guillemard Circus (near Lorong 22, Geylang) the first appellant`s red Mazda overtook Sgt James` car and led him to Lorong 22.

On arriving at Lorong 22, Yeo was waiting at a coffee-house. The first appellant got out of his car and went up to Yeo who handed him the key to his car JBU365 which was not there, but was parked in a car-park in Aljunied. The two cars then set off leaving Yeo behind. The first appellant`s car led Sgt James`s car to the car-park of Blk 109 Aljunied. At the car-park, the first appellant used Yeo`s car key to open the boot of Yeo`s car JBU365 which was in the car-park. Inside were two plastic bags. Sgt James took possession of the plastic bags from the first appellant and both cars headed back towards Apollo Hotel. The contents of the two plastic bags were later scientifically analyzed and found to contain 197.03g of diamorphine. When the first and second appellants and Sgt James arrived at Apollo Hotel, both appellants were arrested by CNB officers.

In the meantime, while waiting for them to return, Cpl Ey had been discussing details of how to sell drugs and future drug deals with the third appellant. The third appellant gave him his pager number for the purpose of the future transactions. Upon Cpl Ey being informed of the arrest of the first and second appellants, he relayed this information to the third appellant. Then, on the pretext of calling Sgt James, he separated himself from Ah Hai and the third appellant, and returned to CNB headquarters. Ah Hai then drove the third appellant in his blue Honda Accord to Lorong 22 to pick up Yeo. From there, they went to the Kentucky Fried Chicken Restaurant in Woodlands where they were arrested by CNB officers.

We summarize the prosecution case against each appellant as follows:

Case against the first appellant

On 13 May 1991 he came into Singapore driving a red Mazda. He attended a meeting with Sgt James and Cpl Ey at Apollo Hotel where he informed Sgt James that he had five pounds of heroin for sale and that he would lead Sgt James there to collect the drugs. He also asked Sgt James whether he had brought the money to pay for the drugs to which Cpl Ey flashed a stack of notes from his pocket. He then left with Sgt James and the second appellant. At Guillemard Circus, he drove his car alongside Sgt James and signalled to Sgt James to follow him. They arrived at Lorong 22 where he collected Yeo`s car key from him. They then arrived at the Blk 109 Aljunied car-park where he parked his car next to Yeo`s car JBU365. He opened Yeo`s car boot and showed Sgt James the two plastic packets containing heroin. He told Sgt James that it was he who had smuggled the drugs through customs at the Causeway and that he used Colgate toothpaste on the sealing of the plastic bag to avoid detection by narco-dogs.

The first appellant also gave a statement under s 122(6) of the Criminal Procedure Code (`CPC`) which was recorded by the investigating officer of the case, Insp Sivakumaran, and interpreted to him by interpreter Wu Nan Yong on 13 May 1991. This was admitted in evidence without any challenge by the first appellant`s counsel. On appeal, the voluntariness of the statement was also not challenged. In it, the first appellant stated the following:

Ah Wah [second appellant], myself and Ah Ti [third appellant] and his elder brother [Yeo] had our lunch at Lorong 22, Geylang. Ah Ti`s elder brother told me to open his car boot later on at Aljunied to allow a Singaporean to collect something from the boot and then later return to Lorong 22, Geylang. Ah Ti`s elder brother would pay $1,500 for doing this. After lunch Ah Ti, Ah Wah and myself went to a coffee-house to meet a Singaporean. After meeting the Singaporean I drove my car, CV9902 with Ah Wah seated next to me. The Singaporean followed us in his car. Ah Ti waited for us at the coffee-house. I drove to Lorong 22, Geylang to get the car key from Ah Ti`s elder brother. After which the three of us proceeded to Aljunied. On

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