Lau Song Seng and Others v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 26 November 1997
• Neutral Citation: [1997] SGCA 56
• Docket Number: Criminal Appeal No 5 of 1997
• Date: 26 November 1997
• Year: 1997
• Published date: 19 September 2003
• Plaintiff Counsel: Francis Xavier (Allen & Gledhill) and Goh Aik Leng (Goh Aik Leng &Partners)
• Citation: [1997] SGCA 56
• Defendant Counsel: Chan Eng Hui (Billy Ng Chua & Partners) and Low Woon Ming (WM Low & Partners),Ram Goswami (Ram Goswami) and Goh Lam Chuan (KS Chia Gurdeep &Param),Wong Keen Onn, Tham Yuet Ming and Cheung Phei Chiet (Deputy Public Prosecutors)
• Court: Court of Appeal (Singapore)
• Subject Matter: Evidence,Whether failure to call witness to clarify matters will give rise to presumption that witness will give unfavourable evidence,Accomplice's statements,Depends on whether witness is material to prosecution's case,Confessions,Prosecution failing to call key witness,If witness's evidence relates to direct evidence of a conspiracy, presumption in s 116 illustration (g) applies,Admissibility,Stringent duty on court to examine the veracity of accomplice's statements under s 116 illustration (b) and recanted confessions -Whether recanted confessions can be used to convict a co-accused -s 116 illustration (b)Evidence Act (Cap 97, 1990),Criminal Procedure and Sentencing,Weight depends on how inconsistencies between testimony at trial and earlier statements are explained by the accused,s 116 illustration (g) Evidence Act,Proof of evidence,Attendance,Recanted confessions,Statements,Witnesses,Admissible

Judgment:

KARTHIGESU JA

(delivering the grounds of judgment of the court): The second appellant, Foo Then Peng (`Foo` also known as `Hainam Peng`), and the third appellant, Lim Lam Hui (`Lim` also known as `Ah Hui`), were jointly charged with the `first charge` which read as follows:

on or about 2 August 1996, in Singapore, together with others unknown, were members of a criminal conspiracy, and in such capacity, agreed with one another to do an illegal act, the object of the conspiracy, namely, to traffic in diamorphine, a controlled drug specified in Class A of the Misuse of Drugs Act (Cap 185), whereby Lim Lam Hui would arrange for the delivery of two pounds of heroin containing not less than 90.94g of diamorphine to Foo Then Peng, an offence contrary to s 5(1)(a) of the Misuse of Drugs Act, and you have thereby committed an offence punishable under s 120(B)(1) of the Penal Code (Cap 224).

2.The first appellant, Lau Song Seng (`Lau` also known as `Swee Tee`), the second appellant, Foo, and one Khoo Chye Hock (`Khoo` also known as `Peck Hock`) were charged together with the `second charge` which read as follows:

on 3 August 1996 at about 1.30pm, at Yishun Avenue 2 near the junction with Yishun Avenue 1, Singapore, in furtherance of the common intention of you all, did traffic in a controlled drug specified in Class A of the First Schedule to the Misuse of Drugs Act (Cap 185), to wit, by having in your possession for the purpose of trafficking two packets of heroin containing not less than 90.94g of diamorphine in motor car SBG 9172 S without any authorization under the said Act or the regulations made thereunder and you have thereby committed an offence under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act and s 34 of the Penal Code (Cap 224) and punishable under s 33 of the Misuse of Drugs Act.

At the close of the prosecution`s case, the second charge was amended by the substitution of the underlined phrase with the following phrase:

by transporting two packets of heroin containing not less than 90.94g of diamorphine in motor car SBG 9172 S from the car park of Block 753 Yishun Street 72 to Yishun Avenue 2 near the junction with Yishun Avenue 1, Singapore.

3. The prosecution`s case

It was alleged that on or about 2 August 1996, Lim agreed to supply roughly two pounds of heroin to Foo for the purpose of trafficking. It was alleged that pursuant to this agreement, Lim, either on his own, or through or with another person or persons, had arranged for a paper box containing two large packets of heroin to be delivered to a staircase at Block 753 Yishun Street 72 on 3 August 1996.

4.At around 12.55pm on 3 August 1996, an officer from the CNB posted at the carpark around Blocks 748, 752 and 753 Yishun Street 72 observed one Lau Boon Huat ascending the staircase at Block 753 carrying two paper boxes. He was observed going up to the fourth floor. The officer lost sight of him. Shortly afterwards, he was seen walking in the carpark behind Block 753. He was not carrying anything. The officer followed him to Block 748 where he was observed climbing into the cabin of a lorry which then drove off.

5.CNB officers also observed that around 1.05pm on 3 August 1996, Lau drove a brown Toyota Corona (registration number SBG 9172 S) to the carpark between Blocks 751 and 753 Yishun Street 72. Foo and Khoo were in the car with him. At the carpark, Foo and Khoo got out of the car but Lau remained inside. Whilst Khoo smoked a cigarette nearby, Foo walked to Block 753, ascended the staircase and returned with a paper box (ostensibly the box left there by Lau Boon Huat on instructions given by Lim or a person acting in concert with Lim).

6.Foo and Khoo then got back in the car which left the carpark. The car, still being driven by Lau, remained under CNB surveillance. It was observed that after leaving the carpark, Lau stopped the car opposite a petrol station whilst Foo got out to make a phone call. Foo then got back in the car, which traveled a short distance before stopping for Foo to alight. Lau and Khoo then proceeded in the car without Foo.

7.Around 1.30pm, the car was stopped by officers of the Central Narcotics Bureau at the junction of Yishun Ave 2, Yishun Ave 1 and Lentor Avenue. Lau and Khoo were arrested. The car was searched and found inside were: (a). a paper box (allegedly that deposited by Lau Boon Huat) containing two large packets the contents of which were approximately 928.9g of heroin which was found on analysis to contain approximately 90.94g of diamorphine;

(b). a paper bag containing 13 sachets the contents of which were approximately 97.1g of heroin which was found on analysis to contain approximately 4.45g of diamorphine; and

(c). a clutch bag containing 19 Methadone tablets and 22 Triazolam tablets.

8.At around 1.40pm, at a coffee-shop at Block 732, Yishun Ring Road, Foo was arrested by CNB officers whilst he was using a coin phone. One Lo Yong Heang (also known as `Ah Heng`) was arrested later in the day. Lim was arrested on either 4 or 5 August 1996.

9.Lau admitted to owning the Methadone and Triazolam tablets and claimed to use them as substitutes for heroin. No admissions were made as to the ownership of the paper bag and the sachets of heroin it contained. No charges were brought in respect of the tablets and sachets. The charges which formed the subject-matter of this appeal related to the two large packets of heroin. The amount of diamorphine yielded from these two packets exceeded the 15g limit required to attract the death penalty in respect of a conviction for unauthorised trafficking.

10.The first part of the prosecution`s case was that Lim had agreed to supply or procure the supply of the two large packets of heroin to Foo. This, said the prosecution, amounted to a conspiracy to traffic in those drugs, and Foo and Lim were charged with the first charge accordingly.

11.The prosecution further alleged that when they drove together to Yishun on 3 August 1996, Foo, Lau and Khoo all knew that the purpose of the trip was to pick up drugs. It was alleged that they knew the type and quantity of heroin that was the subject-matter of the pick-up. They were therefore charged with the second charge - trafficking with common intention.

12.Lo was not (to our knowledge) ever charged. Lau Boon Huat (who had dropped off the drugs) was arrested and charged and tried separately.

13.It was alleged that arrangements to purchase, drop off, pick up and pay for the drugs were made by handphone and pager. Telecommunications records for handphones and pagers belonging to Foo, Lau, Khoo, Lim and Lo were obtained to show what communications had taken place between them on 2 and 3 August 1996.

14.At the close of the prosecution`s case, the learned trial judge acquitted Khoo on the basis that there was insufficient evidence against him to warrant a conviction. The three appellants were convicted as charged and sentenced to death. They mounted appeals against their conviction and sentence.

15. The defences

Each appellant`s defence at trial consisted of allegations of fact which, if proved, would have either exonerated him totally or warranted a lesser sentence. The main issue in this appeal was whether the trial judge erred in rejecting those allegations of fact.

16. Defence to the first charge (criminal conspiracy)

Lim disputed that there was ever a conspiracy between himself and Foo to traffic in heroin. His defence was that Foo had never told him how much heroin he wanted. Nor did they speak about price. Lim asserted that when Foo called him asking if he knew anyone who could supply him with drugs, he did nothing more than to put Foo in contact with another person, `Ah Heng`. Lim asserted that Foo negotiated the transaction with `Ah Heng` directly. Lim also claimed he played no part in arranging for the delivery of the drugs. His counsel argued that if he played no active role in the trafficking, he could not have been party to a conspiracy.

17. Defence to the second charge (trafficking by common intention)

Foo and Lau disputed that they shared a common intention to traffic in 90.94g of diamorphine. They asserted that they only intended to collect ten small sachets of heroin for the purposes of consumption instead of two large packets for the purposes of trafficking. Their counsel asserted that they should have been convicted for offences commensurate with the amounts of the drugs they intended to possess, and further that those amounts were consistent with the `defence` of possession for the purpose of consumption.

18. The appellants` evidence

Much turned on Foo`s evidence because in the course of the CNB investigations, Foo had made written statements incriminating himself, Lim and Lau. In those statements, he suggested that Lau knew full well that the quantity in question was around two pounds of heroin. This in turn suggested that Lau was involved with a view to trafficking in the drugs, not to purchase them for consumption. Foo also stated that Lim was well aware of the negotiated price and quantity of heroin and that Lim had played an integral part in the arrangements for the delivery of the heroin.

19.In his evidence-in-chief at trial, however, Foo gave a different version of the events: one which exonerated himself, Lim and Lau.

20. Foo`s evidence-in-chief

It was not disputed that prior to their arrest, Foo, Lau and Lim were all treated for heroin addiction. Foo`s evidence at trial was that Lau had called him at around 11 in the morning on 2 August 1996 asking for some heroin for his personal consumption, but did not say how much. Foo replied that he would help him by asking around. Foo said that he then contacted Lim at around 12 noon to ask Lim to provide him with heroin. No mention was made of quantity. It was also not mentioned that the heroin was for Lau. Lim replied that he would ask around on Foo`s behalf. Foo then paged for Lim between one thirty and two in the afternoon of 2...