Lee Yuan Kwang and Others v Public Prosecutor

JudgeKarthigesu JA
Judgment Date20 April 1995
Neutral Citation[1995] SGCA 38
Citation[1995] SGCA 38
Defendant CounselN Ganesan (N Ganesan & Associates) and Chia Kok Seng (KS Chia, Gurdeep and Param),Leo Fernando and R Tiwary (Leo Fernando),Remesha Pillai (Mansur Husain & Pnrs) and SS Dhillon (Bridges Dhillon & Pnrs),Bala Reddy (Deputy Public Prosecutor)
Published date19 September 2003
Plaintiff CounselTan Teow Yeow (Tan Teow Yeow & Co) and G Radakrishnan (Rada & Co)
Date20 April 1995
Docket NumberCriminal Appeal No 40 of 1994
CourtCourt of Appeal (Singapore)
Subject Matter'Deliver',Voluntariness of statements to police disputed,Whether intended return of drugs to owner constituted delivery within the meaning of trafficking,Confession not independent evidence sufficient to sustain conviction,Not relevant if co-accused faced independent charge,Whether occasioning failure of justice,Trafficking in controlled drugs,Confession of co-accused,Whether conduct of impeachment proceedings was irregular,Defence of personal consumption,Impeachment,Whether presumption rebutted,s 18(2) Misuse of Drugs Act (Cap 185),ss 2 & 5(1) Misuse of Drugs Act (Cap 185),'Traffic',Presumption of possession,s 17 Misuse of Drugs Act (Cap185),Criminal Law,Criminal Procedure and Sentencing,Statutory offences,Delivery,Judge looked at statements in entirety before voir dire was over,Evidence,Admissibility of evidence,Presumption of knowledge of nature of drug,s 30 Evidence Act (Cap 97, 1990 Ed),s 2 Misuse of Drugs Act (Cap 185),Words and Phrases

Cur Adv Vult

The appellants were jointly tried in the High Court on 12 October 1994 of having trafficked in diamorphine and thereby committing offences under s 5(1)(a) punishable under s 33 of the Misuse of Drugs Act (Cap 185) (the Act). The first appellant, Lee Yuan Kwang (Lee) was charged with the offence of trafficking in 192.12g of diamorphine contained in two packets and 20 sachets without authorization on 9 January 1994 at about 12.41pm at Raffles Boulevard by delivering the diamorphine to the third appellant, Choo Tong Sai (Choo). Lee and the second appellant, Quek Ah Ling (Quek), were charged with the further offence of trafficking in 1319.06g of diamorphine contained in 15 packets and 57 sachets without authorization on the same day between 12.40pm and 12.46pm, in furtherance of the common intention of them both, by transporting the drugs in a motor car bearing registration No SZ 8103Y from Raffles Link to the car park of Telok Ayer Food Centre.

The third appellant, Choo, was charged with the offence of trafficking in 166.3g of diamorphine contained in two packets on 9 January 1994 at about 12.42pm in front of Marina Square Shopping Mall, Raffles Boulevard, by delivering the two packets of diamorphine to the fourth appellant, Yakoob bin Mohamed (Yakoob).
Choo was further charged with trafficking in not less than 25.82g of diamorphine contained in 20 sachets by virtue of his possession for the purpose of trafficking of the diamorphine on 9 January 1994 at about 2.10pm at Marina Square Shopping Mall. Yakoob, the fourth appellant, was charged with the offence of trafficking in 166.3g of diamorphine contained in two packets by virtue of his possession for the purpose of trafficking of the diamorphine on 9 January 1994 at about 1pm in Marina Square Shopping Mall. These two packets were the ones which Choo was accused of having delivered to him.

At the conclusion of the joint trial, the four appellants were convicted of the offences as charged and sentenced to the mandatory death penalty.
They have appealed against their respective convictions.

The facts

The prosecution`s narrative of the events was largely unchallenged. The prosecution`s case was that on 9 January 1994 the Central Narcotics Bureau (CNB) received information that Lee and an associate would be delivering drugs in a vehicle bearing registration number SZ 8103Y. The vehicle was found parked at Raffles Link. At about 12.30pm, Sgt Henry Tan of CNB spotted Lee (whose identity he knew) and two other persons (later identified as Quek and Choo) boarding the car. Lee and Choo were front and rear seat passengers respectively, while Quek took the driver`s seat. They travelled a short distance from Raffles Link to Raffles Boulevard where they stopped near a taxi-stand which was in front of another entrance to Marina Square Shopping Mall. Along the way Lee delivered two packets and 27 sachets containing diamorphine to Choo. Choo alighted from the car with a red and white paper bag with black and white checks. Quek and Lee drove off immediately.

Choo walked to the taxi stand where he met Yakoob.
After a short conversation, they walked off towards the entrance of Marina Square Shopping Mall. Yakoob had the red and white paper bag slung over his shoulder and he went into a shop named `ZONE` on the ground floor. Choo took the escalator going up to the upper floor. At about 1pm, a team of CNB officers moved into the `ZONE` shop and arrested Yakoob. He dropped the red and white paper bag as the officers were about to arrest him. The bag contained two packets of yellowish granular substance. These two packets were confirmed by Dr Saw Chwee Guan (Dr Saw) from the Department of Scientific Services to contain 166.3g of diamorphine. At about 2.10pm, Choo was also arrested at Marina Square Shopping Mall. He was taken to CNB headquarters at about 2.25pm. A search revealed that he had two white envelopes in his left and right trouser pockets. Each envelope contained ten plastic sachets of light yellowish granular substance. Each of these sachets was again confirmed by Dr Saw to contain between 12.88g to 12.94g of diamorphine.

After Choo had alighted, Quek drove the car to Telok Ayer Food Centre where he and Lee proceeded to have their lunch.
Four CNB officers arrested Lee and Quek. Lee put up a violent struggle but was eventually subdued and handcuffed. Quek remained silent. They were placed in a CNB car. One of the arresting officers, Cpl Ronnie Goh, was given a brown clutch bag and a bunch of keys (B1) by an unidentified female Chinese who told him that she had found them at the table where Lee and Quek had sat. Lee acknowledged that these two items were his. It was later ascertained that the clutch bag contained two bunches of keys providing access to three flats: the first bunch (B2) was for unit #10-1868 at Blk 557 Ang Mo Kio Ave 10 (the AMK flat), and the second (B3) for two flats, Blk 690 Hougang St 61 #10-262 (the Hougang flat) and Blk 403 Tampines St 41 #03-73 (the Tampines flat). It was also later ascertained that the `master` bunch of keys (B1) also contained keys to all three flats, in addition to the key to the car.

ASP Lim Chei Yoo later arrived at the scene.
He asked Lee to surrender `the thing` (referring to the drugs) and the latter told him it was in the car. Two canvas bags were found in the boot of the car. Lee indicated that the drugs were in a black `New Sun` bag. ASP Lim examined the bag and found it to contain several packets of yellowish granular substance. There were 13 such packets. The other bag found in the boot contained two other empty bags. Lee further revealed that there were more drugs at the front of the car and in the glove compartment. A paper bag was found on the floorboard of the front passenger seat, containing a packet of yellowish granular substance. In the glove compartment, ASP Lim found seven envelopes with contents and some empty envelopes. Lee admitted to ASP Lim that five of the envelopes contained ten sachets of ` pei hoon ` (drugs in Hokkien) and that two other envelopes contained three and four sachets of drugs each.

Lee and Quek were both brought to the CNB Headquarters at about 1.25pm.
ASP Lim instructed Insp Alan Moh to raid the three flats using the keys contained in bunches B1, B2 and B3 which had been given to Cpl Ronnie Goh. At about 2.10pm CNB officers arrived at the AMK flat together with Lee and Quek. Lee had rented this flat in mid-November 1993 at $1,200 per month from one Cheng Song Koon. On searching the flat, the CNB officers recovered from the master bedroom four stacks of white envelopes, a bag of unused empty plastic bags, two electric sealers, two electronic weighing scales, several empty packets that had been cut, one porcelain bowl with some substance on it and one stained porcelain bowl. Dr Saw analysed the two porcelain bowls and found the first bowl to contain 6.30g of a powdery substance containing 1.31g of diamorphine and the second bowl to be stained with diamorphine.

They proceeded to search the Tampines flat which was owned by Lee`s father.
In that flat, cash, bank documents and other valuable items were seized from the person of Lee and the flat. A sum of $7,200 was found in the brown clutch bag handed to Cpl Ronnie Goh, and this was also seized. The Hougang flat was rented by Quek from one Ng Yin Seng. Ng Yin Seng testified that on 5 January 1994, Quek and Lee met him at the flat to negotiate its rental. Ng asked for a rent of $1,200 per month but Lee persuaded him to reduce it to $1,000 per month. The CNB officers returned to their headquarters at about 5.40pm bringing with them Lee and Quek and all the exhibits seized.

The statements to the police

The prosecution produced and admitted in evidence the s 122(6) CPC statement of Lee pertaining to the second charge of selling two packets and 20 sachets of substance containing a total of 192.12g of diamorphine to Choo. As recorded by Sn S/Sgt V Kanasalingam, Lee stated that he sold 20 sachets of heroin to Choo for $1,200 and that he asked Choo to hand over two packets of heroin weighing about 2lbs to Yakoob. He also stated that both Choo and Yakoob were known to him. The prosecution also produced and admitted in evidence the statement of Yakoob recorded by Insp S Gopala Krishnan. Yakoob stated that he had nothing to say.

The defences

(1) Lee Yuan Kwang

The first appellant, Lee, elected to remain silent when his defence was called. Instead, he gave evidence on behalf of Quek. He admitted that the drugs in SZ 8103Y were his and that he alone was trafficking in drugs. He had never told Quek about his drug-trafficking activities and had led Quek to believe that they were only delivering contraband cigarettes. He confessed to the charge of trafficking which had been brought against Quek and himself jointly.

In cross-examination by counsel for Choo, Lee admitted supplying Choo with 20 sachets of heroin and handing to him the red and white paper bag containing two packets of heroin which were to be handed over in turn to Yakoob.
This was also the substance of his s 122(6) statement which had been admitted in evidence. Thus, he also confessed to the other charge of trafficking which had been brought against him solely. When cross-examined by counsel for Yakoob, however, Lee maintained that he would not answer certain questions despite the trial judge`s ruling that he was a compellable witness.

Lee Yuan Kwang`s appeal

In Lee`s petition of appeal, counsel only raised the argument that the trial judge had erred in law in allowing the DPP to cross-examine Lee extensively after Lee had indicated that he did not wish to testify on matters concerning Choo and Yakoob.
During the trial, the reason why Lee chose to remain silent was not clear. Counsel for Quek suggested that this may have been due to the fact that he did not wish to inadvertently implicate Choo or Yakoob when his only intention was to give evidence to exonerate Quek....

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