Liew Zheng Yang v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Steven Chong JA
• Judgment Date: 14 July 2017
• Neutral Citation: [2017] SGHC 157
• Plaintiff Counsel: Eugene Singarajah Thuraisingam and Suang Wijaya (Eugene Thuraisingam LLP)
• Date: 14 July 2017
• Docket Number: Magistrate’s Appeal No 9253 of 2016
• Hearing Date: 19 May 2017
• Subject Matter: Misuse of Drugs Act,Criminal Law,Statutory Offences
• Year: 2017
• Defendant Counsel: John Lu and Rimplejit Kaur (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2017] SGHC 157
• Published date: 19 July 2017

Steven Chong JA: Introduction

The appellant, Liew Zheng Yang (“Liew”) is appealing against his conviction of two charges of abetting in a conspiracy to traffic controlled drugs. In her Grounds of Decision, Public Prosecutor v Liew Zheng Yang [2017] SGDC 21 (“the GD”) at [39], the District Judge (“the Judge”) found that the conspiracy charges were made out because Liew had an agreement with the seller, one Xia Fanyu (“Fanyu”), “to get the drugs and to deliver the drugs” to him and that “[t]he agreement to deliver the drugs to Liew was therefore an agreement to traffic the drugs to Liew.” The Prosecution accepts that the decision, taken to its logical conclusion, means that every time a buyer orders drugs from a seller for delivery to the buyer, that buyer, without more, would be guilty of abetting in a conspiracy to traffic controlled drugs.

This decision has serious repercussions as the law has always made a principled distinction between the culpability of drug consumers and drugs traffickers. However, if the decision is correct, a buyer who orders drugs from a seller for his own consumption is liable to be convicted for abetting in a conspiracy with the seller to traffic which, significantly, carries the same sentence as the offence of trafficking. By the same token, if the quantity of controlled drugs is above the capital punishment threshold, the buyer would be liable for capital punishment even if the drugs are for his own consumption. This would effectively undermine and obfuscate the recognised distinction between consumption and trafficking.

For the purposes of the appeal, Liew is not challenging any of the statements which have been admitted in the court below or any of the factual findings made by the Judge. His appeal raises a discrete point of law as to whether a buyer who orders drugs from a seller for delivery to the buyer can be guilty of abetting the seller in a conspiracy to traffic the drugs even if the drugs were intended solely for the buyer’s own consumption.

The Prosecution ran its case in the court below on the premise that it is irrelevant whether the buyer had intended to purchase the drugs for his own consumption or for onward sales to third parties. According to the Prosecution, the offence is constituted the moment the buyer orders drugs from the seller for delivery to the buyer. For this reason, Liew’s testimony during the trial that the drugs were meant only for his own consumption was not challenged. The Prosecution maintained the same legal position in this appeal.

This judgment will examine whether a buyer of drugs for his own consumption is capable, as a matter of law, of abetting his seller in a conspiracy to traffic drugs to himself. In analysing this issue, the inquiry will focus on the fundamental question whether Liew had the necessary mens rea to traffic when the unchallenged evidence before the court is that the drugs were intended solely for his own consumption.

The Decision below The undisputed facts

The facts of this case were largely undisputed. They are set out in detail in the GD at [6]–[14]. I summarise them as follows.

Liew was 22 years old at the time of the offences.¹ He was a good friend of Fanyu, who had supplied drugs to him in the past. Fanyu was 20 years old at the time of the offences.²

On 23 September 2014, Liew wanted to smoke marijuana but did not have any on him.³ He contacted Fanyu to purchase a brick of marijuana. Fanyu checked with his supplier and informed Liew that his supplier had none available. Fanyu then agreed that he would get the marijuana for Liew from other suppliers, and deliver it to Liew the following morning. In return, Liew would pay Fanyu a sum of $400.⁴

To obtain the drugs, Fanyu travelled to Johor Bahru on the same day. He was arrested when he returned the next morning at about 4.00am.⁵ Fanyu was then directed by Central Narcotics Bureau (“CNB”) officers to arrange a meeting with Liew to collect the drugs at Liew’s condominium. Liew did so, and was duly arrested when he turned up.⁶

Fanyu was arrested with two blocks of marijuana in his possession. One block was meant for Liew while the other block was for his own consumption. The block which was intended for sale to Liew contained not less than 34.53 grams of cannabis and 68.21 grams of cannabis mixture (“the Drugs”). For each drug, Liew faced a separate charge of abetting in a conspiracy to traffic the drugs, under s 5(2) and s 12 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). The specific form of abetment relied on by the Prosecution is abetment by conspiracy, under s 107(b) of the Penal Code (Cap 224, 2008 Rev Ed) (“PC”) (collectively, “the Conspiracy Charges”). Liew claimed trial to the Conspiracy Charges.

Separately, on 9 December 2014, Fanyu pleaded guilty to one charge of importing 69.36 grams of cannabis under s 7 of the MDA and one charge of consumption under s 8(b)(ii) of the MDA. He also consented to another charge of importing 135.74 grams of cannabis mixture under s 7 of the MDA being taken into consideration for the purposes of sentencing.⁷ The importation charges related to the drugs found in the two blocks of marijuana, which he was arrested with. Fanyu was placed on probation for these offences.⁸

The Judge’s findings

In the court below, Liew, through his previous counsel, argued that there was no conspiracy between him and Fanyu to traffic the Drugs, making three submissions in this regard. First, there was no common objective between the two of them to traffic in the Drugs as this was a simple sale and purchase agreement. Second, Liew was not in a position to take delivery of the Drugs as he did not have the money to pay Fanyu for the Drugs. Third, the Drugs were intended for Liew’s own consumption (GD at [16]–[18]).

These arguments failed to persuade the Judge. She found that there was an agreement between Liew and Fanyu for Fanyu to obtain the Drugs from one of his sources and deliver them to Liew (GD at [27]). On this basis, and for the reasons elaborated below at [15]–[16], the Judge convicted Liew of both Conspiracy Charges.

Upon his convictions, Liew, a first-time offender, also pleaded guilty to one charge of consumption of a cannabinol derivative and consented to having one charge of possession of utensils intended for consumption of a Class A controlled drug taken into consideration for the purposes of sentencing. The Judge sentenced Liew to 5 years’ imprisonment and 5 strokes of the cane for each of the Conspiracy Charges, and 6 months’ imprisonment for the consumption charge. The sentences for one Conspiracy Charge and one consumption charge were ordered to run consecutively, for a global sentence of 5 years 6 months’ imprisonment and 10 strokes of the cane.

The import of the Decision

The crux of the Judge’s Decision is found at [39]–[40] of the GD, where she reasoned as follows: 39 There are three elements to abetment by conspiracy. These were spelt out by the Court of Appeal in Chai Chien Wei Kelvin v Public Prosecutor. First, the person abetting must engage with one or more persons in a conspiracy. Second, the conspiracy must be for the doing of the thing abetted. Third, an act or an illegal omission must take place in pursuance of the conspiracy. It has been established that Liew had an agreement with Fanyu for Fanyu to get the drugs and to deliver the drugs to Liew. The definition of traffic in section 2 of the MDA includes ‘to deliver’. The agreement to deliver the drugs to Liew was therefore an agreement to traffic the drugs to Liew. Liew had engaged with Fanyu in a conspiracy to traffic to himself. The first and second elements of a conspiracy under section 107(b) of the Penal Code are thus made out. 40 The third element is that an act took place in pursuance of the conspiracy. In this regard, Fanyu imported the drugs into Singapore. This act alone is sufficient to constitute ‘an act took place in pursuance of the conspiracy’.

After listing out the three legal requirements to constitute abetment by conspiracy, the Judge relied on the definition of trafficking which includes “to deliver”. She then concluded that the agreement to deliver the Drugs was an agreement to traffic the Drugs to Liew.

With respect, this is a somewhat pedantic analysis by the Judge that does not address the fundamental issue of whether Liew could, as a matter of law, traffic the Drugs to himself. Taking the Judge’s analysis to its logical conclusion, if Liew had simply ordered the Drugs for delivery, irrespective of whether Liew knew that Fanyu had to obtain the supply from a third party, Liew would, without more, be engaged in a conspiracy with Fanyu to traffic the Drugs. As highlighted by Liew in para 14.4–15 of his submissions, the third element requiring an illegal act to be carried out pursuant to the alleged conspiracy would invariably be satisfied because once Fanyu turns up with the Drugs, an illegal act would have taken place in pursuance of the conspiracy.

The result is that all buyers of drugs will almost always be liable for abetting in a conspiracy with the seller to traffic the drugs to themselves. This holding, if correct, would blur the legal distinction between the offences of drug trafficking and drug consumption. This point is further elaborated at [39]–[47] below, with reference to the evidence of Liew’s intended use of the Drugs.

Drugs were for Liew’s own consumption The unchallenged evidence

At the trial, Liew testified that the Drugs were meant for his own consumption. His evidence in this regard is set out below: ⁹

Sorry, can I also just say that it was because the---I did not intend to buy because the---it was---I was actually quite desperate. I mean, I wanted to buy in a huge amount because I was desperate as the---the source was actually very limited. I wanted to actually use it for my own consumption because at that point of time, during...