Lim Ah Poh v Public Prosecutor

• Judgment Date: 10 February 1992
• Date: 10 February 1992
• Docket Number: Criminal Appeal No 10 of 1991
• Court: Court of Appeal (Singapore)

Lim Ah Poh

Plaintiff

and

Public Prosecutor

Defendant

[1992] SGCA 11

Yong Pung How CJ

,

L P Thean J

and

F A Chua J

Criminal Appeal No 10 of 1991

Court of Criminal Appeal

Criminal Law–Statutory offences–Misuse of Drugs Act (Cap 185, 1985 Rev Ed)–Offence of trafficking in controlled drugs–Presumption of possession of heroin for purpose of trafficking–Burden of proof in disproving presumption–Sections 17 and 21 Misuse of Drugs Act (Cap 185, 1985 Rev Ed)–Criminal Procedure and Sentencing–Appeal–Trial judges' findings of fact–Power of appellate court to interfere–Duty of appellate court to interfere

The appellant and his companions were arrested after their car, which was under surveillance by Central Narcotics Bureau (“CNB”) officers, came to a stop behind several cars at a traffic light after having tried to escape the said surveillance. The boot of the car was opened. Inside the boot there was a board which divided the boot into two compartments: one exposed to view and the other concealed behind the board. When the board was removed, a large red plastic bag, containing four ordinary cardboard tissue boxes, was recovered. One tissue box was empty and three were found to contain a packet of heroin each, two of these wrapped in newspaper, inside the tissue box. The net weight of the heroin was 220.62g and its street value was later estimated at $258,980. From the dashboard in front of the driver's seat the CNB officers recovered a red packet containing a 7cm-long straw of heroin and a S$1 note.

The appellant was charged jointly with Lee Cheng Hock, his front-seat passenger in the car, on a charge of trafficking in the heroin in furtherance of their common intention. At the close of the defence, the court decided that the Prosecution had not established common intention and was doubtful whether Lee Cheng Hock was in possession of the heroin whilst he was in the car. The court directed the deputy public prosecutor to amend the charge. The appellant was subsequently convicted and sentenced to death by the High Court for drug trafficking under s 5 (a) of the Misuse of Drugs Act (Cap 185, 1985 Rev Ed) (“the Act”) (see [1991] 2 SLR (R) 307), having declined the opportunity of recalling witnesses. He appealed, arguing that the trial judges erred in holding that he failed to rebut the presumption under s 17 of the Act, namely, that he was in possession of the heroin for the purpose of trafficking.

Held, dismissing the appeal:

(1) The appellant was the owner of the vehicle and the person in charge of it at the time the heroin was discovered inside it. As such, s 21 of the Act raised the presumption that Lim was in possession of the heroin. Once that presumption arose, by virtue of s 17 of the Act, he was presumed to have had, until the contrary was proved, the heroin in his possession for the purpose of trafficking. As such, Lim had the burden of proving, on a balance of probabilities, that he was not in fact trafficking: at [10].

(2) An appellate court would not disturb the findings of fact unless they were clearly reached against the weight of the evidence. In examining the evidence, an appellate court had always to bear in mind that it neither saw nor heard the witnesses and had to pay due regard to the trial judges' findings and their reasons therefor. On the evidence, the trial judges' conclusions of fact were correct and the appeal was unanimously dismissed: at [32].

Misuse of Drugs Act (Cap 185, 1985 Rev Ed)ss 17, 21 (consd);ss 5 (a),33

Lim Kia Tong (Teo & Lim) for the appellant

Lau Wing Yum (Deputy Public Prosecutor) for the respondent.

F A Chua J

(delivering the grounds of judgment of the court):

1 The appellant was convicted and sentenced to death by the High Court on the following charge:

You, Lim Ah Poh, are charged that you, on or about 14 March 1988 between 3.10pm and 3.30pm in Singapore, 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 transporting three plastic packets containing not less than 220.62g of diamorphine from Stagmont Ring to the slip road joining the Pan Island Expressway to the traffic junction at Upper Serangoon Road in motor car AR 4599, without any authorization under the said Act or the 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 Act”).

2 The appellant appealed. We dismissed the appeal and now give our reasons.

3 The appellant lived in Bukit Mertajam, Penang. For a number of years he worked as a bus driver plying between Butterworth and Singapore many times a month. In Singapore he came to know Chua Kee Wee, Lee Joon Seng and his son Lee Cheng Hock. Chua Kee Wee was a motor mechanic. Lee Cheng Hock lived at Lorong Kebasi, off Stagmont Ring, in a house that adjoined a temple, which he was in charge of and at which he was a medium. He was 17 years old at the time of his arrest in 1988.

4 The evidence of the appellant was that on 11 March 1988, he left Butterworth in his car, AR4599, and travelled to Singapore in it with his wife, two...