Lim Boon Keong v Public Prosecutor

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Steven Chong J
• Judgment Date: 23 June 2010
• Neutral Citation: [2010] SGHC 179
• Citation: [2010] SGHC 179
• Defendant Counsel: Bala Reddy, David Khoo and Hee Mee Lin (Attorney-General's Chambers)
• Published date: 29 June 2010
• Plaintiff Counsel: S K Kumar (S K Kumar & Associates)
• Hearing Date: 06 May 2010,12 March 2010,15 June 2010
• Docket Number: Magistrate’s Appeal No 354 of 2009
• Date: 23 June 2010
• Subject Matter: Statutory offences,Proof of evidence,Criminal law,Confessions,Evidence,Misuse of Drugs Act

Steven Chong J: Introduction

This is an appeal against the decision of the district judge in [2009] SGDC 511 convicting the appellant of one charge of consuming a controlled drug, viz norketamine, in contravention of s 8(b)(i) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the Act”).

In the course of this appeal, the parties had initially raised a number of points of law of general importance which had hitherto not been considered in a reported decision of our courts. First, whether the testing of the appellant’s urine samples, as described in the trial below, complied with the requirements laid down in s 31(4)(b) of the Act, so as to give rise to the presumption of consumption in s 22. Second, whether the presumption in s 16 relating to analysts’ certificates could apply to prove that the appellant’s urine samples contained norketamine if the s 22 presumption did not apply (because the s 31(4)(b) requirements were not complied with). Third, whether the appellant’s confession per se was of any evidential value in deciding whether he in fact took norketamine.

In light of the prosecution’s confinement of its case, which I will elaborate upon below, it has become unnecessary for me to make findings on all these issues. However, it is plain that the above issues are pertinent to the proper administration of our drug laws and the investigation of drug offences. I would therefore deal fully with all the points of law which have been raised, in addition to making the findings necessary to dispose of this appeal.

Background

The appellant, Mr Lim Boon Keong, claimed trial to the following charge:

You, LIM BOON KEONG, MALE / 25 YRS DOB: 07.09.1983 NRIC No. S8330833H are charged that you, on or about the 4th day of February 2008, in Singapore, did consume a Specified Drug listed in the Fourth Schedule to the Misuse of Drugs Act, Chapter 185, to wit, norketamine, without authorisation under the said Act or the Regulations made thereunder and you have thereby committed an offence under Section 8(b)(ii) of the Misuse of Drugs Act, Chapter 185.

On 4 February 2008, at about 11.50 am, the appellant was arrested at No 4 Lorong 22 Geylang in the course of a raid by a group of officers from the Criminal Investigations Department of the Singapore Police Force. He was brought to the Police Cantonment Complex for further investigations, and a specimen of urine was taken from him, which was divided into three bottles. The urine in one of the bottles was tested by the Instant Urine Test Machine. The other two bottles were sealed in the presence of the appellant and sent to the Health Sciences Authority (“HSA”) for further testing. After the testing and further investigations, the above charge was preferred against the appellant on 20 March 2008.

At the trial below, the prosecution produced two certificates purported to be signed by two analysts from the HSA. The first certificate was dated 25 February 2008 and was purported to be signed by one Kuan Soo Yan (“Ms Kuan”). It stated that, on analysis, the urine sample of the appellant was found to contain norketamine at a concentration of 7640 nanograms per millilitre. The second certificate was dated 27 February 2008 and was signed by one Tan Joo Chin (“Ms Tan”). It stated that, on analysis, the urine sample of the appellant was found to contain norketamine at a concentration of 6630 nanograms per millilitre. Both Ms Kuan and Ms Tan were analysts with the Illicit Drugs and Toxicology Division of the HSA at the material time. A large part of the trial concerned whether the appellant’s urine samples were tested in accordance with s 31(4)(b) of the Act. In this connection, the prosecution called Ms Tan to testify; it was unable to call Ms Kuan because she had emigrated to the United Kingdom. The prosecution also called Dr Lui Chi Pang (“Dr Lui”), the director of the Illicit Drugs and Toxicology Division, to testify generally on the urine testing procedures employed by the HSA. I note here that the certificates used “sample” while s 31(4) refers to “specimen”. Nothing turns on the difference in wording, but for convenience I will use sample since this was the term used by the witnesses in giving evidence.

The prosecution also produced the statement made by the appellant on 20 March 2008 after the notice required by s 122(6) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) was served on him. The appellant’s cautioned statement read in its entirety as follows:

I admit to my guilt and hope for a lighter sentence. I am married with 3 kids and I hope that I can be given a chance. I also have aged parents whom I visit often because my mother has difficulty walking.

The caution was made and the cautioned statement recorded by Sergeant Amos Yap Hon Chian (“Sgt Yap”), the investigating officer for the appellant’s case, who was called as a prosecution witness. It was not in dispute that, prior to recording the appellant’s cautioned statement Sgt Yap had recorded a “long statement” from the appellant pursuant to s 121 of the Criminal Procedure Code. It was also not in dispute that the long statement recorded the appellant’s purported explanation that the norketamine was found in his urine because he mistakenly took some sips of a drink from a glass placed on the table at the Geylang premises where he was arrested. The appellant’s counsel, Mr S K Kumar (“Mr Kumar”), applied for the long statement but the district judge ruled that the appellant was not entitled to it. The district judge also ruled after a voir dire that the appellant’s cautioned statement, quoted above, was admissible.

When called upon by the district judge to enter his defence at the close of the prosecution’s case, the appellant elected to remain silent and did not call any witness in his defence.

After considering the evidence, the district judge determined that norketamine was found in the appellant’s urine as a result of both urine tests conducted under s 31(4)(b) of the Act, thus giving rise to the presumption under s 22 that the appellant had consumed the norketamine in contravention of s 8(b). In the alternative, the district judge admitted Ms Kuan’s certificate as proof of its contents, ie that the appellant’s urine sample contained norketamine, via s 16 of the Act. Separately, the district judge found that appellant’s refusal to give evidence in his defence gave rise to an adverse inference that the confession in the appellant’s cautioned statement was true and reliable. In the circumstances, the district judge found the appellant guilty of the charge and convicted him accordingly. As the appellant had a previous conviction under s 8(b)(i) of the Act, he was liable for enhanced punishment under s 33(4), and the district judge accordingly sentenced him to the minimum three years’ imprisonment.

Specifically, the district judge found that the tests of the appellant’s urine samples complied with s 31(4)(b) because: Both Ms Tan and Ms Kuan had independently reviewed and certified the test results for each of the appellant’s urine samples. They were also personally responsible for their respective certificates. They can therefore be said to have had conduct of the test of the respective urine samples of the appellant. Regulation 5(2) of the Misuse of Drugs (Urine Specimens and Urine Tests) Regulations (Cap 185, Rg 6, 1999 Rev Ed) (“the Regulations”) has been satisfied because the two urine samples of the appellant were tested by different laboratory officers. It was immaterial that analysts and laboratory officers, including Ms Tan and Ms Kuan, had supervised the testing of the two urine samples interchangeably. Section 31(4)(b) only required an independent review of the results, and this was satisfied here.

In the same proceedings, the appellant also pleaded guilty to a charge under s 7 of the Common Gaming Houses Act (Cap 49, 1985 Rev Ed), and a charge under s 267B of the Penal Code (Cap 224, 2008 Rev Ed). Mr Kumar informed me that fines were imposed in respect of these charges and have since been paid.

Issues on appeal

Before going into the substance, it is first necessary to set out in some detail the rather curious course which this appeal has taken.

When this appeal first came before me, the following issues were presented for decision: Whether norketamine was found in the appellant’s urine samples as a result of both urine tests conducted under section 31(4)(b) of the Act, thus giving rise to the presumption in s 22; If s 22 does not apply, whether the presumption in s 16 can be relied upon to prove that the appellant’s urine contained norketamine; Whether the appellant can be convicted on the basis of his confession and/or the drawing of an adverse inference from his silence at trial. As can readily be seen, this involved a reconsideration of all aspects of the district judge’s judgment.

After hearing the parties’ oral submissions on 12 March 2010, I directed the parties to address me on four specific points: Whether reg 5(2) of the Regulations is ultra vires s 31(4)(b) of the Act; Whether the presumption under s 16 can arise if the presumption under s 22 does not arise as a result of non-compliance with s 31(4)(b) (this was an issue from the beginning but in my view the parties had not addressed it satisfactorily); Whether there exist precedents where an accused person had been convicted of an offence of consumption solely on the strength of his confession (and in particular without any certification by a HSA analyst); The differences in qualification between a HSA analyst and a HSA laboratory officer.

On 4 May 2010 following receipt of the further submissions, I directed the parties to address me on four additional points: Can a person make an admission on something which he has no knowledge of or is not familiar with? Can the nature of a controlled drug be proven on the basis of a bare admission alone?...