Lim Hong Yap v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chua F A J
• Judgment Date: 16 January 1978
• Neutral Citation: [1978] SGCA 3
• Date: 1978
• Subject Matter: Whether charge defective in failing to state manner of trafficking,Statutory offences,Trafficking in diamorphine,Whether charge fulfilled requirements in ss 151 and 152(1) of Criminal Procedure Code,ss 2, 3(a) & 29 Misuse of Drugs Act 1973,Misuse of Drugs Act,ss 151, 152(1), 153 & 155 Criminal Procedure Code (Cap 113, 1970 Ed),Failure of prosecution to inform defence,Trafficking in controlled drugs,Written statements made close to time of event,Whether evidence of government chemist as to the substance and weight content of plastic packets seized should be accepted,Particulars,Evidence of government chemist,Statements,Weight to be attached,Charge,Criminal Law,Whether omissions if any were material,Criminal Procedure and Sentencing,Whether witnesses may see their statements before trial
• Docket Number: Criminal Appeal No 21
• Published date: 19 September 2003
• Defendant Counsel: Glenn J Knight and RG Neighbour (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Datuk David Marshall (David Marshall)

Cur Adv Vult

(delivering the judgement of the court): The appellant Lim Hong Yap was convicted by the High Court on the following charge:

That you, Lim Hong Yap, are hereby charged that you on or about the 22 January 1976 at about 8.45am at 171 Upper Paya Lebar Road, Singapore, did traffic in a controlled drug specified in Class A of the First Schedule of the Misuse of Drugs Act 1973 to wit, 1032.7g of diamorphine (heroin) without authorisation under the said Act or the regulations made thereunder and thereby committed an offence under s 3(a) and punishable under s 29 of the Misuse of Drugs Act 1973.

At the trial the prosecution led evidence that a team of Narcotics Officers, as a result of information received, kept surveillance on premises No 39 Lorong Paya Lebar and its vicinity. At about 8.35am on 22 January 1976 two of the team,A-G Senior Narcotics Officer Teo and A-G Senior Narcotics Officer Yeoh saw the appellant coming out of No 39 Lorong Paya Lebar carrying a parcel in a yellow netted bag. They followed the appellant who walked along Lor Paya Lebar into Upper Paya Lebar Road where he entered a provision shop known as Hua Tiang, No 171 Upper Paya Lebar Road. They saw the appellant place the parcel he was carrying on the top of a show case in the provision shop. They saw him talking to a male Chinese who turned out to be the proprietor by the name of Wang. They saw no one else in the shop at that time. They saw the appellant picking up a tin of lychees from a shelf and placing it beside the parcel on the top of the show case. The appellant then returned to No 39 Lor Paya Lebar with Teo following him while Yeoh remained in the vicinity of the provision shop to keep watch on the parcel.

A few minutes after returning to No 39 Lor Paya Lebar the appellant came out of the house and walked towards Upper Paya Lebar Road with Teo following about 30-50ft behind. The appellant noticed he was being followed and started running. Teo chased him, caught up with him, and, after a violent struggle, eventually overpowered and handcuffed the appellant and brought him to the provision shop where Yeoh joined them. At the provision shop, Wang the proprietor identified the appellant as the person who had earlier on left the parcel on top of the show case. Teo seized the parcel and they then left the provision shop and proceeded to No 39 Lor Paya Lebar. Before they arrived there the appellant told Teo and Yeoh that he had seen a person whose name he gave as Loh Kah place a large quantity of heroin in a school at Aljunied Road. On being told this, Teo instructed Yeoh to keep watch on No 39 Lorong Paya Lebar and he took the appellant to where his office car was parked where he met A-G Narcotics Officer Lio who was looking after the car. The three of them proceeded in the car to the school at Aljunied Road where on arrival the appellant led the narcotics officers to a bush. A search proved fruitless and so they returned to Lor Paya Lebar and the three officers. Teo, Yeoh and Lio entered No 39 Lorong Paya Lebar with the appellant who led Teo to his room on the first floor of the house. In the room the appellant pointed to a briefcase which was found to contain, inter alia, the appellant`s passport and three packets containing some brownish substance which Teo suspected to be heroin.

Teo thereupon seized the briefcase and its contents and eventually the appellant was taken to the Central Narcotics Bureau where the Assistant Director, Ronald Naidu, charged the appellant with trafficking in a controlled drug. After the charge was read and explained to the appellant and after he had been duly cautioned the appellant made a statement to Ronald Naidu in answer to the charge. As the appellant was not English educated Senior Narcotics Officer Lee Tai Huat acted as interpreter. His cautioned statement as recorded reads as follows:

The drugs that were seized this morning actually belong to one Loh Kah who is also known as Ah Heng. This morning I placed the bag containing the heroin at a provision store along Upper Paya Lebar Road. I was instructed by Loh Kah to leave the bag of heroin at this store. He told me that some strangers were watching his house and they had the appearance of police officers. He did not want the bag of heroin to be in the house for fear the house might be raided and he gave me instructions to place the bag of heroin on the counter of the provision store at Upper Paya Lebar Road. I did what he told me to do. That is all I wish to state.

The parcel inside the yellow netted bag which was left in the provision shop was found to contain 214 plastic packets of a substance which had the appearance of diamorphine hydrochloride. The total weight of the substance in the 214 plastic packets was 2700g. On analysis the total diamorphine content of the 2700g of the solids was found to be 1032.7g as stated in the charge. The three packets found in the appellant`s briefcase contained a substance which weighed 31.76g On analysis this substance was found to have a total diamorphine content of 11.84g.

The defence objected to the admission in evidence of the cautioned statement and also objected to the admission in evidence of the three packets as containing 11.84g of diamorphine. With regard to the cautioned statement the submission was that it was not a voluntary statement because it had been obtained under duress. After a trial within a trial this objection was rejected. With regard to the three packets found in the appellant`s briefcase the submission was that all evidence relating to it was prejudicial as the appellant was not charged with any offence in relation to the contents of these three packets. This objection was also rejected on the ground that when a person is charged with trafficking in heroin, any heroin found on his person or in his possession is relevant evidence.

The appellant raised two main defences at the trial. He denied on oath that when he came out of No 39 Lorong Paya Lebar on the morning of 22 January 1976 he was carrying the parcel in a yellow netted bag. He said that after leaving the house that morning he was arrested in Upper Paya Lebar Road, not by Teo, but by two other persons who handcuffed him, searched him and eventually took him in a car to the house where he was assaulted and asked questions about Loh Kah. He told them that Loh Kah had a friend who lived somewhere near a school in Aljunied Road and thereupon they took him to Aljunied Road to look for Loh Kah`s friend. When they could not find this person they took him to a field where they again assaulted him and then took him to the provision shop where Wang, the proprietor, in their presence said he could not recognise the appellant. They then returned with him to the house and subsequently they took him to the Central Narcotics Bureau where Teo gave him heroin to smoke and asked him to whom Loh Kah was giving the heroin. When he said he did not know he was again assaulted and left in the room for four hours before he made the statement without being first cautioned. Wang gave evidence for the defence. He said that at about 8am on 22 January 1976 he was alone tying up some parcels at the rear of his shop with his back to the front when he felt someone had entered the shop. When he turned around he saw the back of that person leaving the shop. He said he did not know who left the parcel inside the yellow netted bag on the show case.

The other main defence was that the prosecution had failed to prove the presence of diamorphine in the substance contained in the 214 plastic packets and had also failed to prove the quantity of diamorphine present in that substance. This contention depended upon the evaluation of the evidence of Mr Lim Han Yong, a Government chemist attached to the Department of Scientific Studies and the acceptance as correct and accurate of his report which was admitted in evidence and which reads as follows:

I found the content of the exhibit to be as follows:

RN-1 ... One paper parcel containing the following:

(i) Fourteen envelopes each containing ten packets of right brown solids which I analysed and found to contain diamorphine hydrochloride (heroin hydrochloride). I found the 140 packets of solids to weigh a total of 1773g. On further analysis, I found the solids to have an average diamorpine content of 39% weight by weight. The total diamorphine content of these solids is therefore 691.4g. After analysis the remaining solids were put into a plastic bag and marked `RN1`;

(ii) Six envelopes each containing ten packets of purplish brown solids, one envelope containing nine packets of purplish brown solids and one paper packet containing five packets of purplish brown solids which I analysed and found to contain diamorphine hydrochloride (heroin hydrochloride). I found the 74 packets of solids to weigh a total of 930g. On further analysis, I found the...