Lim Swee Seng v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 09 January 1995
• Neutral Citation: [1995] SGCA 4
• Docket Number: Criminal Appeal No 53 of 1993
• Date: 09 January 1995
• Published date: 19 September 2003
• Year: 1995
• Plaintiff Counsel: Yeo Hock Cheong and Yap Tuck Kong (Hock Cheong & Co)
• Citation: [1995] SGCA 4
• Defendant Counsel: Mathavan Devadas (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: Statutory offences,Discrepancy in weight of drug exhibits,Exhibit,Trafficking in controlled drugs,Criminal Law,Appellant seen throwing white plastic bag outside flat,Possession,No evidence or explanation given by prosecution for discrepancy,Proof of evidence,Whether trial judge applied wrong standard of proof,Whether doubt raised as to identity of exhibits,Whether substance analyzed was substance seized,Evidence,(follow title of statute: eg misuse of drugs act),Whether prosecution proved appellant's possession of drugs beyond reasonable doubt,Break in chain of evidence

Cur Adv Vult

The appellant was convicted before the High Court on a charge of trafficking in not less than 32.28g of diamorphine, an offence punishable under s 33 of the Misuse of Drugs Act (Cap 185) (the Act) and was sentenced to suffer death. Against his conviction, he has brought this appeal.

The prosecution`s case

On 31 May 1991, at about 11am, a team of narcotics officers from the Central Narcotics Bureau (CNB) were keeping watch outside the appellant`s flat, Blk 111, Yishun Ring Road, #08-345. The team comprised Narcotics Officers Lester Lim Hang Meng (Lim), Low Poh Wah (Low), Yap Keng Chuan (Yap), Chua Kek Kiong (Chua) and Tan Sok Whee (Tan). Shortly after 11am, they saw the appellant coming out of his flat, and they moved in to arrest him. On seeing them, the appellant quickly threw a white plastic bag, which he was then carrying, out of the corridor and over the balcony and pulled the door of his flat shutting it behind him. The flight of the plastic bag over the balcony was observed by all the five officers; however, none of them observed the path of the plastic bag after it had passed the balcony, and none of them looked over the balcony to see where the plastic bag had landed. Low and Lim handcuffed the appellant, and Yap ran downstairs to retrieve the plastic bag. On reaching the ground floor, on a grass patch below the balcony at the entrance of the appellant`s flat, Yap saw a few bundles wrapped in newspapers scattered within a few steps of each other; he also found a white plastic bag lying nearby. Yap retrieved the plastic bag and the several bundles; altogether there were seven bundles. He placed the bundles into the white plastic bag, and returned to the 8th floor.

In the meantime, the officers had gained entry into the flat and were conducting a search. Low found the following items: (i) a white plastic bag containing a daching consisting of a weight, a scale and a plate in the storeroom; and (ii) a Dunhill cigarette box containing six packets of a white granular substance in a pair of trousers hanging on a hook in the appellant`s bedroom.

On entering the appellant`s flat, Yap handed the plastic bag and its contents to Lim. In the appellant`s presence, Lim removed the seven bundles wrapped in newspapers from the plastic bag, displayed them on the floor and unwrapped the newspapers. There were found altogether 53 plastic packets of white granular substance: four bundles contained ten packets each, the fifth bundle contained seven packets, the sixth bundle contained five packets and the last bundle contained one large packet.

Soon thereafter, the investigating officer, Senior Narcotics Officer Chew Khai Chow (Chew), and officers from the Scene of Crime Unit, including the police photographer Cpl S Nadaraja (Nadaraja) arrived. Chew was briefed of the events and he took over the recovered items. The seven pieces of newspaper (which wrapped the packets) as laid out there were marked by Chew as A, B, C, D, E, F and G respectively. Later, Chew directed Nadaraja to take 13 photographs, P1 to P13. Photographs P3 to P10 showed the exhibits retrieved by Yap, including the layout of the seven pieces of newspaper and the markings made by Chew. Photograph P13, which shows the location at which Yap recovered the bundles and plastic bag, was taken by Nadaraja under the direction of Chew with the assistance of Yap.

The appellant was taken to the CNB headquarters. There, Chew weighed on an electronic weighing machine, in the presence of the appellant, each of the seven bundles as wrapped in newspapers with its contents (ie the packets containing white granular substance). The total weight of the seven bundles wrapped in newspapers and their contents was 474.11g and that was the quantity of drugs used by Chew to frame the charge against the appellant. Chew said that he weighed the packets as wrapped in newspapers to prevent them from slipping off the weighing machine. He did not weigh the newspaper wrappings separately and subtract from 474.11g the weight of these newspaper wrappings, because he thought it was better for him to send the exhibits in their original form to the Department of Scientific Services (DSS) and let them do the necessary analysis. He said it was CNB`s practice to weigh drugs with their wrappers. Similarly, Chew weighed the Dunhill cigarette box and its contents (ie the six packets containing white granular substance) and arrived at a gross weight of 58.56g.

After weighing, Chew did not mark and seal the drug exhibits straightaway. Instead, the drug exhibits were kept in his personal cabinet in his office. Chew described his personal cabinet as a four-drawer steel cabinet secured with a strong steel bar placed over the drawers of the cabinet and locked with a padlock. Chew said that he was the only person who had the key to the cabinet which was locked. He said that he was sure that those were the only drug exhibits placed in his cabinet on 31 May 1991; that was because the appellant`s case was the only one he `took` that day. The exhibits for the other cases he attended to had been sent to DSS. On being asked how long he kept an exhibit before sending it to DSS, he replied, `Not more than one day, if it is not a holiday.` Chew said that the last case which he handled before the appellant`s case was on 24 April 1991, and that he had no cases during the intervening period between 24 April 1991 and 31 May 1991. He added that the exhibits for that case had already been `sent` (presumably to DSS). Later, in response to queries from the court, Chew clarified that his previous case concerning drugs was on 24 April 1994, and after 31 May 1991, he `took` another case on 18 July 1991 and that one involved opium. Chew said he did not keep any records of the exhibits placed in his cabinet. However, the movement of exhibits for each case which he handled was recorded in his field diary for the particular case. He did not have any document which identified all the cases which he handled.

On the following day, 1 June 1991, at about 10 or 10.30am, Chew marked and sealed the exhibits. Chew agreed that he could have done this on 31 May 1991. The 53 packets containing white granular substance wrapped in newspapers in seven bundles were put into a CNB plastic bag which was then sealed and marked `LIM-1`. The Dunhill cigarette box containing the six packets of white granular substance was also put into a CNB plastic bag which was sealed and marked `LIM-2`. These exhibits were handed by Chew to Dr Saw Chwee Guan (Dr Saw) of DSS at about 11.55am that day. After receipt, the exhibits were locked in the DSS strong room until they were analyzed in May 1992.

Dr Saw testified that on 1 June 1991, at about 11.55am, he received from Chew two exhibits for analysis marked `LIM-1` and `LIM-2` respectively. He found in exh LIM-1 53 packets of powdery granular substance. The 53 packets were wrapped in seven pieces of newspaper and those seven pieces of newspaper were marked A to G respectively but the packets themselves were not marked. The seven pieces of newspaper were produced and admitted in evidence. Dr Saw found that the contents of the 53 packets weighed 325.3g. He said that this was arrived at by deducting the weight of the 53 empty packets (which he found was 30.68g) from the weight of the 53 packets with their contents. Dr Saw found in `LIM-2` a Dunhill cigarette box containing six packets of powdery granular substance and the weight of the six packets was 35.37g. Dr Saw analyzed the white granular substances in `LIM-1` and `LIM-2` and issued a certificate in respect of each under s 16 of the Act. He certified that the white granular substance in `LIM-1` contained not less than 32.28g of diamorphine and the substance in `LIM-2` contained not less than 3.42g of diamorphine. Dr Saw also testified on how he prepared the samples for analysis and how he ensured that the samples tested were homogenous. He was assisted in the instrumental part of the analysis by two technicians: Tan Wang Chwee and Loh-Ong Keow, whom he supervised in their use of the instruments to ensure the accuracy of the analysis. The technicians gave evidence on how they carried out their respective parts of the analysis.

In the course of the trial, at the instance of defence counsel, Chew weighed the seven newspaper wrappings in court on an analogue weighing machine which counsel provided. The wrappings were found to weigh 40g. Adding 40g to the weight of 355.98g obtained by Dr Saw for the 53 packets and their contents, defence counsel arrived at the weight of 395.98g, which represented the gross weight of the 53 packets and their contents with the seven newspaper wrappings. There was therefore a discrepancy of 78.13g between the gross weight given by Chew (474.11g) and that so arrived at on the basis of the weight measured by Dr Saw.

The prosecution sought to admit in evidence a statement made by the appellant under s 121 of the Criminal Procedure Code (Cap 68) and recorded by Chew on 3 June 1991 (the s 121 statement). The defence objected to the admissibility of that statement. Accordingly, a voir dire was conducted and at the conclusion, the trial judge found that the prosecution had proved beyond reasonable doubt that the statement was made by the appellant without any inducement, threat or promise proceeding from a person in authority. He therefore admitted the statement (exh P27) in evidence after certain parts thereof which contained irrelevant and prejudicial material were deleted. In the statement, the appellant stated, inter alia, that he obtained a pound of heroin for resale. He then packed it into 59 packets and wrapped them up in bundles in newspapers, namely, four bundles each containing ten packets, one bundle containing seven packets, one bundle containing five packets and one bundle containing one large packet, and then placed the seven bundles in a plastic bag. He kept the remaining six packets of heroin in a...