Lim Young Sien v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 30 March 1994
• Neutral Citation: [1994] SGCA 52
• Docket Number: Criminal Appeal No 2 of 1994
• Date: 30 March 1994
• Year: 1994
• Published date: 19 September 2003
• Plaintiff Counsel: Loo Ngan Chor (Loo Ngan Chor & Co) and Yap Gim Chuan (Yap Gim Chuan & Co) (both assigned)
• Citation: [1994] SGCA 52
• Defendant Counsel: Kamala Ponnampalam (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether statement 'inconsistent or contradictory',Adverse inference for failure to call witness,Criminal Procedure and Sentencing,s 116(g) Evidence Act (Cap 97, 1990 Ed),Confessions,Statements,Invocation of s 147 of Evidence Act,Proof of evidence,Practice of applying for leave to cross-examine,Cross-examination on inconsistency,Whether mandatory or procedural,Attendance,s 147 Evidence Act (Cap 97, 1990 Ed),Evidence,Admissibility,Whether statement given by the appellant amounted to confession,Previous inconsistent statement,Standard of proof,Applicability of rule where prosecution proves all elements of charge beyond reasonable doubt,Whether judge allowed to reject previous statement of witness,Distinction between admissibility of evidence and weight given to admitted evidence,Procedure,s 17(2) Evidence Act (Cap 97, 1990 Ed),Witnesses

This was an appeal against a conviction of drug trafficking and a sentence of death under ss 5(a) and 33 of the Misuse of Drugs Act (Cap 185).

The facts

On 1 June 1992, officers from the Central Narcotics Bureau (`CNB`), acting on information received at about 2pm, mounted a surveillance operation on Blk 102, Bukit Purmei Road, #07-68, Singapore (`the flat`). They scouted the vicinity for an observation post and found one at a construction site nearby. They left the vicinity at 2.40pm and returned to the CNB headquarters for further information to be received.

Acting on further information received, they returned to the vicinity at about 8.35pm on the same day and kept watch on the flat. At about 10.20pm, Narcotics Officer Quek Hock Hoe (`NO Quek`), who was stationed at the observation post keeping watch on the flat using binoculars, spotted a slim male Chinese wearing a white long-sleeved shirt entering the flat. NO Quek was unable to say, however, whether the male Chinese was carrying anything as his view was blocked by the parapet wall of the flat. Chief Narcotics Officer Lim Chei Yoo (`CNO Lim`) was immediately informed. At about 10.27pm, NO Quek spotted the same male Chinese leaving the flat and walking down the stairs leading to the lift. NO Chan, who was with NO Quek at the observation post, ran to inform CNO Lim, who was at a bus stop near Blk 102 (`the block`) along Kampung Bahru Road. CNO Lim then joined Narcotics Officer Yeoh Seng Hock (`NO Yeoh`) at the void deck of the block and both of them positioned themselves near the lifts.

Shortly after, one of the lifts opened. A slim male Chinese wearing a light-coloured long-sleeved shirt came out of the lift. He was carrying a blue canvas sling bag (`P55`). Upon seeing CNO Lim and NO Yeoh, he attempted to run. There was a violent struggle before he was, with the help of Senior Narcotics Officer Tan Boon Hock (`SNO Tan`) and another officer, put under arrest. He was later ascertained to be Lim Young Sien, the appellant. He was asked and replied that the bag belonged to him and that it contained money. In fact, it contained $40,000. CNO Lim then asked the appellant for the key to the flat. The appellant replied, `I don`t have. It`s in the house. There is another person in the house.`

While all this was taking place, NO Yeoh and other officers arrested a male Chinese who was sitting in a grey Honda Civic carrying a registration plate SBB1665R. His name was later ascertained to be Kek Bok Chye (`Kek`). The officers then brought him to the void deck near where the lifts were. With the exception of NO Yeoh and NO Jaafar bin Sohot, all the officers, Kek and the appellant went into the same lift and proceeded to the ninth floor. At the ninth floor lift landing, CNO Lim instructed the rest to remain there and guard the two arrested, while NO Riduan bin Mohd Noor, NO Iqbal bin Mohamed and himself would go to raid the flat. At the eighth floor landing, however, they saw a male Chinese walking up the stairs who appeared very nervous upon seeing the officers. He was also arrested and later ascertained to be one Koh Kim Seng (`Koh`). After bringing Koh up to the ninth floor lift landing, the three officers proceeded to the flat. The main door to the flat was locked while the hall windows were left open. After an unsuccessful attempt to kick open the door, NO Riduan used a broomstick to force open the latch. No one was then in the flat. Lying on the floor in the master bedroom were one red and black canvas sling bag (`P44`), one black clutch bag and some other items.

CNO Lim then asked NO Iqbal to have the three arrested persons brought to the flat. CNO Lim and SNO Tan questioned the appellant in Hokkien as to the contents of P44 and its weight. The appellant replied ` pei hoon ` (a colloquial term for heroin in Hokkien) and said that they weighed 14 pounds. The appellant told CNO Lim that the black clutch bag contained $4,000-$5,000. He also told CNO Lim that the keys to the flat were placed at the window grille. When asked how much money there was in the blue canvas sling back, ie P55, he replied `$40,000 and I got the leow from him`, pointing to Kek, who replied `say properly`, to which the appellant said `no choice, got it`. ` Leow ` means, literally, `ingredients` in Hokkien. In the context used, it meant the drugs that had fetched him the money contained in P55. The appellant also told CNO Lim that the flat was rented on his behalf by a friend from an Indian family. The owner, who was traced through a neighbour, arrived at 11.27pm and said that the flat had been rented by Koh. In one of the drawers, a spoon, four candles, a stack of plastic packets and an electronic weighing scale suitable for weighing small quantities of substance were found.

The 14 packets found inside P44 were sent to the department of scientific services (`DSS`) for analysis. They weighed 6,373g and, according to Dr Saw Chwee Guan from the DSS, contained diamorphine of not less than 804g. Kek, Koh and the appellant were then charged with having jointly trafficked in a controlled drug found in their possession at the flat. A statement under s 122(6) of the Criminal Procedure Code (Cap 68) (`CPC`) was recorded. In it, the appellant merely said, `I have nothing to say`. It was only admitted in evidence at the request of the defence.

In the course of investigation and before the appellant was charged, but after the s 122(6) statement had been recorded, several statements (`the long statement`) were taken under s 121(1) of the CPC from the appellant by NO Soh Koh Tong over a period between 5 June 1992 and 2 July 1992. As voluntariness was challenged, a trial within a trial was held. At the voir dire, the appellant contended that at about 2.30pm on 8 June 1992, just before the investigating officer was about to continue recording his statement, a senior officer of the CNB, one Teo Ho Peng, came to the room and said to the appellant, `... the statement should not be like that ... . If you maintain this, I want the three of you to die. I have so far hung 20-odd persons.` The learned trial judge held that it was for the prosecution to prove that the statement had been made voluntarily. As a result, a substantial part of the long statement was held inadmissible. That part of the long statement taken before the accused was threatened was, nevertheless, admitted, as the trial judge was satisfied that, in respect of it, there was no inducement, threat or promise. The admission of that part of the long statement was not challenged on appeal.

In the long statement, the appellant said that he was introduced to Kek by an addict friend. Through Kek he became acquainted with one Ipoh Chye who was a Malaysian from Perak. The appellant then asked Ipoh Chye to supply him with drugs. He got Koh to rent a flat for him because he did not want the authorities to know about his drug trafficking activities. He paid a downpayment of $700. The rent was also $700. On 1 June 1992, sometime between 9 and 10pm, Ipoh Chye called him and asked him to collect some drugs from a car parked at the Stadium Road car park. The appellant went there and collected a bag from the car boot which he took home in a taxi.

At the trial

Before the learned trial judge, counsel for the appellant argued that the CPC gave no power to the police to record statements, whether written or oral, from accused persons. Section 121 of the CPC only conferred on the police the power to record statements from witnesses. Any statement taken from the appellant after he had been accused was therefore, so counsel argued, in breach of art 9(1) of the Constitution. After hearing counsel`s extensive submission, the trial judge held that the police had the power to record statements from the appellant under s 121(1) of the CPC. The appellant did not, however, appeal on this point. Neither, in our opinion, was it appealable. The trial judge rightly pointed out that the point had been decided by this court in Mohamed Bachu Miah & Anor v PP .

At the close of the prosecution case, the learned trial judge was satisfied that the prosecution had established a prima facie case against the appellant and accordingly called for his defence. The appellant elected, as he was entitled to, to remain silent and called no other evidence. On the totality of the evidence before the court, the trial judge was satisfied beyond reasonable doubt that the appellant was guilty as charged. Accordingly, the appellant was convicted and sentenced to suffer death.

The appeal

Several points of appeal were raised before us by counsel for the appellant. First, it was argued that there was no evidence of one essential element of the charge, namely, the act of transporting. Secondly, the learned trial judge erred in his treatment of WNO Doreen Lek`s evidence. Thirdly, the trial judge failed to draw adverse inferences against the prosecution for not calling Kek and Koh as witnesses. As it is more logical to do so, we will consider the second issue first, before returning to deal with the first and third issues.

WNO Doreen Lek`s evidence

In her statement tendered at the preliminary inquiry, WNO Lek testified that, at about 10.10pm that evening, while she was at the void deck of the block, she saw a male Chinese wearing a white shirt and dark pants alighting from a taxi and then walking up to the void deck. She stated that the bag carried by the male Chinese was blue in colour and identified P55 as the bag. Moreover, she identified the appellant as the male Chinese she had seen. At the trial, however, she told the court that she could not make any positive identification, either of the male Chinese or, more importantly, of the...