Loh Kim Cheng v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 18 February 1998
• Neutral Citation: [1998] SGCA 13
• Docket Number: Criminal Appeal No 23 of 1997
• Date: 18 February 1998
• Published date: 19 September 2003
• Year: 1998
• Plaintiff Counsel: Low Tiang Hock (Chor Pee & Pnrs) and David Lee Kay Tuan (Ang & Lee)
• Citation: [1998] SGCA 13
• Defendant Counsel: Jennifer Marie and Toh Yung Cheong (Deputy Public Prosecutors)
• Court: Court of Appeal (Singapore)
• Subject Matter: Statement tendered at preliminary inquiry but not included in preliminary inquiry papers through oversight,Whether defence prejudiced by non-production of statement,Whether appellant's assertion of intention to return drugs to owner and to surrender himself to the army constitutes a defence to charge,Statutory offences,Whether judge justified in disbelieving appellant and drawing such inference in circumstances of the case,Criminal Procedure and Sentencing,(follow title of statute: eg misuse of drugs act),Criminal Law,s 122(1)Criminal Procedure Code (Cap 68),Admissibility of evidence- Statement recorded by narcotics officer shortly after arrest,Whether appellant has knowledge of nature of the drugs,Whether statement recorded under s 122(1) Criminal Procedure Code (Cap 68) and inadmissible

Judgment:

KARTHIGESU JA

(delivering the grounds of judgment of the court): The appellant was convicted and sentenced to death on a charge of trafficking in a controlled drug specified in class `A` of the First Schedule to the Misuse of Drugs Act (Cap 185, 1997 Ed) (the Act) by having in his possession for the purpose of trafficking at his flat at Block 438, Ang Mo Kio Avenue 10, #04-1341, Singapore, not less than 32.31g of diamorphine, without any authorisation under the Act or the regulations made thereunder, an offence under s 5(1)(a) read with s 5(2) and punishable under s 33 of the Act. We heard his appeal on 19 January 1998, which we dismissed, without the necessity of hearing the deputy public prosecutor, for the reasons we now give.

2.The appellant who was in the company of one Lee Boon Hwi (Lee) was arrested by a team of officers from the Central Narcotics Bureau (CNB) at the ground floor of Block 438 Ang Mo Kio Avenue 10 as he and Lee came out of the lift servicing the block at about 2.35pm on 1 May 1997. Lee was also arrested; he attempted to escape but was chased by the CNB officers and subdued after a violent struggle before his arrest was effected. In fact a team of CNB officers had kept the lift lobby on the ground floor of Block 438 under surveillance from about 11am that day. ASP William Chew (ASP Chew) and another team of CNB officers arrived at the scene at the time of the arrest and ASP Chew took charge of the appellant. ASP Chew had been monitoring the surveillance over the radio and had heard the message to move in to effect the arrest of the appellant.

3.At the time of his arrest, the appellant had on him, inter alia, two pagers, a mobile phone, $1,037.35 in cash in addition to the cash in his wallet which amounted to $454. At the void deck of Block 438 ASP Chew engaged the appellant in conversation. They spoke to each other in the Hokkien dialect. We will refer to this conversation again later but for present purposes the gist of the conversation was as to where his house keys were, whether he had anything in the house, how much it was, who gave it to him and when. The appellant`s responses were that he had his house keys with him, that he had something in the house, that it was a lot and was given to him by one Ah `A`, a Malaysian, at his flat at about 2am. ASP Chew and two other CNB officers asked the appellant to take them to his flat. When the appellant escorted by ASP Chew and the two CNB officers arrived outside flat #04-1341, the door was unlocked by one of the two keys recovered from the appellant. The other key fitted the padlock on the iron grille gate which was then open.

4.They entered the flat. There was no one in the flat. The appellant led ASP Chew to the master bedroom and drew ASP Chew`s attention to the top shelf of the wardrobe. ASP Chew opened the wardrobe and brought down a large bag that was there. This bag is referred to as `Bag A`. ASP Chew asked the appellant in Hokkien how much there was in the bag and what were the combination numbers of the lock. The appellant answered seven to eight bundles and 969.

5.When Bag A was opened with the use of the combination numbers of the lock given by the appellant and unzipped it was found to contain the following: (i). a Bodypac bag in which were eight large plastic sachets containing a pink substance;

(ii). a red plastic bag in which were 15 brown envelopes, each containing 10 small plastic sachets of pinkish substance;

(iii). another red plastic bag containing three small plastic sachets of pinkish substance and a substantial quantity of empty plastic sachets of the same size;

(iv). an electric plastic sachet sealer, empty plastic sachets, bundles of brown envelopes, an electronic weighing scale, a packet of surgical gloves and a set of keys;

(v). also found in the flat were a mobile phone charger, $1,400 in cash, a tenancy agreement in respect of the flat between the appellant and the owner of the flat and items of clothing.

The pink substances were sent for chemical analysis and found to contain not less than 32.31g of diamorphine. This was the subject matter of the charge.

6.The tenancy agreement above referred to was dated 26 April 1997. The agreed rental was $1,300 per month and the duration of the tenancy was for one year with effect from 28 April 1997. The owner of the flat was called as a witness by the prosecution. She testified that she engaged the services of a property agent to rent out the flat. She had specified to the agent that she would only rent the flat to a married couple. On 25 April 1997 the agent brought the appellant and a Chinese woman to view the flat. She had assumed the Chinese woman was the appellant`s wife. The next day the two of them agreed to rent the flat and signed the tenancy agreement. Upon signing the tenancy agreement, the appellant paid her a total of $2,700 in cash, being one month`s rent in advance, one month`s rent as a deposit and $100 as a deposit for utilities.

7.We should now refer to the two conversations ASP Chew had with the appellant. Before leaving the flat ASP Chew wrote down on a sheet of paper the questions he had asked the appellant at the void deck as well as in the master bedroom and the answers the appellant gave. Having done that he read out what he had written down to the appellant and asked the appellant to sign. The appellant did. ASP Chew also signed. We reproduce below what ASP Chew wrote down and refer to it hereafter as `P74`:

I asked the accused the following questions in Hokkien:

Q: Choo lai soh see leh?

(Where is your house key?)

A: Kor teh.

(Trousers pocket.)

Q: Choo lai wu mi kiah boh?

(Anything in the house?)

A: Wu.

(Yes.)

Q: Lua chuay?

(How much?)

A: Chuay.

(A lot.)

Q: See mi lan hor ler?

(Who gave it to you?)

A: Ah `A` cheu hoo lang.

(Ah `A`, a Malaysian.)

Q: Ter see hor lee?

(When he gave you?)

A: Pua meh cher tan hor wa. Ji tiam kwee

(Midnight gave to me here. 2am plus)

2194109C Sgd

Sgd 1 May 1997

1 May 1997

In the unit No. #04-1341 of Blk 438 Ang Mo Kio master bedroom I asked the accused the following questions in Hokkien:

Q: Lua chuay mi kia thor bag?

(How much in the bag?)

A: Chit phuet liap.

(7 or 8 bundles.)

Q: Soh tow see mi hor beh?

(What is the lock combination number?)

A: Kow luck kow.

(969.)

Sgd Recorder

2194109C Sgd

1 May 1997 1 May 1997

@3.12pm

8.The prosecution sought to admit in evidence the oral statements we have referred to at [para ] 3 and 4 above and P74. However defence counsel raised objections and a voir dire was held. Firstly, he contended that if the oral statements were in the nature of admissions, they were not voluntarily made and secondly, in any event, P74 was inadmissible because it was not tendered at the preliminary inquiry.

9.Dealing with P74, it was painstakingly pointed out to defence counsel by the trial judge that he was mistaken in his submissions because ASP Chew in his evidence at the preliminary inquiry referred to both the oral statements and the fact that he subsequently reduced the oral statements into writing (P74) which he said he now produced. The fact that P74 was not included with the preliminary inquiry papers must have been an oversight. Defence counsel should have called for it and had he done so it would undoubtedly have been produced to him. Certainly defence counsel was not prejudiced by the non-production of P74 for he is recorded in the transcript of the proceedings as saying - `your Honour, really the reason was to demonstrate this before your Honour, that it was not given to me, but I had an inkling from the statement what the contents were.` Mr Low Tiang Hock who appeared before us as appellant`s counsel was defence counsel at the trial.

10.The learned judge dismissed the point as being one without merit but defence counsel persisted in it and it was also the main point of his submissions before us. In substance his...