Low Kok Wai v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 14 January 1994
• Neutral Citation: [1994] SGCA 4
• Docket Number: Criminal Appeal No 16 of 1993
• Date: 14 January 1994
• Year: 1994
• Published date: 19 September 2003
• Plaintiff Counsel: Spencer Gwee (Spencer Gwee & Co) and Aqbal Singh (Sant Singh & Pnrs)
• Citation: [1994] SGCA 4
• Defendant Counsel: Ismail Hamid (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether presumption in s 17 arises where fact of possession not proved but presumed by virtue of s 18,Admissibility of evidence,Evidence,Presumption of trafficking,Statutory offences,Misuse of Drugs Act,Facts in issue,Effect of deletion of words used in previous provision,Whether wrongly admitted,ss 17 & 18 Misuse of Drugs Act (Cap 185),Trafficking in controlled drugs,Construction of statute,Statutory Interpretation,Prejudicial evidence,Criminal Law,Amendment

Cur Adv Vult

The appellant was, on 4 March 1993, tried and convicted on the following charge:

You, Low Kok Wai, are charged that you, on or about 6 November 1991, at about 8.05pm, in motor car No SBD 8785 X parked in front of Blk 151, Bishan Street 11, Singapore, did traffic in a controlled drug specified in Class A of the First Schedule to the Misuse of Drugs Act (Cap 185), to wit, three packets of substance containing not less than 29.62g of diamorphine, which were in your possession in the said motor car SBD 8785 parked in front of Blk 151, Bishan Street 11, Singapore, without any authorization under the said Act or the regulations made thereunder, and you have thereby, by virtue of s 17 of the Misuse of Drugs Act committed an offence under s 5(a) punishable under s 33 of the Misuse of Drugs Act.

He was sentenced to the mandatory punishment of death. He has appealed to this court against the conviction and sentence. We ought to state that two other charges against the accused were stood down and not proceeded with at the trial.

The facts giving rise to the case are as follows. As a result of information received, a team of CNB officers consisting of Low Poh Wah (`NO Low`), Chua Kok Kiong (`NO Chua`), Yap Keng Chuan (`NO Yap`) and Lester Lim (`NO Lim`) arrived at a coffee shop at Bishan Street 11 at about 7.45pm on 6 November 1991 to observe the accused and to maintain surveillance over a red car, Toyota Corolla SBD 8785 X, which was then parked along the street in front of the coffee shop. The accused was arrested after he came out of the toilet of the coffee shop. A search of him was carried out at a staircase landing between the ground floor and the second floor of the block. He was then carrying a briefcase and a Motorola handphone and the following articles, among others, were found in the briefcase:

(i) a brown envelope;

(ii) a red polythene bag with 40 white envelopes;

(iii) a Motorola handphone battery;

(iv) a vehicle hire agreement with a receipt; and

(v) a traffic summons.

Inside the accused`s wallet was found a small packet of granular substance. The packet was cut at one of its corners.

When the accused was questioned by NO Lim in Hokkien whether there was anything in the car, he said `sar liap` which NO Lim and others present understood to mean three pounds of heroin. A literal translation of that expression means `three grains, balls or lumps`. The accused denied that he said anything like that. The trial judge accepted the evidence of the narcotic officers on this point.

Thereafter, the accused led the officers to the car. A car key with a remote control was taken by NO Lim from the accused`s trouser pocket. With the key NO Lim opened the boot of the car. A white plastic bag was found therein. Inside the plastic bag were three bundles, each of which was wrapped in white paper with some Chinese characters written on it. On unwrapping one of the bundles NO Lim found a packet of granular substance wrapped in a plastic bag. The substance in the three bundles was subsequently analyzed to contain not less than 29.62g of diamorphine, a controlled drug listed in the First Schedule to the Act.

The car was rented by the accused from one Lee Kam Hong (`Lee`). At the time, Lee gave him the one and only key and also a remote control. During the one month period before renting the car to the accused, Lee was using the car. Lee had examined and cleaned the boot of the car before the accused took possession of the car.

After his arrest, the accused was taken to the CNB headquarters. There, Acting Senior Narcotic Officer Balakrishnan (`SNO Bala`) took the accused`s wallet from the latter`s pocket and, in it, he found $5,465 in cash. SNO Bala denied finding two pieces of tinfoil in the wallet which could be used for consuming heroin.

A little while later, on the same evening, SNO Bala and a team of CNB officers (including the investigating officer NO Soh Koh Tong) took the accused to his home at Blk 63, Commonwealth Drive, #08-253. In a cupboard of the accused`s room, the narcotic officers found a grey plastic bag which contained the following articles:

(i) a white envelope containing 48 empty polythene packets, a plastic spoon and a metal clip;

(ii) a plastic laundry bag marked with the name of Great Eastern Hotel, containing a weighing scale.

On analysis, the plastic spoon, the metal clip and the weighing scale were found to be stained with diamorphine. The weighing scale could be used to weigh the drug for repacking into smaller packets.

At about 2.40am the following morning a urine sample was taken from the accused. It was found to contain traces of morphine.

On 18 and 19 November 1991, a long statement was recorded by NO Soh from the accused under s 121 of the Criminal Procedure Code. The prosecution attempted to admit the statement in evidence. However, after a voir dire, the learned judicial commissioner, having considered all the circumstances, was not satisfied that the statement was given voluntarily. He refused to admit the statement. Nevertheless, he held that a prima facie case was made out and called upon the accused to enter upon his defence on the ground that as (i) he had rented the Toyota Corolla car from Lee Kam Hong, (ii) he was in possession of the only key to the car, and (iii) the diamorphine was recovered from the boot of the car, a rebuttable presumption of possession arose under s 18(1)(b) of the Act. Under s 18(2), the accused was presumed to have known the nature of the drug. Applying s 17 of the Act, the accused was presumed to traffic in that drug.

Furthermore, the judicial commissioner also held that, even if reliance could not be placed on s 18 of the Act, since the accused had in his possession the key to the car, then, following the meaning ascribed to the word `possession` by Lord Pearce LJ in R v Warner , that constituted a prima facie case of possession of the contents in the car. By s 17, the accused would be presumed to traffic in that drug.

Defence

In making his defence, the accused said that he was a drug addict. He was detained at Chia Keng Prison from October 1987 to September 1990 when he was placed on the day release scheme. He absconded from the day release scheme in October 1990 because he had gone back to drugs and was afraid he would be found out if he had gone for the daily urine tests. He claimed that, between October 1990 and November 1991, he was selling and renting out illegal video tapes and, from this activity, he made about $800 to $1,000 a month. In cross-examination he said he started the business only in May/June 1991. But, towards the end in September and October 1991, that business had slackened somewhat. In addition, he said he also took money from his mother who was then working as a waitress in a nightclub and who said that she earned about $2,000 to $3,000 a month.

The accused said that between October 1990 to November 1991 he smoked about one to two sachets of heroin a day. Sometimes he would smoke with friends, when they could use up to even four sachets. Each sachet would cost between $130 to $150. Sometimes they would smoke heroin the whole day.

The accused said that he rented the Toyota Corolla from his friend Lee Kam Hong at about the end of October 1990. He was only given one key. He shared the use of the car with a Malaysian friend named David. He made a duplicate key for that friend.

On the day of his arrest, the accused went to the coffee shop for dinner. After he had his food he went into the toilet to smoke heroin. He took some heroin from a sachet which he kept in his wallet. To smoke, he used a rolled-up dollar note, a piece of aluminium foil which he had in his wallet and a lighter. After smoking, he kept the aluminium foil back into the wallet as it could be used several times. He admitted that he was then carrying a briefcase and a handphone.

The accused admitted that, on being searched after his arrest, the narcotic officers found 40 white envelopes in a red polythene bag which was in the briefcase he was carrying. The accused said that he bought the envelopes at a sale at Specialist Shopping Centre one or two days earlier. He explained that he had wanted to use them to send Christmas cards to his friends in Chia Keng Prison. He planned to write the friends` names on the envelopes so that he could know how many cards he needed. He, however, agreed in cross-examination that when one buys a Christmas card, it would come with an envelope. He also said that the envelopes had come in a pack of 40 wrapped in paper but he had taken them out of the original wrapping to check whether there were holes in them.

One of the officers did ask him whether there was anything in his car and his reply was `no`. He denied having answered `sar liap` as the three bundles in the boot of the car were actually half pound bundles. If he had said anything at all, he would have said `sar ay buah`, meaning `three halves`. He also denied having led the officers to the boot of the car; it was the other way round.

The accused denied that the things found in the cupboard of his room in his home were his. He said they belonged to a Malaysian friend, David, who did not have a place to stay in Singapore and who used those things to make the sachets. In fact, the accused got the drugs from David. He said David thought that the accused had bought the drugs for resale and, in any case, David asked the accused to keep those things for him. This evidence was in direct contradiction of the evidence of SNO Bala who said that the accused admitted to SNO Bala that those things belonged to the accused. He explained that he did not challenge SNO Bala`s evidence because he was then not paying attention to what SNO Bala was saying. This explanation was rejected by the judicial commissioner, who found that the accused was attentive throughout the trial.

The accused admitted that he knew there were drugs in the car when he was...