Low Lin Lin v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 30 August 2002
• Neutral Citation: [2002] SGHC 199
• Docket Number: Magistrate's Appeal No 57 of 2002
• Date: 30 August 2002
• Year: 2002
• Published date: 19 September 2003
• Plaintiff Counsel: Sant Singh and Foo Cheow Ming (Sant Singh Partnership)
• Citation: [2002] SGHC 199
• Defendant Counsel: Hamidul Haq (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Accomplice,Presumption of possession,Accused leaving bag unattended in public place,Whether appellate court should disturb trial judge's assessment of witness's credibility,Credibility of prosecution witness,Corroboration,Whether witness an accomplice,Whether appropriate to draw adverse inference,Whether accused having possession or control of cocaine,Offences,Evidence of witness linking cocaine to accused,Weight of evidence,Possession of cocaine,s 116 illustration (g) Evidence Act (Cap 97, 1997 Ed),Evidence,Adverse inference,Whether witness credible,Whether to treat such witness as an accomplice,Witnesses,Whether prosecution deliberately withholding evidence,Criminal Law,Prosecution's failure to adduce certain evidence,Principles,Prosecution not charging its witness with same offence as accused,Whether invocation of presumption proper,Whether independent corroborating evidence necessary,ss 8(a) & 18(1) Misuse of Drugs Act (Cap 85, 2001 Ed)

Judgment

GROUNDS OF DECISION

The appellant was charged in the district court with possession of 0.27 grams of cocaine, an offence under s 8(a) of the Misuse of Drugs Act (Cap 185). She was sentenced to 18 months’ imprisonment and appealed against her conviction. After hearing her arguments, I dismissed her appeal and now give my reasons.

The agreed facts

2 At about 10.30 pm on 29 September 2000, the appellant met two friends at the Double-O Pub at Mohamed Sultan Road: one Sybil Foo Yen Pin (‘Sybil’) and one Tan Chong Han Jerry (‘Jerry’). Later that night, at about 11.45 pm, the three of them left Double-O go to Velvet Underground, a club at Jiak Kim Street. When they reached Velvet Underground, the appellant met another friend, Lee Soo Han (‘Soo Han’), who was seated at Tables 6 and 7 with a group of friends. The appellant left her handbag on the backrest of the sofa there. The appellant had a few drinks at Velvet Underground before leaving with Jerry and Sybil for Zouk, another club located on the same premises, leaving behind her handbag at Tables 6 and 7 with Soo Han’s party.

3 When the appellant returned alone to Velvet Underground at about 1.30 am on 30 September 2000, she and Soo Han joined another group of people who were seated about three tables away from Tables 6 and 7. Soo Han’s friends, who had originally been at Tables 6 and 7, left Velvet Underground at about 2 am on 30 September 2000, leaving the appellant’s handbag behind. One of Velvet Underground’s staff, Diana Chong, noticed the handbag and informed the manager, Alex Choy. They retrieved the handbag and searched it. When they found a plastic packet of whitish substance inside the wallet, they handed over the handbag to the security manager, Simon Sim.

4 As the Central Narcotics Bureau (‘CNB’) was conducting an operation at Velvet Underground at the time, Simon Sim handed over the handbag to one ASP Jason Tan (‘ASP Tan’). In the meantime, the appellant had returned to Tables 6 and 7 to look for her handbag, and was informed by Diana Chong that it was being held by security at the ticketing booth. When the appellant and Soo Han approached the ticketing booth, ASP Tan held up the handbag and asked generally to whom it belonged. The appellant claimed ownership of the handbag and ASP Tan searched it in her presence. When ASP Tan saw the packet of substance in the wallet, he referred her to Insp Sentilnathan, who searched the handbag again and recovered the packet of substance. When questioned, the appellant claimed that it did not belong to her and that she did not know what it was. Insp Sentilnathan then arrested the appellant.

5 The appellant gave a urine sample to the CNB at 3 am on 30 September 2000. The urine sample tested negative for opiates, cannabis, amphetamines and ketamine. The appellant provided another urine sample on 31 October 2000 which was tested for cocaine but the test also proved negative. The appellant was later charged with possession of cocaine in July 2001.

The prosecution’s case

6 The prosecution’s main witness was Sybil, who testified that she had discussed trying cocaine with the appellant some months before the incident in question. On 28 September 2000, the appellant told Sybil that she had brought back some cocaine from a recent trip to Hong Kong, and the two agreed to meet the next day to try the cocaine. While at Double-O on the night of 29 September 2000, Sybil and the appellant went to a public toilet in the same building complex after failing to find a toilet on Double-O’s premises. There was a queue of women at the toilet and Sybil got into the same cubicle as the appellant. The appellant took a packet of white substance from her wallet and placed some of the substance on the toilet seat cover. She snorted some of the cocaine with a rolled-up currency note and Sybil followed suit. The remaining substance was placed back inside the appellant’s wallet.

7 When Sybil, the appellant and Jerry left Double-O for Velvet Underground and Zouk, as described in the agreed facts, Sybil was carrying her belongings in her hands throughout the entire evening, and did not place them in the appellant’s handbag at any point in time. Sybil stayed at Zouk with Jerry until 2 am when they decided to go home. While leaving, they saw a crowd at the entrance to Velvet Underground and a man in an orange T-shirt hold up the appellant’s bag. When Sybil saw the appellant acknowledge the bag as hers, she immediately left with Jerry as she suspected that the man was a CNB officer and she knew that there was cocaine in the handbag.

8 Sybil had given a statement to the CNB on 31 October in which she had not mentioned consuming cocaine with the appellant in the public toilet. She also stated that she did not know whether the appellant or her friends abused drugs. When asked to explain the inconsistencies between her statement and her testimony, Sybil explained that she did not mention consuming cocaine initially as she was worried about getting into trouble. She also claimed that the appellant had asked her several times, from as early as 30 September 2000, to not tell the truth to the CNB. However, Sybil decided to tell the truth when the CNB contacted her for another statement on 19 February 2001 as she was afraid of getting into more trouble if she continued to lie. Sybil added that, when she informed the appellant that she had made certain admissions in her statement of 19 February, the appellant asked her to change her statement, and threatened her with jail when Sybil refused.

9 The other two witnesses called by the prosecution were Dr Lui Chi Pang from the Narcotics Laboratory at the Health Sciences Authority and Jerry. Dr Lui explained that the test done on the appellant’s urine did not show the absence or presence of cocaine as the Narcotics Laboratory had been asked to test for ketamine. As such, the time range for the test was set for between 4.6 minutes to 9 minutes, outside the range for cocaine or its metabolite, "e-m-e", which was 10.9 minutes and 3.1 minutes respectively. Furthermore, cocaine stayed in the system for only up to five days, such that the second urine sample provided by the appellant one month after her initial arrest would have proved negative in any case.

10 Finally, Jerry testified that, when Sybil and the appellant left to go to the toilet at Double-O, they were away for about 10 to 15 minutes. He did not notice any unusual behaviour when they returned, and did not recall any incident in which Sybil placed her belongings in the appellant’s bag when they were leaving Double-O.

The appellant’s case

11 While the appellant agreed with Sybil’s claim that the two of them had gone to the toilet together while they were at Double-O, and that they had shared a cubicle together, she completely denied taking cocaine that night, or any drugs previously. Indeed, the appellant’s position was that she had left both her handbag and her wallet behind in Double-O when she went to the toilet with Sybil.

12 The appellant also claimed that when she left Double-O for Velvet Underground that evening, Sybil put her wallet and keychain in the appellant’s bag, and that this was not the first time this had happened, as Sybil had the habit of putting her belongings in other people’s bags. When they reached Velvet Underground and the appellant was at Tables 6 and 7, Sybil asked the appellant for permission to remove her (Sybil’s) wallet from the handbag. The appellant agreed and Sybil returned later to tell the appellant that she had taken her wallet, and to ask the appellant to go along to Zouk with her.

13 As for her subsequent retrieval of her handbag from ASP Tan, the appellant claimed that, when she and Soo Han approached the ticketing counter, she noticed a group of men wearing differently-coloured t-shirts, and concluded from their dress and demeanour that they were police officers. She had no qualms about claiming her handbag from ASP Tan as she had nothing incriminating in her bag, and she was thus very shocked when the packet of substance was found inside her wallet.

14 The appellant also denied asking Sybil to lie on her behalf, or to declaring to Sybil that she would never admit to owning the cocaine now that her urine test had come out negative. Although she did contact Sybil in February 2001 when she heard that Sybil had been contacted by the CNB for a second interview, she claimed that she did not press Sybil when the latter declined to talk about her interview.

15 Finally, the appellant accused Sybil of being the real owner of the cocaine, and claimed that the latter had implicated the appellant in order to lift suspicion from herself. She surmised that Sybil had either placed the cocaine in her wallet when Sybil retrieved her own wallet from the appellant’s bag while at Velvet Underground, or that Sybil had sneaked back to Velvet Underground to place the cocaine in the appellant’s wallet while the appellant was busy socialising at Zouk.

The trial judge’s findings

16 The trial judge first considered whether the presumption of possession found in s 18(1)(a) of the Misuse of Drugs Act (the ‘MDA’) operated in the present case. On the evidence adduced, the trial judge found that the appellant had "possession" of her handbag, such that the s 18(1) presumption could be invoked. This led to the further presumption in s 18(2) that the appellant had knowledge of the nature of the drugs. The appellant was hence obliged to rebut the prosecution’s case on a balance of probabilities, which the trial judge felt that she had failed to do.

17 The trial judge was of the further view that, even if the presumptions were not relied on, the evidence adduced was sufficient to prove the appellant guilty beyond reasonable doubt. Although the defence had mounted many attacks on Sybil’s credibility as a witness, the trial judge, after looking at the arguments in detail, concluded that Sybil’s credit had not been...