Mahdi Bin Ibrahim Bamadhaj v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 16 April 2003
• Date: 16 April 2003
• Docket Number: Magistrate's Appeal No 2 of 2003
• Court: High Court (Singapore)

Mahdi bin Ibrahim Bamadhaj

Plaintiff

and

Public Prosecutor

Defendant

[2003] SGHC 95

Yong Pung How CJ

Magistrate's Appeal No 2 of 2003

High Court

Criminal Law–Controlled drugs–Trafficking–Whether Prosecution proved that drugs were in possession of accused–Whether accused rebutted presumption that drugs in his possession were for the purposes of trafficking

The appellant was arrested and brought by Central Narcotics Bureau (“CNB”) officers to an apartment. The CNB officers used a bunch of keys seized from the appellant to open the front door of the apartment. Drugs and drug paraphernalia were found in the apartment. The appellant also tested positive for consumption of ketamine and methamphetamine. The appellant contended that he did not stay in the room of the apartment, in which the drugs were found, on a regular basis. The appellant was convicted and sentenced to a total of 20 years of imprisonment and 22 strokes of the cane for 11 drug-related charges. The accused appealed against conviction and sentence.

Held, dismissing the appeal:

(1) The appellant had physical control of the room in which the drugs were found. The appellant also had the requisite mens rea needed for “possession”: at [19] and [23].

(2) Exclusive possession of the room in which the drugs were found was not a pre-requisite to find that the appellant had actual physical control of the drugs. An allegation that the drugs were not the appellant's ie that they were planted by others who might have had access to the room, went to the mental element of the offence. Raising this allegation in the hope that it negated “physical control” was fruitless: at [20].

Fun Seong Cheng v PP [1997] 2 SLR (R) 796; [1997] 3 SLR 523 (folld)

Gulam bin Notan Mohd Shariff Jamalddin v PP [1999] 1 SLR (R) 498; [1999] 2 SLR 181 (refd)

K D Chandran v PP Magistrate's Appeal No 207 of 1998 (refd)

Lim Ah Poh v PP [1992] 1 SLR (R) 192; [1992] 1 SLR 713 (folld)

Loo Pei Xiang v PP Magistrate's Appeal No 205 of 1997 (refd)

Low Kok Wai v PP [1994] 1 SLR (R) 64; [1994] 1 SLR 676 (folld)

PP v Yeo Choon Poh [1993] 3 SLR (R) 302; [1994] 2 SLR 867 (refd)

Shamsul bin Abdullah v PP [2002] 2 SLR (R) 838; [2002] 4 SLR 176 (folld)

Misuse of Drugs Act (Cap 185, 1998 Rev Ed) ss 17, 18

Syed Ahmad Alwee Alsree (Billy & Alsree) for the appellant

Amarjit Singh (Deputy Public Prosecutor) for the respondent.

Yong Pung How CJ

1 This was an appeal against the decision of District Judge Teoh Ai Lin to convict the appellant Mahdi bin Ibrahim Bamadhaj of nine drug related charges.

Facts

2 Mahdi bin Ibrahim Bamadhaj (“the appellant”) was arrested on the evening of 13 March 2002 at a party held at a Goodwood Park Service Apartment. Others at the party were also arrested. They included Julia Suzanne Bohl (“PW9”), Hamdan bin Mohd (“PW10”), and Sunaiza bte Hamzah (“DW1”). The CNB officers who raided the apartment found a packet of Ketamine at the balcony of the apartment. The raid was conducted at 8.15pm.

3 At 9.15pm on the same night, the appellant, Julia and Hamdan were taken from the Goodwood Park Service Apartment to apartment #04-05 Balmoral Court (“the Balmoral Apartment”). This was done because the CNB officers had reports that the appellant and one “Ben” were using the Balmoral Apartment to store drugs which they trafficked. Ben was Julia's boyfriend and it was not disputed that Ben stayed with Julia in the Balmoral Apartment. Julia was the tenant of this apartment. This was proved by the fact that she was named as tenant in the rental agreement. The appellant's name was included as an “intended occupier” in the rental agreement. Ben was still at large at the time of the appeal.

4 The CNB officers tried the bunch of four keys seized from the appellant to open the front door of the Balmoral Apartment. One of the keys did in fact open the Balmoral Apartment's front door.

5 Drugs were found in the master bedroom, second bedroom (“Room A”) and living room. The CNB officers found an Umbro Haversack in Room A which contained a host of drugs, a weighing scale and a digital weighing scale.

6 The Balmoral Apartment was often used for “drug parties” where ketamine and ecstasy were freely available. There was a steady stream of visitors who came for these parties. These party-goers included friends of Julia and Ben, and included the friends of the appellant and his girlfriend Sunaiza (“DW1”). Hamdan was often on the guest list at these parties.

7 After the apartment was searched, the appellant was taken in for a urine test and was tested positive for consumption of ketamine and methamphetamine.

8 On 15 March 2002 the investigating officer for the case, Assistant Superintendent Daniel Tan (“PW8”), conducted a second search of the Balmoral Apartment. Room A was searched in the presence of the appellant. ASP Tan found, inter alia, the following items in a cabinet drawer in Room A:

Item no	Nature
1	An undated yellow application form from Comfort Driving Centre and a receipt dated 17 October 2001
2	An undated Hari Raya card addressed to the appellant
3	An undated birthday card addressed to the appellant
4	12 photocopied medical certificates of various dates from 20 April 2001 to 9 December 2001
5	Two certificates from the Director of Prisons stating when the appellant was in prison
6	A Bank of Singapore internet account user password with the name of the appellant
7	A photograph of a male Malay thought to be Ben

The contents found in the cabinet drawer in Room A pointed strongly to the conclusion that Room A was occupied by the appellant. The appellant denied that he occupied Room A in order to distance himself from the Umbro bag.

9 The appellant originally faced 17 charges, 16 of which related to possession, consumption and trafficking of drugs. At the hearing before the district judge , the Prosecution applied to withdraw three of the drug related charges and stood down the charge relating to the possession of a flip knife. The Prosecution then proceeded on 13 of the drug related charges, and the appellant claimed trial to 11 of these. The two charges to which the appellant did not claim trial were the two drug consumption charges to which he pleaded guilty.

10 When I first looked at this case, I was of the view that it was odd that the appellant, who was just an “occupier” of Room A, was charged with offences more serious than those for which Julia Bohl, who was the actual tenant of the Balmoral Apartment, was convicted. It is for this reason that I requested from the Registry the notes of evidence and the oral grounds for the sentence in the Julia Bohl case. Having read through these documents, I found that there was no unfairness towards the appellant as regards the charges made out against him by the Prosecution. This was so for two reasons. First, it was clear that Julia was not living in the Balmoral Apartment one month prior (though not immediately prior) to the arrests on 13 March 2002. Julia moved out of the Balmoral Apartment in order to study for her exams. She moved into an apartment at Cairnhill Circle for one month, and only returned to the Balmoral Apartment to do her laundry. I found that this fact distanced her from the drugs found in Room A. Secondly, Julia assisted in the...