Masoud Rahimi bin Mehrzad v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 30 December 2016
• Neutral Citation: [2016] SGCA 69
• Plaintiff Counsel: Eugene Thuraisingam, Gino Hardial Singh and Suang Wijaya (Eugene Thuraisingam LLP),Seah Eng Chee Rupert, Dhanaraj James Selvaraj and Sim Jin Simm Alina (Rupert Seah & Co, James Selvaraj LLC and Axis Law Corporation)
• Date: 30 December 2016
• Docket Number: Criminal Appeal Nos 35 and 36 of 2015
• Hearing Date: 10 October 2016
• Subject Matter: Criminal Law -Statutory offences -Misuse of Drugs Act
• Published date: 06 January 2017
• Defendant Counsel: Ng Cheng Thiam and Carene Poh (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Citation: [2016] SGCA 69
• Year: 2016

Chao Hick Tin JA (delivering the grounds of decision of the court):

These two appeals were against the decision of the trial judge in Public Prosecutor v Masoud Rahimi bin Mehrzad and another [2015] SGHC 288 (“the HC Judgment”) which involved a joint trial of two persons, Masoud Rahimi bin Mehrzad (“Masoud”) and Mogan Raj Terapadisamy (“Mogan”). We dismissed both appeals at the conclusion of the hearing and we now set out the reasons for our decision.

Masoud, the appellant in Criminal Appeal No 35 of 2015 (“CCA 35/2015”), was convicted of one count of possession of not less than 31.14g of diamorphine, a Class A controlled drug, for the purpose of trafficking under s 5(1) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). He was given the mandatory death sentence as he was found not to have been a courier within the meanings set out in s 33B(2)(a) of the MDA when committing the offence and he was also not certified by the Public Prosecutor to have provided substantive assistance in disrupting drug trafficking activities within or outside of Singapore pursuant to s 33B(2)(b) of the MDA.

Mogan, the appellant in Criminal Appeal No 36 of 2015 (“CCA 36/2015”), was convicted of one count of trafficking in not less than 14.99g of diamorphine, a Class A controlled drug, under s 5(1) of the MDA. He was sentenced to the mandatory minimum of 20 years’ imprisonment and 15 strokes of the cane.

Background facts

Masoud is a male Singaporean. He was 20 years old and serving his national service at the time of the offence. Mogan is a male Malaysian who was just a month shy of 22 years old at the time of the offence. He was, at the material time, working as a forwarding agent for a shipping company in Johor.

The events leading up to the arrest of the Appellants were largely undisputed. On 20 May 2010, Mogan retrieved four bundles hidden in the false ceiling of a toilet at a coffee shop in Woodlands. At about 7pm, officers from Central Narcotics Bureau (“CNB”), acting on information that Masoud was expecting a drug delivery, began surveillance at Block 293 Bishan Street 22. Masoud occupied a flat there. Shortly before 9pm, Masoud left his flat and drove off in a grey Mazda RX8 (“the Mazda RX8”) which was parked at the multi-storey car park near the block. The vehicle travelled towards the passenger pick-up point at Bishan MRT station where it parked alongside a beige Malaysian-registered Proton Wira (“the Proton Wira”) driven by Mogan. Mogan got out of the Proton Wira and boarded the Mazda RX8. Mogan then passed a black bundle to Masoud, who handed some money to Mogan. Both drove off in their respective vehicles and were subsequently intercepted by CNB officers at different locations.

Masoud’s arrest

Masoud’s vehicle was intercepted at the junction of Henderson Road and Jalan Bukit Merah. A black bundle with the words “BISH 1” and Chinese characters was found on the front passenger seat. The black bundle contained one packet of granular substance and two packets of crystalline substance.

While searching the vehicle, the CNB officers also found a locked compartment at the backseat. Masoud initially denied that there was anything in it. However, when pressed on how to open the compartment, he directed the officer to use the vehicle key. A Mickey Mouse plastic bag (“the Mickey Mouse Bag”), which contained two bundles of a brown granular or rocky substance, was recovered from the locked compartment. The Mickey Mouse Bag contained another transparent plastic bag (“B1A1”) – Masoud’s deoxyribonucleic acid was found on both sides of the masking tape which was on the exterior of B1A1. It is also significant to note that, PW23, DSP Tai Kwong Yong, testified that he could see the contents of the bundles found in the Mickey Mouse Bag without opening them.

Apart from the black bundle and the Mickey Mouse Bag, the CNB officers also recovered a notebook with written entries, three National Registration Identity Cards (“NRICs”) and two driving licences which were later found to be forged. Following the recovery of the drugs, CNB officers conducted a search at his place of residence and found, among other items, two stun guns in his master bedroom.

The substances recovered from Masoud’s vehicle were analysed by the Health Sciences Authority (“HSA”). The HSA results indicated that the black bundle handed from Mogan to Masoud contained not less than 15.5g of diamorphine and not less than 77g of methamphetamine. The Mickey Mouse Bag, on the other hand, was found to contain not less than 15.64g of diamorphine.

Contemporaneous statements

Two contemporaneous statements were recorded from Masoud on the day of his arrest. In his first contemporaneous statement, Masoud denied knowing the contents of the black bundle. He identified Mogan as the person who left the black bundle in his car. In his second contemporaneous statement, Masoud denied knowing what was inside the bundles in the Mickey Mouse Bag, who they belonged to, and how they had found their way into the backseat compartment of his vehicle.

Cautioned statement

In his cautioned statement, Masoud said that he knew Mogan as “Joke”. He claimed that he had met Mogan to collect his phone and Mogan had left the bundle in his car before alighting. He also claimed that he did not realise Mogan had left the bundle in his car until after he had driven a distance. He said that he had no intention of trafficking in drugs because the bundle did not belong to him and he did not know what was inside until he was arrested and it was opened.

Long statements

Three long statements were recorded from Masoud. In his first long statement recorded on 22 May 2010 at 5.58pm, he claimed that he was having Post Traumatic Stress Disorder (“PTSD”) as well as anxiety disorders. He was at the material time a national serviceman. He had no motivation to work and his pay had been taken away because he was always on medical leave. After a row with his father over money issues, his father took away all the furniture in his house and left him with nothing.

In that statement, Masoud gave a detailed account of the events leading up to his arrest. According to Masoud, his sister, Tasha, asked him if he wanted to work as a driver for a Malay male whose name was “Arab”. He agreed and was paid $150 per day. He would drive Arab around to collect money from various people. He suspected that Arab was involved in something illegal but did not probe further. Masoud said that he worked for Arab from the first week of August 2009 until the first week of February 2010, when Arab disappeared all of a sudden. Sometime in mid-February, one of Arab’s bosses, Ah Kiat, contacted Masoud and offered him a job as a driver and to collect money. Masoud did not know what the monies were for but he was told that these were monies owed to Ah Kiat. Masoud accepted the job offer and worked for Ah Kiat until one “Alf” appeared.

One day, Ah Kiat instructed Masoud to go directly to Alf, and not to him (Ah Kiat). Alf then became the one who gave Masoud instructions to collect money and bundles. Masoud said that he did not know what the bundles contained. He would wait at home for people to call him to collect the things upon which he would collect and deliver the things. He would be paid $150 per day for doing that. Masoud said that he used a rental car to collect and deliver the money and bundles, and that the car was rented using a forged driving licence. It was in this context that he was instructed by Alf to collect the bundle from Mogan on 20 May 2010, the day of his arrest.

Masoud identified Mogan as “Joke” and explained that he could recognise Mogan and his vehicle since he had received bundles from Mogan four times. He claimed that he had a bad feeling about the bundle that was handed over by Mogan and his instincts told him that there was something wrong. He also mentioned that he was supposed to deliver the bundle to Alf.

A second statement was recorded from Masoud on 23 May 2010 at 5.47pm. In that statement, Masoud said that he had doubts as to what he was collecting and delivering. Despite his suspicions, he chose to do it because he needed money for his expenses. As for the Mickey Mouse Bag, Masoud explained that Alf had placed it in the locked compartment of the Mazda RX8 two to three days before Masoud’s arrest. That compartment could be accessed from the trunk and the backseat of the vehicle. According to Masoud, after Alf placed the Mickey Mouse Bag in the compartment through the trunk, he (Masoud) opened the compartment from the backseat and reached in to feel what was inside the Mickey Mouse Bag. He claimed that he felt only newspaper and plastic. Masoud also claimed that Alf came over to the backseat to stop him from checking the contents of the Mickey Mouse Bag and that Alf instructed him “not to open it or touch it or let anyone get access to it”. He said that he did not check the Mickey Mouse Bag again because he was afraid that Alf might find out that he had disobeyed instructions. Masoud admitted that he was the only one who drove the car from the day the Mickey Mouse Bag was placed in the compartment to the day he was arrested.

When queried about the entries in the notebook that was found in the Mazda RX8, Masoud claimed that he did not know what those entries meant. He explained that he had been instructed by Alf to “copy down and write [those] things”. Masoud also said that he had not planned on using the stun guns that were found in his residence; he had stolen them from Alf with the intention of keeping them away from Alf.

In his third long statement which was recorded on 25 May 2010 at 11.10am, Masoud added that the bundles in the Mickey Mouse Bag were in his car for three days but he did not ask Alf why he had not taken them from him. On the collection and delivery of bundles, he said that he found “all these very suspicious...