Mat Repin bin Mamat v Public Prosecutor

• Judge: Karthigesu JA
• Judgment Date: 28 January 1994
• Neutral Citation: [1994] SGCA 13
• Citation: [1994] SGCA 13
• Defendant Counsel: Jennifer Marie and Foo Cheow Meng (Deputy Public Prosecutors)
• Published date: 19 September 2003
• Plaintiff Counsel: SH Almenoar (Tan Rajah & Cheah) and Ramesh Tiwary (Leo Fernando)
• Date: 28 January 1994
• Docket Number: Criminal Appeal No 30 of 1993
• Court: Court of Appeal (Singapore)
• Subject Matter: Trials,Rights of accused,Whether method of analysis used proper,Criminal Procedure and Sentencing,Interpreter,Inspection,Proof of evidence,Examination by expert,Appellant only understanding Kelantanese dialect,Exhibit,Evidence,Random sampling and visual examination sufficient to identify controlled drug found in plant material,ss 209 & 396 Whether absence of Kelantanese interpreter on the first day of trial resulted in material irregularity Criminal Procedure Code (Cap 68)

The appellant was convicted in the High Court for importing into Singapore not less than 1,026g of cannabis on 9 October 1991, at 6.46am, at customs inspection lane No 3, inward car bay, Woodlands checkpoint, Singapore, thereby having committed an offence under s 7 read with s 33 of the Misuse of Drugs Act (Cap 185) (`the Act`). His appeal to this court against conviction was dismissed by us and we give our reasons for so doing.

The facts are as follows.

In the early hours of 9 October 1991, Customs Officer Lim Tiong Khoon (`CO Lim`) and Higher Customs Officer Png Boon Hock (`HCO Png`) were on duty at lane 3, inward car bay, at Woodlands checkpoint. Their duties involved inspecting motorcycles and scooters for dutiable goods and contraband coming into Singapore.

At about 6.45am, the appellant, riding a blue scooter BAJ 1786 (`the scooter`), entered lane 3 for inspection. CO Lim spoke to the appellant and asked him whether he was carrying any cigarettes to which he replied in the negative. As CO Lim noticed that the appellant appeared nervous and spoke in a trembling voice, he decided to search the appellant`s scooter thoroughly. The scooter was pushed to lane 1 which was closed at that time to facilitate the search.

CO Lim first inspected the compartment on the left side of the scooter and found a pair of pliers and screw drivers. He then directed the appellant to lift the seat of the scooter. This revealed the petrol tank and CO Lim noticed that, of the four screws used to bolt down the tank, one was missing and the other three were loosened. CO Lim used the pliers to remove the screws and asked the appellant to lift up the petrol tank. The appellant was reluctant to do so, turned around and tried to walk away. CO Lim stopped him and asked him in Malay where he was going but the appellant did not answer. He then asked the appellant in Malay whether he was carrying any `barang` (thing). The appellant replied in Malay, `Ada barang, encik` ([I] have something, sir), and when CO Lim asked, `Apa barang?` (What thing?), the appellant replied, `Saya ada satu kilo ganja` (I have a kilo of cannabis).

CO Lim informed HCO Png of what the appellant had said and, in the presence of both customs officers, the appellant lifted up the petrol tank of his scooter. CO Lim retrieved a white plastic bag with the words `Kedai Kain Kay Tack` with a Kelantanese address below. Inside the bag was some plant material which CO Lim believed to be cannabis. CO Lim asked the appellant, `apa ini?` (what`s this?) and the appellant replied, `ganja` (cannabis). The plant material was seized and the appellant arrested.

He was later interviewed by superintendent of customs, Ni Teck Seng (`SCO Ni`), who questioned the appellant as to his place of work. The appellant replied that he worked at Bukit Timah Road and also informed SCO Ni that he had a kidney problem and needed money for an operation.

The plant material seized was subsequently analyzed by Ms Helena Granroth (`Ms Granroth`) of the department of scientific services and found to be not less than 1,026g of cannabis.

With the weight of the presumptions in ss 21 and 18(2) of the Act operating against him, his defence was called. His defence was that the plant material had been planted in his fuel tank without his knowledge by one Mi who had borrowed his scooter for an errand. The learned judge disbelieved him and convicted him of the charge.

Before us, Mr Almenoar did not challenge the learned judge`s finding that the appellant knew of the presence of the plant material hidden in his scooter and that he had imported that plant material into Singapore. Instead, he raised the following two grounds:

The first was that there had been a procedural irregularity in the conduct of the trial as the learned judge had proceeded with the trial without providing a suitable or duly qualified interpreter for the appellant ...

The second was that the plant material carried by the appellant had not been analyzed properly by Ms Granroth to show beyond a reasonable doubt that it was 1,026g of cannabis.

Mr Almenoar submitted that the appellant hailed from Kelantan and could only speak and understand the Kelantanese dialect. Although a suitably qualified interpreter in the Kelantanese dialect was eventually provided for the appellant, this was only after the first day of the proceedings and after ten witnesses had given evidence and seven statements had been admitted in evidence. The absence of a suitably qualified interpreter on the first day of the proceedings had thus resulted in a material irregularity in the trial below.

On the question of interpreters, the relevant provision is to be found in s 209(1) of the Criminal Procedure Code (Cap 68) (`CPC`) which reads as follows:

Whenever any evidence is given in a language not understood by the accused and he is present in person, it shall be interpreted to him forthwith in a language which he understands.

Section 209 and other provisions in the CPC as to interpreters are statutory safeguards to ensure that an accused is substantially able to comprehend the proceedings to enable him to best present his defence. The ability to understand the prosecution case against him will allow him to decide whether to give evidence himself, whether to call witnesses on his behalf or whether to instruct his counsel to rebut any particular piece of evidence given by the prosecution.

However, to that a caveat must be added. Notwithstanding that there has been non-compliance with s 209(1) or any provision requiring the accused`s comprehension of the proceedings, an appellate court will only interfere if the accused has been prejudiced such that there has been a failure of justice. Mere irregularities which do not result in the accused being prejudiced in his defence are defects which can be cured by s 396 of the CPC.

One such failure of justice was occasioned in the recent Privy Council decision of Kunnath v The State . We are indebted to Mr Almenoar for referring it to us.

The facts there were that Kunnath, an uneducated Indian peasant, was charged with drug trafficking. He claimed trial, and at his trial, which was conducted in English, he was represented by experienced counsel and an interpreter had translated the charges to Kunnath as well as his statement from the dock. The interpreter, however, did not translate the evidence of the witnesses to Kunnath who stated that he had not understood what any of the witnesses had said. He was convicted and sentenced to death. His appeal to the Court of Criminal Appeal of...