Mervin Singh and another v Public Prosecutor

• Judge: Chao Hick Tin JA
• Judgment Date: 08 March 2013
• Neutral Citation: [2013] SGCA 20
• Citation: [2013] SGCA 20
• Court: Court of Appeal (Singapore)
• Published date: 13 March 2013
• Docket Number: Criminal Appeal No 18 of 2011
• Plaintiff Counsel: Selva K Naidu (Liberty Law Practice LLP) and Amarick Gill (Amrick Gill & Co)
• Defendant Counsel: Tan Chuan Thye, Daniel Chia, Loh Jien Li (Stamford Law Corporation) and M Lukshumayeh (Central Chambers Law Corporation)
• Subject Matter: Criminal Law,Drug Trafficking
• Hearing Date: 03 September 2012,12 October 2012

Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction

This is an appeal by the appellants against the decision of the trial judge (“the Judge”) in Public Prosecutor v Mervin Singh and another [2011] SGHC 222 (“the Judgment”).

Although they were linked in so far as the factual situation in question was concerned, both appellants were involved in different parts of the same transaction. More importantly, the issues raised as a result were also (as we shall see) different. What is most important in the context of the present appeal is this: Given the different issues raised, a finding of culpability in respect of one appellant would not automatically result in a similar finding in respect of the other appellant. Much would – as is expected in cases involving drug trafficking – depend on the precise factual matrix concerned. Hence, a granular examination of all the relevant facts is imperative.

The facts in the present appeal were straightforward.

Facts

On 27 November 2008, the Central Narcotics Bureau (“CNB”) acted on a tip off and trailed a black Subaru Impreza car (“the vehicle”) from about 2.20pm. The vehicle was driven by one Sallehuddin Bin Mohammad (“Sallehuddin”) who was a close friend of Mervin Singh (“the First Appellant”). The First Appellant was in the front passenger seat, while one Muhammad Rizal Bin Sumani (“Rizal”) sat in the rear passenger seat.

All three of them had spent the night at Sallehuddin’s flat located at Block 317 Woodlands Street 31 #06-184. The First Appellant had asked Sallehuddin to send him to Tampines before sending Rizal back to Toa Payoh.

At about 2.50pm, the vehicle arrived at the carpark of Block 485B Tampines Avenue 9 (“Block 485B”). The First Appellant alighted and walked empty-handed to the void deck of Block 485B. Sallehuddin and Rizal remained in the vehicle. The First Appellant sat on a stone bench near the lift lobby on the ground floor of Block 485B.

While seated at the void deck of Block 485B, the First Appellant made two outgoing calls from his white Samsung mobile telephone to the mobile telephone held by Subashkaran s/o Pragasam (“the Second Appellant”) – one at 2.49pm and the other at 2.54pm.

The transaction that allegedly took place between the First Appellant and the Second Appellant

At 3.04pm, the First Appellant received an incoming call on his white Samsung mobile phone from the Second Appellant’s mobile phone. Moments later, the First Appellant walked towards Lift A of Block 485B. The door of Lift A opened and the Second Appellant walked out. The First Appellant then entered Lift A and carried out a pink detergent box of the brand “Daia” (“the pink box”). He then carried the pink box and returned to the vehicle. The vehicle then left the carpark.

The Second Appellant’s arrest

In the meantime, the Second Appellant had walked to a blue Honda Civic car parked near Block 485A. At around 3.05pm, he was arrested by CNB officers as he was retrieving grocery bags from the boot of that car.

The First Appellant’s arrest

At 3.07pm, the First Appellant received a call on his black Samsung mobile phone from the mobile phone held by one Nizam Bin Hamzah (also known as “Sopak”). Sopak instructed him to meet at a coffeeshop in Tampines called the “Afghanistan” coffeeshop. The First Appellant then told Sallehuddin to drive him to the said coffeeshop. On the way to the coffeeshop, the vehicle was stopped by CNB officers and the trio were arrested at about 3.10pm.

During the arrest, the pink box was found between the First Appellant’s legs on the floor of the front passenger seat. The pink box was not sealed. In the presence of the trio, Senior Staff Sergeant Ng Tze Chiang Tony (“SSSgt Ng”) removed a total of nine packets wrapped in newspaper from the pink box and placed them on the bonnet of the vehicle. After counting the nine packets, SSSgt Ng replaced them in the pink box and asked the trio whom the nine packets belonged to. The First Appellant replied that they were his.

The raid on the Second Appellant’s flat

At about 4.15pm, the Second Appellant was escorted back to his residence at Block 485B Tampines Avenue 9 #10-130 where a search of his room was conducted in his presence. The following items were recovered under a table in the Second Appellant’s room: one pink plastic bag (“the pink plastic bag”) containing one plastic packet of brownish granular substance, later identified to be diamorphine; one blue sealer; one box of aluminium foil; two pieces of aluminium foil, each containing a straw; and one rolled-up note. When questioned, the Second Appellant admitted that the above items belonged to him.

The raid of the First Appellant’s room in Sallehuddin’s flat

The First Appellant’s room in Sallehuddin’s flat was also raided and the CNB officers found two cartons of contraband cigarettes.

The DNA analysis

On 2 December 2008, the pink box and the sheets of newspaper wrapped around the nine packets were sent to the Health Science Authority (“HSA”) for DNA analysis.

DNA profiles were generated from four of the nine plastic packets. Both appellants’ DNA profiles were not found on them.

However, the Second Appellant’s DNA, together with the DNA profiles of unknown persons, were found on the DNA profiles generated from the pink box as well as the two sheets of newspaper used to wrap one of the nine packets.

The First Appellant’s DNA was not found on any of the exhibits sent for DNA analysis.

The testing of the contents of the nine packets

On 3 December 2008, the nine packets were sent to the HSA for analysis. The gross weight of the granular substances in each packet ranged between 453.7g to 455.7g, with a diamorphine content ranging from not less than 17.21g to 25.39g per packet.

The testing of the brownish granular substance found in the Second Appellant’s room

On 5 December 2008, the brownish granular substance found in the pink plastic bag in the Second Appellant’s room was also sent to the HSA for testing. It was found to weigh 452.6g, with a diamorphine content of not less than 20.95g. However, it is not the subject of the present appeal and therefore ought not to – and does not – figure in the analysis that follows.

The decision in the court below

The Judge rejected the defences proffered by both appellants.

In so far as the First Appellant was concerned, the Judge observed thus (see the Judgment at [5]):

The defence of the first accused was that he had no knowledge that he would be trafficking in diamorphine because throughout the relevant times he was under the impression that he was buying and collecting contraband cigarettes for his own business. He called one Nizam bin Hamzah who was known as “Sopak” (“Sopak”) to corroborate his story that he (the first accused) was at Tampines Avenue 7 to collect contraband cigarettes for Sopak. Sopak’s evidence differed slightly in that he (Sopak) was the one who asked the first accused to look for cigarettes. He said that he told the first accused to pick up some cigarettes from someone known as “Ah Boy” if the first accused happened to meet Ah Boy. The thrust of the first accused person’s defence was that he picked up the pink box thinking it contained contraband cigarettes. I do not find the first accused person’s story about collecting cigarettes for Sopak compelling in any way. It was vague, inconsistent, and did not make much sense. He hardly knew Sopak and no details were given as to why Sopak would trust him and vice versa. Since the pink box in fact contained diamorphine, why would Sopak rely on the first accused to carry out the pick-up if the first accused believed that he was picking up cigarettes? No explanation was given as to why Sopak had no worry that the first accused might have taken away the diamorphine himself, or expose Sopak to the authorities if he (the first accused) did not want to be involved in a drug transaction. In any event, Sopak did not corroborate this. Sopak’s evidence under cross-examination was that he did not know about the drugs in the pink box. He also denied talking to “Ah Boy”. I took into account that there might be a possibility that Sopak was trying to avoid implicating himself. This was a transaction that involved the two accused in such a way that neither could have participated without knowing that it was a drop-off and pick-up of the diamorphine found. There was a dispute between counsel for the prosecution and the defence as to whether SI Goh was sufficiently close to see what he testified he saw, namely, that the first accused opening the pink box and looking into it. Having heard the evidence of SI Goh and the first accused, I am inclined to believe SI Goh. Even if he was at a distance from the first accused as the photographs showed, it was close enough, in my opinion, for a narcotics officer looking out for a target suspect to be able to see what he saw.

In so far as the Second Appellant was concerned, the Judge observed as follows (see the Judgment at [6]):

The second accused admitted that he was in possession of the packet of diamorphine found in his room but he claimed that he was keeping that for his friend “Kacong”. He denied everything else. His explanation as to why the telephone records show connections made between his mobile telephone and that of the first accused during the material time just before the arrests was that he (the second accused) had passed his telephone to “Ah Boy” and it was Ah Boy who was speaking to the first accused. He told the court that Ah Boy had mysteriously and suddenly appeared at his flat and knocked on his window. I find the defence of the second accused to be incredible, and the manner in which the second accused recounted the events was not persuasive. His defence of that story under cross-examination was also poor and I am unable to find any reasonable doubt in his favour. The problem for the second...