Moad Fadzir bin Mustaffa v Public Prosecutor and other appeals

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 25 November 2019
• Neutral Citation: [2019] SGCA 73
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeals Nos 12, 14 and 18 of 2019
• Year: 2019
• Published date: 12 December 2019
• Hearing Date: 20 September 2019
• Plaintiff Counsel: Peter Keith Fernando and John Tan (Leo Fernando LLC) and Shobna d/o V Chandran, Nicolette Lee and Abhinav Ratan Mohan (Dentons Rodyk & Davidson LLP)
• Defendant Counsel: Lim Jian Yi, Sarah Siaw and Wu Yu Jie (Attorney-General's Chambers),Eugene Singarajah Thuraisingam and Chooi Jing Yen (Eugene Thuraisingam LLP)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act
• Citation: [2019] SGCA 73

Tay Yong Kwang JA (delivering the judgment of the court): The charges

Moad Fadzir bin Mustaffa (“Moad Fadzir”) and Zuraimy bin Musa (“Zuraimy”) were tried jointly in the High Court on the following related charges:¹

Moad Fadzir bin Mustaffa

You, Moad Fadzir bin Mustaffa, are charged that you, on 12th April 2016, at or about 12.15 a.m., at the vicinity of Blk 623 Woodlands Drive 52, Singapore, together with one Zuraimy bin Musa, NRIC No. XXXXXXXXX, in furtherance of the common intention of both of you, did traffic in a controlled drug specified in Class ‘A’ of the First Schedule to the Misuse of Drugs Act (Cap 185, 2008, Rev Ed), to wit, by having in your possession for the purpose of trafficking, four packets of granular substances that were analysed and found to contain not less than 36.93 grams of diamorphine, without any authorization under the said Act or Regulations made thereunder and you have thereby committed an offence under section 5(1)(a) read with section 5(2) of the Misuse of Drugs Act read with section 34 of the Penal Code (Cap 224, 2008 Rev Ed) which offence is punishable under section 33(1) of the Misuse of Drugs Act.

Zuraimy bin Musa

You, Zuraimy bin Musa, are charged that you, on 12th April 2016, at or about 12.15 a.m., at the vicinity of Blk 623 Woodlands Drive 52, Singapore, together with one Moad Fadzir bin Mustaffa, NRIC No. XXXXXXXXX, in furtherance of the common intention of both of you, did traffic in a controlled drug specified in Class ‘A’ of the First Schedule to the Misuse of Drugs Act (Cap 185, 2008, Rev Ed), to wit, by having in your possession for the purpose of trafficking, four packets of granular substances that were analysed and found to contain not less than 36.93 grams of diamorphine, without any authorization under the said Act or Regulations made thereunder and you have thereby committed an offence under section 5(1)(a) read with section 5(2) of the Misuse of Drugs Act read with section 34 of the Penal Code (Cap 224, 2008 Rev Ed) which offence is punishable under section 33(1) of the Misuse of Drugs Act.

At the time of the incident stated in the charges, Moad Fadzir was almost 37 years old and Zuraimy was 47 years old.

Both Moad Fadzir and Zuraimy claimed trial with each alleging that the four packets containing diamorphine belonged to the other. The High Court Judge (“the Judge”) found Moad Fadzir guilty on his charge and convicted him: Public Prosecutor v Moad Fadzir bin Mustaffa and another [2019] SGHC 33 (“Judgment”) at [9]. The Judge found that Moad Fadzir did not satisfy any of the requirements of s 33B(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). Accordingly, the Judge imposed the mandatory death sentence on Moad Fadzir.

As for Zuraimy, the Judge was not satisfied that the Prosecution had proved the charge against him beyond reasonable doubt. The Judge amended the charge against Zuraimy to one for the offence of abetting Moad Fadzir’s possession of diamorphine, as follows (Judgment at [18]):

You, ZURAIMY BIN MUSA, are charged that you, between the evening of 11th April 2016, to at or about 12.15am on the 12th April 2016, did abet by intentionally aiding one Moad Fadzir bin Mustaffa, NRIC No. SXXXXX12F, to possess a Class ‘A’ controlled drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, 2008, Rev Ed), namely, four packets of granular substances that were analysed and found to contain not less than 36.93 grams of diamorphine, without any authorisation under the said Act or the Regulations made thereunder, to wit, by directing, arranging and accompanying Moad Fadzir bin Mustaffa to Blk 157 Toa Payoh Lorong 1 to collect the four packets of granular substances, and you have thereby committed an offence under section 8(a) read with section 12 and punishable under section 33(1) of the Misuse of Drugs Act.

The Judge found Zuraimy guilty on the above amended charge and convicted him accordingly (Judgment at [19]). After hearing submissions on sentence from the Prosecution and from counsel for Zuraimy, the Judge sentenced Zuraimy to the maximum term of ten years’ imprisonment with effect from 12 April 2016, the date of his arrest.

The factual background in the Agreed Statement of Facts

Much of the factual background was not in dispute. The following facts are stated in a 19-page Agreed Statement of Facts which counsel for Moad Fadzir, counsel for Zuraimy and the Prosecution agreed upon.

On the night of 11 April 2016, Moad Fadzir received a phone call from someone known to him as “Abang” while he was in a night class at Singapore Polytechnic. After the night class at about 10pm, Moad Fadzir went to meet Zuraimy at Block 1 Holland Close. He then drove a car to Block 157 Toa Payoh with Zuraimy in the front passenger seat. After the car was parked at the loading/unloading bay there, an unknown Indian man walked to the driver’s side and threw a white plastic bag through the front window and it landed on Moad Fadzir’s lap. Moad Fadzir passed the white plastic bag to Zuraimy who tied it. The white plastic bag was subsequently placed in Moad Fadzir’s black helmet sling bag (“black bag”) in the car.

Moad Fadzir then drove Zuraimy back to Block 1 Holland Close. At about 11.41pm, Zuraimy alighted along Commonwealth Avenue West and walked towards Block 1 Holland Close. Moad Fadzir then drove the car, with the black bag inside, to his residence at Block 623 Woodlands Drive 52.

Unknown to both accused persons, Central Narcotics Bureau (“CNB”) officers were in the vicinity of Block 156A Toa Payoh Lorong 1 looking out for them. The CNB officers saw Moad Fadzir’s car arriving and then leaving the location shortly thereafter. They followed Moad Fadzir’s car as it proceeded to Holland Close. When Zuraimy alighted and walked towards Block 1 Holland Close, a team of CNB officers tailed him there. Another team of CNB officers continued to monitor and follow Moad Fadzir’s car to Block 623 Woodlands Drive 52. There, he stopped and remained in the car for about seven minutes. When he alighted from the car at around 12.15am on 12 April 2016, the CNB officers moved in and arrested him. Zuraimy was arrested by CNB officers separately later in the morning of 12 April 2016 when he came down from his residence.

When Moad Fadzir was arrested, he was carrying the black bag from the car. Inside the white plastic bag was a red plastic bag containing four bundles wrapped in black tape. These “four black bundles” were the four packets of granular substances mentioned in the respective charges. During his arrest, some items fell from his body to the ground. Among these were a packet of granular substance, a Sampoerna cigarette box, a packet of crystalline substance, a stained straw and a packet containing two yellow tablets and some tablet fragments. After his arrest, he was brought up to his residence. Inside the flat, the CNB officers found one packet of granular substance from the drawer of the table in his bedroom and a digital weighing scale on his bed. A search conducted on the car that he was driving found nothing incriminating.

Investigations continued with Senior Station Inspector (“SSI”) Tony Ng from the CNB recording a contemporaneous statement (“P84”) from Moad Fadzir inside a CNB vehicle from about 1.35am to 2.35am. At about 3am, SSI Tony Ng recorded a further contemporaneous statement (“P85”) from Moad Fadzir inside the CNB vehicle.

At about 4.28am, the CNB officers and Moad Fadzir arrived at the CNB Headquarters. Moad Fadzir was asked to provide urine samples. The exhibits that were seized were processed by the investigating officer, Woman Assistant Superintendent (“W/ASP”) Michelle Sim. At about 8.20am, Moad Fadzir was placed in the lock-up.

At around 10.50am, Moad Fadzir was brought out of the lock-up for a medical examination. After that was done, at about 11.37am, W/ASP Michelle Sim recorded a cautioned statement from him pursuant to s 23 of the Criminal Procedure Code (“CPC”) (Cap 68, 2012 Rev Ed). The recording was completed at about 12.15pm. W/ASP Michelle Sim recorded further statements from him on 17, 18 and 19 April 2016.

On 13 April 2016, Moad Fadzir was admitted to the Complex Medical Centre (“CMC”) for drug withdrawal assessment. He was discharged from the CMC on 15 April 2016.

Cautioned statements were also recorded by W/ASP Michelle Sim from Moad Fadzir on 19 April 2016 in respect of various charges. He chose to speak in English. After Assistant Superintendent Lucas Seah took over Moad Fadzir’s case, he recorded another statement from him on 31 August 2016.

Zuraimy was arrested at about 6.35am on 12 April 2016 when he came down from his flat in Block 1 Holland Close. A search conducted at the flat found nothing incriminating. At about 7.20am, a contemporaneous statement was recorded from him inside a CNB vehicle. He was then escorted to his official address at a flat in Woodlands. A search in that flat, and later of his body at the CNB, also uncovered nothing incriminating. He gave urine and blood samples during the investigations.

A cautioned statement was recorded from Zuraimy at 3.35pm on 12 April 2016. Further statements were recorded from him on 14, 15 and 17 April 2016 and on 31 August 2016.

Moad Fadzir’s urine samples tested positive for monoacetylmorphine and methamphetamine and negative for a variety of other controlled substances. Zuraimy’s urine samples tested negative for any controlled substance.

Both accused persons did not question the integrity of the processing of the drugs during investigations. Both accepted that the four black bundles seized from Moad Fadzir contained not less than 36.93g of diamorphine as stated in their charges.

Moad Fadzir, Zuraimy as well as the Prosecution appealed against the Judge’s decision, resulting in the following three appeals before us: in Criminal Appeal No 12 of 2019 (“CCA 12”), Moad Fadzir appealed...