Mohamed Affandi bin Rosli v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 05 December 2018
• Neutral Citation: [2018] SGCA 87
• Date: 05 December 2018
• Docket Number: Criminal Appeals No 38 and 39 of 2017
• Published date: 11 December 2018
• Plaintiff Counsel: Chia Soo Michael and Hany Soh Hui Bin (MSC Law Corporation) and Sankar s/o Kailasa Thevar Saminathan (Sterling Law Corporation),Ramesh Chandr Tiwary (Messrs Ramesh Tiwary) and Luo Ling Ling (RHTLaw Taylor Wessing LLP)
• Defendant Counsel: Tan Wen Hsien and Carene Poh (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Hearing Date: 10 July 2018
• Subject Matter: Appeal,Criminal Procedure and Sentencing,Break in chain of evidence,Criminal Law,Acquittal,Evidence,Proof of evidence,Misuse of Drugs Act,Statutory offences

Sundaresh Menon CJ (delivering the judgment of the majority consisting of Chao Hick Tin SJ and himself): Introduction

The present appeals pertain to the conviction of two accused persons on a pair of drug charges. The appellants are Mohamed Affandi bin Rosli (“Affandi”) and Mohamad Fadzli bin Ahmad (“Fadzli”). Affandi faces one charge of possession, for the purpose of trafficking, of not less than 132.82g of diamorphine, an offence under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). Fadzli faces one charge of abetting by instigating Affandi to be in possession, for the purpose of trafficking, of not less than 132.82g of diamorphine, an offence under s 5(1)(a) read with s 5(2) and s 12 of the MDA. Both charges carry the mandatory death penalty. While both accused faced other non-capital charges in the proceedings below, the Prosecution sought and obtained orders of discharge not amounting to acquittal in respect of these after the High Court judge (“the Judge”) convicted Affandi and Fadzli on five out of seven charges brought against them (with one charge against Affandi reduced): Public Prosecutor v Mohamad Fadzli bin Ahmad and another [2017] SGHC 233 (“the Judgment”) at [121]–[123] (see also [10]–[12] below).

Background The arrests

At the material time, Affandi was a fire safety supervisor working at Marina Bay Sands (“MBS”). He resided at Block 124, Pasir Ris Street 11, and was the registered owner of a vehicle bearing the registration number SJW 9386 M ("Affandi’s car”). Fadzli was a part-time mover who resided with his sister at Block 498L, Tampines Street 45 (“Fadzli’s flat”) and had charge of a vehicle bearing the registration number SGW 4282 Y (“Fadzli’s car”).

On 12 July 2013, at about 7.45am, Affandi, who was under surveillance, was seen getting on a motorcycle with another person, who was later identified as one Mansor bin Mohamad Yusoff (“Mansor”), at the carpark of his block. They rode off and later at about 8.10am entered the basement carpark of MBS. Officers from the Central Narcotics Bureau (“CNB”) had noted that Affandi’s car was parked at basement 4M of the same carpark and positioned themselves in the vicinity.

At about 3.18pm on the same day, Fadzli left his flat and drove off in his car. At about 3.50pm, Fadzli’s car was seen entering the MBS carpark. It proceeded to basement 4M. Fadzli parked his car near Affandi’s car. He then alighted and met with Affandi behind Affandi’s car. Shortly thereafter, Fadzli returned to his car and drove out of the MBS carpark.

At about 4pm, CNB officers intercepted Fadzli’s car and Fadzli was placed under arrest. CNB officers then escorted Fadzli and his car to an open space in the vicinity. At about 4.22pm, a search was conducted. The items recovered and seized as case exhibits include: one plastic packet (marked as “D1A”) containing: one packet of white crystalline substance (marked as “D1A1”); and one plastic packet (marked as “D1A2”) containing two packets of crystalline substance (collectively marked as “D1A2A”); one packet of white crystalline substance (marked as “C1”); and several plastic bags of groceries.

The search of Fadzli’s car ended at about 4.45pm. From about 4.50pm to 5pm, a statement (P106A) was recorded from Fadzli by Staff Sergeant Muhammad Fardlie bin Ramlie (“SSgt Fardlie”) in a CNB operational vehicle. At about 5.15pm, Fadzli was escorted to his flat. At about 5.55pm, a search was conducted of the unit. Fadzli surrendered one packet (marked as “E1A”) containing 30 slabs of Erimin-5 tablets (300 tablets, collectively marked as “E1A1”) and one packet (marked as “E1B”) containing 26 slabs of Erimin-5 tablets (being a total of 260 tablets, collectively marked as “E1B1”). From about 6.50pm to 6.55pm, a further contemporaneous statement (P106B) was recorded from Fadzli in a CNB operational vehicle. At about 7.22pm, Fadzli was escorted to the Woodlands Checkpoint where K-9 and backscatter searches were conducted on his car. Nothing incriminating was found. At about 10.35pm, Fadzli was escorted to the Central Police Division lock-up, and placed in the custody of the officers in charge of the lock-up.

Meanwhile, shortly after Fadzli’s arrest, at about 4.10pm, CNB officers arrested Affandi at his workplace at the MBS Fire Command Centre. Nothing incriminating was found either at his work station or in his two lockers at work. At about 5.18pm, Affandi was escorted to his car that was parked at the MBS carpark. A search was conducted on the said car and the items recovered and seized as case exhibits include: from under the last row of passenger seats, eight bundles wrapped in black tape (marked as “B1” to “B8”); and from the middle row of passenger seats: one plastic packet (marked as “A1A”) containing three packets of white crystalline substance (marked collectively as “A1A1”) and one packet of white crystalline substance (marked as “A1B”).

At about 6.03pm, Senior Station Inspector David Ng (“SSI David Ng”) recorded a contemporaneous statement (P105) from Affandi in a CNB operational vehicle (“the CNB vehicle”). After the statement was recorded, Affandi was escorted to the Woodlands Checkpoint where K-9 and backscatter searches were conducted on his car. Nothing incriminating was found. Thereafter, Affandi was escorted to his flat, but again, nothing incriminating was found. Affandi was then held in the custody of the CNB.

The seized substances

All seized substances were sent for analysis by the Health Sciences Authority (“HSA”), which found and certified that: the eight exhibits (marked as “B1 A”, “B2a1”, “B3A” to “B8A”) from the eight packets wrapped in black tape and said to have been recovered from the last row of seats in Affandi’s car (see [7(a)] above) contained 132.82g of diamorphine; the plastic packets recovered from the middle row of Affandi’s car (see [7(b)] above) contained not less than 8.14g of methamphetamine. the four plastic packets of crystalline substance taken from Fadzli’s car (see [5] above) contained 38.84g of methamphetamine. the two packets of tablets taken from Fadzli’s flat (see [6] above) contained 560 tablets of nimetazepam.

The charges

Fadzli was charged with: abetting by instigating Affandi to be in possession, for the purpose of trafficking, of 132.82g of diamorphine, which is an offence under s 5(1)(a) read with s 5(2) and s 12 of the MDA (“Charge A”); trafficking by having in his possession, for the purpose of trafficking, 38.84g of methamphetamine, which is an offence under s 5(1)(a) read with s 5(2) of the MDA (“Charge B”); having in his possession 560 tablets containing nimetazepam, which is an offence under s 8(a) of the MDA (“Charge C”); and abetting by instigating Affandi to be in possession, for the purpose of trafficking, of 8.14g of methamphetamine, which is an offence under s 5(1)(a) read with s 5(2) and s 12 of the MDA (“Charge D”).

Affandi was charged with: having in his possession, for the purpose of trafficking, 132.82g of diamorphine, which is an offence under s 5(1)(a) read with s 5(2) of the MDA (“Charge E”); having in his possession, for the purpose of trafficking, 8.14g of methamphetamine, which is an offence under s 5(1)(a) read with s 5(2) of the MDA (“Charge F”); and trafficking in 38.84g of methamphetamine, by delivering the same to Fadzli which is an offence under s 5(1)(a) of the MDA (“Charge G”).

The Judge convicted Fadzli of Charges A, B and C and Affandi of Charge E. As for Charge F, the Judge convicted Affandi on the reduced charge of possession of 8.14g of methamphetamine, which is an offence under s 8 of the MDA (“Reduced Charge F”). The Judge acquitted Fadzli of Charge G and Affandi of Charge D. Thereafter, the Prosecution sought and obtained a discharge not amounting to an acquittal in respect of the non-capital charges (Charges B and C, and Reduced Charge F). These orders were made pursuant to s 232(1)(b) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”).

The two remaining charges, Charges A and E (against Fadzli and Affandi respectively), read as follows:

[Charge A]

on or about 12 July 2013, in Singapore, did abet one Mohamed Affandi Bin Rosli (NRIC No. [xxx]) to traffic in a Class A controlled drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev. Ed.) ("the Act"), to wit, by instigating the said Mohamed Affandi Bin Rosli to be in possession for the purpose of trafficking, eight (8) bundles of granular / powdery substance, which were analysed and found to contain not less than 132.82 grams of Diamorphine, without authorisation under the Act or the Regulations made thereunder, and [he has] thereby committed an offence under section 5(1)(a) read with section 5(2) and section 12, and punishable under section 33(1) of the Act, and further, upon [his] conviction, [he] may alternatively be liable to be punished under section 33B of the Act.

[Charge E]

on 12 July 2013, at or about 5.30 p.m., inside a vehicle bearing registration number SJW 9386M, at lot 134 of the basement 4M carpark at Marina Bay Sands, Singapore, did traffic in a Class A controlled drug listed in the First Schedule to the Misuse of Drugs Act, (Cap 185, 2008 Rev. Ed.) ("the Act"), to wit, by having in [his] possession for the purpose of trafficking, eight (8) bundles of granular / powdery substance, which were analysed and found to contain not less than 132.82 grams of Diamorphine, without authorisation under the Act or the Regulations made thereunder, and [he has] thereby committed an offence under section 5(l)(a) read with section 5(2) and punishable under section 33(1) of the Act, and further, upon [his] conviction under section 5(1)(a) read with section 5(2) of the Act, [he] may alternatively be liable to be punished under section 33B of the Act.

We have emphasised in bold the seized substances that the two...