Mohamed Emran bin Mohamed Ali v Public Prosecutor

JurisdictionSingapore
CourtHigh Court (Singapore)
JudgeTay Yong Kwang J
Judgment Date27 June 2008
Neutral Citation[2008] SGHC 103
Citation[2008] SGHC 103
Plaintiff CounselS K Kumar (S K Kumar & Associates)
Subject MatterState entrapment,Failure to prosecute entrapping state agent,Section 23 Misuse of Drugs Act (Cap 185, 2001 Rev Ed),Constitutional Law,Equal protection of the law,Whether entrapped person's rights to equal protection breached,Evidence,Article 12 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint),Whether state agent provocateur protected from disclosure,Admissibility of evidence,Drug trafficking
Defendant CounselDavid Khoo (Attorney-General's Chambers)
Docket NumberMagistrate's Appeal No 117 of 2007
Published date02 July 2008
Date27 June 2008

27 June 2008

Tay Yong Kwang J:

1 The appellant Mohamed Emran Bin Mohamed Ali was charged in the District Court on one count of drug trafficking and a separate count of having in his possession paraphernalia for the purposes of consuming controlled drugs. He claimed trial to the trafficking charge. At the end of the trial, the District Judge (“DJ”) convicted the appellant on the trafficking charge. Subsequent to the appellant’s conviction on the trafficking charge, he pleaded guilty to the possession charge. He was then given the minimum sentence of five years imprisonment and five strokes of the cane for the trafficking charge and a sentence of four months imprisonment on the possession charge. Both sentences were ordered to run concurrently. The present appeal against the DJ’s decision in PP v Emran Bin Mohamed Ali and Another [2007] SGDC 256 related only to the appellant’s conviction in respect of the trafficking charge.

2 The events leading up to the appellant’s arrest were not in dispute. According to the appellant, a fortnight or so before his arrest on 22 November 2006, he was introduced to one Kechik through a mutual acquaintance. Unknown to the appellant, Kechik was actually playing the role of an agent provocateur in a CNB-sanctioned sting operation targeting drug traffickers. A week after the introduction, Kechik began to call the appellant at his home two to three times daily asking for Subutex on the pretext that he was an addict in desperate need for the drugs as he was suffering from withdrawal symptoms. As the appellant was also an addict who was in the process of weaning himself from Subutex, he empathised with Kechik. In order to placate Kechik, the appellant told Kechik that he would help him procure the drugs, although it was alleged that the appellant actually did not have the intention to do so.

3 A week after the first request for Subutex was made, the appellant finally decided to act on Kechik’s requests. On the day of his arrest, the appellant contacted an acquaintance and asked whether she could supply him with Subutex. He also told her that the Subutex was for Kechik. After obtaining the requisite confirmation from the acquaintance, the appellant then contacted Kechik and arranged a meeting with him. Kechik in turn told the appellant that he was unable to meet the appellant in person and that he would send one Ijat to collect the drugs on his behalf. The appellant subsequently collected two Subutex tablets from his acquaintance. Later, he went to meet Ijat (who was in reality an undercover Central Narcotics Bureau (“CNB”) officer) and passed the two Subutex tablets to Ijat in return for $300. The appellant was then placed under arrest.

The decision below

4 In the court below, counsel for the appellant did not dispute his client’s mens rea and actus reus for the offence of trafficking. Instead, counsel submitted that the appellant’s defence was one of entrapment as he was incited and instigated by a state agent to traffic in drugs. In answer to this argument, the DJ referred to How Poh Sun v PP [1991] SLR 220 (“How Poh Sun”), where the Court of Appeal held that entrapment was not recognised as a substantive defence in Singapore, and rejected the appellant’s submission. Further, the appellant’s credibility as a witness was also called into question by the DJ (see the relevant paragraphs of the grounds of decision reproduced hereunder).

38. As stated in the preceding paragraphs, our jurisprudence clearly does not recognise the defence of entrapment as a valid defence (How Poh Sun v PP). On that account alone, Emran would fail in his defence. However, for the sake of completeness, it would be useful to scrutinise and examine the role of Kechik and the circumstances leading to the commission of the offence. It is clear from the evidence that Emran was the target of a classic sting operation of the kind normally conducted by CNB to ferret out and apprehend drug pushers. In the prosecution of the sting operation, it would be reasonable to assume that both Kechik and [Ijat] would have concocted stories and lies in order to allay any doubt in Emran’s mind about their bona fides. Although this method might seem repulsive to some, it is nevertheless a necessary evil in the fight to combat the menace of drugs in our society. From the evidence, I do not accept that Emran had been subjected to undue harassment such that he had been coerced into committing the offence. I am however satisfied that the drug sale was a straight-forward drug transaction for purely commercial reasons. I have grave doubts about Emran’s credibility as a witness.

39. Emran’s described Kechik as a total stranger. They had only been introduced two weeks prior to Emran’s arrest. He claimed that he does not easily trust a stranger. So that was why he did not refer Kechik to his other friends to obtain the drugs. He said he did not like to introduce a stranger to his friends. He also claimed that he would not help any of his addict friends to obtain Subutex because he knew that it was against the law. Yet despite all these assertions, he went out of his way to help Kechik to obtain the Subutex. When asked to explain this untenable position, he contradicted himself by saying incomprehensibly that he did that because Kechik and him had already met as friends. Further, he had taken pity on Kechik because he believed, from Kechik’s tone of voice, that Kechik was suffering from drug withdrawal. His weak explanations did not clear up the murkiness of his evidence.

40. I am also not satisfied that the harassment was so inordinate that Emran’s will to resist was sapped. Kechik had only called him at his residential telephone line 2 to 3 times a day for about a week. And based on his own evidence, it would be reasonable to infer that on some of the days during that particular week, he would have been at work and therefore uncontactable. This was because he was then working part-time as a lashing worker all the way until the date of his arrest. His work schedule comprised 2 to 3 work days a week averaging 15 to 20 hours each day. So on at least 2 to 3 days when Kechik was purportedly calling him up at his home, Emran would have been at work. Another pertinent point to note is that despite the harassment, Emran had been able to ignore Kechik’s entreaties until 22 Nov 06. There is no conceivable reason for Emran to have suddenly succumbed on 22 Nov 06. There is also another possible explanation for these telephone calls. Emran had testified that he had lied to Kechik by promising to look for a seller. So it would not be unreasonable for Kechik to call Emran subsequently each day to make inquiries about the progress.

5 In respect of the Prosecution’s refusal to disclose Kechik’s identity so that his attendance as a witness could be secured by the Defence, the DJ wrote:

42. To my mind whether Kechik is an informer or an agent provocateur is not relevant for the purpose of this trial. The key question is whether Kechik would be a relevant witness in the trial before me. I am of the opinion that he is not relevant to the trial before me for the following reasons. Firstly, the defence of entrapment is not recognised. Secondly, the prosecution did not challenge Emran’s evidence concerning Kechik. Therefore the prosecution is deemed to have accepted that part of Emran’s evidence. Under these circumstances, I do not see how calling Kechik to testify would add any value to the evidence already adduced.

6 In the premises, the DJ convicted the appellant on the trafficking charge and after taking into account the circumstances leading to the commission of the offence and the plea in mitigation, imposed the minimum mandatory sentence of five years imprisonment and five strokes of the cane.

The appeal

7 The appeal against the DJ’s decision was first heard on 16 November 2007 when I adjourned the matter pending the Court of Three Judges’ decision in Law Society of Singapore v Tan Guat Neo Phyllis [2007] SGHC 207 (“Phyllis Tan”). Having had the benefit of the decision in Phyllis Tan, counsel for the appellant then sought to challenge his client’s conviction on the basis that the latter’s right under Art 12 of the Constitution of the Republic of Singapore (1999 Rev Ed) (“the Constitution”) was breached as Kechik was not charged for his role in instigating and inciting the appellant to traffic in drugs. Counsel also submitted that Kechik should have been called as a witness as his evidence might have tilted the balance in deciding whether or not his client’s constitutional rights were infringed.

The law on entrapment

Was the appellant entrapped?

8 The first question I had to consider was whether the appellant was entrapped. The Court of Appeal in Wong Keng Leong Rayney v Law Society of Singapore [2007] 4 SLR 377 (“Rayney Wong”) defined entrapment broadly at [27] as:

“Entrapment” involves luring or instigating the defendant to commit an offence which otherwise, or in ordinary circumstances, he would not have committed, in order to prosecute him. Entrapment invariably entails unlawful conduct by an agent provocateur, in the form of abetment of the offence by instigation or intentionally aiding the defendant to commit the offence (see s 107 of the Penal Code). However, obtaining evidence illegally or improperly does not necessarily involve any instigation or inducement on the part of the agent.

9 In Phyllis Tan, the Court of Three Judges referred to both Rayney Wong and the House of Lords decision in R v Looseley [2001] 1 WLR 2060 (“Looseley”) and explained at [53] the essential difference between entrapment, opportunity and illegality as:

Basically, entrapment as envisaged by the House of Lords in Looseley involves unlawful conduct by the state or its agents in...

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    • Malaysia
    • High Court (Malaysia)
    • 28 January 2014
    ...court concluded that “this factor alone is very critical” [At page 560]. (See 21 also Mohamed Emran bin Mohamed Ali v. Public Prosecutor [2008] 4 SLR 411). [50] In his last attempt to clutch at the elusive legal straws, counsel argued that the entrapment carried out by the police officers c......
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  • Administrative and Constitutional Law
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2008, December 2008
    • 1 December 2008
    ...to Art 12, in prosecuting an entrapped person while not prosecuting the entrapping state agent. In Mohamed Emran bin Mohamed Ali v PP[2008] 4 SLR 411, the High Court found there was an ‘intelligible differentia’ between these two classes of persons: entrapped drug traffickers and state agen......
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    • Singapore
    • Singapore Academy of Law Journal Nbr. 2016, December 2016
    • 1 December 2016
    ...Zheng Yu Shan v Lian Beng Construction (1988) Pte Ltd[2009] 2 SLR(R) 587 at [24] and Mohamed Emran bin Mohamed Ali v Public Prosecutor[2008] 4 SLR(R) 411 at [19]. This position was reiterated by the High Court in Public Prosecutor v Mas Swan bin Adnan[2011] SGHC 107 at [107] (a case concern......
  • PROSECUTORIAL DISCRETION AND THE LEGAL LIMITS IN SINGAPORE
    • Singapore
    • Singapore Academy of Law Journal Nbr. 2013, December 2013
    • 1 December 2013
    ...60 [1980] AC 402. 61 [1980] AC 402 at 443. 62 Cited in Law Society of Singapore v Tan Guat Neo Phyllis[2008] 2 SLR(R) 239 at [80]. 63 [2008] 4 SLR(R) 411. 64 Constitution of the Republic of Singapore (1999 Reprint). 65 Emran bin Mohamed Ali v Public Prosecutor [2008] 4 SLR(R) 411 at [33]. I......
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