Mohamed Mubin bin Abdul Rahman v PP

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Tay Yong Kwang JCA,Belinda Ang Saw Ean JCA
• Judgment Date: 08 May 2024
• Docket Number: Criminal Appeal No 7 of 2020
• Court: Court of Appeal (Singapore)

Mohamed Mubin bin Abdul Rahman

and

Public Prosecutor

[2024] SGCA 13

Sundaresh Menon CJ, Tay Yong Kwang JCA and Belinda Ang Saw Ean JCA

Criminal Appeal No 7 of 2020

Court of Appeal

Criminal Law — Statutory offences — Misuse of Drugs Act — Appellant alleging Prosecution had failed to prove beyond reasonable doubt that appellant had trafficked in two bundles of diamorphine — Whether Prosecution had proven its case beyond reasonable doubt — Sections 5(1)(a), 5(2) and 12 Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal Procedure and Sentencing — Appeal — Procedure — Appellant alleging Prosecution changed its case at trial on provenance of two bundles of diamorphine which appellant was alleged to have trafficked in — Whether Prosecution changed its case at trial on provenance of two bundles — Whether Prosecution permitted to change its case such that conviction may be sustained — Whether Prosecution's case against appellant might stand if exact date of delivery of two bundles remained unresolved

Criminal Procedure and Sentencing — Appeal — Three possible dates where two bundles of diamorphine were delivered to appellant and which appellant was alleged to have trafficked in — Whether it could be concluded beyond reasonable doubt based on evidence adduced at trial below that two bundles were delivered on any of each of three dates

Held, allowing the appeal and setting aside the appellant's conviction on both Charges and directing the parties to submit on whether an acquittal ought to follow, or whether a retrial should be ordered, and in the event a discharge amounting to an acquittal was granted for the Charges, whether any altered charges ought to be preferred against the appellant:

(1) The Judge erred in finding that the Two Bundles were delivered on 5 September 2015. Lokman's evidence, which was not challenged by the Prosecution, was that, while two bundles of diamorphine had been delivered on 5 September 2015 by Zaini and Noor to the Appellant, one of these had been unwrapped and repacked by the time of Lokman's arrest on 8 September 2015, while the other could not be found and had likely already been sold to others. Moreover, based on the Prosecution's cross-examination of Lokman, the Prosecution's case was that: (a) while two bundles of diamorphine were delivered by Zaini and Noor on 5 September 2015, these had been unwrapped and repacked or disposed of by the time of Lokman's arrest on 8 September 2015; and (b) the Two Bundles which were seized upon Lokman's arrest were delivered by Zaini and Noor on 7 September 2015. Given that the Judge's finding was contradicted by Lokman's unchallenged evidence, the objective evidence consisting of the clear plastic wrapped in black tape which Lokman agreed was from one of the bundles of diamorphine delivered on 5 September 2015, and the Prosecution's case that it put to Lokman, it was not open to the Judge to find that the Two Bundles were delivered on 5 September 2015: at [73] to [78].

(2) For these same reasons, there was a reasonable doubt as to whether the Two Bundles were delivered on 5 September 2015: at [78].

(3) As regards 1 September 2015, the available evidence shed virtually no light on the events of that day, and it was therefore unsurprising that the Judge made no factual findings on the events of 1 September 2015: at [80] and [81].

(4) The evidence did not support a finding that the Appellant received the Two Bundles from Zaini on 7 September 2015 for four reasons. First, Zaini's unchallenged evidence was that two bundles of methamphetamine, and not diamorphine, were delivered on 7 September 2015. Second, Zaini was not challenged by the Prosecution on what would have been a discernible difference in weight between two 25g bundles of methamphetamine and two bundles of 450g diamorphine. Third, Noor's evidence that Zaini had referred to the two bundles of drugs handed to the Appellant on 7 September 2015 as “two batu” had to be considered alongside his unchallenged evidence that the use of the word “batu” could also have referred to smaller packets of drugs containing methamphetamine. Fourth, the evidence was inconclusive as to what, if any amount, was paid by the Appellant to Zaini on 7 September 2015: at [82] to [101].

(5) Accordingly, there was a reasonable doubt as to whether the Two Bundles were delivered on any of the three dates (ie, 1, 5 or 7 September 2015) by Zaini and Noor to the Appellant: at [102].

(6) The record showed that the Prosecution's case shifted significantly during the course of the trial in relation to when the Two Bundles were delivered, which was unsatisfactory:

(a) By the time it closed its case, the Prosecution's case was that the Two Bundles were delivered on 5 September 2015. This was because the Prosecution did not challenge Zaini's evidence that methamphetamine, and not diamorphine, was delivered on 7 September 2015 during his examination-in-chief: at [106] to [108].

(b) However, when cross-examining Lokman, the Prosecution led evidence from Lokman that two bundles of diamorphine were delivered both on 5 September 2015 and 7 September 2015, and further that the two bundles of diamorphine which were delivered on 5 September 2015 had been unwrapped and repacked or otherwise disposed of by the time Lokman was arrested on 8 September 2015. Therefore, its case shifted to one where two bundles of diamorphine were delivered by Zaini and Noor to the Appellant on both 5 September 2015 and 7 September 2015, and the Two Bundles were from the delivery on 7 September 2015 since those delivered on 5 September 2015 had been already unwrapped and repacked or disposed of: at [109] and [110].

(c) When cross-examining the Appellant, the Prosecution's position shifted once again to a broader case that the Two Bundles were delivered to the Appellant by Zaini sometime in the first week of September. This was a significant shift in the Prosecution's case which had not featured in its line of questioning or examination of the other witnesses: at [111] and [112].

(d) In the Prosecution's written closing submissions at trial, its position shifted further between: (i) on the one hand, accepting Zaini's version of events that the Two Bundles were delivered on 5 September 2015; and (ii) on the other, contending that it was irrelevant which date specifically the Two Bundles were delivered on: at [113].

(e) In its oral closing submissions, the Prosecution made clear its position that the specific date of delivery of the Two Bundles was completely irrelevant: at [114].

(7) It was generally incumbent on the Prosecution to advance a consistent case, so that the accused person knew the case that he had to meet. This flowed from the principle that fairness required an accused person to have the chance to confront the case theory adopted by the Prosecution and the need to ensure that an accused person was not prejudiced by reason of any inconsistency in the Prosecution's case: at [143(a)] and [143(b)].

(8) Accordingly, where there was an important weakness in the Prosecution's case which the Prosecution did not address, the court should not make a finding that was adverse to the accused person in respect of that weakness. Where there were multiple co-accused persons, the Prosecution should present a unified case theory that the Defence could challenge as a single, coherent account: at [143(c)] and [143(d)].

(9) The Prosecution shifted its position in relation to an important aspect of its case, which was when the Two Bundles were delivered. Based on the way the Prosecution had cross-examined Lokman, the Appellant would have seen the Prosecution's case as one that was rooted in the hypothesis that the Two Bundles had been delivered by Zaini on 7 September 2015. However, the Prosecution then appeared to resile from this position when cross-examining the Appellant and pursued a broader case instead that the Two Bundles were delivered sometime in the first week of September 2015. The result of this shift was that this aspect of the case against the Appellant became a moving target: at [149] and [150].

(10) There were other objective facts which: (a) linked the Two Bundles to Zaini and Noor; (b) suggested that the primary line of contact for the placement of orders and making arrangements for drug deliveries was between the Appellant and Zaini; and (c) suggested that the Appellant did direct Lokman on the night of 8 September 2015, who was in possession of the Two Bundles at the material time. However, mounting a case on the basis of the objective evidence would have required inferences to be drawn from certain objective facts and would have wholly bypassed the problematic evidential issue of when the Two Bundles were delivered by Zaini. This was quite different from the case that was run by the Prosecution at trial. Therefore, it was not open for the Prosecution to now mount a different case against the Appellant which left unresolved, on the ground that it was ultimately immaterial, the question of when the Two Bundles were delivered by Zaini and Noor on the Appellant's instructions as this was simply not the case that the Appellant was confronted with at trial: at [152] and [153].

(11) The matter was adjourned for further submissions as to what consequential orders should be made and specifically, whether the Appellant should be acquitted of the Charges or whether the matter should be retried: at [155].

Case(s) referred to

Adili Chibuike Ejike v PP[2019] 2 SLR 254 (refd)

AOF v PP[2012] 3 SLR 34 (refd)

Gobi a/l Avedian v PP[2021] 1 SLR 180 (folld)

Ladd v Marshall[1954] 1 WLR 1489 (refd)

Muhammad bin Kadar v PP[2011] 3 SLR 1205 (refd)

Muhammad Nabill bin Mohd Fuad v PP[2020] 1 SLR 984 (refd)

Mui Jia Jun v PP[2018] 2 SLR 1087 (folld)

PP v Aishamudin bin Jamaludin[2020] 2 SLR 769 (folld)

PP v Lokman bin Abdul Rahman[2020] SGHC 48 (refd)

PP v Mohd Ariffan bin Mohd Hassan[2018] 1 SLR 544 (ref...