Mohamed Shalleh bin Abdul Latiff v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Hoo Sheau Peng J
• Judgment Date: 30 December 2020
• Neutral Citation: [2020] SGHC 283
• Court: High Court (Singapore)
• Hearing Date: 06 October 2020,11 November 2020
• Docket Number: Criminal Appeal No 9 of 2019 (Criminal Motion No 18 of 2020)
• Defendant Counsel: Ramesh Chandr Tiwary (Ramesh Tiwary),Anandan Bala, Theong Li Han and Claire Poh (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Taking additional evidence
• Published date: 07 January 2021

Hoo Sheau Peng J: Introduction

Pursuant to an application by the accused, Mr Mohamed Shalleh bin Abdul Latiff (“the accused”), the Court of Appeal directed me to take further evidence from Mr Khairul Nizam bin Ramthan (“Mr Khairul”) under s 392(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”). Having done so, pursuant to s 392(4) of the CPC, I now set out the effect, if any, the additional evidence taken has on my earlier verdict.

The trial

The accused was convicted of a charge of possession of not less than 54.04g of diamorphine (“the Drugs”) for the purpose of trafficking, an offence under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). The mandatory sentence of death was passed on him. My reasons are contained in Public Prosecutor v Mohamed Shalleh bin Abdul Latiff [2019] SGHC 93 (“GD”).

At the trial, the Prosecution’s evidence showed that on 11 August 2016, officers from the Central Narcotics Bureau (“CNB”) conducted an operation in the vicinity of Balestier Road and Boon Teck Road, and later arrested the accused in his car along Mei Ling Street: see [4]-[7] of the GD.

As stated at [8] of the GD, upon a search of the accused’s car, the CNB officers recovered the following items from the floorboard of the front passenger seat: one orange plastic bag which contained one “Lexus” box which in turn contained two packets of crystalline substance; and three zip-lock bags each containing one bundle wrapped in brown paper. The three bundles are to be collectively referred to as the “Bundles”.

The contents of the Bundles were analysed and found to contain the Drugs, while the crystalline substance in the two packets was found to contain methamphetamine.

It was not disputed by the accused that in collecting the Drugs, the accused followed the instructions of one “Bai”, pursuant to an agreement that the accused would do a delivery job for Bai. As per Bai’s instructions, on the day of his arrest, the accused met with Mr Khairul to receive the goods at Boon Teck Street. The accused also passed Mr Khairul an envelope containing S$7,000. Then, the accused proceeded to Mei Ling Street to await further instructions about who to deliver the Bundles to. Before the accused could complete the delivery, he was arrested.

In his defence, the accused disputed having knowledge of the nature of the drugs, alleging that he believed that the delivery involved contraband cigarettes. The key reason why the accused had allegedly formed this belief was because Bai had told him that the delivery job involved contraband cigarettes, and the accused trusted Bai’s word: see [14] of the GD.

As part of his defence, the accused claimed that he did not see the Bundles until they were recovered by the CNB officers. Mr Khairul had delivered them to him in the orange plastic bag with the handles tied up. The orange plastic bag was placed on the floorboard of the front passenger seat of the car. Thus, the Bundles were not visible to him: see [14(d)] of the GD.

On this aspect, the accused’s evidence was contradicted by Senior Staff Sergeant Tay Keng Chye (“SSSgt Tay”). According to SSSgt Tay, following the arrest, he found the orange plastic bag beside the Bundles on the floorboard of the front passenger seat of the car: see [9] of the GD. In other words, the Bundles – which were roughly palm-sized, round and irregularly shaped – were outside the orange plastic bag.

As possession of the Drugs was undisputed, the Prosecution was able to rely on the presumption of knowledge of the nature of the drugs under s 18(2) of the MDA. Having reviewed the evidence, I found that the accused had failed to rebut this presumption for reasons which fell into three broad areas: The evidence showed that the accused did not have a close relationship with Bai, and there was no reason for the high level of trust he allegedly placed in Bai given the suspicious circumstances of the transaction: see [23]-[27] and [39] of the GD. I also observed that the accused had omitted to mention important aspects of his defence in his statements made in the course of investigations: see [28]-[34] of the GD. Further, I found that the accused’s account was contradicted by SSSgt Tay’s evidence. I saw no reason to disbelieve SSSgt Tay’s evidence, and accepted that the Bundles were in fact located outside the orange plastic bag when they were found by SSSgt Tay. As the Bundles were left exposed on the floorboard, the accused would have caught sight of their appearance. The round and irregular shape should have aroused the accused’s suspicion that they contained something else besides cartons of cigarettes: see [36]-[37] and [39] of the GD.

Having rejected the accused’s defence, I convicted him of the charge. I should add that at the close of the Prosecution’s case, Mr Khairul was offered as a witness to the defence. However, he was not called as a witness.

The application

After the trial, the Court of Appeal’s decision in Muhammad Nabill bin Mohd Fuad v Public Prosecutor [2020] 1 SLR 984 (“Nabill”) was released. The Prosecution noted that Mr Khairul could be considered a material witness as he was in the position to testify whether the Bundles were inside or outside the orange plastic bag. This issue had some bearing on whether the accused had knowledge of the Drugs. If the Bundles had been left exposed, their round and irregular shape would have aroused the accused’s suspicion that the contents were not cartons of cigarettes. Therefore, in accordance with Nabill, the Prosecution disclosed to the Defence the statements made to the CNB by Mr Khairul.

Subsequently, for the purpose of the appeal, the Defence applied for Mr Khairul to give evidence on the two following issues: Whether Mr Khairul placed the orange plastic bag on the floorboard of the car; and If Mr Khairul did so, whether the Bundles were within the orange plastic bag or outside the orange plastic bag.

The Prosecution did not object to the Defence’s application. As stated at [1] above, the application was granted, and the matter was remitted to me for additional evidence to be taken from Mr Khairul on the two issues.

Mr Khairul’s evidence

Mr Khairul was arrested on 11 August 2016.¹ Subsequently, he pleaded guilty to and was convicted of a non-capital charge of trafficking in methamphetamine ie, the crystalline substance contained in the two packets found in the “Lexus” box in the orange plastic recovered from the accused’s car: see [4(a)] above. He was sentenced to 15 years of imprisonment and 10 strokes of the cane. ² In relation to a capital charge of delivering the Bundles containing the Drugs to the accused, he was given a discharge not amounting to an acquittal.³

During questioning by Defence Counsel, Mr Khairul testified that at Boon Teck Road, he entered the accused’s car, and passed him the methamphetamine which was placed in a box in an orange plastic bag.⁴ There was nothing else in the orange plastic bag.⁵ Specifically, as instructed by the accused, Mr Khairul placed the orange plastic bag on the floorboard of the accused’s car.⁶ Mr Khairul denied that he delivered the Bundles to the accused.⁷ He disagreed that the Bundles were inside the orange plastic bag.⁸ Thereafter, he took the envelope of money from the accused and left the car.

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