Mohammad Ashik bin Aris v PP

• Jurisdiction: Singapore
• Judgment Date: 07 September 2011
• Date: 07 September 2011
• Docket Number: Criminal Appeal No 10 of 2011
• Court: Court of Appeal (Singapore)

Mohammad Ashik bin Aris

Plaintiff

and

Public Prosecutor

Defendant

[2011] SGCA 46

Chan Sek Keong CJ

,

Andrew Phang Boon Leong JA

and

VK Rajah JA

Criminal Appeal No 10 of 2011

Court of Appeal

Criminal law—Statutory offences—Misuse of Drugs Act (Cap 185, 2008 Rev Ed) —Analyst conducting urine test by analysis and interpretation of results—Whether requirement that each urine test had to be carried out ‘by a different person’ was satisfied

Criminal law—Statutory offences—Misuse of Drugs Act (Cap 185, 2008 Rev Ed) —Analyst having regard to all the results before arriving at his conclusions—Whether this provided meaningful and effective means of supervision of urine test

Criminal law—Statutory offences—Misuse of Drugs Act (Cap 185, 2008 Rev Ed) —Checks carried out on workflow for one set by persons also involved in workflow for other set—Whether requirement that each urine test had to be carried out ‘by a different person’ was breached

Criminal law—Statutory offences—Misuse of Drugs Act (Cap 185, 2008 Rev Ed) —Legislative objective of s 31 (4) (b) —Errors which could be detected visually—Whether there was rational nexus between legislative objective and requirement of continuous presence or supervision—Whether requirement was unnecessarily onerous—Section 31 (4) (b) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal law—Statutory offences—Misuse of Drugs Act (Cap 185, 2008 Rev Ed) —Meaning of phrase ‘conducted ... by’—Whether person who ‘conducts’ activity had to necessarily personally carry out or personally supervise each of the steps which constituted that activity—Section 31 (4) (b) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal law—Statutory offences—Misuse of Drugs Act (Cap 185, 2008 Rev Ed) —Nature of actus reus of s 8 (b) offence—Whether all the controlled or specified drug detected was proven to be due to contamination—Section 8 (b) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal law—Statutory offences—Misuse of Drugs Act (Cap 185, 2008 Rev Ed) —Whether both actus reus and mens rea of the s 8 (b) offence were presumed by s 22—Sections 8 (b) and 22 Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal law—Statutory offences—Misuse of Drugs Act (Cap 185, 2008 Rev Ed) —Whether non-compliance with s 31 (4) (b) rendered s 16 certificate inadmissible in evidence, or incapable of triggering s 16 presumption—Sections 16, 22 and 31 (4) (b) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal law—Statutory offences—Misuse of Drugs Act (Cap 185, 2008 Rev Ed) —Whether quantity of drug relevant to commission of the s 8 (b) offence—Whether purpose of urine test was to detect quantity—Whether requirement that analyst had to personally carry out, or supervise, all the steps was justified by purpose of urine test

Evidence—Proof of evidence—Confessions—Accused person confessing to have consumed what he believed to be controlled or specified drug—Whether in principle capable of constituting sufficient proof of actus reus of s 8 (b) offence—Section 8 (b) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

The appellant was arrested while in possession of a pipe (which subsequent scientific analysis found to be stained with methamphetamine) , 18 packets of crystalline white substance and several empty packets. Three samples of urine were taken from him at the Bedok Police Headquarters (‘BPHQ’) . The first sample was tested to be positive for methamphetamine by an Instant Urine Test done at the BPHQ. The second and third samples were sent for testing by the Health Sciences Authority (‘HSA’) . Tests on these two samples revealed the presence of methamphetamine, and certificates under s 16 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘the MDA’) (‘s 16 certificates’) were issued to that effect.

On the day of his arrest, the appellant made three incriminating statements which stated that: (a) earlier that morning, he had bought 2.4 g of ‘Ice’ (a well-known street name for methamphetamine) from one ‘Kopi Kia’ and had repacked the ‘Ice’ into 24 packets; (b) he had consumed six of the 24 packets, with the remaining 18 packets intended for resale at a price of $50 per packet; (c) he had bought ‘Ice’ from ‘Kopi Kia’ on five to six previous occasions, both for his own consumption and for resale; and (d) he was a heavy ‘Ice’ smoker who consumed five to six packets every day.

The appellant was convicted of one charge of consumption of methamphetamine, an offence under s 8 (b) (ii) of the MDA (‘the s 8 (b) offence’) . The judge found that the Prosecution had proved the charge in three ways. First, the appellant had voluntarily confessed that he had consumed what he believed to be ‘Ice’. The actus reus of the offence was proved because the appellant had sufficient knowledge of, and familiarity with, methamphetamine for his belief to be true.

Secondly, the judge found that the HSA had complied fully with the requirements of s 31 (4) (b) of the MDA, which had to be complied with as a precondition to the presumption in s 22 of the MDA (‘the s 22 presumption’) , which, if triggered, presumed that the s 8 (b) offence had been committed. The appellant had failed to rebut the s 22 presumption.

Thirdly, the presumption in s 16 of the MDA (‘the s 16 presumption’) had also been triggered by the issue of the s 16 certificates by the HSA, even if s 31 (4) (b) had not been complied with. The appellant had failed to rebut the s 16 presumption, which presumed that his urine samples in fact contained methamphetamine. The judge also rejected the appellant's distinct argument that all the methamphetamine detected in the urine samples was due to contamination.

On appeal, the appellant advanced three arguments. First, he argued that the HSA procedures at the material time did not comply with the requirements of s 31 (4) (b) and hence the s 22 presumption could not be triggered (‘the first issue’) .

Secondly, the result of non-compliance with the requirements of s 31 (4) (b) was that the s 16 certificates issued by the HSA were either (a) inadmissible, or (b) incapable of triggering the s 16 presumption (‘the second issue’) . Even if the s 16 presumption was triggered, the appellant argued that the Prosecution had failed to prove beyond a reasonable doubt that he had consumed methamphetamine because all the methamphetamine detected in the two samples was due to pre-contamination.

Finally, the appellant argued that confessions were, as a matter of law, in themselves insufficient to prove the actus reus of the offence of consumption (‘the third issue’) .

Held, dismissing the appeal:

(1) In relation to the first issue, the significance of compliance with s 31 (4) (b) was that, if there were positive results from both the urine tests carried out pursuant to the subsection, the s 22 presumption will operate to presume that an accused has, in contravention of s 8 (b) , consumed the controlled drug detected in his urine samples. Both theactus reus and mens rea of the s 8 (b) offence were presumed by s 22: at [10].

(2) The phrase ‘conducted ... by’ in s 31 (4) (b) had a spectrum of possible meanings and did not necessarily mean that the person who ‘conducts’ an activity had to personally carry out, or personally supervise in real-time, each of the steps which constituted that activity. Within the spectrum of possible meanings of that phrase, the choice of which meaning to attribute to that phrase had to be guided by a purposive approach: at [22] and [23].

(3) Section 31 (4) (b) was directed at reducing the possibility of human error or abuse. There was no rational nexus between this objective and a requirement that an analyst had to be continuously present throughout the entire urine-testing process, with respect to errors which could be detected visually because such errors might be detected with at least equal efficacy by anyone competent in reading and who had an eye for detail. It would be unduly onerous and unreasonable to impose a requirement that an analyst had to carry out all the steps in the process, or at least supervise these steps, in order to avoid this particular type of error: at [23].

(4) Although there was a rational nexus between the objective of s 31 (4) (b) and a requirement for an analyst to conduct real-time supervision of the steps which involved the physical and chemical manipulation of actual urine samples with scientific instruments, this would be an unnecessarily onerous burden because the analyst would then be required to both supervise that stage and analyse all the results of the test in the light of the fact that most of the possible errors were not detectable visually. The risk of human error due to fatigue or inertia would correspondingly increase: at [24].

(5) An analyst was not required to be present in the laboratory throughout, or to physically supervise in real-time, all the various steps involved in a urine test. All that was necessary was that the analyst should have regard to all the results before arriving at his conclusions. In so doing, the analyst would be able to detect any errors in the urine test. The HSA's procedures were an efficient arrangement which nonetheless provided a sufficient safeguard that the steps which required a higher level of expertise would be carried out by personnel with the appropriate qualifications and training. Those steps provided a meaningful and effective means of supervision: at [24] and [25].

(6) The relevant offence was that of consuming a controlled or specified drug: the quantity or weight of the drug was not relevant to the commission of the offence. The urine tests under s 31 (4) (b) were conducted to determine the presence of drugs, and not to determine their concentration or weight. Once urine samples were properly obtained, errors in the detection of the existence of a drug in those samples could only occur due to a mix-up or contamination of the samples, and not due to the urine test itself because it was...