Mohammad Ashik bin Aris v Public Prosecutor

• Judge: Chan Sek Keong CJ
• Judgment Date: 07 September 2011
• Neutral Citation: [2011] SGCA 46
• Citation: [2011] SGCA 46
• Court: Court of Appeal (Singapore)
• Published date: 12 September 2011
• Docket Number: Criminal Appeal No 10 of 2011
• Plaintiff Counsel: S K Kumar (S K Kumar Law Practice LLP)
• Defendant Counsel: Anandan Bala, Pao Pei Yu Peggy and Lim How Khang (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Misuse of Drugs Act,Evidence
• Hearing Date: 17 August 2011

Chan Sek Keong CJ (delivering the grounds of decision of the court): Introduction

This was an appeal by Mohammad Ashik bin Aris (“the appellant”) against the decision of the trial judge (“the Judge”) in Criminal Case No 25 of 2010 (see Public Prosecutor v Mohammad Ashik bin Aris [2011] SGHC 111 (“the GD”)) convicting him of one charge of consumption of methamphetamine, an offence under s 8(b)(ii) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). At the conclusion of the hearing, we dismissed the appeal. We now give our reasons.

Background

The background facts are set out at [2]–[5] of the GD. To provide a brief summary, on 22 January 2010, the appellant was arrested while he was 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.

After the appellant was taken to the Bedok Police Headquarters (“BPHQ”), three samples of urine (collectively, “the Urine Samples”) were taken from him. The first sample tested positive for methamphetamine in an Instant Urine Test done at the BPHQ. The second and third samples (“the Second and Third Samples”) were sent for testing by the Health Sciences Authority (“HSA”). The tests on those two samples revealed the presence of methamphetamine, and certificates under s 16 of the MDA (“s 16 certificates”) were issued to that effect.

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

The statutory provisions

Before we provide a summary of the Judge’s decision and the arguments of the parties in this appeal, it is convenient that we first set out the relevant statutory provisions in the MDA, ie, ss 8(b), 16, 22, 31(1) and 31(4). They are as follows: Possession and consumption of controlled drugs 8. Except as authorised by this Act, it shall be an offence for a person to —

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(b) smoke, administer to himself or otherwise consume — (i) a controlled drug, other than a specified drug; or (ii) a specified drug.

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Certificate of analyst etc. 16. A certificate purporting — (a) to be signed by — (i) an analyst employed by the [HSA] or (ii) such other person as the Minister may, by notification in the Gazette appoint; and (b) to relate to a controlled drug or controlled substance,

shall be admitted in evidence, in any proceedings for an offence under this Act, on its production by the prosecution without proof of signature and, until the contrary is proved, shall be proof of all matters contained therein.

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Presumption relating to urine test 22. If any controlled drug is found in the urine of a person as a result of both urine tests conducted under section 31(4)(b), he shall be presumed, until the contrary is proved, to have consumed that controlled drug in contravention of section 8(b).

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Urine tests 31.—(1) Any officer of the [Central Narcotics] Bureau, immigration officer or police officer not below the rank of sergeant may, if he reasonably suspects any person to have committed an offence under section 8(b), require that person to provide a specimen of his urine for urine tests to be conducted under this section.

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(4) A specimen of urine provided under this section shall be divided into 3 parts and dealt with, in such manner and in accordance with such procedure as may be prescribed, as follows: (a) a preliminary urine test shall be conducted on one part of the urine specimen and (b) each of the remaining 2 parts of the urine specimen shall be marked and sealed and a urine test shall be conducted on each part by a different person, being either an analyst employed by the [HSA] or any person as the Minister may, by notification in the Gazette, appoint for such purpose. The Judge’s findings

The Judge decided that, on the facts, the Prosecution had proved the charge against the appellant in the following three ways: The appellant had voluntarily confessed that he had consumed what he believed to be “Ice”. In relation to the actus reus of the offence charged, the Judge stated that the only dispute was as to the precise identity of the substance which was in fact consumed by the appellant. He found that this element was proved because the appellant had sufficient knowledge of, and familiarity with, methamphetamine for his belief that he was consuming methamphetamine to be true. The appellant had failed to rebut the presumption in s 22 of the MDA (“the s 22 presumption”) that he had consumed methamphetamine, which presumption was triggered by the fact that methamphetamine had been found in his urine by the tests conducted by the HSA on the Second and Third Samples. The Judge held, on the evidence, that the HSA had complied fully with the requirements of s 31(4)(b) of the MDA (referred to hereafter as “s 31(4)(b)” for short), thereby triggering the s 22 presumption. The Judge held that 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 prove the contrary of the matters stated in the s 16 certificates issued. The Judge also rejected the appellant’s argument that all the methamphetamine detected was due to contamination of the Second and Third Samples prior to the urine tests.

The issues in this appeal

The first (and also the main) issue in this appeal was whether the urine-testing procedures of the HSA at the material time complied with the requirements of s 31(4)(b). It was not disputed that because of and since the decision of the High Court in Lim Boon Keong v Public Prosecutor [2010] 4 SLR 451 (“Lim Boon Keong”), the HSA had, ex abundanti cautela, changed its urine-testing procedures (effective from 30 June 2010) in order to comply with the observations of the court as to the legality or propriety of those procedures. Although this appeal was concerned only with the pre-30 June 2010 urine-testing procedures, which were the procedures used in the analysis of the Second and Third Samples, the Prosecution’s position in this appeal was that those procedures were in full compliance with the requirements of s 31(4)(b), and it invited this court to make a ruling to that effect.

The second issue in this appeal concerned the relationship between ss 16, 22 and 31(4)(b), and, in particular, whether non-compliance with s 31(4)(b) would ipso facto lead to the rebuttal of the s 16 presumption.

The third issue concerned other ways in which the Prosecution could prove consumption apart from relying on the statutory presumptions in the MDA, and, in particular, whether, in principle, confessions were in themselves sufficient to establish the actus reus of the offence under s 8(b) of the MDA (“the s 8(b) offence”) beyond a reasonable doubt.

The first issue: Compliance with s 31(4)(b)

The significance of compliance with s 31(4)(b) is that if there are positive results from both of the urine tests carried out pursuant to this subsection, the s 22 presumption will operate to presume that the accused person has, in contravention of s 8(b), consumed the controlled drug detected in his urine samples. This means that both the actus reus and the mens rea of the s 8(b) offence are presumed by s 22: see Vadugaiah Mahendran v Public Prosecutor [1995] 3 SLR(R) 719 at [24] (see only the first three sentences); and Public Prosecutor v Tan Loon Lui [2003] 2 SLR(R) 216 at [6]. In examining whether the HSA’s urine-testing procedures at the material time complied with s 31(4)(b), we considered three specific questions, namely: when a urine test begins; what the stipulation in s 31(4)(b) that a urine test must be “conducted … by” (in the context of the present appeal) an analyst employed by the HSA (an “analyst”) entails; and what the requirement in s 31(4)(b) that each of the urine tests mentioned therein must be conducted “by a different person” entails.

The analysis of urine by the HSA

For present purposes, it is necessary to outline briefly the steps involved in the urine-testing procedures of the HSA which were in issue. The Judge has helpfully conducted a detailed exposition of the entire process: see [77]–[180] and Annex A of the GD. Typically, a screening test is first conducted on one of the two parts of the urine sample mentioned in s 31(4)(b) from an accused person by an “auto-analyser” (the accuracy of which was not challenged in the present appeal). The screening test is a preliminary test to detect the presence of controlled drugs. It was introduced by the HSA to reduce the number of urine samples sent for the Gas Chromatography/Mass Spectrometry (“GC/MS”) test. If the screening test produces a negative result, the HSA’s practice is not to proceed with further testing, but the statutory provisions do not prohibit it from carrying out the GC/MS test on the two parts of the urine sample concerned. If no further testing is done, the consequence will be that the charge against the accused person may have to be withdrawn if there is no other evidence of consumption against him.

If the screening test shows a positive result, the two parts of the urine sample mentioned in s 31(4)(b) are then sent for the GC/MS test. To prepare each part...