Mohammad Azli bin Mohammad Salleh v Public Prosecutor and another appeal and other matters

• Jurisdiction: Singapore
• Court: Court of Three Judges (Singapore)
• Judge: Sundaresh Menon CJ,Andrew Phang Boon Leong JA,Judith Prakash JA,Tay Yong Kwang JA,Steven Chong JA
• Judgment Date: 23 April 2020
• Neutral Citation: [2020] SGCA 39
• Citation: [2020] SGCA 39
• Subject Matter: Statutory offences,Misuse of Drugs Act,Criminal Law
• Docket Number: Criminal Appeal Nos 1 and 2 of 2019 and Criminal Motion Nos 16 and 17 of 2019
• Defendant Counsel: Hay Hung Chun, Sarah Ong, Soh Weiqi and Yan Jiakang (Attorney-General's Chambers)
• Hearing Date: 17 February 2020
• Plaintiff Counsel: Eugene Singarajah Thuraisingam, Suang Wijaya, Johannes Hadi (Eugene Thuraisingam LLP), Abdul Rahman bin Mohd Hanipah and Raheja binte Jamaludin (Abdul Rahman Law Corporation),Cheong Jun Ming Mervyn (Advocatus Law LLP), Lau Kah Hee (Derrick Wong & Lim BC LLP) and Melvin Loh (Continental Law LLP)
• Published date: 28 April 2020
• Date: 23 April 2020

Sundaresh Menon CJ (delivering the judgment of the court):

On the night of 6 October 2015, Mohammad Azli bin Mohammad Salleh (“Azli”) drove Roszaidi bin Osman (“Roszaidi”) to Bulim Avenue in his rented car. There, Roszaidi collected a red plastic bag from Aishamudin bin Jamaludin (“Aishamudin”) and Suhaizam bin Khariri (“Suhaizam”), who were in the cabin of a trailer truck. The red plastic bag contained two packets of diamorphine, which is commonly referred to as “heroin”, as well as three packets of methamphetamine, which is commonly referred to as “ice”. Azli then drove Roszaidi to the vicinity of his residence in Jurong West, where Roszaidi handed a “Starmart” plastic bag containing the two packets of diamorphine and two of the packets of methamphetamine from the red plastic bag to his wife, Azidah binti Zainal (“Azidah”). The two packets of diamorphine, which we will refer to as “the Drugs”, contained a total of not less than 32.54g of diamorphine. This formed the subject matter of the charges under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) against Azli, Roszaidi and Aishamudin, who were tried jointly for their role in trafficking the Drugs. Roszaidi was charged under s 5(1)(a) of the MDA for trafficking by giving the Drugs to Azidah. Azli was charged under s 5(1)(a) read with s 12 of the MDA for abetting Roszaidi to traffic in the Drugs by intentionally aiding him – namely, by driving him to Bulim Avenue to collect the Drugs, and then to Jurong West to deliver the Drugs to Azidah. Aishamudin was charged under s 5(1)(a) of the MDA read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed) for delivering the Drugs to Roszaidi in furtherance of a common intention with Suhaizam.

At the end of the trial, the High Court Judge (“the Judge”) convicted Azli and Roszaidi on their respective charges. The Judge amended the charge against Aishamudin to a non-capital charge, and convicted him of the amended charge.

In CA/CCA 1 & 2/2019, Azli and Roszaidi respectively appeal against their conviction and sentence. Azli also filed CA/CM 16/2019 (“CM 16/2019”), and Roszaidi filed CA/CM 17/2019 (“CM 17/2019”), both seeking leave to rely on additional grounds of appeal. In CA/CCA 4/2019, the Prosecution appeals against the Judge’s amendment and reduction of the charge against Aishamudin. We heard these appeals and applications together. At the end of the hearing, we indicated to Roszaidi that we would dismiss his appeal against conviction, and remit the issue of whether he qualified for the alternative sentencing regime under s 33B(3) of the MDA to the Judge for additional psychiatric evidence to be taken under s 392(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”). In doing so, we also allowed CM 17/2019. We reserved judgment for the appeals in relation to Azli and Aishamudin. In this judgment, we provide our reasons for our decision in relation to Roszaidi’s appeal and his application in CM 17/2019, and give our decision in relation to Azli’s appeal and his application in CM 16/2019. We will address the Prosecution’s appeal in respect of Aishamudin in a separate judgment which we will deliver at a later date.

Facts

On 6 October 2015, Aishamudin and Suhaizam drove into Singapore in a trailer truck. They had with them a red plastic bag. At trial, Aishamudin contended that the red plastic bag contained only methamphetamine. However, before us he did not contest the Judge’s finding that it also contained the Drugs (Public Prosecutor v Aishamudin bin Jamaludin and others [2019] SGHC 8 (“GD”) at [30]). For the purposes of the present judgment, we do not go further into the facts relating to Aishamudin’s involvement, except to the extent that they are relevant to Azli and Roszaidi.

Sometime after 9 pm that day, Aishamudin and Suhaizam drove the trailer truck into Bulim Avenue and parked it along the road. Unknown to them, officers from the Central Narcotics Bureau (“CNB”) were tailing the truck. A car driven by Azli also turned into Bulim Avenue. Roszaidi was in the rear passenger seat along with Muhammad Mirwazy bin Adam (“Mirwazy”). Azli parked the car near the truck. Roszaidi alighted from the car and collected the red plastic bag from Aishamudin before returning to the car. At around 9.50pm, both vehicles left Bulim Avenue, tailed by CNB officers.

Azli dropped Mirwazy off first. Mirwazy was arrested shortly thereafter (GD at [4]). Azli then drove to Jurong West Street 91, where Azidah was waiting along the side of the road with a yellow paper bag. Roszaidi had placed the Drugs and two of the packets of methamphetamine into a “Starmart” plastic bag. He took the yellow paper bag from Azidah, placed the “Starmart” plastic bag inside it, and handed it back to Azidah. He asked her to bring the bag up to their apartment. Azli then drove off with Roszaidi. Azidah was arrested shortly afterwards by CNB officers. The Drugs and the two packets of methamphetamine were found in her possession.

Roszaidi later alighted from Azli’s car, after which they were each arrested at different locations (GD at [5]). Upon Azli’s arrest, the car was searched by CNB officers, resulting in the seizure of a number of items found to contain methamphetamine. A digital weighing scale as well as some empty paper and plastic packets (“the drug paraphernalia”) were also seized from a compartment located on the driver’s door of the car.

The other persons involved in these events were dealt with separately: Suhaizam pleaded guilty to a charge of trafficking in not less than 14.99g of diamorphine by delivering the Drugs to Roszaidi in furtherance of a common intention with Aishamudin. He was sentenced to 25 years’ imprisonment and 15 strokes of the cane, and his appeal against sentence was dismissed by the High Court. Azidah pleaded guilty to one charge of having in her possession not less than 14.99g of diamorphine for the purpose of trafficking, and one charge of consumption of methamphetamine. She was sentenced to a total of 25 years’ imprisonment. Mirwazy pleaded guilty to a charge of drug possession, amongst other offences, and was sentenced to a total of three years and six months’ imprisonment.

The decision below

The Judge found that Roszaidi had collected the Drugs from Aishamudin, and had placed them in the “Starmart” plastic bag in the car before handing them to Azidah (GD at [21]). Roszaidi’s defence at trial was a denial of knowledge of what the Drugs in fact were. Since Roszaidi was in possession of the Drugs, the presumption of knowledge under s 18(2) of the MDA was engaged. The Judge found Roszaidi’s denial of knowledge to be inconsistent with his own investigative statements, as well as the evidence given by others, including Aishamudin and Mirwazy, against him. The Judge therefore held that Roszaidi had failed to rebut the s 18(2) presumption. The Judge accordingly convicted Roszaidi of the charge against him and sentenced him to the death penalty. The question of alternative sentencing under s 33B of the MDA does not appear to have been considered or addressed.

The Prosecution’s case against Azli was that he abetted Roszaidi pursuant to an agreement to drive Roszaidi around that night knowing that Roszaidi was going to collect and/or deliver diamorphine (GD at [12]). Azli’s primary defence was that he knew nothing about Roszaidi’s drug activities. The Judge found, however, that Azli knew that Roszaidi would be transporting drugs that night, and had consented to Roszaidi bringing into the car drugs of any nature (GD at [18]). The Judge rejected Azli’s assertion in his cautioned statement that he thought Roszaidi was collecting methamphetamine, finding it to be unsupported (GD at [19]). The Judge therefore found Azli to be in joint possession of the Drugs with Roszaidi under s 18(4) of the MDA. The Judge further found that the presumption of knowledge under s 18(2) of the MDA applied against Azli, and that Azli could not rebut this presumption. Finally, the Judge found that Azli had the opportunity to enquire about the nature of the drugs Roszaidi was dealing with that night, but deliberately declined to do so. The Judge therefore convicted Azli of the charge and sentenced him to the death penalty (GD at [20]). Again, the question of alternative sentencing under s 33B of the MDA does not appear to have been considered or addressed.

Roszaidi’s appeal against conviction

On appeal, Roszaidi submitted that he did not have the intention to traffic the Drugs to Azidah. Instead, his intention was for Azidah to keep the Drugs safely and subsequently to return them to him, and his own intention upon reclaiming the Drugs was to return them to the trafficker who had originally arranged for him to collect the Drugs, known to him as “Is Cangeh”. Roszaidi submitted that his evidence as to this intention was unchallenged. Roszaidi relied on our decision in Ramesh a/l Perumal v Public Prosecutor and another appeal [2019] 1 SLR 1003 (“Ramesh a/l Perumal”), where we held (at [110] and [125]) that an offender acting with such an intent might well not fall within the scope of the offence of trafficking. In essence, as Roszaidi’s counsel, Mr Eugene Thuraisingam (“Mr Thuraisingam”), put his case at the hearing before us, Roszaidi had resiled from his original intention to traffic in the Drugs. In the alternative, Roszaidi submitted that his intentions in relation to the Drugs at the time of his arrest were inchoate, as he had yet to receive instructions from Is Cangeh as to what to do with them. Roszaidi further submitted that he did not intend to possess or traffic in a capital quantity of drugs.

The main difficulty with Roszaidi’s claim to have resiled from his original intention to traffic in the Drugs was that he never in fact stated that this had happened until late in the trial – while he was being cross-examined. Instead, the consistent thread across Roszaidi’s investigative...