Mohd Akebal s/o Ghulam Jilani v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 28 November 2019
• Neutral Citation: [2019] SGCA 81
• Plaintiff Counsel: Rupert Seah Eng Chee (Rupert Seah & Co) and B Uthayachanran (Essex LLC)
• Docket Number: Criminal Appeals Nos 17 and 20 of 2019
• Date: 28 November 2019
• Hearing Date: 28 November 2019
• Subject Matter: Statutory offences,Misuse of Drugs Act,Criminal Law
• Year: 2019
• Citation: [2019] SGCA 81
• Defendant Counsel: The appellant in Criminal Appeal No 20 of 2019 in person,and Mark Jayaratnam, Chin Jincheng and Chong Yong (Attorney General's Chambers)
• Court: Court of Appeal (Singapore)
• Published date: 06 December 2019

Sundaresh Menon CJ (delivering the judgment of the court ex tempore): Introduction

These appeals arise from the joint trial of Mohd Akebal s/o Ghulam Jilani (“Akebal”), Mohammed Rusli Bin Abdul Rahman (“Rusli”) and Andi Ashwar Bin Salihin (“Andi”). Akebal was convicted on a single charge of trafficking not less than 29.06g of diamorphine, an offence under s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), and sentenced to death. Rusli was convicted on three charges: an amended charge of instigating Andi to collect one packet containing not less than 14.46g of diamorphine under s 5(1)(a) read with ss 5(2) and 12 of the MDA; possession of not less than 6.02g of methamphetamine under s 8(a) of the MDA; and consumption of morphine under s 8(b)(ii) of the MDA. Rusli was sentenced to 30 years’ imprisonment in total. Andi was convicted on one charge of possessing not less than 29.06g of diamorphine for the purpose of trafficking under s 5(1)(a) read with s 5(2) of the MDA, and sentenced to life imprisonment and 15 strokes of the cane. Akebal appeals against his conviction and sentence while Rusli appeals against his sentence. Andi has not appealed against his conviction or sentence.

Facts

On the evening of 21 August 2014, Andi agreed, in the course of a telephone call with Rusli, to collect drugs on behalf of Rusli the next day. Andi was a regular drug courier for Rusli, a secret society member. Andi also worked for other members of the secret society, including Azman s/o Sheik Osman (“Azman”). Whilst he would collect larger quantities of diamorphine for Azman, Andi’s assignments involving Rusli always involved one bundle of drugs, meaning that it would be below the capital threshold.

On the morning of 22 August 2014, Rusli instructed Andi to make the necessary arrangements with someone, who was variously referred to as “Bala” or “Bai”, and to that end, he sent Andi that person’s mobile number. A series of calls were then exchanged between Andi and the person who was using that mobile number. Andi was instructed to meet in the vicinity of Block 716, Woodlands Avenue 7. He was also told to meet as soon as possible as “Bala” or “Bai” had a urine test to attend that same day.

At about 9.45am, Andi drove his car to the agreed location. At about 10.30am, a male Indian carrying an orange plastic bag approached Andi’s vehicle. He opened the front passenger door and placed the bag on the front passenger seat. During this handover, Andi testified that he had a good opportunity to observe the face of the male Indian. The male Indian was also observed by Central Narcotics Bureau (“CNB”) officers who were, acting on information received, conducting surveillance of the area.

Shortly thereafter, Andi drove to Rusli’s residence. At about 12.45pm, Andi and Rusli were arrested. The orange bag was recovered from Andi’s car and was found to contain two bundles containing not less than 14.60g and 14.46g of diamorphine, respectively. Various exhibits, which Rusli admitted were his, were also recovered from Rusli’s car. Seven of these were found to contain in total not less than 6.02g of methamphetamine. Upon his arrest, Rusli’s urine sample was taken and traces of morphine, a known metabolite of diamorphine, were found. In the contemporaneous statement that Andi made to the arresting officers, he was shown a board containing 13 photographs and among others, he identified a photograph of Akebal as the person who had earlier handed him the drugs.

On the same day, at about 8.25pm, Akebal was arrested on suspicion of being the male Indian who had placed the orange bag in Andi’s car. A mobile phone was found in Akebal’s possession. The number of the mobile was the same as the number that Andi had been provided earlier in the day to contact “Bala” or “Bai” and to arrange the handover of the drugs. Subsequent investigations showed that multiple phone calls had been exchanged between the user of that mobile phone and Rusli and Andi on 22 August 2014.

Decision below

Akebal’s defence in the court below was that he had been incorrectly identified, by CNB officers and Andi, as the man who placed the orange bag in Andi’s car. The High Court Judge (“the Judge”) rejected this defence. He was satisfied that the evidence identifying Akebal was of a good quality. As a result, the presumptions under ss 18(1)(a) and 18(2) of the MDA were triggered: Akebal was presumed to have had the drugs in his possession and to have known the nature of the drugs. Since Akebal did not adduce any evidence to rebut the presumptions, and since in delivering the drugs he had plainly trafficked, the Judge convicted him on the capital charge. Akebal was not issued a certificate of substantive assistance and the Judge passed the sentence of death accordingly.

On the other hand, the Judge found that the Prosecution had failed to prove beyond a reasonable doubt that Rusli had knowledge of the nature of the drugs that were contained in both the packets. Rusli had maintained, and this was supported by Andi’s evidence, that he only ever dealt with one bundle because of the risk of capital punishment. The Judge amended the charge against Rusli to one of instigating Andi to traffic in not less than 14.46g of diamorphine (being the amount of diamorphine in one packet of drugs) and convicted him accordingly. Rusli was sentenced to 27.5 years’ imprisonment for this charge. The Prosecution also proceeded on two other charges against Rusli, to which he pled guilty (see [1(b)]...