Mohd Ariff bin Mat Rifin and Another v Public Prosecutor
| Jurisdiction | Singapore |
| Court | Court of Three Judges (Singapore) |
| Judgment Date | 10 November 1997 |
| Docket Number | Criminal Appeal No 25 of 1996 |
| Date | 10 November 1997 |
[1997] SGCA 51
Court of Appeal
Yong Pung How CJ
,
M Karthigesu JA
and
LP Thean JA
Criminal Appeal No 25 of 1996
N Ganesan (N Ganesan & Associates) and K Subramaniam (Winston Low & Partners) for the first appellant
Selva K Naidu (Palakrishnan & Partners) and Sadari Musari (Sadari Musari & Partners) for the second appellant
Ong Hian Sun (Deputy Public Prosecutor) for the respondent.
Lee Yuan Kwang v PP [1995] 1 SLR (R) 778; [1995] 2 SLR 349 (folld)
Nadasan Chandra Secharan v PP [1997] 1 SLR (R) 118; [1997] 1 SLR 723 (folld)
Misuse of Drugs Act (Cap 185, 1997 Rev Ed) ss 18 (2), 21 (consd);ss 7, 33
Penal Code (Cap 224, 1985 Rev Ed) s 109
Criminal Law–Statutory offences–Misuse of Drugs Act (Cap 185, 1997 Rev Ed)–Abetting the importing of controlled drugs–Whether circumstantial evidence sufficient to prove beyond reasonable doubt the offence of abetment–Criminal Law–Statutory offences–Misuse of Drugs Act (Cap 185, 1997 Rev Ed)–Importing of controlled drugs–Presumption of possession and knowledge of controlled drugs–Presumption relating to vehicle–Whether presumptions rebutted–Sections 18 (2) and 21 Misuse of Drugs Act (Cap 185, 1997 Rev Ed)
The first appellant, Ariff, was charged with importing two slabs of vegetable matter containing not less than 2,689g of cannabis into Singapore from Johore, thereby committing an offence punishable under s 33 of the Misuse of Drugs Act (Cap 185, 1997 Rev Ed) (“MDA”). The second appellant, Azman, was charged for having engaged in a conspiracy with Ariff to import the same, thereby abetting the offence under s 7 of the MDA read with s 109 of the Penal Code (Cap 224, 1985 Rev Ed). At the end of the trial, both appellants were convicted and sentenced to death. Both appellants appealed.
There was no dispute over the law in the present appeal. The only contentious issues on appeal were: first, with regard to Ariff, whether he had adduced sufficient evidence to rebut on a balance of probabilities the two presumptions triggered against him; and second, with regard to Azman, whether the circumstantial evidence before the court was sufficient to prove that he had loaded the drugs into the motor car and was guilty beyond reasonable doubt of abetting Ariff in the offence.
Held, dismissing the first appellant's appeal and allowing the second appellant's appeal:
(1) The first appellant bore the burden of rebutting the two presumptions under ss 18 (2) and 21 of the MDA on a balance of probabilities. Considering the lies in his police statements, the inconsistencies of his testimony in court, the incriminating information volunteered by Azman, and the incredible version of his entering Singapore to deliver a motor car for rental, this burden had not been discharged: at [30], [42] and [84].
(2) The learned judge's findings on the further evidence were unsatisfactory in several aspects. Considering the Prosecution's onerous burden of proof (no presumptions were triggered against Azman), the court was unable to draw from the circumstantial evidence the inexorable and irresistible inference that the second appellant had abetted the first appellant in the importing of controlled drugs: at [76] to [82].
(delivering the grounds of judgment of the court):
The charges
1 The first appellant (“Ariff”) was charged in the trial below for importing into Singapore from Johore, West Malaysia, on 9 February 1996 at about 9.45pm, two slabs of vegetable matter containing not less than 2,689g of cannabis in motor car JDB 3444 without authorisation, thereby committing an offence contrary to s 7 and punishable under s 33 of the Misuse of Drugs Act (Cap 185) (“MDA”).
2 The second appellant (also known as “Azman”) was charged for having engaged in a conspiracy with Ariff to import the same, thereby abetting the offence under s 7 of the MDA read with s 109 of the Penal Code (Cap 224) and punishable under s 33 of the MDA.
3 At the end of the trial, both appellants were convicted of the offences charged and sentenced to death.
4 Both appellants appealed. After the hearing before us on 20 October 1997, we dismissed the appeal of the first appellant and allowed the appeal of the second appellant. We now give our reasons.
The facts
5 Ariff's house is at 17 Jalan Orkid Utama, Taman Orkid (“Utama residence”). Azman lives in a rented house at Jalan Salam (“Salam residence”). On 9 February 1996, both appellants were kept under surveillance by five narcotic officers from the Royal Malaysian Police led by Inspector Lee Choon Peng (“Insp Lee”). Their undisputed observations were as follows:
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6 The total weight of the 19 slabs of vegetable matter was 23,611.72g and the Department of Scientific Services (“DSS”) analysis by one Dr Jyothi Mary Ipe revealed that all 19 slabs contained cannabis. Of the 19 slabs, two slabs were found to contain the following:
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The total weight of just the cannabis in the two slabs was 2,689g.
The Prosecution's case
7 The Prosecution's case against Ariff was that, under s 21 of the MDA, he would be presumed to be in possession of the cannabis which was found in the motor car that he was driving. By virtue of s 18 (2) of the MDA, he was also presumed to know the nature of the drugs that were found in his motor car. Hence, on the facts, by driving the motor car to Singapore, Ariff would be guilty of importing the cannabis into Singapore.
8 The burden was thus on Ariff to rebut on a balance of probabilities the two presumptions that were triggered against him which the Prosecution contended he had not succeeded. In our view, the two main points raised were as follows.
9 First, the Prosecution contended that Ariff's claim of entering Singapore to deliver his motor car to Mohtar's friend for rental was unbelievable. No personal particulars of this “friend” were ascertained, neither were the rental fees for the motor car ever discussed. Second, there were material discrepancies between what Ariff testified in court and his police statements. In the latter, he maintained that Mohtar had used his motor car, JDB 3444, between 8.00pm and 9.00pm, thereby suggesting that Mohtar was the one who loaded the drugs. However, he resiled from this position in court and confirmed that Mohtar only arrived at his house at 9.00pm. In other words, Mohtar had not driven his motor car at any time. This discrepancy, the Prosecution contended, showed that Ariff was lying and it corroborated his guilt.
10 As for Azman, no presumptions were triggered against him. However, the Prosecution contended that he was observed by Insp Lee to have loaded some items into the boot of the motor car JDB 3444 from the house at 64 Jalan Padi Malinja between 8.35pm and 8.55pm. The Prosecution contended that these items must be the slabs of cannabis since the police surveillance revealed that, from the time the motor car returned from Singapore in the evening, nothing else was loaded into its boot. Thus, Azman had abetted Ariff in the importation of the cannabis into Singapore.
The defence
Ariff's defence
11 Ariff's defence was essentially one of bare denial. He claimed that his video and batik business required him to make trips to Singapore to buy cloth which he conveyed in his motor car to Malaysia in small quantities so as to avoid tax. The cloth would be sent to a batik factory and the “batik print” material were sold at substantial profits. His monthly income from both his video and batik business was around RM$15,000.
12 It was established that Ariff's brother, Mat Ros, was the owner...
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Public Prosecutor v Mohamad Shafiq Bin Ahamad
...namely the cases of Vinit Sopon and Others v Public Prosecutor [1994] 2 SLR 226, Mohd Arif bin Mat Rifin and Another v Public Prosecutor [1998] 1 SLR 392 and Lau Song Seng and Others v Public Prosecutor [1998] 1 SLR 663 on how an inference may be drawn from circumstantial evidence. It was s......