Mohd Suief bin Ismail v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 26 January 2016
• Neutral Citation: [2016] SGCA 6
• Plaintiff Counsel: Ramesh Tiwary (Ramesh Tiwary) and Mahesh Rai s/o Vedprakash Rai (Drew & Napier LLC)
• Docket Number: Criminal Appeal No 2 of 2015
• Date: 26 January 2016
• Hearing Date: 02 October 2015
• Subject Matter: Appeal,Criminal Procedure and Sentencing,Misuse of Drugs Act,Criminal Law,Statutory Offences,Adducing fresh evidence
• Published date: 28 January 2016
• Citation: [2016] SGCA 6
• Defendant Counsel: Lau Wing Yum, Jasmine Chin-Sabado and Eunice Lau (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Year: 2016

Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction

This is an appeal against the decision of the High Court Judge (“the Judge”) in Public Prosecutor v V Shanmugam a/l Veloo and another [2015] SGHC 33 (“the Judgment”). The appellant in Criminal Appeal No 2 of 2015, Mohd Suief bin Ismail (“Suief”), is a 48-year-old Singaporean who was convicted of trafficking in diamorphine in furtherance of a common intention with V Shanmugam a/l Veloo (“Shanmugam”), the appellant in Criminal Appeal No 3 of 2015. When both appellants (collectively referred to as “the Appellants”) were convicted at first instance, the Judge found that their involvement was probably restricted to the acts described in s 33B(2)(a)(i) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), namely, the transporting, sending or delivering of the drugs in question. The Public Prosecutor certified that Shanmugam had substantively assisted the Central Narcotics Bureau (“CNB”) in disrupting drug trafficking activities within or outside Singapore. Shanmugam was thereafter sentenced to the mandatory life imprisonment and to 15 strokes of the cane under s 33B(1)(a) of the MDA. The Public Prosecutor did not issue a certificate of substantive assistance as regards Suief. Having also failed to adduce any psychiatric evidence to establish that he was suffering from an abnormality of mind at the time of the offence, the alternative sentencing regime under s 33B of the MDA was inapplicable and Suief was sentenced to suffer the penalty of death.

We dismissed Shanmugam’s appeal against his sentence given that the Judge had already imposed the mandatory minimum sentence allowed under s 33B(1)(a) of the MDA, which is a term of imprisonment for life and 15 strokes of the cane. In so far as Suief’s appeal against his conviction and sentence were concerned, we reserved judgment after hearing arguments from the parties. We now deliver our judgment on Suief’s appeal and the reasons for our decision.

The facts

On 28 October 2011, Shanmugam, on the instructions of one Puni (“Puni”), drove a Perodua Kenari, with the registration number JLT 8467, from Malaysia to Singapore. It appears that Shanmugam and Suief had arranged to meet at a bus stop outside Haw Par Villa. Based on the evidence before the court, Shanmugam and Suief were introduced to each other through Puni. Before 28 October 2011, they had only met each other once at the carpark of the McDonald’s outlet located at West Coast.

The Appellants gave differing reasons for meeting each other on 28 October 2011. Shanmugam said that he was instructed by Puni to hand over the car to Suief, before collecting it thereafter to drive the car back to Malaysia. It appears that prior to this, Shanmugam was already in an arrangement with Puni, where he would drive the car from Malaysia to Singapore, hand it over to Puni’s friend, and then drive the car back to Malaysia after Puni’s friend returned the car. In his long statement, Shanmugam stated that he was offered RM$7,000 per month for carrying out the aforementioned arrangement. In contrast, Suief gave evidence that they were only meeting casually and that Shanmugam had offered to buy him lunch.

It appears that CNB officers were already on surveillance at that point in time when Suief was spotted carrying a haversack on his way to the bus stop outside Haw Par Villa. After Suief boarded the car, Shanmugam continued driving. It is not disputed that the car made several turns, stopped by a hilltop car park at the National University of Singapore, before arriving at an Esso petrol station along Pasir Panjang Road. The Prosecution’s case is that the Appellants were aware of CNB officers tailing them and had deliberately driven around in a random manner in an attempt to lose the CNB officers. This was, however, denied by the Appellants in the course of the trial.

At the Esso petrol station, Shanmugam stopped the car next to the air pump machine. At this juncture, one of the Appellants went to the convenience store of the petrol station to purchase drinks. Both Shanmugam and Suief each claimed that he was the one who had gone into the convenience store. In this respect, one of the CNB officers who had been tailing the Appellants at that point in time, Inspector Sea Hoon Cheng, testified that it was Suief who had gone into the convenience store. Shanmugam, however, maintained that he was the one who went to purchase drinks from the convenience store. In any event, it appears that the Appellants subsequently returned to the car, where the black wrapped bundles containing diamorphine were then placed in Suief’s haversack. From the evidence, it appears that the Appellants were both involved in placing the black wrapped bundles into Suief’s haversack.

The car left the petrol station at about 12.12pm and went along Pasir Panjang Road and West Coast Highway. It finally stopped at a car park located at Block 405 Pandan Gardens (“Blk 405”). Suief was seen leaving the car and walking towards Blk 405. He was spotted carrying a black plastic bag with a golden logo. After Suief left the car, the CNB officers moved in to arrest Shanmugam, who was still in the car at that point in time. Suief’s haversack, with three black bundles inside, was found on the floor mat of the front passenger seat. Two black plastic bags and one newspaper wrapped bundle were also found in the haversack.

Meanwhile, Suief was arrested outside unit #13-34 of Blk 405, which turned out to be his mother’s flat. The black plastic bag with a golden logo was, however, not with him when he was arrested. The CNB officers combed the entire block and eventually found it among some flower pots on the staircase landing between the seventh and eighth floors. Three newspaper wrapped bundles containing diamorphine were found in the black plastic bag.

All the drug exhibits were subsequently sent to the Health Sciences Authority, where they were analysed and found to contain not less than 28.5g of diamorphine.

The charge

The Appellants were charged for trafficking in diamorphine in furtherance of the common intention of both parties. Given that the actual charge was not reproduced in the Judgment, for ease of reference, the respective charges are set out as follows:

YOU ARE CHARGED at the instance of [the PP] and the charge against you is:

That you, [V SHANMUGAM A/L VELOO / MOHD SUIEF BIN ISMAIL],

on the 28th day of October 2011, at or about 12.06 p.m., together with one [Mohd Suief Bin Ismail/V Shanmugam A/L Veloo ...], and in furtherance of the common intention of you both, did traffic in a controlled drug specified in Class A of the First Schedule to [the MDA], to wit, by transporting from the Esso Station along Pasir Panjang Road to the carpark of Block 405 Pandan Garden, inside a motorcar bearing registration number JLT8467, ten (10) packets containing 4497.7 grams of granular/powdery substance, which was analysed and found to contain not less than 28.50 grams of diamorphine, without authorization under [the MDA] or the Regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) of [the MDA] read with section 34 of the Penal Code (Cap, 224, 2008 Rev Ed) and punishable under section 33 and 33B of [the MDA].

[emphasis in original]

The decision in the court below

At the conclusion of the Prosecution’s case, the Judge observed that the identity of the two persons in the car was not disputed (see the Judgment at [10]). He found that the Prosecution had established the fact that the diamorphine in question was in the possession of the Appellants when they were in the car and that they had transported the diamorphine from the Esso petrol station to Pandan Gardens with the common intention of trafficking in the drugs (see the Judgment at [10]). The Appellants were therefore called upon to enter their defence.

Before the Judge, the Appellants denied having any knowledge that the bundles contained drugs and claimed that they had no common intention of trafficking in drugs. Each appellant attempted to pin the blame on the other appellant. Their defence was rejected by the Judge, who found that the Appellants had failed to rebut the presumption of trafficking in the drugs found in their possession (see the Judgment at [14]).

After hearing the evidence, the Judge was satisfied that the Appellants knew that the black plastic bags contained diamorphine and that they had acted with the common intention of trafficking in them in the manner of Suief dropping part of them (ie, the three bundles in the black plastic bag) off at Blk 405 (see the Judgment at [20]). The Appellants were therefore found to be guilty and were convicted as charged.

On the issue of sentencing, the Judge found that the involvement of the Appellants fell within the scope of s 33B(2)(a)(i) of the MDA. The Public Prosecutor granted a certificate of substantive assistance to Shanmugam, but not Suief. As a result, Shanmugam was sentenced to life imprisonment and 15 strokes of the cane, while Suief was sentenced to suffer the penalty of death.

The arguments Suief’s arguments

It will be recalled that Suief’s defence at first instance was an outright denial of knowledge that the black plastic bags contained diamorphine. In the present appeal, however, the primary argument was that Shanmugam and Suief did not share a common intention to traffic in all ten bundles of diamorphine. Counsel for Suief in the present appeal, Mr Ramesh Tiwary (“Mr Tiwary”), submitted that the evidence adduced in the course of the trial supported Suief’s account that he was going for his Friday prayers after dropping by his mother’s house and that he had no intention of returning to the car.

In this regard, Mr Tiwary highlighted that the only evidence which demonstrates that Suief had intended to return to the car came from Shanmugam. It was submitted that Shanmugam’s...