Muhammad Afzal Khan v Public Prosecutor

JurisdictionSingapore
JudgeChao Hick Tin JA
Judgment Date19 June 2001
Neutral Citation[2001] SGCA 43
CourtCourt of Appeal (Singapore)
Year2001
Published date09 April 2013
Plaintiff CounselRam Goswami (Ram Goswami) and Juana Saifful Manis (A R Saleh & J Saifful)
Defendant CounselBala Reddy, Aedit Abdullah and Peter Koy (Deputy Public Prosecutors)
Citation[2001] SGCA 43

JUDGMENT:

Grounds of Judgment

The appellant, Muhammad Afzal Khan ("Afzal"), a Pakistani national, was tried and convicted in the High Court of the following drug trafficking charge:

That you, Muhammad Afzal Khan, on the 6th day of April at River View Hotel, Singapore, did engage with one Muhammad Ali Hashim in a conspiracy to do a certain thing, namely, to traffic in diamorphine, a controlled drug specified in Class "A" of the First Schedule of the Misuse of Drugs Act, Chapter 185, and in pursuance of the said conspiracy and in order to the doing of that thing, did offer to sell to one "Ray" about 5 kilograms of heroin containing a total of not less than 2871.2 grams of diamorphine, and you have thereby abetted the commission of the offence of offering to traffic in the said controlled drug, and committed an offence under section 5(1)(a) read with section 12 of the Misuse of Drugs Act and punishable under section 33 of the said Act.

2 One Muhammad Ali Hashim ("Hashim") and one Muhammad Naveed ("Naveed"), both also Pakistani nationals, were tried together with Afzal in the High Court on drug trafficking charges relating to the same transaction. Hashim was convicted of a charge of drug trafficking by possession. He appealed against the conviction and sentence but later withdrew the appeal. Naveed was acquitted of a charge of drug trafficking by delivery and remained acquitted after prosecutions appeal against his acquittal was dismissed.

3 Afzal appealed against his conviction. After hearing his appeal, we dismissed it for the reasons set out below.

The prosecutions case

4 In relation to Afzal, the main evidence adduced by the prosecution was contained in the following segments, namely (i) a statement of agreed facts; (ii) the evidence of one Raymond Quattlander ("Ray") together with several audio and video tapes and their transcripts which recorded the conversation between Ray, Afzal and Hashim on 6 April 2000 in connection with the drug transaction; and (iii) the statements of Hashim recorded in the course of investigations.

(i) The statement of agreed facts

5 The statement of agreed facts revealed the following. In the evening of 6 April 2000, Afzal and Hashim met Ray and a Caucasian lady at the River View Hotel. Ray was an undercover agent attached to the United States Drug Enforcement Agency ("DEA") who was involved in a sting operation leading to the arrest of Afzal, Hashim and Naveed. After the meeting, Afzal and Hashim accompanied Ray to Rays hotel room in River View Hotel. Subsequently, Afzal and Hashim left River View Hotel in a taxi and proceeded to Hotel Grand Central, where Afzal was staying.

6 Later that evening, Hashim left Hotel Grand Central in a taxi and went to River View Hotel again. About 10 minutes later, he left River View Hotel and returned to Hotel Grand Central in another taxi. An hour later, at about 9.30pm, Hashim left Hotel Grand Central and walked to Centrepoint Shopping Centre where he met Naveed, from whom he collected two dark coloured suitcases. Hashim then boarded a taxi and headed for River View Hotel with the two suitcases. Upon arriving at River View Hotel at about 10.10pm, Hashim went up to Rays room.

7 At about 10.30pm, Hashim and Ray came down to the lobby of River View Hotel, where they met Naveed who arrived and handed a bunch of keys to Hashim. Thereafter, Naveed left whilst Hashim and Ray returned to Rays room.

8 Hashim was arrested at the lobby of River View Hotel at about 11.40pm. At that time, he had with him the two suitcases which he had collected from Naveed earlier and brought to the hotel.

9 Afzal was arrested at about 12.25am on 7 April 2000 in his hotel room at Hotel Grand Central. Naveed was arrested at about 10.50pm on 6 April 2000 on his journey back from River View Hotel after handing the bunch of keys over to Hashim.

10 After their arrest, Afzal, Hashim and Naveed were brought to the Major Investigation Branch ("MIB") of the Central Narcotics Bureau ("CNB"). The two suitcases found in Hashims possession were opened and the inner lining of the suitcases were chiselled away in the presence of Afzal, Hashim and Naveed. The drugs which they were allegedly trafficking was found concealed in the sides of both suitcases in the form of a white granular substance. Upon scientific analysis, the white granular substance found in the two suitcases amounted to 4,874g and the diamorphine content thereof was 2,871.2g. Afzal, Hashim and Naveed also had their urine samples tested for drugs and the results were negative for all three of them.

(ii) Evidence of Ray and transcripts of audio and video tapes

11 In June 1999, Ray, a Special Agent with the DEA, was assigned to act in an undercover operation to negotiate the purchase of heroin from Afzal and Hashim. Rays role was to impose as the head of a major international heroin syndicate based in New York. Contact was made with Afzal and Hashim, who chose Singapore as the venue for the drug transaction. The arrangement was that Afzal and Hashim would sell to Ray two kilograms of heroin for US$120,000 cash and another three kilograms on credit. On 5 April 2000, Ray left New York for Singapore for the drug transaction.

12 Hashim contacted Ray in Singapore on 6 April 2000. That evening, Afzal and Hashim met Ray at River View Hotel. The Caucasian lady who was also present was Kimberley Elliot ("Elliot"), also a DEA Special Agent. She was feigning as Rays girlfriend and courier. At that time, Ray was fully wired and had a concealed micro-audio device on him to record the conversation between himself and the others. The parties present were seated at the caf in the hotel when Ray opened a bag and showed Afzal and Hashim the US$120,000 cash which was kept inside. Shortly, Elliot departed from the caf with the bag and money.

13 Thereafter, Ray invited Afzal and Hashim to his room to discuss the transaction in private. A concealed audio-visual device had been set up in Rays room and monitoring equipment was also set up in the adjoining room. The equipment was maintained by a DEA Special Agent until Hashim was arrested.

14 In Rays room, Ray, Afzal and Hashim engaged in conversation on the proposed sale of five kilograms of heroin to Ray. Their conversation was recorded in both audio and video form and were replayed at the trial below. The recordings made secretly in Rays room showed the three parties actively discussing the sale of heroin.

15 Rays evidence was that while Afzal and Hashim were with him in his hotel room, they had told him that the heroin was concealed in suitcases in a highly sophisticated manner. The final agreement was that Ray would take delivery of five kilograms of heroin for US$300,000, of which US$120,000 would be paid in cash and the balance to be remitted later. Afzal and Hashim also agreed to show the heroin to Ray later that evening. They then departed from River View Hotel. Ray testified that Afzal and Hashim appeared to be earnest in discussing the sale of the heroin. Elliot also gave evidence for the prosecution in respect of the meeting between the parties at the caf before Afzal, Hashim and Ray adjourned to Rays room.

16 Later that evening, at about 8.00pm, Hashim returned alone to see Ray in his room. Hashim did not have any suitcases with him but had brought a sample to Ray for testing. The sample tested positive for heroin. Ray, however, told Hashim that he should return with the suitcases containing the heroin in order to conclude the deal.

17 Hashim returned to Rays room about two hours later with the two suitcases. However, when he tried to open them, he found them locked and he did not have the keys to open them. He then made a telephone call to Naveed and left the room with Ray to collect the keys from Naveed at the hotel lobby.

18 After Hashim and Ray had collected the keys and returned to Rays room, they opened the suitcases. The suitcases were empty but emitted an odour of mothballs. Hashim pointed to the sides of the suitcases and said that the heroin was concealed along the walls of the suitcases. However, both Hashim and Ray could not locate the drugs in the suitcases although they had cut open the lining of the suitcases. Hashim then called Afzal to enquire the whereabouts of the heroin. While waiting for Afzals reply, Hashim told Ray that one of the suitcases contained about 1,300g of heroin and the other about 3,200g.

19 Shortly, Afzal called back. After speaking to Afzal, Hashim told Ray that the drugs were compressed against the walls of both suitcases. Hashim and Ray scraped the walls of the suitcases and discovered powder along the walls. Ray tested the powder for heroin and the result was positive. The suitcases were then closed and Ray directed Hashim to accompany him to the hotel lobby with the suitcases and told him that he would receive payment upon handing over the suitcases to his courier (Elliot). Hashim carried both suitcases to the hotel lobby and while waiting for Elliot, as instructed by Ray, he was arrested. Shortly thereafter, Afzal was also arrested in his hotel room at Hotel Grand Central.

(iii) Statements of Hashim admitted in evidence

20 At the trial below, the prosecution sought to admit three statements recorded from Hashim by the Investigating Officer at the CNB. Those statements amounted to a confession and Hashims counsel objected to the admission of the statements on the ground that they were made by Hashim involuntarily. However, a voir dire was conducted and the trial judge, having found that the statements were made voluntarily, admitted Hashims statements in evidence.

21 Hashims statements contained, inter alia, details of his involvement in the drug deal initially with one Lou and later with Ray, the involvement of Afzal in the transaction, the meeting with Ray at the lobby of River View Hotel and in Rays room and the identification of drugs along the walls of the suitcases.

22 The parts of Hashims statements, insofar...

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1 cases
  • Public Prosecutor v Adaikalaraj a/l Iruthayam & Suresh s/o Krishnan
    • Singapore
    • District Court (Singapore)
    • 29 June 2020
    ...do not of themselves constitute the conspiracy but rather constitute evidence of the conspiracy: Muhammad Afzal Khan v Public Prosecutor [2001] SGCA 43 at [34]-[35]. Physical presence with co-conspirators is not essential to proving a conspiracy: Yeo Choon Poh at [26] and [44] (see Stanley ......

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