Muhammad bin Abdullah v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 12 January 2017
• Neutral Citation: [2017] SGCA 4
• Plaintiff Counsel: Masih James Bahadur (James Masih & Company), Rajan Supramaniam (Hilborne Law LLC) and Chuang Wei Ping (WP Chuang & Co)
• Date: 12 January 2017
• Docket Number: Criminal Appeals Nos 21 and 22 of 2015 (Criminal Motion No 53 of 2016)
• Hearing Date: 17 August 2016
• Subject Matter: Statutory Offences,Misuse of Drugs Act,Criminal Law
• Published date: 18 January 2017
• Defendant Counsel: Wong Siew Hong and Favian Kang Kok Boon (Eldan Law LLP) and Joseph Tan Chin Aik (Teo Keng Siang LLC),and Francis Ng and Marcus Foo (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Citation: [2017] SGCA 4
• Year: 2017

Tay Yong Kwang JA (delivering the judgment of the court): Introduction

In the early morning of 24 May 2012, Yu Ching Thai (“the Second Appellant”), a Malaysian, then 30 years of age, rode his motorcycle into Singapore. Four bundles weighing approximately half a pound each (ranging from 227.4g – 229.7g) were concealed in a secret compartment of the motorcycle (hereafter referred to collectively as “the Bundles”).

That evening, after finishing work, the Second Appellant met with Muhammad bin Abdullah (“the First Appellant”), a Singaporean, then 40 years of age, in the car that the First Appellant was driving. The Second Appellant handed over the Bundles to the First Appellant in the car and received $9,800 in return. The Second Appellant was arrested by Central Narcotics Bureau (“CNB”) officers shortly after he alighted from the car but the First Appellant managed to evade arrest for some time before he was subsequently arrested at a block of flats in Woodlands. When the CNB officers approached the First Appellant at that location, they saw him throwing a white plastic bag containing the Bundles over the parapet wall of the third floor corridor. The Bundles, together with a red and black sling bag, were subsequently recovered from the ground floor of that block.

The Bundles, weighing 915.60g in total, were subsequently found to contain not less than 19.84g of diamorphine. The red and black sling bag was found to contain three small packets containing 0.70g of diamorphine. These formed the subject of a charge of possession which was not the subject of the joint trial in the High Court.

In the joint trial in the High Court, the Appellants claimed trial to their respective charges under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”):¹

That you, MUHAMMAD BIN ABDULLAH,

on the 24th day of May 2012 at or about 7.15pm, at the third floor corridor near the lift lobby of Block 707 Woodlands Ave 4, Singapore, did traffic in a Class A controlled drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), to wit, by having in your possession for the purpose of trafficking, four (04) packets containing 915.60 grams of granular/powdery substance which were analysed and found to contain not less than 19.84 grams of diamorphine, without authorisation under the MDA or the Regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) read with section 5(2) of the MDA and punishable under s 33(1) of the MDA, and further, upon your conviction under section 5(1)(a) read with section 5(2) of the MDA, you may alternatively be liable to be punished under s 33B of the MDA.

That you, YU CHING THAI,

on the 24th day of May 2012 at or about 6.17pm, at the carpark of Block 315 Woodlands Street 31, Singapore, did traffic in a Class A controlled drug listed in the First Schedule to the MDA, to wit, by giving four (04) packets containing 915.60 grams of granular/powdery substance which were analysed and found to contain not less than 19.84 grams of diamorphine, to one Muhammad bin Abdullah (NRIC: SXXXXXXXX), without authorisation under the MDA or the Regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) punishable under s 33(1) of the MDA, and further, upon your conviction under section 5(1)(a) of the MDA, you may alternatively be liable to be punished under s 33B of the MDA.

On 14 July 2015, the trial judge (“the Judge”) convicted the Appellants.² In so doing, the Judge disbelieved the First Appellant’s account that he intended to keep one of the Bundles for his own consumption and rejected the Second Appellant’s defence that he could not have intended to traffic the amount of diamorphine he was charged with because he was ignorant of the death penalty. However, the Judge accepted that the First Appellant had intended to keep approximately one-third of a bundle for his own consumption. After doing some calculations, the Judge ascertained the average weight of diamorphine in each of the Bundles (dividing the total weight of diamorphine in the Bundles by the total weight of the Bundles) and reduced the amount of diamorphine in the charge by the average diamorphine content of ten small packets (approximately one-third of a bundle). The Judge thereafter convicted the First Appellant on the following amended charge:³

That you, MUHAMMAD BIN ABDULLAH,

on the 24th day of May 2012 at about 7.15pm, at the third floor corridor near the lift lobby of Block 707 Woodlands Drive 40, Singapore, did traffic in a Class A controlled drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), to wit, by having in your possession for the purpose of trafficking, four (04) packets containing 840.6 grams of granular/powdery substance which were analysed and found to contain not less than 18.21 grams of diamorphine, without authorisation under the MDA or the Regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) read with section 5(2) of the MDA and punishable under s 33(1) of the MDA, and further, upon your conviction under section 5(1)(a) read with section 5(2) of the MDA, you may alternatively be liable to be punished under s 33B of the MDA.

There was an error in the street name in this amended charge but that is immaterial in these appeals.

The Judge sentenced both Appellants to suffer the punishment of death under s 33 of the MDA. The sentences were mandatory as the Judge found that the First Appellant was not a mere courier of drugs within the meaning of s 33B(2)(a) of the MDA, as accepted by counsel for the First Appellant. In respect of the Second Appellant, it was accepted that he was a courier but the Public Prosecutor (“PP”) decided not to issue a certificate under s 33B(2)(b) of the MDA (“the Certificate”) as the Second Appellant had not rendered substantive assistance to the CNB. Counsel for the Second Appellant accepted that decision.

Both Appellants appealed against their respective conviction and sentence. Shortly before the hearing of their appeals, the Second Appellant filed Criminal Motion No 53 of 2016 (“CM 53/2016”) for an order that the PP “direct the CNB to take a statement or statements from the [Second Appellant] to enable the [Second Appellant] to render substantive cooperation to the CNB in disrupting drug activities within and outside Singapore under section 33B(2)(b) of the MDA”. The Second Appellant also sought an order that “the PP do consider such statement or statements as may be given by the [Second Appellant] when deciding whether to issue a Certificate of Substantive Assistance to the [Second Appellant] under section 33B(2)(b) of the MDA”. At the hearing of these appeals, we dismissed CM 53/2016 and reserved judgment in respect of the appeals. We now give our judgment on the appeals and elaborate on our reasons for dismissing CM 53/2016.

The background facts

As the facts of the case have been set out by the Judge in his Grounds of Decision (“GD”) in Public Prosecutor v Muhammad bin Abdullah and another [2015] SGHC 231, we will state only the facts that are pertinent for these appeals. There was some ambiguity in the submissions on the use of the terms “bundle” and “packet”. In this judgment, we will use “bundle” to refer to drugs that were packed in a similar manner as the Bundles which were the subject matter of the two charges at trial and “small packet” to refer to the 7.5–8g packets which the First Appellant would usually re-pack the drugs into where necessary.

Prior to the date of their arrest, the Second Appellant had delivered drugs to the First Appellant on three occasions. Therefore, between 9⁴ and 24 May 2012 (the date of the arrest), the Second Appellant made four deliveries of bundles containing diamorphine to the First Appellant in a similar manner. The Second Appellant, who resided in Johor Baru, Malaysia,⁵ would ride his motorcycle into Singapore in the early morning at 4-5am,⁶ with the bundles containing diamorphine concealed in a secret compartment in his motorcycle.⁷ He would deliver the drugs to the First Appellant at the end of the working day. The Second Appellant had been working in Singapore since 2001⁸ as an aluminium-grille installer⁹ and every day, except Sundays,¹⁰ he would ride into Singapore at about the same time, park his motorcycle in the same car park at Blocks 428 and 429 Woodlands Street 41 and wait to be picked up in a lorry for work in various residential and industrial buildings. During the time he was at work, the drugs would be left in his motorcycle.¹¹ After finishing work, he would be brought back to the same car park and on those four occasions, he would contact the First Appellant and thereafter meet him at a designated location to deliver the drugs to him.¹² In the course of the four deliveries, the number of bundles delivered by the Second Appellant to the First Appellant gradually increased – from two bundles on the first delivery to three bundles on the second delivery and finally to four bundles each on both the third and fourth deliveries.¹³

The Second Appellant testified that he had relapsed and started consuming diamorphine a few years prior to his arrest after his wife left him to return to Vietnam.¹⁴ He would generally obtain his supply of drugs for his own consumption from an Indian man in Johor Baru, known to him as “Ah Zhor”.¹⁵ His evidence as to how long he knew “Ah Zhor” was inconsistent as he initially claimed he knew “Ah Zhor” for “four years”¹⁶ but subsequently changed this at trial to “two”.¹⁷ In late April 2012,¹⁸ the Second Appellant expressed to “Ah Zhor” his interest in delivering drugs because his monthly income of about S$2,000¹⁹ was insufficient to feed his drug consumption habit.²⁰ For every bundle of drugs he delivered on behalf of “Ah Zhor”, the Second Appellant would be paid RM500.²¹ He would usually collect the drugs...