Muhammad Jefrry v Public Prosecutor

• Court: Court of Appeal (Singapore)
• Judgment Date: 13 August 1996
• Docket Number: Criminal Appeal No 10 of 1996
• Date: 13 August 1996

Muhammad Jefrry

Plaintiff

and

Public Prosecutor

Defendant

[1996] SGCA 44

Yong Pung How CJ

,

Lai Kew Chai J

and

Chao Hick Tin J

Criminal Appeal No 10 of 1996

Court of Appeal

Criminal Law–Statutory offences–Misuse of Drugs Act (Cap 185, 1985 Rev Ed)–Trafficking in heroin–Presumption of possession for purposes of trafficking–Whether accused “gave” heroin to girlfriend–Whether to take into consideration amount given so as to reduce amount stated in charge–Whether accused rebutted presumption–Whether accused guilty of trafficking–Sections 5 (1) (a), 5 (2) and 33 Misuse of Drugs Act (Cap 185, 1985 Rev Ed)–Evidence–Witnesses–Expert witness–Criteria for evaluating expert evidence–Whether expert's professional titles significant–Defence expert witness testifying as to particular medical condition–Whether sufficient to raise such condition to rebut presumption–Words and Phrases–“Traffic”–“Give”–Section 2 Misuse of Drugs Act (Cap 185, 1985 Rev Ed)

The appellant Jefrry was charged with possessing not less than 26.07g of heroin for the purpose of trafficking, an offence under s 5 (1) (a) read with s 5 (2) of the Misuse of Drugs Act (Cap 185, 1985 Rev Ed) (“MDA”), after narcotics officers arrested Jefrry and found 30 sachets of heroin and other drug-related paraphernalia in his flat.

Jefrry claimed that the large amount of heroin was for his personal consumption and that of his girlfriend, Siti. Hence, he contended that the amount of heroin she consumed should be taken into consideration. The defence's expert witness testified that (a) there was no direct correlation between the severity of the withdrawal symptoms and the amount of drugs consumed; Jefrry's youth (28 years old) and good health would result in less severe withdrawal symptoms, which he stated as moderate on the night of his arrest; and (b) Jefrry could dramatically increase his consumption dosage such that he was a severe addict at the time of his arrest, a medical condition known as “reinstatement”. The Prosecution's expert witness testified as to a direct correlation, and that Jefrry only showed mild withdrawal symptoms on the night of his arrest.

The judge found the Prosecution's opinion more convincing and supportable, and concluded that Jefrry was a moderate addict. He also refused to take the amount consumed by Siti into account or consider that Jefrry had merely left the heroin in a box from which she took and consumed it. As the heroin was not for Jefrry's personal consumption, and he failed to rebut the presumption of possession for the purpose of trafficking in s 17 MDA, the judge convicted and sentenced him to death. On appeal, the issues were whether (a) Jefrry had rebutted the presumption, and (b) his giving of heroin to Siti constituted “trafficking”, or whether the amount given should be taken into consideration so as to reduce the amount of heroin in the charge.

Held, dismissing the appeal:

(1) The judge's finding that Jefrry was only a moderate addict was not disturbed. First, he had directed his mind to the value, impressiveness and reliability of the expert evidence, and his preference for the Prosecution expert's opinion was justified. Second, a court was not primarily influenced by a witness's professional titles as it was his knowledge and familiarity with the particular subject matter that was relevant to the assessment of his evidence. Although the defence expert was more titled, his evidence was speculative and theoretical. Third, while “reinstatement” was a medical condition that could exist, it was insufficient to merely point to the existence of such a condition to rebut the presumption: at [106], [107], [109], [111] and [114].

(2) In respect of s 2 MDA, “give” contemplated only a physical act of delivery without any reference to ownership, and an accused was liable for trafficking in the amount he gave to another person for whatever reason. Further, “to traffic” meant transfer of possession from one person to another: at [122] and [125].

(3) Notwithstanding his claim that he was a severe addict, Jefrry was guilty of trafficking as his act of placing heroin in the tissue box for Siti's consumption fell within the meaning of “give” and “to traffic”. In this regard, the amount given to Siti formed part of the total amount of heroin Jefrry trafficked: at [124] and [127].

Antonio Dias v Frederick AugustusAIR 1936 PC 154 (folld)

McLean v Weir Goff and Royal Inland Hospital [1977] 5 WWR 609 (refd)

Ong Ah Chuan v PP [1979-1980] SLR (R) 710; [1980-1981] SLR 48 (refd)

R v Lauze (1981) 60 CCC (2d) 469 (folld)

R v Nittolo (1978) 44 CCC (2d) 56 (folld)

R v Taylor [1974] 5 WWR 40; (1974) 17 CCC (2d) 36 (folld)

R v Verge (1971) 3 CCC (2d) 398 (folld)

Misuse of Drugs Act (Cap 185,1985 Rev Ed)ss 2, 5 (1) (a), 5 (2), 33 (consd);s 17

Narcotic Control Act, RSC1970, c N-1 (Can)s 2

Suresh Damodara (Haridass Ho & Partners) and Goh Aik Leng (Goh Aik Leng & Partners) for the appellant

David Khoo (Deputy Public Prosecutor) for the respondent.

Lai Kew Chai J

(delivering the grounds of judgment of the court):

The charge

1 The appellant was charged in the court below as follows:

You, Muhammad Jefrry Bin Safii, are charged that you on or about 7 July 1995 at about 12.45pm at Block 79, Indus Road #13-477, Singapore, did traffic in a controlled drug specified in Class A of the First Schedule to the Misuse of Drugs Act (Cap 185) to wit, by having in your possession for the purpose of trafficking 31 sachets of substance containing not less than 26.07g of diamorphine at the said premises without any authorisation under the said Act or the regulations made thereunder, and you have thereby committed an offence under s 5 (1) (a) read with s 5 (2) punishable under s 33 of the Misuse of Drugs Act.

The prosecution case

2 On 7 July 1995 Central Narcotics Bureau (“CNB”) officers arrested the appellant at 12.40pm shortly after he left his flat at #13-477 in Blk 79 Indus Road (“the flat”). A chequered paper carrier bag (“chequered carrier bag”) he was carrying was seized from him together with a key and a pager. The chequered carrier bag contained two airmail envelopes with $3,000 cash in each envelope amounting to a total of $6,000 as well as an Ericsson GSM handphone. The appellant then led the CNB officers to his flat. Upon entering, they found a female Malay, Siti Fadzlon bte Mubarak (“Siti”), the appellant's girlfriend, lying on a mattress on the floor and she was arrested. Another Malay woman, one Rahmah bte Rahmat (“Rahmah”) who rented the flat, on entering the said flat, was also arrested.

3 When a CNB officer Staff Sergeant Mohd Supari (“S/Sgt Supari”) asked the appellant if he had anything illegal to surrender, the latter gestured with his face pointing towards the floor. A cut facial tissue box was recovered from the hall containing the following:

(a) disposable lighters,

(b) a piece of tin foil,

(c) a plastic bag with cotton buds; and

(d) a half airmail envelope which contained a sachet of heroin which was later analysed and found to be heroin.

4 On a further search of the hall, S/Sgt Supari found a plastic container with the following items in it:

(a) rolled up dollar notes,

(b) one mini metal scoop,

(c) a pair of scissors and

(d) a piece of tin foil.

5 Shortly afterwards, NO Chan Yew Seng, on searching the toilet, found a white plastic carrier bag on the toilet cistern with the words “Oh Huat Hin Sesame Oil” on it (“white carrier bag”). In the said bag, he saw three airmail envelopes. He handed the white carrier bag to NO Zulkiffli A Rahim who showed it to the appellant.

6 Thereupon S/Sgt Supari asked the appellant questions which the appellant answered in connection with the contents of the white carrier bag. These questions and answers with a translation were as follows:

1. Q: Ini siapa punya: Whose is it?

2. A: Saya punya: Mine

3. Q: Berapa ada kak dalam: How many are there inside?

4. A: Tiga puloh: 30

5. Q: Macham mana ada tiga puloh: How come there are 30?

6. A: Satu ada sepuloh: In one there are ten.

7 Later, S/Sgt Supari counted the number of sachets in the three airmail envelopes in the presence of the appellant and found each airmail envelope contained ten sachets of granular substance making a total of 30 sachets.

8 The CNB officers also recovered the following from the kitchen shelf:

(a) a sachet of 12 new airmail envelopes and

(b) a roll of tin foil.

9 Alongside the above items, there was another cut facial tissue box containing:

(a) plastic spoons,

(b) new plastic sachets and

(c) a thin piece of bamboo with a split in the middle.

10 Investigations later revealed that Siti and Rahmah had played no part in the ownership or possession of the 30 sachets of heroin found in the white carrier bag nor did they have knowledge that it was there. As a result, the charges against Rahmah and Siti were withdrawn and they were given a discharge not amounting to an acquittal. Both of them subsequently testified as prosecution witnesses.

11 At the trial below, Rahmah stated that she became a lessee of the flat sometime in April 1995 and stayed in the flat until June 1995 after which she went to stay with her boyfriend in his apartment. From sometime in June 1995, she allowed the appellant to occupy the flat telling him that, if his finances allowed him, he should pay the $11 rent per month. He would also have to pay the PUB bills. She also stated that at or about the time of the arrest, she was working at the appellant's drinks stall on an evening shift. She earned $800 a month.

12 She was aware that Siti, the appellant's girlfriend, stayed with him at the flat. She returned to the said flat at intervals of two or three days a week to change clothes. She admitted she smoked heroin with the appellant and Siti but it was only for a period of one week - sometime in June as she had problems then. She said...