Muhammad Ridzuan bin Md Ali v PP

• Judgment Date: 28 May 2014
• Date: 28 May 2014
• Docket Number: Criminal Appeal No 3 of 2013; Criminal Motions Nos 68 and 69 of 2013
• Court: Court of Appeal (Singapore)

Muhammad Ridzuan bin Md Ali

Plaintiff

and

Public Prosecutor and other matters

Defendant

[2014] SGCA 32

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

,

V K Rajah JA

,

Woo Bih Li J

and

Quentin Loh J

Criminal Appeal No 3 of 2013; Criminal Motions Nos 68 and 69 of 2013

Court of Appeal

Criminal Law—Complicity—Common intention—Pre-arranged plan to purchase drugs for sale—Collection of additional bundles of drugs by accomplice—Whether common intention to collect specific number of bundles of heroin—Section 34 Penal Code (Cap 224, 2008 Rev Ed)

Criminal Law—Statutory offences—Misuse of Drugs Act (Cap 185, 2008 Rev Ed) —Trafficking of controlled drugs without authorisation—Collection of additional bundles of drugs by accomplice—Accused denying knowledge of quantity or nature of drugs—Whether elements of charge of trafficking made out—Sections 18 (4), 18 (1) (c) and 18 (2) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal Procedure and Sentencing—Criminal motion—Applicant seeking order that Public Prosecutor reconsider decision not to issue certificate of substantive assistance—Whether correct procedure—Sections 29 A (2),29 A (3) and 29 A (4) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

The appellant, Ridzuan, had been jointly charged with one Abdul Haleem for trafficking in 72.50 g of diamorphine in furtherance of a common intention pursuant to s 5 (1) (a) read with s 5 (2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘the MDA’), read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed) (‘the PC’). The offence was punishable by death under s 33 of the MDA read with the Second Schedule to the MDA.

Ridzuan and Abdul Haleem had entered into a partnership to purchase, repack and sell one ‘ball’ of heroin (the street name for diamorphine). Ridzuan made arrangements with one Gemuk to collect half a ‘ball’ of heroin first and the second half subsequently. After Abdul Haleem had successfully collected the first half ‘ball’ of heroin, Ridzuan received a call from Gemuk about collecting the remaining half ‘ball’. According to Ridzuan's long statement, Gemuk had informed him that more bundles of heroin were going to be passed to him; Ridzuan could take his bundle and other people would arrange to collect the rest of the bundles from him. Ridzuan disputed the accuracy of that part of his long statement and averred that he had used the Malay word ‘dadah’ to refer to generic drugs but the interpreter had translated it inaccurately. Ridzuan also denied Abdul Haleem's allegation that he had been specifically told by Ridzuan that additional bundles of heroin were being passed to them. Ridzuan asserted that Gemuk never told him that the additional bundles would contain heroin or how many additional bundles there would be.

Both Ridzuan and Abdul Haleem were arrested shortly after Abdul Haleem had returned from collecting the second delivery of drugs. The black sling bag which Abdul Haleem had been carrying was retrieved from the flat and found to contain eight bundles similarly covered in black tape. The diamorphine found in seven of the eight aforementioned bundles formed the subject of the capital charge.

The trial judge convicted both Ridzuan and Abdul Haleem on the capital charge. As regards the sentence to be imposed, the trial judge found that both Ridzuan and Abdul Haleem satisfied the requirements under either s 33 B (2) (a) (ii) or s 33 B (2) (a) (iii) of the MDA. However, unlike Abdul Haleem, Ridzuan did not satisfy s 33 B (2) (b) of the MDA as he had failed to obtain a certificate of substantive assistance from the Public Prosecutor. Thus, the alternative sentencing option of life imprisonment under s 33 B (1) (a) of the MDA could not be considered and Ridzuan was accordingly sentenced to death.

Ridzuan appealed against his conviction and also applied via criminal motion (‘CM 68’) for an order directing the Public Prosecutor to reconsider his decision not to issue the certificate in his favour.

Held, dismissing the appeal against conviction and the criminal motion:

(1) Ridzuan had actual knowledge of the nature of the drugs in the additional bundles that were passed to Abdul Haleem. The trial judge did not err in finding that it was unlikely Ridzuan would have failed to correct the interpreter had she misinterpreted his words in his long statement which, in any event, also contained other evidence that demonstrated that Ridzuan had actual knowledge of the nature of the drugs in these bundles. He also did not err in accepting the veracity of Abdul Haleem's evidence. Further, it was reasonable to infer from Ridzuan's failure to inquire into how he was to identify the bundle that belonged to him, that he knew that all the other bundles contained similar quantities of heroin: at [48] to [51] .

(2) The common intention of both Ridzuan and Abdul Haleem had been to collect, in addition to their own half ‘ball’ of heroin, any number of bundles of heroin handed to them to distribute to Gemuk's other customers subsequently. This clearly encompassed the intention to possess the seven additional bundles of heroin for the purpose of trafficking. The elements of s 34 of the PC were made out in the present case and constructive liability for the capital offence could be imputed onto Ridzuan. Nevertheless, in the circumstances, the issue as to the elements of the offence of trafficking had been made out was additionally considered: at [57] and [58] .

(3) To be deemed in joint possession of drugs pursuant to s 18 (4) of the MDA, an accused person had to have known of and consented to the possession of drugs by another. This was a question of fact. Mere acquiescence to or condoning the possession of drugs by another did not amount to consent; there had to be some participation by the accused person in activity relating to the drugs. In addition, an accused person had to exercise some measure of control over the drugs being deemed to be in his or her possession. Here, ‘control’ referred to an accused person's power or authority over the drugs in question and not physical control: at [62] , [63] and [68] .

(4) Ridzuan had been instrumental in putting Abdul Haleem in actual physical possession of the additional bundles of drugs. The quantity and nature of the drugs in Abdul Haleem's possession did not matter as Ridzuan had known and consented to Abdul Haleem being in possession of drugs of any nature or quantity. Ridzuan was thus deemed to be in joint possession of the drugs with Abdul Haleem: at [65] and [68] .

(5) An accused person did not need to have clear knowledge that he was in possession of the said drugs in order for the presumption of possession under s 18 (1) (c) of the MDA to arise. The presumption arose here as Ridzuan had admitted to having in his custody the keys to the flat in which the black sling bag was found. No evidence was adduced to rebut the presumption: at [70] and [71] .

(6) Although Ridzuan was found to have actual knowledge of the nature of the drugs in the additional bundles that were passed to Abdul Haleem, the trial judge's other findings were considered for completeness. Physical possession of the drugs by an accused person was unnecessary for the presumption of knowledge to arise pursuant to s 18 (2) of the MDA. The trial judge was also correct in concluding that Ridzuan's conduct amounted to wilful blindness and that the presumption of knowledge had therefore not been rebutted: at [72] , [74] , [75] and [83] .

(7) CM 68 was not an appeal. There could be no true appeal against Ridzuan's sentence until and unless the Public Prosecutor's decision not to issue the certificate of substantive assistance was set aside and a certificate issued. Moreover, the reliefs sought in CM 68 were clearly in the nature of a mandatory order. The issuance of prerogative orders was an expression of the High Court's supervisory jurisdiction: at [92] to [94] .

(8) The Court of Appeal would only be seised of the jurisdiction that had been conferred upon it by the relevant legislative provisions. Its jurisdiction was generally of an appellate nature and there were no provisions in the Supreme Court of Judicature Act (‘the SCJA’) conferring supervisory jurisdiction on it. More specifically, in relation to its criminal jurisdiction, s 29 A (2) of the SCJA provided that it had no jurisdiction under that provision to hear any proceedings other than an appeal against a decision made by the High Court in the exercise of its original criminal jurisdiction: at [96] to [98] .

(9) Section 29 A (4) of the SCJA only conferred on the Court of Appeal power where it had already been seised of jurisdiction to hear a particular matter. Section 29 A (3) of the SCJA would only be engaged where there was already an appeal before the Court of Appeal and the application was incidental to that appeal. However, CM 68 was a free-standing application seeking reliefs in the nature of a mandatory order. In the premises, neither s 29 A (4) nor s 29 A (3) of the SCJA applied: at [99] and [100] .

(10) The proper forum to hear the merits of the substantive arguments in CM 68 was the High Court. The correct procedure to invoke the High Court's supervisory jurisdiction was by way of an application under O 53 of the ROC for judicial review: at [102] .

Abdullah bin A Rahman v PP [1994] 2 SLR (R) 1017; [1994] 3 SLR 129 (refd)

Au Wai Pang v AG [2014] 3 SLR 357 (refd)

Chai Chien Wei Kelvin v PP [1998] 3 SLR (R) 619; [1999] 1 SLR 25 (refd)

Daniel Vijay s/o Katherasan v PP [2010] 4 SLR 1119 (folld)

Denko-HLB Sdn Bhd v Fagerdala Singapore Pte Ltd [2002] 2 SLR (R) 336; [2002] 3 SLR 357 (refd)

Dinesh Pillai a/l K Raja Retnam v PP [2012] 2 SLR 903 (folld)

Foong Seow Ngui v PP [1995] 3 SLR (R) 254; [1995] 3 SLR 785 (refd)

Haron bin Mundir v Singapore Amateur Athletic Association [1991] 2 SLR (R) 494; [1992] 1 SLR 18 (refd)

Hartej Sidhu v PP [1994] 2 SLR (R) 541; [1994] 2 SLR 598 (f...