Muhammad Ridzuan bin Md Ali v Public Prosecutor and other matters

• Judge: Chao Hick Tin JA
• Judgment Date: 28 May 2014
• Neutral Citation: [2014] SGCA 32
• Citation: [2014] SGCA 32
• Court: Court of Appeal (Singapore)
• Published date: 09 June 2014
• Docket Number: Criminal Appeal No 3 of 2013; Criminal Motions Nos 68 and 69 of 2013
• Plaintiff Counsel: James Bahadur Masih (James Masih & Company),Joseph Tan Chin Aik (Atkins Law Corporation) and Dr Chuang Wei Ping (WP Chuang & Company)
• Defendant Counsel: Francis Ng, Wong Woon Kwong and Ailene Chou (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Statutory Offences,Misuse of Drugs Act,Complicity,Common Intention
• Hearing Date: 27 February 2014

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court):

Three different matters were before us at the hearing on 27 February 2014.

We dealt first with Criminal Motion No 69 of 2013 (“CM 69”), which was an application for leave by the appellant in Criminal Appeal No 3 of 2013 (“CCA 3”), Muhammad Ridzuan Bin Md Ali (“Ridzuan”), to amend his petition of appeal to include two additional grounds of appeal. As the Prosecution did not object to the amendments, we allowed the application.

We dealt next with CCA 3 which was an appeal against the decision of the High Court judge (“the Judge”) in PP v Abdul Haleem bin Abdul Karim and another [2013] 3 SLR 734 (“the GD”) to convict Ridzuan on the following charge (“the capital charge”):

That you MUHAMMAD RIDZUAN BIN MD ALI,

1st charge

on 6 May 2010, at about 6:40 pm, at Block 22 Jalan Tenteram #03-555 Singapore 320022, together with one Abdul Haleem Bin Abdul Karim, NRIC No. SXXXXXXX-X, in furtherance of the common intention of both of you, did traffic in a controlled drug specified in Class “A” of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, by having in your possession for the purpose of trafficking, 7 large packets of substances, that were analysed and found to contain not less than 72.50 grams of diamorphine, without any authorisation under the said Act or the Regulations made thereunder and you have thereby committed an offence under section 5(1)(a) read with section 5(2) of the Misuse of Drugs Act read with section 34 of the Penal Code, Chapter 224, and punishable under section 33 read with the Second Schedule to the Misuse of Drugs Act, and further upon your conviction under section 5(1)(a) read with section 5(2) of the Misuse of Drugs Act read with section 34 of the Penal Code, you may alternatively be liable to be punished under section 33B of the Misuse of Drugs Act.

[emphasis in original]

After hearing the respective parties’ arguments, we dismissed CCA 3 and upheld Ridzuan’s conviction on the capital charge.

Having dismissed CCA 3, we proceeded to consider Criminal Motion No 68 of 2013 (“CM 68”). CM 68 arose from the same set of proceedings as CCA 3 and concerned a challenge by Ridzuan against the Public Prosecutor’s decision not to issue a certificate of cooperation to him pursuant to s 33B(2)(b) Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”), although such a certificate was issued to his co-accused (“Abdul Haleem”). Before delving into the merits of the application, we asked Ridzuan’s counsel, Mr James Bahadur Masih (“Mr Masih”), to first address the Prosecution’s preliminary objection that CM 68 was the incorrect procedure to obtain the remedy sought. After hearing parties’ submissions on the aforementioned point, we dismissed CM 68.

We now give detailed grounds for our decisions in CCA 3 and CM 68.

Background facts

The facts were set out comprehensively in the GD and we will only summarise the material background facts to the extent that they assist in providing the context for the appeal.

Ridzuan was a 27 year-old Singaporean residing at Block 22 Jalan Tenteram #03-555, Singapore 320022 (“the Flat”) at the time of his arrest. Both Ridzuan and Abdul Haleem were previously employed as bouncers in the same night club and knew each other for about a year prior to the date of their arrest.

It was not disputed that Ridzuan had asked Abdul Haleem if he was interested in selling heroin together as partners and that, subsequently, they agreed to purchase one “ball” of heroin to repack and sell. The arrangement was for Ridzuan to deal with the supplier and provide the capital to purchase the heroin. Both of them would do the repacking and also look for customers. The profit was to be divided between them equally.

On 4 May 2010, Ridzuan agreed to purchase one “ball” of heroin from one Afad for $7,000. Afad told Ridzuan to wait for a phone call from one Gemuk, who would tell him when he could collect the heroin from a “jockey”, ie, a courier. At about 2.00pm on 5 May 2010, Gemuk called Ridzuan and told him that a jockey would deliver half a “ball” of heroin that day and the second half subsequently. Having made the necessary arrangements for collection, Ridzuan passed Abdul Haleem $7,000 in cash for the one “ball” of heroin and instructed him to collect the half a “ball” of heroin from the jockey.

After collecting one bundle of heroin from the jockey (which constituted their half a “ball” of heroin), Abdul Haleem returned to the Flat. Both of them proceeded to repack the heroin into 20 small plastic sachets, each containing about eight grams of heroin. There was also a small amount of granular heroin left over which they intended to pack together with the next batch of heroin that they were going to receive. With the bundle of heroin collected were two Erimin-5 tablets which Ridzuan claimed were “samples” from Gemuk.

On 6 May 2010 at about 5.00pm, Ridzuan received a call from Gemuk who told him to “standby” to collect the remaining half a “ball” of heroin. According to Ridzuan’s long statement recorded on 11 May 2010, Gemuk had told him that “some more bundles of heroin” [emphasis added] were going to be passed to him; Ridzuan could just take the bundle that was his and other people would call Ridzuan to make arrangements to collect the rest of the bundles. Abdul Haleem also confirmed that Ridzuan had specifically told him that the jockey would be passing them additional bundles of heroin.

Ridzuan vehemently disputed the accuracy of that part of his long statement referred to in the preceding paragraph. He alleged that he had used the Malay word “dadah” to refer to generic drugs but the interpreter, Ms Marriana (“Marriana”), had translated his words inaccurately. This was the only material dispute in relation to the accuracy of his long statement. Ridzuan asserted that Gemuk never told him that he would be receiving additional bundles of heroin and denied telling Abdul Haleem that the jockey would be passing additional bundles of heroin to Abdul Haleem. Further, Gemuk also did not tell him how many additional bundles there would be or how many persons would be collecting those bundles.

The events that immediately preceded the discovery of the drugs and the arrest of both Ridzuan and Abdul Haleem by the Central Narcotics Bureau (“CNB”) officers were not disputed and are set out in some detail at [7]–[11] of the GD. In brief, Abdul Haleem had returned to the Flat carrying a black sling bag. The black sling bag was subsequently retrieved from the Flat and was found to contain eight bundles similarly covered in black tape. In Ridzuan’s contemporaneous statement given shortly after his arrest, he denied any knowledge of the presence or contents of the eight bundles in the black sling bag and claimed that Abdul Haleem had simply run into his bedroom with the black sling bag. In addition to these eight bundles, CNB officers also recovered from the Flat a plastic bag containing 20 plastic sachets filled with a brown crystalline substance, a single semi-filled plastic sachet with a brown granular substance, other drugs and various drug paraphernalia.

The eight bundles and 21 plastic sachets were analysed by the Health Sciences Authority and the results indicated that the eight bundles as well as the brown crystalline substance found in the 21 plastic sachets contained diamorphine. Heroin is the street name of diamorphine. The diamorphine found in seven of the eight aforementioned bundles formed the subject of the capital charge and the diamorphine found in the remaining bundle and the 21 plastic sachets formed the subject of a non-capital charge (which we note was not before us in the present appeal). Although the bundles were received as an undifferentiated whole, the Prosecution gave the two accused persons the benefit of the doubt and selected the bundle that contained the lowest amount of diamorphine (ie, the bundle containing not less than 9.30 grams of diamorphine) as the bundle that the two accused persons claimed to have received for the purpose of sale by them.

The decision below

Ridzuan and Abdul Haleem were convicted on both the capital and non-capital charges. Abdul Haleem did not appeal against his conviction on both charges. As Ridzuan appealed only against his conviction on the capital charge, we summarise the Judge’s findings which pertain to that charge. His reasoning will be explored in more detail in our analysis below.

The Judge found that Ridzuan was deemed to have been in joint possession with Abdul Haleem of the seven bundles of heroin pursuant to s 18(4) of the MDA as he knew that Abdul Haleem would be collecting additional bundles of drugs from the jockey and Abdul Haleem had collected the said bundles with his consent and on his instructions. Alternatively, Ridzuan was presumed to have been in possession of the said bundles pursuant to s 18(1)(c) of the MDA as he had admitted to having in his possession or custody “the keys of any place or premises or any part thereof in which a controlled drug is found” ie, the Flat. The Judge further observed that no evidence had been adduced to rebut this presumption (see the GD at [35]).

The Judge also held that based on Ridzuan’s own account, Abdul Haleem and he had the common intention to traffic the seven additional bundles of heroin as they had received them from the jockey for the purpose of transporting, sending or delivering the bundles to other customers of Gemuk (see the GD at [36]).

Turning to the question of whether Ridzuan knew the nature of the drug, the Judge held that there was sufficient evidence to establish actual knowledge on Ridzuan’s part that the seven bundles contained heroin. In this regard, he rejected Ridzuan’s belated claim at trial that a crucial portion of his statement had been translated erroneously (see the GD at [39]–[40]; see also above at...