Nagaenthran a/l K Dharmalingam v PP

• Judgment Date: 27 September 2011
• Date: 27 September 2011
• Docket Number: Criminal Appeal No 27 of 2010
• Court: Court of Appeal (Singapore)

Nagaenthran a/l K Dharmalingam

Plaintiff

and

Public Prosecutor

Defendant

[2011] SGCA 49

Chan Sek Keong CJ

,

Andrew Phang Boon Leong JA

and

VK Rajah JA

Criminal Appeal No 27 of 2010

Court of Appeal

Criminal Law—General exceptions—Duress—Appellant importing controlled drug into Singapore under threat that unless delivery was made his girlfriend would be killed—Whether defence of duress proved on balance of probabilities—Section 94 Penal Code (Cap 224, 2008 Rev Ed)

Criminal Law—Statutory offences—Misuse of Drugs Act—Importing controlled drugs without authorisation—Drugs contained in a wrapped bundle strapped to appellant's thigh—Appellant arguing that he did not know contents of bundle—Whether appellant had requisite knowledge for finding liability under s 7 Misuse of Drugs Act (Cap 185, 2008 Rev Ed) —Section 7 Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Evidence—Presumptions—Presumptions under s 18 Misuse of Drugs Act (Cap 185, 2008 Rev Ed) —Drugs contained in wrapped bundle strapped to appellant's thigh—Appellant arguing that he did not know contents of bundle—Whether appellant able to rebut presumption of knowledge in s 18 (2) Misuse of Drugs Act (Cap 185, 2008 Rev Ed) —Section 18 (2) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

The appellant, aged 22 years, was charged with importing into Singapore 42.72 g of diamorphine pursuant to s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘MDA’) , an offence punishable by death under s 33 of the MDA read with the Second Schedule to the MDA.

The appellant lived in a shared apartment in Johor Bahru, Malaysia, with some of his friends and one Shalini (whom the appellant claimed to be his girlfriend) . He testified that he had met one King in Johor Bahru to ask for a loan to pay for his father's heart operation. According to the appellant, he had to complete the delivery of a packet wrapped in newspaper (‘the Bundle’) to a location in Singapore before King would lend the money. King told him that the Bundle contained ‘company product’ or ‘company spares’, and tied the Bundle to his thigh. The appellant claimed that although he initially resisted King's request, King slapped and punched him, threatening that if he refused to deliver the Bundle, King would ‘finish’ and ‘kill’ Shalini. In the circumstances, the appellant attempted to deliver the Bundle.

At the Woodlands Immigration Checkpoint, officers of the Central Narcotics Bureau (‘CNB’) found the Bundle tied to the appellant's thigh. The Bundle contained white granular substance which, on analysis, was shown to be not less than 42.72 g of diamorphine. A CNB officer testified that the appellant mentioned that the Bundle contained ‘thool’ (a Tamil word colloquially used to mean ‘powder’ or, more precisely, drugs) . Another CNB officer testified that when asked about the contents of the Bundle, the appellant replied in English, ‘Heroin’.

The trial judge found that (a) the appellant had actual knowledge that the Bundle contained heroin; (b) the appellant had failed to rebut the presumption that he knew the nature of the drug under s 18 (2) of the MDA; and (c) the defence of duress under s 94 of the Penal Code (Cap 224, 2008 Rev Ed) was not made out.

Held, dismissing the appeal:

(1) The distinction between the broad and narrow interpretation of the phrase ‘the nature of that drug’ in s 18 (2) of the MDA given in Tan Kiam Peng v PP [2008] 1 SLR (R) 1 had no practical significance for the purposes of rebutting the presumption of knowledge of the nature of the controlled drug. All the accused had to do in order to rebut the presumption was to prove, on a balance of probabilities, that he did not know the nature of the controlled drug referred to in the charge: at [22] and [23].

(2) The phrase ‘the nature of that drug’ in s 18 (2) refers to the actual controlled drug found in the ‘thing’ (eg, the bag or container, etc) that was in the possession of the accused at the material time: at [24].

(3) In the present case, as the appellant was found to be in possession of the Bundle containing a controlled drug, he was presumed to have had that drug in his possession under s 18 (1) of the MDA unless he proved the contrary. He was unable to do so because on the facts of the case he could not prove that he had no knowledge of the Bundle or the contents of the Bundle. Consequently, the s 18 (2) presumption applied, and the appellant was presumed to have known the nature of the controlled drug in his possession, unless he proved the contrary. This, the appellant again failed to do: at [25] and [26].

(4) An accused could rebut the presumption of knowledge by proving that he had no knowledge of the nature of the controlled drug found in his possession. The accused had to adduce sufficient evidence to demonstrate, on abalance of probabilities, that he did not know thenatureof that drug. Whether he successfully rebutted the presumption of knowledge was a question of fact in each case, and turned very much on the trial judge's assessment of the credibility of the defence witnesses (especially that of the accused, if he chose to testify) : at [27], [28] and [31].

(5) With regard to the defence of duress, there was no credible evidence of a threat to kill Shalini. Indeed, even if there was such a threat, it could not have reasonably caused the apprehension that instant death to Shalini would be the consequence of non-compliance with King's request to deliver the Bundle. Accordingly, there was no duress under s 94 of the Penal Code: at [32] and [33].

[Observation: Wilful blindness was merely ‘lawyer-speak’ for actual knowledge that is inferred from the circumstances of the case. It was an indirect way to prove actual knowledge; ie, actual knowledge was proved because the inference of knowledge was irresistible and was the only rational inference available on the facts. It was a subjective concept, in that the extent of knowledge in question was the knowledge of the accused and not that which might be postulated of a hypothetical person in the position of the accused. Wilful blindness was not negligence or an inadvertent failure to make inquiries. It referred to the blindness of a person to facts which, in the relevant context, he deliberately refused to inquire into. Such failure to inquire might sustain an inference of knowledge of the actual or likely existence of the relevant drug. It had to also be emphasised that where the Prosecution sought to rely on actual knowledge in the form of wilful blindness, the alleged wilful blindness had to be provedbeyond a reasonable doubt: at [30].]

Khor Soon Lee v PP [2011] 3 SLR 201 (refd)

Pereira v DPP (1988) 63 ALJR 1 (refd)

PP v Lim Boon Hiong [2010] 4 SLR 696 (refd)

PP v Nagaenthran a/l K Dharmalingam [2011] 2 SLR 830 (refd)

Tan Kiam Peng v PP [2008] 1 SLR (R) 1; [2008] 1 SLR 1 (refd)

Warner v Metropolitan Police Commissioner [1969] 2 AC 256 (refd)

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) ss 18 (1) , 18 (2) (consd) ;ss 7, 33, First Schedule

Penal Code (Cap 224, 2008 Rev Ed) s 94

Amolat Singh (Amolat & Partners) and Balvir Singh Gill (BS Gill & Co) for the appellant

Bala Reddy and Sabrina Choo (Attorney-General's Chambers) for the respondent.

Chan Sek Keong CJ

(delivering the grounds of decision of the court) :

Introduction

1 This is an appeal from the decision of the High Court judge (‘the Judge’) in PP v Nagaenthran a/l K Dharmalingam [2011] 2 SLR 830 (‘Nagaenthran (HC) ’) convicting the appellant, Nagaenthran a/l K Dharmalingam, aged 22 years, of the charge set out below. We dismissed the appeal at the conclusion of the hearing. We now give our grounds of decision.

2 The appellant was charged as follows:

YOU ARE CHARGED at the instance of the Attorney-General as Public...