Nagaenthran a/l K Dharmalingam v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 27 September 2011
• Neutral Citation: [2011] SGCA 49
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeal No 27 of 2010
• Published date: 01 November 2011
• Year: 2011
• Hearing Date: 27 July 2011
• Plaintiff Counsel: Amolat Singh (Amolat & Partners) and Balvir Singh Gill (B S Gill & Co)
• Defendant Counsel: Bala Reddy and Sabrina Choo (Attorney-General's Chambers)
• Citation: [2011] SGCA 49

Chan Sek Keong CJ (delivering the grounds of decision of the court):Introduction

This is an appeal from the decision of the High Court judge (“the Judge”) in Public Prosecutor 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.

The appellant was charged as follows:

YOU ARE CHARGED at the instance of the Attorney-General as Public Prosecutor and the charge against you is:

That you, NAGAENTHRAN A/L K DHARMALINGAM, on the 22nd day of April 2009, at or about 7.45 p.m., at the Woodlands Checkpoint Arrival Motorcycle Lane, Singapore, did import into Singapore a controlled drug specified in Class “A” of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, one (01) packet of granular substance containing not less than 42.72 grams of diamorphine, without any authorisation under the said Act or the Regulations made thereunder and you have thereby committed an offence under section 7 and punishable under section 33 of the Misuse of Drugs Act, Chapter 185.

[emphasis in bold in original]

The Judge found on the evidence that the appellant had actual knowledge of the contents of a packet wrapped in newspaper in his possession (“the Bundle”), and that, in the alternative, the appellant had failed to rebut the presumption of knowledge of the nature of the controlled drug under s 18(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). The Judge further found that the appellant could not rely on the defence of duress in s 94 of the Penal Code (Cap 224, 2008 Rev Ed). Accordingly, he convicted the appellant of the offence charged and sentenced him to death as mandated by s 33 of the MDA read together with the Second Schedule to the MDA.

Background

As the facts of this case are set out fully in Nagaenthran (HC), we do not propose to rehearse them. Briefly, at the material time, the appellant was living in a shared apartment in Johor Bahru with some of his friends (including one Kumarsen and Kumarsen’s wife) and one Shalini, whom the appellant claimed to be his girlfriend.

The appellant testified that he met a Chinese man by the name of King on 21 April 2009, and asked King for a loan of RM500 in order to pay for his father’s heart operation on 23 April 2009 in Kuala Lumpur. King agreed. The next day, 22 April 2009, the appellant met King at a food shop in Johor Bahru at about 6.00pm. King handed the appellant what the appellant believed to be a packet of food together with a transparent plastic packet of curry, telling the appellant to deliver those items to a person in Woodlands, Singapore. King gave the appellant a telephone SIM card, and asked the appellant to put the said card into his phone and activate it upon entering Singapore. King also told the appellant to wait in front of a designated “7-Eleven” convenience store, and to give the items to a person in a “dark blue Camry”. After the delivery, the appellant was to return to Malaysia. King told the appellant that he had to complete the delivery of the items before he would lend the RM500 to the appellant.

Just as the appellant was about to leave with the said items, King invited him into his (King’s) car, where he told the appellant that he had changed his mind and that he needed the appellant to deliver something else instead. King handed the appellant the Bundle. King said that the Bundle contained “company product” or “company spares”. King told the appellant that the Bundle had to be tied to the appellant’s thigh for the delivery. According to the appellant, he initially resisted King’s request, but King slapped and punched him, threatening that if he refused to deliver the Bundle, King would “finish” and “kill” Shalini (the appellant’s girlfriend). King made the appellant remove one side of his trousers and raise his leg such that it rested on the dashboard of King’s car. Thereafter, King tied the Bundle around the appellant’s left inner thigh with yellow tape. King again instructed the appellant to go to Singapore and put the SIM card into his phone, and wait in front of the designated “7-Eleven” convenience store. As before, King informed the appellant that a “dark blue Camry” would come, that the person in the said Camry would be wearing blue-coloured spectacles, and that the appellant was to hand the Bundle to that person.

King then sent the appellant to the appellant’s apartment to prepare for the delivery trip. When the appellant alighted from King’s car, the appellant telephoned Kumarsen and told Kumarsen that he had to take some money to Singapore. Kumarsen agreed to give him a ride. The appellant returned to his room in the apartment and put on a pair of trousers which belonged to one Tamilselvam (Kumarsen’s nephew, who was staying in the appellant’s room). Because Tamilselvam was much bigger sized than the appellant, the appellant had to use a belt to secure the fit. According to the appellant, he wore Tamilselvam’s trousers because King had told him to wear bigger trousers as it was important that what was in the Bundle was not damaged. Although Shalini, Tamilselvam and one Ramesh were in the apartment at that time, the appellant testified that he did not tell any of them what King had done or said to him.

Kumarsen rode his motorcycle, with the appellant riding pillion, to the Woodlands Immigration Checkpoint. At about 7.45pm, the appellant and Kumarsen were stopped at the Woodlands Immigration Checkpoint by the passport screening officer and taken to an office. In the office, the appellant called Shalini. The appellant and Kumarsen were thereafter brought to different rooms by various officers of the Central Narcotics Bureau (“CNB”).

Staff Sergeant Syed Anis Bin Syed Omar Alsree (“SSgt Anis”), a CNB officer, commenced the strip search of the appellant in room C526. During the strip search, the appellant was asked by SSgt Anis to remove his trousers, which he did. At this point, SSgt Anis saw the Bundle secured to the appellant’s left inner thigh with yellow tape over the red pair of boxer briefs that he was wearing. Later, Sergeant Muhd Zaid Bin Adam and Sergeant Shahrulnizam s/o Abdullah (“Sgt Shahrulnizam”) entered the room and SSgt Anis left the room. Sgt Shahrulnizam spoke to the appellant in Tamil, handcuffed him, and then proceeded to remove the Bundle from the appellant’s thigh. While doing so, part of the Bundle’s newspaper wrapping tore, enabling Sgt Shahrulnizam to see that the Bundle contained a transparent plastic bag with white granular substance in it. The white granular substance was subsequently analysed and found to contain not less than 42.72g of heroin.

At the trial, the appellant disputed the Prosecution’s evidence as to what exactly had happened after Sgt Shahrulnizam had removed the Bundle. The appellant’s version of events was that Sgt Shahrulnizam asked him what was in the Bundle, and he replied that he did not know. Sgt Shahrulnizam said “thool” (a Tamil word colloquially used to mean “powder” or, more precisely, drugs), slapped the appellant on the right and left cheeks, punched the appellant in the chest area just above the stomach and uttered a vulgarity. Sgt Shahrulnizam again told the appellant that the Bundle contained “thool”, and the appellant again denied knowledge of the contents of the Bundle. Thereafter, Sgt Shahrulnizam put the contents of the Bundle into two bags and left the room with the bags.

At the trial, Sgt Shahrulnizam testified that after he had removed the Bundle from the appellant’s thigh, he had pointed to the Bundle and asked the appellant, “What is this?”, to which the appellant had replied in English, “Heroin”. Sgt Shahrulnizam denied assaulting the appellant, using vulgarities on him, or trying to make him admit that the Bundle contained heroin.

At about 12.10am on 23 April 2009, Sgt Shahrulnizam handed the seized exhibits to Sergeant Vasanthakumar Pillai s/o M M Iruthaya Nathen Pillai (“Sgt Vasanthakumar”) for the purpose of recording statements from the appellant and Kumarsen in room C527 of the CNB’s Woodlands Team C5 office. Sgt Vasanthakumar recorded Kumarsen’s statement first, and later recorded the appellant’s statement between 1.20am and 1.35am. The material portions of the appellant’s statement recorded by Sgt Vasanthakumar read:Q1)What is this? (Pointing to a zip lock Bag consisting of 1 big packet of white granular substance, Crushed Newspaper & yellow Tape)A1)Heroin.Q2)Whom does it belong to?A2)It belongs to my Chinese friend who goes by the name of king who strapped it on my left thigh.Q3)Why did he strapped it on your left Thigh?A3)He Strapped it on my left thigh is because it was for my safety and no one will find it.Q4)Whom is it to be delivered to?A4)It is to be delivered to one Chinese recipient who will be driving a dark blue Camry and he will be meeting me in front of [the] 7-11 store at Woodlands Transit.Q5)Why do you have to deliver the Heroin?A5)I have to deliver [the] Heroin is because I owe king money & he promised to pass me another five hundred dollars after my delivery.

At the trial, the appellant confirmed that he had given his statement voluntarily to Sgt Vasanthakumar, that no one had threatened or promised him anything vis-à-vis the giving of the statement, and that he had signed the statement as recorded. He did not challenge its admissibility. However, he challenged the accuracy of the statement. He testified, with regard to Q1 (above), that Sgt Vasanthakumar had said to him:...