Nandakishor s/o Raj Pat Ahir v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 26 June 2014
• Neutral Citation: [2014] SGHC 121
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal No 298/2012/01
• Year: 2014
• Published date: 01 July 2014
• Hearing Date: 26 May 2014,16 May 2014
• Plaintiff Counsel: S.K. Kumar (S K Kumar Law Practice LLP)
• Defendant Counsel: Samuel Chua and Teo Lu Jia (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Statutory Offences,Misuse of Drugs Act
• Citation: [2014] SGHC 121

Tay Yong Kwang J: Introduction

The appellant, Nandakishor S/O Raj Pat Ahir (“the Appellant”), was charged with an offence under s 8(b)(ii) and punishable under s 33A(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). He claimed trial to the charge (commonly referred to as a “LT-2” or Long Term 2 charge) which attracted enhanced punishment as he had already been convicted under s 33A(1) of the MDA on 2 November 2006 on two drug consumption charges (“LT-1” or Long Term 1) as a result of his drug-related antecedents. He was unrepresented and conducted his own defence. The District Judge (“DJ”) convicted the Appellant on the LT-2 charge and sentenced him to seven years and six months’ imprisonment and six strokes of the cane.

The Appellant filed a notice of appeal against the conviction. However, in his petition of appeal, he stated that he was dissatisfied with the DJ’s judgment on the ground that “the sentence is unreasonable”. As these documents were filed by him before he had legal representation, I shall treat the appeal as one against both conviction and sentence.

The dispute concerned how the variance of the results of urine tests conducted under s 31(4)(b) of the MDA should be calculated. I heard the parties on 16 May 2014. A similar issue arose in another matter (Originating Summons No 991 of 2013 (“Zheng Jianxing v AG” – grounds of decision have been issued in that case at [2014] SGHC 120) that was scheduled for hearing on 26 May 2014. Mr S K Kumar, the Appellant’s counsel here, is also counsel for the applicant in Zheng Jianxing v AG. I therefore reserved judgment in this appeal pending the determination of Zheng Jianxing v AG. The parties attended before me again on 26 May 2014 immediately after the hearing in Zheng Jianxing v AG. At that hearing, I dismissed the appeal against conviction and sentence. I now set out the grounds for my decision.

Undisputed Facts

The Appellant was arrested on 17 July 2011 and brought to Bedok Police Divisional Headquarters where he provided two bottles of his urine specimen. On 18 July 2011, the bottles containing his urine specimen were sent to the Health Sciences Authority (“HSA") for analysis under s 31(4)(b) of the MDA. Mr Ong Rui Shen (“Mr Ong”) and Ms Leong Huey Sze (“Ms Leong”), Analysts with the Analytical Toxicology Laboratory of HSA, analysed the Appellant’s urine specimen. On 22 August 2011, Mr Ong issued a certificate pursuant to s 16 of the MDA stating that the urine sample he analysed was found to contain 564 nanograms of monoacetylmorphine per ml of urine. On the same day, Ms Leong also issued a certificate pursuant to s 16 of the MDA stating that the urine sample she analysed was found to contain 731 nanograms of monoacetylmorphine per ml of urine. Monoacetylmorphine is a specified drug listed in the Fourth Schedule of the MDA.

Findings of the District Judge in the Trial below

At trial, the Prosecution’s case was that monoacetylmorphine was found in the Appellant’s urine specimen because he had consumed diamorphine in contravention of s 8(b) of the MDA. The Appellant’s defence was that his urine samples tested positive for monoacetylmorphine because he had consumed several types of medication namely, “Dhasedyl DM” (which contains Dextromethorphan), “Panaco” and “Tramadol” (“the medication defence”). The Appellant also argued that the variation in the amount of monoacetylmorphine that was found in each of his two urine samples showed that the HSA analyses were “inaccurate”.¹

The Prosecution called Dr Lui Chi Pang (“Dr Lui”), a Senior Consultant Forensic Scientist with HSA, and Mr Ong to give evidence on the Appellant’s urine sample analysis as well as to provide expert opinion on the effects of consumption of “Dhasedyl DM”, “Panaco” and “Tramadol”. Dr Lui and Mr Ong testified that consumption of any or all of the three medications would not have given rise to presence of monoacetylmorphine in the Appellant’s urine samples.² Mr Ong testified that only the consumption of diamorphine would have given rise to monoacetylmorphine being found in the Appellant’s urine specimen.³ The Appellant did not adduce any expert evidence to dispute these scientific conclusions of the two HSA experts.

Mr Ong also gave evidence that there will be variations between test results as urine is a biological specimen and the detection of drugs in urine requires a multiple step procedure.⁴ He testified that in the present case, the variance of the results of the urine tests was 12%.⁵ He stated that this was well within the internationally accepted 20% limit for urine drug analyses.⁶

The DJ held that the statutory presumption of consumption under s 22 of the MDA was triggered because of the two HSA certificates which stated that monoacetylmorphine was found in both of the Appellant’s urine samples.⁷ Therefore the burden shifted to the Appellant to rebut the presumption that he had consumed the specified drug without authorisation.⁸ The DJ accepted the evidence of the HSA experts and found that the consumption of either one or a combination of the three types of medication would not, as claimed by the Appellant, result in the presence of monoacetylmorphine in his urine specimen.⁹ Accordingly, she rejected the Appellant’s medication defence, held that he had failed to rebut the presumption of consumption¹⁰ and convicted him.¹¹

The Prosecution submitted that the Appellant should be given a sentence that is higher than the mandatory minimum because he had claimed trial and hence the mitigating factor of an early plea of guilt was absent. Further, he had shown himself to be unremorseful by maintaining the constituent facts of his medication defence in his mitigation plea.¹² As mentioned earlier, the DJ sentenced the Appellant to seven years and six months’ imprisonment and six strokes of the cane. The mandatory minimum sentence prescribed by the MDA for the Appellant’s offence is seven years’ imprisonment and six strokes of the cane.

Appeal against Conviction

The Appellant’s only contention on appeal was that the formula used to calculate the variance of the results of the urine tests was incorrect. He contended that if the correct formula had been used, it would have shown that the variance was 26%. He submitted that the Prosecution could not rely on the results of the urine tests since the variance was beyond the internationally accepted 20% limit. Without the urine test results, the presumption of consumption in s 22 of the MDA was not triggered and therefore he should be acquitted.

In order for the Appellant to succeed in having his conviction set aside, he has to show that: the variance of the results of the urine tests was 26%; and the prosecution cannot rely on the results of urine tests where the variance is higher than 20% for the purpose of triggering the presumption of consumption in s 22 of the MDA.

The method of calculating the variance of the results of the urine tests submitted by the Appellant is as follows (see paras 6 and 7 of his written submissions dated 15 May 2014): 6 Our calculations are as follows:-

First the average of the readings is

564 + 731 = 1295 ÷ 2 = 647.5

Second we take the first reading of 564 and divide it with the average

564 ÷ 647.5 = 0.87

Third we take the 2nd reading of 731 ÷ 647.5 = 1.13 (corrected to the nearest decimal point)

Fourthly the difference 1.13 - 0.87 = 0.26 x 100 = 26%.

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