Ng Chong Teck v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Karthigesu J
• Judgment Date: 26 February 1992
• Neutral Citation: [1992] SGCA 14
• Docket Number: Criminal Appeal No 17 of 1991
• Date: 26 February 1992
• Published date: 19 September 2003
• Year: 1992
• Plaintiff Counsel: RC Tiwary (Leo Fernando)
• Citation: [1992] SGCA 14
• Defendant Counsel: Ong Hian Sun (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: Failure to state defence during taking of cautioned statement,Whether there were objective facts to make appellant's explanation less probable,Criminal Procedure and Sentencing,Statutory presumption of trafficking,Less likely to be believed,Defence at trial of possession of drugs for own consumption,ss 5(a), 17(c) & 33 Misuse of Drugs Act (Cap 185),Appeal against conviction,Cautioned statement,Criminal Law,Statements,(follow title of statute: eg misuse of drugs act),Inference that large quantity of drugs seized not for personal consumption,s 122(6) Criminal Procedure Code (Cap 68),Trafficking in controlled drugs,Failure to rebut presumption,Statutory offences,Trafficking in a controlled drug

Cur Adv Vult

The appellant, Ng Chong Teck, was convicted of trafficking in diamorphine by transporting it from Lorong 1A Toa Payoh to Jalan Novena Barat contrary to s 5(a) of the Misuse of Drugs Act (Cap 185) (`the Act`) and sentenced to death pursuant to s 33 thereof.

The fact that the appellant was in possession of not less than 68.6g of diamorphine at the time of his arrest was not disputed by him. The appellant also did not dispute that the bulk quantity he carried from Lorong 1A Toa Payoh to Jalan Novena Barat, in which the diamorphine was found, weighed 449.9g.

The prosecution`s entire case rested on s 17(c) of the Act (before it was amended by Act 38 of 1989) which provides that

any person who is proved or presumed to have had in his possession more than -

...

(c) 2 grammes of diamorphine (heroin) contained in any controlled drug shall, until the contrary is proved, be presumed to have had that controlled drug in his possession for the purpose of trafficking therein.

It is settled law that s 17(c) creates a rebuttable presumption and that the burden is on the accused person to rebut that presumption on a balance of probabilities. The sole defence of the appellant at the trial was that he was in possession of the diamorphine for his own consumption. The trial judges did not believe him and found that the appellant had not rebutted the presumption that he was in possession of the diamorphine for the purpose of trafficking. Trafficking in more than 15g of diamorphine carries the death penalty.

The appellant was arrested at about 10.30pm on 7 October 1988 soon after the taxi in which he was travelling was stopped by a team of narcotics officers led by Senior Narcotics Officer Lim Chei Yoo (`SNO Lim`) as the taxi was about to enter the car park of a block of apartments off Jalan Novena Barat. The appellant was the only passenger in the taxi. Beside him was a brown briefcase. At the request of SNO Lim the appellant opened the briefcase which had a combination lock. Inside the briefcase, under a Nam magazine were found three plastic packets of a pinkish substance which SNO Lim believed to be diamorphine. This was later found to be correct. When SNO Lim asked the appellant what the contents of the three plastic packets were, he remained silent. The appellant at that time lived at 22 Jalan Novena Barat. A search was then made of his home in his presence but nothing incriminating was found.

The appellant had in fact been trailed from Lorong 1A Toa Payoh to Jalan Novena Barat by SNO Lim and his team of narcotics officers. Earlier that day on 7 October 1988 at about 8.40pm, acting on information received, SNO Lim had assembled together a team of narcotics officers to keep vigilance in the areas of Lorong 1, Lorong 2 and Lorong 1A Toa Payoh. At about 10.20pm a male Chinese carrying a bag was seen by one of the narcotics officers coming out from a car park which serviced a complex of flat dwellings, off Lorong 1A and hailing a taxi. The other narcotics officers keeping vigilance were alerted by `walkie-talkie` and the taxi which the male Chinese carrying a bag had boarded was followed by the narcotics officers to Jalan Novena Barat where it was stopped and the male Chinese arrested. That male Chinese was the appellant.

Following the search of the appellant`s home he was taken to the Central Narcotics Bureau. The next morning at about 2.05am Toh Siew Kean, who was then a senior narcotics officer, recorded a cautioned statement from the appellant. He followed the procedure prescribed under s 122(6) of the Criminal Procedure Code (Cap 68) (`the CPC`). This statement was admitted in evidence without objection from the appellant. The statement was brief. The appellant merely said `I have nothing to say. That is all.`

The foregoing facts introduced by the prosecution in evidence went unchallenged by the appellant.

The effect of the presumption created by s 17(c) was first stated by the Court of Criminal Appeal in Wong Kee Chin v PP . Choor Singh J delivering the judgment of the court said (at p 161):

When it is proved that the quantity of diamorphine which the accused person was transporting (in the dictionary sense of the term) was two or more grams, a rebuttable presumption arises under s 15(2) [now s 17(c)] that the accused had the said controlled drug in his possession for the purpose of trafficking. Proof of the act of transporting plus the presumption under s 15(2) would constitute a prima facie case of trafficking which if unrebutted would warrant his conviction. In those circumstances the burden of proof would clearly shift to the accused and he would have to rebut the case made out against him. The rebuttal will depend upon the evidence placed before the court. If he can convince the trial court by a preponderance of evidence or on the balance of probabilities that the drug was for his own consumption he would be entitled to an acquittal. Factors such as the type of `transporting`, the quantity involved, whether or not the accused is an addict, would be relevant. It would be a question of evidence and the inferences to be drawn from the totality of the evidence before the court.

The Privy Council in Ong Ah Chuan v PP [1981] 1 MLJ 64 set the seal of approval on the Court of Criminal Appeal`s judgment in Wong Kee Chin v PP [1979] 1 MLJ 157 Lord Diplock who delivered the judgment of the Judicial Committee said at p 70: `So, in their Lordships` view, the effect of the Drugs Act was stated with clarity and accuracy in the following passage of the judgment of the Court of Criminal Appeal in Wong Kee Chin v PP [1979] 1 MLJ 157 (at p 161).` He was referring to the passage quoted above.

At p 69 of the report of Ong Ah Chuan v PP [1981] 1 MLJ 64 Lord Diplock made the following observation:

As a matter of common sense the larger the quantity of drugs involved the stronger the inference that they were not

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