Ng Kwok Chun and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 29 October 1992
• Neutral Citation: [1992] SGCA 71
• Docket Number: Criminal Appeal No 24 of 1991
• Date: 29 October 1992
• Year: 1992
• Published date: 19 September 2003
• Plaintiff Counsel: Lim Choon Mong (Lim & Lim)
• Citation: [1992] SGCA 71
• Defendant Counsel: Bala Reddy (Deputy Public Prosecutor),Michael Teo (Michael SE Teo)
• Court: Court of Appeal (Singapore)
• Subject Matter: Accused arrested while on transit,s 2 Interpretation Act (Cap 1),Statutory offences,Single Convention on Narcotic Drugs 1961 art 1(1)(m),Whether constitutes 'importing into Singapore',Misuse of Drugs Act,Importing controlled drugs,ss 5 & 7Misuse of Drugs Act (Cap 185),Words and Phrases,ss 5 & 7 Misuse of Drugs Act (Cap 185),'Import',Criminal Law,Whether accused had the requisite mens rea for the offence,ss 2, 10 Customs Act (Cap 70)

(delivering the grounds of judgment of the court):

The facts

This appeal raised a short but significant point of law, namely, whether a person imports into Singapore a controlled drug, contrary to s 7 of the Misuse of Drugs Act (Cap 185) (`the Act`) when he brings it into Singapore whilst he is in transit at the airport. We dismissed the appeal at the end of the hearing and we now give our reasons.

The facts of this case, in so far as material, may be stated very shortly. The appellants arrived at Changi Airport in the afternoon of 26 April 1989 from Phuket, Thailand, on board Thai International Airways flight No TG405. When they entered the arrival area of the airport, a customs officer noticed that they appeared to be dragging their legs as they walked and he and other customs officers then kept surveillance on them. The appellants made inquiries at a transfer counter and then moved along the departure/transit area. They were arrested at this point and were searched. Drugs were found in white cloth bags tied to their calves and legs, as well as their socks. The first appellant was carrying 2,328.4g of diamorphine and the second appellant was carrying slightly more, viz 2,510.1g. Both appellants admitted to knowing that they were carrying drugs.

The customs officers also found on them air tickets for the Sabena Belgium Airlines flight No SM284 that was leaving that night for Brussels. That flight would originate from Singapore. It was not disputed that both appellants had confirmed reservations for the flight and had no intention of progressing beyond the transit area at the airport before leaving for Brussels. The appellants` boarding passes for their flight from Phuket were not found on them but it was not disputed that they both knew that the flight from Phuket would land in Singapore and that they would join the flight to Brussels at the Singapore airport.

The appellants were each charged under s 7 of the Act that they did import the diamorphine into Singapore. When their defence was called upon, both appellants chose not to give evidence and relied solely on their statements to officers from the Central Narcotics Bureau. The first appellant`s statement reads:

I admit that I carry heroin. Today (26 April 1989) at about 11.50am, I took a flight from Phuket and arrived in Singapore at about 2pm. I then took my passport and my air ticket to Brussels and went to an air ticket counter to make inquiry of the check-in time for me. I was told that the check-in time would be 4.15pm. I then asked the counter girl where the restaurant was. She then indicated to me the direction of the restaurant. At this time Ah Cheung [the second appellant] was with me. We then walked towards the restaurant and were stopped by two customs officers who told us to follow them to their office. In the office we were searched and they found the packet, tied onto our legs. We were then arrested. I did not intend to come into Singapore. I was merely on transit to Brussels.

The brief statement of the second appellant was as follows:

I merely pass by Singapore and intend to take a flight to Brussels. I did not know that by doing this, I have entered Singapore. This is the first time I travelled.

The thrust of the contentions by counsel for the appellants in the court below was that they had not committed either the actus reus or the mens rea of `importing` drugs into Singapore. The contentions were dismissed by the learned trial judges who held that the word `import` in s 7 of the Act should be given the meaning ascribed to the word by s 2 of the Interpretation Act (Cap 1) and they rejected the contention that the word `import` in the Act should be given a more restrictive meaning [see [1992] 1 SLR 877 ]. The learned trial judges said [at p 882]:

Counsel invited us to give the word `import` a restricted meaning. To accord such an interpretation would, in our view, run counter to the intent of the legislature. The Misuse of Drugs Act is not concerned or connected with collection of customs duty or monitoring the entry of people into Singapore. The law enacted by the Singapore Parliament was to suppress and wipe out drug trafficking and drug importation without authorization under the Act.

In our view, the words `import into Singapore` as used in the Act is not intended to bear the narrow and uniquely specialized meaning for which defence counsel contended. To subscribe to the view advocated by counsel for Ng would negative its purport and be a construction contrary to the intention of the legislature. Our view is therefore in tandem with the opinion expressed by Chan Sek Keong J in Ko Mun Cheung `s case [ [1990] 2 MLJ 337 ] and we are of the view that the word `import` must include the bringing in of any merchandise from a foreign country for sale or use in Singapore as well as for transhipment or distribution overseas. It follows therefore that bringing drugs from elsewhere into Singapore albeit into the transit lounge of the Singapore airport with a view only to proceeding to another destination would fall within the scope and ambit of the word `import` as used in s 7 of the Act.

The appellants were accordingly convicted.

Before the hearing of this appeal, this court had in the appeal in Ko Mun Cheung & Anor v PP [1990] 2 MLJ 337 (HC) [1992] 2 SLR 87 (CA) affirmed the decision of the High Court in that case. In the arguments before us, Mr Lim, for the first appellant, launched a full frontal attack on that decision. Mr Teo, for the second appellant, adopted all of Mr Lim`s submissions.

Ko Mun Cheung`s case

It is accordingly necessary to examine the decision in Ko Mun Cheung 1 in detail. The accused in that case were arrested after they had left the arrival and transit area of the airport and were preparing to enter Singapore. They had only intended to remain in Singapore overnight and were to catch a flight to Amsterdam the next day. The drugs that they carried with them were intended for Amsterdam and not Singapore. It was argued that these facts showed that they had not imported the drugs into Singapore contrary to s 7 of the Act but had only contravened s 5 of the Act by being in possession of drugs. At first instance, Chan Sek Keong and Yong Pung How JJ (as they then were) rejected the argument. Reliance was placed on the Canadian decision in R v Geesman [1970] 13 CRNS 240 as Canada had, like Singapore, ratified the United Nations` Single Convention on Narcotic Drugs 1961. In Geesman [1970] 13 CRNS 240 the court held that the word `import` bore its ordinary meaning, ie `to bring or cause to be brought in something from a foreign country`. The learned trial judges in Ko Mun Cheung [1990] 2 MLJ 337 (HC) [1992] 2 SLR 87 (CA) fortified their reasoning by applying the definition of `import` contained in s 2 of the Interpretation Act (Cap 1) which reads:

(1) In this Act, and in every written law enacted before or after the commencement of this Act, the following words and expressions shall, without prejudice to anything done prior to the commencement of this Act, have the meanings respectively assigned to them unless there is something in the subject or context inconsistent with such construction or unless it is therein otherwise expressly provided:

...

`import`, with its grammatical variations and cognate expressions, means to bring or cause to be brought into Singapore by land, sea or air;

On appeal, it was held that the meaning of `import` was that ascribed to the word by the Interpretation Act and the argument that `import` in s 7 of the Act should be given a meaning similar to that in customs and revenue legislation was rejected. The court did not find it necessary to consider in detail the decision in Geesman [1970] 13 CRNS 240 and it was content to say that the decision in Geesman [1970] 13 CRNS 240 lent support to the view that s 7 of the Act is contravened `... when the drugs are brought into Singapore regardless of whether or not Singapore is the ultimate destination of the drugs`.

Meaning of `import`

Before us, Mr Lim contended that the decision in Ko Mun Cheung [1990] 2 MLJ 337 (HC) [1992] 2 SLR 87 (CA) ignored the need for `import` to be an active act. He drew our attention to the decision of this court in Seow Koon Guan v PP [1978] 2 MLJ 45 a decision on `trafficking` drugs contrary to s 5 of the Act, in which it was held that mere possession of drugs in preparation to do an act of trafficking, without more, did not amount to trafficking. In our view, this argument begged the question of the meaning to be ascribed to `import` in s 7 of the Act since if the act of knowingly entering Singapore with the drugs amounts to importation of the drugs, then it cannot be said that such an act is mere passive preparation.

We therefore turn to examine the meaning of `import` in s 7 of the Act. As there is no definition of `import` in the Act itself, the issue is whether there is anything in the subject or the context of s 7 of the Act that is inconsistent with the meaning ascribed to it by s 2 of the Interpretation Act (Cap 1). We start first with the legislative intent of the Act. The long title of the Act states that it is an Act `... for the control of dangerous or otherwise harmful drugs and for purposes connected therewith`. The purpose of the Act has been described by the Privy Council in Ong Ah Chuan v P P 4 at p 72 as follows:

The social object of the Drugs Act is to prevent the growth of drug addiction in Singapore by stamping out the illicit drug trade and, in particular, the trade in those most dangerously addictive drugs, heroin and morphine.

The purpose of the Act was also considered in this court in Lau Chi Sing v PP. 5 It was argued that for the purpose of trafficking in drugs by transporting them contrary to s 5 of the Act, it was necessary that the destination of the transportation be within Singapore. This court rejected the...