Ng Yang Sek v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 18 August 1997
• Date: 18 August 1997
• Docket Number: Criminal Appeal No 11 of 1997
• Court: Court of Appeal (Singapore)

Ng Yang Sek

Plaintiff

and

Public Prosecutor

Defendant

[1997] SGCA 37

Yong Pung How CJ

,

M Karthigesu JA

and

L P Thean JA

Criminal Appeal No 11 of 1997

Court of Appeal

Criminal Law–Statutory offences–Misuse of Drugs Act–Trafficking in controlled drugs–Appellant using opium as ingredient in medicinal plasters for traditional Chinese medicine–Appellant arrested while transporting opium for burial before manufacturing plasters–Whether sale or giving of plasters constituting act of trafficking–Whether physical act of transporting opium for burial constituting act of trafficking–Sections 2 and 5 Misuse of Drugs Act (Cap 185, 1985 Rev Ed)–Criminal Procedure and Sentencing–Sentencing–Possession of controlled drugs–Appellant using opium as ingredient in medicinal plasters for traditional Chinese medicine –Appellant keeping large quantities of opium in premises–Difficulty in detecting offence–Need for deterrence–Appellant using opium for bona fide medical purposes–Appropriate sentence for offence of possession–Section 8 Misuse of Drugs Act (Cap 185, 1985 Rev Ed)

The appellant was arrested by Central Narcotics Bureau (“CNB”) officers while travelling in a taxi and found in possession of a cloth bag containing two plastic bundles containing 3,449g of raw opium. The appellant was then taken to his flat where another 13,956.1g of raw opium was recovered from various containers.

Two charges of trafficking under s 5 of the Misuse of Drugs Act (Cap 185, 1985 Rev Ed) (“the Act”) were brought against the appellant.

The appellant's defence was that he practised traditional Chinese medicine and intended to use the opium to prepare medicinal plasters to treat sprains, dislocations and rheumatic conditions. One treatment for rheumatism and bone trauma injuries called for opium to be buried under a “Toh Pit” tree for 20 days, before mixing the opium with sweet potatoes and bananas for ten days and blending it with various Chinese herbs. The appellant claimed that on the day of his arrest, he had been bringing the opium to bury under a “Toh Pit” tree.

The trial judge (“the judge”) accepted the appellant's version of the facts but nevertheless held that the sale or giving of these medicinal plastics constituted the act of “trafficking”, and thus convicted the appellant on both charges.

The appellant appealed.

Held, allowing the appeal:

(1) There was strong evidence to support the judge's finding that the appellant had knowledge of and practised traditional Chinese medicine, as well as the fact that the appellant intended to use the opium to manufacture medicinal plasters. The judge's findings of fact would thus be upheld: at [28].

(2) The appellant did not fall within the class of offenders which Parliament had in mind when it enacted s 5 of the Act. The opium in the appellant's possession was never meant or even remotely contemplated to be used in a manner associated with drug addiction. Furthermore, case precedents had shown that there were situations where it would be unduly formalistic to apply the Act literally, especially in view of its avowed purpose and the draconian sanction for trafficking. The present case was one such situation. The appellant's conviction for trafficking would thus be substituted by one for possession: at [41] and [47].

(3) Generally, a sentence should reflect the difficulty in detecting the offence in question where such a sentence would have a general deterrent effect. However, the facts of this case were so unique that it was doubtful if there would be such an effect. On the other hand, it was indubitable that the appellant had been found with a large quantity of drugs. This factor had to be taken into account, especially since the danger, if the drugs should fall into the wrong hands, was that much more exacerbated. Thus, any sentence had to be severe enough to deter the appellant from such conduct in the future. Having regard to the fact that the appellant used the opium for the bona fide treatment of medical conditions, that his patients were not told the contents of the plaster prescription, his co-operation with the police, as well as his clean record and good character, a concurrent sentence of two years' imprisonment and a fine of $10,000 or in default another three months' imprisonment would be imposed per charge: at [49] to [53].

Ong Ah Chuan v PP [1979-1980] SLR (R) 710; [1980-1981] SLR 48 (refd)

Regina v Rousseau (1991) 70 CCC (3d) 445 (refd)

Tan Meng Jee v PP [1996] 2 SLR (R) 178; [1996] 2 SLR 422 (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) ss 121, 122 (6)

Misuse of Drugs Act (Cap 185, 1985 Rev Ed) s 2 (consd);ss 5, 8, 17, 43, Second Schedule

Yang Ing Loong and Doris Lai (Lee & Lee) for the appellant

Sowaran Singh (Deputy Public Prosecutor) for the respondent.

Judgment reserved.

Yong Pung How CJ

(delivering the judgment of the court):

The charges

1 The appellant was tried on two charges of drug trafficking:

1st charge

that he on or about 3 October 1996, between 5.20pm and 5.40pm in Singapore, did traffic in a controlled drug specified in Class A of the First Schedule to the Misuse of Drugs Act (Cap 185), to wit, by transporting 3,449g of opium containing not less than 53.93g of morphine from the vicinity of Block 327 Yishun Ring Road to Punggol Road in a taxi bearing registration number SHA 9327L without any authorisation under the said Act or the Regulations made thereunder and that he thereby committed an offence under s 5 (1) (a) punishable under s 33 of the Misuse of Drugs Act.

2nd charge

that he on or about 3 October 1996 at about 7.15pm at apartment Block 327 Yishun Ring Road #02-1310, Singapore, did traffic in a controlled drug specified in Class A of the First Schedule to the Misuse of Drugs Act (Cap 185), to wit, by having in his possession for the purpose of trafficking 13,956.1g of opium containing not less than 111.66g of morphine at the said apartment without any authorisation under the said Act or the Regulations made thereunder, and he thereby committed an offence under s 5 (1) (a) read with s 5 (2) and punishable under s 33 of the Misuse of Drugs Act.

2 He was tried before the learned Judicial Commissioner Amarjeet Singh, convicted on both charges and sentenced to death. [See PP v Ng Yang Sek [1997] SGHC 118.]

The facts

3 On 3 October 1996 at about 12.30pm, Inspector Ang Choe Seng of the Central Narcotics Bureau (“CNB”) instructed his subordinate Sergeant Ng Chin Huat to gather a team of officers and conduct surveillance on the appellant at Block 8 Hougang Avenue 3. Sgt Ng and five officers then departed for Hougang Avenue 3. They arrived at about 1.30pm and waited there until approximately 4.45pm. The appellant was then observed leaving the block of flats where, according to him, he was playing a game of mahjong with some friends. The appellant boarded a taxi which took him to his residence at Block 327 Yishun Ring Road where he alighted at about 5.15pm. The taxi then parked at the foot of the block of flats. Approximately five minutes later, the appellant was observed entering the same taxi carrying a green cloth bag. The CNB officers tailed the taxi as it travelled along Yishun Central, Yishun Avenue 2, Lentor Avenue, Seletar Expressway and Tampines Expressway. The taxi then left the expressway and filtered off onto Punggol Road. It was intercepted by the CNB officers along Punggol Road at about 5.40pm.

4 The appellant was seated in the front passenger seat and had the green cloth bag between his feet. The CNB officers seized the green cloth bag which contained two plastic bags each containing a bundle wrapped in white masking tape. Each bundle contained a black sticky substance.

5 The appellant was brought back to his home, a four-room HDB flat, where a large aluminium pot and four smaller containers (three plastic tubs and one small aluminium pot) were found kept in kitchen cabinets. The large aluminum pot contained eight plastic packets of a black sticky substance. One of the plastic tubs and the smaller aluminium pot were filled with the black sticky substance while the remaining two plastic tubs were empty but for what appeared to be some remnants of the substance. Dr Lui Chi Pang, scientific officer with the Department of Scientific Services, testified that at the bottom of the filled smaller containers were lumps which from a visual inspection appeared to be banana pulp and sweet potatoes although he did not carry out any scientific analysis of those substances.

6 The black sticky substance in all the containers was analysed by Dr Lui and found to be raw opium, a Class A controlled drug. The two packages found on the appellant which were the subject of the first charge contained 3,449g of raw opium with not less that 53.93g of morphine. The opium seized in the flat amounted to 13,956.1g. Only the contents of two packets recovered from the large aluminium pot were analysed for morphine and found to contain 59.83g and 51.83g of morphine respectively. Under the Second Schedule to the Misuse of Drugs Act (“the Act”), the unauthorised traffic in more than 1,200g of opium containing more than 30g of morphine is punishable with death.

7 The appellant's defence was that he intended to use the opium to prepare medicinal plasters to treat sprains, dislocations and rheumatic conditions. He said he was from China and had come to Singapore in 1958 at the age of 15 to join his father who had arrived earlier. His ancestors had a knowledge of medicine and that knowledge was passed down to him in China and built on after he arrived in Singapore. From 1958 to 1961, the appellant said he worked in a Chinese medical hall called Lam Chee Seng at 124 Cross Street. The Defence produced seven manuals handwritten in the Chinese language which the appellant said were written by his great-great-grandfather. The manuals were recovered from the appellant's flat. According to him...