Nguyen Tuong Van v Public Prosecutor

CourtHigh Court (Singapore)
JudgeKan Ting Chiu J
Judgment Date20 March 2004
Neutral Citation[2004] SGHC 54
Citation[2004] SGHC 54
Docket NumberCriminal Case No 43 of 2003
Defendant CounselJoseph Theseira (Naidu Mohan and Theseira) and Tito Shane Isaac (Tito Isaac and Co)
Date20 March 2004
Plaintiff CounselHan Ming Kuang and Lee Cheow Han (Deputy Public Prosecutors)
Published date24 March 2004
Subject MatterCriminal Procedure and Sentencing,Admissibility,Conventions,President,Constitutional Law,Statements taken on separate occasions,Whether international law applicable where inconsistent with domestic law,Statements,Discretionary powers,Articles 22P, 93 Constitution of the Republic of Singapore (1999 Rev Ed), s 220 Criminal Procedure Code (Cap 68, 1985 Rev Ed),Whether death penalty under Misuse of Drugs Act (Cap 185) is maximum sentence or mandatory sentence,Whether mandatory death penalty under Misuse of Drugs Act (Cap 185) violation of equal protection accorded under Constitution,Whether President's powers under Criminal Procedure Code (Cap 68) relating to death sentence unconstitutional,Equal protection of the law,Whether death by hanging a breach of international law,Human rights,Whether statements to be read separately or together for determining if statements amount to confession,Section 7 Misuse of Drugs Act (Cap 185, 2001 Rev Ed),Whether statements admissible nonetheless,Whether admissible under s 122(5) of Criminal Procedure Code (Cap 68),International Law,Whether there was breach of Convention,Section 122 Criminal Procedure Code (Cap 68, 1985 Rev Ed),Cautioned statement recorded by Central Narcotics Bureau officer,Vienna Convention on Consular Relations 1963 -Whether Singapore bound by Convention,Statutory Interpretation,Defence alleging statements recorded in breach of Vienna Convention on Consular Relations 1963,Penal statutes,Article 12 Constitution of the Republic of Singapore (1999 Rev Ed), s 7 Misuse of Drugs Act (Cap 185, 2001 Rev Ed)

20 March 2004 Judgment reserved.

Kan Ting Chiu J:

1 The accused, Nguyen Tuong Van, appeared before me charged that he:

[O]n the 12th day of December 2002, at or about 3.06 pm, at Changi International Airport Terminal 2, 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, 2 packets of powdery substance containing not less than 396.2 grams of diamorphine, without any authorisation under the said Act or the Regulations made thereunder, and [he has] thereby committed an offence under section 7 of the Misuse of Drugs Act, Chapter 185 and punishable under section 33 of the Misuse of Drugs Act.

2 He is an Australian national aged 23 years. On 12 December 2002 he arrived in Singapore from Phnom Penh. At about 7.45pm he was at Boarding Gate C22 of the airport waiting to board a flight to Melbourne. During a routine check, a police officer felt something bulky on his lower back. He was brought to a search room for a thorough search, taking his haversack and business bag with him.

3 In the search room he was asked to remove his jacket and shirt. When that was done, a plastic packet was seen strapped to his lower back with masking tape. At that stage he started crying and tried to hit his head against a wall.

4 Sergeant Teh Kim Leng (“Sgt Teh”), the officer in charge of the security screening unit, was notified. He went to the search room and saw the accused, who appeared to be in distress, holding his head with his hands. When Sgt Teh asked him what was on his back, the accused replied that it was heroin. With the help of Sgt Teh the accused removed the packet from his body. When Sgt Teh asked him if there was anything to declare in his luggage, the accused opened the haversack, took out another packet, and handed it to him.

5 The two packets were subsequently sent for analysis. The packet from the body was found to contain not less than 151.5g of diamorphine and the other packet not less than 244.7g. The analysis results were not disputed.

6 The Central Narcotics Bureau (“CNB”) was then informed of the matter. At 9.10pm CNB officers arrived at the airport and took over the case from the airport police. At about 10.05pm Station Inspector Ng Beng Chin (“SI Ng”) spoke to the accused and recorded a statement from him. SI Ng and the accused appended their signatures to the statement after it was recorded and read back to the accused. The statement read:

Question: What [is] this?

Answer: I know it [is] heroin although different colour.

Question: Number 3 or 4?

Answer: I don’t know.

Question: Who asked you to bring?

Answer: I know him by “Sun”.

Question: To bring where?

Answer: Melbourne and someone [will] take from me or maybe Sydney.

Question: Who will receive the drug at Australia?

Answer: Someone will recognised [sic] me and [tell] me he likes basketball.

7 The CNB officers took the accused together with the two packets and other case exhibits back with them to the CNB Headquarters at Police Cantonment Complex at about 12.05am on 13 December.

8 At about 1.50am, the two packets were weighed. The packet recovered from the accused’s back weighed 381.66g and the packet from his haversack weighed 380.36g.

9 At 4.12am the investigating officer Assistant Superintendent of Police Toh Soon Teck (“ASP Toh”) recorded a cautioned statement from the accused. After the cautioned statement was recorded ASP Toh recorded further statements, which I shall refer to as investigation statements, from the accused. One was recorded on the same day, 13 December, and the others on 15, 16 and 19 December.

10 Defence counsel accepted that these statements were made voluntarily. Nevertheless, it was contended that they are not admissible in evidence.

Admissibility of the cautioned statement

11 This statement was recorded under s 122 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”). Sub-sections (6) and (8) thereof are of particular relevance:

(6) Where any person is charged with an offence or officially informed that he may be prosecuted for it, he shall be served with a notice in writing, which shall be explained to him, to the following effect:

“You have been charged with/informed that you may be prosecuted for —

(set out the charge).

Do you wish to say anything in answer to the charge? If there is any fact on which you intend to rely in your defence in court, you are advised to mention it now. If you hold it back till you go to court, your evidence may be less likely to be believed and this may have a bad effect on your case in general. If you wish to mention any fact now, and you would like it written down, this will be done.”

(8) In subsection (6), “officially informed” means informed by a police officer or any other person charged with the duty of investigating offences or charging offenders.

12 Defence counsel’s argument centred on the admissibility of confessions. Section 17 of the Evidence Act (Cap 97, 1997 Rev Ed) defines “admission” and “confession” as follows:

(1) An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances hereinafter mentioned.

(2) A confession is an admission made at any time by a person accused of an offence, stating or suggesting the inference that he committed that offence.

and s 24 provides that:

A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him.

This has been construed to mean that confessions not so afflicted are relevant and admissible in evidence.

13 Counsel argued that when the accused said in his cautioned statement:

I wish to say that I am sincerely sorry for the inconvenience to both your country and mine. What I intend to say would be the truth. However knowing the information would have been fabricated by the people who have organised this.

he was not making a confession as defined by s 17 or by the test set out by Lord Guest in Anandagoda v The Queen [1962] 1 WLR 817 at 823–824 that:

The test whether a statement is a confession is an objective one, whether to the mind of a reasonable person reading the statement at the time and in the circumstance in which it was made it can be said to amount to a statement that the accused committed the offence or which suggested the inference that he committed the offence. The statement must be looked at as a whole and it must be considered on its own terms without reference to extrinsic facts. ... The appropriate test in deciding whether a particular statement is a confession is whether the words of admission in the context expressly or substantially admit guilt or do they taken together in the context inferentially admit guilt?

14 In Abdul Rashid v PP [1994] 1 SLR 119 the Court of Criminal Appeal adopted Lord Guest’s test and added at 129, [29]:

We need only add that, for a statement to amount to a confession, it need not be of a plenary or unqualified nature and can also be of a non-plenary nature, so long as the statement connects the accused in some way with the offence.

15 Counsel went further, and argued that as ASP Toh is a CNB officer and not a police officer, the cautioned statement was not admissible under the CPC as s 122(5) of the CPC stipulates that:

Where any person is charged with an offence any statement, whether it amounts to a confession or not or is oral or in writing, made at any time, whether before or after that person is charged and whether in the course of a police investigation or not, by that person to or in the hearing of any police officer of or above the rank of sergeant shall be admissible at his trial in evidence and, if that person tenders himself as a witness, any such statement may be used in cross-examination and for the purpose of impeaching his credit:

Provided that the court shall refuse to admit such statement or allow it to be used as aforesaid if the making of the statement appears to the court to have been caused by any inducement, threat or promise having reference to the charge against such person, proceeding from a person in authority and sufficient, in the opinion of the court, to give such person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

[emphasis added]

16 This argument overlooks the fact that the purpose of recording a cautioned statement is to get an accused person to respond to a charge after being advised that if there is any fact that he intends to rely on in his defence in court, he should mention it in his cautioned statement, and that if he holds it back till he goes to court, his evidence may be less likely to be believed.

17 A cautioned statement is not intended to be taken with a view to obtain a confession. It is to inform the accused person of the charge he is facing and to get his response to it. The purpose of a cautioned statement is to enable the Prosecution to confront the accused at his trial with questions such as “If this is your defence, why didn’t you disclose it in your cautioned statement?” or “Why did you not say this, but say that instead when you made your cautioned statement?” if the accused presents a defence different from or not disclosed in his cautioned statement. Conversely, the accused can rely on his cautioned statement to show that he has been consistent in his defence from the time he was first charged. It would be a...

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