Norasharee bin Gous v PP

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Andrew Phang Boon Leong JA,Tay Yong Kwang JA
• Judgment Date: 10 March 2017
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeals Nos 12 and 13 of 2016; Criminal Motion No 22 of 2016
• Date: 10 March 2017

Norasharee bin Gous

and

Public Prosecutor and another appeal and another matter

[2017] SGCA 17

Sundaresh Menon CJ, Andrew Phang Boon Leong JA and Tay Yong Kwang JA

Criminal Appeals Nos 12 and 13 of 2016; Criminal Motion No 22 of 2016

Court of Appeal

Criminal Law — Statutory offences — Misuse of Drugs Act (Cap 185, 2008 Rev Rev Ed)

Criminal Procedure and Sentencing — Appeal — Adducing fresh evidence

Evidence — Witnesses — Confessions — Confession of co-accused — Whether such confession could be used against accused — Section 30 Evidence Act (Cap 97, 1990 Rev Ed) — Section 30 Evidence Act (Cap 97, 1997 Rev Ed) — Section 378(1)(b) Criminal Procedure Code (Cap 68, 1985 Rev Ed) — Section 258(5) Criminal Procedure Code (Cap 68, 2012 Rev Ed)

These two appeals arose from a joint trial of three accused persons, Mohamad Yazid bin Md Yusof (“Yazid”), Norasharee bin Gous (“Norasharee”) and Kalwant Singh a/l Jogindar Singh (“Kalwant”), involving various charges under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”).

At about 7.00am on 24 October 2013, Yazid met Kalwant at a multi-storey car park in Woodlands. They interacted shortly before being arrested by officers from the Central Narcotics Bureau (“CNB”), who had been waiting in ambush. The officers recovered nine bundles wrapped with black tape with each containing two packets of brown substance. Of them, three (containing not less than 60.15g of diamorphine in total) were found in the haversack that Kalwant was carrying. The other six (containing not less than 120.90g of diamorphine in total) had been placed by Kalwant in the container box of Yazid's motorcycle.

Yazid claimed that he had been instructed to traffic in drugs by one “Boy Ayie”, whose phone number he had saved in his own mobile phone under the name “Eye”. Either Boy Ayie or his partner would place orders for diamorphine from Kalwant's boss in Malaysia. Boy Ayie would then instruct Yazid to receive the drugs from the sender from Malaysia and to hold them until he was told who the specific recipients were. Yazid would then deliver the drugs as instructed and would subsequently be paid by Boy Ayie for the service. Yazid said that he met Boy Ayie in the vicinity of VivoCity shopping centre (“VivoCity”) in the afternoon on 23 October 2013 (ie, the day before Yazid was arrested). There, Boy Ayie told Yazid that there would be a delivery of drugs from Malaysia the next day and instructed him to collect some bundles from a Malaysian courier (who turned out to be Kalwant). Some 20 months later, police arrested Norasharee, whom Yazid identified as Boy Ayie.

Kalwant's defence, in essence, was that he thought that the bundles of drugs he was carrying was panparak, a tobacco-betel nut mixture. Norasharee's defence, in substance, was that Yazid was framing him because Yazid wanted to receive a certificate of substantive assistance, and because Yazid had borne a long-time grudge against Norasharee arising from gangland rivalry.

The High Court judge (“the Judge”) convicted all three accused persons. Yazid was sentenced to life imprisonment and 15 strokes of the cane, while the mandatory death sentence was passed on Norasharee and Kalwant since neither received a certificate of substantive assistance under s 33B of the MDA. Further, Norasharee's role in the drug transaction did not qualify him as a courier within the meaning of s 33B. Both Norasharee and Kalwant appealed both conviction and sentence and, on the eve of the hearing of the appeals, Kalwant filed a criminal motion seeking to adduce further evidence, namely, a packet of panparak, a picture of it, and a receipt for its purchase. However, it was discovered after the court reserved judgment that the physical exhibit had not been tendered into court and had been disposed of.

Held, allowing Criminal Motion No 22 of 2016 and dismissing Criminal Appeals Nos 12 and 13 of 2016:

Criminal Motion No 22 of 2016

(1) The further evidence was admitted as it had some relevance and could be easily dealt with by way of submissions: at [41].

(2) As the physical exhibit could no longer be tendered into court and weighed, the court directed the registry and counsel for each party to witness the purchase and weighing of panparak at the shop from which the panparak had been bought: at [46] and [47].

Criminal Appeal No 13 of 2016

(3) In determining whether an accused person was in possession of a controlled drug and whether he knew the nature of that drug, the following principles as stated in Obeng Comfort v PP[2017] 1 SLR 633 applied:

• (a) Section 18(1) concerned secondary possession of the drug in the sense that an accused possessed, controlled or had custody of the thing in issue (ie, the container, the key or the document of title) which had the drug or which related to the title in, or delivery of, the drug. The court would be concerned with whether the thing in issue existed and whether the accused in fact had possession, control or custody of it.

• (b) Knowledge that an item was a controlled drug was not required to satisfy the requirement of possession. To rebut the presumption of possession under s 18(1) of the MDA, an accused had to prove, on a balance of probabilities, that he did not have the drug in his possession by, for example, showing that he did not know that the thing in issue contained that which was shown to be the drug in question. If possession was only presumed under s 18(1) and such presumption was rebutted successfully, the Prosecution would have failed to establish that the accused was in possession of the drug. There would be no need to consider whether the accused knew the nature of the drug.

• (c) If an accused was either presumed under s 18(1) or actually proven to have been in possession of a controlled drug, then s 18(2) would presume him to have known the nature of that drug, meaning the specific controlled drug found in his possession. To rebut this presumption, an accused had to prove, on a balance of probabilities, that he did not know the nature of the controlled drug (in effect, that he did not have the mens rea of the offence), by showing that he “did not know or could not reasonably be expected to have known the nature of the controlled drug”. In this regard, mere negligence or constructive knowledge on the part of the accused would not suffice to convict the accused.

• (d) The court would assess the accused's evidence as to his subjective knowledge by comparing it with what an ordinary, reasonable person would have known or done if placed in the same situation that the accused was in. If such a person would surely have known or taken steps to establish the nature of the drug in question, the accused would have to show that he nonetheless had no such knowledge or took no such steps. Practically speaking, an accused should be able to say what he thought he was carrying, especially when the goods had to be carried across international borders, as they could be prohibited or dutiable goods. It would not suffice for him to claim simply that he did not know what he was carrying save that he did not know or think it was drugs, or that he did not know the proper name of the drug he was asked to carry. The court would assess the credibility of the accused's account on a balance of probabilities, by assessing the veracity of his assertion against the objective facts and examining his actions relating to the item he says he thought he was carrying. This would be a highly fact-specific inquiry.

• (e) When the presumptions in ss 18(1) and 18(2) applied, the accused would be presumed to have been in possession of the drug and to have known the nature of the drug that he was carrying. He could be convicted if he either elected to remain silent (on the basis of the presumptions that operated against him) or if he called inadequate evidence to rebut the presumptions.

• (f) The Prosecution could, apart from relying on the presumptions, prove that the accused had actual possession and actual knowledge of the drugs. In such a case, the presumptions remained operable though they need not be invoked. In this regard, a finding of wilful blindness would simply be the inference of actual knowledge drawn as the only rational and therefore irresistible inference on the facts: at [25].

(4) The Judge was correct to have found that Kalwant had actual knowledge that the bundles contained diamorphine. First, for the three reasons given by the Judge, Yazid had been truthful in saying that Kalwant had referred to “obat” in their conversation while on remand. The DNA evidence corroborated Yazid's claim that Kalwant had packed four bundles. The fact that Yazid corrected a portion of his contemporaneous statement regarding what Kalwant supposedly said evidenced truthfulness and not tailoring of evidence. Yazid could not have learnt the details of what Kalwant did with the police post-arrest from anyone other than him. These three reasons collectively showed that Yazid was truthful while Kalwant was not, and made it more likely that Yazid had been truthful in relation to what Kalwant had said about the bundles. Next, Kalwant knew that “obat” meant narcotic drugs and, in particular, diamorphine. The Judge was entitled to find that “obat” was the Malay street name for diamorphine. In any event, Kalwant realised that being caught with “obat” could lead to serious consequences, which followed the possession of certain drugs only. Kalwant's references to the “grade” of the heroin betrayed his knowledge about the drug trade, namely, that he was carrying a drug with varying grades of purity: at [29], [31], [33], [35] to [37] and [39].

(5) The Judge was correct to have found that Kalwant failed to rebut the presumption of knowledge as he did not genuinely think he was carrying panparak. His suspicions would have been aroused as the substance in the bundles looked different from the panparak he had encountered previously. Second, it would have made no...