Obeng Comfort v Public Prosecutor

• Judge: Sundaresh Menon CJ
• Judgment Date: 15 February 2017
• Neutral Citation: [2017] SGCA 12
• Citation: [2017] SGCA 12
• Defendant Counsel: Anandan Bala and Kenny Yang (Attorney-General's Chambers)
• Published date: 19 February 2017
• Hearing Date: 26 October 2016
• Plaintiff Counsel: Ram Goswami and Cheng Kim Kuan (Ram Goswami)
• Docket Number: Criminal Appeal No 34 of 2015
• Court: Court of Appeal (Singapore)
• Date: 15 February 2017
• Subject Matter: Criminal Law -Statutory offences -Misuse of Drugs Act

Tay Yong Kwang JA (delivering the judgment of the court): Introduction

This is an appeal against conviction and sentence by Obeng Comfort (“the Appellant”), a female Ghanaian born in August 1972. She was 40 years old at the time of the incident leading to her arrest. At the conclusion of the trial, the trial judge (“the Judge”) convicted her on a charge under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”) for having imported crystalline substance weighing 2951.12g which was analysed and found to contain not less than 2309.45g of methamphetamine into Changi Airport Terminal 1, Singapore, on 3 September 2012 at about 10.10pm. The charge involved a capital offence. However, as the Judge found that the Appellant’s role in the transaction was limited to that of a courier within the meaning of s 33B of the MDA and since the Public Prosecutor had issued a certificate of substantive assistance under the same provision, the Judge exercised his discretion to sentence her to life imprisonment instead of the death penalty, with the sentence backdated to the date of her arrest on 3 September 2012. As the Appellant is a female, the mandatory minimum sentence of 15 strokes of the cane was not imposed.

The central issue in this appeal is whether the Judge was correct in deciding that the Appellant failed to rebut the presumptions of possession and knowledge in ss 18(1) and (2) of the MDA. The issue of whether the Appellant had knowledge of the presence and the nature of the drugs arose because the methamphetamine was concealed in digital video disc (“DVD”) players, sandals and tin cans with food labels (see [3] below).

Background facts and the investigations The facts pertaining to the offence

The Appellant is now 44 years old. She was born in Accra, Ghana. On 3 September 2012, at about 9pm, she arrived at Changi Airport Terminal 1. She had travelled from Kotoka International Airport in Accra and transited at Dubai before arriving here. At about 9.20pm, she was stopped by an officer from the Central Narcotics Bureau (“CNB”), Sergeant Muhammad Ridhuan bin Ariffin (“Sgt Ridhuan”), as part of a routine check. Sgt Ridhuan stated in his statement that this was because he found her behaviour suspicious as “she avoided eye contact and was looking down most of the time”.¹

The Appellant was carrying two handbags and a haversack. Her belongings were screened through an X-ray machine and anomalies were detected in the images of some items in her haversack. The suspected items were individually screened using the X-ray machine. In the Appellant’s presence, CNB officers broke open the suspected items and found the following: two blocks of crystalline substance (marked as “A1A1”) were found in a “Heinz Beanz” tin can; two blocks of crystalline substance (marked as “A2A1”) were found in a “Sunripe Whole Sweetcorn” tin can; two packets of crystalline substance (marked as “A3”) were found inside a pair of ladies sandals bearing the brand “Shoes Story”; two packets of crystalline substance (marked as “A4”) were found inside another pair of ladies sandals also bearing the brand “Shoes Story”; five packets of crystalline substance (marked as “A5A1”, “A5B” and “A5C” respectively), which were separately wrapped in aluminium foil, were found in a silver-grey DVD player with the brand “Chusei”; a packet of crystalline substance (marked as “A6A”), which was wrapped in aluminium foil, was found inside a power adapter; and five packets of crystalline substance (one marked as “A7A” and four others marked as “A7B”) were found in a black DVD player with the brand “Chusei”.

All the exhibits of crystalline substance were sent to the Health Sciences Authority subsequently for analysis and they were found to amount to a total of 2951.12g of crystalline substance which contained not less than 2309.45g of methamphetamine. We will refer to the various items containing crystalline substance listed above as “the Items”. After a contemporaneous statement was taken from the Appellant, a search of her body revealed cash in US$100 notes amounting to US$2,900 and a black Nokia mobile phone hidden at the Appellant’s hip area, between the Appellant’s tights and panties.

While the Appellant was being questioned by the CNB officers after the arrest, she received numerous calls from various Ghanaian phone numbers which were not answered. Early the next day (4 September 2012), just after 6.00am, the CNB officers asked the Appellant to return the call of the last caller. The conversation, partly in English and partly in the Twi language, that the Appellant had with the male caller, whom she addressed as “Bra Kwaku” and whom she claimed was the person who gave her the Items, was recorded. The conversation was transcribed with the relevant portions in Twi language translated into English. The transcripts are marked as Exhibit “P59”.² Not much can be gathered from the conversation apart from the fact that the male caller demanded to know why she had not answered his calls the night before and appeared concerned about whether something had happened. The Appellant lied to the male caller that she was in her hotel room and that she had not called him earlier because she was tired and had fallen asleep in the hotel room. It ended with the male caller telling her, “Let me buy credit and call you back” and the Appellant saying, “OK, I am waiting for your call”.

Statements recorded after her arrest

In the course of investigations, the CNB officers recorded the following eight statements from the Appellant: a contemporaneous statement recorded pursuant to s 22 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”) on 3 September 2012, the day of arrest, at 10.48pm;³ a cautioned statement recorded pursuant to s 23 of the CPC on 4 September 2012 at 7.56pm;⁴ and six investigation statements recorded pursuant to s 22 of the CPC on 6, 8, 10, 13, 14 and 16 September 2012 respectively.⁵

In the proceedings below, the Appellant did not dispute that she had given these statements voluntarily. However, she disputed the accuracy of several portions of the statements on the basis that they had been inaccurately translated by the interpreter of the Twi language that she spoke in. The interpreter disagreed with this and stated that he only interpreted and conveyed what had been said by the Appellant.⁶

The contemporaneous statement

In the contemporaneous statement that was recorded in English soon after the Appellant’s arrest, she denied knowing that the methamphetamine was hidden in the Items and stated that she was acting on the instructions of a person in Ghana who had passed her the Items outside the airport in Ghana and directed her to pass them to someone in Singapore.⁷

The cautioned statement

In her cautioned statement which was recorded the next day, the Appellant again maintained that she had no knowledge that there was methamphetamine hidden in the Items.⁸ She claimed that a man had given her the Items at the airport in Ghana and had offered to pay for her air ticket and accommodation in Singapore if she agreed to deliver the Items for him. She also gave information on an exchange between the man and herself while she was in transit in Dubai. She said that the man told her over the phone that the laptop and the shoes that she was carrying were also known as “shine shine” and when she enquired further, he said that he would explain to her when she reached Singapore. She also said that the man told her that the recipient of the Items would give her $5,000 and that he would subsequently advise her on how that was to be dealt with. She claimed that she had no knowledge of the contents in the Items and “was basically asked to deliver the items in return for the free tickets and accomodation” (error in spelling in the original).

The long statements

In the course of the next two weeks, six long statements were recorded from the Appellant. The Appellant provided some background information about herself in the first long statement recorded on 6 September 2012. She said that she lived in Accra with her four children, whom she adopted after her sister passed away. Her husband was working as a trailer driver in the USA and he would remit to her about US$150 to US$250 every three to four months. The Appellant said that she studied only up to Form 4 of Middle School, which is slightly higher than Primary Six under the Singapore system. The Appellant said that she worked as a trader in many types of clothing and accessories for a living. On average, she earned about 100 GHS (new Ghanaian currency) per month (or about one million Cedis). She also stated that she withdrew her savings, which amounted to 160 GHS, and passed them to her children before she left for Singapore.

The Appellant gave a detailed account of the events leading up to her arrest in the subsequent statements. She named the man who had given her the Items as Kwaku Mohamed (“Kwaku”).⁹ She claimed that she got to know Kwaku through Kwaku’s wife, whom she knew as “Mama”. She claimed that she first met Mama in December 2011 at a bus terminal in Accra.¹⁰ However, at the trial, her testimony was that their first meeting took place at a market.¹¹ The Appellant claimed that later that month, Kwaku called her and told her that Mama had given him her number. He asked her how her business was doing and said that he was willing to help her by sponsoring her trips to China or to Singapore so that she could purchase electronic goods which she could then sell for profit in Ghana.¹²

Sometime in January 2012, Kwaku called her again and spoke to her about his offer. The Appellant accepted the offer even though she had mixed feelings about it.¹³ Thereafter, the Appellant made three trips to Singapore, all of which were sponsored by Kwaku. She was arrested here on her third trip.

The Appellant said that her first trip to Singapore took place...