Ong Ah Chuan v Public Prosecutor; Koh Chai Cheng v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 15 October 1980
• Date: 15 October 1980
• Docket Number: Privy Council Appeals Nos 37 and 38 of 1979,Criminal Appeal No 2 of 1978,Criminal Case No 44 of 1977
• Court: High Court (Singapore)

Public Prosecutor

Plaintiff

and

Ong Ah Chuan

Defendant

[1978] SGHC 68

Choor Singh J

and

A P Rajah J

Criminal Case No 44 of 1977

High Court

Criminal Law–Statutory offences–Misuse of Drugs Act 1973 (Act 5 of 1973)–Trafficking in controlled drugs–Whether Prosecution had proven case beyond reasonable doubt

The accused was charged for trafficking in 209.84g of diamorphine under s 3 (a) of the Misuse of Drugs Act 1973 (Act 5 of 1973), an offence attracting a mandatory death penalty. The accused had been detained by police officers while driving a motor car. Three plastic bags of drugs were found on him. At the close of the Prosecution's case, counsel for accused submitted that he had no case to meet as there was no evidence of the drugs being delivered to anyone. The accused's defence was that he was going to Pulau Ubin to obtain employment with the help of his father-in-law. He asserted that he had transported a large quantity of drugs from Pulau Ubin for his personal consumption.

Held, convicting the accused and sentencing him to death:

(1) The Prosecution had made out a case against the accused for transporting the 209.84g of diamorphine, which was not for his personal consumption, without authorisation. If unrebutted, this would warrant his conviction. The accused was therefore called on to make his defence: at [12].

(2) The accused's defence depended entirely on his credibility. There was no evidence, apart from his word, that he was a drug addict, had a father-in-law at Pulau Ubin or was on his way to Pulau Ubin before being arrested. His defence was therefore rejected: at [15].

PP v Teh Sin TongCriminal Case No 28 of 1976 (refd)

R v Harrington and Scosky (1963) 43 WWR 337 (distd)

R v MacDonald (1963) 43 WWR 337 (distd)

R v McMyn [1941] 4 DLR 268 (refd)

Seow Koon Guan v PP [1977-1978] SLR (R) 287; [1978-1979] SLR 46 (distd)

Misuse of Drugs Act 1973 (Act 5 of 1973)ss 3, 6,20,First Schedule

Narcotic Control Act1960-1961, c 35 (Can)

Loke Yoon Kee (Deputy Public Prosecutor) for the Prosecution

Loh Lin Kok for the accused.

Choor Singh J

and

A P Rajah J

1 The accused was charged and tried before us on the following charge:

That you, Ong Ah Chuan, on or about 2 June 1977 at about 12 noon in front of No 270, Bukit Timah Road, Singapore, did traffic in a controlled drug specified in Class 'A' of Pt I of the First Schedule to the Misuse of Drugs Act 1973 (No 5 of 1973) to wit, 209.84g of diamorphine without any authorization under the said Act or the regulations made thereunder and you have thereby committed an offence under s 3 (a) of the Misuse of Drugs Act 1973 (No 5 of 1973) and punishable under s 20 of the said Act.

2 On 2 June 1977 at about 9.15am, acting on information received, Acting Senior Narcotics Officer Yeo Kiah Hee (“PW6”) and Assistant Narcotics Officer Ramli arrived on their motorcycle at Block 26 Marsiling Drive, Singapore. They stationed themselves on the ground floor of Block 30 Marsiling Drive and commenced observation on the flat of the accused, 235E Block 26 Marsiling Drive.

3 At about 9.30am, Yeo (PW6) saw a motor car number SX 9098, driven by the accused, arriving at Block 26. The accused parked the car in a lane next to Block 26. He then got out of the car, locked it, and walked towards the lift and staircase landing of the ground floor of Block 26. A few seconds later, the accused was seen by the two officers walking along the corridor of the fifth floor of Block 26 towards his flat and entering it. Yeo (PW6) and Ramli continued to keep observation on the flat.

4 About an hour later Acting Senior Narcotics Officer Teo Ho Peng (“PW7”) and Assistant Narcotics Officer Chua Swah Hai arrived at Block 20 on their motorcycle. On their arrival they noticed that SX 9098 had been parked in the lane adjacent to Block 26. They signaled their arrival to Yeo (PW6) and Ramli and they too proceeded to keep observation on the accused's flat and motor car SX 9098 from the ground floor of Block 28.

5 At about 11.25am the accused was seen leaving his flat alone and walking along the corridor towards the lift and staircase landing. As he entered the staircase landing, he was out of sight of the officers for a few seconds. He was then seen coming out of the staircase landing on the ground floor of Block 26 carrying a plastic bag in his right hand. The accused walked towards car SX 9098. On reaching it he unlocked the front passenger door, placed the plastic bag in the car, closed the door, walked towards the driver's door, unlocked it and got into the driver's seat. He started the car and drove it in the direction of Admiralty Road. The four narcotics officers began to trail the accused's car on their two motorcycles. The accused proceeded towards the city along Admiralty Road and thence into and along Woodlands Road. At Bukit Panjang Circus, the accused drove into Upper Bukit Timah Road towards Ewart Circus. At Ewart Circus, the car proceeded into Jalan Anak Bukit and thence to Bukit Timah Circus. At Bukit Timah Circus the accused drove into and along Dunearn Road towards Newton Circus. At Newton Circus the car turned left into Bukit Timah Road and stopped in front of 270 Bukit Timah Road. Throughout the whole journey which had taken a little over half an hour the officers did not lose sight of the accused's car. By this time the four officers, Teo (PW7), Chua, Yeo (PW6) and Ramli, who were close on his tail had also turned left into Bukit Timah Road and stopped their motorcycles some ten yards or so behind car SX 9098. The accused alighted from the car, locked it and walked away from it in the direction of the officers. By this time, Yeo (PW6), who had been riding pillion, got off the motorcycle and proceeded towards the accused. Chua, who had also been riding pillion on the other motorcycle, joined him. Yeo (PW6) approached the accused and after identifying himself as a government man, detained him. He then seized a bunch of keys from the accused's hand and proceeded to search him. From the accused's waist front trousers pocket he recovered a plastic bag containing light brownish powder, which he suspected to be diamorphine hydrochloride. Thereupon he immediately placed the accused under arrest and instructed Chua to handcuff him. The accused was escorted to motor car SX 9098 by Chua and Yeo (PW6) and from in-between the front seats of the car Yeo (PW6) seized a plastic bag, inside which there was another plastic bag containing some clothing and a parcel wrapped in a Chinese newspaper. Yeo (PW6) unwrapped the parcel in the presence of the accused and found yet another plastic bag which contained brownish granular solids which he suspected to be diamorphine hydrochloride. The said light brownish powder and the said brownish granular solids were sent to the Department of Scientific Services where Mr Lim Han Yong, the Government Chemist, analysed the said light brownish powder and the said brownish granular solids and found the diamorphine content of each of them to be 3.84g and 206.0g respectively.

6 At the close of the prosecution case counsel for the accused submitted that the accused on the evidence before the court had no case to meet on the charge as framed. He submitted that as the accused was merely carrying the diamorphine and as there was no evidence of its being delivered to anyone the accused was not trafficking within the meaning of the Misuse of Drugs Act 1973. In support of his proposition he cited the case ofSeow Koon Guan v PP [1977-1978] SLR (R) 287 (“the Seow case”) and two Canadian cases, namely: (a) Rv McDonaldand R v Harrington and Scosky (1963) 43 WWR 337 (“the Canadian Drug case”); and (b) R v McMyn [1941] 4 DLR 268 (“the Canadian Potatoes case”).

7 In our view the Seow case did not help the accused. There the accused was charged with being in possession of 55.48g of diamorphine for the purpose of trafficking in a controlled drug and thereby committing an offence under s 3 (c) of the Act. The Court of Appeal ruled that although possession per se of a controlled drug constituted an offence under s 6 (a) of the Act, a person in possession of such a drug can be charged with and found guilty of an offence under s 3 (c) of the Act only if it is proved that he did or offered to do any act preparatory to or for the purpose of trafficking therein. The facts in the instant case are that the accused transported in a car heroin from Woodlands to 270 Bukit Timah Road. The decision in Seow's case was therefore inapplicable.

8 The headnote to the Canadian Drug case reads as follows:

Mere possession of one-quarter ounce of pure heroin, with no other attendant circumstances, held, not to justify an inference of trafficking.

Transporting drugs for mere personal purposes or use, as distinct from transporting for other purposes, does not of itself afford sufficient evidence of the offence of trafficking. 'Transport' in the definition of 'traffic' in s 2 (i) of the Narcotic Control Act, Can 1960-61, Ch 35 is not meant in the sense of mere conveying or carrying or moving from one place to another, but in the sense of doing so to promote the distribution of the narcotic to another.

9 The facts in the Canadian Drug case were as follows:

Harrington, followed soon after by Scosky, was seen to enter the washroom of a service station in which was secreted a cache (No 31) estimated to contain one-quarter ounce of pure heroin wrapped in a particular Vancouver newspaper of recent date. The appellants remained in the washroom for a short period, then emerged and left the service station premises together in a motor car which, for some time thereafter, was kept under observation by the occupants of a police car. An immediate search of the washroom showed that the drug cache was missing.

Later, one of the pursuing police officers picked up pages of a newspaper identified as of the same dates as the wrapping on the drug package...