Ong Chin Keat Jeffrey v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 08 September 2004
• Neutral Citation: [2004] SGHC 201
• Docket Number: Magistrate's Appeal No 56 of 2004
• Date: 08 September 2004
• Published date: 12 February 2014
• Year: 2004
• Plaintiff Counsel: Subhas Anandan, Tan Chee Meng, Melanie Ho and Clarence Lee (Harry Elias Partnership)
• Citation: [2004] SGHC 201
• Defendant Counsel: Benjamin Yim (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Criminal Law,Sections 2, 5 Misuse of Drugs Act (Cap 185, 2001 Rev Ed),Whether necessary to adopt purposive interpretation of "trafficking",Interpretation,Whether appellant's acts satisfying definition of "traffic",Alteration,Charge,Section 2 Misuse of Drugs Act (Cap 185, 2001 Rev Ed),Entrapment carried out by Central Narcotics Bureau officers,Misuse of Drugs Act,Whether appellant's actions falling within ambit of "trafficking" even if purposive interpretation adopted,Statutory offences,Criminal Procedure and Sentencing,Whether court should convict appellant on lesser offence than that arising out of entrapment

8 September 2004

Yong Pung How CJ:

1 The appellant, Jeffrey Ong Chin Keat, was convicted on one charge of trafficking in a Class A controlled drug under the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“the MDA”) for selling one tablet of Ecstasy to an undercover CNB officer, an offence under s 5(1)(a) of the MDA and punishable under s 33 of the MDA.

2 The appellant appealed against his conviction. I heard his appeal and dismissed it. I now give my reasons.

3 The charge against the appellant read as follows:

You, Jeffrey Ong Chin Keat, Male, 30 years, NRIC S7305455I are charged that you, on the 15^th day of July 2003 at about 11.40am, at Tiong Bahru MRT Station, Singapore, did traffic in a controlled drug specified in Class “A” of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, by selling one (1) tablet marked “CU” which was analysed and found to contain 0.12 gram of N, a-dimethyl-1,3-(methylenedioxy)phenethylamine [sic], to one W/Sgt Jennifer Lim, an officer of the Central Narcotics Bureau, at S$80/-, at the said place, without any authorization under the said Act or the Regulations, made thereunder, you have thereby committed an offence under Section 5(1)(a) of the Misuse of Drugs Act, Chapter 185 and punishable under Section 33 of the Misuse of Drugs Act, Chapter 185.

4 At trial, a Statement of Agreed Facts (“SOAF”) was agreed between the parties, and this was admitted under s 376 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“the CPC”). The appellant did not challenge the contents of the SOAF.

The Statement of Agreed Facts

5 According to the SOAF, on 14 July 2003, Staff Sergeant Patrick Chan was chatting on an Internet relay chat program (“IRC”) under the nickname “Johnny” when he saw the appellant advertising the sale of Viagra in one of the chat rooms. SSgt Patrick Chan inquired into the price of the Viagra. After further inquiry by “Johnny”, the appellant agreed to sell one Ecstasy pill to “Johnny”. SSgt Patrick asked the appellant if he had any more Ecstasy to sell but the appellant answered in the negative. SSgt Patrick then obtained the appellant’s mobile phone number and they proceeded to discuss the details of the sale of the Ecstasy pill via short message service (“SMS”). SSgt Patrick arranged to meet the appellant at Tiong Bahru Plaza the next day.

6 On 15 July 2003, an operation was planned to arrest the appellant. As part of this operation, another officer, Sergeant Vikas posed as “Johnny” in order to meet with the appellant. “Johnny” was also accompanied by Woman Sergeant Jennifer Lim. At the meeting, “Johnny” asked for the original price of $140 for the Ecstasy pill to be reduced to $40. “Johnny” told the appellant that $40 was the market price. The appellant said that his lowest price was $80 and he left since the price could not be agreed upon. Later, “Johnny” called the appellant on his handphone and agreed to the sale of the Ecstasy pill at $80. The appellant then met with “Johnny” and W/Sgt Jennifer Lim again at Tiong Bahru Plaza, and sold one Ecstasy pill to W/Sgt Jennifer Lim for $80. Shortly thereafter, the appellant was arrested at Tiong Bahru Mass Rapid Transit (“MRT”) station by a party of Central Narcotics Bureau (“CNB”) officers. A search was conducted on the appellant and a marked $50 note and three marked $10 notes were found clutched in his right fist.

7 Investigations revealed that the appellant had previously sold Viagra pills to a customer over the Internet and had obtained the Ecstasy pill from the same customer in exchange. The Ecstasy pill was submitted to the Health Sciences Authority on 16 July 2003 for analysis. It was found to contain 0.12g of N, a-dimethyl-3,4-(methylenedioxy)phenethylamine, a Class A controlled drug listed in the First Schedule to the MDA.

The Prosecution’s case

8 The Prosecution’s case was based entirely on the SOAF, which was admitted under s 376 of the CPC. The Prosecution argued that the appellant should be found guilty of the trafficking charge because the elements of the trafficking offence under s 5 of the MDA had been satisfied by the appellant’s own testimony and by his admissions in the SOAF.

The defence

9 The appellant’s case at the trial below was based solely on issues of law. The appellant argued for the charge of trafficking to be reduced to that of possession on two grounds, namely that (a) the offence did not constitute “trafficking” under the MDA; and (b) the extent of the instigation from CNB inducing the appellant to sell the Ecstasy pill crossed the boundary of “fair and reasonable” entrapment.

10 In addition to the SOAF, the appellant raised additional facts in his defence and mitigation. He testified that in May 2003, a customer had asked for four pills of Viagra which were to be sold for $160 over the Internet. The appellant agreed to meet the customer, and gave the customer four pills in a strip. However, the customer had only $80, although the price was supposed to be $160. Instead of paying the remaining $80, the customer gave the appellant two pills, one of which was the Ecstasy pill mentioned in the charge. In cross‑examination, the appellant claimed that he had taken the pills because he wanted the shortfall in the payment to him to be made up. He claimed that if he had not taken the Ecstasy pills offered to him, and just accepted the $80 that the customer had with him, the customer might have tried to do the same thing again the next time, instead of paying the full amount. When the appellant returned home, he testified that he cut up one of the pills to see what it was like. He left the other pill, as well as fragments left from the first pill, on a shelf, and forgot about it.

11 About two months later, around July 2003, the appellant agreed over the Internet, to meet with SSgt Patrick to sell him one Ecstasy tablet at $150 (as per the SOAF). The appellant testified that when he was asked to supply seven more Ecstasy pills, he had replied that he did not have seven pills to sell as he was in the business of selling Viagra.

12 After his arrest, the appellant assisted the CNB by sending a text message to the person he had sold Viagra to. The appellant also testified that at the time of the transaction with “Johnny”, he did not know the market price of Ecstasy. He further testified that apart from the one pill in question, he had never sold Ecstasy previously. When questioned by the Prosecution, the appellant further claimed that although he knew that Ecstasy was a drug, he did not know that the sale of Ecstasy was so serious as to merit a jail term. He however knew that it was wrong to buy Ecstasy, and when it was put to him, he agreed that it was wrong to sell the Ecstasy pill.

The decision below

13 The trial judge found the appellant guilty as charged and sentenced him to five and a half years’ imprisonment and five strokes of the cane (see [2004] SGDC 130).

14 The trial judge held that the facts, both in the SOAF and the testimony of the appellant, established beyond a reasonable doubt that the appellant was guilty as charged. He also held that the arguments on law advanced by the appellant had failed to convince the trial court that the appellant was not guilty of trafficking, or that because of entrapment, he should be convicted only on the lesser charge of possession.

The appeal

15 On appeal, the appellant sought to overturn the conviction for trafficking and to substitute this with a charge of possession. The appellant based his appeal on two main grounds:

(a) that the offence did not constitute “trafficking” under the MDA but its true gravamen was one of possession; and

(b) that, due to “entrapment”, the appellant should be convicted for possession under the MDA, and not trafficking.

16 I will now deal with each of these issues in turn.

Trafficking

17 On appeal, counsel for the appellant argued that the offence of “trafficking” under the MDA was not meant to apply to offenders such as the appellant, and that the appellant was not the “evil trafficker” envisaged by the drafters of the statute. The appellant argued that the MDA was aimed at punishing and deterring the traffickers who are truly and extensively trafficking in controlled drugs, and that the appellant did not fall within this category of offenders. The appellant also invited the court to consider the legislative intent of Parliament.

18 In the course of the hearing before me, counsel for the appellant conceded that Parliamentary debates were of no assistance to the appellant. Nevertheless, with reference to arguments advanced by counsel, I give my views below.

The meaning of “trafficking”

19 It was clear to me that there was no merit in the appellant’s first ground of appeal. The trial judge had carefully considered essentially the same issues of law, and I concluded that he was correct in dismissing the appellant’s arguments at trial. While it was legitimate under s 9A of the Interpretation Act (Cap 1, 2002 Rev Ed) to consider the purpose or object of the statute in construing its language, I agreed that the trial judge was right in adopting the plain meaning of the statute in the absence of any ambiguity in the provision.

20 In dismissing the appellant’s arguments at trial, the trial judge held at [33] that:

The evidence before the Court clearly established that the accused did sell the tablet of Ecstasy, which is a Class A controlled drug specified in the First Schedule to the MDA, to an undercover CNB officer. There was no authorisation under the MDA. The elements of the offence under s 5(1)(a) were made out.

21 The elements of the offence of trafficking in controlled drugs are set out under s 5 of the MDA:

Trafficking in controlled drugs

5. —(1) Except as authorised by this Act, it shall be an offence for a person, on his own behalf or on behalf of any other person, whether or not that other person is in Singapore —

(a) to traffic in a controlled drug;

(b) to offer to traffic in a controlled drug; or

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