Ong Lee Koon and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 03 April 1995
• Neutral Citation: [1995] SGCA 35
• Citation: [1995] SGCA 35
• Defendant Counsel: Peter Fernando and Rabi Ahmad (Leo Fernando),PO Ram (Deputy Public Prosecutor)
• Published date: 19 September 2003
• Plaintiff Counsel: Remesha Pillai (Mansur Husain & Pnrs)
• Date: 03 April 1995
• Docket Number: Criminal Appeal No 28 of 1994
• Court: Court of Appeal (Singapore)
• Subject Matter: Criminal Procedure and Sentencing,Alteration,Statutory offences,'Transport',Whether doubt raised as to identity of exhibits,Drug trafficking,Purpose of transportation,Whether judge's amendment of charge to reflect possible consumption by accused of drugs justified,Amendment by court,Proof of evidence,Trafficking in controlled drugs,s 17 Misuse of Drugs Act (Cap 185),Exhibit,Evidence,Criminal Law,Charge,Amount of drugs trafficked,Break in chain of evidence

Cur Adv Vult

The appellant Ong Lee Koon (Ong) was convicted and sentenced to death by the High Court on 11 August 1994 on the amended charge of trafficking by delivering 25 packets of substance containing not less than 29.57g of diamorphine (the 25 packets of heroin) to the appellant, Azmi bin Tuki (Azmi) and Azmi was similarly convicted and sentenced to death on the amended charge of trafficking in the 25 packets of heroin by transporting them. The act of delivery by Ong was said to be committed on 3 December 1993 at about 7am at the car park of Blk 108, Gangsa Road, Singapore and the act of transporting by Azmi was said to be committed by him on the same day shortly after 7am at the void deck of Blk 108, Gangsa Road. They were tried jointly. We heard the appeals on 20 February 1995.

Ong was originally charged with trafficking by selling the 25 packets of heroin to Azmi and Azmi was originally charged with being in possession of the 25 packets of heroin and that by virtue of s 17 of the Misuse of Drugs Act (the Act) of trafficking by offering to sell, deliver or distribute the same. The original charge against Ong was amended at the end of the trial and the original charge against Azmi was amended at the close of the prosecution case.

Acting on information received that a male Chinese driving a light green Audi car bearing the registration number SBE 4899Y would be delivering heroin to a male Malay in the early morning of 3 December 1993 at the car park of Blk 108, Gangsa Road (Blk 108), ASP Lim Chei Yoo (ASP Lim) and a team of narcotics officers from the Central Narcotics Bureau (CNB) arrived at Blk 108 well before 7am and kept surveillance on flat #02-161. The CNB officers were dispersed at various vantage points and were under cover. At about 6.57am, a male Malay, later identified as Azmi, was seen leaving the flat and walking towards the car park behind Blk 108. He was empty-handed. At about the same time other CNB officers observed a motor car enter the car park. Azmi was seen walking towards the approaching car which stopped when it reached Azmi. At this point the CNB officers who were watching the car and Azmi had their view obstructed by a moving vehicle and could not see either the car which had stopped or Azmi. No sooner had the moving vehicle passed they saw the car moving out through the exit of the car park and Azmi walking towards Blk 108 carrying a plastic bag in his hand.

The CNB officers acted swiftly. Some of them intercepted the car at the exit before it could leave the car park. It was car SBE 4899Y and was being driven by a male Chinese who was later identified as Ong. There were no passengers in the car. ASP Lim who had positioned himself at the void deck of Blk 107 saw from his vantage point car SBE 4899Y being intercepted by the CNB officers. He immediately rushed to the scene and assisted in apprehending Ong, who was then being handcuffed by the two CNB officers who had intercepted car SBE 4899Y. When the situation was under control ASP Lim asked Ong in the Hokkien dialect the amount of `thing` he had given to the Malay. Ong replied `25 packets`. To further questioning directed to a red plastic bag lying on the front passenger seat Ong said that it contained $1750 in cash given to him by the Malay. By this time Inspector Chew Khai Chow (Insp Chew) had arrived on the scene and ASP Lim instructed Insp Chew to escort Ong in his car SBE 4899Y to Ong`s apartment block at Macpherson Green.

Whilst the above was taking place Inspector Chow Toong Chee (Insp Chow) heard over his walkie-talkie radio that Azmi was walking back towards Blk 108. Insp Chow was then proceeding on foot towards Blk 108 from the car park of Blk 142. He confronted Azmi at the lift lobby of Blk 108 when Azmi was about to enter the lift. Azmi was still holding a white plastic bag which was later described more specifically as a white plastic bag with red dragon motifs on it. This plastic bag will be referred to hereafter as `the white plastic bag with red dragon motifs`. Insp Chow moved in to arrest Azmi who put up a violent struggle. He was pushed into the lift and handcuffed. During the struggle `the white plastic bag with red dragon motifs` fell to the floor of the lift and was retrieved by Insp Chow who retained personal possession of it until, as we shall see later, it was handed over to Insp Chew when Insp Chew assumed the role of investigating officer. Inside `the white plastic bag with red dragon motifs` Insp Chow saw there were three airmail envelopes.

Azmi was then taken to his flat #02-161 by Insp Chow. In the flat Insp Chow met two other CNB officers who had already arrived at the flat, and a female Malay who was later identified as Julaina bte Mohd Yatim, Azmi`s girlfriend. Insp Chow showed `the white plastic bag with red dragon motifs` which he had retrieved from the floor of the lift after making Azmi`s arrest and asked him in English what was in it. He replied in English that there were 25 packets of heroin in it. At this point the two other CNB officers left the flat and were replaced by a woman inspector who had arrived to guard Julaina. Insp Chow then continued questioning Azmi. However, evidence of the further questioning was objected to at the trial by counsel but was ruled admissible by the learned judge after a voir dire. No objections were raised at the appeal to the admissibility in evidence of this further questioning. The gist of the exchange between Insp Chow and Azmi conducted in English was that Azmi admitted that he paid $1750 to a person who came driving a green sports car whom he referred to as `Boh Gay`. He said that the heroin was for his own consumption but sometimes when his friends came to him for heroin he would sell them a packet for $90.

Thereafter, Insp Chow remained in the flat with Azmi, Julaina and the woman inspector until the Scene of Crime Unit arrived at about 1.20pm. Photographs were then taken in the presence of Azmi. For this to be done Insp Chow placed `the white plastic bag with red dragon motifs` on the floor and had it photographed. He then took out the contents of `the white plastic bag with red dragon motifs` which as we have noted before were three airmail envelopes; two of them were of the larger oblong size and the third of a smaller size. He marked the two larger oblong sized airmail envelopes `A` and `C` respectively and the smaller sized airmail envelope `B`. He then placed the three envelopes unopened side by side and had them photographed. After this he opened each envelope and had each envelope separately photographed with the contents of each beside it. Envelopes `A` and `C` contained 10 packets each and envelope `B` five packets of granular substance which Insp Chow believed to be heroin. This was later confirmed by Dr Lee Tong Kooi of the Department of Scientific Services who also certified pursuant to s 16 of the Act that the diamorphine content of the 25 packets of heroin contained in the airmail envelopes `A`, `B` and `C` was not less than 29.57g. All the foregoing were produced as exhibits at the trial.

After the photographing of the exhibits as described above Insp Chow returned the 25 packets of granular substance, which we now know to be heroin containing in total not less than 29.57g of diamorphine, to their respective envelopes, that is to say, ten packets into each of the airmail envelopes marked `A` and `C` and five packets into the airmail envelope marked `B`, and placed them in `the white plastic bag with red dragon motifs`. None of the three airmail envelopes were sealed. It is also pertinent to note that Insp Chow`s evidence was that none of the 25 packets of heroin taken out of the three airmail envelopes for photographing were opened.

At about 2pm that same day, ie 3 December 1993 Insp Chow left the flat with Azmi for CNB Headquarters taking with him `the white plastic bag with red dragon motifs` in which were the three airmail envelopes marked `A`, `B` and `C` each containing ten, five and ten packets of heroin respectively. There at about 4.45pm Insp Chow handed to Insp Chew `the white plastic bag with red dragon motifs` together with its contents as described above. It was Insp Chow`s evidence that he either had physical possession or maintained personal control over `the white plastic bag with red dragon motifs` and the three airmail envelopes marked `A`, `B` and `C` each containing ten, five and ten packets of heroin respectively from the time he picked them up in the lift after making Azmi`s arrest until he handed them to Insp Chew.

We must now return to the events following the arrest of Ong at the car park of Blk 108. On arrival at Ong`s apartment block at Macpherson Green at about 7.30am a guard was posted over Ong`s car, the green Audi No SBE 4899Y and Ong was escorted to his flat #07-01 by two CNB officers and Insp Chew. A search was made of Ong`s flat and the following items were seized:

(i) a box containing a plastic sealer;

(ii) a bundle of small empty plastic bags;

(iii) a digital weighing scale stained with a powdery substance believed to be heroin, later confirmed to be heroin by Dr Lee Tong Kooi;

(iv) a red coloured plastic container and two small plastic cups stained with a powdery substance believed to be heroin, later confirmed to be heroin by Dr Lee Tong Kooi;

(v) twelve bundles of empty airmail envelopes, several mini empty plastic bags and a mini digital weighing scale;

(vi) a brown clutch bag containing:

(a) $56,128 in currency notes;

(b) $42.55 in coins;

(c) a POSB cash cheque for $1,100;

(vii) a `Samsung` handphone and a pager.

Later at about 10.45am Ong`s car was searched in his presence. The following items were found and seized:

(i) a pink coloured plastic bag containing $1,750 in currency notes from the front passenger seat of the car;

(ii) a white and pink coloured paper bag from the left rear floor board of the car;

(iii) a black striped canvass bag...