Osman bin Din v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 06 March 1995
• Neutral Citation: [1995] SGCA 25
• Docket Number: Criminal Appeal No 46 of 1994
• Date: 06 March 1995
• Published date: 19 September 2003
• Year: 1995
• Plaintiff Counsel: James Masih (James & Bala) and Naranjan Singh (Naranjan & Co)
• Citation: [1995] SGCA 25
• Defendant Counsel: Muhd Hidhir Majid (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: s 18 Misuse of Drugs Act (Cap 185),Whether discrepancy of prosecution witness' evidence fatal to prosecution case,Criminal Law,Admissibility,Statutory offences,Statements,Impeaching witnesses’ credibility,Failure to call informer as witness,s 23 Misuse of Drugs Act (Cap 185),s 116 illustration (g) Evidence Act (Cap 97, 1990 Ed),Witnesses,Presumptions of possession and knowledge,Whether adverse inference to be drawn against prosecution,Criminal Procedure and Sentencing,Whether appellant had successfully rebutted presumptions,Whether statement fabricated,Whether statement caused by inducement, threat or promise,Misuse of Drugs Act,Trafficking in controlled drugs,Attendance,Evidence

The appellant was charged with trafficking in a controlled drug under the Misuse of Drugs Act (Cap 185) (`MDA`). The charge against him read as follows:

That you, Osman bin Din, on or about 24 December 1993 at about 6pm at the car park of Block 215 Boon Lay Place, Singapore, did traffic in a controlled drug specified in Class `A` of the First Schedule of the Misuse of Drugs Act (Cap 185) by offering to sell five compressed blocks and one bundle containing 9,504g of cannabis to one Kho Hock Ann for a sum of $29,000 without any authorization under the said Act or the regulations made thereunder, and you have thereby committed an offence under s 5 (1)(a) of the said Act punishable under s 33.

The court was also informed that there was another charge against the appellant for trafficking in 108.3g of cannabis between 4.45pm and 6pm on 24 December 1993. However, on the application of the prosecution, this charge was stood down pending the outcome of the preceding charge.

At the end of the case, the trial judge convicted the accused. He appealed against the conviction and at the end of the hearing we unanimously dismissed the appeal. We now state our reasons for so doing.

The prosecution case

On 24 December 1993, Senior Staff Sergeant Shah Ni (`SSSgt Shah Ni`) from the Central Narcotics Bureau (`CNB`) received information that a man would be arriving at McDonald`s Restaurant (`McDonald`s`) at Boon Lay Place around 5.30pm on the same day to sell about 10kg of cannabis for $30,000. He instructed five officers under his charge, namely, Staff Sergeant Mohamed Supari bin Solehon (`SSgt Supari`), Corporal Karlson Teh (`Cpl Teh`), Corporal Chua Swee Keong (`Cpl Chua`), Narcotics Officer Zulkifli bin Rahmat (`NO Zulkifli`) and Narcotics Officer Kho Hock Ann (`NO Kho`) to assist him in the operation. NO Kho would be the undercover agent and act as the purchaser whilst the rest would provide security cover for NO Kho and arrest the target upon receiving the signal from SSSgt Shah Ni.

At around 5.30pm, SSSgt Shah Ni, NO Zulkifli, Cpl Teh and Cpl Chua stationed themselves at various spots inside McDonald`s whilst SSgt Supari waited at the car park in front of McDonald`s, which was near Block 215 Boon Lay Place. NO Kho arrived in a car, registration no SBZ 4602B, and sat on one of the tables outside the restaurant. He was joined by one male Malay, later identified by the appellant as `Amin`. At about 5.45pm, the appellant arrived and was duly introduced by Amin to NO Kho. The appellant beckoned Kho to depart with him and they walked to the latter`s car which was then parked at the carpark behind McDonald`s.

On the way there, a brief conversation took place in Malay, in which NO Kho asked the appellant about the quantity and price of the goods and whether he could give a `commission`, to which the appellant replied that he had 10kg which he was selling for $30,000. However, he added that he would discount the price to $29,000.

Thereafter, they boarded Kho`s car and drove towards the carpark in front of McDonald`s where the appellant had intimated his car to be. When they entered the carpark, they both alighted and the appellant proceeded to wave his hand. Moments later, a Honda Accord (`the Honda`), registration no SBC 2468G, entered the carpark, flashed its headlights and pulled up in front of NO Kho`s car. The driver was subsequently identified as one Mohamed Zainal Ali Khan (`Zainal`).

Meanwhile, they were being observed by SSSgt Shah Ni, SSgt Supari and NO Zulkifli. The appellant walked towards the Honda, opened the right rear passenger door to retrieve a Sunnex travelling bag from within, carried it to NO Kho`s car and placed it in the trunk. Once the trunk of the car was closed, the other officers, having received a signal from SSSgt Shah Ni, came and arrested Zainal and the appellant. An immediate examination of the Sunnex bag revealed six blocks of greenish vegetable matter suspected to be cannabis. The interior of the Honda was also searched and a clutch bag was recovered beside the front passenger seat. Cpl Chua was the only one who did not observe the Sunnex bag being handled by the appellant.

At the CNB office at Jurong Police Divisional Headquarters, the exhibits were weighed in the presence of the appellant. The drugs were later analysed at the Department of Scientific Services and were confirmed to be cannabis, weighing 9,504g. The appellant was handed over to the investigating officer, Senior Staff Sergeant Cheong Wah Chow (`IO Cheong`).

Two statements were recorded from the appellant by IO Cheong with the assistance of a CNB Malay interpreter Abdul Razak bin Othman (`Abdul Razak`). They consisted of a cautioned statement made under s 122(6) of the Criminal Procedure Code on 25 December 1993 between 12.20am and 12.45am (`the s 122(6) statement`) and a long statement made on 28 December 1993 between 1.50pm and 4.40pm (`the long statement`). The appellant objected to the admissibility of these two statements and a voir dire was consequently held.

Trial within a trial

IO Cheong testified that both statements had been voluntarily given with no threat, inducement or promise offered before or during the recording of the statement. This was corroborated by Abdul Razak`s testimony. Senior Staff Sergeant William Porter (`SSSgt Porter`) and Corporal Mohd Rashef (`Cpl Rashef`) were also called to testify at the voir dire as there was some suggestion that they had pressured the appellant.

SSSgt Porter stated that at about 7.20pm on 25 December 1993, Cpl Rashef and he had interviewed the appellant for the purpose of gathering intelligence. The interview lasted for about two hours. SSSgt Porter interviewed him again on 27 December 1993 at around 3.05pm to verify certain matters mentioned by the appellant in the previous interview. This interview lasted for approximately three hours.

The evidence of the appellant in the trial within a trial was as follows.

He was 56 years of age and attended school for only five years at the primary level. He was only taught in Malay and his level of proficiency in English was minimal.

After his arrest on 24 December 1993, he was questioned in a rough manner by IO Cheong and Abdul Razak. He was told by IO Cheong that he `would be making a statement and there was nothing to it`. Later he was ushered into IO Cheong`s room for questioning. The appellant told IO Cheong that the drugs belonged to Amin and, when he persisted in denying that the drugs were his, he was told by IO Cheong that he would be beaten up if he did not tell the truth. Abdul Razak added that he would be sent to the gallows.

Subsequently, a statement was prepared for the appellant to sign. Although unwilling, he later appended his signature when he was told by IO Cheong and Abdul Razak that `there was nothing to it`. The appellant claimed that the statement was not complete and had omitted to mention that the drugs belonged to Amin and the circumstances in which he was found with them.

As regards the long statement, the appellant claimed that he was interrogated, prior to recording that statement, on 25 and 27 December 1993, by SSSgt Porter and Cpl Rashef. He was told that, if he did not tell the truth, they would recommend that he be sent to the gallows. They uttered harsh words and made him shed tears. However, if he were to sign the statement, they would put in a good word and his sentence would be light. However, the appellant alleged that no statement was signed by him on 28 December 1993. It was only on 30 December 1993 when his family paid him a visit that he signed four times on some documents after being told by IO Cheong that `it was nothing`. No interpreter was present then. Basically, he denied ever making the incriminating parts of the long statement. His daughter, Rosidah bte Osman, and his wife, Sarinah bte Taslin, testified that when they visited the appellant he was made to sign a document but they were unable to shed any light on the nature of the document.

The trial judge ruled the statements to be admissible as he was satisfied that they had been made voluntarily by the appellant. He also concluded that the allegations of threats and inducements had been made up by the appellant. In so far as relevant, the statements which were admitted are set out as follows:

Section 122(6) statement recorded on 25 December 1993:

I have nothing to say. That is all.

Long statement recorded on 28 December 1993:

(8) Since 1991 my wife Sarinah is suffering from diabetes and high blood pressure which requires frequent treatment at the hospital. Her medical expenses are high. I had been looking for jobs to help out in her expenses but was unsuccessful. I also tried to borrow money from friends and was also unsuccessful. About one month ago in November 1993, sometime in the afternoon I met a friend named Ariffin at a coffeeshop at Tanglin Halt Road ... I had also tried to borrow money from Ariffin but he was unable to help me. Ariffin then asked me whether I would be willing to deliver drugs for someone if there was an opportunity as the money was good. I agreed and we exchanged our home telephone numbers ... Ariffin said he would contact once he had the news.

(9) ... Ariffin did telephone me at my house on three or four occasions and said there was still no progress on the offer of delivering drugs for that `someone`.

(10) On 24 December 93 sometime past 2pm, Ariffin telephoned me and said there were drugs to deliver. Ariffin asked me whether I was still interested to do it. Ariffin said there was a bag of `ganja` to be collected from his house at Holland Close and to be delivered to someone at the McDonald Restaurant at Boon Lay. For the errand I would be given between $4,000 to $5,000. I told Ariffin that I needed sometime to think over it and would call him back at his house in an hour`s time. Ariffin had said the drugs to [be] delivered was `ganja` meaning cannabis. I thought over the offer...