Parthiban a/l Kanapathy v Public Prosecutor

• Court: Court of Appeal (Singapore)
• Judge: Andrew Phang Boon Leong JCA
• Judgment Date: 03 August 2021
• Neutral Citation: [2021] SGCA 75
• Citation: [2021] SGCA 75
• Defendant Counsel: Senthilkumaran s/o Sabapathy and Deborah Lee (Attorney-General's Chambers)
• Plaintiff Counsel: Ramesh Chandr Tiwary (Ramesh Tiwary)
• Hearing Date: 03 August 2021
• Published date: 06 August 2021
• Docket Number: Criminal Appeal No 7 of 2021
• Subject Matter: Appeals,Criminal Procedure and Sentencing,Sentencing,Statutory offences,Criminal Law,Misuse of Drugs Act,Principles

Andrew Phang Boon Leong JCA (delivering the judgment of the court ex tempore): Introduction

The appellant, Parthiban a/l Kanapathy, was tried in the Court below for an offence of importation under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”) of not less than 14.99g of diamorphine, a controlled drug. This was a charge that had been reduced unconditionally from a prior capital charge at the commencement of the second tranche of hearings in February 2019 (“the Importation Charge”).

The High Court Judge (“the Judge”) found that the Prosecution had proven the Importation Charge beyond a reasonable doubt and convicted the appellant accordingly. The Judge’s decision is reported in Public Prosecutor v Parthiban Kanapathy [2019] SGHC 226 (“the Judgment”). Subsequently, the appellant also pleaded guilty to a charge of perverting the course of justice under s 204A of the Penal Code (Cap 224, 2008 Rev Ed) (“the PCJ Charge”).

The Judge sentenced the appellant to an imprisonment term of 23 years and nine months with 15 strokes of the cane for the Importation Charge, and an imprisonment term of one year and nine months for the PCJ Charge. Both sentences having been ordered to run consecutively, this led to a global sentence of 25 years and six months of imprisonment and 15 strokes of the cane. The sentence was backdated to the date of the appellant’s remand, ie, 4 February 2012.

The appellant now appeals against his conviction in respect of the Importation Charge and the sentences imposed in respect of both the Importation Charge and the PCJ Charge.

Factual background The Importation Charge

We begin with the factual background surrounding the appellant’s arrest and the discovery of the drugs in his motorcycle. This is largely undisputed and is detailed at [94]–[101] of the Judgment.

On 4 February 2012, at or about 2.29pm, the appellant was stopped at Woodlands Checkpoint when he entered Singapore on a motorcycle, bearing the Malaysian registration number WUQ 4810. Upon screening by an officer from the Immigration and Checkpoints Authority (“the ICA”), the appellant was detained for further checks. His passport as well as the keys to the motorcycle were seized from him. Subsequently, at around 3.26pm, officers from the ICA, upon unscrewing the fender of the motorcycle, found four plastic wrappers in the form of “Oriental Cheese Balls” packets (“the Packets”) hidden in the air filter compartment. Suspecting that the Packets may contain controlled drugs, the appellant was placed under arrest. At about 7.45pm, the Packets were seized and opened in the appellant’s presence, each revealing brown granular substances in transparent plastic bags (“the drug exhibits”). The drug exhibits and their attendant packets were photographed. These Packets, along with the drug exhibits, were then handed over to an officer from the Central Narcotics Bureau (“CNB”), Inspector Ong Wee Kang (“Insp Ong”), who brought them back to the CNB for storage, locking it in the safe in his office.

On 6 February 2012, after labelling and sealing the drug exhibits, Insp Ong handed over the drug exhibits, along with four submission forms pertaining to each bag, to Dr Yap Thiong Whei Angeline (“Dr Yap”), an analyst in the Health Sciences Authority (“the HSA”). The drug exhibits were later analysed and found to contain not less than 24.95g of diamorphine (see the Judgment at [102]–[115]). The appellant was charged for a capital offence of drug importation under s 7 of the MDA, and on 30 October 2014, was committed to stand trial in the High Court.

The PCJ Charge

The facts underlying the PCJ Charge are contained in the Statement of Facts (2nd Charge) (Amended) filed on 17 August 2020. The appellant admitted to the facts without any qualification. Our summary thus need only be brief.

In the course of investigations, the appellant incriminated one Muneeshwar Subramaniam (“Muneeshwar”) for instigating him to bring the Packets into Singapore. Subsequently, Muneeshwar was charged with the capital offence for abetting the appellant to import drugs under s 7 of the MDA. On 13 December 2016, Muneeshwar was committed to stand trial in the High Court. Both the appellant and Muneeshwar claimed trial to the capital charges.

Sometime between 16 February 2017 and 20 February 2017, while the appellant and Muneeshwar were in the midst of the capital trial, the appellant handed Muneeshwar, by way of a fellow prison inmate (“Dominic”), a hand-written note (“the Note”). The Note contained detailed instructions, spanning some 11 paragraphs, for Muneeshwar to falsely testify in a way so as to exonerate himself and the appellant from the capital charges. In particular, the appellant wanted Muneeshwar to testify that Muneeshwar had received the Packets from Muneeshwar’s “boss” and that Muneeshwar had passed them to the appellant to bring into Singapore, and that both of them had no knowledge that the Packets contained drugs. At the end of the Note, the appellant implored Dominic to translate the scripted defence to Muneeshwar in Tamil, since the latter’s English proficiency was limited. However, as Dominic did not have an opportunity to see Muneeshwar, one of Muneeshwar’s cellmates instead translated the Note to him in Tamil. But neither Muneeshwar nor his cellmate fully understood the contents of the Note.

All this came to light on 21 February 2017, when Muneeshwar informed his counsel about having received the Note. Muneeshwar copied the contents of the Note onto another piece of paper and brought the copy to the High Court the next day to show his counsel, who promptly reported the matter to a CNB officer. The Note was found and seized in Muneeshwar’s jail cell.

It is to the appellant’s appeal proper that we now turn.

Appeal against conviction

The appellant’s appeal against his conviction is broadly, two-pronged. We highlight first what the appellant’s present appeal is and is not about. He neither challenges the Judge’s detailed findings on the admissibility and accuracy of various statements recorded from him subsequent to his arrest, which were the subject of much dispute below so as to warrant an ancillary hearing being called (see the Judgment at [42]–[72]), nor does he challenge the Judge’s finding that the three elements of an importation charge under s 7 of the MDA, as recently restated in Adili Chibuike Ejike v Public Prosecutor [2019] 2 SLR 254, are made out (see the Judgment at [75] –[88]). Rather, the sole plank of the appellant’s appeal on conviction, consistent with his argument below, is that the Prosecution has failed to discharge its burden of proof demonstrating an unbroken chain of custody beyond a reasonable doubt.

The legal principles are well-established. It is incumbent on the Prosecution to prove beyond a reasonable doubt the chain of custody of the exhibits, and to account for the movement of the exhibits from the point of seizure to the point of analysis, such that there cannot be a single moment that is not accounted for if this might give rise to a reasonable doubt as to the identity of the exhibits (see the decision of this court in Mohamed Affandi bin Rosli v Public Prosecutor and another appeal [2019] 1 SLR 440 (“Affandi”) at [39]). That said, speculative arguments regarding the mere possibility of contamination is insufficient to raise a reasonable doubt as to the identity of the exhibits (see Affandi at [118]).

The appellant’s first argument relates to the difference between the photographs of the drug exhibits taken at the CNB and those taken at the HSA. In particular, the appellant juxtaposes the HSA photographs that revealed a flap over each transparent plastic bag containing the drugs, while the CNB photographs only showed the front view of the drug exhibits. This, the appellant says, is probative evidence that the drugs that were seized and the drugs that were weighed are not the same. The Judge rejected this argument, after having conducted a physical examination of the exhibits and having heard Dr Yap’s evidence. It is clear that the...