Pham Duyen Quyen v PP

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Judith Prakash JA,Tay Yong Kwang JA
• Judgment Date: 19 June 2017
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeal No 27 of 2016
• Date: 19 June 2017

Pham Duyen Quyen

and

Public Prosecutor

[2017] SGCA 39

Sundaresh Menon CJ, Judith Prakash JA and Tay Yong Kwang JA

Criminal Appeal No 27 of 2016

Court of Appeal

Criminal Law — Statutory offences — Misuse of Drugs Act (Cap 185, 2008 Rev Ed) — Appellant checking in luggage at departure airport — Appellant transiting in Singapore when methamphetamine found in her unclaimed luggage — Whether presumption of possession invoked — Whether “possession” referred only to physical possession — Section 18(1) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal Law — Statutory offences — Misuse of Drugs Act (Cap 185, 2008 Rev Ed) — Appellant facing one charge of importation of 249.99g of methamphetamine — Appellant claiming she did not know luggage contained drugs — Whether appellant rebutted presumption of possession — Section 18(1) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal Procedure and Sentencing — Sentencing — Prosecution reducing charge from capital to non-capital offence — Whether sentence should take into account original large quantity of drugs — Whether sentence manifestly excessive

The appellant, a Vietnamese woman, faced one charge of importing 249.99g of methamphetamine under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). The appellant was flying from New Delhi, India, to Laos and was in Singapore on transit. She checked in her luggage at the New Delhi airport and was issued a luggage tag. She did not reclaim her luggage in Singapore as she had mistakenly assumed that it would be automatically transferred to her connecting flight. Officers from the Central Narcotics Bureau monitored the luggage and ultimately tracked down the appellant who admitted that the luggage belonged to her. Two bundles containing 3,037g of methamphetamine were found concealed in her luggage. The appellant was originally charged for a capital offence but the charge was subsequently amended to a non-capital one. She argued that because she was not in physical possession, custody or control of her luggage from the time that she checked in the luggage at the New Delhi airport, the presumption of possession under s 18(1) of the MDA did not even apply. Even if it did apply, it had been rebutted on a balance of probabilities because she did not know that the two bundles of drugs were in her luggage.

According to the appellant, she had become unemployed after the factory she was working for in Vietnam closed down. In the year preceding her arrest, she had lived rent-free with a close friend in Cambodia and survived on her savings and payouts from her housemates. In December 2012, she travelled to New Delhi, India for the first time and took a fancy to an Indian salesman at a shop. In August 2013, she travelled from Vietnam to New Delhi for a second time for the “main purpose” of visiting the Indian salesman. The return tickets cost US$1,100. However, sometime during the trip, she decided to change her itinerary to make detours to Laos and Cambodia before returning to Vietnam. This change in itinerary cost her another US$1,000.

On the way to the New Delhi airport, she realised that the strap of her backpack containing her belongings had broken and proceeded to shop for a new suitcase to contain her belongings. She looked around a few shops before deciding, purely by chance, to buy the luggage in question. She then continued her journey to the airport, checked in her luggage, and flew to Singapore, where the drugs were found in her unclaimed luggage.

The High Court judge (“the Judge”) found that the drugs had to have been in the appellant's luggage at the time of check-in at the New Delhi airport. The presumption of possession under s 18(1) of the MDA applied because she had a luggage tag which entitled her to regain possession of the luggage from the airline. This fell within the limb of “control” in s 18(1) of the MDA, because the word “possession” referred only to physical possession. The presumption of possession had not been rebutted as her version of events was simply incredible. She also failed to rebut the presumption of knowledge under s 18(2) of the MDA because no evidence was offered to refute it. With regard to sentence, the Judge took into account the large amount of methamphetamine that was actually involved in the case, but also noted that the appellant was a first time offender and relatively young. He thus convicted the appellant of the charge and imposed a sentence of 24 years' imprisonment on her. The appellant appealed against both her conviction and sentence.

Held, dismissing the appeal:

(1) When the drugs concealed in the appellant's luggage entered Singapore, the element of importation in s 7 of the MDA was satisfied. It did not matter that the drugs were only brought into Singapore on transit with a view to bringing them out to another country: at [23].

(2) The word “possession” in s 18(1) of the MDA included both the concepts of physical and legal possession. While the appellant had ceased to be in physical possession of her luggage after she checked it in at the departure airport, she was still in legal possession of it by virtue of her ability to reclaim it using the luggage tag issued. The presumption of possession under s 18(1) of the MDA still applied: at [32].

(3) It was open to the appellant to rebut the presumption of possession, for example, by adducing evidence that someone could have placed the drugs in her luggage without her knowledge while it was not in her physical possession. However, she failed to adduce any credible evidence to this effect. Instead, the evidence showed clearly that the drugs were already in her luggage at the time of check-in: at [32] and [39].

(4) The reason for the appellant's second trip to New Delhi was unconvincing given that she could not be sure that the Indian salesman was still working at the same shop and that she would be able to find him. Further, she could not even recall his name or the location and name of the shop: at [40].

(5) The appellant's travel plans and change in itinerary were also extravagant in light of her modest means. On the other hand, the amount spent on her travels was negligible compared to the value of the drugs that she was carrying: at [41], [43] and [44].

(6) There were various occasions during which the appellant could and should have noticed the unusually heavy weight of the purportedly empty luggage that she purchased from the shop. However, when questioned about the weight of the luggage, she showed a propensity to tailor her evidence and insisted, contrary to her statements, that she had hardly handled the luggage personally: at [45] and [46].

(7) The Judge took into account the “unusual feature” of the appellant's calm reaction when the bundles of drugs were found in her luggage. There was no reason not to defer to his assessment of the appellant's credibility: at [47].

(8) Given that the appellant's defence was that she did not know of the existence of the drugs at all, she adduced no evidence pertaining to lack of knowledge of the nature of the drugs. Accordingly, she also failed to rebut the presumption of knowledge under s 18(2) of the MDA: at [49].

(9) The Judge's views on the appropriate sentence came before the decision in Suventher Shanmugam v PP [2017] SGCA 25 (“Suventher”), which held that the fact that a charge was reduced from a capital to a non-capital one was not relevant for sentencing purposes, that the full spectrum of possible sentences provided by law should be utilised, and that the sentence imposed should be broadly proportional to the quantity of drugs that the accused person was charged with importing: at [55].

(10) Applying Suventher to the present case, the amount of methamphetamine imported by the appellant was just minimally below the statutory limit that would have attracted the death penalty. The appropriate sentence would certainly have been in the top range of 26 to 29 years' imprisonment set out in the guidelines in Suventher. Further, the appellant did not have the benefit of a plea of guilt which would have assisted her in mitigation: at [55].

(11) The Judge had properly taken into account the mitigating factors and no further mitigating factors were submitted by the appellant on appeal. The Judge had also backdated the imprisonment term to commence on the date of arrest. Thus, the sentence of 24 years' imprisonment imposed by the Judge could not be said to be manifestly excessive: at [58].

Fun Seong Cheng v PP [1997] 2 SLR(R) 796; [1997] 3 SLR 523 (refd)

Loo Pei Xiang Alan v PP [2015] 5 SLR 500 (refd)

Obeng Comfort v PP [2017] SGCA 12 (refd)

PP v Adnan bin Kadir [2013] 3 SLR 1052 (refd)

Suventher Shanmugam v PP [2017] SGCA 25 (refd)

Tan Ah Tee v PP [1979–1980] SLR(R) 311; [1978–1979] SLR 211 (refd)

Tan Kiam Peng v PP [2008] 1 SLR(R) 1; [2008] 1 SLR 1 (refd)

Ubaka Chris Chinenye v PP [1994] 3 SLR(R) 401; [1995] 1 SLR 267 (refd)

Van Damme Johannes v PP [1993] 3 SLR(R) 694; [1994] 1 SLR 246 (refd)

Vasentha d/o Joseph v PP [2015] 5 SLR 122 (refd)

Warner v Metropolitan Police Commissioner [1969] 2 AC 256 (refd)

Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 325(1)(a)

Interpretation Act (Cap 1, 2002 Rev Ed) s 2(1)

Misuse of Drugs Act 1973 (Act 5 of 1973) s 16

Misuse of Drugs Act (Cap 185, 1985 Rev Ed) ss 18(1), 18(3)

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) ss 7, 18(1), 18(1)(a), 18(2), 18(3)

Drugs (Prevention of Misuse) Act 1964 (c 64) (UK) s 1

Appellant in person;

Anandan Bala, Rajiv Rai and Esther Tang (Attorney-General's Chambers) for the respondent.

19 June 2017

Tay Yong Kwang JA (delivering the grounds of decision of the court):

Introduction

1 This appeal was brought by Pham Duyen Quyen (“the Appellant”), a female Vietnamese, against her conviction and sentence in respect of the following charge under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed)...