Poh Kay Keong v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 30 November 1995
• Neutral Citation: [1995] SGCA 84
• Docket Number: Criminal Appeal No 50 of 1995
• Date: 30 November 1995
• Published date: 19 September 2003
• Year: 1995
• Plaintiff Counsel: Surian Sidambaram, Goh Lam Chuan and Parambir Singh Sekhon (KS Chia Gurdeep & Param)
• Citation: [1995] SGCA 84
• Defendant Counsel: Muhammad Hidhir bin Abdul Majid (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether accused's confession brought about as result of threat, inducement or promise,s 24 Evidence Act (Cap 97, 1990 Ed),Misuse of Drugs Act,Criminal Law,Confessions,Proof of evidence,Trafficking in controlled drugs,Statutory offences,Evidence,Whether possession of drugs rebutted on a balance of probabilities,Words and Phrases,s 5(1) & (2) Misuse of Drugs Act (Cap 185),'Having reference to ... charge against ... accused person'

Cur Adv Vult

(delivering the judgment of the court): The appellant was convicted of trafficking in 32 sachets and two plastic packets of substance containing 39.84g of heroin, an offence under s 5(1) read with s 5(2) and punishable under s 33 of the Misuse of Drugs Act (Cap 185) (the Act). Against the conviction this appeal has been brought.

The prosecution case

The prosecution case is this. The appellant, a 33-year-old odd job labourer, was arrested on 20 April 1995 for consumption of drugs and was sent to the Sembawang Drug Rehabilitation Centre (the DRC) on the following day. At the time of his arrest he had with him three sachets of heroin, which, however, were not the subject of the charge. Prior to his arrest he was staying at the flat, Blk 546, #03-2256, Ang Mo Kio Ave 10, Singapore (the flat). The flat belonged to his brother, Poh Kay Tong, and the latter`s wife, Toh Gek Kuan. On the day of his arrest, ie 20 April 1995, the officers from the Central Narcotics Bureau (CNB) gained entry into the flat with the keys they had seized from the appellant. The flat was searched by the CNB officers and one straw of heroin was found in the table drawer in the appellant`s bedroom. This was also not the subject matter of the charge.

On 2 May 1995, Inspector S Krishnan, Sgt Tan Lye Huat, Sgt Low Poh Wah and Cpl Goh Seow Thian of the CNB, arrived at the DRC at about 1.10 pm with instructions to take the appellant to the flat for the purpose of conducting a search for controlled drugs. They left the DRC at about 1.50 pm with the appellant. Two warders from the DRC, Neo Hock Sim and Ahliyas bin Zahari, followed in another vehicle.

During the journey to the flat Inspector Krishnan asked the appellant about the presence of drugs in the flat. He spoke in English and Sgt Tan Lye Huat acted as interpreter in Hokkien. The appellant, speaking in Hokkien, denied knowledge of any drugs. The entire party arrived at the flat at about 2.15pm. There was no one in the flat and the metal grille gate to the flat was padlocked. Inspector Krishnan, however, was unable to unlock the gate with the key given to him earlier at the DRC. Sgt Low Poh Wah obtained from the appellant his mother`s telephone number and made the telephone call. He spoke to a lady and asked her to get in touch with the appellant`s brother, Poh Kay Tong, to come to the flat with the key. Later, at about 2.45pm one Neo Sew Eng (the mother-in-law of the appellant`s brother) arrived with the key and she told them that the padlock had been changed about a week previously.

After the party had entered the flat, Inspector Krishnan asked the appellant to surrender the drugs kept in the flat but he again denied knowledge of any drugs. A search of the bedroom which the appellant occupied was carried out, while the appellant stood at the entrance to the bedroom with the two warders, Neo Hock Sim and Ahliyas bin Zahari, behind him. A short while later, Sgt Low Poh Wah informed Inspector Krishnan that he found something inside the base of a Sanyo table fan. Inspector Krishnan took over and began unscrewing the base, while Sgt Low proceeded to search the kitchen. The appellant was then brought closer to the fan, and Sgt Tan Lye Huat asked the appellant what was in the fan, and the appellant replied: ` Peh Hoon `. Sgt Tan asked the appellant how much there was and the appellant said that he could not remember. Sgt Tan then asked when he put the drugs there and the appellant replied that it was some time ago. Inspector Krishnan found inside the base of the fan a sachet of substance, a piece of paper and something wrapped in tissue paper which turned out to be another sachet of similar substance.

Sgt Low then informed his fellow officers that he found something underneath the floorboard of a kitchen cabinet. He lifted a red plastic bag hidden beneath the board. He found that it contained many plastic sachets. The appellant was brought into the kitchen. Sgt Tan Lye Huat pointed to the red plastic bag and asked the appellant, in Hokkien, `How much was in the plastic bag?`. The appellant said in Hokkien that he could not remember. Sgt Tan then asked `What was inside it?`. The appellant said, `I have nothing to say`. Sgt Tan asked again, `How much was inside?` This time the appellant said ` Sah Chap ` which means `30` in Hokkien.

The investigating officer S/Sgt B Chandrasegaran arrived shortly. He took the red plastic bag from the compartment beneath the floorboard of the cabinet in the kitchen, and on taking it out he also found a green plastic bag under it. The substance in the red plastic bag was packaged in 30 sachets and one larger packet, and the green plastic bag also contained similar substance.

The substances in the 30 sachets and the larger packet were analysed and found to contain 12.74g and 3.08g of diamorphine respectively. The substance in the green plastic bag on analysis was found to contain 23.36g of diamorphine. The two sachets found at the base of the table fan on analysis were found to contain 0.66g of diamorphine. The total amount of diamorphine recovered was 39.84g, the subject matter of the charge against the appellant.

On 2 May 1995, a statement under s 122(6) of the Criminal Procedure Code (CPC) was recorded from the appellant. He said:

The heroin does not belong to me. A lot of people move in and out of this flat.

The admissibility of this statement was not disputed and it was admitted in evidence.

At the request of the defence, the prosecution called four other officers from the CNB to testify. They were Inspector Gregory Goh, S/Sgt Tai Kwong Yong, Cpl Patrick Phoa and NO Heng Chin Kok; they were the party who arrested the appellant on 20 April 1995 and who conducted a search of the flat on that day. Their evidence, so far as material, was this. After the arrest, the appellant was led to the flat. There the appellant was questioned whether there were any drugs and in response the appellant showed them a straw of heroin in the drawer of the table in the room which the appellant occupied. Apart from that sachet the officers did not find anything else incriminating in the room. They conducted a search in the flat; the search commenced from about 1.55 pm and ended at about 2.45pm. They carried out a thorough search; but they did not check the inside of the fan. As regards the position of the table fan, Inspector Gregory Goh`s evidence was that there was a table fan in the flat, but he could not remember where it was; S/Sgt Tai Kwong Yong`s testimony was that the table fan was in the master bedroom and NO Heng Chin Kok said that the table fan was in the bedroom occupied by the appellant. As for the cabinets in the kitchen they did carry out a search on these cabinets; they did not move the pots and pans out from the cabinets and were not aware of the compartment below the cabinet. All of them said that there was a black clutch bag with a bundle of plastic sachets on the kitchen table but the officer in charge thought that they were not relevant to `his project`. The bag and sachets were, therefore, not seized and were left on the kitchen table.

Poh Kay Tong (Kay Tong`), the elder brother of the appellant and a co-owner of the flat, was called. He testified that about a year ago he allowed the appellant to stay in the flat and use one of the rooms. Kay Tong himself and his family were staying at his mother-in-law`s flat at Blk 307, Ang Mo Kio Ave 1, #09-1185, and his mother-in-law looked after his children. But he occasionally went back to the flat to check on things there. Only he, his wife, Toh Gek Kuan, and the appellant had the keys to the flat. After the appellant was arrested and sent to the DRC, he could not obtain the keys from the appellant. About a week after the arrest, he asked his mother-in-law to change the padlock for the grilled gate, and that was done. The reason he changed the lock was that he suspected outsiders might have the keys to his flat. He said that prior to his brother`s arrest there were occasions when he telephoned the appellant at the flat and found someone other than the appellant answering the telephone. On one occasion, his brother was not even in the flat and he was asked to telephone later. Subsequently he scolded his brother for allowing others to use the flat. On 20 April 1995 he and his wife went to the flat to tidy it, as it was in a mess. He tidied the kitchen, whilst his wife tidied the master bedroom. The cabinets in the kitchen were opened, and the pots and pans and the plates were taken out. In the kitchen cabinet in question he saw a big hole and saw only the pipe and nothing else. The cover was beside the hole and after he had tidied the kitchen he placed back the cover over the hole and put back all the things. He said that he saw the clutch bag and the sachets. He said that he did not know whose bag it was. He then stuffed the sachets into the bag and left it on the table.

No further evidence was led as to what had happened to the clutch bag thereafter. In particular, it was not in evidence that on 2 May 1995 when the party of officers led by Inspector Krishnan went to the flat with the appellant they saw the black clutch bag and the plastic sachets on the table in the kitchen.

Kay Tong`s wife, Toh Gek Kuan, the other co-owner of the flat was also called. She testified that she and her husband had allowed the appellant to stay at the flat and use one of the rooms. She and her family stayed with her mother who looked after her children. She went back to the flat occasionally to check on things there. On the day of the appellant`s arrest she and her husband went back to the flat to tidy it up. They found the flat in a mess. In particular, she tidied the master bedroom. The table fan was in the master bedroom and she did not shift it to the appellant`s room. The stand fan was in the hall. A few days after the appellant was arrested, her husband asked her mother to change the padlock and that was...