Public Prosecutor v Aishamudin bin Jamaludin

• Judge: Sundaresh Menon CJ
• Judgment Date: 17 July 2020
• Neutral Citation: [2020] SGCA 70
• Citation: [2020] SGCA 70
• Defendant Counsel: Hassan Esa Almenoar and Yong Pui Yu Liane (R Ramason & Almenoar), Diana Foo (Tan Swee Swan & Co) and Balakrishnan Chitra (Regency Legal LLP)
• Published date: 22 July 2020
• Hearing Date: 17 February 2020
• Plaintiff Counsel: Hay Hung Chun, Sarah Ong, Soh Weiqi and Yan Jiakang (Attorney-General's Chambers)
• Date: 17 July 2020
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeal No 4 of 2019
• Subject Matter: Common intention,Criminal Law,Misuse of Drugs Act,Complicity,Statutory offences

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

The respondent, Aishamudin bin Jamaludin (“Aishamudin”), was tried jointly with Mohammad Azli bin Mohammad Salleh (“Azli”) and Roszaidi bin Osman (“Roszaidi”) arising from their involvement in a drug transaction pertaining to, among other things, two packets containing not less than 32.54g of diamorphine (“the Drugs”). In this judgment, we address the Prosecution’s appeal against the decision of the High Court judge (“the Judge”) to convict Aishamudin on a lesser charge. We have issued a separate judgment in respect of Azli’s and Roszaidi’s appeals and their related applications: see Mohammad Azli bin Mohammad Salleh v Public Prosecutor and another appeal and other matters [2020] 1 SLR 1374 (“Azli”). In short, we allowed Azli’s appeal against his conviction, and acquitted him of his charge of abetting Roszaidi to traffic in the Drugs (at [111]). As for Roszaidi, we dismissed his appeal against his conviction for trafficking in the Drugs, but remitted the issue of whether he qualified for the alternative sentencing regime under s 33B(3) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) to the Judge for additional evidence to be taken (at [3]). As the issues in Azli’s and Roszaidi’s appeals are distinct from those in the present appeal, it is not necessary for us to say anything more about our decision in Azli.

Aishamudin claimed trial to a capital charge of trafficking in the Drugs under s 5(1)(a) of the MDA by delivering them to Roszaidi, in furtherance of his common intention with another co-accused person, Suhaizam bin Khariri (“Suhaizam”), by virtue of s 34 of the Penal Code (Cap 224, 2008 Rev Ed). Significantly, the quantity of diamorphine that was reflected in Aishamudin’s charge was not less than 32.54g of diamorphine. We refer to this charge as the “original charge”. Suhaizam, on the other hand, pleaded guilty to a non-capital charge in the State Courts. Suhaizam’s charge mirrored Aishamudin’s original charge save in one material respect – the quantity of diamorphine was stated to be not less than 14.99g of diamorphine. It should be noted that under s 33(1) of the MDA read with the Second Schedule, the death sentence is generally mandated for the offence of trafficking in diamorphine if the quantity involved is more than 15g.

The Judge found it logically unsound for the Prosecution to have charged Aishamudin and Suhaizam with a common intention to traffic in different amounts of diamorphine. Accordingly, he amended the quantity of diamorphine in Aishamudin’s original charge to not less than 14.99g (“the amended charge”), reflecting that stated in Suhaizam’s charge, and convicted Aishamudin on the amended charge. The Judge sentenced Aishamudin to 25 years’ imprisonment and 15 strokes of the cane: see Public Prosecutor v Aishamudin bin Jamaludin and others [2019] SGHC 08 (“GD”) at [25]–[30].

The Prosecution appeals against the Judge’s decision to amend Aishamudin’s original charge. It contends that the original charge was made out both on the evidence and in law, and that in reducing the original charge, the Judge interfered with the proper exercise of prosecutorial discretion when there was no basis for him to do so. Aishamudin, on the other hand, defends the Judge’s decision to amend the original charge. In this appeal, he no longer contests the fact that he delivered the Drugs to Roszaidi, and he therefore accepts that his conviction on the amended charge was sound. In fact, as Mr Hassan Esa Almenoar (“Mr Almenoar”), Aishamudin’s counsel, candidly conceded before us, Aishamudin would have no basis at all to contest the original charge against him, if only the element of common intention with Suhaizam were removed.

In the circumstances, the main issue in this appeal is whether the Prosecution can charge two accused persons on the basis of a common intention between them, but prefer a more serious charge against one accused person and a less serious charge against the other. At first glance, there might appear to be an inconsistency between such common intention charges, particularly where the mens rea elements are concerned. For convenience, we refer to this situation as one of “differing common intention charges”.

The facts

Given Aishamudin’s position in the present appeal, the facts need only be set out briefly. Aishamudin accepted that of the ten statements that he gave in the course of the investigations, the account in his first seven statements was largely inaccurate, in so far as he sought to distance himself from the drug transaction with Roszaidi. In his eighth statement, which was recorded on 11 July 2016 at 10.22am, he admitted that while he initially sought to pin the blame entirely on Suhaizam, he did not wish to “hide the truth” any longer. At the trial, Aishamudin accepted in cross-examination that his eighth, ninth and tenth statements were accurately recorded. We therefore take the account given by Aishamudin in these statements.

In essence, at the material time, Aishamudin and Suhaizam were colleagues employed as truck drivers to deliver goods from Malaysia to Singapore. In the course of these deliveries, Aishamudin would, for monetary reward, deliver drugs to recipients in Singapore on behalf of drug traffickers known to him as “Tambi” and “Suhadi”. There were at least two prior occasions on which Aishamudin had delivered drugs on behalf of Tambi and Suhadi, and Suhaizam had collaborated with him in delivering the drugs on the second occasion.

On 6 October 2015, Aishamudin was informed by Suhadi that there was a “job” that day. Accordingly, Aishamudin went to Suhadi’s house and collected a red plastic bag. Suhadi explicitly told Aishamudin that there were packets in the red plastic bag which contained “heroin and a bit of sejuk” (heroin being a common name for diamorphine, and sejuk being a street name for methamphetamine). On the same day, Aishamudin asked Suhaizam to help him transport these drugs to Singapore and deliver them, and Suhaizam agreed to do so. Aishamudin expected that they would receive RM4,000 for performing this delivery.

At the trial, Aishamudin testified that when he entered the truck driven by Suhaizam on 6 October 2015, he had the red plastic bag with him, and he informed Suhaizam that there was diamorphine and methamphetamine in it. After clearing Tuas Checkpoint, Aishamudin and Suhaizam proceeded to Changi Cargo Complex to perform a cargo delivery. Sometime after 9.00pm, Suhaizam drove the truck to Bulim Avenue and parked it along the road. Unknown to them, they were being observed by officers from the Central Narcotics Bureau (“CNB”). Shortly thereafter, a car driven by Azli turned into Bulim Avenue. Roszaidi alighted from the car and collected the red plastic bag from Aishamudin before returning to the car. Both vehicles then exited Bulim Avenue. Throughout the incident, Aishamudin received instructions from Tambi and Suhadi. All the individuals involved in the transportation, delivery and collection of the red plastic bag and its contents were subsequently arrested by CNB officers at various locations.

The charges against Aishamudin and Suhaizam

We turn to the charges preferred against Aishamudin and Suhaizam, which we have alluded to earlier at [2] above. The original charge against Aishamudin was as follows:

That you …

on 6 October 2015 sometime before 10.00 p.m., in the vicinity of Bulim Avenue, Singapore, together with one Suhaizam Bin Khariri (Malaysian IC: 85[XXX]), and in furtherance of the common intention of you both, did traffic in a Class ‘A’ controlled drug listed in the First Schedule to the [MDA], to wit, by delivering two (02) packets containing not less than 921.50 grams of granular/powdery substance, which was analysed and found to contain not less than 32.54 grams of diamorphine, to one Roszaidi Bin Osman (NRIC: S72[XXX]), without authorisation under the [MDA] or the Regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) of the [MDA] read with section 34 of the Penal Code …, and punishable under section 33(1) or section 33B of the [MDA].

[emphasis added in italics and bold italics]

The charge against Suhaizam mirrored Aishamudin’s charge save for the reduced quantity of diamorphine, and read as follows:

You,

SUHAIZAM BIN KHARIRI

...

are charged that you, on 6 October 2015 sometime before 10.00 p.m., in the vicinity of Bulim Avenue, Singapore, together with one Aishamudin Bin Jamaludin (Malaysian IC: 85[XXX]), and in furtherance of the common intention of you both, did traffic in a Class ‘A’ controlled drug listed in the First Schedule to the [MDA], to wit, by delivering two (02) packets containing not less than 921.50 grams of granular/powdery substance, which was analysed and found to contain not less than 14.99 grams of diamorphine, to one Roszaidi Bin Osman (NRIC: S72[XXX]), without authorisation under the [MDA] or the Regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) of the [MDA] read with section 34 of the Penal Code …, and punishable under section 33(1) of the [MDA].

[emphasis added in italics and bold italics]

On 15 January 2018, Suhaizam pleaded guilty to this charge and was sentenced by the District Judge to 25 years’ imprisonment and 15 strokes of the cane (see Public Prosecutor v Suhaizam bin Khariri [2018] SGDC 16). His appeal against sentence was dismissed by the High Court.

In the proceedings against Suhaizam, the Prosecution tendered a statement of facts which Suhaizam unreservedly admitted to. This statement of facts is consistent with the narrative we have set out above. We note that when Suhaizam was called as a prosecution witness at Aishamudin’s trial, he initially testified that he was “just the driver” and did not know that there was diamorphine in the red plastic bag. Suhaizam also...