PP v Mohammad Ashik bin Aris

CourtHigh Court (Singapore)
Judgment Date03 May 2011
Docket NumberCriminal Case No 25 of 2010
Date03 May 2011
Public Prosecutor
Mohammad Ashik bin Aris

Chan Seng Onn J

Criminal Case No 25 of 2010

High Court

Criminal Law—Evidence—Section 16 Misuse of Drugs Act (Cap 185, 2008 Rev Ed) —Nature of presumption compared with s 22—Sections 16 and 22 Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal Law—Evidence—Section 22 Misuse of Drugs Act (Cap 185, 2008 Rev Ed) —Whether presumption relating to urine test applied—Section 31 (4) (b) Misuse of Drugs Act—Whether urine test complied with statutory requirements—Sections 22 and 31 (4) (b) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal Law—Statutory offences—Misuse of Drugs Act (Cap 185, 2008 Rev Ed) —Consumption of controlled drugs—Section 8 Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

The accused was arrested and charged with consumption of methamphetamine (‘Methamphetamine’) . 18 packets of crystalline substance and an improvised pipe-like instrument commonly used for smoking Methamphetamine was seized at the place of arrest. The accused admitted that he believed he had been smoking Methamphetamine. The Health Sciences Authority (‘HSA’) certified that: (a) Methamphetamine was found in the urine specimens provided by the accused after his arrest; (b) the crystalline substance in the 18 packets was Methamphetamine; and (c) the pipe-like instrument was stained with Methamphetamine.

The defence was that although the accused admitted his belief to smoking Methamphetamine, the Prosecution still had to prove that he had in fact consumed that particular drug. Further, the urine test conducted by HSA had not complied with statutory requirements and hence could not be relied upon by the Prosecution. Finally, it was contended that the urine specimens could have been contaminated.

Held, convicting the accused:

(1) Since the accused had admitted his intention to consume Methamphetamine, the Prosecution had to prove only the actus reus of the offence: at [9].

(2) On their own, the circumstantial evidence and statements of the accused were sufficient to prove beyond reasonable doubt that the accused had, consistently with his belief, consumed Methamphetamine: at [10] to [14].

(3) Section 16 of the Misuse of Drugs Act only laid down a rebuttable presumption that the matters stated in the relevant HSA certificates were true. Hence where HSA had certified that Methamphetamine was found in the accused's urine samples, s 16 presumes the truth of only that matter. In contrast, the nature of the presumption in s 22 was quite different. Unlike s 16, s 22 took the further step of presuming that the presence of Methamphetamine in the urine specimens was the result of its consumption. Sections 16 and 22 existed separately and operate independently of each other: at [30] to [33].

(4) On the facts, the Defence had failed to establish a reasonable doubt that contamination could account for the high concentration of Methamphetamine found in the accused's urine: at [65] and [70].

(5) The operation of s 22 depends on fulfilment of the requirements set out in s 31 (4) (b) . The three requirements are: that the urine test had to be (a) ‘conducted’ by (b) ‘different’ (c) ‘analysts’: at [73].

(6) These requirements of s 31 (4) (b) had to be seen in the light of its legislative history and Parliament's intention. The legislative purpose of s 31 (4) (b) was to ensure better protection for an accused by providing for two independent urine tests to be conducted. Section 31 (4) (b) had to also be read in the context of s 22, which was intended to curb the spread of drug consumption. Given these considerations, a nuanced and balanced approach should be adopted in interpreting s 31 (4) (b) : at [189] to [194] and [237].

(7) It was accepted that ‘analyst’ referred to persons presently hired by the HSA to the position of ‘Analyst’: at [196].

(8)‘Conduct’ was a word that had a wide spectrum of meanings and the context determined which was intended. In the context of the urine test, it was sufficient if the analyst was able to detect and correct almost any error in the testing process. Since the facts established that the analyst was able to detect and correct almost any such error, the urine test was ‘conducted’ by analysts. One should not adopt an overly literal interpretation and require the analyst to personally carry out the urine test: at [207] and [261] to [264].

(9) On the facts, the sample preparation and operation of the machines were done by different people. It was not necessary for different people to carry out the administrative stages of the urine test: eg, the transporting of the urine specimens or the breaking of the seals. Neither was it necessary for the additional layer of checks of the urine testing process to be carried out by different persons. If the two urine tests themselves, without the additional checks, did not infringe the requirement of independence, then the implementation of the checks, which served only to further safeguard against error, could not precipitate a lack of independence: at [270] and [271] to [274].

AG v Elite Wood Products (Australia) Pty Ltd [1992] 1 SLR (R) 929; [1992] 2 SLR 280 (refd)

Council of the Pharmaceutical Society of Great Britain v Fuller [1932] 96 JP 422 (refd)

Jagatheesan s/o Krishnasamy v PP [2006] 4 SLR (R) 45; [2006] 4 SLR 45 (refd)

Lim Boon Keong v PP [2010] 4 SLR 451 (not folld)

Miller v Minister of Pensions [1947] 2 All ER 372 (refd)

Planmarine AG v Maritime and Port Authority of Singapore [1999] 1 SLR (R) 669; [1999] 2 SLR 1 (refd)

PP v Low Kok Heng [2007] 4 SLR (R) 183; [2007] 4 SLR 183 (refd)

PP v Tan Loon Lui [2003] 2 SLR (R) 216; [2003] 2 SLR 216 (refd)

Tan Chin Hock v PP [2011] 1 SLR 1079 (folld)

Vadugaiah Mahendran v PP [1995] 3 SLR (R) 719; [1996] 1 SLR 289 (refd)

Dangerous Drugs Act (Cap 151, 1970 Rev Ed)

Drugs (Prevention of Misuse) Act (Cap 154, 1970 Rev Ed)

Interpretation Act (Cap 1, 2002 Rev Ed) s 9 A (consd) ;ss 9 A (2) , 9 A (4)

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) ss 8, 16, 22, 31 (4) (b) (consd) ;ss 8 (b) (ii) , 31 (4) (a) , 33 (1)

Misuse of Drugs Act 1973 (Act 5 of 1973) ss 19 A, 28

Misuse of Drugs (Amendment) Act 1975 (Act 49 of 1975)

Misuse of Drugs (Amendment) Act 1977 (Act 12 of 1977)

Misuse of Drugs (Amendment) Act 1989 (Act 38 of 1989)

Misuse of Drugs (Amendment) Act 2006 (Act 2 of 2006)

Misuse of Drugs (Urine Specimens and Urine Tests) Regulations 1977 (S 325/1977) reg 6

Misuse of Drugs (Urine Specimens and Urine Tests) Regulations (Cap 185, Rg 6, 1999 Rev Ed) reg 5

Poisons and Pharmacy Act 1908 (c 55) (UK) s 3 (1)

Anandan Bala, Stella Tan and Peggy Pao (Attorney-General's Chambers) for the Prosecution

SK Kumar and Brian Campos (SK Kumar & Associates) for the accused.

Judgment reserved.

Chan Seng Onn J

The brief facts

1 Mohammad Ashik bin Aris (‘the accused’) is charged with one count of consumption of methamphetamine (‘Methamphetamine’) , an offence under s 8 (b) (ii) of the Misuse of Drugs Act (‘MDA’) and punishable under s 33 (1) of the MDA.

2 At about 10.40 am on 22 January 2010, the accused was arrested by a party of Narcotics Officers from the Central Narcotics Bureau (‘CNB’) at Kim Tian Hotel. The accused was found in room 202 with an improvised pipe-like instrument (‘the pipe’) and 18 packets of crystalline substance(‘18 packets’) . He was arrested and taken to the Bedok Police Headquarters where three specimens of urine were taken from him. One was subsequently tested to be positive for amphetamines (‘Amphetamines’) under an Instant Urine Test conducted at the police station. The remaining two specimens were delivered in a locked metal security box to the Health Sciences Authority (‘HSA’) on 25 January 2010. Subsequently, HSA issued two certificates on 28 January 2010, certifying that both urine specimens tested positive for Methamphetamine. On 3 February 2010, the pipe and the substance in the 18 packets were sent to HSA for testing. On 15 April 2010, HSA issued two further certificates certifying that the inside of the pipe was stained with Methamphetamine, and that the crystalline substance in the 18 packets contained Methamphetamine.

3 At trial, the Prosecution called the director in charge of the laboratory at HSA and all those HSA officers involved in the testing as witnesses to give detailed evidence on the testing methodology, the procedures adopted for the testing of the substances and materials in this case, and their analyses and findings thereto. An expert witness was called to give evidence on the common international practice and to comment on the methods and procedures used by HSA. CNB officers involved in the arrest of the accused, the seizure of evidence from the accused's room, the recording of the accused's statements and the collection of urine specimens from the accused were also called to testify.

4 The Prosecution further adduced three statements made by the accused (‘the accused's statements’) where he admitted that he had the intention of consuming ‘Ice’ and pursuant to that intention, did in fact smoke some substance using the pipe. The first statement was an oral contemporaneous statement made on 22 January 2010 at about 11.00 am; the second was a statement made pursuant to s 121 of the Criminal Procedure Code on 22 January at 6.00 pm; and the third was a cautioned statement made pursuant to s 122 (6) of the Criminal Procedure Code on 22 January 2010 at 9.06 pm.

5 As the Defence did not take the position that the accused had no case to answer, his defence was called. However, the accused chose to remain silent. The Defence called one expert witness to testify on the accused's behalf.

The section 8 MDA offence

6 Section 8 of the MDA reads:

Possession and consumption of controlled drugs

8.Except as authorised by this Act, it shall be an offence for a person to-

  1. (a) have in his possession a controlled drug; or

  2. (b)...

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