Public Prosecutor v Muhammad Farid bin Mohd Yusop

• Court: Court of Appeal (Singapore)
• Judge: Chao Hick Tin JA
• Judgment Date: 11 March 2015
• Neutral Citation: [2015] SGCA 12
• Citation: [2015] SGCA 12
• Defendant Counsel: Amolat Singh (Amolat & Partners) and Mervyn Cheong Jun Ming (Eugene Thuraisingam)
• Published date: 11 March 2015
• Plaintiff Counsel: Lau Wing Yum and Lim How Khang (Attorney-General's Chambers)
• Hearing Date: 16 October 2014
• Docket Number: Criminal Appeal No 4 of 2014
• Date: 11 March 2015
• Subject Matter: Statutory Offences,Misuse of Drugs Act,Criminal Law

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court): Introduction

This was an appeal against the decision of the High Court judge (“the Judge”) in Public Prosecutor v Muhammad Farid bin Mohd Yusop [2014] SGHC 125 (“the Judgment”). The accused (“the Respondent”) had claimed trial to the following charge of trafficking in methamphetamine (which we will hereinafter refer to by its street name “Ice”) under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the Act”):

That you, MOHAMMAD FARID BIN MOHD YUSOP,

on 10 March 2011, at about 5.30 a.m., in the vicinity of the traffic junction of Lavender Street and Bendemeer Road, Singapore, inside vehicle SGH3547U, did traffic in a controlled drug specified as a “Class A drug” in the First Schedule to the Misuse of Drugs Act (Cap 185,2008 Rev Ed) (“the Act”), to wit, by having in your possession for the purpose of trafficking, two packets of crystalline substance which was analysed and found to contain not less than 386.7 grams of methamphetamine, without any authorisation under the Act or the regulations made thereunder, and you have thereby committed an offence under s 5(l)(a) read with s 5(2) and punishable under s 33 of the Act, and further upon your conviction under s 5(1) of the Act, you may alternatively be liable to be punished under s 33B of the Act.

[emphasis added]

After hearing the parties, the Judge accepted the defence of the Respondent and amended the capital charge to one of possessing 249.99g of Ice for the purpose of trafficking. He convicted the Respondent on the amended charge and sentenced him to 23 years’ imprisonment and 15 strokes of the cane.

The Prosecution appealed against the decision of the Judge and the appeal came before us on 16 October 2014. After hearing the parties, we dismissed the appeal. Before setting out the detailed grounds of our decision, we would like to briefly highlight three general observations at the outset which merit some attention in this appeal, and which we will elaborate upon towards the end of this judgment.

The first observation pertains to the issue as to whether the court should draw an adverse inference in situations where a party had elected not to call a witness who might have been instrumental in his case, despite the witness being available. In this appeal, this arose as the Respondent had chosen not to call the person who supplied him the drugs, and the Prosecution argued that by choosing not to do so, this cast a “real doubt” on the Respondent’s evidence with regard to one crucial aspect of the case.

The second observation relates to the need for the courts to be particularly discerning towards manufactured defences and to guard against them. This appeal concerned certain presumptions that arose and which the Respondent had the legal burden of rebutting on a balance of probabilities. In such situations, there is a general concern that, through carefully rehearsed statements, an accused person might attempt to manufacture a defence specifically tailored to rebut such legal presumptions. In this regard, we had certain reservations as to the veracity of the Respondent’s defence mounted in the court below, which the Judge accepted and thereby found that these presumptions had been rebutted.

However, despite these reservations, we nevertheless dismissed the appeal. This leads us to our third observation, which, although trite, bears repeating – that it must be shown that a trial judge’s determination was plainly wrong or plainly against the weight of the evidence before appellate intervention is warranted. This appeal neatly illustrated this principle – while there were certain gaps in the Respondent’s defence, especially given the fact that there was no objective or corroborating evidence from another party in support of the Respondent’s defence, we were not satisfied that the Judge was plainly wrong in his findings and therefore dismissed the appeal.

As already mentioned, we will return to elaborate on these three observations later, but first set out our detailed grounds for dismissing the appeal.

Background facts

Following the successful conclusion of an operation led by Senior Station Inspector Heng Chin Kok (“SSI Heng”), the Respondent, a 30-year-old male Singaporean, was arrested by Central Narcotics Bureau (“CNB”) officers at about 5.30am in the vicinity of the traffic junction of Lavender Street and Bendemeer Road inside vehicle SGH3547U (“the Car”). After the Respondent was arrested, the Car was searched by Senior Station Inspector Ng Tze Chiang Tony (“SSI Tony Ng”), and the following items were found on the front passenger’s seat: one plastic bag which was tied up and contained a packet of crystalline substance (“A1”); and one black and grey chequered plastic bag which was untied and contained a packet of crystalline substance (“A2”).

The crystalline substance in A1 and A2 contained Ice, and the net weight of Ice in A1 and A2 was found to be 386.7g altogether. SSI Heng then recorded a contemporaneous statement from the Respondent who was sitting in the rear passenger’s seat of the Car at about 6.00am.

The cautioned statement

On the same day at about 6.30pm, a cautioned statement was taken from the Respondent (“the Cautioned Statement”), which reads as follows:

If I had knew that the amount of ICE that I was going to collect this morning was 500 grams, I would not have collected the ICE. Before today, I used to collect ICE below the weight of 250 grams. I really do not know why the ICE amount today was 500 grams which is more than usual. The reason for me not dealing with ICE more than 250 grams is that I knew it would be death sentence if I am caught.

The four long statements

Four long statements were subsequently recorded from the Respondent. In these statements, the Respondent related when he had started to get involved in trafficking Ice, and his version of what had happened on the day of his arrest.

According to the Respondent, he started dealing in Ice since the start of 2010. He would receive his supplies from a Malay man known as “Bapak”, and then weigh and re-pack the Ice into mini-packets to sell for a profit. In early 2011, Bapak asked the Respondent to deliver Ice to various other customers for him, and offered the Respondent $500 for each delivery job. The Respondent took up the offer and made his first delivery for Bapak sometime in January 2011. On that occasion, he drove his car under the overhead pedestrian bridge at Kranji MRT station, where a Malaysian Indian man later arrived and placed a packet of Ice into the Respondent’s car through his front passenger’s window. They did not speak. The Respondent then drove off to deliver the packet of Ice to Bapak’s friend. The $500, which he was promised for making the delivery, was then duly deducted from what the Respondent owed Bapak for the Respondent’s personal supply of Ice which he had bought from Bapak.

The Respondent later made two more deliveries of Ice for Bapak – one around the end of January 2011 and the other sometime in February 2011. On both occasions, the Respondent followed essentially the same modus operandi that was used on the first delivery as described above. The Respondent stated that he handled 125g of Ice on his first and second deliveries, and 250g of Ice on his third delivery. It appears that the Respondent was referring to the gross weight of the Ice (ie, the total weight including impurities) rather than the net weight (ie, the weight of the pure drug as determined after scientific analysis). The Respondent himself had said that 250g was the weight “before you analyse”.

The Respondent was instructed to make what would be his fourth delivery job for Bapak on 10 March 2011. He was told, early that morning at about 4.00am, to proceed to Kranji MRT station to collect the Ice. The Respondent complied, and, as on previous occasions, stopped his car under the overhead pedestrian bridge. A Malaysian Indian man approached his car and placed two plastic bags on his front passenger’s seat, after which the Respondent drove off.

The Respondent stated that, while he did not open the plastic bags to check the contents, he knew that they contained Ice. He did not know the exact weight of the Ice but assumed that it was less than 250g. As the Respondent was driving, he received a call from Bapak who instructed him to bring the Ice to Woodlands for delivery to its intended recipient. Shortly after this call, however, he found his car being “sandwiched” by the CNB officers at the junction of Lavender Street and Bendemeer Road. This eventually led to his arrest.

The decision below

In the court below, the Prosecution relied on the presumptions under ss 18(1) and 18(2) of the Act to prove that the Respondent had in his possession the two plastic bags containing Ice (viz, A1 and A2) and that he knew that the contents therein were Ice. It was also clear that the Respondent was trafficking in Ice since he had admitted that he was on the way to deliver the drugs to one of Bapak’s customers. The Respondent’s defence was that he did not intend to traffic in the quantity of Ice that was in fact found on him, viz, 386.7g, but only in a lesser quantity of up to 250g. This particular defence was crucial as any quantity beyond 250g would have attracted the death penalty. In support of this particular defence, the Respondent claimed that he had an agreement with Bapak not to deliver more than 250g of Ice. Given this agreement and that there was nothing suspicious about that delivery that should have caused the Respondent to suspect that he would be given more than 250g of Ice, the Defence submitted that the Respondent did not know and that it was not reasonable for him to expect that the weight of Ice passed to him would be more than 250g.

The primary issue before the Judge was therefore whether the...