PP v Muhammad Shafiq bin Shariff

• Judge: Ang Cheng Hock J
• Judgment Date: 22 June 2021
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 25 of 2019

Public Prosecutor

and

Muhammad Shafiq bin Shariff

[2021] SGHC 150

Ang Cheng Hock J

Criminal Case No 25 of 2019

General Division of the High Court

Criminal Law — Statutory offences — Misuse of Drugs Act — Accused charged for importing five packets of methamphetamine into Singapore — Accused claiming not to know existence of four of five packets of methamphetamine — Accused admitting that he knew existence of remaining small packet of methamphetamine and other drug exhibits in his possession — Whether accused rebutted presumption of possession under s 18(1)(a) Misuse of Drugs Act (Cap 185, 2008 Rev Ed) — Section 18(1)(a) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal Procedure and Sentencing — Disclosure — Whether Prosecution breached its disclosure obligation under Muhammad bin Kadar v PP[2011] 3 SLR 1205 by purportedly disclosing phone and bank records to Defence late

Held, acquitting the accused of the Capital Charge and ordering the Prosecution to indicate its intention regarding the remaining stood down charges against the accused:

Had the section 18(1)(a) presumption been rebutted?

(1) The mere fact that the accused's admission regarding his knowledge of the ecstacy tablets and the small packet of ice came later and only in his second cautioned statement and eighth long statement rather than in his earlier statements did not ipso facto show that he had completely lied about his knowledge of the contents of the blue milk powder box and orange biscuit packet. When the accused's evidence was seen in their full and proper context, it was clear that his defence was not unbelievable, and that his account of some of the inconsistencies in his evidence was also credible: at [165].

(2) The following unique features in this case led to the conclusion that the accused had rebutted the s 18(1)(a) presumption on a balance of probabilities: at [166] and [167].

(3) The accused consistently denied knowing that the blue milk powder box contained methamphetamine in all his investigative statements. The accused's undisputed contemporaneous conduct during his arrest – that of surprise at the sight of the methamphetamine in the blue milk powder box – was also consistent with his denial of knowledge that the blue milk powder box contained methamphetamine. While the accused did delay his admission regarding his knowledge of the ecstacy pills and the small packet of ice in the orange biscuit packet, the accused gave an explanation for this that was not inherently incredible: at [166(a)].

(4) The accused was not aware that Husir was selling methamphetamine, and, according to the accused, there were no large quantities of methamphetamine in Husir's condominium unit. This was not unbelievable because it was undisputed that Husir's family members, including young children, were also staying in that condominium unit. This fact would have made it less likely for the accused to suspect that the condominium unit contained large amounts of methamphetamine. Further, the mere fact that Husir consumed methamphetamine would not ipso facto ground a suspicion in the accused that he was a methamphetamine trafficker, much less one that dealt with large amounts of methamphetamine: at [166(b)].

(5) It was undisputed that the accused was only given the small packet of ice (0.97g of methamphetamine) for helping Husir to deliver the red plastic bag into Singapore. Also, it was not the Prosecution's case that Husir paid the accused for previous delivery of drugs which the accused had done for Husir. The fact that Husir did not once attempt to entice the accused with a large reward would not have given the accused any basis to infer or suspect that he would be dealing with such a large quantity of methamphetamine, instead of just the 105 ecstacy tablets, as he believed: at [166(c)].

(6) The accused was not involved in, and did not see, the packing of the blue milk powder box: at [166(d)].

(7) The accused's DNA was also not found on the blue milk powder box or the silver foil packets and the packets of methamphetamine found inside the blue milk powder box. While the absence of DNA was itself a neutral factor, the fact that the accused's DNA was not found on both the exterior and interior of the blue milk powder box was at least consistent with his claim that he was not involved in the packing of the blue milk powder box and its contents: at [166(e)].

(8) While the accused had withdrawn about S$22,000 after his first and second trips to Johor, which the Prosecution submitted was too large a sum for it to be winnings from SCR888 and/or sales from ecstacy dealings, the critical point was that there was no objective evidence to show whether it was truly “impossible” to make large winnings from SCR888: at [166(f)].

(9) Finally, the accused met Husir through a mutual friend. While the accused and Husir would not be considered close friends, they were evidently sufficiently well acquainted that the accused would allow Husir's son, Rahilme Khan bin Husir Khan (“Rahilme”), to sleep in the accused's flat in Bukit Batok when Rahilme was in Singapore. This was not a situation whereby the accused would have had grounds to believe that Husir might sabotage the accused. Husir had explicitly told the accused that he would only be delivering ecstacy pills into Singapore, and Husir even showed the accused the 105 pills of ecstacy: at [166(g)].

(10) The credibility of an accused person's claim of his knowledge of what he was carrying could be assessed by reference to the accused person's past practice (of prior drug runs). In the present case, the accused's evidence was that his prior drug run for Husir only involved ecstacy pills, and he himself never saw Husir deal with large amounts of methamphetamine. The accused also consistently denied in his investigative statements that he knew that there would be four large packets of methamphetamine in the red plastic bag. This lent support to his claim that he did not know that Husir would have secretly given him a capital amount of methamphetamine to import into Singapore in the present occasion. In these circumstances, the evidential burden clearly had shifted to the Prosecution, which was not adequately rebutted by the Prosecution: at [170].

Was the accused wilfully blind as to the existence of the drugs?

(11) Given the foregoing facts, the accused also did not have a clear and targeted suspicion that the blue milk powder box contained the four packets of methamphetamine, rather than milk powder, the ecstacy pills or the small packet of ice. Consequently, the Prosecution had not shown that the accused was wilfully blind to the existence of the 333.7g of methamphetamine that was found in the blue milk powder box: at [174].

Had the section 18(2) presumption been rebutted?

(12) It had not been proven or presumed that the accused possessed the total quantity of 334.67g of methamphetamine that was the subject of the Capital Charge. Thus, s 18(2) of the MDA was not triggered to presume that the accused knew the nature of the drug. The accused thus could not be convicted of the Capital Charge: at [175] and [204].

Chain of custody

(13) The evidence showed that the figures recorded by Sgt(2) Danial in the station diary had to have arisen after IO Parthiban took over the drug exhibits, and there was no separate weighing of the drug exhibits in addition to the first and second ones. The proper inference to be drawn was that Sgt(2) Danial had to have been mistaken when he thought that SSSgt Ritar had told him that the weight of the four packets of methamphetamine from the second weighing was 540g. The only reasonable and logical conclusion was that, after the second weighing, Sgt(2) Danial had been told the wrong individual weights by either SSSgt Ritar or IO Parthiban, or that he heard the numbers wrongly, or that there were errors in his addition of the individual weights told to him: at [192], [193], [196] and [197].

(14) Ultimately, the Prosecution had adduced, in painstaking detail, the evidence of all the witnesses who were involved in the chain of custody of the drugs, and the totality of this evidence showed beyond a reasonable doubt an unbroken chain of custody which accounted for the movement of the drug exhibits at every point from seizure to analysis: at [198].

(15) A comparison of the gross weights measured by the Health Sciences Authority (“HSA weights”) and the gross weights measured by the CNB (“CNB weights”) also showed that the CNB weights were uniformly slightly more than the HSA weights in this case. Thus, the Prosecution had proven beyond a reasonable doubt that there was an unbroken chain of custody of the drug exhibits in this case: at [198].

The Prosecution's Kadar obligation

(16) The Kadar obligation dealt with unused material that might undermine the Prosecution's case or strengthen the Defence's case. The TCFB Reports were not “unused” material because they were used by the Prosecution as part of their case: at [201].

(17) It was also unclear how the content of the TCFB Reports in any way undermined the Prosecution's case or strengthened the Defence's case, as the phone and bank records were either neutral or adverse to the accused. The Kadar duty did not apply to material of such nature: at [201].

(18) Even where there was a breach of the Prosecution's Kadar obligations, the specific consequences of such a breach depended on the specific facts of each case, including whether the late disclosure of the material amounted to a material irregularity that occasioned a failure of justice or rendered the conviction unsafe. In this case, even assuming arguendo that the Prosecution had somehow breached its Kadar duty, it was doubtful as to whether there was any possible prejudice to the accused arising from the delay in the disclosure of Exhs P119 and P120: at [202] and [203].

Amendment of the Capital Charge

(19) There were two possible bases to amend the Capital Charge to a reduced...