Public Prosecutor v Nagaenthran a/l K Dharmalingam

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Chan Seng Onn J
• Judgment Date: 19 January 2011
• Neutral Citation: [2011] SGHC 15
• Citation: [2011] SGHC 15
• Plaintiff Counsel: Toh Shin Hao, Samuel Chua and Serene Seet (Attorney-General's Chambers)
• Docket Number: Criminal Case No 23 of 2010
• Subject Matter: Criminal Law
• Defendant Counsel: Amolat Singh and Balvir Singh Gill (Assigned)
• Published date: 24 January 2011
• Date: 19 January 2011
• Hearing Date: 20 September 2010,21 September 2010,28 September 2010,27 September 2010,22 September 2010,24 September 2010,23 September 2010,22 November 2010

Chan Seng Onn J: Background

The accused was a 22 year old male Indian Malaysian who was charged with the offence of importing, without any authorisation by law, one packet of granular substance containing not less than 42.72 grams of diamorphine under section 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), punishable under section 33 of the MDA read with the Second Schedule to the MDA.

The undisputed facts were as follows. On 22 April 2009, at about 7.45pm, the accused and his friend, one Kumarsen, were stopped at the Woodlands Checkpoint while entering Singapore from Malaysia on a motorcycle. Kumarsen was the rider while the accused rode pillion. A strip search conducted shortly after the accused and Kumarsen were escorted to the Immigration and Checkpoints Authority Car Arrival Secondary Team Office (“ST Office”) at Woodlands Checkpoint uncovered a newspaper-wrapped bundle (“the Bundle”) secured by yellow tape to the accused’s left thigh side of a red pair of boxer briefs which the accused was wearing over his V-shaped underwear. Inside the Bundle was some white granular substance in a transparent plastic bag. The white granular substance was subsequently analysed and found to contain not less than 42.72 grams of diamorphine. Nothing was found on Kumarsen during the strip search.

After the discovery of the Bundle, both the accused and Kumarsen were immediately placed under arrest. Their statements were recorded. Kumarsen was subsequently released while the accused was charged with the offence for which he claimed trial.

The admissibility of the accused’s statements recorded by the Central Narcotics Bureau (“CNB”) officers was not disputed at trial. It was also not disputed that at the time of the alleged offence, the accused was living in a shared apartment in Johor Bahru with some of his friends (including Kumarsen and Kumarsen’s wife) and one Shalini whom the accused claimed to be his girlfriend.

The Prosecution’s case

The Prosecution submitted that the accused was guilty of the offence charged because he knew that he was importing the controlled drug heroin into Singapore at the material time. In particular, the Prosecution argued that the accused already had either actual knowledge or imputed knowledge (in the form of wilful blindness) of the actual contents found in the Bundle when he was stopped at Woodlands Checkpoint on 22 April 2009.

The main evidence of the Prosecution to establish actual knowledge were, inter alia, the testimony of the CNB officer (“Sergeant Shahrulnizam”) who conducted the strip search on the accused and the accused’s alleged admission as to his knowledge in his long statement recorded by another CNB officer (“Sergeant Vasanthakumar”) shortly after his arrest. Based on Sergeant Shahrulnizam’s oral testimony, upon his discovery of the Bundle on the accused’s left inner thigh during the strip search and upon retrieval of the Bundle from the accused’s body (in the course of which part of the Bundle’s newspaper wrapping was torn off, hence exposing parts of the transparent plastic packaging containing the white granular substance), he pointed to the Bundle and asked the accused, “What is this?”, to which the accused replied in English, “Heroin”.¹ As regards the accused’s alleged admission as to his knowledge of the actual contents of the Bundle, the relevant parts of the long statement recorded by Sergeant Vasanthakumar are reproduced here: Q1) What is this? (Pointing to a zip lock Bag consisting of 1 big packet of white granular substance, Crushed Newspaper & yellow Tape) A1) Heroin. Q2) Whom does it belong to? A2) It belongs to my Chinese friend who goes by the name of king who strapped it on my left thigh. Q3) Why did he strapped it on your left Thigh? A3) He Strapped it on my left thigh is because it was for my safety and no one will find it. Q4) Whom is it to be delivered to? A4) It is to be delivered to one Chinese recipient who will be driving a dark blue Camry and he will be meeting me in front of ē 7-11 store at Woodlands Transit. Q5) Why do you have to deliver the Heroin? A5) I have to deliver ē Heroin is because I owe king money & he promised to pass me another five hundred dollars after my delivery.

[sic]

With regard to the Prosecution’s alternative submission that there was wilful blindness on the part of the accused as to the actual contents of the Bundle, the Prosecution argued that although the accused had reason to suspect that the Bundle contained illegal material when King strapped the Bundle to the accused’s left inner thigh, the accused person failed to take reasonable steps to inquire further about the Bundle’s contents despite having sufficient time and opportunity to do so. As such, the accused was prepared to deliver the Bundle, as instructed by King, to Singapore regardless of whether it contained heroin. Relying on the cases of Iwuchukwu Amara Tochi and another v Public Prosecutor [2006] 2 SLR(R) 503 and Tan Kiam Peng v Public Prosecutor [2008] 1 SLR(R) 1, the Prosecution contended that the accused was in fact wilfully blind to the actual contents of the Bundle.

The Prosecution also submitted that, in any event, the accused failed to rebut the presumption of knowledge imposed under section 18(2) of the MDA.

The Defence’s case

The Defence raised two main points. The first was that the accused did not have any knowledge of the actual contents of the Bundle. The second was that the accused had delivered the Bundle under duress by King, a person whom the accused had got acquainted with in Johor Bahru some four to five months before the accused’s arrest and who had been, inter alia, regularly paying for the accused’s food and drinks when they met up in Johor Bahru. According to the accused, he had also accepted loans from King on several past occasions.²

In support of the plea of duress, the accused claimed that he had delivered the Bundle out of fear that his girlfriend, Shalini (whom he was deeply in love with and whom he had intended to marry), would be killed by King if he refused to do so. The version of the facts put forth by the accused in this regard was that he had met King at a food shop in Johor Bahru after his work at about 6pm on 22 April 2009, a day after the accused had asked King to lend him RM500 as the accused’s father had to undergo a heart operation on 23 April 2009 in Kuala Lumpur. At the food shop, King handed the accused what was believed to be a packet of food together with a transparent plastic packet of curry, telling the accused to deliver those items to King’s “brother” in Woodlands, Singapore. King told the accused he had to complete the delivery before any arrangement for the RM500 loan that the accused had requested could be done. Just as the accused was about to leave with those items, King suddenly called the accused back and invited him into King’s car. In the car, King told the accused that he had changed his mind and now needed the accused to deliver something else to King’s “brother” instead. At this point, King handed the accused a packet wrapped in newspaper (ie, the Bundle) which King said contained “company product”, or more particularly “company spares”, and told the accused that the Bundle had to be tied to the accused’s thigh for the delivery.³ The accused resisted, but King slapped and punched the accused, threatening that if he refused to deliver the Bundle, King would “finish” and “kill” the accused’s girlfriend, Shalini, whom the accused had introduced to King previously in the course of their relatively short acquaintance.⁴ That was when the accused capitulated at which point King proceeded to strap the Bundle onto the accused’s left inner thigh side of his red boxer briefs using yellow tape.

On the Defence’s contention that the accused had no knowledge of the actual contents of the Bundle, the accused claimed that he did ask King what was in the Bundle when King initially showed it to him in the car but, as mentioned above, was swiftly rebuffed by King with violence and the death threat against Shalini. Although the accused was subsequently sent back to his apartment to arrange for his own transport for the delivery of the Bundle, the accused explained that he did not take any steps to ascertain the actual contents of the Bundle for the following reasons. First, King had told the accused after strapping the Bundle on the accused’s thigh, “Don’t tell anyone about this product. If not, see what happens to you”.⁵ Second, the accused claimed he could not open the Bundle as it had been taped onto his red boxer briefs securely. The accused also lamented that he could not simply throw the Bundle away or report the entire incident to the police as Shalini’s life was under threat and he did not have much faith in the effectiveness of the Malaysian police force.⁶

In his defence, the accused also claimed that his statement to Sergeant Vasanthakumar was not properly recorded and was not read back to him before he was asked to sign the statement.⁷ In particular, he claimed that he did not make any admission as to his knowledge of the contents of the Bundle to any of the CNB officers present during his arrest. The accused also alleged that Sergeant Shahrulnizam had used vulgarities and violence on him during the strip search and, upon finding the white granular substance in the Bundle, had presumptuously suggested to the accused that the Bundle contained “thool”, a Tamil word colloquially used to mean “powder” or, more precisely, drugs.⁸

Lastly, the accused also explained that the reason why he was wearing a pair of red boxer briefs over his V-shaped underwear on the day of his arrest was because he was then working as a welder and needed to protect himself during welding from abrasions and lacerations to the sides of his thighs.⁹

The decision Was there a factual threat amounting to duress in law?

I will deal first with the...