PP v Phuthita Somchit

• Jurisdiction: Singapore
• Judgment Date: 25 March 2011
• Date: 25 March 2011
• Docket Number: Criminal Case No 52 of 2009
• Court: High Court (Singapore)

Public Prosecutor

Plaintiff

and

Phuthita Somchit and another

Defendant

[2011] SGHC 67

Lee Seiu Kin J

Criminal Case No 52 of 2009

High Court

Criminal Law—Statutory offences—Misuse of Drugs Act (Cap 185, 2008 Rev Ed)—First accused denying knowledge as to nature of drugs possessed and trafficked—Whether knowledge as to nature of drug required for purposes of s 18 (2) Misuse of Drugs Act—Section 18 (2) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

The first and second accused were jointly charged for engaging in a conspiracy to traffic in diamorphine. The first accused was said to have in her possession not less than 62.14g of diamorphine in pursuance of a conspiracy with the second accused and her nephew to traffic in diamorphine, an offence under s 5 (1) (a) read with s 5 (2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘the Act’).

124 packets of granular substance which were found to contain not less than 62.14g of diamorphine (‘the seized drugs’) were found at the place where the first accused resided. The two accused persons were arrested along with the first accused's nephew and two others.

With respect to the case against the first accused, the sole issue was whether she had rebutted the presumption in s 18 (2) of the Act. The first accused readily admitted to being in possession of the seized drugs and being involved in the second accused's drug dealings. However she denied knowing that the seized drugs were diamorphine and alleged that the second accused informed her that the drugs were ‘not serious’.

The Prosecution submitted that the first accused had failed to rebut the presumption under s 18 (2) of the Act. Firstly, the Prosecution submitted that to establish a charge for trafficking, it only needed to prove that an accused knew that he or she was in possession of a controlled drug. Secondly, the Prosecution submitted that in any case, the first accused had actual knowledge that she was dealing in diamorphine. This was because she referred to the drugs as the ‘white substance’ or ‘white one’, which were common parlance for diamorphine; she conceded to her nephew that she was scared when she found out that they were dealing with drugs; she was intimately involved in the trafficking process and knew that the drugs were sold at a high price; she was not a stranger to controlled drugs; and it was inconceivable that she never heard the second accused refer to diamorphine by its name. Thirdly, the Prosecution submitted that even if the first accused did not have actual knowledge that the seized drugs were diamorphine, she was at least wilfully blind as to its nature. In particular, the circumstances surrounding the drug dealings were suspicious. The Defence submitted that the first accused had rebutted the presumption under s 18 (2) of the Act. Firstly, the Defence submitted that the first accused did not have actual knowledge of the nature of the seized drugs. The Defence highlighted that the first accused never conceded that she was aware that the drugs she dealt with were diamorphine, nor was this evidenced from the statements made by her nephew or the second accused. Secondly, the Defence submitted that the first accused was not ‘wilfully blind’ but ‘rendered blind’ by her trust in the second accused and her belief in the representations made by him.

With respect to the case against the second accused, the issue was whether he had possession of the seized drugs for the purpose of trafficking. The second accused did not challenge evidence of his possession and knowledge of the drugs. Counsel argued that while there was evidence that the second accused had sold drugs in earlier transactions, those drugs were not the subject of the charge and there was no evidence before the court that showed that he had possession of the seized drugs the for the purpose of trafficking.

Held, convicting the first and second accused on substituted charges:

(1) In Tan Kiam Peng v PP [2008] 1 SLR (R) 1, the Court of Appeal considered the two possible interpretations of s 18 (2) and had preferred the second one (ie, the accused is presumed to have known that the drug concerned was not only a controlled drug, but was the specific drug for which he was charged). As the ordinary meaning of the words of s 18 (2) supported the second interpretation (a view also held by the Court of Appeal in Tan Kiam Peng), this alone ought to have determined the issue. And even if there was an ambiguity, in a criminal provision such as this, it should be resolved in favour of the accused. Furthermore, it was not clear how adopting the second interpretation undermined the general policy of the Act in circumstances where Parliament, in enacting the presumption in s 18 (2) in those terms, had decided on the appropriate balance between the burden on the Prosecution and the accused. Therefore the second interpretation ought to be the correct one in law: at [16] to [30].

(2) From both her demeanour in the witness box and the consistency of her evidence, the first accused was found to be a witness of truth. She admitted to every question put to her save on the issue of her knowledge that the drugs she was dealing with were diamorphine. She had maintained this position right from the time of her arrest and there were no significant inconsistencies between the statements she gave to the Central Narcotics Bureau (‘CNB’), the evidence given at trial by herself and her nephew, and her defence: at [31].

(3) The circumstantial evidence highlighted by the Prosecution was not sufficient to show that the first accused knew that the seized drugs were diamorphine. Given the nature of the accused persons' relationship, the second accused would have given the first accused money whether or not she helped him in his drug dealings. More importantly, since the first accused admitted that she knew that the substance was some kind of illegal drugs, it would not be surprising to her that there would be money in the operation: at [33].

(4) Although the first accused did not mention in her statements to the CNB that the first accused told her that the drugs he dealt with was a ‘not serious drug’, her statements alluded to this. Not only did she deny knowledge of the nature of the seized drugs, she also stated in her cautioned statement that she did not know the effect of the drug or the severity of the penalty: at [34].

(5) Although the first accused admitted that she was scared when she initially learnt that the second accused was dealing with drugs, this was not sufficient to indicate that she knew that he dealt with diamorphine. The first accused's explanation,ie, although she was initially scared, her fears were removed when the second accused represented to her that the drugs were ‘not serious’ was accepted: at [35].

(6) The first accused was not wilfully blind as to the nature of the seized drugs. She had considered the second accused's representations to her, and given the nature of their relationship, it was understandable that she believed him. The decision not to make further inquiries was a result of her trust in the second accused (along with her reasonable belief that he had no reason to lie to her since he had already readily admitted to her that the white substance was an illegal drug), and not a refusal to investigate further to avoid her suspicions being confirmed: at [36] to [40].

(7) The first accused succeeded in proving, on a balance of probability, that she did not know the nature of the seized drugs. She was therefore acquitted of that charge. However, since she intended to traffic in a ‘not serious drug’ and the evidence supported it, she must have intended at the very least to traffic a Class C drug. Therefore, the court exercised its power under s 175 (2) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (‘CPC’) and convicted her on a charge of attempting to traffic in a Class C drug. Given her active participation in the offence over a period of a month, the first accused was sentenced to nine years' imprisonment: at [40] to [43].

(8) There was sufficient evidence to prove that the second accused had intended to traffic the seized drugs. Firstly, the presumption of trafficking in s 17 of the Act was available to the Prosecution. Secondly and more importantly, the second accused had packed the drugs in question for the purpose of selling the drugs. The drugs in question were his stocks in his continuing narcotic drug retailing operation. However, the charge against the second accused was amended to reflect the finding that the first accused did not have knowledge of the nature of the seized drugs. The second accused was convicted on the amended charge and sentenced accordingly: at [48] to [51].

Forward Food Management Pte Ltd v PP [2002] 1 SLR (R) 443; [2002] 2 SLR 40 (refd)

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

Roshdi v PP [1994] 3 SLR (R) 1; [1994] 3 SLR 282 (refd)

Tan Ah Tee v PP [1979-1980] SLR (R) 311; [1978-1979] SLR 211 (refd)

Tan Kiam Peng v PP [2008] 1 SLR (R) 1; [2008] 1 SLR 1 (refd)

Teng Lang Khin v PP [1994] 3 SLR (R) 1040; [1995] 1 SLR 372 (refd)

Tuck & Sons v Priester (1887) 19 QBD 629 (refd)

Warner v Metropolitan Police Commissioner [1969] 2 AC 256 (refd)

Criminal Procedure Code (Cap 68,1985 Rev Ed) ss 122 (6) , 163 (1) ,163 (2) , 164 (1) ,167, 175 (2) ,376 (1)

Interpretation Act (Cap 1,2002 Rev Ed) ss 9A, 9A (1)

Misuse of Drugs Act 1973 (Act 5 of 1973) s 16 (1)

Misuse of Drugs Act (Cap 185,2008 Rev Ed) s 18 (2) (consd) ;ss 5 (1) (a) , 5 (2) ,17, 18,18 (1) ,18 (1) (c) ,Pt II, Pt III,Pt IV, Pt V,Pt VI

Road Traffic Act (Cap 276,1985 Rev Ed) ss 2, 101 (2)

Fine Arts Copyright Act 1862 (c 68) (UK) s 6

Drugs (Prevention of Misuse) Act1964 (c 64) (UK) ss 1, 1 (1) ,Schedule

Kenneth Yap, Stella Tan and Luke Tang (Attorney-General's Chambers) for the Public Prosecutor

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