PP v Mas Swan bin Adnan

• Jurisdiction: Singapore
• Judgment Date: 14 May 2012
• Date: 14 May 2012
• Docket Number: Criminal Appeals Nos 7 and 8 of 2011
• Court: Court of Appeal (Singapore)

Public Prosecutor

Plaintiff

and

Mas Swan bin Adnan and another appeal

Defendant

[2012] SGCA 29

Chan Sek Keong CJ

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Criminal Appeals Nos 7 and 8 of 2011

Court of Appeal

Criminal Law—Statutory offences—Misuse of Drugs Act (Cap 185, 2008 Rev Ed)—Accused charged with importing diamorphine into Singapore with accomplice—Accused admitting to knowing that he was transporting controlled drugs believing them to be ecstasy—Trial judge acquitting accused on charge of importing diamorphine—Whether accused should be convicted of amended charge of attempting to import ecstasy—Whether factually impossible attempts to commit offences under Misuse of Drugs Act were punishable under s 12 Misuse of Drugs Act—Section 12 Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal Law—Statutory offences—Misuse of Drugs Act (Cap 185, 2008 Rev Ed)—Accused charged with importing diamorphine into Singapore with accomplice—Accused claiming that she did not know that bundles of controlled drugs were concealed in vehicle—Trial judge rejecting defence and finding that accused failed to discharge presumption because she led no evidence to show that she was not aware of nature of controlled drugs—Trial judge convicting accused of importation of diamorphine—Whether trial judge erred in failing to consider alternative defence that accused might have believed that controlled drugs were ecstasy since this was what she told accomplice

Criminal Procedure and Sentencing—Sentencing—Accused convicted of attempting to import ecstasy—Drug that was actually imported was diamorphine a much more serious Class A controlled drug—Duration of sentence for attempting to import ecstasy

Criminal Procedure and Sentencing—Trial judge in finding accused guilty of importing diamorphine into Singapore with accomplice did not consider alternative defence that accused might have believed that controlled drugs were ecstasy since this was what she told accomplice—Whether trial judge erred in failing to consider alternative defence

These appeals arose out of a joint trial of two persons, Mas Swan and Roshamima, who were jointly charged with importing diamorphine into Singapore from Malaysia on 6 May 2009 through the Woodlands Checkpoint. The diamorphine was concealed in three bundles (‘the three bundles’) hidden inside the front left door panel of the vehicle they were travelling in (‘the vehicle’). Mas Swan and Roshamima were due to be engaged on 6 June 2009 and to get married the following day.

Mas Swan's defence was that he knew that the three bundles contained controlled drugs, but believed them to be ecstasy pills because Roshamima had told him so. Roshamima's defence was that she did not know that the three bundles were concealed in the front left door panel of the vehicle.

The Judge believed Mas Swan's defence and acquitted him of the charge of importing diamorphine. However, the Judge convicted Roshamima of the offence of importing diamorphine as he found that she knew that the three bundles containing controlled drugs were hidden in the front left door panel of the vehicle. The Judge found that she had not discharged the burden of disproving the presumption that she knew the nature of the controlled drugs under s 18 (2) of the Misuse of Drugs Act (‘the MDA’).

The Prosecution appealed against Mas Swan's acquittal, arguing that Mas Swan should be convicted of an amended charge of attempting to import an unspecified quantity of a controlled drug commonly known as ‘ecstasy’. Roshamima also appealed against her conviction.

Held, allowing both appeals, convicting Mas Swan and Roshamima of attempting to import ecstasy, sentencing Mas Swan to 15 years' imprisonment and eight strokes of the cane and adjourning the sentencing of Roshamima pending the parties' submissions on sentencing:

(1) The elements of the general offence of attempt under s 511 of the Penal Code (Cap 224, 2008 Rev Ed) (‘Penal Code’) were applicable to s 12 of the MDA, which was the provision that criminalised, inter alia, attempts to commit offences under the MDA: at [25] and [37].

(2) Attempting the physically impossible was an offence under s 12 of the MDA. When Parliament enacted s 12 of the MDA, it had to be presumed, in the absence of contrary indication, to have intended to follow the existing common law position on factually impossible attempts. There was nothing in the text or the origins of s 12 of the MDA which suggested that a different approach should be taken in interpreting s 12: at [41].

(3) Hence, Mas Swan committed the offence of attempting to import ecstasy into Singapore under s 7 read with s 12 of the MDA as he was attempting a physically impossible act, viz, importing diamorphine believing it to be ecstasy. Mas Swan was accordingly guilty of and convicted of the amended charge proposed by the Prosecution: at [43] to [45].

(4) In determining the appropriate sentence to be imposed on Mas Swan, it was relevant to consider the quantity of the drug he possessed, the type of drug involved, the duration and sophistication in planning and carrying out the offence and his relative level of participation in relation to his accomplice: at [56] and [57].

(5) The Judge erred in law in not considering the possibility that Roshamima might also have believed that the three bundles contained ecstasy since this was what she had told Mas Swan (‘the Alternative Defence’). The fact that Roshamima adopted an ‘all or nothing’ defence should not have deprived her of any other available defence that could reasonably be made out on the evidence. It was not unreasonable of Roshamima not to rely on the Alternative Defence at the trial because relying on that defence would inevitably have impacted on the cogency or strength of her primary defence, which, if accepted by the Judge, would have resulted in her being acquitted of the capital charge faced by her. The Judge's approach was inconsistent with the established practice of criminal courts in such situations. In a jury trial, the established practice in such situations was that the trial judge had to put to the jury all defences that could reasonably be made out on the evidence, and the trial judge should not withhold or withdraw any alternative defences that might reasonably be made out on the evidence. It was for the jury to decide whether any alternative defence was credible, and not for the trial judge to make this decision by withholding or withdrawing an alternative defence from the jury. In a bench trial, the same practice should apply, and this means that the trial judge should not shut his mind to any alternative defence that was reasonably available on the evidence even though it might be inconsistent with the accused's primary defence: at [68].

(6) As it was impossible to say what the Judge's decision in respect of Roshamima would have been if he had considered the Alternative Defence, Roshamima had to be given the benefit of doubt arising from the Judge's omission to consider that defence. It was accordingly not safe to let Roshamima's conviction for importation of diamorphine stand. Her conviction on that charge was set aside. She was convicted of a substituted charge of attempting to import ecstasy: at [79] and [80].

Chamru Budhwa v State of Madhya Pradesh AIR 1954 SC 652 (refd)

Chua Kian Kok v PP [1999] 1 SLR (R) 826; [1999] 2 SLR 542 (folld)

Goh Joon Tong v PP [1995] 3 SLR (R) 90; [1995] 3 SLR 305 (refd)

Haughton v Smith [1975] AC 476 (refd)

Jeffery bin Abdullah v PP [2009] 3 SLR (R) 414; [2009] 3 SLR 414 (folld)

Khor Soon Lee v PP [2011] 3 SLR 201 (refd)

Law Society of Singapore v Bay Puay Joo Lilian [2008] 2 SLR (R) 316; [2008] 2 SLR 316 (refd)

Mancini v DPP [1942] AC 1 (refd)

Mohamed Kunjo v PP [1977-1978] SLR (R) 211; [1975-1977] SLR 75 (refd)

Pemble v R (1971) 124 CLR 107 (refd)

PP v Bryan Yeo Sin Rong [1998] SGHC 266 (refd)

PP v Chew Wee Kiat District Arrest Case No 2443 of 2001 and Magistrate's Appeal No 175 of 2001 (refd)

PP v Goh Ah Lim [1989] 2 SLR (R) 217; [1989] SLR 832 (refd)

PP v Ho So Mui [1993] 1 SLR (R) 57; [1993] 2 SLR 59 (refd)

PP v Jiabo Sangwan District Arrest Case No 36103 of 2003 (refd)

PP v Kasem Nonchan District Arrest Case No 48602 of 2003 (refd)

PP v Ketmala Phumin District Arrest Case No 22028 of 2002 (refd)

PP v Phuthita Somchit [2011] 3 SLR 719 (refd)

PP v Robin Unggul Suryono District Arrest Case No 3409 of 2011 (refd)

PP v Somsak Srihanon District Arrest Case No 27723 of 2000 (refd)

PP v Teo Leong Huat District Arrest Case No 35110 of 2001 (refd)

PP v Thuma London District Arrest Case No 50012 of 2001 (refd)

PP v Wonglar Thitiphon District Arrest Case No 36099 of 2003 (refd)

R v Cambridge [1994] 1 WLR 971 (folld)

R v Coutts [2006] 1 WLR 2154 (refd)

R v Eagleton (1855) Dears 376; 169 ER 766 (refd)

R v Magdalen Genevieve Wolin [2006] 1 Cr App R (S) 133 (refd)

R v Shivpuri [1987] AC 1 (refd)

R v Tomasz Szmyt [2010] 1 Cr App R (S) 69 (refd)

Civil Defence Act (Cap 42, 2001 Rev Ed) s 54 (1)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 163 (1)

Dangerous Drugs Act (Cap 151, 1970 Rev Ed) s 35

Dangerous Drugs Ordinance 1951 (No 7 of 1951) s 33

Deleterious Drugs Ordinance 1927 (SS Ord No 7 of 1927) s 13

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

Evidence Act (Cap 5, 1970 Rev Ed)

Legal Profession Act (Cap 161, 2001 Rev Ed) s 83 (2) (e)

Misuse of Drugs Act 1973 (Act 5 of 1973)

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) s 12 (consd) ; ss 7, 18 (2) , 33

Opium and Chandu Proclamation (BMA Proclamation No 43, 1948)

Penal Code (Cap 224, 1985 Rev Ed) s 511

Penal Code (Cap 224, 2008 Rev Ed) s 511 (consd)

Police Force Act (Cap 235, 2006 Rev Ed) s 38 (1)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 54 (2)

Criminal Attempts Act 1981 (c 47) (UK) ss 1 (1) , 1 (2)

Homicide Act 1957 (c 11) (UK) s 3

Hay Hung Chun and...