Public Prosecutor v Tan Lye Heng

• Jurisdiction: Singapore
• Judge: Steven Chong JA
• Judgment Date: 14 July 2017
• Neutral Citation: [2017] SGHC 146
• Plaintiff Counsel: Marcus Foo Guo Wen and Zulhafni Zulkiflee (Attorney General's Chambers)
• Date: 14 July 2017
• Docket Number: Magistrate’s Appeal No 9310 of 2016
• Hearing Date: 05 May 2017
• Subject Matter: Voluntariness,Admissibility,Criminal procedure and sentencing,Statements,Evidence,Voir dire,Presumptions
• Published date: 19 July 2017
• Defendant Counsel: The respondent in person.
• Court: High Court (Singapore)
• Citation: [2017] SGHC 146
• Year: 2017

Steven Chong JA: Introduction

This is an appeal by the Prosecution against the acquittal of the respondent in respect of the following charge:¹

You, TAN LYE HENG … are charged that you, on 27 January 2015, at or about 9.30am, at Block 124 Kim Tian Place #07-195 Singapore, did traffic in a Class A controlled drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed), to wit, by having in your possession for the purposes of trafficking six (06) packets of granular/powdery substance, which on analysis was found to contain not less than 11.95g of diamorphine, which possession was without authorisation under the said Act or the Regulations thereunder, and you have thereby committed an offence under s 5(1)(a) read with s 5(2) of the said Act, which is punishable under s 33(1) of the said Act read with the Second Schedule to the said Act.

[emphasis added]

Following a six-day trial, the District Judge (“the Trial Judge”) acquitted the respondent under somewhat unusual circumstances. Specifically, he reversed his earlier decision to admit the respondent’s statements after a voir dire. It is accepted that a trial judge has a discretion, and indeed a continuing duty, throughout the trial to assess the evidence and to reconsider his decision to admit statements if further evidence that raises doubts about their admissibility emerges during the trial. However, if he decides to exclude statements previously admitted, it is incumbent on him to explain what new evidence caused him to change his decision, how it impacted on his earlier finding as regards the voluntariness of the statements, why that evidence, if new, was not adduced during the voir dire and the consequences of his reversal in relation to the other evidence before the court.

In addition to the respondent’s statements, the Prosecution also relied on the presumption under s 18(1)(c) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). It is common ground that the respondent had possession of the keys to the premises at which the drugs which formed the subject matter of the charge were found. It is also common ground that he was neither the owner nor tenant but merely an occasional visitor to the premises. This judgment will examine whether the application of the presumption is in any way dependent on the legal status of the person in possession of the keys vis-à-vis the premises and how it operates in the context where several persons have possession of the keys to the premises.

Background facts

The material undisputed facts are as follows. The respondent resided with his mother in a flat at Yung Sheng Road (“the Yung Sheng flat”). On 27 January 2015, at about 3.45pm, he was arrested at the lift lobby of his block of flats by officers from the Central Narcotics Bureau (“the CNB”). Drugs were found in his pocket and in the Yung Sheng flat. The respondent did not dispute that the drugs found there belonged to him and has been separately charged and sentenced in respect of those drugs.

In addition, a set of keys was found in the Yung Sheng flat. These keys granted access to a flat belonging to one Sim Chiew Hoon (“Sim”) at Kim Tian Place (“the Kim Tian flat”). Earlier the same morning, CNB officers had arrested Sim and seized drugs from various locations in the Kim Tian flat.

It is undisputed that some of the drugs found at the Kim Tian flat belonged to Sim. She pleaded guilty to charges relating to the drugs admittedly belonging to her and was serving sentence when she gave evidence as a prosecution witness in the respondent’s trial.

The trafficking charge faced by the respondent in the trial below related to six packets found in the Kim Tian flat which were analysed to contain not less than 11.95g of diamorphine in total. These were specifically: two packets of white granular/powdery substance (“H1A1”) and two packets of brown granular/powdery substance (“H1A2”), all found in a paper box in a plastic bag on the bedroom floor in front of the cupboard; and one large packet and one small packet of brown granular/powdery substance (“K1A”) found in the last drawer of the cupboard along with other drug exhibits. (Collectively, “the disputed drugs”)

It was the Prosecution’s case, as well as Sim’s evidence, that the disputed drugs belonged to the respondent for the purposes of trafficking. The respondent did not dispute that he trafficked in drugs and that Sim had given him a set of keys to the Kim Tian flat. He also admitted to consuming drugs together with Sim in the Kim Tian flat now and then. However, he denied that the disputed drugs belonged to him, despite having admitted so in statements given to CNB officers in the course of investigations. Thus, the primary issue at the trial was whether the respondent was in possession of the disputed drugs.

The disputed statements

In the trial below, three investigation statements given by the respondent in the course of the CNB’s investigations were initially admitted as evidence after a voir dire in which the respondent unsuccessfully claimed that the statements were made as a result of a threat, inducement or promise (“TIP”) by the investigating officer, Mr Yeo Wee Beng (“the IO”). As the Prosecution’s appeal turns on the admissibility of these statements and the admissions contained within, the contents of these statements are of vital importance.

In the first statement dated 4 February 2015 (“Statement 1”), the respondent provided some background about himself and his drug activities.² He admitted that all the drugs found inside his room in the Yung Sheng flat belonged to him and were variously intended for his own consumption or for sale. He elaborated that his drug supplier went by the name of “Ah Boon”. It is crucial to underscore that Statement 1 contained nothing about the drugs found at the Kim Tian flat and to whom they belonged. In Statement 1, the respondent merely explained that a set of keys found in the Yung Sheng flat belonged to Sim, who “had given [him] the keys to her house so that whenever [he] wanted to go up to smoke ‘leng eh’ [ie, ice or methamphetamine] and ‘liao’ [ie, heroin which contains diamorphine], [he] need not have to call her or bother her”.³

The second statement was recorded two days later on 6 February 2015 (“Statement 2”). It picked up the narrative of the day of the respondent’s arrest from the time when he was escorted by CNB officers from the Yung Sheng flat to the Kim Tian flat. In Statement 2, he stated that he had repeatedly informed the CNB officers at the Kim Tian flat that he “did not know” to whom the drugs inside the Kim Tian flat belonged.⁴ The respondent went on to provide details of his acquaintance with Sim. He was introduced to Sim by a fellow drug addict and began supplying her with heroin and ice. Over time, they became “good friends” and he began visiting her frequently at the Kim Tian flat where they would smoke heroin and ice together.⁵ Sometimes, the respondent would bring heroin and ice to the Kim Tian flat to repack into smaller packets for sale.

When he was released on police bail in October 2014 following an earlier arrest, Sim gave him a set of keys to the Kim Tian flat so that he could “stay at her house if [he] wanted” to.⁶ The respondent gave a few reasons for his frequent visits to the Kim Tian flat. First, “there was no one at her house”. Second, while he was on police bail, he “did not want to go home because [he] was afraid that police might come to [his] house”. Third, he “did not want [his] mother to grumble” about his drug activities.

The respondent recounted that on 25 January 2015, two days before his arrest, he left the Kim Tian flat in the morning to first deliver drugs to his clients. He then met Ah Boon in the vicinity of Boon Lay Shopping Centre to pick up an order of one pound of heroin. This order was delivered to him in a box in a plastic bag.⁷ After this, he headed to the Kim Tian flat. There, he opened up the box, took out one packet of heroin and repacked it into a few smaller packets which he carried with him when he left the Kim Tian flat. The remaining heroin was left in the plastic bag at the Kim Tian flat.⁸ He had intended to return the next day to repack the heroin but was too tired to do so.

In a third statement recorded on 8 February 2015 (“Statement 3”), the respondent was shown photographs of various exhibits seized from the Yung Sheng flat and the Kim Tian flat. He identified the plastic bag and paper box in which the CNB officers found H1A1 and H1A2 as the plastic bag and box containing the order he picked up from Ah Boon on 25 January 2015. The two packets of heroin labelled H1A1 were identified as the remainder of the one pound that he had obtained from Ah Boon.⁹ Though Statement 3 records that he was shown a photograph of H1A2, no comments by the respondent on H1A2 were recorded.

The respondent also admitted that the two packets of heroin labelled K1A belonged to him and were meant for sale.¹⁰ He explained that these were the drugs which Sim said she had placed in the drawer for him along with other drugs of hers when he was rushing out of the Kim Tian flat on 25 January 2015. In relation to several other drug exhibits found at the Kim Tian flat, the respondent claimed they belonged to Sim and that he “knew what were the drugs [he] had put at [the Kim Tian flat]”.¹¹

Proceedings below

The Prosecution’s case was that the disputed drugs were in the respondent’s possession for the purposes of trafficking. They relied on the presumptions of possession and knowledge in ss 18(1) and 18(2) of the MDA and argued that the respondent had failed to rebut the presumptions on a balance of probabilities. Besides the admissions made in the three statements above, the Prosecution relied on evidence given by Sim that the disputed drugs belonged to the respondent.

In his defence, the respondent denied his admissions in the...