PP v Zainudin bin Mohamed

• Jurisdiction: Singapore
• Judge: See Kee Oon JC
• Judgment Date: 02 November 2016
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 37 of 2016
• Date: 02 November 2016

Public Prosecutor

and

Zainudin bin Mohamed and another

[2016] SGHC 245

See Kee Oon JC

Criminal Case No 37 of 2016

High Court

Criminal Law — Statutory offences — Misuse of Drugs Act (Cap 185, 2008 Rev Ed) — Possession of controlled drugs for purpose of trafficking — Accused threw drugs down rubbish chute — Accused alleging possibility that some of drugs retrieved in rubbish collection point could have been thrown by other persons — Whether it was proved that he was in possession of full quantity of drugs retrieved — Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal Law — Statutory offences — Misuse of Drugs Act (Cap 185, 2008 Rev Ed) — Trafficking in controlled drugs — Accused handed bundle to another accused — Accused asserting she did not know contents of bundle — Presumption of knowledge of nature of controlled drug under s 18(2) of Misuse of Drugs Act (Cap 185, 2008 Rev Ed) applying — Whether presumption of knowledge rebutted — Section 18(2) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

The two accused persons, Zainudin bin Mohamed (“Zainudin”) and Shanti Krishnan (“Shanti”), were jointly tried. Zainudin was charged for possessing not less than 22.73g of diamorphine for the purpose of trafficking under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”), and Shanti was charged for trafficking the same quantity of diamorphine to Zainudin. They were arrested on 16 May 2014 shortly after Shanti delivered a bundle to Zainudin at the block where Zainduin resided.

Shanti was arrested after she left the block. Her personal properties and $8,200 were seized from her.

Zainudin was arrested in his flat (“the Flat”). Officers from the Central Narcotics Bureau (“the CNB”) found a trail of brown cubes on the kitchen floor of the Flat leading to the rubbish chute. A few officers proceeded to the rubbish collection point and found more brown granular or powdery substance in a black rubbish bin and on the floor. The cubes and the brown granular or powdery substance were seized and were found to contain not less than 22.73g of diamorphine.

The Prosecution's case was that Shanti had passed a bundle containing the diamorphine to Zainudin, who handed her $8,200 in exchange. Thereafter, Zainudin returned to the Flat and began to repack the diamorphine for subsequent delivery to third parties. The Prosecution submitted that it was clear from Zainudin's statements that he had actual knowledge that the bundle contained diamorphine and that he had intended to traffic the diamorphine. As for Shanti, the Prosecution relied on the presumption in s 18(2) of the MDA that she knew the nature of the drug.

Zainudin elected to remain silent at trial. His sole defence against the capital charge was that the Prosecution had not proven that he was in possession of the full quantity of diamorphine. In particular, counsel submitted that it had not been proved beyond reasonable doubt that each and every piece of “loose substance” comprised in exhibits “K1” and “L3” had been in Zainudin's possession. It was suggested that some of the drugs retrieved from within the rubbish collection area could have originated from someone else living in the same block, who might have also decided to throw the drugs down the rubbish chute when they heard the CNB officers.

Shanti's defence rested on two main contentions: (a) the Prosecution had not proven that she was in possession of the diamorphine; and (b) she did not know the nature of the drugs.

Held, convicting both accused persons on the respective charge against them:

(1) The Prosecution had proved the charge against Zainudin beyond reasonable doubt. Zainudin admitted in the six statements that were recorded from him that he was in possession of the diamorphine and that he had intended to distribute them to clients on the instructions of “Boy Ahmad”. It was clear from the unambiguous confessions in his statements that he had actual knowledge that the brown substance found in the Flat and the rubbish collection point were diamorphine: at [53] and [65].

(2) While there was a possibility that another person or other persons in the same block might have thrown some quantities of diamorphine down the rubbish chute at or around the same time as Zainudin, this was a highly implausible possibility which called for a large measure of speculation and conjecture. It was simply insufficient to raise any reasonable doubt in the circumstances, especially in the light of Zainudin's own undisputed evidence in his statements: at [58] to [62].

(3) An adverse inference was also drawn against Zainudin for electing to remain silent after his defence was called. In all likelihood, he had not denied the charges against him during investigation and had chosen to remain silent during trial because he knew that he had been caught red-handed: at [64].

(4) Zainudin did not satisfy either of the two requirements in s 33B(2) of the MDA, and was thus sentenced to the mandatory death penalty. His involvement in the offence did not fall within the definition of a “courier”. It was clear that his act of repacking the drugs was not an act that was contemplated within the meaning of “transporting, sending or delivering”, as set out in s 33B(2)(a) of the MDA (see PP v Chum Tat Suan[2015] 1 SLR 834). The second requirement was also not met as the Public Prosecutor did not issue him a certificate of substantive assistance: at [99].

(5) The Prosecution had proved beyond reasonable doubt that Shanti was in possession of the bundle containing the two packets of diamorphine. The chain of evidence linking her delivery of the bundle to Zainudin, his handling of the diamorphine contained therein and their eventual retrieval from the Flat and the rubbish collection point was clear, coherent and uncompromised: at [68].

(6) By the operation of s 18(2) of the MDA, Shanti was presumed to have known the nature of the drug. Her evidence as to the contents of the bundle was inconsistent, confusing and revealed a propensity to prevaricate. Shanti's selective claims that some portions of the statements were wrongly recorded were rejected. If her claims were accepted, it would mean that only certain potentially self-incriminating portions of her statements would be excised and disregarded, leaving behind truncated and incoherent descriptions or accounts of events. Further, Shanti was capable of reading and understanding English. Yet, she did not point out any inaccuracies when her statements were being recorded: at [71], [72], [79] and [85].

(7) While Shanti's statements did refer to previous activities of a similar nature, the Prosecution's case against her was not solely dependent on similar fact evidence. Its case was founded on Shanti's admissions and the statutory presumption in s 18(2) of the MDA. The evidence of those past activities was relevant to Shanti's state of mind and its considerable probative value outweighed any prejudicial effect. Poon Soh Har v PP[1977–1978] SLR(R) 97 was thus distinguishable on its facts: at [80].

(8) The evidence demonstrated that Shanti was undoubtedly fully aware that she was being paid to deliver illegal and valuable items for “Boy”, and that she knew they were not illegal cigarettes. For reasons best known to her, she did not want to check what was in the bundle despite having ample opportunity to do so. The accounts and explanations provided by Shanti to rebut the presumption in s 18(2) of the MDA were neither consistent nor believable: at [89] and [90].

(9) Shanti satisfied both requirements in s 33B(2) of the MDA and was sentenced to life imprisonment: at [98].

[Observation: The Prosecution's submission that Shanti had “clearly been wilfully blind” as to the nature of the item that she was tasked to deliver and had thus failed to rebut the presumption in s 18(2) of the MDA conflated two distinct considerations. The preferred approach as a matter of principle was that expounded by the Court of Appeal in Nagaenthran a/l K Dharmalingam v PP[2011] 4 SLR 1156 (at [30]), and recently reiterated by the High Court in PP v Khartik Jasudass[2015] SGHC 199 and PP v Mohsen bin Na'im[2016] SGHC 150. Where wilful blindness has been proved beyond reasonable doubt, the Prosecution need not place reliance on the presumption in s 18(2) of the MDA: at [91] to [93].]

Case(s) referred to

Dinesh Pillai a/l K Raja Retnam v PP [2012] 2 SLR 903 (folld)

Nagaenthran a/l K Dharmalingam v PP [2011] 4 SLR 1156 (folld)

Poon Soh Har v PP [1977–1978] SLR(R) 97; [1975–1977] SLR 245 (distd)

PP v Abdul Haleem bin Abdul Karim [2013] 3 SLR 734 (refd)

PP v Chum Tat Suan [2015] 1 SLR 834 (folld)

PP v Khartik Jasudass [2015] SGHC 199 (folld)

PP v Mohsen bin Na'im [2016] SGHC 150 (folld)

Legislation referred to

Criminal Procedure Code (Cap 68, 2012 Rev Ed) ss 22, 23, 147, 325(1)(a)

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) ss 2, 5(1)(a), 5(2), 18(2), 33(1), 33B(1)(a), 33B(2), 33B(2)(a), 33B(2)(a)(i), 33B(2)(a)(ii), 33B(2)(a)(iii), 33B(2)(a)(iv), 33B(2)(b), 33(1), Second Schedule

Ong Luan Tze and Carene Poh Kai Lin (Attorney-General's Chambers) for the Prosecution;

Eugene Singarajah Thuraisingam, Jason PeterDendroffandSuang Wijayafor the first accused.

A Revi Shanker s/o K Annamalai and James Dhanaraj Selvaraj for the second accused.

2 November 2016

See Kee Oon JC:

Introduction

1 The first accused, Zainudin bin Mohamed (“Zainudin”), and the second accused, Shanti Krishnan (“Shanti”), claimed trial to charges under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”) of possession for the purpose of drug trafficking and drug trafficking respectively. The drugs in question were not less than 22.73g of...