Prabagaran a/l Srivijayan v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 30 November 2015
• Neutral Citation: [2015] SGCA 64
• Court: Court of Appeal (Singapore)
• Hearing Date: 02 October 2015
• Docket Number: Criminal Appeal No 12 of 2014
• Plaintiff Counsel: Eugene Thuraisingam and Suang Wijaya (Eugene Thuraisingam LLP) and Chenthil Kumarasingam (Quahe Woo & Palmer LLC)
• Defendant Counsel: Wong Kok Weng and Goh Yi Ling (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Statutory Offences,Misuse of Drugs Act
• Published date: 05 December 2015

Tay Yong Kwang J (delivering the grounds of decision of the court): Introduction

In the early morning of 12 April 2012, Prabagaran a/l Srivijayan (“the Appellant”), a Malaysian, then 24 years of age, drove a Malaysian-registered car, a Hyundai Sonata, into Singapore. The car had two black bundles hidden underneath the tray inside the centre arm rest console between the driver’s seat and the front passenger’s seat. The bundles were subsequently found to contain not less than 22.24g of diamorphine. Accordingly, the Appellant was charged under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”):

That you, PRABAGARAN A/L SRIVIJAYAN,

on 12 April 2012, at about 5.15 a.m., at Woodlands Checkpoint, Singapore, inside Malaysian-registered vehicle bearing registration number JHY 93, did import a controlled drug specified as a “Class A drug” in the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the Act”), to wit, two packets of granular substance which was analysed and found to contain not less than 22.24 grams of diamorphine, without any authorisation under the Act or the regulations made thereunder, and you have thereby committed an offence under s 7 and punishable under s 33 of the Act, and further upon your conviction under s 7 of the Act, you may alternatively be liable to be punished under s 33B of the Act.

The Appellant claimed trial. On 22 July 2014, the trial judge (“the Judge”) convicted the Appellant. In so doing, the Judge disbelieved the Appellant’s account that he did not know there were drugs in the car. On 22 September 2014, the Judge sentenced the Appellant to suffer the punishment of death under s 33 of the MDA. The sentence is mandatory as the Prosecution decided not to issue a certificate of substantive assistance under s 33B(2)(b) of the MDA.

The Appellant appealed against his conviction. On 2 October 2015, we dismissed the appeal. We now set out the reasons for our decision.

The Appellant’s final account of the facts

There were various accounts proffered by the Appellant on what happened in the days leading up to his arrest. This is his final account which combines all that he said to the police which is not inconsistent with his evidence at trial and the evidence he gave during the trial.

The critical events began with the Appellant’s departure from a printing company called “ECS” which was located at Kaki Bukit, Singapore. The Appellant was employed as a “machine operator”¹ in ECS. He found the work tough and did not turn up for work regularly. Sometime in February or early March 2012, he stopped turning up for work² without informing ECS that he wanted to stop working there. When ECS tried to contact him, he did not answer the call. On the sixth day that he did not turn up for work, his work permit was cancelled and ECS stopped contacting him,³ even though the work permit and the gate pass into ECS were still in his possession.

In April 2012, the Appellant found new employment as a pump attendant at a Caltex petrol kiosk in Bukit Batok, Singapore.⁴ His first day of work was to be 9 April 2012 and his working hours were from 3pm to 11pm. However, the Appellant decided not to work that day. He spent part of the morning looking for other jobs (namely, security jobs at two guard posts and at a Woodlands warehouse) and looking around the Bukit Batok Caltex petrol kiosk.⁵ He was riding his motorcycle bearing registration number JMV 9765 that day. At about 7am to 8am, he returned to Malaysia.

He stayed in Malaysia for the rest of the day.⁶ That night, he went to the house of a close friend, “Balu”, which was located in Skudai. He planned to return the work permit and the gate pass to ECS the next day and anticipated that it would be tiring to “go to two locations at ECS and Caltex”, so he wanted Balu’s help to borrow a car which he could rest in.⁷ Balu managed to borrow a car from his close friend, “Nathan”, for the Appellant’s use. Nathan also knew the Appellant but the Appellant did not consider Nathan and himself to be close friends, given that they only met about two to three months ago when the Appellant was visiting Balu at Balu’s house.⁸

On 10 April 2012, the Appellant rode his motorcycle to Balu’s house to collect Nathan’s car, which was parked at Balu’s house. The Appellant left his motorcycle behind at Balu’s house and drove Nathan’s car towards Singapore.⁹ This was about 4am to 5am. The Appellant had set off early in the morning in order “to avoid the ERP on the expressways that [he] will take to get to Kakit Bukit. … The ERP timing that [he] was avoiding was 7.30am to 9.30am.”¹⁰ If he had driven through the Electronic Road Pricing (“ERP”) gantry when it was operating, he would be fined $70 because there was no “machine inside the car for the ERP”.¹¹

At the Woodlands Checkpoint, the Appellant realised that he had left the work permit and the gate pass at home. As he was not allowed to make a U-turn back into Malaysia, he drove into Singapore, down the Bukit Timah Expressway to somewhere near the Turf Club, went for a toilet break and then rested in the car for a while before driving back to Balu’s house in Malaysia. He returned the car at Balu’s house and rode his motorcycle home. After taking a nap at home, he made a second trip, this time on his motorcycle, to Singapore to the Caltex petrol kiosk in Bukit Batok where he was required to report by 2.30pm. His shift started at 3pm and ended at 11pm. After work, he returned home.¹² The day ended without the Appellant returning the work permit and the gate pass to ECS.

On 11 April 2012, at about 10am or 11am, the “motorbike shop” where the Appellant bought his motorcycle called about the overdue monthly instalments payable on the motorcycle loan. The motorbike shop contacted the Appellant through his brother’s handphone as it did not have his contact number. It did, however, have the number of his brother, who was the guarantor for the loan and who had also bought a motorcycle from the shop.¹³ During the call, the Appellant was threatened with repossession of his motorcycle.¹⁴ The Appellant thought he had more time and said so: “I have time until 28th of April. Why are you asking for the payment earlier?” The shop staff explained: “By 28th of April, it will be more than 3 months.” By that, the shop staff meant that the Appellant already owed three months of instalments for January, February and March 2012. The Appellant promised that he would try to pay.¹⁵

In the afternoon of 11 April 2012, the Appellant rode his motorcycle into Singapore. He worked at the Caltex petrol kiosk from 3pm to 11pm.¹⁶ He then rode back to Malaysia to Balu’s house, arriving there after 1am on 12 April 2012. The Appellant requested to borrow Balu’s motorcycle as he was afraid that his own motorcycle would be repossessed if he rode it into Singapore again and was caught by the “motorbike shop staff”.¹⁷ Balu refused, explaining that the road tax on his motorcycle had not been paid. Balu proposed that the Appellant borrow Nathan’s car. Balu called Nathan to ask if the Appellant could borrow his car. Nathan agreed and told Balu that the Appellant could take the car in the morning. Having sorted out his problems regarding his transport for the next day, the Appellant returned home and slept.¹⁸

A few hours later, at about 4am on 12 April 2012, the Appellant woke up. He called Balu to tell Nathan that he was going over to Nathan’s house to get the car. He planned to enter Singapore earlier to make a second attempt to return the work permit and the gate pass to ECS and then to sleep in the car until the time for work at the Caltex petrol kiosk in the afternoon. Like the days before, his shift would start at 3pm and end at 11pm.¹⁹ At about 4.15am to 4.30am, the Appellant rode his motorcycle to Nathan’s house in Tampoi.²⁰ At about 4.30am, he reached Nathan’s house and made a phone call to Nathan. Nathan did not pick up the phone. So the Appellant shouted for Nathan outside the house. Nathan went to the gate of the house and let the Appellant take his car.²¹ The Appellant left his motorcycle behind in Nathan’s house.²²

As the Appellant drove towards Woodlands Checkpoint, he made a detour to buy breakfast at a McDonald’s restaurant in Tampoi. He parked the car at the parking lot which was between a Petronas petrol station and the McDonald’s restaurant.²³ He left the car unlocked and the car engine running.²⁴ When he was buying his breakfast, he took a call from a person whom he knew as “Batte” or “Batu”. He knew Batte/Batu was also heading to Singapore on 12 April 2012 for an interview, so he asked Batte/Batu if he wanted the Appellant to buy breakfast for him. Batte/Batu told him there was no need to do so.²⁵

The Appellant continued driving towards the Woodlands Checkpoint. He ate his breakfast in the car along the way. At around 5am, he reached Woodlands Checkpoint and cleared the Singapore Customs. He was about to leave when he noticed that the passenger side window could not be closed fully. He alighted and went around the car, opened the passenger seat door and tried to raise the window by pushing the button. An officer standing nearby enquired about the situation and the Appellant explained that the window could not close fully. Upon hearing that, the officer said, “Is that so? Come, let’s check the vehicle.” The officer directed him to drive into an inspection pit and to get out of the car. A search of the car took place. There and then, the two black bundles containing diamorphine were found and the Appellant was arrested.²⁶

The prosecution’s case

The prosecution’s case was that when the Appellant drove through the immigration booths at the checkpoint, an officer from the Immigration and Checkpoints Authority (“ICA”) noticed the black-tinted windows of the car and decided to stop it. The ICA officer asked the Appellant to drive to an inspection pit.

At the inspection pit,...