Public Prosecutor v Abdul Kahar bin Othman

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 24 October 2013
• Neutral Citation: [2013] SGHC 222
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 8 of 2013
• Year: 2013
• Published date: 01 March 2016
• Hearing Date: 24 April 2013,30 September 2013,10 June 2013,06 May 2013,29 April 2013,02 May 2013,22 April 2013,23 April 2013,27 August 2013,30 April 2013,26 April 2013,25 April 2013
• Plaintiff Counsel: Jean Chan, Lim How Khang and Wong Woon Kwong (Attorney-General's Chambers)
• Defendant Counsel: Johan Bin Ismail (Johan Ismail & Company) and Abdul Rahman Bin Mohd Hanipah (J.R.B. Law LLP)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act,Discretion of court not to impose sentence of death
• Citation: [2013] SGHC 222

Choo Han Teck J:

The accused faced two charges, one of trafficking not less than 26.13g of diamorphine and one of trafficking not less than 40.64g of diamorphine, offences under s 5(1)(a) read with s 5(2) and punishable under s 33 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the Act”). On 27 August 2013, I convicted the accused and handed down a written judgment explaining my reasons for doing so (Public Prosecutor v Abdul Kahar bin Othman [2013] SGHC 164). Prior to 1 January 2013, when a number of legislative amendments came into effect, a sentence of death would have been mandatory upon such a conviction. However, the newly-enacted s 33B of the Act provides that, in certain circumstances, a sentence of death that would have been mandatory will no longer be so. Accordingly, I adjourned the question of sentencing to a later date.

I have in Public Prosecutor v Chum Tat Suan [2013] SGHC 221 (“Chum Tat Suan”) described what the Act calls the “[d]iscretion of court not to impose sentence of death” in s 33B, and I do not propose to repeat myself. I need only say that, in order for the accused to bring himself within either of the two sets of circumstances in which the death penalty is not mandatory, he must prove on a balance of probabilities that his involvement in trafficking drugs was restricted to transporting, sending or delivering the drugs and/or offering to do so and/or doing or offering to do acts preparatory to or for the purpose of transporting, sending or delivering the drugs. As in Chum Tat Suan I will for convenience use the term “courier” to refer to a person whose involvement in trafficking drugs was restricted to those activities.

The evidence in this case showed that the accused might not have just transported, delivered, or sent the drugs. I would go further and say that, on the evidence before me, I am satisfied that the accused’s involvement in trafficking went beyond transporting, sending or delivering them. The CNB found in the accused’s bedroom a stained metal spoon, pocket digital scale and a packet of red rubber bands, and the accused admitted that the items belonged to him and that he used them to repack drugs into smaller packets. I have no doubt that this was the true state of affairs. It would also explain an otherwise inexplicable fact, that of the sum of $69,169 which he had and the sum of about $100,000 which was in the bank account of his 76-year-old unemployed mother. It is difficult to...