Public Prosecutor v Abdul Qadir Lestaluhu Bin Jaffar

• Jurisdiction: Singapore
• Judge: Christopher Tan Pheng Wee
• Judgment Date: 30 November 2020
• Neutral Citation: [2020] SGDC 274
• Court: District Court (Singapore)
• Docket Number: DAC 933372 of 2017 and 1 Other, Magistrate’s Appeal No 9861-2020-01
• Published date: 08 December 2020
• Year: 2020
• Hearing Date: 11 July 2019,07 May 2019,12 September 2019,02 July 2020,28 September 2020,13 July 2020,10 July 2019,28 October 2020,14 August 2020,14 July 2020,06 May 2019,06 October 2020
• Plaintiff Counsel: DPP Kwang Jia Min (Attorney-General's Chambers)
• Defendant Counsel: Mohamed Niroze Idroos (Niroze Idroos LLC)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act
• Citation: [2020] SGDC 274

District Judge Christopher Tan Pheng Wee:

The Accused is a 37-year-old male. He claimed trial to the following two charges under s 8(b)(ii) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”): Unauthorised consumption of monoacetylmorphine; and Unauthorised consumption of methamphetamine. Given that the Accused was previously convicted under s 8(b)(ii) MDA and punished under s 33A(1) MDA, he was liable upon conviction to enhanced punishment under the LT2 framework prescribed by s 33A(2) MDA.

After a nine-day trial, I found the Accused guilty of both charges and convicted him accordingly. I sentenced him to seven years and six months’ imprisonment, plus six strokes of the cane, for each charge. I ordered both sentences to run concurrently, giving a global sentence of seven years and six months’ imprisonment, plus twelve strokes of the cane.

The Accused, who is currently on bail, has appealed against both conviction and sentence.

Facts

On 7 September 2017, the Accused was at a condominium unit at Jalan Eunos (“the Condominium Unit”) with two of his friends: Muhammad Khalid Bin Abdullah¹ (“Khalid”) and Muhammad Razali Bin Ishak (“Razali”). At about 5pm, officers from the Central Narcotics Bureau (“CNB”) raided the Condominium Unit and found various drugs and drug-related paraphernalia on the floor. The raiding party included the following CNB officers: Station Inspector Mohamed Affendi Bin Ideris² (“SI Affendi”); Station Inspector Feroz Bin Abd Rahman³ (“SI Feroz”); and Woman Staff Sergeant Nuriani Binte Mahat⁴ (“WSS Nuriani”). The Accused, Khalid and Razali were placed under arrest.

After the raid at the Condominium Unit, the Accused, Khalid and Razali were escorted to vehicles at the ground floor and conveyed to Razali’s residence at Tampines. Upon arrival at a carpark at Tampines, a few of the CNB officers escorted Razali up to his flat to conduct a search, while the Accused and Khalid remained at the vehicles. Thereafter, all three men were transported to the Police Cantonment Complex (“PCC”).

At PCC, the Accused was escorted by CNB Staff Sergeant Kovalan Gopala⁵ (“SSgt Kovalan”) to the bathroom, where the Accused’s urine samples were procured. One of these urine samples was used by SI Affendi to conduct an instant urine test (“IUT”). The remaining samples were sealed by SSgt Kovalan and sent to HSA for analysis.

While at PCC, the Accused was visited by his family members, including his wife Nur Anne Binte Mohd Hussin⁶ (“the Accused’s wife”), his sister Rashida Lestaluhu Binte Jaffar⁷ (“the Accused’s sister”) and his infant son. In the presence of the Accused’s wife, WSS Nuriani took the Accused through the list of belongings seized from him during the raid. Thereafter, WSS Nuriani prepared an itemised list of the Accused’s belongings, P10, which was signed by both the Accused and his wife.

SI Affendi also recorded a statement, P9, from the Accused (“the Long Statement”). This contained a confession by the Accused that he had: smoked heroin in the Condominium Unit just prior to the arrest, using the “chasing the dragon” method; and smoked Ice (the street name for methamphetamine) a “few days back” before the arrest. The relevant extract of the Accused’s Long Statement is set out below:

I wish to say that I did smoke heroin and ICE. This is the 2nd time I had been to [the Condominium Unit] … My sole purpose to go there is just to hang out with my 2 friends. However in the unit, I saw the drugs in front of me, I on my own took and smoke it. … The last occasion I smoke heroin was just before I was arrested in the unit. I smoke few puffs of heroin using ‘chasing the dragon’ method. I smoke in the living room of the condo unit. As for ‘ICE’, the last occasion I smoke was a few days back, also same in the unit. I smoke using an ‘Improvised pipe’. The heroin and ICE that I smoke I just took it from the floor of the living room. … The reason I relapse back to take drugs after I had completed my 16 months of urine supervision programme is just that the sudden trigger of urge when I saw the drugs laying on the condo unit living room floor. [emphasis in italicized bold font added].

While the Long Statement contained an admission by the Accused that he consumed drugs, it denied any notion of the drugs in the Condominium Unit being in his possession. In this respect, the Long Statement stated:

Those drugs that recovered in the unit I do not know belongs to who. But they are not mine.

After the necessary procedures at PCC were completed, the Accused and Khalid were transported to Changi Prison for remand, where the Accused shared the same cell with Khalid.

About a week later, on 14 September 2017, the Accused was transported back to PCC again, where he gave two statements, D3 and D4 (“Cautioned Statements”), recorded by the investigation officer CNB Staff Sergeant Muhammad Rashidin Bin Mohamad Rafee⁸ (“IO Rashidin”). Unlike the Long Statement, which contained a confession by the Accused (that he had consumed drugs), both Cautioned Statements exculpated the Accused. Specifically, the Cautioned Statements put forth the defence that the Accused unwittingly drank a concoction containing heroin and Ice that Khalid had prepared, while at the Condominium Unit. The relevant extract of D3, which answered the charge for consumption of monoacetylmorphine, reads as follows:

I did not take heroin since I was released from my LT-1 sentence. I was in a paranoia [sic] state at the point of time I was caught. I did not take heroin using the “chase-the-dragon” as mentioned. However, I did consume a concoction which was prepared by “Khalid”. I believed the concoction contained Heroin and Ice. I drank the concoction without “Khalid’s” knowledge. It was only later on that “Khalid” told me that he had mix his Heroin & Ice in that concoction and that It [sic] was for his own use. I was actually not suppose to take his concoction but I accidentally did so. At that point of time, I did not know that the concoction contained drug until I was told by “Khalid”. [emphasis added]

The relevant extract of D4, which answered the charge for consumption of methamphetamine, reads as follows:

I did [not]⁹ take any ‘Ice’ ever since I was released from LT-1 sentence. I did not consume ‘Ice’ using an improvised pipe as per my statement. I was in a paranoia [sic] state that time. As mentioned in my statement in the 1st Charge, I only consumed the concoction drink that was found in the living room of the house that I was arrested in. That concoction drink was prepared by “Khalid” for his own usage, which I do not know was mixed with ‘Heroin’ & ‘Ice’. I drank the concoction drink because I was thirsty at that point of time. “Khalid” was not aware when I drank his concoction and it was only later when he told me that I know that the concoction contained ‘Heroin’ and ‘Ice’. Other than the concoction, I did not consumed any other drugs. As far as I know, I did not knowingly consumed any Heroin or Ice. … [emphasis added]

The Accused’s urine samples that were sent to HSA for analysis were subsequently certified to be positive for both monoacetylmorphine and methamphetamine: HSA analyst Bellene Chung¹⁰ issued certificates P1 and P2, stating that the urine samples tested positive for monoacetylmorphine and methamphetamine respectively. HSA analyst Evelyn Goh¹¹ similarly issued certificates P3 & P4, stating that the urine samples tested positive for monoacetylmorphine and methamphetamine respectively.

The Prosecution’s case

During the Prosecution’s case, SI Affendi and SI Feroz were called to testify as to what happened during the raid at the Condominium Unit. The Prosecution adduced SI Feroz’s statement, P5, which set out the list¹² of drug-related exhibits seized from the Condominium Unit. The Prosecution also called HSA analysts Bellene Chung and Evelyn Goh to testify about the tests they conducted on the Accused’s urine samples, which culminated in the HSA certificates P1 to P4.

The Prosecution argued that the positive HSA certificates triggered the presumption in s 22 MDA, which states:

If any controlled drug is found in the urine of a person as a result of both urine tests conducted under section 31(4)(b) [of the MDA], he shall be presumed, until the contrary is proved, to have consumed that controlled drug in contravention of section 8(b).

Given that the s 22 MDA presumption is triggered only if the urine is procured and tested under s 31(4) MDA, the Prosecution called the following witnesses to establish that the procedures prescribed by s 31(4) MDA were complied with: SSgt Kovalan, who testified as to how he went about procuring the Accused’s urine samples; and CNB Station Inspector Ravichandran s/o Ramu,¹³ who testified as to how he despatched those urine samples to HSA for testing. The Defence did not dispute that the s 31(4) MDA protocols were adhered to.

According to the Prosecution’s case, the operation of s 22 MDA meant that both the actus reus and mens rea for the offence under s 8(b) MDA were presumed, with the Defence bearing the burden of rebutting that presumption. The Prosecution’s case was that the Defence failed to do so. Central to this was the Accused’s confession in his Long Statement.

As for the exculpatory accounts in the Cautioned Statements, which advanced the defence that the Accused inadvertently consumed a drink that Khalid had laced with drugs, the Prosecution contended that this was fabricated by the Accused and Khalid, after they had shared a prison cell for a few days.

The Defence

The factual evidence for the Defence came primarily from the Accused and Khalid.

According to the Accused, he went to the Condominium Unit on 7 September 2017 to visit Khalid and Razali. Upon arrival, the Accused saw Razali but Khalid was in the bathroom. The Accused spotted a cup of cold blackcurrant drink on the ground....