Public Prosecutor v Adaikalaraj a/l Iruthayam & Suresh s/o Krishnan

• Court: District Court (Singapore)
• Judge: Shawn Ho
• Judgment Date: 29 June 2020
• Neutral Citation: [2020] SGDC 141
• Citation: [2020] SGDC 141
• Docket Number: District Arrest Case No. 913136/ 917491 of 2015 & Ors
• Hearing Date: 23 November 2017,06 June 2017,21 November 2017,24 June 2020,28 May 2019,27 December 2018,15 November 2016,24 November 2017,08 June 2017,05 June 2017,14 November 2016,22 November 2017
• Plaintiff Counsel: Tan Yanying and Carene Poh (Attorney-General's Chambers)
• Defendant Counsel: B1 in person,Kalidass Murugaiyan and Chua Hock Lu
• Subject Matter: Criminal Law,Statutory Offences,Misuse of Drugs Act,Criminal Procedure and Sentencing,Joint Trial,Statements,Admissibility,Recall of Witness
• Published date: 03 July 2020

District Judge Shawn Ho: Introduction

Native to tropical and temperate areas, cannabis goes by various monikers, one of which is Ganja. Cannabis is harmful to health and outlawed by the Misuse of Drugs Act. This case was a joint-trial of two Accused Persons for importing cannabis.

Given that the Prosecution proved its case beyond a reasonable doubt against the Accused Persons, both of them were convicted. I set out my reasons.

Charges and legal context

Mr Adaikalaraj a/l Iruthayam (“B1”) faced two charges under s 7 punishable under s 33(1) of the Misuse of Drugs Act (MDA): One count of importing not less than 402.7 grams of cannabis, and One count of importing not less than 541.2 grams of cannabis mixture.

The 2 charges were as follows:

You, ADAIKALARAJ A/L IRUTHAYAM, are charged that you, on 22 November 2014, at about 1pm, at Woodlands Checkpoint, Singapore, on a Malaysian registered motorcar bearing registration number WGN 4531, did import into Singapore, a controlled drug listed in Class A of the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed)(“the MDA”), to wit, one block containing not less than 402.7 grams of vegetable matter which was analysed and found to be cannabis, without any authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under s 7 of the MDA, which is punishable under s 33(1) of the MDA.

You, ADAIKALARAJ A/L IRUTHAYAM, are charged that you, on 22 November 2014, at about 1pm, at Woodlands Checkpoint, Singapore, on a Malaysian registered motorcar bearing registration number WGN 4531, did import into Singapore, a controlled drug listed in Class A of the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed)(“the MDA”), to wit, one block containing not less than 541.2 grams of fragmented vegetable matter which was analysed and found to contain cannabinol and tetrahydrocannabinol, and the vegetable matter was therefore cannabis mixture, without any authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under s 7 of the MDA, which is punishable under s 33(1) of the MDA.

Mr Suresh s/o Krishnan (“B2”) faced one charge under s 7 read with s 12 punishable under s 33(1) of the MDA for abetting by conspiring to import the said cannabis.

The charge was as follows:

You, SURESH S/O KRISHNAN, are charged that you, on or about 16 November 2014 in Singapore, did abet by engaging in a conspiracy with one Adaikalaraj A/L Iruthayam (Malaysian) to a certain thing, namely, to import into Singapore, a controlled drug listed in Class A of the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed)(“the MDA”), and in pursuance of that conspiracy, and in order to the doing of that thing, an act took place, namely, on 22 November 2014, at about 1pm, at Woodlands Checkpoint, Singapore, the said Adaikalarj A/L Iruthayam, on a Malaysian registered motorcar bearing registration number WGN 4531, did import into Singapore one block containing not less than 402.7 grams of vegetable matter which was analysed and found to be cannabis, without any authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under s 7 of the MDA read with s 12 of the same Act, and which is punishable under s 33(1) of the MDA.

By way of background, at the start of the trial, B2 had faced 2 charges, including one count of abetting by conspiring to import cannabis mixture. However, this cannabis mixture charge was later withdrawn by the Prosecution.

B1 was represented during the trial by Mr Revi Shanker s/o K. Annamalai until counsel’s application to discharge himself was granted on 7 August 2017. Similarly, B2 was represented during the trial by Mr Ramesh Tiwary until counsel’s application to discharge himself was granted on 26 September 2017.

On the day of the closing submissions for the trial, B1 was present but B2 was absent. A warrant of arrest was issued for B2.

Meanwhile, B1 was convicted and sentenced. B1 filed a notice of appeal on 27 November 2017 against both conviction and sentence, and his sentence was stayed.

B2 was arrested in 2018. The trial for B2 resumed after his arrest. B2 was now represented by Mr Kalidass Murugaiyan and Mr Chua Hock Lu. They applied to recall B1 for further cross-examination. After considering both sides’ written submissions and oral replies, I did not allow the application to recall B1 for further cross-examination.

The Prosecution and Defence Counsel for B2 then asked for the trial to be put on hold pending the Court of Appeal’s decision in Saravanan Chandaram v Public Prosecutor (C.A. No. 46/2017). This was done. After the decision in Saravanan Chandaram v Public Prosecutor [2020] SGCA 43 at [173]-[197] and [199] (“Saravanan Chandaram”), the Prosecution withdrew the cannabis mixture charge against B2.

Importation of Drugs. Section 7 of the MDA reads:

Except as authorised by this Act, it shall be an offence for a person to import into or export from Singapore a controlled drug. [emphasis added in bold]

The three elements of an importation charge under s 7 of the MDA are: The accused person was in possession of the drugs, He had knowledge of the nature of the drugs, and The drugs were intentionally brought into Singapore without prior authorisation (Adili Chibuike Ejike v Public Prosecutor [2019] 2 SLR 254 at [27]). (see Rennie Whang, The Doctrine of Wilful Blindness in Drug Offences: Adili Chibuike Ejike, (2020) 32 SAcLJ 305 at [9])

Actus Reus. ‘Import’ is defined as ‘to bring or caused to be brought into Singapore by land, sea or air’: s 2 of the Interpretation Act (Cap 1, 1997 Rev Ed).

The Court of Appeal in Public Prosecutor v Adnan bin Kadir [2013] 3 SLR 1052 at [70] clarified that s 7 of the MDA does not require the Prosecution to prove that the importation was for the purposes of trafficking (see Tham Lijing, The Curious Case of Drug Importation, Law Gazette (September 2013) at footnote 32). In the present case, the importation element in s 7 was satisfied the moment the drugs were brought physically into Singapore (Pham Duyen Quyen v Public Prosecutor [2017] 2 SLR 571 at [23]).

Mens Rea. For conceptual clarity, there are three ways to prove the mens rea for a drug importation offence – actual knowledge, wilful blindness, and the presumption of knowledge under s 18(2) of the MDA (see, for example, Mohammad Azli bin Mohammad Salleh v Public Prosecutor [2020] SGCA 39 at [110], and Public Prosecutor v Khartik Jasudass and another [2015] SGHC 199 at [53]-[58]). Although Khartik Jasudass is a drug trafficking case, the three ways of proving mens rea apply equally to drug importation.

Abetment by Conspiracy to Import Drugs. Section 12 of the MDA reads:

Any person who abets the commission of or who attempts to commit or does any act preparatory to, or in furtherance of, the commission of any offence under this Act shall be guilty of that offence and shall be liable on conviction to the punishment provided for that offence. [emphasis added in bold]

“Abet” has the same meaning in s 12 of the MDA and s 107 of the Penal Code (Cap 224, 2008 Rev Ed): Chan Heng Kong and another v Public Prosecutor [2012] SGCA 18 at [33]-[34] and Mohammad Azli bin Mohammad Salleh at [45] (see also Too Xing Ji, Unforeseen Consequences: Difficulties in Punishing the Foreign Abetment of Singapore Drug Offences, (2017) 29 SAcLJ 294 at [14]-[57] and [55]).

The Prosecution has to prove two ingredients for abetment by conspiracy to import drugs into Singapore: The existence of a conspiracy to import the drugs, and The importation was actually carried out (Public Prosecutor v Yeo Choon Poh [1993] 3 SLR(R) 302 at [19]).

The essence of a conspiracy is agreement. In most cases, the actual agreement takes place in private such that direct evidence of it will rarely be available: Public Prosecutor v Sugianto bin Pardi and another [1994] 1 SLR(R) 865 at [55].

One method of proving a conspiracy is to show that the words and actions of the parties indicate their concert in pursuing a common object or design, giving rise to the inference that their actions must have been co-ordinated by arrangement beforehand. These actions and words do not of themselves constitute the conspiracy but rather constitute evidence of the conspiracy: Muhammad Afzal Khan v Public Prosecutor [2001] SGCA 43 at [34]-[35].

Physical presence with co-conspirators is not essential to proving a conspiracy: Yeo Choon Poh at [26] and [44] (see Stanley Yeo, Chan Wing Cheong, and Neil Morgan, Criminal Law in Malaysia and Singapore (Singapore: LexisNexis, Revised Second Ed, 2015) at [34.51]).

No requirement in law exists that the alleged conspirators should remain in each other’s company throughout or at all: Yeo Choon Poh at [19]. This is consistent with explanation 5 of s 108 of the Penal Code: Lim Teck Chye v Public Prosecutor [2004] 2 SLR(R) 525 at [6].

In the present case, both ingredients for the charges of abetment by conspiracy to import drugs into Singapore were made out. The importation was carried out the moment the drugs were brought physically into Singapore. For reasons set out below, I also found that there was a conspiracy to import the drugs.

Statement of agreed facts

Financial transactions between B1 and B2. On 22 November 2014 at about 3.39.41 am, B2 transferred S$1,000 to an account given to him by B1 using the account belonging to his then-girlfriend, Nur Falliana binte Ismail.

After transferring the monies to B1, he texted B1 to inform him that the transfer was done.

Arrest of B1. On 22 November 2014, B1 drove the car bearing the Malaysian-registered number plate WGN4531 (“the car”) from Johor, Malaysia, into the Motor Car Clearance Lane (Arrival) at the Woodlands Checkpoint, Singapore (see sketch plan of Woodlands Checkpoint marked...