Public Prosecutor v Adaikalaraj a/l Iruthayam

• Jurisdiction: Singapore
• Judge: Shawn Ho
• Judgment Date: 24 November 2017
• Neutral Citation: [2017] SGDC 308
• Court: District Court (Singapore)
• Docket Number: DAC 913136 of 2015 & Ors, MA 9358/2017/01
• Year: 2017
• Published date: 22 December 2017
• Hearing Date: 09 October 2017,06 July 2017,12 October 2017,11 October 2017,05 July 2017,17 July 2017,08 July 2017,10 October 2017,15 July 2017
• Plaintiff Counsel: Deputy Public Prosecutor Carene Poh
• Defendant Counsel: Mr Revi Shanker s/o K. Annamalai (until 7 August 2017)
• Subject Matter: Criminal Law,Offences - Misuse of Drugs Act - Drug Importation,Misuse of Drugs Act - Sections 7, 18(2), and 21
• Citation: [2017] SGDC 308

District Judge Shawn Ho: INTRODUCTION

Native to tropical and temperate areas, cannabis goes by various monikers, one of which is Ganja.¹ Cannabis is detrimental to health,² and it has been outlawed by the Misuse of Drugs Act.³ The yoke of drugs ensnares individuals, enslaves families, and enervates society – ravaging lives.⁴

The accused, Mr Adaikalaraj a/l Iruthayam (“B1”), claimed trial to two charges of drug importation under s 7 punishable under s 33(1) of the 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.

All things considered, the Prosecution proved its case against B1 beyond a reasonable doubt. Accordingly, I convicted B1 on both charges, and sentenced him to a total of 25 years’ imprisonment and 24 strokes of the cane. Deterrence is the key sentencing consideration when dealing with drug importation. (See also Menon CJ’s Opening Address, Sentencing Conference 2017 at [30]-[31])⁵

I now set out my reasons.

THE LEGAL ISSUES

The legal issues can be crystallised under the following framework:

In brief, my answers are ‘Yes’ to Issues 1 to 2, and ‘No’ to Issue 3.

We turn next to examining the legal fabric, viz. the interplay of the MDA provisions.

ANALYTICAL FRAMEWORK Were the MDA Presumptions Invoked?

Importation of Drugs. Section 7 of the MDA provides that:

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

The elements of an importation charge under s 7 of the MDA are: The physical act of bringing the drugs into Singapore, and The accused person knew or intended to bring the drugs into Singapore.⁶

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).⁷

In Public Prosecutor v Adnan bin Kadir [2013] 3 SLR 1052 at [70], the Court of Appeal clarified that s 7 of the MDA does not require the Prosecution to prove that the importation was for the purposes of trafficking.⁸ In the present case, the element of importation in s 7 was satisfied the moment the drugs were brought physically into Singapore.⁹ (See also A Judge for the Ages: Essays in Honour of Justice Chao Hick Tin (Academy Publishing, 2017) at 199-201)¹⁰

Mens Rea. The presumption of knowledge under s 18(2) of the MDA is relevant.

We will now examine the statutory presumptions under ss 18 and 21 of the MDA.¹¹

Issue 1: Section 21 of the MDA. Section 21 of the MDA provides that:

If any controlled drug is found in any vehicle, it shall be presumed, until the contrary is proved, to be in the possession of the owner of the vehicle and of the person in charge of the vehicle for the time being.

It is not disputed that the cannabis and cannabis mixture (hereinafter collectively referred to as ‘Cannabis’) were found inside a Malaysian-registered motorcar bearing registration no. WGN 4531 (‘motorcar’) on 24 November 2014. For B1, as he was in charge of the motorcar at the relevant time, this invokes the presumption under s 21 of the MDA.

For knowledge as to the nature of the drugs, the Prosecution may choose to prove that B1 had actual knowledge of the specific nature of the drug.¹² Available to the Prosecution as an ‘indirect way to prove actual knowledge’ is to prove, beyond a reasonable doubt, that B1 was wilfully blind.¹³¹⁴ The threshold to establish wilful blindness is a high one – negligence or recklessness will not suffice.¹⁵¹⁶

Alternatively, the Prosecution may rely on the statutory presumption of such knowledge under s 18 of the MDA, which I turn to next.¹⁷¹⁸

Issue 2: Section 18(2) of the MDA. Section 18(2) of the MDA provides that:

Any person who is proved or presumed to have had a controlled drug in his possession shall, until the contrary is proved, be presumed to have known the nature of that drug.

Since B1 is presumed to have had the drugs in his possession, I find that the presumption under s 18(2) of the MDA has been invoked for him.¹⁹²⁰ In other words, B1 is presumed to have known the nature of the drugs, i.e. the specific controlled drugs found in his possession (viz. Cannabis): Court of Appeal in Nagaenthran a/l K Dharmalingam v Public Prosecutor [2011] 4 SLR 1156 at [23]-[24].²¹²²

Once the presumptions are invoked, the burden shifts to B1 to rebut those presumptions on the balance of probabilities.²³ I turn now to examine whether B1 had successfully rebutted those presumptions.

Did B1 Rebut the Presumptions?

Issue 3: Rebutting the MDA Presumptions. In order to rebut the s 18(2) presumption, what an accused has to do is to adduce evidence to establish on a balance of probabilities that he did not have knowledge of the nature of the controlled drug (in effect, that he did not have the mens rea²⁴ of the offence).²⁵

An accused may rebut the s 18(2) presumption by showing, on a balance of probabilities, that he Lacked actual knowledge of the nature of the controlled drug (‘Limb 1’), or Could not reasonably be expected to have known the nature of the controlled drug (Limb 2).²⁶²⁷

An accused will fail to rebut the s 18(2) presumption under Limb 2 on a balance of probabilities, if the court finds that he neglected or refused to take reasonable steps to find out what such contents were, in circumstances where a reasonable person having the suspicions that he had, would have taken steps to find out. ²⁸²⁹ In other words, he would be ‘turning a blind eye’.³⁰

As mentioned above, to rebut the s 18(2) presumption, what an accused has to do is to adduce evidence to establish on a balance of probabilities that he had not known the nature of the drugs. This can come in the form of proof that an accused genuinely believed that he was carrying something innocuous or that he was carrying a controlled drug other than the one found on him. Whether the presumption of knowledge has been rebutted is ultimately a fact-centric inquiry and has to be assessed on the specific facts of each case.³¹³²

Similarly, he would not be able to rebut the presumption as to knowledge by merely claiming that he did not know the proper name of the drug that he was asked to carry. The law also does not require him to know the scientific or the chemical name of the drug or the effects that the drug could bring about.³³

Where an accused has stated what he thought he was carrying (‘the purported item’), the court will assess the veracity of his assertion against the objective facts and examine his actions relating to the purported item.³⁴

I am mindful of the inherent difficulties of proving a negative, and the burden³⁵ on the accused faced with this task should not be made so onerous that it becomes virtually impossible to discharge: Court of Appeal in Harven a/l Segar v Public Prosecutor [2017] SGCA 16 at [2].³⁶

In the present case, the Cannabis was found on top of the battery in the motorcar’s bonnet.³⁷ The Cannabis was in clear cling wrap – haphazardly wrapped in newspaper³⁸ – and placed in a red plastic bag.³⁹ During the trial, B1 intimated that he lacked actual knowledge and could not reasonably be expected to know that the red plastic bag in the motorcar contained Cannabis.⁴⁰ I did not accept B1’s claim for the following reasons.

First, it would not suffice for B1 to claim simply that he did not know what he was carrying save that he did not know or think it was drugs: Obeng Comfort v Public Prosecutor [2017] SGCA 12 at [39].

Second, B1 testified that even before the officers found the packet in the motorcar’s bonnet, B1 had known about the packet’s location which caused him to feel ‘strange’.⁴¹ This gave me pause as it was B1 who had placed the red plastic bag inside the motorcar’s bonnet and ‘tied the handles of the red plastic bag at the metal rod which was holding on(to) the battery of the car’.⁴²

Even if someone else (e.g. Kesavan or Karthik) had asked B1 to conceal that red plastic bag inside the motorcar’s bonnet, B1 should have found this to be highly suspicious and enquire further.⁴³ This is especially since B1 admitted that he did not trust them,⁴⁴ coupled with the fact that B1 had only met them for the first time less than 2 months before being arrested.⁴⁵

Against this backdrop, B1’s alleged failure to check the contents of the red plastic bag was inexplicable. There was nothing to support the passive posture purportedly taken by B1 – all the circumstances pointed against the reposing of trust, and therefore active steps should have been taken by him to check the contents of the red plastic bag. If B1 did not check, despite these circumstances, this militated in favour of rejecting his version.⁴⁶

I did not accept B1’s bare assertions that (i) he had been advised to place the red plastic bag in the motorcar’s bonnet to avoid paying tax,⁴⁷ and that (ii) he did not check the contents of the red plastic bag as he was hurrying to collect his salary.⁴⁸ B1, in the same breath, had testified that it was ‘only when (he) was transferring (the red plastic bag) from the car to the front bonnet, (he) may--- (he) coincidentally saw what was inside. And when (he) was tying it to the metal rod, (he) could see what was inside.’⁴⁹ It would merely have taken a few seconds to examine the contents of something ‘haphazardly wrapped in newspaper’.⁵⁰

Furthermore, B1 specifically bought the motorcar one day before delivering the Cannabis,⁵¹ even though he had previously travelled to Singapore on a motorcycle.⁵² B1 explained that his ‘intention was to use the car for delivering drugs to Singapore as (he) did not want to use (his) own family car’.⁵³ B1 also took the motorcar to a workshop to repair a window, as he ‘did not want to draw the attention of the Customs officers unnecessarily as (he) cleared the Customs’.⁵⁴

At the Woodlands Checkpoint, a tiny hole was made on...