Public Prosecutor v Andi Ashwar bin Salihin and others

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 27 February 2019
• Neutral Citation: [2019] SGHC 44
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 28 of 2017
• Year: 2019
• Published date: 12 December 2019
• Hearing Date: 05 April 2017,03 April 2018,28 August 2018,05 April 2018,13 November 2018,16 August 2018,18 April 2017,04 April 2018,19 April 2017,04 April 2017,31 March 2017,15 August 2018,07 April 2017,06 April 2017,30 March 2017,14 August 2018
• Plaintiff Counsel: Wong Woon Kwong, Michelle Lu, and Desmond Chong (Attorney-General's Chambers)
• Defendant Counsel: Ramesh Chandr Tiwary (Ramesh Tiwary) and Satwant Singh s/o Sarban Singh (Satwant & Associates),Lee Yoon Tet Luke (Luke Lee & Co) and Prasad s/o Karunakarn (K Prasad & Co),Suresh s/o Damodara (Damodara Hazra LLP), Rajan Sanjiv Kumar (Allen & Gledhill LLP) and Josephine Iezu Costan (David Nayar and Vadan)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act
• Citation: [2019] SGHC 44

Chan Seng Onn J: Introduction

This was a joint trial involving three accused persons – Andi Ashwar Bin Salihin (“Andi”), Mohd Akebal s/o Ghulam Jilani (“Akebal”), and Mohammed Rusli Bin Abdul Rahman (“Rusli”). Each faced capital trafficking charges relating to the same two bundles of drugs that contained, in total, not less than 29.06g of diamorphine.

The accused persons were charged as follows: Andi: One charge of possessing not less than 29.06g of diamorphine for the purpose of trafficking, an offence under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), punishable under s 33(1) or s 33B of the MDA. Akebal: One charge of trafficking not less than 29.06g of diamorphine, an offence under s 5(1)(a) of the MDA, punishable under s 33(1) or s 33B of the MDA. Rusli: One charge of abetting Andi by instigating him to traffic in not less than 29.06g diamorphine, an offence under s 5(1)(a) read with ss 5(2) and 12 of the MDA, punishable under s 33(1) or s 33B of the MDA.

At the end of trial, I reserved judgment. Having considered the evidence and the submissions from parties, I find that the Prosecution has proven the charges against Andi and Akebal beyond reasonable doubt, and I thus convict them accordingly.

As against Rusli, I find that the Prosecution has failed to prove beyond reasonable doubt that he had knowledge of both bundles of drugs. Therefore, I amended the charge against him to one of instigating Andi to traffic in not less than 14.46g of diamorphine (being the amount of diamorphine in one bundle of drugs), and convict him accordingly on this reduced charge.

Facts Events leading to the drug transaction

Between 21 August 2014 and the morning of 22 August 2014, Rusli instructed Andi to collect obat (street name for diamorphine) for him from one Bai/Bala.¹ As I will explain in my decision for Akebal below, I am satisfied that the said Bai/Bala was Akebal.

On 22 August 2014, at about 9.06am, Rusli texted the handphone number belonging to Akebal (xxx) to Andi.² In a separate phone call, Rusli also instructed Andi to make arrangements with Akebal as to where and when to pick up the obat.³

Pursuant to Rusli’s instructions, Andi arranged to collect the obat from Akebal at Block 716 Woodlands Avenue 7 later that day.⁴

The drug transaction

At about 10.20am on the same day, Andi drove to the service road near Block 716 Woodlands Avenue 7.⁵ Akebal approached Andi in his car and placed an orange plastic bag⁶ containing two bundles⁷ of granular/powdery substance on the front passenger seat of Andi’s car.⁸ Thereafter, Akebal left to take a bus, while Andi drove off to meet Rusli.

Arrest of Andi and Rusli; HSA analysis of drugs

At about 11.30am, Andi parked his car at the multi-storey car park at Block 499 Tampines Avenue 9, leaving the orange plastic bag containing the bundles in the car before proceeding up to Rusli’s flat.

At about 12.40pm, Andi, Rusli, and another unrelated person left Rusli’s flat. Andi returned to his car, while Rusli and the unrelated person went towards Rusli’s car, which was parked at a different carpark.

At about 12.45pm, Central Narcotics Bureau (“CNB”) officers moved in and arrested Andi while he was seated in the driver’s seat of his car. No one else had entered or approached the car in the interim.⁹ Concurrently, Rusli and the unrelated person were arrested in the carpark where they had gone.¹⁰

Andi’s car was searched, and the orange plastic bag (“A1”) was recovered. In the orange plastic bag, two black-taped bundles (marked “A1A1”¹¹ and “A1B1”¹²) were recovered and subsequently found to contain: For A1A1: 443.5g of granular/powdery substance containing not less than 14.60g of diamorphine;¹³ For A1B1: 444.8g of granular/powdery substance containing not less than 14.46g of diamorphine.¹⁴

Arrest of Akebal

At about 8.25pm on 22 August 2014, outside Sheng Siong Supermarket at Block 6A Woodlands Centre Road, Akebal was arrested by CNB officers. A Nokia handphone (“AK-HP”) bearing the number xxx, being the number that was used to communicate with Andi and Rusli, was found on a grass patch beside him when he was arrested.

Preliminary finding: One bundle usually contained slightly less than 15g of diamorphine

It was not disputed at trial that the common practice of the parties was to deal in bundles of granular/powdery substances weighing about 450g each, and that such bundles would usually contain just below the capital threshold of 15g of diamorphine.¹⁵

Andi’s and Rusli’s defence: one bundle only

Given their common practice, Andi’s and Rusli’s primary defence was that they each had knowledge or intended to deal with only one, rather than both bundles of obat. This was allegedly because Rusli was “conscious and careful”, and would traffic in one bundle of obat only, given that anything more than one bundle could attract capital punishment.¹⁶ In this case, each bundle of obat contained slightly less than 15g of diamorphine (14.60g and 14.46g respectively).

Accordingly, the Defence urged me to amend the charges faced by Andi and Rusli by reducing the amount of diamorphine in their respective charges to reflect the diamorphine content of one bundle only.

Akebal’s defence: misidentification

On the other hand, Akebal denied any involvement, and claimed that Andi and the CNB officers had wrongly identified him as the person who had passed the orange plastic bag containing the bundles to Andi.

In support, Akebal attempted to show that he was dressed in a different top than what the CNB officers and Andi had observed.

He also claimed that Andi’s positive identification of him in Andi’s statements were flawed as Andi could have been suffering from drug withdrawal at the material time.

Finally, while he accepted that the handphone AK-HP had been found in his possession at the time of his arrest, he claimed that the phone had been in his friend’s possession during the drug transaction, and had only been returned to him shortly before his arrest.

My decision in relation to Andi

I reject Andi’s defence that he only had knowledge of being in possession of one bundle of obat.

Elements of the offence

The required elements for a charge of trafficking under s 5(1)(a) of the MDA are as follows (see Muhammad Ridzuan bin Md Ali v Public Prosecutor and other matters [2014] 3 SLR 721 at [59]): possession of a controlled drug (which may be proved or presumed pursuant to s 18(1) of the MDA, or deemed pursuant to s 18(4) of the MDA); knowledge of the nature of the drug (which may be proved or presumed pursuant to s 18(2) of the MDA); and proof that possession of the drug was for the purpose of trafficking which was not authorised.

Only the first element regarding “possession” was in dispute. Andi readily admitted that he knew that the orange plastic bag contained diamorphine,¹⁷ and that he intended to traffic in them by passing them to Rusli.¹⁸

Possession of diamorphine

To prove that Andi was in possession of the drugs, the Prosecution must prove that the accused (a) had physical control over the drugs and that he (b) knew “of the existence of the thing itself” (Fun Seong Cheng v Public Prosecutor [1997] 2 SLR(R) 796 (“Fun Seong Cheng”) at [53]–[56]).

Hence, proving that Andi had physical control over the orange plastic bag containing the drugs was insufficient; the Prosecution had to further prove that he knew of the existence of both bundles of drugs which contained the diamorphine.

Nonetheless, as the orange plastic bag containing the bundles of obat were in Andi’s physical possession during his arrest, s 18(1)(a) of the MDA is triggered such that there is a presumption that Andi was in possession of the entire quantity of drugs (ie, both bundles).

The presumption of possession was not rebutted

Having considered the evidence before me, I am not satisfied that the presumption of possession has been rebutted on a balance of probabilities. I explain my findings below.

On 26 August 2014, Andi stated in his long statement that while he knew that the orange plastic bag contained obat, he did not know how much obat it contained.¹⁹

However, while Andi testified during trial that his previous assignments for Rusli had involved only one bundle of drugs,²⁰ he also admitted that he was not concerned with how much obat he received.²¹ In fact, he agreed that he was willing to collect and deliver the obat regardless of how much there was.²²

This was because he would be paid in accordance with the number of bundles he collected.²³ Hence, the more bundles he collected, the more he would be paid by Rusli.²⁴

As a result, even though Andi admitted that the orange plastic bag which contained the bundles had no zip²⁵ and was “very easy to open”,²⁶ he did not look into the bag to check how many bundles he had received during the transaction.²⁷ Further, Andi also admitted that the orange plastic bag felt “heavy” and could therefore have contained either one or two bundles of obat. Yet, he did not check it.²⁸

Andi’s cavalier attitude in relation to the contents of the orange plastic bag was unsurprising. In contrast with Rusli who was allegedly apprehensive of dealing in more than one bundle due to the capital punishment that could ensue,²⁹ Andi admitted to having previously collected up to three bundles of obat in assignments for one Azman.³⁰

Finally, Andi admitted that Rusli neither informed him that he would be collecting only one bundle of drugs,³¹ nor was there any agreement between himself and Rusli that he would collect only one bundle for Rusli.³²

Therefore, taking his case at the highest, Andi merely assumed, based on his previous assignments for Rusli, that he would be collecting one bundle of drugs only. However, such is plainly insufficient to rebut the s 18(1)(a) MDA presumption, especially since Andi readily admitted that he noted, based on his...