Public Prosecutor v Azahari bin Ahmad and another

• Jurisdiction: Singapore
• Judge: Hoo Sheau Peng JC
• Judgment Date: 23 May 2016
• Neutral Citation: [2016] SGHC 101
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 23 of 2016
• Year: 2016
• Published date: 24 May 2016
• Hearing Date: 03 May 2016,20 April 2016,28 April 2016,27 April 2016,21 April 2016,04 May 2016,26 April 2016
• Plaintiff Counsel: John Lu Zhuoren and Nicholas Wuan Kin Lek (Attorney-General's Chambers)
• Defendant Counsel: Tito Isaac and Jonathan Wong (Tito Isaac & Co LLP),John Abraham (Crossborders LLC) and Lam Wai Seng (Lam WS & Co)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act
• Citation: [2016] SGHC 101

Hoo Sheau Peng JC: Introduction

The first accused, Azahari bin Ahmad (“the First Accused”), a 46 year-old Singaporean, claimed trial to the following charge:

First Charge

That you, AZAHARI BIN AHMAN, on 1 November 2011, at about 4.45 pm inside a taxi (bearing registration number SHB 1220 U) at the carpark between Block 299A and 2998 Tampines Street 22, Singapore, did traffic in a Class “A” controlled drug listed in the First Schedule to the Misuse of Drugs Act (Cap. 185, 2008 Rev. Ed.), to wit by transporting two bundles of granular substance weighing a total of 911.7 grams which was analysed and found to contain not less than 31.52 grams of Diamorphine to the aforesaid place without any authorisation under the said Act or the Regulations made thereunder and you have thereby committed an offence under section 5(1)(a) and punishable under section 33(1) of the said Act, and further upon your conviction, you may alternatively be liable to be punished under section 33B of the said Act.

Jointly tried in the same trial was the second accused, Wasis bin Kalyubi (“the Second Accused”), a 61 year old Singaporean, who claimed trial to the following charge:

First Charge

That you, WASIS BIN KALYUBI, on 1 November 2011 at or about 4.15 pm inside a taxi (bearing registration number SHB 1220 U), along Woodlands Road near Kranji MRT station Singapore did traffic in a Class “A” controlled drug listed in the First Schedule to the Misuse of Drugs Act (Cap. 185, 2008 Rev. Ed.), to wit, by giving two packet of granular/powdery substance weighing a total of 911.7 grams which was analysed and found to contain not less than 31.52 grams of Diamorphine, to [the First Accused], without any authorisation under the said Act or the Regulation made thereunder and you have thereby committed an offence under section 5(1)(a) and punishable under section 33(1) of the said Act, and further upon your conviction, you may alternatively be liable to be punished under section 33B of the said Act.

There was also a second charge against the First Accused, which was that of the consumption of methamphetamine under s 8(b)(ii) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), and punishable under s 33(1) of the same. As for the Second Accused, there were two other charges against him. The second charge was that of trafficking by having in his possession 426.3 g of granular/powdery substance containing not less than 17.14 g of diamorphine under s 5(1)(a) read with s 5(2) of the MDA, and punishable under s 33(1) of the same. The third charge was that of consumption of monoacetylmorphine under s 8(b)(ii) of the MDA, and punishable under s 33A(1) of the same. The Prosecution did not proceed with these charges at the trial, and proceeded only with the first charge faced by each of the accused persons.

At the conclusion of the trial, I convicted both the accused persons of their first charge. Further, I found that each of them had satisfied the requirements under s 33B(2) of the MDA. Instead of the death penalty, which was provided for under s 33(1), pursuant to s 33B(1)(a), I imposed a sentence of life imprisonment on each of them and backdated the sentence to 1 November 2011 for the First Accused and to 16 November 2011 for the Second Accused. In addition, I imposed the mandatory minimum of 15 strokes of the cane on the First Accused. As the Second Accused was 61 years old, pursuant to s 325 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”), he was not liable for caning. As such, no caning was imposed.

The First Accused has appealed against the sentence imposed on him on the ground that it is manifestly excessive. I now furnish my reasons for the case.

The Prosecution’s case

For the purpose of the trial, the Prosecution tendered an agreed bundle of documents (“ABOD”), comprising statements of 46 witnesses prepared in accordance with s 264 of the CPC, and the accompanying exhibits. Separately, the Prosecution also tendered two additional statements for two further witnesses prepared in accordance with s 264 of the CPC, along with the accompanying exhibits. I shall refer to the statements of the 48 witnesses as “the conditioned statements”.

In respect of 23 of the 48 witnesses, parties agreed to dispense with their attendance in court, and to admit into evidence their conditioned statements and the accompanying exhibits. Accordingly, I admitted these into evidence without the witnesses taking the stand.

Thereafter, 19 witnesses testified for the Prosecution. 16 were duly cross-examined by counsel for the First Accused, Mr Tito Isaac (“Mr Isaac”). Counsel for the Second Accused, Mr John Abraham (“Mr Abraham”), sought minor clarifications from two of the witnesses. In fact, from the outset, the Second Accused’s position was that he would not challenge the Prosecution’s case. Thus, Mr Abraham had indicated that he would not substantively cross-examine any of the Prosecution witnesses. Essentially, the Second Accused claimed trial because the offence was one punishable with death, and the Prosecution would therefore be required to prove its case in any event.

With six witnesses remaining to be called by the Prosecution, Mr Isaac indicated that the First Accused would no longer dispute the Prosecution’s case. Accordingly, on 4 May 2016, all parties agreed on the material facts to be placed before the court. The Prosecution tendered a statement of agreed facts which was admitted into evidence pursuant to s 267 of the CPC (“SOF”). As for the six remaining witnesses, their conditioned statements, the accompanying exhibits, and the physical exhibits referred therein, were admitted by consent into evidence without requiring their attendance in court. With the admission of the SOF, the remaining portions of the ABOD and all the exhibits, the Prosecution closed its case.

The Statement of Agreed Facts (SOF)

At this juncture, I substantially reproduce the material facts in the SOF.

Facts pertaining to the operations at Kranji MRT Station

On 1 November 2011 at about 12.20 pm, a party of Central Narcotics Bureau (“CNB”) officers arrived in the vicinity of Kranji MRT station for an operation. At about 4.15 pm, a white Mercedes Taxi bearing licence plate number SHB1220U (“the Taxi”) arrived at the taxi stand in front of Kranji MRT station. Senior Station Inspector Ng Tze Chiang Tony (“SSI Tony Ng”) saw a male malay, later ascertained to be the Second Accused, board the Taxi. He was holding what appeared to be a white paper bag. After the Second Accused boarded the Taxi, it moved off.

SSI Tony Ng then boarded a CNB operation vehicle which was parked nearby, and followed the Taxi. A short distance away from Kranji MRT station, the Taxi stopped and the Second Accused alighted without the paper bag. SSI Tony Ng then followed the Second Accused on foot. The Second Accused entered a staff room in Kranji MRT station, and SSI Tony Ng stopped following him.

Facts pertaining to the First Accused's arrest at Tampines Street 22

Meanwhile, at about 4.15 pm, a separate team of CNB officers learned that a male Malay believed to be in possession of controlled drugs was travelling along Woodlands Road in the Taxi. They were directed to follow the Taxi in their respective vehicles and to arrest the male Malay at an opportune time. The CNB officers then followed the Taxi, which eventually stopped at the carpark between Blocks 299A and 299B at Tampines Street 22.

A male Malay, later ascertained to be the First Accused, was then seen alighting from the Taxi, and moving a few metres away from the Taxi. The CNB officers then approached the Taxi. The First Accused then hastily opened the rear passenger door of the Taxi, and boarded it again. Immediately, the Taxi started to make a “three-point” turn. Before the Taxi completed the turn, a few CNB officers comprising Station Inspector David Ng (“SI David Ng”), Staff Sergeant Sunny Chien Lik Seong (“SSgt Sunny Chien”) and Sergeant Muhammad Fardlie bin Ramlie moved in to arrest the First Accused. During the arrest, the First Accused put up a struggle. Necessary force was used to arrest him.

At about 4.52 pm, a CNB officer, Senior Staff Sergeant Wong Kah Hung Alwin (“SSSgt Alwin”), conducted a search on the First Accused while he was being escorted by SI David Ng. During this process, SSSgt Alwin was wearing a pair of gloves. One “Gardenia” bread plastic bag was found in each of the pockets of First Accused’s trousers, one on the left and another on the right. These “Gardenia” plastic bags were suspected to contain controlled drugs (“the suspected drug exhibits”).

SSgt Sunny Chien assisted SSSgt Alwin by opening up individual polymer bags so that the latter could put the suspected...