Public Prosecutor v Clarence Soh Wei Ren

• Jurisdiction: Singapore
• Judge: Shawn Ho
• Judgment Date: 11 March 2016
• Neutral Citation: [2016] SGDC 50
• Court: District Court (Singapore)
• Docket Number: DAC 45394-2013, Magistrate’s Appeal No 015/2016/01
• Year: 2016
• Published date: 15 March 2016
• Hearing Date: 11 March 2016,08 March 2016,23 October 2015,10 March 2016,21 October 2015,22 October 2015,07 March 2016
• Plaintiff Counsel: DPP Tan Ee Kuan
• Defendant Counsel: Mr Mohamed Niroze Idroos (I.R.B. Law LLP)
• Citation: [2016] SGDC 50

District Judge Shawn Ho: INTRODUCTION

The Accused’s urine samples tested positive for norketamine, a specified drug under the Misuse of Drugs Act. He then claimed that his friend, Tan Kaijie Kevan, had spiked his drink out of spite on 27 March 2013. Graven on Kevan’s heart was a desire for revenge. This allegation hinged on the Accused’s (in his own words) one-week “casual relationship (with) no official status” – viz. “not a real relationship”¹ – with Kevan’s ex-girlfriend (Jieying) more than two-and-half-years earlier in August 2010: the timeline of events is found at Table 1 below.

As against the Accused’s allegation, Kevan denied spiking the Accused’s drink. Kevan neither bore a grudge against him, nor was he even aware of the Accused’s one-week casual relationship with Jieying. Kevan attended the Accused’s party with Kevan’s sister and his girlfriend, Nicole. Given that Kevan was absent without official leave, he was hesitant about going to the party. Kevan only relented and went to the party after his friend, Dominic, called him “quite a lot of times”.² I accepted Kevan’s account.

In the present case, the presumption under section 22 of the Misuse of Drugs Act was correctly invoked, and the Accused had not rebutted the presumption on a balance of probabilities. All considered, the Prosecution had proven its case against the Accused beyond a reasonable doubt. Accordingly, I convicted the Accused after a trial on the drug consumption charge (norketamine) under section 8(b)(ii) punishable under section 33(4) of the Misuse of Drugs Act (“the Act”), and sentenced him to imprisonment for 3 years and 2 months. The Defence has appealed against conviction and sentence.

These are the reasons for my decision.

Charge

The charge to which the Accused claimed trial to was as follows:

You, Clarence Soh Wei Ren, Male/ 25 years old, Singaporean, are charged that you, on or about 27 March 2013, in Singapore, did consume a specified drug listed in the Fourth Schedule to the Misuse of Drugs Act (Cap. 185, 2008 Rev. Ed.), to wit, norketamine, without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under section 8(b)(ii) of the said Act,

and further, that you, before the commission of the said offence, were on 1 February 2010 in Subordinate Court No. 18, vide DAC 37623/2009, convicted of an offence of consumption of a specified drug, to wit, norketamine, under section 8(b)(ii) of the Misuse of Drugs Act (Cap. 185, 2008 Rev. Ed.), and ordered to be sent to the Reformative Training Centre, which conviction and punishment have not been set aside to date, and you shall now be punished under section 33(4) of the said Act.

OVERVIEW OF THE ISSUES

The 2 issues can be crystallised under the following framework:

In brief, my answers were “Yes” to the 1st Issue, and “No” to the 2nd Issue.

COURT’S DECISION The Presumption under Section 22 was Correctly Invoked

For the 1st Issue, the Prosecution relied on the presumption under section 22 of the Act which states that when a controlled drug is found in the urine specimen of a person as a result of urine tests conducted under section 31(4)(b) of the Act, that person shall be presumed until the contrary is proved to have consumed that controlled drug in contravention of section 8(b) of the Act.

Two Health Sciences Authority (HSA) certificates under section 16 of the Act were admitted into evidence. The first certificate bearing Lab No. AT-1333-03214-001-04³ issued by the analyst, Chan Si Jia, stated that on analysis, the accused’s urine sample was found to contain 279 µg/ of norketamine per ml of urine. The second certificate bearing Lab No. AT-1333-03214-002-04⁴ issued by the analyst, Fong Yew Tuck, similarly stated that on analysis, the accused’s urine sample was found to contain 196 µg/ of norketamine per ml of urine. The two certificates complied with section 16 of the Act and could be relied on to prove that the Accused’s urine specimens contained norketamine: Mohammad Ashik bin Aris v Public Prosecutor [2011] SGCA 46 at [27], [37], and [42].

For the interplay between sections 16, 22, and 31 of the Act, it is highly instructive to note the principles laid down in the Court of Appeal decision of Mohammad Ashik bin Aris at [34] to [45].⁵ For instance, sections 16 and 22 of the Act have different functions – they exist separately and operate independently of each other, possess different prerequisites, and give rise to presumptions which are different in nature.⁶

Successfully rebutting the section 16 presumption would mean rebutting the section 22 presumption because it would fatally undermine the implicit assumption of section 22 (i.e. that the two urine tests mentioned in section 31(4)(b) are accurate in identifying the specified drug(s) in the urine sample in question): Mohammad Ashik bin Aris at [35].

In the present case, having considered the evidence led by the Prosecution, I was satisfied that the presumption under section 22 of the Act was correctly invoked. The urine procurement procedure under section 31(4)(b) of the Act was complied with, as stated in the Agreed Statement of Facts (see Annex A below).

I turn next to the 2nd Issue – did the Accused rebut the presumption under section 22 of the Act on a balance of probabilities?

The Defence Failed to Rebut the Presumption

It is trite law that once the presumption under section 22 of the Act is triggered (i.e. the drug is found in the accused person’s urine), both the mens rea and actus reus of the offence of drug consumption are satisfied; the burden of proof then falls upon the defence who would have to disprove either element on a balance of probabilities, and it is insufficient for the accused person to merely raise a reasonable doubt: Vadugaiah Mahendran v Public Prosecutor [1995] 3 SLR(R) 719 at [23] and [24]⁷, and affirmed by the Court of Appeal in Mohammad Ashik bin Aris at [10].

For the spiking defence, the High Court stated in Cheng Siah Johnson v Public Prosecutor [2002] 1 SLR(R) 839 at [15]⁸ that although it is not the law that a commonly-used defence of spiking will not be accepted, a judge may be obliged to approach such a defence with greater caution and circumspection than usual in the absence of any other credible evidence.

While the Courts should be sensitive to the efficacy of the presumption in combating drug consumption, it is equally true that the presumption should not place too onerous a burden on a defendant. In order to rebut the presumption, the defence is not required to show, beyond a reasonable doubt, that someone has tampered with the drinks. That would be tantamount to making the offence one of strict liability. Whether the defence has managed to rebut⁹ the presumption remains a question of fact to be decided on the totality of the circumstances of each case: Public Prosecutor v Tan Chui Yun Joselyn [2003] 2 SLR(R) 85 at [20], and applied in Public Prosecutor v Tan Loon Lui [2003] 2 SLR(R) 216 at [22].¹⁰

A helpful summary of the cases relating to the spiking defence can be found in Public Prosecutor v Poh Teck Khoon [2012] SGDC 17 at [17] to [29], particularly [23] and [27] to [29]. For an analysis of involuntary intoxication¹¹ and sections 85 and 86¹² of Singapore’s Penal Code (Cap. 224), please see Gerry Ferguson, “Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform” (Ashgate Publishing Limited, 2011), at pages 257 to 268.¹³¹⁴

In the present case, I have crystallised the Defence’s five arguments, and will deal with them in turn: Kevan had a discernible motive for spiking the Accused’s drink. Kevan subscribed to the aphorism: revenge is a dish best served cold (“Delayed Revenge Argument”). The Accused did not voluntarily consume the specified drug, since he was aware of his upcoming urine test and would have been alert to the fact that it would be extremely risky to engage in any drug-related activities before that urine test (“Knowledge of Urine Test Argument”). The Accused was not given a chance to wash the bottles before he gave his urine samples (“Urine Procurement Process Argument”). There was a variance in the test results of the 2 HSA certificates (“Variance Argument”).

I. Discernible Motive for Spiking the Accused’s Drink

Was there a discernible motive for Kevan to have spiked the Accused’s drink: Cheng Siah Johnson v Public Prosecutor [2002] 1 SLR(R) 839 at [21]? The Accused claimed that Kevan bore a grudge as the Accused had a one-week casual relationship with Kevan’s ex-girlfriend, Jieying, in August 2010.¹⁵ To exact revenge, Kevan spiked the Accused’s drink with drugs.

As against the Accused’s allegation, Kevan denied spiking the Accused’s drink.¹⁶ Kevan testified that he neither bore a grudge against him,¹⁷ nor was he even aware of the Accused’s relationship with Jieying.¹⁸ I accepted Kevan’s account for the following reasons.

First, it is doubtful that Kevan even knew about the Accused’s casual relationship with Jieying.¹⁹ This is because this relationship was – in the Accused’s own words – a one-week “casual relationship (with) no official status”.²⁰ When unpacked, what the Accused was really saying is as follows:

(a) It was an ephemeral relationship,

(b) She was “not my girlfriend … (as there was no) official status”,²¹ and

(c) It was “not a real relationship”.²²

Given its very brief length and status (or lack of), it stands to reason that it is unlikely that Kevan would even know about the relationship.

Even if Kevan knew about the casual relationship, it is questionable whether Kevan would bear a grudge as it took place in August 2010, viz. more than two-and-half-years before March 2013. In fact, on 27 March 2013, Kevan already had a new girlfriend, Nicole. Bringing Nicole (along with his sister) to the Accused’s birthday party, is testament...