Public Prosecutor v D Rashpal Singh Sidhu

• Jurisdiction: Singapore
• Judge: Dorothy F M Ling
• Judgment Date: 04 April 2018
• Neutral Citation: [2018] SGDC 91
• Court: District Court (Singapore)
• Docket Number: DAC-904975-2017, Magistrate's Appeal No. 9001/2018/01
• Published date: 11 April 2019
• Year: 2018
• Hearing Date: 02 January 2018,13 November 2017,14 November 2017,12 December 2017
• Plaintiff Counsel: DPP Sia Jiazheng (Attorney-General's Chambers)
• Defendant Counsel: Wilson Foo Yu Kang and Wong Su-Jin (The Law Society of Singapore)
• Citation: [2018] SGDC 91

District Judge Dorothy F M Ling: BACKGROUND & THE CHARGE

This is an appeal by the accused person, 52-year old Mr D Rashpal Singh Sidhu, against his conviction on a single charge of unauthorised drug possession under section 8(a) of the Misuse of Drugs Act (Cap. 185, Rev. Ed. 2008) (“the MDA”) (“the possession charge”) read with section 33(1) of the same.

The charge reads:

“… that you, on 11 December 2016 at about 2.30 am, at Ng Teng Fong General Hospital 1 Jurong East 2, Singapore, did have in your possession a Class A Controlled Drug listed in the First Schedule to the [MDA], to wit, one straw containing not less than 0.34 gram of granular/powdery substance was analysed and found to contain not less than 0.01 gram of Diamorphine, without authorization under the [MDA] or the Regulations made thereunder, and you have thereby committed an offence under s 8(a) of the said Act, and further,

that you, before the commission of the said offence, were on 20 July 1999… convicted of an offence for possession of a controlled drug under s 8(a) of the [MDA] and sentenced to 40 months’ imprisonment, which conviction and punishment have not been set aside to date, and you shall now be punished under s 33(1) of the [MDA].”

At the close of the trial, I found the Accused guilty, and convicted him on the possession charge to 43 months’ imprisonment. This was taking into account his last conviction on 20 July 1999 and his sentence of 40 months’ imprisonment. My decision, findings and analyses were explained when I provided my oral verdict on 12 December 2017.

The Accused now appeals against his conviction and is presently on bail. My verdict and analyses, previously delivered orally, shall be incorporated here.

THE AGREED FACTS AND EVIDENCE

The Prosecution and the Defence had agreed on the facts of the case pursuant to section 267(1) of the Criminal Procedure Code (Cap. 68, Rev Ed 2012) (“the CPC”). Extracts of the Agreed Statement of Facts¹ are reproduced here: “2 On 11 December 2016, at about 1.27 am, the accused was conveyed to Ng Teng Fong General Hospital (“NTFGH”) after he was found unconscious at the void deck of Block 160 Jalan Teck Whye. 3 Later that same day, at about 4.15 am, Central Narcotics Bureau officers arrived at NTFGH as a straw believed to have contained controlled drugs was found by Siti Nasriah Hamid, a nurse with NTFGH. This straw was later marked “DRSS-A1”. 4 The exhibit marked “DRSS-A1” was sealed in a tamper-proof bag and submitted to the Health Sciences Authority (“HSA”) for analysis on 12 December 2016. 5 On 28 December 2016, Lim Yi Lin Elaine, an analyst with the Illicit Drugs Laboratory of the HSA, issued a certificate under s. 16 of the [MDA] …, stating that on analysis, exhibit “DRSS-A1” was found to be one straw containing not less than 0.34 grams of brown granular/powdery substance which was analysed and found to contain not less than 0.01 grams of diamorphine. 6 Diamorphine is a Class A controlled drug listed in the First Schedule to the MDA and the accused is not authorized under the MDA or the Regulations made thereunder to possess diamorphine. 7 Further, the accused had also been convicted on 20 July 1999… for an offence for possession of a controlled drug under s.8(a) of the [MDA] and sentenced to 40 months’ imprisonment, which conviction and punishment have not been set aside to date, and he is therefore liable for enhanced punishment under s.33(1) of the MDA.”

The Prosecution and the Defence had also agreed to admit by consent the certificate from the Health Sciences Authority² (“HSA”) which is in respect of the abovementioned “DRSS-A1”.

PROSECUTION’S CASE

It was the Prosecution’s case that: the Accused had possession of the red straw containing drugs (“DRSS-A1”); by virtue of the Accused’s having possession of DRSS-A1, the presumption in section 18(2) of the MDA was triggered; and the Accused had failed to rebut the said presumption.

The Accused had possession of DRSS-A1

The Accused was brought to Ng Teng Fong General Hospital (“NTFGH”) after he was found unconscious at a void deck. At NTFGH, he was triaged to the Resuscitation Ward where Staff Nurses, Ms Siti Nasriah Binti Hamid (PW1) and Ms Lim Xiao Zhuang Cheryl (PW2) were on duty at that time. When Staff Nurse Siti was re-adjusting the blanket to cover the Accused properly, she discovered DRSS-A1 at the Accused’s crotch area.

It was the Prosecution’s case that the source of DRSS-A1 could only be from the Accused since a clean and fresh hospital bed was used for the Accused. Further, DRSS-A1 was only discovered after the Accused’s trousers and underwear were removed by PW1 and PW2.

As the Accused had possession of DRSS-A1, the Prosecution submitted that the presumption in section 18(2) was triggered.

Section 18(2) of the MDA was triggered and not rebutted

The Prosecution further argued that as it had proved that the Accused had possession of the drug, by section 18(2) of the MDA, the Accused was presumed to have known the nature of the drug. The onus then rested on the Defence to rebut this presumption, which, according to the Prosecution, the Defence had failed to.

The Prosecution considered the Accused’s defences as bare denial or a speculation. This was especially when the Accused’s claim that he might have been framed by an unlicensed moneylender, “Ah Gau”³, was not supported by evidence. There was no proof of “Ah Gau”’s existence, or of “Ah Gau”’s motive for framing the Accused, or how “Ah Gau” could have framed him. Further, “Ah Gau” was also not mentioned in the Accused’s cautioned statement taken on 2 February 2017.⁴

The Accused was not a credible witness

The Prosecution also submitted that the Accused was not a credible witness, who, whenever necessary, would use his being on medication and so, unable to recall facts accurately, to excuse his inconsistent testimony. One such occasion was when he recalled the existence of “Ah Gau” who had allegedly harassed him in 2006 or 2007. The Accused said that he remembered about “Ah Gau” about July or August 2017, 5 or 6 months after he was charged in February 2017. However, when he was subsequently asked whether he requested for the police reports made in 2006/7, he had answered that he did, around May or June 2017.

Another instance where the Accused was inconsistent was when the Accused was asked whether he had seen photographs of DRSS-A1. When the Court sought clarification from him on this during re-examination, the Accused was most emphatic and unequivocal when he replied that he had not. However, during cross-examination, he then said he might have but he was unsure. At re-examination, the Accused further explained that by August 2017, he had seen the photos of DRSS-A1. However, according to the Prosecution, the photos of DRSS-A1 were only given as part of the Prosecution’s Supplementary Bundle on 18 August 2017 as part of the Criminal Case Disclosure Conference. This was after the Accused had filed his police report on 4 August 2017.

It was therefore the Prosecution’s case that it had therefore proven beyond a reasonable doubt the charge made against the Accused.

DEFENCE’s CASE

The Defence argued that: as the Accused was unconscious when DRSS-A1 was found on him, there was therefore a reasonable doubt that he had possession of it. As such, the presumptions in section 18(1) & (2) of the MDA should not apply to the present case; and / or in the alternative – the Accused could have been framed by somebody who had planted the drugs on him. This person could have been a moneylender, “Ah Gau”, but that there was no need to prove that “Ah Gau” in fact did it, since anyone could have done it, given that the Accused was unconscious at that point in time. On this basis, the Defence submitted that the Accused had rebutted the section 18(2) MDA presumption on a balance of probabilities.

Section 18(1) & (2) MDA presumptions should not apply

Counsel quoted Andrew Phang JA in Tan Kiam Peng v Public Prosecutor⁵ for the point that “if no possession on the part of the accused is proved in the first instance, it is futile – indeed, illogical – to consider whether there is knowledge of the nature of the thing possessed”.⁶ Reference was also drawn to the drug-trafficking case of Public Prosecutor v Azman bin Mohamed Sanwan⁷ and its appeal⁸. In their oral elaboration of their skeletal written submission, Counsel for the Accused said:

“… we would also draw Your Honour’s attention to [Azman’s] case… although we could not find any case where there was a possession charge and the defendant was unconscious. In this case,… there was a trafficking charge and one of the persons was sleeping in the car – Bala. And he was acquitted… . [A]nd there was no appeal against Bala’s acquittal in the lower Court,… despite the fact that traces of Cannabis were found in his urine.”⁹

Uncertainty over where PW1 found the straw

Counsel suggested that it was unclear where DRSS-A1 was found. While PW1 had testified that she found it at the Accused’s crotch area, neither PW1 nor PW2 had noticed or felt it earlier when they had pulled down his pants or diapered him. Counsel further suggested that DRSS-A1 could have been from the bedsheet or the blanket which was folded, both of which, PW1 and PW2 were not in charge of changing. DRSS-A1 therefore could have belonged to someone else other than the Accused, or the Accused could have been framed by DRSS-A1 being placed in his pocket or elsewhere on his pants. Also, no interpretable DNA of the Accused was found on DRSS-A1.

Accused’s consistent denial of the offence; he was framed

Counsel made the point that in the Accused’s long statement,¹⁰ cautioned statement,¹¹ and when he testified during the proceedings, the Accused had consistently denied the offence.

In fact, the Accused even provided an explanation of how DRSS-A1 could have been found on him: that he was...