Public Prosecutor v Dominic Martin Fernandez and another

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu SJ
• Judgment Date: 21 September 2017
• Neutral Citation: [2017] SGHC 226
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 40 of 2015
• Published date: 13 July 2018
• Year: 2017
• Hearing Date: 20 August 2015,09 May 2017,08 August 2017,03 May 2017,18 August 2015,12 August 2015,19 April 2017,18 April 2017,26 August 2015,13 August 2015,22 January 2016,21 August 2015,21 January 2016,14 August 2015,10 February 2016,11 August 2015,25 August 2015,11 May 2017,19 August 2015
• Plaintiff Counsel: Ng Cheng Thiam and Jane Lim Ern Hui (Attorney-General's Chambers)
• Defendant Counsel: Seah Eng Chee Rupert (Rupert Seah & Co) and Tan Chin Aik Joseph (Teo Keng Siang LLC),Masih James Bahadur (James Masih & Company) and Skandarajah s/o Selvarajah (S Skandarajah & Co)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act
• Citation: [2017] SGHC 226

Kan Ting Chiu SJ: Introduction

There are two accused persons in this trial, namely Dominic Martin Fernandez (“Dominic”) and Nazeri Bin Lajim (“Nazeri”). They were arrested by officers of the Central Narcotics Bureau (“CNB”) in one operation in respect of the same subject matter. The charge against Dominic was that he:

on 13 April 2012, at about 5.05 a.m., at the junction of Anguilla Park and Orchard Road, Singapore, along the pavement near Far East Shopping Centre, did traffic in a Controlled Drug specified in Class "A" of the First Schedule of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the Act”), to wit, by delivering to one Nazeri bin Lajim (NRlC No. Sxxxxxxxx) two (2) bundles containing a total of 906.4 grams of granular/powdery substance which was analysed and found to contain not less than 35.41 grams of diamorphine, without any authorisation under the Act or the regulations made thereunder, and [he had] thereby committed an offence under s 5(1)(a) and punishable under s 33(1) of the Act, and further upon [his] conviction under s 5(1)(a) of the Act, [he] may alternatively be liable to be punished under s 33B of the Act.

and the charge against Nazeri was that he:

on 13 April 2012, at about 5.05 a.m., at the junction of Anguilla Park and Orchard Road, Singapore, along the pavement near Far East Shopping Centre, did traffic in a Controlled Drug specified in Class "A" of the First Schedule of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) ("the Act"), to wit, by having in [his] possession for the purpose of trafficking, two (2) bundles containing a total of 906.4 grams of granular/powdery substance which was analysed and found to contain not less than 35.41 grams of diamorphine, without any authorisation under the Act or the regulations made thereunder, and [he had] thereby committed an offence under s 5(1)(a) read with s 5(2) and punishable under s 33(1) of the Act, and further upon [his] conviction under s 5(1)(a) of the Act, [he] may alternatively be liable to be punished under s 33B of the Act.

(“Grams” was used by the prosecution although the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) uses “grammes”. It is preferable to use “grammes” or “g” for short).

The basic facts relating to the arrest of Dominic and Nazeri were not controverted. In the early morning of 13 April 2012, Dominic rode a motorcycle and parked it along Anguilla Park near its junction with Orchard Road. At the same time Nazeri arrived at Anguilla Park in a taxi, alighted and went to Dominic who was by the motorcycle.

Nazeri had a sling bag¹ with him, and Dominic had a backpack² when they met. Nazeri opened his sling bag, took out two envelopes containing $10,450³ and placed them in Dominic’s backpack and Dominic in turn took two bundles wrapped in black tape⁴ and placed them in Nazeri’s sling bag.

Immediately following the exchange, the Central Narcotics Bureau (“CNB”) officers who were keeping surveillance on them moved in and arrested them, and recovered the backpack, sling bag, the two bundles and the envelopes.

Of the two bundles recovered, one bundle⁵ contained 453g of granular/powdery substance which was analysed and found to contain not less than 18.3g of diamorphine, and the other bundle⁶ contained 453.4g of the same substance which contained not less than 17.11g of diamorphine.

At the time of arrest and in the course of investigations, contemporaneous statements, cautioned statements and investigation statements were recorded from both accused persons which were admitted in evidence without objection.

The contemporaneous statements

A contemporaneous statement⁷ was recorded from Dominic soon after his arrest by Senior Station Inspector David Ng (“SSI David Ng”). The statement was in the form of 15 questions and answers - Q1 What is inside the envelope that found inside your brown bag? A1 I think is money. Q2 How much inside the envelope? A2 I don’t know. Q3 Who pass the envelope to you? A3 The bold guy, I called him ‘Mike’. Q4 Did you pass anythings to him in return? A4 Two packets sealed with black tape. Q5 What is inside the black tape? A5 I don’t know. Q6 Who ask you to pass the two packets to ‘Mike’? A6 My friend ‘Kumar’ from JB. Q7 What is ‘Kumar’ contact number? A7 016 xxxx xxx Q8 When you arrived in Singapore, did you contact ‘Mike’ before you was arrested? A8 Yes. Q9 What did you told him in the phone? A9 I told ‘Mike’ I will be here by 5.00 am. Q10 How many times have you been meeting up with ‘Mike’? A10 2 or 3 times. Q11 Can you remember when was the first time? A11 First time was last week at the same place and same time where I was arrested today. Q12 When was the second time? A12 Also last week but I can’t recalled which day same place and same time. These is the third time. Q13 How many packets did you passed it to ‘Mike’ on the first and second time? A13 On the first and second time, I passed one packet with black tape wrapped it. Today, I passed 2 packets to ‘Mike’. Q14 Did you collect anything from ‘Mike’ on the first and second time? A14 ‘No’. Only today, ‘Mike’ passed the envelope to me. Q15 Did ‘Kumar’ give you any money for passing the packet to ‘Mike’? A15 ‘No’. Nothing at all.

[emphasis added]

Two contemporaneous statements were recorded from Nazeri by Station Inspector Larry Tay Chok Chwee (“SI Larry Tay”) after he was arrested. The first statement⁸ was recorded in his pocket diary at 5.10am which read:

I asked Nazeri Bin Lajim whose bag is that in the bush. He replied mine.

I then asked him what is inside he told me heroin.

I asked how many inside the bag.

400g.

The second statement⁹ was recorded at about 5.15am by SI Larry Tay consisting of 9 questions and answers: Q1 Can you speak English? A1 Yes. Q2 This brown colour sling bag that you thrown inside the bush before you was arrested belong to who?

(The recording officer pointed to the brown sling bag.)

A2 Me. Q3 What is inside the bag. A3 Heroin. Q4 How much heroin? A4 2. Q5 What is the heroin for? A5 Sell. Q6 Who you took the heroin from? A6 Dick. Q7 Is this Dick?

(Recorder’s note: Accused was shown a photo of dick from Kua Boon San’s handphone) Dick particulars was ascertained to be Dominic Martin Fernandez Gxxxxxxxx).

A7 Yes. Q8 How much you paid him for the heroin? A8 5000 plus. Q9 How many times have you took heroin from him? A9 First time. The cautioned statements

After the contemporaneous statements were recorded, the investigations proceeded with the recording of cautioned statements and investigation statements under ss 22 and 23, Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”).

In Dominic’s case, he was charged with trafficking the two bundles of diamorphine on 13 April 2012 and his cautioned statement¹⁰ was:

“Seriously, I do not know what was inside the black bundle. My friend Kumar asked me to pass these packets to “Mike”. I have known him about two weeks. After my arrest, I asked the officers what they were arresting me for. I told the officers that I do not know what was inside the bundles in my earlier statement”.

[emphasis added]

Nazeri was initially charged with being in possession of the diamorphine in the two bundles and his cautioned statement¹¹ was:

“I cannot say anything so I am abnormal. My mind cannot work. I am sick”.

(The charge was subsequently replaced by one for trafficking the two bundles of diamorphine.) The investigation statements Dominic’s investigations statement

Dominic made two investigation statements with the paragraphs numbered continuously through them. His first investigation statement¹² was recorded on 21 April 2012 in which he narrated on his family, education and employment background. In his second investigation statement recorded on 23 April 2012¹³, he narrated the events of his arrest: 10 I am asked to relate the events that had led to my arrest on 13 April 2012. On the same day I woke up about 2.45 a.m. in my room at my church. Usually I will wake up at this time to go to work into Singapore. After that I had my shower. I then had my morning prayers which I do normally before I leave for work. I then got ready and left my church for Singapore. It was about 3.55 a.m. when I left my church. When I left my house, I carried my brown coloured backpack. The backpack contained my personal stuff such as body wash and shaving items. I am now shown a photograph of one brown bag with marking ‘B’ (recorder’s note: accused was shown a photograph of the brown coloured bag which he was carrying on the day of his arrest and which was later marked as ‘B’) Inside the same backpack I had also carried my passport and wok [sic] permit. Also inside backpack were two bundles which were covered with black tape, which was given to me by my friend ‘Kumar’ the day before, which was on the 12 of April at about 10.00 p.m. ‘Kumar’ had asked me to do him a favour to bring these two bundles to his friend in Singapore. Upon carrying all these items inside my brown backpack. I left my church and reached the motorcycle. Before I started the motorcycle, I placed my brown backpack on the front basket which was attached to the motorcycle ‘JMY6202’. I then started the motorcycle and began riding towards Woodlands Checkpoint. The journey to Woodlands Checkpoint from my church was about 15 to 20 minutes. When I reached Woodlands Checkpoint it was about 4.15 a.m. to 4.20 a.m. 11 In Woodlands Checkpoint, I produced my passport inside the machine at the primary checking area. After then I rode pass the Secondary checking area without being checked. I then proceeded on and cleared the checkpoint. After clearing the checkpoint, I called one guy known to me as ‘Mike’. When ‘Mike’ answered I told him that I was ‘Dom’ speaking and further told him that I...