Public Prosecutor v Hla Win

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 12 May 1995
• Neutral Citation: [1995] SGCA 46
• Docket Number: Criminal Appeal No 8 of 1995
• Date: 12 May 1995
• Published date: 19 September 2003
• Year: 1995
• Plaintiff Counsel: Seng Kwang Boon and Ch'ng Lye Beng (Deputy Public Prosecutors)
• Citation: [1995] SGCA 46
• Defendant Counsel: Myint Soe (Murphy & Dunbar) and Sylvia Lim (Lim & Lim)
• Court: Court of Appeal (Singapore)
• Subject Matter: Power of court to reverse conclusions based on findings relating to credibility of witness,Statutory offences,Whether respondent knew he was importing drugs,Appeal,Defence of belief that he was smuggling gems,Presumption of knowledge of the nature of the drugs,Findings of fact,Illegally Importing controlled drugs,'Knowledge',Whether presumption of knowledge rebutted,Possession of bag not disputed,Approach of appellate court to such findings,(follow title of statute: eg misuse of drugs act),Criminal Procedure and Sentencing,Wilful blindness to fact tantamount to actual knowledge of fact,Respondent arrested at the airport with heroin in his bag,Criminal Law,ss 7 & 18 Misuse of Drugs Act (Cap 185)

The respondent was acquitted of the charge of importing into Singapore not less than 3,468g of diamorphine, an offence under s 7 of the Misuse of Drugs Act (Cap 185) (the Act). Against his acquittal the prosecution appealed. By a majority, with the Chief Justice dissenting, we dismissed the appeal. We now give our reasons.

The prosecution evidence

The prosecution evidence was as follows. On 23 July 1994 at about 10.56pm, the respondent arrived at the Changi Airport on board Silkair Flight MI 895 from Hatyai, Thailand. At about 11.15pm, he was spotted by Customs Officer Lawrence Wang Khai Wah (CO Wang) walking with a trolley towards the customs clearance gates. On the trolley, there were a brown leather bag (the bag) and a small white paper bag. CO Wang found the behaviour of the respondent suspicious in that the respondent was looking both to his left and right. CO Wang stopped the respondent, checked the respondent`s passport and was told by the respondent that he would be leaving the next day for the Philippines. CO Wang brought the respondent to the customs checking counter to examine the bag. On emptying the bag of the clothing he found that the inner linings on both sides of the bag were bulging. Following this, the respondent was brought to the customs duty office. Senior Customs Officer Ang Sin Ban (SCO Ang) examined the bag. He offered a cutter to the respondent and asked him to cut open the lining. The respondent asked SCO Ang to do so himself. On making a small slit, SCO Ang found white powder inside. SCO Ang thereupon took out a test kit and confirmed, by performing a simple chemical test, that the white substance contained heroin.

In cross-examination, counsel for the defence put the following question to CO Wang:

Q: Mr Wang, I am instructed by my client that at the time when the bag was cut open, SCO Ang asked him what is this, and he said something to the effect that, `This one is stones, someone asked me to carry for him`. Isn`t it true that this statement was made by my client to you and SCO Ang?

CO Wang replied in the affirmative. He did not, however, remember whether the respondent had gestured to his fingers to indicate that by `stones` he meant the gems used on rings. SCO Ang testified that the respondent asked him after the test was completed, `Sir, is it drug?` He did not ask the respondent what the substance was. When told about what CO Wang had said in cross-examination, SCO Ang said he could not remember if such an exchange took place.

The following important items were subsequently found and seized from the respondent. They were a passport belonging to one `Aung Myat` with the photograph of the respondent newly inserted, a Singapore disembarkation card with the address in Singapore stated as `Jalan 24, Lorong 24`, a boarding pass for Silkair Flight MI 895 from Hatyai to Singapore, an airline ticket for the flights Hatyai to Singapore and Singapore to Cebu bearing, inter alia, the status `RQ` and `OK` respectively, US$800 and 220 Thai bahts in cash, a receipt for a fine of 800 bahts issued to Aung Myat at Hatyai Airport for overstaying in Thailand, a piece of paper with Burmese writing containing some information (of which more will be said later), three photographs of the respondent, a small telephone book with entries in Burmese, some clothing and the white paper bag containing a new tube of toothpaste and a new toothbrush.

From about 12.05am to 2.30am, the respondent remained in the customs duty office and both CO Wang and Chief Customs Officer Michael Koh Keng Siang (CCO Koh) were assigned to guard him. However, the respondent and CCO Koh were left very much on their own in a partitioned area of the customs duty office. CO Wang interrupted them once or twice to ask for help from CCO Koh. During this time, CCO Koh questioned the respondent intermittently about the respondent`s background and how he came to be carrying the bag into Singapore. They conversed in English. CCO Koh made rough notes of what the respondent said. On 25 July 1994, he transferred the notes into his pocket book. The rough notes he took were then destroyed. In the pocket book, the following entry was found:

Accd spoke to me in English and also voluntarily divulged the following:

He is working as a bread seller in Bangkok with meagre income. Stayed Bkk for last six yrs. Recruited by another male Myanmese called `Maung Maung` and offered US$3000 to bring said brown bag which he believed to contain `stones` to Cebu via S`pore. He was paid half in advance (part of which he had spent on himself and also sent some to his family in Myanmar). Balance half would be paid on completion of assignment. There are many Nepalese and Myanmese in Bangkok who have been recruited by `Maung Maung` who works for an African syndicate. Many Caucasians also involved who are seldom checked by authorities at checkpoints. He took a flight from Bkk to Hdy. In Hdy, he was given two options by `Maung Maung`. Firstly, to hand carry the brown bag on board flight from Hdy to S`pore. On arrival at S`pore, to remain in transit area till the following morning for connecting flight to Cebu. Secondly, the brown bag would be checked in by someone in Hdy airport. On arrival in S`pore, he would pick up the bag and deposit at left baggage after customs clearance and subsequently would stay at Geylang Lor 24. Would pick up bag the following morning for departure to Cebu. He chose option 2 as he considered option 1 too risky. He was shown the bag in Hdy and later given the air ticket and baggage tag. He also claimed there were two other Myanmese in Hdy hotel but could not depart as they did not have the goods. He also said that his photo on the passport was just taken and had recently been affixed to the passport.

The information obtained from the respondent by CCO Koh was not divulged to the investigating officer, Inspector Ong Peng Boon (Insp Ong), from the Central Narcotics Bureau (the CNB). CCO Koh explained that he only wanted to gather information which might be useful to him in the course of his work. He agreed that he did not take down verbatim what the respondent had said. He further agreed that the respondent did not use certain words such as `meagre`, `recruited`, `syndicate` and `Caucasians`. Counsel for the defence suggested that the respondent did not say `Geylang Lor 24` because he did not know of Geylang at the material time.

Insp Ong took custody of the respondent and the white substance at about 2.05am. The white powder was scooped up from the two sides of the bag and placed in two separate bundles. Later, the substance was analysed and found to contain not less than 3,468g of heroin. The identification and quantification of the heroin were not challenged at the trial.

Back at the headquarters of the CNB, a statement was taken from the respondent by Insp Ong under s 122(6) of the Criminal Procedure Code (Cap 68) (the s 122(6) statement) with the assistance of a certificated Burmese interpreter, Ms Marler Swe (Ms Swe) at 5.45am. In it, the respondent said: `I have nothing to say.` The statement was admitted in evidence without any challenge. A long statement was subsequently recorded from the respondent by Insp Ong under s 121 of the Criminal Procedure Code (the s 121 statement), again with the help of Ms Swe. The recording of this statement consisting of 25 paragraphs began on 27 July 1994 and continued on 28, 29 July and on 2 August 1994. The defence sought to admit the statement into evidence. In the s 121 statement, the respondent put forth a detailed defence. Essentially, he said that he did not know that the bag contained drugs; he thought he was carrying `stones` or gems.

The defence

It is necessary to set out in some detail the evidence given by the respondent. His evidence in court was largely the version he gave in the s 121 statement. He is a Burmese by nationality, a Bengali by race and a Muslim by religion, and aged 30 years. He has been living in Thailand illegally for the past six years. He received his schooling primarily in his hometown in Myanmar and then in Yangon. He was instructed mainly in Bengali and Burmese but had also learned a little English. As a student, he participated in the uprising against Ne Win`s government. For fear of arrest and imprisonment, he fled to Thailand. There, he moved from town to town to avoid detection and deportation by the authorities for being an illegal immigrant. In fact, he was arrested three times and sent back to Myanmar. Each time, he managed to return to Thailand. He earned his living as a `roti prata` hawker. Sometimes, he worked at construction sites.

In 1994, he was staying in the Silom district in Bangkok where he sold `roti prata` from a push cart. There was a mosque called the Haroon mosque in the area. This was a mosque frequented by Muslims from the Indian subcontinent because a mixture of English, Hindi and Bengali was used in the mosque. He came to know a Chulia Muslim by the name of Maung Maung from his regular attendance at the mosque. Maung Maung also patronized his stall for `roti prata`. Originally from Myanmar, Maung Maung was a successful money-changer and a gem trader who carried on his business in the vicinity of the mosque. There were many other such traders in the area.

About three months after the respondent had first come to know Maung Maung, the latter took the respondent to a tea shop for a chat. They spoke in Burmese and the respondent revealed that he was an illegal immigrant. At a subsequent meeting at the mosque, Maung Maung arranged for them to meet on the morning of 21 July 1994. At the appointed date and time, they met at a McDonald`s restaurant near the mosque. Maung Maung told the respondent that he needed someone to bring a bag of gems abroad and asked if the respondent was interested. If he agreed, the respondent would be paid US$3,000 altogether, half of which would be paid in advance and the other half to be paid...