Public Prosecutor v Ho So Mui

• Jurisdiction: Singapore
• Judge: Karthigesu J
• Judgment Date: 15 January 1993
• Neutral Citation: [1993] SGCA 5
• Docket Number: Criminal Appeal No 21
• Date: 15 January 1993
• Published date: 19 September 2003
• Year: 1993
• Plaintiff Counsel: EC Foenander with Han Cher Kwang (Deputy Public Prosecutors)
• Citation: [1993] SGCA 5
• Defendant Counsel: Sant Singh with Aqbal Singh (Sant Singh & Partners)
• Court: Court of Appeal (Singapore)
• Subject Matter: Drugs found in bag carried by co-accused,Whether common intention established,Misuse of Drugs Act,s 34 Penal Code (Cap 224),Accused did not examine or touch bag,Co-accused smuggled controlled drugs,Criminal Procedure and Sentencing,Nothing incriminating found on accused,Common intention,Accused arrested at airport departure gate,Whether prosecution had established prima facie case against accused,Exporting controlled drugs,Accused told that contraband pens and lighters were to be smuggled,Acquittal,Statutory offences,Complicity,Criminal Law,Accused was told that contraband pens and lighters were to be smuggled,Misuse of Drugs Act (Cap 185) ss 7, 12, 18(1) & (2),Proof of common intention,Appeal

The respondent was tried with one Wong Wai Hung in the High Court on the following charge:

That you,

(1) Wong Wai Hung

(2) Ho So Mui

on or about 5 November 1988 at about 11pm at the Departure Hall Gate C35, Singapore Changi Airport, Singapore, in furtherance of the common intention of you both, did attempt to export from Singapore a controlled drug specified in Class A of the First Schedule to the Misuse of Drugs Act (Cap 185), to wit, 32 blocks of drugs containing not less than 4,594.65g of diamorphine without any authorization under the said Act or the regulations made thereunder, and you have thereby committed an offence under

ss 7 and 12 of the Misuse of Drugs Act (Cap 185), read with s 34 of the Penal Code

(Cap 224), and punishable under s 33 of the Misuse of Drugs Act (Cap 185).

At the close of the prosecution`s case, a submission of no case to answer on her behalf was upheld by the learned judicial commissioner, Mr MPH Rubin [see [1993] 1 SLR 927 ]. The public prosecutor appealed against her acquittal and at the end of the hearing before us, we dismissed the appeal for the reasons which follow.

The evidence adduced by the prosecution was contained in the respondent`s statements to the narcotics officers after her arrest (` the statements`) and on the evidence given by officers from the Central Narcotics Bureau (`CNB`) who kept surveillance on the respondent and Wong Wai Hung (`Wong`) from the time the two arrived at the check-in counter at Changi Airport on 5 November 1988 in order to board flight SQ36 to Zurich.

The statements showed that the respondent, a Hong Kong national, befriended one John Wong (later identified as one Say Ngan Chai) socially in Hong Kong. About two weeks before her arrest in Singapore, John Wong asked her to tea and on that occasion, she was introduced to Wong. During tea, John Wong told her of Wong`s intention to smuggle `Du Pont pens and lighters into Switzerland` via Singapore. John Wong asked her to accompany Wong on the trip as Wong`s wife as Wong was not well versed in English while she, presumably, was better at the language. She was told that Wong would pay for her return air ticket for the trip and that she would receive HK$20,000 for the errand. She accepted the proposal.

The respondent arrived alone in Singapore as prearranged on the evening of

3 November 1988 carrying with her a brown LV bag, a shoulder sling handbag and a plastic bag containing her winter coat. She checked into the Supreme Hotel and attempted to call John Wong in Hong Kong but did not reach him. She tried again the next morning and left a message for him to return her call. This he did around noon. He told her that Wong was already in Singapore and staying at the Strand Hotel. He also confirmed the earlier arrangement that she was to meet Wong at the restaurant in the Supreme Hotel at 11pm that day. The respondent then checked out of the Supreme Hotel as it was noisy and, being unable to get a room at the Strand Hotel, checked into the Bencoolen Hotel.

She then occupied herself for the rest of the day and met Wong at the Supreme Hotel in the night. They then went to Wong`s room in the Strand Hotel where she asked to see the Du Pont pens and lighters. Wong told her that the things were deposited at the left luggage counter at Changi Airport. They then agreed that the respondent should check out of her hotel room at noon the next day and go to Wong`s room in the Strand Hotel and wait there until it was time to go to the airport. She then returned to her hotel.

On the next day, she joined Wong as arranged and they stayed in the hotel room until 7.30pm when they checked out and had dinner at the hotel. They then left for the airport together by taxi. At the airport, she checked in on behalf of Wong and herself. Wong was at this time seated away from the check-in counter. She did not check in any luggage.

After checking in, they proceeded directly to boarding gate C35. She was carrying the three bags she had when she arrived from Hong Kong and Wong carried a grey bag. At the boarding gate, Wong left her with all the bags and went to the left luggage counter. He returned about 20 minutes later with a black Gucci bag, a brown plastic bag and a grey suit jacket. The latter two were handed to the respondent who placed the brown plastic bag into Wong`s grey bag. She also took out the winter coat in her plastic bag and placed it in Wong`s grey bag.

Wong then took the Gucci bag to the male toilet near the boarding gate. He returned ten minutes later perspiring. He commented that his grey bag was overloaded. The respondent then took out the winter coat from the grey bag and gave it to Wong who placed it in the Gucci bag. They then continued to wait for the boarding date to open.

About half an hour later, the boarding gate opened and the respondent went in ahead of Wong. She carried her LV bag, her handbag and the plastic bag which now contained only a Chinese magazine. She passed through the screening room and waited in the holding area for about five minutes before boarding the aircraft. She was about to take her seat when she was arrested and taken out to the holding area where her bags were searched. Nothing incriminating was found in them. She then learnt that Wong had been arrested and that drugs had been found in the Gucci bag.

The account of the events that occurred at Changi Airport on 5 November 1988 contained in the statements was corroborated by the testimony of officers from the CNB who had kept surveillance on Wong and the respondent at the airport. None of the officers could testify to the respondent examining or in any way touching the Gucci bag during the time she and Wong were at the boarding gate. The diamorphine forming the subject matter of the charge against the respondent and Wong was found in cloth pockets sewn onto the insides of a cloth vest and a panty girdle carried in the Gucci bag. It was also found in a secret compartment at the bottom of the same bag.

No independent evidence was put forward to corroborate the account of the events in Hong Kong contained in the statements. The respondent`s statement made pursuant to s 122(6) of the Criminal Procedure Code (Cap 68) said little:

I did not carry heroin. There was no heroin on my body. I was not with the male Chinese who was arrested together with me. That is all.

Reference need be made to Wong`s statements only for the purpose of completing the picture as the prosecution rightly did not seek to rely on the contents of those statements for the purpose of making out its case against the respondent. In his statements, Wong sought to lay the blame entirely upon the respondent. He claimed that she was his wife or woman and that the Gucci bag was hers and he was only carrying it for her.

The decision below

The learned judicial commissioner held that the prosecution failed to make out a case which, if unrebutted, would warrant the conviction of the respondent [see [1993] 1 SLR 927 ]. In his view, the prosecution had not adduced any primary evidence of a common intention on the part of Wong and the respondent to export the diamorphine and that the circumstantial evidence adduced did not show or lead to an inference that she knew of the diamorphine or that the bag contained diamorphine. He held that her admission to being a party to a plan to smuggle Du Pont pens and lighters did not form a proper basis for a case to answer on a charge of attempting to export controlled drugs. He found that the `Achilles heel` in the prosecution`s case was the absence of any evidence that the respondent handled the Gucci bag at any time.

The prosecution had also sought to prove that the respondent was in joint possession of the Gucci bag in order to invoke the presumptions in ss 18(1) and (2) of the Misuse of Drugs Act (Cap 185) (`the MDA`) that she was in possession of the diamorphine and knew of its nature. It should be noted that the prosecution had abandoned any reliance on...