Public Prosecutor v Husmirosta Bin Hussin

• Jurisdiction: Singapore
• Judge: Bala Reddy
• Judgment Date: 05 March 2021
• Neutral Citation: [2021] SGDC 35
• Court: District Court (Singapore)
• Docket Number: District Arrest Case No 914123 of 2019, Magistrate’s Appeals No 9030 of 2021
• Published date: 06 March 2021
• Year: 2021
• Hearing Date: 16 November 2020,01 February 2021,21 October 2020,22 September 2020,23 September 2020,23 December 2020,21 September 2020,20 October 2020,24 September 2020
• Plaintiff Counsel: Deputy Public Prosecutor Lu Yiwei (Attorney-General's Chambers)
• Defendant Counsel: Accused in person.
• Subject Matter: Criminal Law,Statutory Offences,Misuse of Drugs Act
• Citation: [2021] SGDC 35

Senior District Judge Bala Reddy:

The accused, Husmirosta Bin Hussin (“Accused”) stood trial before me on a single charge of failing to provide his urine specimen when required to do so by a police officer as prescribed under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). This charge carried enhanced punishment if convicted. Three other charges were stood down.

The proceeded charge read as follows:

are charged that you, on 27 December 2018, at about 10pm, at Bedok Police Divisional Headquarters Singapore, without reasonable excuse, did fail to provide a specimen of your urine for urine test as required by a Police Officer of Bedok Police Divisional Headquarters, namely Sergeant Ken Ng Kok Wah, who was authorised to require you to provide a specimen of your urine for urine tests to be conducted under s 31 of the Misuse of the Drugs Act (Cap 185, 2008 Rev Ed), and you have thereby committed an offence under s 31(2) of the said Act.

And further, that you, before the commission of the said offence, had been convicted, on 6 February 2003 in the District Courts No 24 (vide DAC 60144/2002), for an offence of consumption of a specified drug, namely morphine, under s 8(b)(ii) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed), punishable under s 33A(1) of the said Act, and sentenced to 7 years’ imprisonment and 4 strokes of cane, for which conviction and sentence have not been set aside, and that you are thereby liable to enhance punishment under Section 33A(2) of the said Act.

At the close of the trial I found the Accused guilty of the charge and convicted him. I now set out my reasons.

Shortly before the commencement of the trial, at a status Pre-Trial Conference, the Accused who had been on bail pending trial, sounded incoherent and made several references to being commanded by voices. In the abundance of caution, the Accused was sent to the Institute of Mental Health for a proper psychiatric evaluation to be undertaken to establish if the Accused was fit to plead and conduct his trial. By her Certificate dated 17 September 2020¹, the psychiatrist and Designated Medical Practitioner, Dr Tan Chunzhen (“Dr Tan”), certified the Accused to be of sound mind and capable of making his defence.²

Throughout the course of the trial, the Accused was on several occasions somewhat incoherent, laughed inappropriately as well as appeared to be responding to some non-existent entity. At various junctures during trial when he appeared to be responding to such unseen entity or voice, the court asked him if he was alright and in a position to continue with the proceedings. The court was therefore very mindful of these actions by the Accused and made sure that he was at all times able to follow the proceedings and was able to understand the evidence that was led against him by the prosecution and conduct his defence.

Prosecution’s Case

On 27 December 2018, at about 12.25pm, Senior Station Inspector Tan Boon Leong (“SSI Tan”)³ and Special Constable Sergeant Ken Tan (“SCS Tan”)⁴ attended to a call for police assistance at 2 Tampines Ave 4 Tampines West MRT Station, and established the location to be outside a barber shop.⁵

By the time SSI Tan and SCS Tan reached the scene, the Accused was already detained outside the barber shop by staff from the barber shop.⁶ The Accused had worked in the shop until about 2 weeks prior to the day of incident.⁷ Upon interviewing the complainant and the Accused, SSI Tan placed the Accused who had bloodshot eyes and slurred speech⁸ on arrest⁹ on suspicion of having consumed a controlled drug. SSI Tan told the Accused the reason for his arrest.¹⁰ The Accused was also told that the CNB would be informed about his case.¹¹

The Accused who denied having taken any controlled drug refused to cooperate and did not wish to be brought to the police station.¹²

The Accused was subsequently brought back to Bedok Police Division,¹³ where he was placed in a cell in the lockup. He remained in the cell from about 4pm on 27 December 2018 until the morning of 28 December 2018, except for the occasions when he was taken out for medical examination by doctors.¹⁴ Besides a toilet, there was also a water dispenser inside the cell, which the Accused could use at any time.¹⁵

The following facts were established by both oral and documentary evidence tendered before the court.¹⁶ On 27 December 2018, at Bedok Police Division, police officers had between 4pm and 10pm required the Accused to provide his urine specimen on 13 occasions.¹⁷ The Police Station Diary (exhibit P7) corroborated the events and evidence given by the respective police officers.

Senior Staff Sergeant Clarence Chan (“SSSgt Chan”)¹⁸ requested the Accused for his urine specimen from about 4pm. The Accused understood SSSgt Chan’s request but failed to provide his urine specimen. At half hour intervals during the following times, 4.30pm, 5pm, 5.30pm, 6pm and 6.30pm, SSSgt Chan offered a cup of water to the Accused but was refused by the Accused on the grounds that he was fasting. On each occasion when SSSgt Chan gave him water, he also asked the Accused to provide his urine specimen.

At 7pm, when SSSgt Chan offered the Accused a cup of water he drank the water. The Accused testified that he broke his fast at 7pm. SSSgt Chan also asked the Accused to provide his urine specimen but the Accused did not. Thereafter, at 7.30pm, the Accused was offered a cup of water by SSSgt Chan who also gave him his dinner, which the Accused ate. However, he did not want to drink any water. On this occasion too SSSgt Chan had asked the Accused to provide his urine specimen, but he did not. At 8pm, when the Accused was again offered a cup of water by SSSgt Chan he did not drink it nor did he provide his urine specimen to SSSgt Chan. The Accused was also reminded that the period during which he could give his urine specimen would end at 10pm on that day. The Accused was aware of this.

Subsequently, Sergeant Ken Ng Kok Wah (“Sgt Ng”)¹⁹ offered the Accused a cup of water at 8.30pm and 9pm which the Accused drank but failed to provide any urine specimen as required.²⁰

At 9.30pm, Sgt Ng offered a cup of water to the Accused who refused the water. Sgt Ng also asked the Accused for his urine specimen, but the Accused did not provide any.²¹ At the same time the Accused was reminded that he could provide his urine specimen “until 10:00pm” on that day.²² This was followed at 10pm, with Sgt Ng giving him a cup of water and requiring him to provide his urine specimen. The Accused did not.²³ Sgt Ng informed the Accused that the warning to provide his urine specimen ended at 10pm.²⁴

There was no dispute that the Accused knew that the police officers were asking him for his urine specimen but he adamantly for reasons best known to himself refused to do so.²⁵ The Accused knew that the purpose of providing his urine specimen was so that it could be tested for the presence of any controlled drug.

Prosecution also led evidence from Dr Yak Si Mian (“Dr Yak”)²⁶ and Dr Chareonsri Apiwat (“Dr Apiwat”)²⁷, who examined the Accused on 27 December 2018. The Accused was certified as being medically fit to provide his urine specimen. Evidence was also led from Dr Wong Yu Jun Eugene (“Dr Wong”)²⁸, that the Accused’s stomach procedure and gallbladder removal surgery in 2017 would not have affected his ability to urinate.

Ancillary Hearing

Prosecution also tendered a statement recorded under the provisions of section 23 of the Criminal Procedure Code on 28 December 2018 at 1550 hours (“Cautioned Statement”)²⁹ by Investigation Officer Muhammad Izkandar bin Su’arli (“IO Izkandar”)³⁰ which was admitted after an ancillary hearing as I was satisfied beyond reasonable doubt that the Cautioned Statement was given voluntarily. I found that none of the assertions by the Accused during the ancillary hearing affected the admissibility of the statement. He made up his objections to the admission of the statement as he went along during the hearing and most of the challenges were either spurious or afterthoughts. Some of his questions to the recorder were mainly on the manner in which he recorded the statement, which objections I found to be without substance. His allegation that the recorder promised him that if he gave the statement he would not be charged but released on bail³¹ did not make any sense for me to place any weight. It is also significant that the statement was part of the CCDC process but the Accused had not raised any such objections at that stage.

The Accused did not challenge the admission of the Investigation Statement recorded by Sergeant Irwanudin bin Razali (“Sgt Irwan”)³² on 28 December 2018 at 1035 hours³³.

Based on the above, the Prosecution contended that the Accused who was required by SSSgt Chan and Sgt Ng to provide a specimen of his urine on 27 December 2018 between 4pm to 10pm, for suspected consumption of a controlled drug failed to provide a specimen of his urine without any reasonable excuse.

As it was clear that a prima facie case had been made out on the evidence, the Accused was called upon to enter his Defence.

Defence’s Case

The Accused’s defence was multi-fold and at times incoherent. He appeared to be making up his Defence as the case proceeded. One of his main defences was that he had attempted to give an insufficient amount of his urine in the morning of 28 December 2018 which was rejected by Sgt Irwan and or Sergeant Guan Zhenfu (“Sgt Guan”)³⁴. He also ran the Defence that he was unable to provide the specimen required on 27 December 2018 either because he was fasting or due to injury suffered at the time he was arrested or some vague illness or condition that made it difficult for him to provide the urine specimen as required.

The Law

Sections 31(1) and 31(2) of the MDA provide:

Urine tests

31.—(1) Any officer of the Bureau, immigration officer or police officer not below the...