Public Prosecutor v Khartik Jasudass and another

• Jurisdiction: Singapore
• Judge: Hoo Sheau Peng JC
• Judgment Date: 03 August 2015
• Neutral Citation: [2015] SGHC 199
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 22 of 2015
• Year: 2015
• Published date: 06 August 2015
• Hearing Date: 01 April 2015,26 March 2015,05 May 2015,25 March 2015,27 March 2015,24 March 2015
• Plaintiff Counsel: Eugene Lee, Ong Luan Tze, Teo Lu Jia (Attorney General's Chambers)
• Defendant Counsel: Eugene Thuraisingnam, Cheong Jun Ming Mervyn (Eugene Thuraisingnam LLP) and Lim You Yu Benson (WongPartnership LLP),Amolat Singh (Amolat & Partners) and Liang Hanwei Calvin (Tan Kok Quan Partnership)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act,Presumption of knowledge,General exceptions,Duress,Criminal Procedure and Sentencing,Statements,Admissibility
• Citation: [2015] SGHC 199

Hoo Sheau Peng JC:

The first accused is Khartik Jasudass (“the first accused”), a 22-year-old male Malaysian citizen. The second accused is Puniyamurthy A/L Maruthai (“the second accused”), a 30-year-old male Malaysian citizen. The accused persons are cousins. They each claimed trial to a charge of trafficking in a controlled drug, namely diamorphine, in furtherance of their common intention, an offence under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) and read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”). The charges state that on 27 August 2012 at about 6.20pm, in the vicinity of Block 221 Yishun Street 21, Singapore, the accused persons had in their possession for the purpose of trafficking two packets of granular or powdery substances weighing a total of 454.6g which were analysed and found to contain not less than 26.21g of diamorphine. The Prosecution applied for a joint trial of the accused persons under s 143(a) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”). The accused persons did not object to this, and were tried jointly.

The Prosecution’s case The arrest of the accused persons

By and large, the evidence led by the Prosecution was not disputed. At 6.10pm on 27 August 2012, officers from the Central Narcotics Bureau (“CNB”) spotted the accused persons meeting up with three men at one of the staircase landings of Block 230, Yishun Street 21. A short while later, the accused persons and the three men parted ways. The accused persons headed to a nearby carpark where their motorcycle which bore a Malaysian registration number JML 607 (“the Motorcycle”) was parked. The first accused rode the Motorcycle out of the carpark, with the second accused as his pillion passenger.

The CNB officers tailed the accused persons into another carpark at Block 221, Yishun Street 21. There, the second accused remained on the Motorcycle, carrying a black haversack, while the first accused walked towards the void deck of Block 221. At this point, the CNB officers moved in and arrested them separately.

After the arrest, the accused persons were escorted into a CNB vehicle (“the CNB vehicle”). At about 6.50pm, Woman Staff Sergeant Norizan binte Merabzul (“W/SSgt Norizan”) entered the CNB vehicle and proceeded to question the accused persons in Malay. Initially, the questions were posed to both the accused persons generally. As the second accused began answering the questions first, a statement was taken from the second accused. Subsequently, W/SSgst Norizan also took a statement from the first accused. These statements were recorded in the Special Task Force field diary.

At about 7.05pm, Senior Staff Sergeant Tay Cher Yeen Jason (“SSSgt Tay”) conducted a search on the accused persons. He seized, among other things, the black haversack which was carried by the second accused at the time of his arrest. Two black bundles were found in this black haversack.

Following the search, from about 7.30pm to 8.05pm, W/SSgt Norizan recorded another statement from the second accused inside the CNB vehicle. During this time, the first accused was seated on the ground outside the CNB vehicle. From about 8.10pm to 8.38pm, W/SSgt Norizan took another statement from the first accused inside the CNB vehicle. The accused persons spoke in the Malay language, which W/SSgt Norizan interpreted into and recorded in writing in English.

The accused persons were then brought to their workplace at Senoko Avenue, as well as the Woodlands Checkpoint for further investigations to be conducted. After that, they were brought back to the CNB’s Headquarters at the Police Cantonment Complex.

Handling and analysis of the exhibits

At about 12.23am on 28 August 2012, SSSgt Tay brought the seized exhibits to the Exhibit Management Room in CNB’s Headquarters, and handed them over to Woman Inspector Michelle Sim (“IO Sim”) for photograph taking. The accused persons were present in an adjoining room from which they viewed the process.

The black haversack was marked “A” and the two black bundles found therein were marked “A1” and “A2” respectively. Each black bundle was found to contain one packet of granular or powdery substance. These were then marked “A1A” and “A2A” respectively (“suspected drug exhibits”). DNA swabs were also taken from the exhibits. Once an exhibit was labelled, photographed and swabbed for DNA, Sergeant Jasveer Singh Gill (“Sgt Jasveer”) repacked each exhibit into a separate plastic bag. After the photograph-taking process, Sgt Jasveer handed all the exhibits over to IO Sim.

IO Sim then weighed the suspected drug exhibits, and recorded their weights in her investigation diary. The accused persons were invited to sign against these entries, which they did. Thereafter, IO Sim placed the suspected drug exhibits into a plastic bag and carried them to her office for safekeeping.

On 30 August 2012, at about 1.51pm, IO Sim handed to Hu Yiling Charmaine (“Ms Hu”), a Health Sciences Authority (“HSA”) analyst, inter alia, the suspected drug exhibits for analysis. Upon analysis, Ms Hu found that the exhibit marked “A1A” contained 229.5g of granular or powdery substance with not less than 13.08g of diamorphine, and the exhibit marked “A2A” contained 225.1g of granular or powdery substance with not less than 13.13g of diamorphine. In total, there was therefore no less than 26.21g of diamorphine in exhibits “A1A” and “A2A”. These results were not challenged by the accused persons at trial.

On 31 August 2012, blood specimens were obtained from each accused person. The specimens were then sealed and deposited in a locked metal security box which was placed at the Criminal Registration Office Counter. On 3 September 2012, Mr Poh Beng Kiong, an employee of Access Express Courier Pte Ltd, a company which provides courier services, collected the locked metal security box and handed it over to the DNA Database Laboratory of the HSA.

On 3 September 2012, IO Sim submitted the DNA swabs taken from the exhibits (see [9] above) to the DNA Profiling Laboratory for DNA analysis. The accused persons’ DNA was found on the exterior surface of the plastic taped with tapes covering the exhibit marked “A2A”. These DNA results were similarly not challenged by the accused persons at trial.

Statements made by the first accused

The Prosecution relied on the statements taken from the first accused by W/SSgst Norizan (see [4] and [6] above which will be referred to as the “oral statement” and “contemporaneous statement” respectively). In addition, the Prosecution also relied on four other statements made by the first accused, namely the statement recorded by IO Sim under s 23 of the CPC on 28 August 2012 (“the cautioned statement”), and three other statements recorded under s 22 of the CPC on 31 August, 2 September 2012 and 13 February 2013 respectively (each to be referred to as a “long statement”, and two or more as “long statements”). The first two long statements were recorded by IO Sim, while the last was recorded by Inspector Nathaniel Sim (“Insp Sim”).

The first accused did not challenge the voluntariness of all these statements, although two matters were disputed. First, in the oral statement taken by W/SSgt Norizan, the first accused was recorded as stating that there were “two packets of batu brown colour” [emphasis in original] inside the black haversack. When questioned by the Prosecution, the first accused stated that he did not mention the colour. To my mind, this is not a material point. In my analysis below of the first accused’s evidence, I do not rely on this aspect of the oral statement. I shall not say more of this. Second, it is submitted that the third long statement recorded on 13 February 2013 by Insp Sim is inadmissible as it forms “without prejudice” communications. I shall return to the contents of the third long statement at [52], and discuss the objection at [103]–[104].

For now, I set out the critical portions of the various other statements. In the oral statement, the first accused said that he had something to “surrender”, being the two packets of drugs in the bag. In relation to the drugs, he explained that he was “[t]o send and collect money”. In the contemporaneous statement, the first accused stated that he used the black bag together with the second accused. He knew that the bundles in the black bag contained drugs, but that he did not know “what drugs” [emphasis added]. They were waiting for a phone call so as to find out who “to send” the bundles to.

In the first accused’s cautioned statement, he admitted to the charge. He had surrendered to the CNB officers when questioned whether he was “doing any illegal work”. The first accused stated that he did not know the punishment for committing the crime. He was in financial difficulties, and needed money.

In the first accused’s first long statement recorded on 31 August 2012, again, he explained that he and the second accused had become involved in delivering drugs because of financial difficulties. Sometime in the middle of July 2012, they had met a man named “Raja” in Johor Bahru, Malaysia. Upon hearing that the accused persons were jobless, Raja offered both of them a job. Raja did not give any details about the job except that it would be “a dangerous job” that could earn them “a lot of money” [emphasis added]. Raja gave them time to think about whether they wished to accept the job. The first accused then stated: 17 … At that point of time, I was already suspecting that the job Raja was referring to have got something to do with delivery of drugs. 18 Two days later, Raja called [the second accused] on his handphone and requested to meet us at a restaurant. Both [the second accused] and I met up with him and he bought us dinner. He also asked us if we had thought about the job. We told him that the job was too dangerous and we were not prepared...