Public Prosecutor v Khor Chong Seng and another

• Jurisdiction: Singapore
• Judge: Hoo Sheau Peng J
• Judgment Date: 05 October 2018
• Neutral Citation: [2018] SGHC 219
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 7 of 2018
• Published date: 05 March 2020
• Year: 2018
• Hearing Date: 03 July 2018,30 January 2018,07 February 2018,01 February 2018,06 February 2018,02 February 2018
• Plaintiff Counsel: Lau Wing Yum and Samuel Yap Zong En (Attorney-General's Chambers)
• Defendant Counsel: Wong Siew Hong and Koh Choon Guan Daniel (Eldan Law LLP),James Bahadur Masih (Messrs James Masih & Co) and Dhanaraj James Selvaraj (James Selvaraj LLC)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act
• Citation: [2018] SGHC 219

Hoo Sheau Peng J: Introduction

The two accused persons were jointly tried for offences under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). The first accused, Khor Chong Seng (“Khor”), claimed trial to a charge of importing into Singapore three packets containing not less than 57.05g of diamorphine, an offence under s 7 of the MDA. The second accused, Han Fang Guan (“Han”), claimed trial to a charge of attempting to possess one packet containing not less than 18.62g of diamorphine for the purpose of trafficking, an offence under s 5(1)(a) read with s 5(2) and s 12 of the MDA.

At the conclusion of the trial, I found that the charges against Khor and Han had been proved beyond a reasonable doubt, and convicted them accordingly.

Under s 33(1) read with the Second Schedule to the MDA, the prescribed punishment for the offences is death. However, s 33B(1)(a) provides that if the two requirements set out in s 33B(2) of the MDA are satisfied, the court has a discretion not to impose the death penalty. The first requirement is that the acts of the accused are confined to those of a “courier”. The second requirement is that the Public Prosecutor (“PP”) certifies that the accused has substantively assisted the Central Narcotics Bureau (“CNB”) in disrupting drug trafficking activities within or outside Singapore.

I found that Khor met both requirements, and exercised my discretion to impose the sentence of life imprisonment and the mandatory minimum of 15 strokes of the cane. However, Han met neither of the requirements. Therefore, I passed the mandatory death sentence on Han.

Han has filed an appeal against conviction and sentence. I now provide the reasons for my decision.

The Prosecution’s case Events leading up to Khor’s arrest and seizure of the drugs

On 2 March 2016, at about 12.10am, Khor arrived at the Woodlands Checkpoint, Singapore, on his Malaysian-registered motorcycle bearing registration number JQT1173. Khor was subjected to a search. From within the inner lining of Khor’s two motorcycle helmets bearing the logos “LTD” and “ARC” respectively, the CNB officers recovered seven bundles of controlled drugs (“the drugs”) as follows:¹ a large bundle wrapped in black tape, with a yellow sticker bearing the word “KEN”, marked C1B; a large bundle wrapped in black tape, with a yellow sticker bearing the word “KEN”, marked C1C; a small bundle wrapped in black tape, with a yellow sticker bearing the words “KEN 水 500”, marked C1D; a bundle wrapped in transparent tape, with a yellow sticker bearing the word “KEN”, marked C1E; a large bundle wrapped in black tape, with a yellow sticker bearing the word “KEN”, marked D1B; a bundle wrapped in transparent tape, with a yellow sticker bearing the word “KEN”, marked D1C; and a bundle wrapped in transparent tape, with a yellow sticker bearing the word “KEN”, marked D1D.

The charge against Khor concerned the diamorphine contained in exhibits C1B, C1C and D1B, while the charge against Han concerned the diamorphine in exhibit D1B.

Khor informed the CNB officers that he was tasked to deliver the drugs to a few recipients. He was waiting for instructions from his boss known as “Lao Ban”. He was willing to assist in a follow-up operation against the intended recipients of the drugs. Thereafter, Khor proceeded to communicate with “Lao Ban”, as well as the intended recipients of the drugs to make arrangements to meet them for the delivery of the drugs.² The various phone calls between Khor and the intended recipients, including Han, were recorded by the CNB officers.³

Han’s arrest

Sometime before 2 March 2016, Han contacted a drug supplier based in Malaysia known to him as “Ah Tiong” to place an order for drugs. Han contacted “Ah Tiong” at +60 14xx, the same mobile number used by the drug supplier known to Khor as “Lao Ban”. The mobile phone which Han used to contact “Ah Tiong” (which was seized upon his arrest and marked as “HFG-HP4”) bore the number xx50.⁴

On 2 March 2016 at about 2.04am, while in the custody of the CNB officers, Khor received an SMS message from “Lao Ban” stating “T-xx50=$3600”.⁵ As mentioned, the number xx50 corresponds to Han’s mobile phone number. Shortly after receiving the SMS message, Khor received a phone call from “Lao Ban”. During this conversation, “Lao Ban” instructed Khor to deliver one of the three “yellow” “big” bundles to “T”. Khor was also instructed to collect $3,600 from “T”.⁶

At about 2.43am, the call records show that Han received a phone call from “Ah Tiong” (using the number +60 14xx).⁷

At about 2.44am, Khor received a phone call from “Lao Ban” on his mobile phone. During this conversation, “Lao Ban” told Khor that he would ask “T” to call Khor.⁸

At about 2.45am, Han received an SMS message from “Ah Tiong”, stating “T-xx09=$3600”.⁹ The number xx09 corresponds to Khor’s mobile phone number.

At about 2.47am, Han called Khor and introduced himself as “T”. Han told Khor to proceed to Lorong 7, Toa Payoh.¹⁰ Over four further phone calls from 4.02am to 4.40am, arrangements were made for Khor to meet Han at Block 5, Lorong 7, Toa Payoh.¹¹

Acting on the information received from this operation, CNB officers SSgt Bukhari bin Ahmad (“SSgt Bukhari”) and Sgt Yogaraj s/o Ragunathan Pillay (“Sgt Yogaraj”) from the CNB Special Task Force (collectively, “the STF officers”), along with another team of CNB officers led by Insp Tong Hyeng Ji Xanthus (“Insp Tong”), proceeded to Block 5, Lorong 7, Toa Payoh to arrest Han.

SSgt Bukhari and Sgt Yogaraj stopped their CNB operational car on Lorong 7, shortly after passing the entrance leading to Block 5. Insp Tong followed closely behind the operational car in a taxi.

Sometime after 4.35am, from their vehicle, the STF officers spotted Han standing at the void deck of Block 5.¹² There was nobody else at the void deck at the material time.¹³ The STF officers were then instructed to effect arrest. As the STF officers began to approach Han, he started walking quickly towards Block 4, Lorong 7, Toa Payoh where he was eventually arrested.

Insp Tong’s team arrived shortly after and took custody of Han and searched his belongings. W/SSgt Vigneshwari d/o Thanabal recovered $3,600 in cash from the front left pocket of Han’s shorts. The cash was found bundled with a rubber band, kept separately from some other loose cash kept in a wallet.¹⁴

Subsequently, Han was brought to his place of residence at Block 5, Lorong 7, Toa Payoh, #11-133, Singapore, where various other amounts of drugs were recovered. This included one bundle marked “A1C1A1A” which was subsequently analysed and found to contain not less than 6.77g of diamorphine. For the sake of clarity, I highlight that this bundle was not the subject of the charge against Han.

Analysis of the drugs

The contents of the seven bundles of drugs seized from the two helmets were sent to the Health Sciences Authority (“HSA”) for analysis. Exhibits C1B, C1C and D1B were large black bundles of roughly the same size. They contained a granular/powdery substance. The results of the HSA analysis were as follows: Exhibit C1B: total weight of 458.9g, analysed and found to contain not less than 18.80g of diamorphine.¹⁵ Exhibit C1C: total weight of 457.3g, analysed and found to contain not less than 19.63g of diamorphine.¹⁶ Exhibit D1B: total weight of 457.4g, analysed and found to contain not less than 18.62g of diamorphine.¹⁷

Exhibit C1D was a considerably smaller bundle, also wrapped in black tape. It contained a crystalline substance with a total weight of 49.85g, which was analysed and found to contain not less than 34.04g of methamphetamine.¹⁸ For completeness, the other three bundles recovered from Khor, namely Exhibits C1E, D1C and D1D, were wrapped in transparent tape and contained strips of nimetazepam tablets.

Statements made by Khor

Pursuant to s 258(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”), the Prosecution sought to admit four statements recorded from Khor in the course of investigations. Khor did not object to the admissibility of any of his statements.¹⁹ The four statements were: One contemporaneous statement recorded under s 22 of the CPC by SI Pang Hee Lim (“SI Pang”) on 2 March 2016. The cautioned statement recorded under s 23 of the CPC by the Investigating Officer, Insp Teh Chee Sim Karlson (“IO Teh”), on 3 March 2016. Two long statements recorded under s 22 of the CPC by IO Teh on 8 and 9 March 2016.

In his contemporaneous statement, Khor said that the bundles found in the two helmets contained drugs belonging to his boss, which he was to deliver to various persons according to his boss’s instructions after he had cleared the Singapore customs. After his arrest on 2 March 2016, he received instructions from “Lao Ban” to send “02 big black bundle” to the person codenamed “99”, “01 big black bundle” to the person codenamed “T”, and the rest of the bundles to the person codenamed “kent” (elsewhere also referred to as “Ken”). He was also instructed to collect $6,800 from “99” and $3,600 from “T”. Khor stated that he “[did] not know what kind of drug [was] packed in both the helmet[s]” and that “boss told me it won’t ‘hang’ me”.²⁰

In his cautioned statement, Khor’s stated defence was that he “did not see the 3 bundles of things before [his] arrest” and that his boss had told him that “the amount will not lead to a death penalty”. He added that he “d[id] not know much”, and that he would simply deliver the drugs “according to [his boss’s] instruction” and “the markings on the packages”.²¹

In his first long statement, Khor detailed how he had met “Lao Ban” and the jobs he had done for “Lao Ban” up to his arrest. I outline the salient points: Khor had been introduced to “Lao Ban” by a friend by the name of “Ah De”. “Ah De” knew that Khor was in financial difficulty, and had suggested that Khor take up a job delivering drugs to...