Lee Ngin Kiat v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Goh Joon Seng J
• Judgment Date: 30 April 1993
• Neutral Citation: [1993] SGCA 29
• Docket Number: Criminal Appeal No 43 of 1992
• Date: 30 April 1993
• Published date: 19 September 2003
• Year: 1993
• Plaintiff Counsel: Choo Han Teck and Chia Ho Choon (assigned)
• Citation: [1993] SGCA 29
• Defendant Counsel: PO Ram (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: s 163(1) Criminal Procedure Code (Cap 68),Power to alter charge,Charge,Criminal Law,Particulars,Power to be exercised judiciously,s 54(1)Supreme Court of Judicature Act (Cap 322),Act of possession presumed to be act of trafficking,How presumption is rebutted,Trafficking in controlled drug,ss 2 & 17 Misuse of Drugs Act (Cap 185),Criminal Procedure and Sentencing,Presumption of trafficking,s 160 Criminal Procedure Code (Cap 68),Effect of presumption,Alteration,Principles applicable,Manner of trafficking to be specified in charge,Special exceptions,Alteration by Court of Criminal Appeal,Trafficking in controlled drugs,Misuse of Drugs Act

Cur Adv Vult

The accused, Lee Ngin Kiat, was tried in the High Court on the following charge:

You, Lee Ngin Kiat, are charged that you on or about 13 August 1990, at about 9.10pm at Apartment Block 15, St George`s Road #11-168, Singapore did traffic in a controlled drug specified in Class A of the First Schedule to the Misuse of Drugs Act (Cap 185), to wit, 50 plastic packets of substance containing not less than 147.68g of diamorphine which were in your possession at Apartment Block 15, St George`s Road #11-168, Singapore, without any authorization under the said Act or the regulations made thereunder and you have, thereby, by virtue of s 17 of the Misuse of Drugs Act, committed an offence under s 5(a) and punishable under s 33 of the Misuse of Drugs Act.

At the end of the trial, Amarjeet Singh JC found the accused guilty as charged and convicted him and sentenced him to the mandatory death sentence [see [1993] 2 SLR 181 ]. The accused appealed to this court against the conviction.

The facts

The facts in this case are substantially undisputed and for the purposes of this appeal need only be stated briefly.

On 13 August 1990 at about 7.47pm the accused was arrested by narcotics officers from the Central Narcotics Bureau. At about 9.10pm he was brought to his apartment at Blk 15 St George`s Road #11-168, Singapore and he indicated his room to the officers. The door of the room was unlocked with one of the keys which had been seized from the accused earlier.

One of the officers asked the accused as to the whereabouts of his drugs and the accused signalled with his head towards a wooden rack. A small metal container was recovered from the rack and another larger metal container was found at the foot of the rack. On being asked what was inside the containers the accused replied in Hokkien, `Peh Hoon` (heroin). The accused was questioned as to whether he knew the quantity of drugs he had and he replied that he did not know. He added that his friend Ah Seow had asked him to keep them. The containers were later found to contain 46 small sachets and eight large sachets of diamorphine with a total weight of not less than 147.68g.

During cross-examination, counsel for the defence put to some of the narcotics officers who gave evidence questions to suggest that the accused did not know the contents of the metal containers and that the diamorphine was recovered independently of any questions put to the accused. This was denied by all the prosecution witnesses. One of the prosecution witnesses also denied that the accused had told him that Ah Seow was a runner at the race course and that the accused had offered to bring him there to apprehend Ah Seow. Instead, the witness stated that the accused told him that he had met Ah Seow, whose address he did not know, in a gambling den.

Various other items were subsequently recovered from the rack as well as from a drawer in the room. These included stacks of small sachets of transparent plastic (similar to the 46 found to contain diamorphine), a daching, empty envelopes, an electric sealer, a pager, three passports, Chinese newspapers, masking tape, two large plastic sachets (similar to the eight found to contain diamorphine) and a polythene bag.

The decision of the High Court

At the conclusion of the prosecution case, counsel for the defence submitted that no prima facie case had been made out against the accused.

The learned judge was of the view that the fact that the accused had the keys to the room in which the drugs were recovered gave rise to the presumption of possession under s 18(1) and (2) of the Misuse of Drugs Act (Cap 185)(`the Act`). As such, the burden fell on the accused to rebut the presumption on a balance of probabilities. This was conceded by counsel for the defence.

However, counsel for the defence challenged the prosecution`s contention that the fact that the accused was proved to be in possession of the drugs meant that, by virtue of s 17 of the Act, a prima facie case of trafficking had been made out against the accused. Counsel for the defence argued that the evidence of the prosecution amounted at most to an offence of possession and not trafficking. Attention was drawn to the fact that the word `traffic` was defined in terms of several overt acts in s 2 of the Act. The argument was that the presumption in s 17 could not be invoked in a case where the accused, at the time that the drugs were proved to be in his possession, was not in a position to traffic in the drugs in any of the ways mentioned in s 2. In the present case, the accused could not have trafficked in the drugs found in his possession at the time and place alleged in the charge as he was then in police custody.

This argument was rejected by the learned judge who was of the view that the argument missed the point as to the main function and effect of a legal rebuttable presumption. The learned judge pointed out that a legal presumption implied the existence of one fact from the existence of some other fact founded upon a previous experience of their connection and provided that fact as proved, leaving it to the adversary to marshal evidence on a balance of probabilities to negative that fact. As such, s 17 obviated the necessity on the part of the prosecution to overtly prove the act or the state of affairs denoting the activity referred to in s 2 of the Act. The learned judge then ruled that the words `to traffic` as used in s 17 constituted compendiously a presumptive description of the several acts which constituted the definition of the word `traffic` in s 2 of the Act. Once correctly invoked, a presumption of trafficking came into operation without proof of any accompanying overt act as set out in s 2 of the Act.

The learned judge then held that the prosecution had made out a case which if unrebutted would warrant the conviction of the accused. On his defence being called, the accused elected to remain silent and did not call any witnesses in his defence. The trial judge then reviewed the evidence and concluded that the accused had not rebutted the presumption of trafficking. The accused was accordingly convicted and sentenced to death.

The issue of law

On appeal to this court, counsel for the appellant conceded that the drugs were in the possession of the accused but disputed that the offence of trafficking had been made out. He relied essentially on the same defence argument which had been rejected by the trial judge in the High Court. This argument is based on the interpretation of ss 2 and 17 of the Act and the relationship between the two sections.

The material part of s 17 of the Act provides:

Any person who is proved to have had in his possession more than -

...

(c) 2 grammes of diamorphine;

...

whether or not contained in any substance, extract, preparation or mixture shall, until the contrary is proved, be presumed to traffic in that controlled drug.

Before its amendment which took effect on 15 February 1990, the corresponding part of the provision read:

Any person who is proved or presumed to have had in his possession more than -

...

(c) 2 grammes of diamorphine (heroin) contained in any controlled drug;

...

shall, until the contrary is proved, be presumed to have had that controlled drug in his possession for the purpose of trafficking therein.

Section 2 of the Act defines the word `traffic` in terms of several `overt acts of trafficking`. It reads:

`traffic` means -

(a) to sell, give, administer, transport, send, deliver or distribute; or

(b) to offer to do anything mentioned in paragraph (a),

otherwise than under the authority of this Act or the regulations made thereunder; and `trafficking` has a corresponding meaning.

The appellant`s contention was that the evidence adduced by the prosecution clearly showed that the accused, being in police custody, was not in a position to perform any of the overt acts of trafficking as enumerated in s 2 at the time and place specified in the charge. As such, s 17 could not be invoked to presume that something impossible had been done. Alternatively, even if s 17 could be applied, the evidence had clearly rebutted the presumption that the accused was carrying out one of the overt acts of trafficking as defined in s 2.

Counsel for the respondent submitted that the stand adopted by the trial judge in the High Court was correct and as such it was not necessary for the prosecution to further provide some evidence of an overt act as prescribed under s 2. This argument, though unquestionably correct, does not further the prosecution case in any way. It cannot be disputed that the effect of the presumption is to cast the burden of proof on the accused to rebut the presumption of trafficking; that much is clear from the words of s 17. The heart of the defence argument is not that the burden of proof does not fall on the accused, but that the burden has been discharged.

To resolve the issue, a close examination of ss 2 and 17 is necessary. This is the first time that this court is asked to decide on the effect of s 17 of the Act after the amendment which came into operation on 15 February 1990. The issue of law raised is a wide-ranging and important one and is best framed generally: what is the effect of the presumption of s 17 of the Act? The...