Public Prosecutor v Lokman bin Abdul Rahman and another

• Jurisdiction: Singapore
• Judge: Valerie Thean J
• Judgment Date: 10 March 2020
• Neutral Citation: [2020] SGHC 48
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 1 of 2019
• Year: 2020
• Published date: 19 March 2020
• Hearing Date: 30 October 2019,18 January 2019,06 February 2020,16 July 2019,01 November 2019,29 October 2019,23 January 2020,17 July 2019,15 January 2019,31 October 2019,11 January 2019,17 January 2019,10 January 2019,16 January 2019,30 January 2019,03 January 2020,29 January 2019,21 February 2020,29 January 2020,01 February 2019,31 January 2019
• Plaintiff Counsel: April Phang and Soh Weiqi (Attorney-General's Chambers)
• Defendant Counsel: Mohamed Muzammil bin Mohamed (Muzammil & Company) and Lam Wai Seng (Lam WS & Co),Ram Goswami (Ram Goswami) and Cheng Kim Kuan (K K Cheng & Co)
• Citation: [2020] SGHC 48

Valerie Thean J:

Two brothers, Lokman bin Abdul Rahman (“Lokman”) and Mohamed Mubin bin Abdul Rahman (“Mubin”), claimed trial to their respective charges under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). Lokman’s evidence was that Mubin was a drug trafficker whom he was helping as a courier. Mubin’s evidence was that Lokman was a drug trafficker in whose activities Mubin had no role. I found that the facts reflected the former scenario and not the latter. In the result, after both accused were convicted on amended charges, Lokman was sentenced to life imprisonment and the mandatory death sentence was imposed for Mubin. I explain the grounds of my decision hereunder.

Agreed facts

On 8 September 2015, at around 10.30pm, officers from the Central Narcotics Bureau (“CNB”) arrested Lokman at the ground floor lift lobby of Katong Park Towers (“KPT”), 114A Arthur Road.¹ He was carrying a black bag that contained, inter alia, two bundles of diamorphine later marked A1E1A and A1F1A, which formed the subject matter of the charges. A1E1A contained not less than 19.88g of diamorphine² and A1F1A contained not less than 19.40g of diamorphine³. The drug analysis and the chain of custody of the diamorphine were not disputed in this case.

Other drugs were found, which informed the context of the case. The black bag on Lokman’s person had, in addition to A1E1A and A1F1A, five packets of diamorphine and 50 tablets (ethylone and methoxetamine). A further five packets of diamorphine and three packets of methamphetamine were recovered from a green and black bag also carried by Lokman. After his arrest, Lokman was brought to #08-06 South Tower at KPT (“the KPT Unit”), where he was residing. A search was conducted there and the following were recovered: ⁴ From the bedroom of the centre sub-unit of the KPT Unit, one packet and one straw of diamorphine, one packet of methamphetamine, and a roll of black tape. From the living room of the same sub-unit, six packets of diamorphine, three rolls of black tape, and a clear plastic wrapped with black tape.

After Lokman’s arrest, and under the supervision of CNB officers, Lokman used his mobile phone to communicate with one “Edy” and Mubin. The CNB officers recorded these conversations. These recordings were later transcribed and translated.⁵

According to the tenancy documents, the KPT Unit was rented to Mubin and one Siti Rohani binte Mohamed Ali. Mubin’s girlfriend, Tihani binte Ibrahim (“Tihani”), had used Siti Rohani binte Mohamed Ali’s identity card for the purpose of securing the lease. The monthly rental of $1,800 was paid by Mubin.⁶ Tihani and her infant son were at the KPT Unit on the night Lokman was arrested.

Mubin was subsequently arrested on 5 October 2015 at around 5.40pm at M28 Minimart, Blk 182A Rivervale Crescent.⁷ At the time of his arrest, two packets of methamphetamine, three packets of diamorphine, empty sachets, and a weighing scale were found on him.⁸

Charges and legal context

Lokman and Mubin were tried on the following charges:

That you, 1. LOKMAN BIN ABDUL RAHMAN, on 8 September 2015, at or about 10.30 pm, at the ground floor lift lobby of the South Tower at Katong Park Towers, 114A Arthur Road, Singapore, did traffic in a controlled drug, to wit, by having in your possession for the purpose of trafficking, 2 bundles of granular substances weighing a total of 913.6 grams, which was analysed and found to contain not less than 39.28 grams of diamorphine, a Class ‘A’ controlled drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) read with section 5(2) and punishable under section 33(1) of the MDA, or you may alternatively be liable to be punished under s 33B of the MDA.

That you, 2. MOHAMED MUBIN BIN ABDUL RAHMAN, on or about 8 September 2015, in Singapore, did abet by instigating one Lokman Bin Abdul Rahman (bearing Singaporean NRIC No. S[xxxxxxxx]) to traffic in a controlled drug by giving instructions to the said Lokman Bin Abdul Rahman in relation to the packing and delivery of 2 bundles of heroin, and in furtherance to your instigation, on 8 September 2015, at or about 10.30 pm at the ground floor lift lobby of the South Tower at Katong Park Towers, 114A Arthur Road, Singapore, the said Lokman Bin Abdul Rahman did have in his possession for the purpose of trafficking 2 bundles of granular substances weighing a total of 913.6 grams, which was analysed and found to contain not less than 39.28 grams of diamorphine, a Class ‘A’ controlled drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under s 5(1)(a) read with s 5(2) and s 12 and punishable under s 33(1) of the MDA, or you may alternatively be liable to be punished under s 33B of the MDA.

These charges against Lokman and Mubin were based on s 5(1)(a) read with s 5(2) of the MDA. Sections 5(1)(a) and 5(2) read as follows: 5.—(1) Except as authorised by this Act, it shall be an offence for a person, on his own behalf or on behalf of any other person, whether or not that other person is in Singapore — (a) to traffic in a controlled drug;

…

(2) For the purposes of this Act, a person commits the offence of trafficking in a controlled drug if he has in his possession that drug for the purpose of trafficking.

The term “traffic” is defined under s 2 of the MDA as follows:

“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, and “trafficking” has a corresponding meaning.

The elements of a charge under s 5(1)(a) read with s 5(2) of the MDA are as follows (per Muhammad Ridzuan bin Md Ali v Public Prosecutor and other matters [2014] 3 SLR 721 at [59]): possession of the controlled drug; knowledge of the nature of the controlled drug; and the possession of the drug was for the purpose of trafficking, which was not authorised.

As for Mubin, his charge was for abetment by instigation. Liability for abetment is provided for under s 12 of the MDA. Section 12 reads:

Abetments and attempts punishable as offences

12. Any person who abets the commission of or who attempts to commit or does any act preparatory to, or in furtherance of, the commission of any offence under this Act shall be guilty of that offence and shall be liable on conviction to the punishment provided for that offence.

The term “abets” under s 12 of the MDA is given the same meaning as that under s 107 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”): Iwuchukwu Amara Tochi and another v Public Prosecutor [2006] 2 SLR(R) 503 at [8]. Hence, it is taken to include, inter alia, abetment by instigation, which is the mode of abetment alleged by the Prosecution in this case. In order to establish the charge of abetment by instigation, the Prosecution must prove the following: the actus reus of instigation, that is, “‘active suggestion, support, stimulation or encouragement’ of the primary offence”: Chan Heng Kong and another v Public Prosecutor [2012] SGCA 18 at [34]; and the mens rea of instigation, that is, the intention on the part of the abettor for the person abetted to perform the act abetted, and knowledge of the circumstances constituting the offence: Balakrishnan S and another v Public Prosecutor [2005] 4 SLR(R) 249 at [64]; Public Prosecutor v Koh Peng Kiat [2016] 1 SLR 753 at [24].

Overview of the Prosecution and Defence cases The Prosecution’s case

The Prosecution’s case against Lokman was that he was in possession of A1E1A and A1F1A with actual knowledge of the nature of the drugs, and that he had possession of the drugs for the purpose of delivering one of the bundles to Edy and the other to Mubin at a flat in Holland Close (“the Holland Close Flat”). In the alternative, the Prosecution relied on s 17 of the MDA to establish by presumption that Lokman’s possession of the drugs was for the purpose of trafficking.⁹ The Prosecution’s case was that Lokman was acting under Mubin’s instructions in performing these various acts.¹⁰

As against Mubin, the Prosecution sought to prove that he gave instructions to Lokman to retrieve the two bundles of diamorphine from the KPT Unit in order to deliver one bundle to Edy and to return the remaining bundle to Mubin. Their case was that Mubin was running a drug trafficking business and Lokman was assisting him. They alleged that Mubin received the two bundles from Mohd Zaini bin Zainutdin (“Zaini”) and Mohd Noor bin Ismail (“Noor”) in the week prior to Lokman’s arrest and stored them at the KPT Unit. On 8 September 2015, Lokman was carrying out Mubin’s instructions when he was arrested.

Lokman’s narrative

Lokman admitted to possession of A1E1A and A1F1A with the knowledge that they contained diamorphine. Lokman maintained throughout the investigations and the trial that he worked for Mubin, doing various tasks in exchange for accommodation, drugs, and money.¹¹ His response to the charge was essentially that he was a courier.

Lokman’s account of 8 September 2015 began with a telephone call from Mubin in the afternoon, asking him to return to the Holland Close Flat. When he did so, he received instructions from Mubin to retrieve all the drugs stored at the KPT Unit and bring them back to the Holland Close Flat. In particular, Lokman was instructed to retrieve two bundles of heroin, the street name for diamorphine, and any other drugs that remained at the KPT Unit.¹² Subsequently, when he arrived at the KPT Unit in the evening, Lokman received a telephone call from Mubin, instructing him to deliver...