Public Prosecutor v Manogaran s/o R Ramu

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 21 October 1996
• Neutral Citation: [1996] SGCA 64
• Date: 21 October 1996
• Subject Matter: Whether overruling to have prospective or retrospective effect,s 2 Misuse of Drugs Act (Cap 185),Overruling previous decision of Court of Appeal,Controlled drugs,Misuse of Drugs Act,Criminal Procedure and Sentencing,Statutory,Words and Phrases,Whether mixture of two or more types of vegetable matter of cannabis and non-cannabis origin required,Principle of nullum crimen nulla poena sine lege -Whether courts prohibited from retrospective overruling,art 11 Constitution of the Republic of Singapore,Fundamental liberties,Meaning,Cannabis mixture,Criminal Law,Offences,Protection against retrospective criminal laws,Misuse of Drugs Act(Cap 185),'Cannabis mixture',Constitutional Law,Appeal
• Docket Number: Criminal Appeal No 27 of 1996
• Published date: 19 September 2003
• Defendant Counsel: Surian Sidambaram, Goh Lam Chuan and Ranjit Singh (KS Chia Gurdeep & Param)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Chan Seng Onn, Sunari bin Kateni and Thomas Koshy (deputy public prosecutor)

Cur Adv Vult

This is the Public Prosecutor`s appeal against a decision of the High Court, acquitting the respondent on a charge of having 3,488.91g of cannabis mixture in his possession for the purpose of trafficking. This order was made at the close of the prosecution case.

The `cannabis mixture` was recovered from the rubbish chute at the foot of Block 79 Indus Road on 16 April 1996. The prosecution had been informed by one Amir bin Abdullah that he would be purchasing ganja (cannabis) from the respondent in the vicinity of Block 79 Indus Road. The Central Narcotics Bureau (CNB) subsequently managed to trace the respondent`s residential address to Block 79 Indus Road #02-479 (the flat). The CNB then organised a raid on the flat.

The evidence of one Sgt Leong Wai Wah, a member of the CNB raiding party, was that he saw the respondent and one Ramalingam Rajasegar throw something into the rubbish chute of the flat when the CNB officers were outside the flat waiting to gain entry. Narcotics Officer Kharudin bin Sukaimi, who was stationed at the ground floor, somewhere behind the kitchen window of the flat, also testified that he saw the respondent throwing a black object into the rubbish chute. He immediately checked the rubbish container and noticed a black bag lying on top of other matter. He also noticed that there were several other bags under the black bag.

Following that, the respondent was arrested. The rubbish container was immediately checked and a total of six bags, including the black bag, was retrieved by the CNB. Three of these six bags contained substances believed to be cannabis. In particular, from the black bag, 2,825g of highly fragmented greenish vegetable matter was recovered. The total weight of the substances believed to be cannabis which were recovered was 3,488.91g.

During the trial, the prosecution called Dr Jyothi Mary Ipe (Dr Ipe) of the Department of Scientific Services (DSS) to testify on the scientific analysis of the seized substances. From her analysis, she had determined that they were `fragmented vegetable matter which was ... found to contain tetrahydrocannabinol and cannabinol`. She concluded that `[t]he vegetable matter was therefore cannabis mixture as defined in s 2 of the Misuse of Drugs Act (Cap 185)(MDA)`.

This appeal is primarily concerned with one question: what constitutes `cannabis mixture`? The trial judge held that he was bound by the recent ruling of the Court of Appeal in Abdul Raman bin Yusof v PP [1996] 3 SLR 15 on this question. Consequently, the judge accepted the defence submission that the prosecution had failed to establish an essential element of the charge, in that the vegetable matter in question was not `cannabis mixture` according to the definition as construed in Abdul Raman `s case.

Abdul Raman `s case

In Abdul Raman `s case, the appellant was charged with trafficking in 852.35g of cannabis and 119.38g of cannabis mixture. Dr Lee Tong Kooi (Dr Lee) of the DSS provided the scientific evidence for the prosecution. Dr Lee said that he had to analyse a block of compressed greenish vegetable matter which had been seized from the possession of the accused. He had to `prise open` the compressed matter into `several thin slabs of compressed vegetable matter`. He managed to separate the vegetable matter into two groups. One comprised `intact branches` including stems and leaves, and the other comprised `dry and brittle` broken pieces which he classified as `fragmented vegetable matter`. There was a very small quantity of `extraneous matter` which he could not classify as either `intact branches` or `fragmented vegetable matter`.

Dr Lee certified that the intact branches weighed 852.35g, which he classified as `cannabis`, while the fragmented portion weighed 119.38g of `cannabis mixture`. He explained that the fragmented portion did not conclusively satisfy him from macroscopic and microscopic examinations that they exhibited the characteristic features of cannabis, although he detected the presence of tetrahydrocannabinol and cannabinol on chemical analysis. He testified that all three tests - macroscopic and microscopic examination and chemical analysis - had to be satisfied before the DSS would certify the plant material to be cannabis. As the fragmented portion satisfied only the chemical test, he certified it to be cannabis mixture.

At the close of the prosecution case, defence counsel submitted that it was not permissible in law to separate the two groups of vegetable matter to make two offences out of what was in effect one block of vegetable matter. It was argued that the quantities of `cannabis` and `cannabis mixture` should be amalgamated into one, and considered as a whole as 982.38g of `cannabis mixture`. On account of this weight falling below 1000g, a charge of trafficking in cannabis mixture would not attract the death penalty upon conviction. The trial judge rejected this submission. Instead, the judge amended the charge of trafficking in cannabis to specify that only 590.23g were involved, as it was only this quantity that satisfied all the requisite three tests to enable classification as `cannabis`. At the conclusion of the trial, both accused persons were convicted on this charge and sentenced with the mandatory death penalty.

Counsel for the defence repeated the submission as to amalgamation of `cannabis mixture` before the Court of Appeal. In the opinion of the court, the primary question in the appeal was whether the compressed block of greenish vegetable matter ought to have been classified as cannabis mixture having regard to Dr Lee`s certification in which case the proper charge against both appellants would have been trafficking in 982.38g of cannabis mixture. This was a mixed question of law and fact. The court went on to examine Parliament`s rationale for introducing trafficking in cannabis mixture as an offence under the MDA. Reference was made to the following statements of the Minister for Law at the second reading of the bill which introduced these amendments:

Next, cannabis mixture. The Central Narcotics Bureau has detected some cases in which cannabis was trafficked in mixed form, ie the plant is broken up and mixed with other vegetable matter such as tobacco. Currently, this does not attract the death penalty.

To deter traffickers from trafficking in large amounts of cannabis in this form, a new capital offence will be created for this type of drug. As the amount of cannabis in such a mixture does not usually fall below 50%, it is proposed that for the purpose of capital offences, trafficking in a cannabis mixture should be in amounts of more than 1,000g (as compared to more than 500g in the case of cannabis alone) ...

The court observed that, from the evidence, the question of a `mixture` did not arise. It is necessary to refer to the court`s reasoning in its entirety (at pp 25-26):

It is clear to us that what Parliament was seeking to deter was the camouflaging of cannabis by mixing the cannabis in broken form with another vegetable matter such as tobacco. This is the example the minister gave. `Mixing` as used by the minister in his speech in Parliament and by dictionary meaning involves two separate substances; in the instant case two separate vegetable matter. Indeed the dictionary meaning of `mixture` referred to us by Mr Ismail Hamid was `the mechanical mixing of two substances involving no change in their character.` Hence, the crucial words in the definition of cannabis mixture are: `any mixture of vegetable matter` and this can only mean two or more separate vegetable matters. This then leads us to the evidence, to assess the factual aspect of the mixed question of law and fact.

The evidence of Dr Lee does not show that the compressed greenish vegetable matter he analysed to be a mixture of two separate vegetable matter. It does not even suggest it. His evidence properly understood was that since the greenish vegetable matter he received for analysis was in a compressed form, he had first to `prise open` the compressed matter into several thin slabs of compressed vegetable matter. He did this by using a screw driver. Having done this he then separated the `thin slabs of compressed vegetable matter` into individual branches with his fingers. Some separated into whole branches with stems and leaves. These he classified as `intact branches` but some, because the vegetable matter was `dry and brittle`, broke into `small pieces`. These he classified as `fragmented vegetable matter`. It is clear from this evidence that the block of compressed greenish vegetable matter was composed of one and only one vegetable matter and no more. As a matter of fact the question of `mixture` or `mixing` does not arise.

It will be remembered that Dr Lee said in his evidence that plant material satisfying the macroscopic and microscopic features of cannabis cannot unequivocally be considered to be cannabis, unless the presence of tetrahydrocannabinol and cannabinol were detected in them by chemical analysis, notwithstanding that the definition of `cannabis` in the Act makes no reference to the presence of these alkaloids, whereas for cannabis mixture, the Act requires the presence of these two alkaloids. In this connection what the Minister said in Parliament in moving the amendment bill referred to is instructive. He said:

`Next cannabis. Cannabis is currently defined under the Act to mean "any part of any plant of the genus Cannabis from which the resin has not been extracted, by whatever name it may be designated".

In practice, the DSS relies on three types of tests to prove that the substance seized is cannabis as defined. First, there is a visual examination to establish the physical appearance and characteristic odour of cannabis. Next, a microscopic examination is carried out to detect the presence of resin, cystolithic trichomes and non-cystolithic trichomes which are unique to cannabis....