Public Prosecutor v Mohamad Shafiq Bin Ahamad

• Jurisdiction: Singapore
• Judge: Salina Bte Ishak
• Judgment Date: 14 April 2015
• Neutral Citation: [2015] SGDC 81
• Court: District Court (Singapore)
• Docket Number: DAC 1106—2014, Magistrate’s Appeal No 43 of 2015/01
• Published date: 20 April 2015
• Year: 2015
• Hearing Date: 03 February 2015,17 December 2014,02 February 2015,20 October 2015,21 October 2015,18 March 2015
• Plaintiff Counsel: DPP Rachel Lee
• Defendant Counsel: Mr Peter Keith Fernando of M/s Leo Fernando
• Citation: [2015] SGDC 81

District Judge Salina Bte Ishak: The Charge

The Accused, Mr Mohamad Shafiq Bin Ahamad, a 29 year old male Singaporean, had claimed trial to a charge in DAC 1106 - 2014, that on or about 20 February 2013, at about 9.15 p.m. in Singapore, he had abetted by engaging in a conspiracy with one Mohammad Shafiq Bin Abdullah and an unknown person in Malaysia to traffic in a Class A drug listed in the First Schedule of the Misuse of Drugs Act (Cap 185, 2008 Rev. Ed) and in pursuance of that conspiracy, on or about 20 February 2013 at about 7.45 p.m. at the back lane of 290 Changi Road, Singapore, Mohammad Shafiq Bin Abdullah was transporting 5 packets containing 124.03 grams of crystalline substance that was analysed and found to contain 91.29 g of methamphetamine which were to be delivered to the Accused in exchange of cash, an offence under Section 5(1)(a) read with Section 5(2) and Section 12 of the Misuse of Drugs Act and punishable under Section 33(1) of the said Act.

Case for the Prosecution Statement of Agreed Facts

In the Statement of Agreed Facts i.e. Exhibit P1 signed by both the prosecution and the defence, it was that agreed that on 20 February 2013 at about 7.40 p.m. a group of officers from the Special Task Force of the Central Narcotics Bureau (“CNB”), acting on information received had arrested PW1, Mohammad Shafiq Bin Abdullah, along Chin Cheng Road. Upon his arrest, a search was conducted on PW1 and the following items were found and seized as exhibits: Four packets of crystalline substance which were wrapped in black packaging marked as “C1A1A”; one packet of crystalline substance marked as “C1B1”; one packet of granular powdery substance marked as “B1A1”; one packet of granular powdery substance marked as “B1B1”; one packet of granular powdery substance marked as “B1C1” and one mobile handphone subsequently marked as “MS HP1”.

In the course of investigations, PW8, Investigating Officer (“IO”) Billy Lee Jun Tian took custody of the above exhibits from PW4, Narcotics Officer Jason Tay Cher Yeen at the Police Cantonment Complex CNB office. On 21 February 2013, sometime between 12.43 a.m. and 1.23 p.m., Forensic Team Officer Munawwah Binte Hamdi, was directed by PW8 to take photographs of the vehicles bearing registration number SFT4001T and AGW1845, the drug exhibits and other case exhibits. On 22 February 2013, at about 4.42 p.m. the exhibits marked as “C1A1A”, “C1B1”, “B1A1”, “B1B1” and “B1C1” were sent by PW8 to the Illicit Drugs Laboratory, Health Sciences Authority (“HSA”) for analysis.

On 9 October 2013, Merula Mangudi issued five certificates bearing Lab. No. ID: 1332-00403-003, Lab. No. ID: 1332-00403-004, Lab. No. ID: 1332-00403-005, Lab. No. ID: 1332-00403-006 and Lab. No. ID: 1332-00403-007 pursuant to Section 16 of the Misuse of Drugs Act (“MDA”). The exhibits marked: “C1A1A” and “C1B1” contained a total of 124.03 grams of crystalline substance which was analysed and found to contain not less than 91.29 grams of methamphetamine. Methamphetamine is a Class A controlled drug listed in the First Schedule to the MDA. The exhibits “B1A1”, “B1B1” and “B1C1” contained a total of 901.5 grams of granular/powdery substance that was analysed and found to contain not less than 9.26 grams of diamorphine. Diamorphine is a Class A controlled drug listed in the First Schedule to the MDA. The four packets of crystalline substance i.e. “C1A1A” containing methamphetamine were admitted and marked in evidence as Exhibit P41 while the one packet of crystalline substance i.e. “C1B1” containing methamphetamine was admitted and marked as Exhibit P42.

Prosecution’s Case Theory

It was the prosecution’s case theory that PW1 had worked as a drug courier for an unknown person in Malaysia, whom he had referred to as “Jaga”. PW1’s drug related activities on 20 February 2013 had been based on instructions from Jaga. PW1 had proceeded to the Ayer Rajah area to collect the drugs, including Exhibits P41 and Exhibits P42. Thereafter, PW1 had proceeded to the vicinity of the back lane of 290 Changi Road to deliver drugs to a recipient who is unrelated to this case. Upon completion of that transaction, PW1 was arrested by officers from the CNB.

Based on Jaga’s instructions, PW1 had intended to deliver the Exhibits P41 and P42 in the vicinity of Kembangan. PW1 had been instructed to collect a sum of money between $8,000 to $9,000 for Exhibits P41 and P42. Upon his arrest, PW1 had provided assistance to the CNB officers. He assisted the CNB officers by providing the telephone number ‘[XXX]’ as the recipient of the Exhibits P41 and P42. PW1 further provided assistance to the CNB officers by communicating via telephone with the intended recipient.

Based on the information provided through the telephone conversation, another group of CNB officers were able to identify the recipient via the car model and vehicle registration number. Specifically, the intended recipient would be in a Toyota Wish with a vehicle registration number 4001. The Accused was arrested in Kembangan as he was identified to be the driver of the Toyota Wish bearing vehicle registration number 4001.

It was the prosecution’s case that the Accused had turned up at Kembangan with $8,250 cash in order to take delivery of the Exhibits P41 and P42 from PW1. The Accused had placed the order for the Exhibits P41 and P42 from an unknown person in Malaysia from whom the instructions to PW1 to deliver Exhibits P41 and P42 to the Accused had come from.

Key Issues in dispute

It was the prosecution’s submissions that the key issues that are in dispute are as follows: whether the Accused had participated in the conspiracy with PW1 and the unknown person in Malaysia to traffic in controlled drugs; and Whether the Accused had knowledge of the object of the conspiracy and the nature of the drugs to be trafficked.

The Law on Abetment by Conspiracy

The prosecution submitted that in Goh Kah Heng (alia Shi Ming Yi) v PP [2010] 4 SLR 258, the High Court had summarized the essential elements of a charge of abetment by conspiracy at [39-41]:

“39….The requirements for offence of abetment by conspiracy were spelt out in Lee Yuen Hong v PP [2000] 1 SLR(R) 604 at [38]: On a charge of abetment by conspiracy, the Prosecution has to establish the following elements: (1) the person abetting must engage, with one or more other persons, in a conspiracy; (2) the conspiracy must be for the doing of the thing abetted; and (3) an act or illegal omission must take place in pursuance of the conspiracy in order to the doing of that thing.

40 Proof of an agreement between parties can be inferred from the words and actions of the parties, as elaborated upon in PP v Yeo Choon Poh [1993] 3 SLR(R) 302 at [20]. I quote:

One method of proving conspiracy would be to show that the words and actions of the party indicate their concert in the pursuit of the common object or design, giving rise to the inference that their actions must be coordinated by arrangement beforehand. These actions and words do not of themselves constitute the conspiracy by rather constitute evidence of the conspiracy.

The inference of a conspiracy was clarified by Yong CJ in Er Joo Nguang v PP [2000] 1 SLR(R) 756 at [35]: So far as proof goes, conspiracy is generally a matter of inference, deduced from certain acts of the accused parties, done in pursuance of an apparent criminal purpose in common between them. Both the surrounding circumstances and the conduct of the parties before and after the alleged circumstances of the crime will be useful in drawing the inference of conspiracy…An inference of conspiracy would be justified only if it is an inexorable and irresistible, and account for all the facts of the case.”

The prosecution noted that in Lau Song Seng and others v PP [1997] 3 SLR(R) 772, the Court of Appeal made the following obiter comments at [85] and [87] on the House of Lords decision in Regina v Anderson (William Ronald)[1986] 1 AC 27: “85 …We are not minded to accept [R v El Ghazal [1986] Crim LR 52] without qualification. For one thing, it was of doubtful authority. The decision preceded by three days the decision of the House of Lords in the now leading case of conspiracy, R v Anderson [1986] AC 27. In Anderson, Lord Bridge noted that the mental element of conspiracy is only established when the accused enters into an agreement intending to play some part in the agreed course of conduct in furtherance of a criminal purpose which the agreed course of conduct is intended to achieve. In his commentary on the El Ghazal decision in the Criminal Law Review, Professor J C Smith wrote that:

It seems clear that there was no conspiracy to unlawfully possess a controlled drug when the appellant agreed to introduce T to C. When this agreement was fully carried out, no offence under s 5(2) of the Misuse of Drugs Act 1971 would have been committed…If…there was no agreement to unlawfully possess a controlled drug until T and C met and agreed to procure possession for one of them, it appears that there was no evidence that the appellant was to play any part in the agreed course of action. He had done all he was going to do before the conspiracy came into existence. He was not to procure or to receive the cocaine or even to receive any reward: and therefore, according to Anderson, he was not guilty of the conspiracy.[emphasis added].

We agreed with this analysis. Thus, if we were to accept the decision of the House of Lords as a valid statement of Singapore law, then the natural conclusion would be that there could be no conspiracy unless the Prosecution proved that Lim participated in the negotiation of price, quantity or delivery of the heroin. In other words, Lim’s liability was contingent on an agreement requiring him to play an active role in the supply of the drugs. His agreement to introduce Foo to “Ah Heng”...