Public Prosecutor v Mohamed Ali Bin Bakar

• Jurisdiction: Singapore
• Judge: Liew Thiam Leng
• Judgment Date: 30 October 2014
• Neutral Citation: [2014] SGDC 418
• Hearing Date: 27 October 2014,15 October 2014
• Citation: [2014] SGDC 418
• Published date: 17 November 2014
• Court: District Court (Singapore)
• Docket Number: DAC 6277/2014
• Defendant Counsel: DPP Mr Nicholas Wuan
• Year: 2014

District Judge Liew Thiam Leng:

The accused is facing an enhanced charge of consuming morphine. He claimed trial to the charge and at the end of the trial, he was found guilty and convicted on the charge. He was sentenced to 8 years imprisonment. The accused is appealing against the conviction and sentence. Charge

You, are charged that you, on or about the 3rd of February 2014, in Singapore, did consume a specified drug, to wit, Morphine, without authorisation under the Misuse of Drugs Act (Cap. 185, 2008 Rev. Ed.) or the regulations made thereunder and you have thereby committed an offence under section 8(b)(ii) of the said Act,

and further,

that you, before the commission of the said offence, were convicted on 16th December 1998 in Subordinate Court No. 5, vide DAC 36490/98, for an offence of consumption of a specified drug, to wit, morphine, under section 8(b)(ii) of the Misuse of Drugs Act (Cap. 185, 1998 Rev. Ed.) and punished under section 33A(1) of the said Act with 5 years and 6 months’ imprisonment with 6 strokes of the cane, which conviction and punishment have not been set aside to date, and you shall now be punished under section 33A(2) of the Misuse of Drugs Act (Cap. 185, 2008 Rev. Ed.).

Prosecution’s case

The accused was arrested on 3rd February, 2014 at about 9.20pm by CNB officers at the Bedok Police Headquarters. After his arrest, the accused gave 2 samples of his urine in 2 separate bottles and these bottles were sealed and subsequently sent to the HSA for an analysis. The results of the urine analysis by the 2 analysts, PW3 Fong Ching Yee (“Fong”) and Ng Chee Ann (“Ng”) confirmed that the accused’s 2 urine samples contain morphine. The defence did not challenge the procurement process for the urine samples, neither did they dispute the urine testing procedure at the HSA under section 31(4)(b) of the MDA. Consequently, 2 Certificates (P5 and P6) were prepared by Fong and Ng under section 16 of the MDA confirming that the accused’s 2 urine samples contain morphine. As the accused’s 2 urine samples were found to contain morphine as a result of the tests under section 31(4)(b) of the MDA, there is a presumption that the accused is presumed to have consumed morphine under section 22 of the MDA.

The accused had given a cautioned statement to the police, pleading for leniency in response to the charge which was administered to him.

Defence Submission at the end of the prosecution’s case.

The defence submitted that the analysts from the HSA were unable to say for sure as to where the morphine came from in this case as the analysts have indicated that it is possible that the presence of morphine in the accused’s urine could be due to the consumption of controlled drugs or from the consumption of medication containing codeine. The defence had submitted that the analysts Fong had stated that the traces of codeine were the lowest reading and at the borderline and as a result, morphine was detected by urine analysis but was unable to say with certainty that it was due to consumption of heroin or codeine. The defence added that likewise, the analysts Ng was uncertain if the urine analysis result was due to the consumption of heroin or codeine. The defence submitted that therefore, section 31(4)(b) of the MDA may not have been complied with and in view of the uncertainty, the presumption under section 22 of the MDA cannot be invoked. Likewise, the defence submitted that the Certificates under section 16 of the MDA cannot be relied upon.

The defence further stated that the cautioned statement by the accused should not be given due weight as the accused was not guided to write or state his defence but instead the statement contained the accused’s mitigation instead of his defence.

For the above reasons, the defence submitted that defence should not be called.

Prosecution’s submission at the end of the Prosecution’s case.

The prosecution submitted that defence should be called in this case as the prosecution has established a prima facie case which satisfy each and every element of the charge and the evidence is not inherently incredible. In support of this submission, the prosecution cited the case of Haw Tua Tau & Ors v Public Prosecutor [1981-1982] SLR(R) 133 (“Haw tua tau”) at [17] and section 230(1)(j) of the Criminal Procedure Code (“CPC”). The prosecution stated that in the present case, the conditions under section 31(4)(b) of the MDA had been complied with as both the 2 urine tests conducted by the 2 HSA analysts confirmed the presence of morphine in the accused’s urine. The 2 Laboratory Tests Certificates P5 and P6 confirmed that on analysis, the accused’s urine samples were found to contain morphine. The prosecution stated that consequently, this would trigger the presumptions under sections 22 and 16 of the MDA and the accused is presumed to have consumed morphine.

The prosecution also submitted that the defence reliance on the case of Tan Yong Beng for the proposition that the presumption cannot be relied upon as the HSA analysts could not definitely state the source of the controlled drug is untenable. First of all, the facts in Tan Yong Beng are different from the present case. In Tan Yong Beng’s case, there was a variance of more than 20% between the 2 HSA Certificates which led the court to the conclusion that something had gone wrong with the urine procurement process and that the presumption did not arise. The prosecution submitted that the issue of variance was not present in the current case and that Tan Yong Beng’s case has no relevance to the current case. Moreover, Tan Yong Beng’s case was subsequently overruled by the High Court in Zheng Jianxing v AG [2014] SGHC 120. The prosecution stated that it goes against the spirit of the legislation to import additional conditions into section 22 of the MDA. The prosecution cited the case of Public Prosecutor v Mohammad Ashik bin Aris [2011] 4 SLR 34 where Chan Seng Onn J at [235-236] commented that section 22 of the MDA was clearly intended as a provision to facilitate the prosecution of the offence of drug...