Public Prosecutor v Mohamed Emran Bin Mohamed Ali and Another
| Jurisdiction | Singapore |
| Judge | Shaiffudin Bin Saruwan |
| Judgment Date | 07 September 2007 |
| Neutral Citation | [2007] SGDC 256 |
| Court | District Court (Singapore) |
| Published date | 06 November 2007 |
| Year | 2007 |
| Plaintiff Counsel | APP Robert Tan |
| Defendant Counsel | S K Kumar,Dilip Kumar |
| Citation | [2007] SGDC 256 |
| 7 September 07 |
|
District Judge Shaiffudin Saruwan
Background
Accused Mohamed Emran Bin Mohamed Ali
The accused Mohamed Emran Bin Mohamed Ali (Emran) claimed trial to one charge in DAC 52656/06 of selling two Subutex tablets for the price of $300/- to an undercover CNB officer on 22 Nov 06 at about 5.10 pm at the void deck of Blk 251 Tampines Street 21, which is an offence under s.5(1)(a) punishable under s.33 of the Misuse of Drugs Act, Cap 185. At the end of the trial, I convicted him on the said charge.
2. Subsequent to his conviction on the trafficking charge, Emran pleaded guilty to one other charge in DAC 205/07 of having in his possession utensils ie, five syringes and two spoons, for the purpose of consuming controlled drugs namely, midazolam, buprenorphine and diamorphine. This is an offence under s.9 and punishable under s.33 of the Misuse of Drugs Act, Cap 185 and it was committed on 22 Nov 06 at about 6.00 pm at Blk 120 Bedok Reservoir Road #04-176.
3. Emran was sentenced to 5 years imprisonment and 5 strokes of the cane for the trafficking charge (DAC 52656/06) and 4 months imprisonment for the possession of utensils charge (DAC 205/07). The two sentences of imprisonment were ordered to run concurrently.
4. Emran has now appealed against the conviction in respect of the trafficking charge (DAC 52656/06) and against the sentence in respect of the possession of utensils charge (DAC 205/07).
Accused Mohamad Hisham Bin Abdul Halim
5. The accused Mohamad Hisham Bin Abdul Halim (Hisham) claimed trial to one charge in DAC 52645/06 of giving two Subutex tablets to one Haslindah Binte Hassan on 22 Nov 06 at about 5.00 pm at Blk 251 Tampines Street 21 #03-450, which is an offence under s.5(1)(a) punishable under s.33 of the Misuse of Drugs Act, Cap 185. At the end of the trial, I convicted him on the said charge.
6. Subsequent to this conviction, Hisham pleaded guilty to two charges of consumption of controlled drugs, namely methamphetamine (DAC 3802/07) and buprenorphine (DAC 3803/07). Both offences under s.8(b)(ii) punishable under s.33 of the Misuse of Drugs Act, Cap 185 have been committed on or about 16 Nov 06.
7. Hisham was sentenced to 5 years imprisonment and 5 strokes of the cane for the trafficking charge (DAC 52645/06) and 12 months imprisonment for each of the two consumption charges (DAC 3802-3/07). The sentence of imprisonment in the trafficking charge in DAC 52645/06 and the sentence of imprisonment in the consumption charge in DAC 3802/07 were ordered to run consecutively.
8. Hisham has now appealed only against the conviction in respect of the trafficking charge in DAC 52645/06.
Preliminary Objection
9. At the commencement of the proceeding, counsel for Emran Mr S K Kumar raised a preliminary objection. He submitted that his client’s defence is one of entrapment in that a CNB informer had incited and instigated his client to procure the drugs for him. The legal position in Singapore on the issue of entrapment as a defence is that our law does not recognise a substantive defence of entrapment. This position has been reiterated by the Court of Appeal in Amran bin Eusuff v PP
Sang and the line of Singapore cases following Sang (e.g. PP v Rozman bin Jusoh and Razali bin Mat Zin
10. In fact, the Court of Appeal in Amran bin Eusuff also made the observation that the fact that the accused person had been induced to act by a law enforcement officer could not exonerate him from his guilt. Therefore to all intents and purposes, Emran’s defence of entrapment is a non-starter.
11. Mr S K Kumar however argued that the defence of entrapment is embodied in Article 9(1) of the Constitution. Therefore, a question arises as to the interpretation or effect of Article 9(1). And pursuant to s.56A of the Subordinate Courts Act (Cap 321), the court has the discretion, and it should in this case, stay the criminal proceedings and refer the constitutional question to the High Court for determination. Mr S K Kumar cited two cases involving disciplinary inquiries against lawyers where the Law Society Disciplinary Committee admitted evidence obtained through entrapment or illegal means to show that his application is not frivolous. These cases are (i) Wong Keng Leong Rayney v. Law Society of Singapore
12. s.56A of the Subordinate Courts Act (Cap 321) provides:
“Where in any proceedings in a subordinate court a question arises as to the interpretation or effect of any provision of the Constitution, the court hearing the proceedings may stay the proceedings on such terms as may be just to await the decision of the question on the reference to the High Court.”
13. For this court to consider staying proceeding, a condition precedent must be satisfied which is that there must be “… a question that arises as to the interpretation or effect of any provision of the Constitution…”. In this regard I would respectfully disagree with Mr S K Kumar’s contention that such a question arose. The three cases cited by him also do not assist him. Just because the Court of Appeal has reserved judgment on the question of entrapment does not mean that there is a constitutional question. In this respect I take guidance in the observations of the learned Justice V K Rajah in Wong Keng Leong Rayney. In that case, the applicant Wong Keng Leong Rayney, had brought an application for judicial review of, inter alia, the decision of the Disciplinary Committee to admit evidence procured by illegal means. Justice Rajah gave a succinct summary of the local jurisprudence on the admissibility of illegally obtained evidence. He then went on to make the observation that the issue of admission of evidence obtained by means of entrapment raises a clean question of law and does not turn on any hefty constitutional implication. I would agree with this observation. I therefore dismissed Mr S K Kumar’s preliminary objection and ordered that the trial against both accused persons proceed.
The Case For The Prosecution
14. The prosecution applied for a joint-trial of the two charges in DAC 52656/06 against Emran and DAC 52645/06 against Hisham. Both counsels did not object. The prosecution called a total of 6 witnesses.
The Case against Emran
15. The case against Emran is a straightforward one. On 22 Nov 06 at about 5.10 pm at the void deck of Blk 251 Tampines Street 21, Emran was caught red-handed selling 2 Subutex tablets to Alam Shah (PW2). Alam Shah was the undercover CNB officer who had been instructed to pose as a buyer named “Ijat”. Alam Shah had given Emran $300/- in marked notes as payment for the 2 tablets. The tablets were recovered from Alam Shah and the marked notes were recovered from the left front pocket of Emran’s trousers.
16. There is no dispute that the 2 tablets that Emran passed to Alam Shah were Subutex tablets. The HSA report (Exhibit P6) on the analysis of the two tablets by Scientific Officer Mercula Mangudi confirmed that the tablets contained buprenorphine, which is a Class A drug under the Second Schedule of the Misuse of Drugs Act. Buprenorphine is the substance found in the drug Subutex.
The Case against Hisham
17. The prosecution’s case against Hisham is based principally on the testimony of Haslindah Binte Hassan (PW1). Haslindah had initially been charged together with both Emran and Hisham for the offence of trafficking in the same 2 Subutex tablets. However, on the first day of trial, the trafficking charge was reduced to one of possession. She pleaded guilty to the amended possession charge and one other consumption charge for consuming buprenorphine in Court No. 4 and was sentenced that same morning.
18. The prosecution’s evidence is that on the morning of 22 Nov 06, Emran had called Haslindah and asked her if she had Subutex for his friend. She told him to come to her flat. Emran arrived at her flat sometime in the late afternoon. At the time, Hisham was sleeping in one of the bedrooms. Emran again asked Haslindah about the Subutex and he requested her to ask Hisham for the Subutex. Haslindah woke Hisham up and conveyed Emran’s request to him. Hisham said that he only had Subutex for his own consumption and that he was not in the business of selling Subutex. However he relented because Emran had pleaded for his help and because he pitied Emran’s pregnant fiancee. As Hisham was not very close to Emran, he passed the 2 Subutex tablets to Haslindah who in turn passed them to Emran. According to Haslindah, there was no payment for the 2 tablets. She said that Hisham had “lend” the 2 Subutex tablets to Emran.
Close Of The Prosecution’s Case
19. At the close of the case for the...
To continue reading
Request your trial