Public Prosecutor v Mohamed Fauzy Bin Razali

• Court: District Court (Singapore)
• Judge: Chay Yuen Fatt
• Judgment Date: 21 August 2015
• Neutral Citation: [2015] SGDC 237
• Citation: [2015] SGDC 237
• Docket Number: District Arrest Case 8814/2014
• Published date: 29 August 2015
• Plaintiff Counsel: DPP Mansoor Amir
• Defendant Counsel: Mr Krishna Morthy (M/S SK Kumar Law Practice LLP)
• Hearing Date: 08 April 2015,20 April 2015,30 June 2015,11 August 2015,05 May 2015

District Judge Chay Yuen Fatt: Introduction

The accused, who was represented, claimed trial to a single charge for a repeat ‘long-term’ (“LT-2”) offence of consumption of a specified drug (monoacetylmorphine) which offence is liable for enhanced punishment under s 33A(2) of the Misuse of Drugs Act (Cap. 185)(“MDA”).

At the conclusion of the trial, the accused was convicted of the said charge and was sentenced. He is only appealing against his conviction.

The accused also pleaded guilty to two stood down charges for failing to report for urine tests in contravention of the Misuse of Drugs (Approved Institutions and Treatment and Rehabilitation) Regulations. He was sentenced to an aggregate of 7½ years’ imprisonment and 6 strokes of the cane which he is presently serving. He is not appealing against the sentence.

The Charge

The accused was convicted of the following LT-2 charge:

“You…are charged that you, on or about 24 January 2014, in Singapore, did consume a specified drug listed in the Fourth Schedule to the Misuse of Drugs Act (Chapter 185, 2008 Rev. Ed), to wit, monoacetylmorphine, without authorisation under the Misuse of Drugs Act (Chapter 185, 2008 Rev. Ed) or the regulations made thereunder, and you have thereby committed an offence under s 8(b)(ii) of the said Act,

and further,

that you, before the commission of the said offence, were on 18 September 2009 in Subordinate Court No. 4, vide DAC 42589/2009, convicted of an offence for consumption of a specified drug, to wit, morphine, under s 8(b)(ii) of the Misuse of Drugs Act (Chapter 185, 2008 Rev. Ed) and punished under s33A(1) of the said Act with 5 years 6 months’ imprisonment and 3 strokes of the cane, which conviction and punishment have not been set aside to date, and you shall now be punished under s33A(2) of the Misuse of Drugs Act (Chapter 185, 2008 Rev. Ed).”

Agreed Statement of Facts

The following facts as set out in an agreed statement of facts (“ASOF”) were agreed by the parties: 1. The accused is one Mohamed Fauzy bin Razali, a 41 year old male Singaporean (“the accused”). 2. On 24 January 2014, at or about 8.09 pm, the accused reported to the Central Narcotics Bureau (“CNB”) office at Bedok Police Station for his Routine Urine Test. After he was registered, he washed his hands as instructed by Corporal Ng Zheng Rong Waren, a CNB officer attached to Supervision “G” Division, Bedok Police Divisional Headquarters, CNB (“Corporal Ng”). 3. Thereafter, the accused, on Corporal Ng’s instruction and in Corporal Ng’s presence, picked 1 pre-packed and sealed master bottle (“the master bottle”) from a lot of not less than ten bottles and two pre-packed and sealed urine bottles from a lot of not less than twenty bottles (“the urine bottle”). 4. Corporal Ng then escorted the accused to the toilet. The accused then provided his urine specimen in a single stream into the master bottle in the presence and full view of Corporal Ng. 5. On the instruction of Corporal Ng, the accused then transferred some of his urine specimen from the master bottle into each of the two urine bottles. The remaining urine in the master bottle was then sent for an Instant Urine Test (“IUT”). The two urine bottles were temporarily sealed and were in the accused’s possession at all times. 6. The accused’s urine specimen tested positive for the presence of opiates in the IUT. 7. On the same day, i.e. 24 January 2014, at or about 9.30 pm, the accused was placed under arrest at the CNB office at Bedok Police Station on suspicion of consumption of a specified drug. An arrest report bearing Report No. G/20140124/2218 was lodged by the Arresting Officer, Mohamed Faizil bin Mohamed Farook, a CNB officer, at 9.40 pm on the same day, i.e. 24 January 2014. 8. The two urine bottles containing the accused’s urine samples were marked “C-SG-14-00075-1 MOHAMED FAUZY BIN RAZALI [NRIC NUMBER REDACTED]” (“Sample 1”) and “C-SG-14-00075-2 MOHAMED FAUZY BIN RAZALI [NRIC NUMBER REDACTED]” (“Sample 2”) respectively and sealed “CENTRAL NARCOTICS BUREAU” in the accused’s presence by Corporal Ng. 9. The accused then signed on both label seals on both the urine bottles containing his urine specimen. As instructed by Corporal Ng, the accused then deposited each of the two urine bottles containing his urine samples into two separate metal security boxes which were locked. 10. The two urine bottles were then sent to the Health Sciences Authority (“HSA”) for analysis on 27 January 2014. 11. On 7 February 2014, Chan Si Jia, an analyst with the Analytical Toxicology Laboratory of the HSA, having conduct of the analysis in relation to Sample 1, issued a certificate under s 16 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) bearing Lab No. AT-1433-00762-001-01, stating that on analysis, Sample 1 was found to contain monoacetylmorphine. 12. On 7 February 2014, Ong Han Hui Jordan, an analyst with the Analytical Toxicology Laboratory of the HSA, having conduct of the analysis in relation to Sample 2, issued a certificate under s 16 of the MDA bearing Lab No. AT-1433-00762-002-01, stating that on analysis, Sample 2 was found to contain monoacetylmorphine. 13. Monoacetylmorphine is a Specified Drug listed in the Fourth Schedule to the MDA. 14. The accused is not authorised under the MDA or the Regulations made thereunder to consume monoacetylmorphine, which is a Specified Drug listed in the Fourth Schedule to the MDA. 15. Before the commission of the above-mentioned offence, the accused was on 18 September 2009 in Subordinate Court No. 4, vide DAC-42589/2009, convicted of an offence for consumption of a specified drug, to wit, morphine, under s 8(b)(ii) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) and punished under s 33A(1) of the said Act with 5 years and 6 months’ imprisonment and 3 strokes of the cane, which conviction and punishment have not been set aside to date. The accused is therefore now liable to be punished under s 33A(2) of the MDA.

Other Documentary Exhibits

In light of the ASOF, counsel for the accused also agreed to the following documents to be admitted in evidence: The arrest report pertaining to the arrest of the accused.¹ HSA Certificate bearing lab number AT-1433-00762-001-01 prepared by Analyst Chan Si Jia dated 7 February 2014;² HSA Certificate bearing lab number AT-1433-00762-002-01 prepared by Analyst Ong Han Hui Jordan dated 7 February 2014³; and The record of the accused’s previous conviction for the predicate LT offence under s 8(b)(ii) read with s 33A(1) of the MDA.⁴

The Prosecution Witnesses

In addition to the above ASOF and documentary exhibits, the prosecution called both HSA analysts to testify as to the analysis and results of analysis of the accused’s urine specimens. The two analysts were Chan Si Jia (PW1) and Ong Han Hui Jordan (PW2). They were both cross-examined by the defence counsel.

In summary, their evidence was as follows.

The accused’s urine specimens were analysed and found to contain monoacetylmorphine (“MAM”). MAM is a specific and unique metabolite of diamorphine (or heroin to the layman). When diamorphine is consumed, it is metabolised (i.e. broken down) in the human body to MAM which is then further metabolised into morphine. MAM would generally remain in the body for up to eight hours (and detectable in the urine) after the consumption of diamorphine. On the other hand, morphine is detectable in the urine for up to three days.

Both analysts also testified that there is no known medication that would give rise to MAM in the urine. Given the fact that MAM is a metabolite which is specific only to diamorphine, therefore only the consumption of diamorphine (and not any other substance) could have resulted in the excretion of MAM in the accused’s urine specimens. The analysts concluded that the presence of MAM in the accused’s urine is a result of the consumption of diamorphine.

The defence counsel questioned the HSA analysts on whether certain drugs would give rise to the presence of MAM in the urine. The drugs mentioned were cough syrup, panadeine, famotidine, tramadol, ibuprofen and pacofen. Both HSA analysts testified that none of the mentioned drugs would give rise to the presence of MAM in the accused’s urine. Both of them confirmed that only diamorphine would give rise to the presence of MAM in the urine.

The HSA analysts also testified that when they first tested the accused’s urine specimens, they found both codeine and morphine. Like diamorphine, codeine also metabolises into morphine. In order to determine the source of the morphine, they did further tests and found MAM in the accused’s urine specimens. Therefore, the analysts were able to conclude that the accused had consumed diamorphine because MAM could not have come from any other substance.

The Defence

After his defence was called, the accused elected to take the stand to give his defence. No other witnesses were called. Counsel stated the accused’s defence as such:

“See, my client’s defence is that he has consumed some...