Public Prosecutor v Mohamed Ansari bin Mohamed Abdul Aziz and another

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 14 November 2019
• Neutral Citation: [2019] SGHC 268
• Court: High Court (Singapore)
• Hearing Date: 27 August 2019,29 August 2019,28 August 2019,14 November 2019
• Docket Number: Criminal Case No 37 of 2019
• Plaintiff Counsel: Terence Chua, Nicholas Wuan and Regina Lim (Attorney-General's Chambers)
• Defendant Counsel: Ramesh Tiwary (Ramesh Tiwary) and Chenthil Kumar Kumarasingam (Oon & Bazul LLP),Michael Chia, Hany Soh (MSC Law Corporation) and Sankar s/o Saminathan (Sterling Law Corporation)
• Subject Matter: Criminal Procedure and Sentencing,Voir dire,Procedure
• Published date: 20 November 2019

Chan Seng Onn J: Introduction

This judgment concerns the voluntariness of six statements that were the subject of a voir dire held within a joint trial involving the two accused persons – Mohamed Ansari bin Mohamed Abdul Aziz (“Ansari”), a 46-year old Singaporean, and Murugesan a/l Arumugam (“Murugesan”), a 31-year old Malaysian.

Ansari faces a total of nine charges and claims trial to one proceeded charge under s 5(l)(a) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), punishable under s 33(1) read with the Second Schedule of the MDA, pertaining to the possession of not less than 39.68g of diamorphine ("the Drugs") for the purpose of trafficking (“Ansari’s Charge”). The remaining charges have been stood down by the prosecution. Murugesan also faces one proceeded charge under s 5(l)(a) of the MDA, punishable under s 33(1) read with the Second Schedule of the MDA, pertaining to trafficking the Drugs by delivering the Drugs to Ansari.

In the present voir dire, Ansari challenges the admissibility of two contemporaneous statements, one cautioned statement and three long statements (collectively referred to as “the Statements”). Ansari’s case is that the Statements were not made voluntarily, and he had been induced by two Central Narcotics Bureau (“CNB”) officers, Staff Sergeant Muhammad Helmi bin Abdul Jalal (“SSGT Helmi”) and Station Inspector Fathli bin Mohd Yusof ("SI Fathli"), to make the Statements, in the hope that Bella Fadila (“Bella”), who was Ansari’s then-girlfriend, would be “let off”.¹

Voluntariness of the Statements The Statements

In relation to Ansari’s Charge, SSGT Helmi recorded two contemporaneous statements from Ansari, referred to collectively as the “Contemporaneous Statements”: the first contemporaneous statement recorded on 24 March 2016 at about 1.20pm under s 22 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) in a CNB operational vehicle²; and the second contemporaneous statement recorded on 24 March 2016 at about 3.32pm under s 22 of the CPC in the bedroom of the VIBES apartment that Ansari and Bella were residing in.

In relation to Ansari’s Charge, SI Fathli recorded one cautioned statement and three long statements, collectively referred to as the “Non-Contemporaneous Statements”: the cautioned statement recorded on 25 March 2016 at about 3.08am under s 23 of the CPC (“25 March 2016 Statement”); the statement recorded on 30 March 2016 at about 2.59pm under s 22 of the CPC (“30 March 2016 Statement”); the statement recorded on 31 March 2016 at about 10.36am under s 22 of the CPC (“31 March 2016 Statement”); and the statement recorded on 4 April 2016 at about 2.40pm under s 22 of the CPC (“4 April 2016 Statement”).

Ansari’s case

In relation to the Contemporaneous Statements, Ansari alleges that on 24 March 2016 in the CNB vehicle, before the Contemporaneous Statements were recorded, Ansari had begged SSGT Helmi to “let [Bella] go because she’s not involved in the case”.³ Ansari alleges that SSGT Helmi had responded, “it depends on what you say”⁴ (“SSGT Helmi’s Inducement”). SSGT Helmi’s Inducement thus induced Ansari to make the Contemporaneous Statements.

In relation to the Non-Contemporaneous Statements, Ansari alleges that on 25 March 2016 at about 3.00am, before the 25 March 2016 Statement was recorded, he was brought to Interview Room 3 of Police Cantonment Complex Lock-up, and was alone with SI Fathli in the room for a short while.⁵ Ansari testified that he had begged SI Fathli “to let Bella go, Bella my girlfriend, because she’s not involved in this”.⁶ SI Fathli had allegedly replied, “[s]o far you have been [cooperative]. So if you continue cooperating, we will let Bella go”⁷ (“SI Fathli’s Inducement”). SI Fathli’s Inducement thus induced Ansari to make the Non-Contemporaneous Statements.

The Arrest

On 24 March 2016 at about 12.20pm, Ansari entered the HDB carpark at Block 106 Lengkong Tiga in a car bearing licence plate number “SGF 6111J” (“the Car”). The Car was driven by Jufri bin Mohd Alif (“Jufri”). Bella was also in the Car. Murugesan was riding a motorcycle bearing license plate number “JQR5667” (“the Motorcycle”). As the Car and the Motorcycle moved towards the exit of the HDB carpark, CNB officers moved in and effected arrest on Ansari, Murugesan, Bella and Jufri.

The law on voluntariness of statements

The burden is on the prosecution to prove beyond reasonable doubt that the statement had been made voluntarily, and not on the defence to prove on a balance of probabilities that the confession was not made voluntarily: Koh Aik Siew v PP [1993] 1 SLR(R) 885 at [23], Chai Chien Wei Kelvin v PP [1998] 3 SLR(R) 619 (“Chai Chien Wei Kelvin”) at [53]. It is only necessary for the prosecution to remove a reasonable doubt of the existence of threat, inducement or promise held out to the accused and not every lurking shadow of influence or remnants of fear: Panya Martmontree v PP [1995] 2 SLR(R) 806 [28] and Chai Chien Wei Kelvin at [53].

Incriminating Bella in the 31 March 2016 and 4 April 2016 Statements

I first deal with the evidence that the prosecution had sought to adduce in the voir dire when they cross-examined Ansari on his answers given in the 31 March 2016 Statement and the 4 April 2016 Statement that had incriminated Bella in relation to drug-related offences. Essentially, the prosecution sought to rely on the contents (ie, specific questions and answers) of the 31 March 2016 Statement and the 4 April 2016 Statement to contradict Ansari’s case and to show that the alleged inducements, even if offered, were not operative in inducing Ansari to make these statements.

Although the court was not provided with and therefore did not have sight of the 31 March 2016 Statement and the 4 April 2016 Statement during the voir dire, the prosecution referred to and cross-examined Ansari on both statements, and Ansari admitted to inculpating Bella in both statements in relation to Bella’s involvement with the drugs found in an apartment and Bella’s knowledge of Ansari’s involvement in drug-related activities.⁸

Mr Tiwary, Ansari’s legal counsel, objected to the prosecution’s line of questioning, submitting that the statement of the accused cannot be looked into at all during a voir dire, even for the purpose of determining the voluntariness of the statement itself. Mr Tiwary submits that allowing otherwise would be dangerous and unsafe due to the porosity of s 279(5) of the CPC, which states: (5) If any evidence has been given in any ancillary hearing relating to the statement or the other evidence which has been objected to by any party to the proceedings, any such evidence which is relevant for the purposes of the main trial shall be admissible without the need to recall any of the witnesses to give evidence.

[emphasis added]

Mr Tiwary expresses concern that the porosity of s 279(5) of the CPC would allow for the potential flow of evidence from the ancillary hearing to the main trial even before the defence is called, which “puts the cart before the horse”. Looking into the statement of the accused during a voir dire could now compel the accused to give evidence in the ancillary hearing that could flow out into the main trial through s 279(5) of the CPC, even though the accused should be entitled to remain silent about such evidence at the main trial before the defence is called.⁹ Can the court look at the contents of a statement in an ancillary hearing to determine its admissibility?

As such, I will now address the anterior legal question as to whether the court at the ancillary hearing can have sight of the contents of a statement that is the subject of the voir dire in order to determine the ancillary issue of the voluntariness and hence admissibility of the statement.

From the outset, s 279(2) of the CPC provides that: “[i]n an ancillary hearing, any evidence adduced shall be limited only to the ancillary issue [emphasis added].” This means that the contents of the statement that are irrelevant to the question of voluntariness shall not be looked at in the ancillary hearing. Therefore, no porosity issue arises for the contents of the statement that are irrelevant to the admissibility of the statement, since the contents would not enter into the ancillary hearing in the first place on the basis of relevance.

However, I do accept that at times, the same content in the accused’s statement can relate simultaneously to both the question of voluntariness of the statement, which is a matter for the ancillary hearing, and the question of the commission of the offence, which is a matter for the main trial. In the interests of justice, I am of the view that the presence of s 279(5) of the CPC and its porosity cannot prevent the content of the statement relevant to an issue on voluntariness from being adduced during the ancillary hearing just because the same content is also relevant to the issue of the commission of the offence to be dealt with at the main trial. Two possible scenarios arise. If the statement is ruled to be voluntary, this part of the statement (ie, the content relevant to both voluntariness and the commission of the offence) will enter the main trial anyway. If the statement is ruled to be involuntary, this part of the statement will not enter the main trial anyway. As such, I find no legal impediment for the court to have sight of the content of the statement during the ancillary hearing to ascertain if any part of it is relevant to the issues that are to be determined at the ancillary hearing. If it is found to be relevant, questions may be asked during the voir dire in relation to the making of that part of the statement.

My real concern pertains to the evidence of the accused and other witnesses testifying at the ancillary hearing, if the evidence given by the accused or the other witnesses is simultaneously relevant to both the question of the...