Public Prosecutor v Mohamed Faizel Ahmed

• Jurisdiction: Singapore
• Judge: James Elisha Lee
• Judgment Date: 03 October 2022
• Neutral Citation: [2022] SGDC 263
• Court: District Court (Singapore)
• Docket Number: District Arrest Case No 902247 of 2021 and 3 Others
• Published date: 30 November 2022
• Year: 2022
• Hearing Date: 26 April 2022,28 April 2022,30 June 2022,18 October 2022,02 November 2022
• Plaintiff Counsel: Deputy Public Prosecutor R. Arvindren (Attorney-General's Chambers)
• Defendant Counsel: Mr Deya Shankar Dubey, Mr Soh Keng Yau, Andre and Mr Jayakumar Suryanarayanan (Wong Partnership LLP)
• Subject Matter: Criminal Law,Offences,Section 8(b)(i) Misuse of Drugs Act Cap 185,Section 8(a) Misuse of Drugs Act Cap 185,Section 9 Misuse of Drugs Act Cap 185
• Citation: [2022] SGDC 263

District Judge James Elisha Lee: Introduction

The accused Mohamed Faizel Ahmed (“the Accused”), a 47-year-old Singapore Permanent Resident, claimed trial to 4 charges under the Misuse of Drugs Act (Chapter 185, Revised Edition 2008) (“the MDA”). These comprises 2 charges for consumption of a controlled drug under s 8(b)(i) of the MDA, 1 charge of possession of a controlled drug under s 8(a) of the MDA and 1 charge of possession of an utensil intended for consumption of a controlled drug under s 9 of the MDA. The charges are set out below:

DAC-902247-2021 (1st Charge)

are charged that you, on or before 10 November 2020, in Singapore, did consume a Controlled Drug listed in The First Schedule to the Misuse of Drugs Act (Chapter 185, 2008 Rev Ed), to wit, 2-[1-(4-Fluorobutyl)-1Hindazole-3-carboxamido]-3,3-dimethylbutanoic acid or its hexanoic acid isomer or any of their respective fluoro positional isomers in the butyl group, without any authorisation under the said Act or the Regulations made there under and you have thereby committed an offence under Section 8(b)(i) and punishable under Section 33(3A) of the Misuse of Drugs Act (Chapter 185, 2008 Rev Ed).

DAC-902248-2021 (2nd Charge)

are charged that you, on or before 10 November 2020, in Singapore, did consume a Controlled Drug listed in The First Schedule to the Misuse of Drugs Act (Chapter 185, 2008 Rev Ed), to wit, 2-[1-(Pent-4-en-1-yl)-1Hindazole-3-carboxamido]-3,3-dimethylbutanoic acid or its hexanoic acid isomer or any of their respective pentenyl positional isomers in the pentyl group, without any authorisation under the said Act or the Regulations made there under and you have thereby committed an offence under Section 8(b)(i) and punishable under Section 33(3A) of the Misuse of Drugs Act (Chapter 185, 2008 Rev Ed).

DAC-902249-2021 (3rd Charge)

are charged that you, on 10 November 2020, at about 10.10 p.m., at the vicinity of 30 Woodlands Ave 2, Singapore 738343, Woodlands MRT Station, did possess a Class ‘A’ Controlled Drug listed in The First Schedule to the Misuse of Drugs Act, (Chapter 185, 2008 Revised Edition), to wit, one (1) packet of fragment vegetable matter containing not less than 7.49 grams was analysed and found to contain MDMB-4en-PINACA, at the said place, without authorisation under the said Act or the Regulations made thereunder and you have thereby committed an offence under Section 8(a) and punishable under Section 33(1) of the Misuse of Drugs Act, (Chapter 185, 2008 Revised Edition).

MAC-909899-2021 (4th Charge)

are charged that you, on 10 November 2020, at about 10.10 p.m., at the vicinity of 30 Woodlands Ave 2, Singapore 738343, Woodlands MRT Station, did have in your possession, utensils intended to be used in connection with the consumption of a Class A controlled drug to wit, one (1) packet of tobacco rolling paper, without any authorization under the said Act or the Regulations made thereunder and thereby committed an offence under Section 9 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) and punishable under Section 33(1) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed).

Undisputed Facts

An agreed statement of facts (“ASOF”) was tendered under s 267(1) of the Criminal Procedure Code (Chapter 68, Revised Edition 2012) (“the CPC”). The agreed and undisputed facts are as follows.

On 10 November 2020, at about 10.10 pm, the Accused was arrested by police officers at Woodlands MRT Station at 30 Woodlands Avenue 2, Singapore 738343. At the said location, police officers searched the Accused and seized from his possession one packet of vegetable matter (“FA-A”) and one packet of tobacco rolling paper (“FA-B”). The Accused was subsequently escorted to Woodlands Police Divisional Headquarters for further investigations.

On 11 November 2020, at Woodlands Police Divisional Headquarters, the Accused provided two bottles of his urine samples which were sealed and marked in his presence. The Accused’s urine samples were sent on the same day to the Health Sciences Authority (“HSA”) for analysis.

The urine samples were analysed respectively by 2 analysts with the Analytical Toxicology Laboratory of the HSA, namely PW7 Ng Chee Ann and PW 15 Goh Mei Ling Evelyn, and were found to contain the following: 2-[1-(4-Fluorobutyl)-1H-indazole-3-carboxamido]-3,3-dimethylbutanoic acid or its hexanoic acid isomer or any of their respective fluoro positional isomers in the butyl group; and 2-[1-(Pent-4-en-1-yl)-1H-indazole-3-carboxamido]-3,3-dimethylbutanoic acid or its hexanoic acid isomer or any of their respective pentenyl positional isomers in the pentyl group.

2-[1-(4-Fluorobutyl)-1H-indazole-3-carboxamido]-3,3-dimethylbutanoic acid or its hexanoic acid isomer or any of their respective fluoro positional isomers in the butyl group and 2-[1-(Pent-4-en-1-yl)-1H-indazole-3-carboxamido]-3,3-dimethylbutanoic acid or its hexanoic acid isomer or any of their respective pentenyl positional isomers in the pentyl group are Class A controlled Drugs listed in The First Schedule to the MDA.

The Accused is not authorized under the MDA or the Regulations made thereunder to consume the said controlled drugs, or to have in his possession any exhibit which is used in connection with the smoking of a controlled drug.

Overview of The Parties’ Cases The Prosecution’s case

The Prosecution’s case in respect of the 1st and 2nd charges (“the Consumption Charges”) is based on the presumption under s 22 of the MDA. The Accused’s urine samples had tested positive for the respective controlled drugs in the Consumption Charges, and no dispute has been raised concerning the collection, chain of custody, and testing of the Accused’s urine samples and analysis of the test results. The presumption under s 22 of the MDA is thereby invoked. The Prosecution’s case is that the Accused has failed to rebut the presumption.

In respect of the 3rd charge (“the Possession Charge”), the Prosecution’s case is based on the presumption under s 18(2) of the MDA. The Accused was found in physical possession of FA-A which was subsequently analysed and found to contain the controlled drug MDMB-4en-PINACA (“PINACA”). There was no dispute or issue raised concerning the chain of custody and testing of FA-A and analysis of the test result. The Accused is thereby presumed under s 18(2) of the MDA to have known the nature of the controlled drug until the contrary is proven. The Prosecution’s case is similarly that the Accused has failed to rebut the presumption.

As for the 4th charge (hereinafter referred to as “the Utensil Charge”), the Prosecution’s position is that the circumstantial evidence as well as the unrebutted presumption of knowledge on the part of the Accused of the nature of the controlled drug in respect of the 3rd charge clearly points to the Accused intending to use FA-B to consume the illegal drug in FA-A.

The Defence’s case

The Accused’s defence in respect of the Consumption Charges is that he was not aware that he had consumed anything which contained illegal or controlled drugs. The Accused claimed that on the day of his arrest, sometime in the evening, he was at Block 834 Woodlands Street 83 (“Blk 834”) and a group of 4 individuals (“Group of 4”) had offered him hand-rolled cigarettes which he had taken some puffs from and returned the cigarettes to the group. According to the Accused, he had assumed that the hand-rolled cigarettes were made from “Butterfly” brand tobacco which he had assisted the Group of 4 to purchase earlier at a minimart at Blk 832 Woodlands. The Accused believed the controlled drug found in his urine samples to be a result of having smoked the hand-rolled cigarettes offered to him by the Group of 4.

The Accused’s defence in relation to the Possession Charge and Utensil Charge is that while he was found in physical possession of FA-A and FA-B, he was not aware that FA-A contained PINACA. The Accused claimed that FA-A and FA-B were given to him by the Group of 4 as he was leaving the void deck of Blk 834. He had no knowledge of the presence of a controlled drug in FA-A and had believed that FA-A was just normal tobacco.

Summary and Assessment of Evidence Assessment of the Evidence Adduced by the Prosecution

The Prosecution adduced evidence from 17 witnesses. They comprise the following groups: the enforcement officers involved in the initial detention and subsequent arrest of the Accused; the officers who were involved in the collection of the Accused’s urine samples, conduct of the preliminary urine test and conveyance of the accused’s urine samples to HSA for analysis; the officers involved in the custody and conveyance of the vegetable matter seized from the accused to HSA; the respective HSA analysts who analysed and interpreted the results the tests conducted at HSA on the urine samples and the vegetable matter seized from the accused; the officers, including the investigating officer, who recorded statements from the Accused.

PW1 SGT Mervin Liaw testified that at the material time, he was conducting foot patrol around Woodlands MRT Station together with 3 other officers when he saw the Accused at the bicycle bay. After observing him for about 1 minute, the team then approached the Accused. PW1 and PW8 then proceeded to have a conversation with him. According to both PW1 and PW8, the Accused’s speech was slurred. The Accused also appeared nervous to him, although PW1 conceded that in his experience as a foot patrol officer, it was not uncommon for individuals to be a bit nervous when approached by police officers. PW1 then asked to check the Accused’s bag, which the Accused agreed, and found FA-A inside. Both PW1 and PW8 gave evidence that FA-A had a strong and pungent smell. According to PW1, PW8, who was a smoker had told him that FA-A did not smell like ordinary tobacco and that it might have been spiked. PW8 also described the smell as a chemical smell...