Public Prosecutor v Mohammad Ashik bin Aris

• Court: High Court (Singapore)
• Judge: Chan Seng Onn J
• Judgment Date: 03 May 2011
• Neutral Citation: [2011] SGHC 111
• Citation: [2011] SGHC 111
• Docket Number: Criminal Case No. 25 of 2010
• Hearing Date: 04 October 2010,16 February 2011,02 March 2011,04 March 2011,02 November 2010,11 October 2010,15 February 2011,25 October 2010,08 October 2010,25 April 2011,27 October 2010,14 February 2011,01 November 2010,04 November 2010,18 February 2011,01 March 2011,28 February 2011,23 February 2011,06 October 2010,21 February 2011,11 February 2011,17 February 2011,22 October 2010,03 November 2010,07 October 2010,20 October 2010,03 March 2011,26 October 2010,22 February 2011
• Plaintiff Counsel: Mr Anandan Bala, Ms Stella Tan & Ms Peggy Pao (Deputy Public Prosecutors)
• Defendant Counsel: Mr SK Kumar and Mr Bryan Campos (SK Kumar & Associates)
• Subject Matter: Criminal law,Statutory offences,Misuse of Drugs Act
• Published date: 27 May 2011

Chan Seng Onn J: The brief facts

Mohammad Ashik bin Aris (“the accused”) is charged with one count of consumption of Methamphetamine, an offence under s 8(b)(ii) of the Misuse of Drugs Act (“MDA”) and punishable under s 33(1) of the MDA.

At about 10.40am on 22 January 2010, the accused was arrested by a party of Narcotics Officers from the Central Narcotics Bureau (“CNB”) at Kim Tian Hotel. The accused was found in room 202 with an improvised pipe-like instrument (“the pipe”) and 18 packets of crystalline substance (“18 packets”). He was arrested and taken to the Bedok Police Headquarters where three specimens of urine were taken from him. One was subsequently tested to be positive for Amphetamines under an Instant Urine Test conducted at the police station. The remaining two specimens were delivered in a locked metal security box to the Health Sciences Authority (“HSA”) on 25 January 2010. Subsequently, HSA issued two certificates on 28 January 2010, certifying that both urine specimens tested positive for Methamphetamine. On 3 February 2010, the pipe and the substance in the 18 packets were sent to HSA for testing. On 15 April 2010, HSA issued two further certificates certifying that the inside of the pipe was stained with Methamphetamine, and that the crystalline substance in the 18 packets contained Methamphetamine.

At trial, the Prosecution called the director in charge of the laboratory at HSA and all those HSA officers involved in the testing as witnesses to give detailed evidence on the testing methodology, the procedures adopted for the testing of the substances and materials in this case, and their analyses and findings thereto. An expert witness was called to give evidence on the common international practice and to comment on the methods and procedures used by HSA. CNB officers involved in the arrest of the accused, the seizure of evidence from the accused’s room, the recording of the accused’s statements and the collection of urine specimens from the accused were also called to testify.

The Prosecution further adduced three statements made by the accused (“the accused’s statements”) where he admitted that he had the intention of consuming “Ice” and pursuant to that intention, did in fact smoke some substance using the pipe. The first statement was an oral contemporaneous statement made on 22 January 2010 at about 11.00am; the second was a statement made pursuant to s 121 of the Criminal Procedure Code on 22 January at 6.00pm; and the third was a cautioned statement made pursuant to s 122(6) of the Criminal Procedure Code on 22 January 2010 at 9.06pm.

As the Defence did not take the position that the accused had no case to answer, his defence was called. However, the accused chose to remain silent. The Defence called one expert witness to testify on the accused’s behalf. The section 8 MDA offence

Section 8 of the MDA reads:

Possession and consumption of controlled drugs

8. Except as authorised by this Act, it shall be an offence for a person to —

(a) have in his possession a controlled drug; or

(b) smoke, administer to himself or otherwise consume — (i) a controlled drug, other than a specified drug; or (ii) a specified drug.

Pursuant to s 8(b)(ii), the accused is charged with consumption of the specified controlled drug, “Methamphetamine”. To secure a conviction, the Prosecution must prove beyond reasonable doubt that the accused intended to and did, in fact, consume Methamphetamine. Since the Defence conceded that there was the relevant intention and that the accused had in fact smoked some substance via an improvised pipe (as was admitted by the accused in his voluntary statements), the sole issue before me is whether it was Methamphetamine (and not something else) that the accused had smoked or consumed.

In this regard, I will now focus on three main ways by which the offence of consumption of Methamphetamine may be proven: Proof by relying solely on the accused’s statements and other circumstantial evidence; Proof by relying on the evidence as in (a), the HSA certificates for the 18 packets, the pipe stains and the urine tests and the presumption in s 16 of the MDA; and Proof by relying principally on the two HSA certificates for the urine tests and the presumptions in both ss 16 and 22 of the MDA.

Proof by relying solely on the accused’s statements and other circumstantial evidence Mens rea

The accused admitted in his statements that at about 12.30am on 22 January 2010, he bought from his usual drug supplier, one “Kopi Kia”, 2.4 grams of what he thought to be “Ice”¹. According to Assistant Superintendent of Police, Stanley Seah, and Investigation Officer, Staff Sergeant Nur, both of whom have served in CNB for many years, “Ice” is the well known street name amongst drug abusers for the controlled drug Methamphetamine. The Defence does not dispute this. Similarly, Analyst Stephanie Lim Hui Jia (“SL”) from the Illicit Drugs laboratory of HSA also testified that “Ice” is the exclusive street name for Methamphetamine. The accused recalled in his statements that he brought the “Ice” back to his hotel room and repacked it into 24 packets each of 0.1 grams with the help of a digital weighing scale. In between 12.30am and his arrest at about 10.40am, he consumed 6 of these packets using the pipe that had been seized from his room, leaving a remainder of 18 packets. It was further recorded in his statement that the accused identified the crystalline substance in the 18 packets as “Ice”. On his own admission, the accused clearly had the intention to consume Methamphetamine at the time he was using the pipe to smoke the “Ice” taken from the 6 packets.

Actus reus

The dispute in this case centres on the actus reus of consumption. More specifically, since it was not disputed that the accused had smoked something, the question was what he had in fact consumed. The Defence contended that though the accused believed he was consuming “Ice” or Methamphetamine, it was not proven that the substance he had been smoking was in fact Methamphetamine. In other words, the accused could have been mistaken or tricked as to the nature of the substance he had smoked. An analysis of the circumstantial evidence leads me inexorably to reject the Defence’s contention.

The accused admitted in his statements that he was a heavy “Ice” smoker, smoking 5 to 6 packets of “Ice” each day. He admitted that he had, on 5 to 6 previous occasions, bought “Ice” from “Kopi Kia” and repacked it into smaller packets before selling them to his colleagues at the workplace, who imbibed the drug to stay alert while working tedious hours as cleaners. The accused said in his statements, “I did sell to them ‘Ice’ as they need the energy for them to stay awake as smoking ‘Ice’ works for me to stay awake ...”. At a price of $50 for each 0.1 grams packet, the accused made a tidy profit each time.

Certain inferences may already be drawn from the accused’s admissions not relating to the events of 22 January 2010 as recounted above at [11]. First, from the understanding that the accused was selling a substance known as “Ice” to his buyers, the high price charged for each packet containing merely 0.1 grams of that substance and the fact that the buyers were willing to pay those prices, it may be inferred that the substance sold each time was very likely an illicit drug. Second, from his heavy abuse of the drug and his sell-on trade, it is also likely that the “Ice” the accused was consuming and selling was in fact Methamphetamine which provided him and his buyers with the energy to stay awake. One drug abuser might be fooled, but it is very unlikely that the accused and his buyers were all duped as to the true nature of the substance they were abusing. It should be emphasised that the accused did not even suggest in his statements what other substance the so-called “Ice” could have been, if not Methamphetamine. Given the opportunity to testify in court, the accused chose to remain silent. From his refusal to give evidence, I am entitled to draw the adverse inference that the so-called “Ice” he sold prior to his arrest on 22 January 2010 must have been Methamphetamine. I regard this as an inference properly drawn in the light of what the accused had voluntarily stated in his statements.

Next, I refer specifically to the events of 22 January 2010 extracted from the accused’s statements as described above at [9]. According to the accused, he bought “Ice” from “Kopi Kia” as he usually did and smoked 6 out of the 24 repacked packets of “Ice”. The strength of his addiction and the fact that he habitually bought “Ice” from “Kopi Kia” meant it was highly probable that he would have noticed any deviations in the appearance or effects of the “Ice” bought and smoked on 22 January 2010. However, he did not mention in any of his statements that the “Ice” he smoked that morning was any less potent, or that the effects of smoking the “Ice” felt different from normal, or that he had smoked a different substance from that he usually smoked. Indeed, it was his belief as recorded in both his long statement and cautioned statement that he had smoked “Ice” on the morning of his arrest. The necessary implication of his belief is that the substance smoked on 22 January 2010 and on previous occasions were the same substances. Since it is highly likely that the “Ice” smoked on previous occasions was indeed Methamphetamine as I found in the paragraph above, it follows that the “Ice” smoked on 22 January 2010 was also Methamphetamine and not some other type of illicit drug. As the accused refused to testify, I am further drawing an adverse inference that the so called “Ice” from the 6 packets that he smoked on 22 January 2010 was in fact Methamphetamine. It is an inference that I can properly draw in the light of what the accused had disclosed in his statements.

On the totality of the evidence from...