Public Prosecutor v Mohammed Nasir Bin Awi

• Jurisdiction: Singapore
• Judge: Janet Wang Lan Jee
• Judgment Date: 01 November 2022
• Neutral Citation: [2022] SGDC 256
• Court: District Court (Singapore)
• Docket Number: DAC-909858-2021
• Published date: 09 November 2022
• Year: 2022
• Hearing Date: 22 August 2022,23 August 2022,31 October 2022
• Plaintiff Counsel: Janice See (Attorney-General's Chambers)
• Defendant Counsel: Sunil Sudheesan and Joyce Khoo (Law Society Pro Bono Services, CLAS)
• Subject Matter: Criminal Law,Statutory Offence,Misuse of Drugs Act
• Citation: [2022] SGDC 256

District Judge Janet Wang Lan Jee: Introduction

The accused, Mohammed Nasir Bin Awi, male, aged 50 years, claimed trial to a charge under section 8(b) of the Misuse of Drugs Act (Chapter 185, 2008 Rev Ed) for an offence of drug consumption involving a specified drug, methamphetamine. At the conclusion of the trial, I rejected the accused’s defence and convicted him on the charge. I had provided the parties with my brief reasons for the conviction and indicated that full grounds would be furnished.

I now set out my full grounds for the conviction. At the time of writing, no appeal was filed by the accused against my order of conviction. The accused is presently in remand.

The Charge

The charge was as follows:

DAC-909858-2021

You are charged that you, on or before 22 April 2021, 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, Methamphetamine, without any authorisation under the said Act or the Regulations made there under and you have thereby committed an offence under Section 8(b)(ii) of the Misuse of Drugs Act (Chapter 185, 2008 Rev Ed).

And further that you had been convicted of consumption of Cannabis, a Controlled Drug, under Section 8(b) (i) of the Misuse of Drugs Act (Chapter 185, 2001 Rev Ed), on the 14 October 2003 in District Court 26 (DAC/45835/2003), to which you were sentenced to 1 year imprisonment, which is deemed to be a previous conviction by virtue of Section 33A(5)(a)(i) of the Misuse of Drugs Act (Chapter 185, 2008 Rev Ed) and which admission and conviction have not been set aside,

And further that you, before the commission of the said offence, had been admitted to an approved institution, namely, Drug Rehabilitation Centre, Changi Prison Complex on the 7 October 2019, pursuant to an order made by the Director of the Central Narcotics Bureau in Singapore under Section 34(2)(b) of the Misuse of Drugs Act (Chapter 185, 2008 Rev Ed), for consumption of Methamphetamine, a Specified Drug, under Section 8(b)(ii) of the Misuse of Drugs Act (Chapter 185, 2008 Rev Ed), and which admission have not been set aside to date and you are thereby liable to be punished under Section 33A(1) of the Misuse of Drugs Act (Chapter 185, 2008 Rev Ed).

Agreed Facts ¹

The accused, a drug supervisee, provided a sample of his urine during the routine urine test at Bedok Police Division Headquarters on 22 April 2021. The urine test result was positive for amphetamine.² Upon further analysis by the Health Sciences Authority (‘HSA’), the accused’s urine sample was found to contain methamphetamine, a specific drug as scheduled in the Misuse of Drugs Act (Cap 185, Rev Ed 2008).³ The integrity of the processes involving the procurement, chain of custody and analysis of the accused’s urine sample was not challenged. The results of the HSA analysis were not disputed.

The Prosecution’s Case

The case for the prosecution hinged primarily on the statutory presumption under section 22 of the Misuse of Drugs Act.

Statutory presumption relating to urine test

The operative presumption under section 22 of the Misuse of Drugs Act provides as follows: 22 If any controlled drug is found in the urine of a person as a result of both urine tests conducted under section 31(4)(b), he or she is presumed, until the contrary is proved, to have consumed that controlled drug in contravention of section 8(b). The positive result from the accused’s urine tests triggered the presumption under section 22 of the Misuse of Drugs Act. By the operation of the statutory presumption, the actus reus of consumption and the mens rea required for the offence were triggered, as held in Vadugaiah Mahendran v PP [1995] 3 SLR(R) 719. The accused was presumed to have consumed methamphetamine under section 22 of the Misuse of Drugs Act. Accordingly, the prosecution’s case had been made out. The burden of rebutting the presumption fell on the accused to prove, on a balance of probabilities that he had not knowingly consumed the controlled drug.

The prosecution called one witness, namely, the investigation officer, SSSgt Muhammad Ihsan Abdul Rahim (PW1).

Evidence of PW1 SSSgt Muhammad Ihsan Abdul Rahim

PW1 was the investigation officer assigned to the case involving the accused.⁴ In the course of the investigations, PW1 recorded a statement from the accused, namely, Exhibit P7. PW1 testified that CNB would not have been able to pursue further investigations regarding the allegation of consumption of ‘G water’ in the accused’s letter of representation of 1 December 2021 (Exhibit D1), due to the absence of specific leads such as the particulars of the person who had purportedly given the accused the G water.⁵ PW1 further testified that the accused was blocked by the said person on the application, ‘Grindr’.⁶ PW1 added that no further investigation was conducted pursuant to the letter of representation (Exhibit D1) as CNB was not in possession of the accused’s mobile phone.⁷

Prosecution’s Submissions

The prosecution submitted that the accused failed to rebut the statutory presumption, as the defence involving the consumption of ‘G water’ was a fabricated afterthought. According to the prosecution, the accused failed to inform the authorities of the circumstances involving his consumption of ‘G water’ at the outset of the investigations, despite being given three opportunities to do so during the recording of his statements by the CNB officers.⁸ The prosecution further submitted that the accused’s defence was bare and inconsistent, owing to his vague description of the unknown person who he allegedly met on ‘Grindr’ and gave him the ‘G water’, as well as his failure to call the alleged giver as a witness for his defence.⁹

The Case for the Defence Accused’s evidence

It was the defence of the accused that he did not consume any methamphetamine. He did not know why his urine was tested positive for methamphetamine on 22 April 2021 at Bedok Police Division Headquarters.

In testimony, the accused stated that three days prior to his urine test, he met an unknown person on ‘Grindr’ application at his workplace, where they engaged in sexual activities.¹⁰ He was given ‘G water’ by the said person and was told that it could enhance sexuality.¹¹ The accused consumed the ‘G water’. It was his position that he did not know what the ‘G water’ was and had not consumed it before that occasion. The accused maintained that he did not know that the ‘G water’ he consumed contained methamphetamine. It was also his evidence that he was unable to contact the alleged giver of the ‘G water’ as the latter had blocked him on the application and his profile could no longer be viewed.¹² The accused testified that he did not know the name, handphone number and personal details of the alleged giver. ¹³

Defence Submissions

It was the defence submission that the accused had maintained a consistent account of how he could have unknowingly consumed methamphetamine in his letter of representation of 1 December 2021 (Exhibit D1) and remained unshaken during cross-examination.¹⁴

The defence further contended that PW1 made no efforts to trace the sexual partner of the accused and did not conduct any further investigations into the issues raised in the accused’s letter of representations (Exhibit D1).¹⁵ According to the defence, as a result of the prosecution’s own failure to direct investigations into the accused’s potential defence, the statutory presumption was not rebutted.¹⁶

Evaluation of the accused’s evidence Analysis of ‘unknowing consumption’ defence

As observed by then Chief Justice Yong Pung How in Cheng Siah Johnson v PP [2002] 1 SLR(R) 839 (“Johnson Cheng ”), a cautionary approach should be adopted by the courts towards the defence of “unknowing consumption” and “spiking”, given the ubiquity of such defence in drug consumption offences. The following passage is instructive: 15 I had previously in Vadugaiah Mahendran v PP [1995] 3 SLR(R) 719 held that the statutory presumption in s 22 was twofold in that proof of the primary fact by the Prosecution, ie a controlled drug was found in the urine as a result of both urine tests in s 31, triggered the actus reus of consumption and the mens rea required for the offence. The burden of proof hence fell upon the Defence who would have to disprove either element on a balance of probabilities. It was insufficient if the appellant merely raised a reasonable doubt. It may be that, in most circumstances (when s 31 is read together with s 16), the Defence would find it virtually impossible to rebut the presumption of consumption and would have to rely solely upon evidence to disprove intention or knowledge of consumption. Therein lies the reason why the defence of “spiking” and unknowingly consuming the drinks of strangers are so commonly utilised in cases of this kind. These are allegations that are extremely easy to make but which are almost impossible to debunk. Although it is not the law that a commonly-used defence will not be accepted, a judge may be obliged to approach such a defence with greater caution and circumspection than usual in the absence of any other credible evidence: PP v Hla Win [1995] 2 SLR(R) 104. In this way, importing a statutory presumption into s 22 may well have the effect of imposing a minimum degree of care upon patrons of nightclubs to be wary of sharing drinks with others.

[Emphasis added]

The accused sought to downplay his knowledge of how his urine was analysed to be positive for methamphetamine. In his statements¹⁷ to the CNB, the accused categorically denied having consumed any controlled drugs. In his first statement recorded on 22 April 2021 (Exhibit P6), the accused stated that he did not know why his urine was tested positive for Methamphetamine. According to the accused, he did not abuse any controlled drugs. Neither did he consume any...