Public Prosecutor v Mohd Arsad Bin Hassan

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 01 April 2004
• Neutral Citation: [2004] SGHC 67
• Court: High Court (Singapore)
• Year: 2004
• Published date: 06 May 2004
• Plaintiff Counsel: Ravneet Kaur and Lee Cheow Han (Deputy Public Prosecutors)
• Defendant Counsel: Rudy Gunaratnam (Tan Rajah and Cheah) and Hariprasad Ratnagopal (Harry Elias Partnership)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act (Cap 185, 2001 Rev Ed) ss 5(1)(a), 33,Whether quantity of diamorphine trafficked exceeded 15 g mandating death penalty.
• Citation: [2004] SGHC 67

1 April 2004

Tay Yong Kwang J:

1 The accused is a 45-year-old male Singaporean. He was tried and convicted on the following charge:

That you, Mohd Arsad bin Hassan on the 8^th day of July 2003, at or about 5.15 pm, at the car-park next to Bedok Theatre and Changi Theatre along New Upper Changi Road, Singapore, did traffic in a controlled drug specified in Class A of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, by selling 6 packets of granular substances containing not less than 46.9 grams of diamorphine to Staff Sergeants Ashari bin Hassan and Mohd Affendi bin Ideris, officers of the Central Narcotics Bureau (CNB) for a sum of $20,100/-, without any authorisation under the said Act or the regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) of the Misuse of Drugs Act, Chapter 185 and punishable under section 33 of the Misuse of Drugs Act.

As the amount of diamorphine involved exceeded 15g, the mandatory death penalty was passed on the accused.

2 He was originally charged with three others for joint trafficking in the same amount of drugs. The charges against the three others have been reduced to non-capital ones and will be dealt with by the subordinate courts.

The Prosecution’s case

3 The evidence of the Prosecution was largely unchallenged as the defence of the accused related only to the amount of heroin he agreed to sell to the undercover officers. He claimed the amount was six packets or sachets and not the one pound and five sachets eventually transacted. I shall set out the undisputed evidence first.

4 On 8 July 2003, at about 11.00am, the two Central Narcotics Bureau (“CNB”) officers named in the charge, Ashari and Affendi (“the undercover officers”), and another CNB officer embarked on an undercover operation in which they were to pose as buyers of drugs. As arranged via telephone the day before, they went in a car SCQ 6392D (“the undercover car”) to meet the accused outside the Sultan Mosque. They were informed by the accused that he would be wearing a white long-sleeved shirt with brown stripes and sunglasses. After driving past the accused once to make sure he was not known to them, the undercover officers let the third officer disembark a short distance away and then went in the undercover car to meet the accused.

5 The accused got into the undercover car. Ashari, the driver, said he was Nick and introduced Affendi, the front passenger, as Didi. They proceeded to the S-11 coffee shop outside the National Library in Stamford Road where they had discussions over a meal and some drinks. The amount of heroin and the price were agreed. The transaction would take place later in the afternoon in a “left-right” manner, meaning that cash would be handed over upon delivery of the drugs. The accused then asked that he be driven to Bishan and the undercover officers obliged.

6 From the start of the undercover operation, numerous CNB officers were keeping surveillance on all the happenings. The accused alighted along Bishan Street 23 and walked to Sin Ming Industrial Road to meet a female Malay. They bought some food at a coffee shop and then went up a block of flats and entered one of the apartments.

7 At about 4.05pm, the accused and his female companion left the apartment and boarded a taxi along Marymount Road. The female alighted at Toa Payoh while the accused continued travelling in the taxi to the car park next to the Bedok and the Changi Theatres. There he alighted and telephoned Ashari to ask him where he was. Having been told the location of the undercover car in the car park, the accused walked towards it and got into the rear left seat. He then made some calls using his mobile telephone.

8 At about 5.00pm, a blue-coloured motorcycle FU 3654L with a pillion rider arrived at the said car park and circled it a few times. The accused received a call and he alighted from the undercover car. He then walked towards the direction of the motorcycle a short distance away. The pillion rider took out a plastic bag from his sling bag and handed it to the accused. The accused held the plastic bag in his hand and walked back towards the undercover car while the motorcycle left the car park. He did not open the plastic bag to look at its contents.

9 The accused opened the rear left door of the undercover car and hurriedly asked for payment. The undercover officers asked him to get into the car as they wanted to inspect the contents before paying him. The accused sat down in the rear left seat with his left leg outside the car and the rear left door widely opened. He looked around nervously when he handed the plastic bag to Affendi. Affendi opened the plastic bag and saw another plastic bag inside containing a packet wrapped in newspaper and a white envelope. He tore off a small portion of the newspaper and saw heroin in the packet. He then gave the pre-arranged signal by saying the words “barang baik” (meaning “good stuff”) which Ashari repeated over his mobile telephone.

10 The other CNB officers in the vicinity then moved in to effect arrest. When the accused saw a car approaching the undercover car, he bolted. He was arrested after a short chase and a brief struggle.

11 The white envelope in the plastic bag was found to contain five sachets of white granular substance. The plastic bags and their contents were handed over by Affendi to Inspector of Police Tan Seow Keong (“Insp Tan”) who in turn handed them over to the investigating officer, Insp Cheng Chee Piow, at about 1.25am on 9 July 2003 at the Police Cantonment Complex. Subsequently, the packet of yellow granular substance weighing 439.8g was analysed and found to contain not less than 43.59g of diamorphine at a confidence level of 99.9999% while the five sachets of white granular substance weighing 39.31g were found to contain not less than 3.31g of diamorphine at the same confidence level. These added up to the 46.9g of diamorphine mentioned in the charge. Fingerprint analysis of the plastic bags and the large packet of heroin revealed no identifiable fingerprint.

12 The evidence that was in dispute related mainly to what was said between the accused and Ashari relating to the amount of drugs involved in the transaction. In court, Ashari elaborated on his written statement given at the preliminary inquiry. He testified that he was given an undercover assignment to try and purchase heroin from a male Malay known as Jack. He got in contact with Jack in early July 2003. He used the pseudonym Nick.

13 On 6 July 2003, at around midnight, Ashari received a telephone call from the accused who said that Jack used his mobile telephone to call Ashari and that was how he got Ashari’s mobile telephone number. The accused identified himself as Arsad and claimed to be Jack’s friend. He said he would negotiate with Ashari directly. Ashari was shocked by the call and he terminated it. The accused called a second time and told Ashari, whom he addressed as Nick, not to cut the line off. He claimed that Jack obtained his supplies from him and it would be cheaper if Ashari dealt directly with him (the accused).

14 The accused quoted the price of $3,800 per set of heroin and was willing to sell a minimum of three sets. He used the words “kereta” (drug jargon for one set of ten sachets of heroin) and “set” interchangeably and the words “barang” and “panas” to refer to heroin.

15 On 7 July 2003, the accused called Ashari but the CNB officer was in the middle of an operation and could not talk to him. Later, Ashari called the accused who told him he had the stuff and could deliver it the following day. He also told him that he charged $3,800 for one “kereta” or set and asked Ashari to take five sets (or 50 sachets or about one pound of heroin) for a total of $19,000 which was inclusive of delivery. He was aware that Ashari had $20,000. Ashari assumed he got this information from Jack. The price of $19,000 for five sets was agreed. The CNB officer told the accused they would deal in the “left-right” manner – the seller was to deliver the drugs and the buyer would then hand over the money in exchange. The accused wanted the transaction to take place the next day.

16 However, Ashari was instructed to meet the accused in the morning first. Ashari therefore called the accused and suggested that they get acquainted before completing the deal. He told the accused that since they were buying in large quantities, he would like to see him personally to arrange the time and the location for the transaction. They agreed to meet at 11.00am on 8 July 2003 in front of the Sultan Mosque.

17 As indicated earlier, Ashari and Affendi went to pick up the accused and they went to the S-11 coffee shop in Stamford Road. There, the accused told the undercover officers that he had good news for them. He would supply one “batu” or one pound at a discounted price of $18,500. He told them one “batu” of “barang” or “panas” could be packed into 50 to 60 sachets. He also offered them another half set or five sachets of heroin at a discounted price of $1,600. The undercover officers were reluctant to purchase the extra five sachets as they were instructed to buy one pound. Eventually, they agreed to buy the one pound and five sachets offered for a total of $20,100.

18 Ashari reiterated the terms of the deal and the accused confirmed them. He told the undercover officers to meet him at Jalan Sultan again at past 4.00pm that day. He would call his supplier to bring the drugs there, take them from him and deliver them to the undercover officers in their car. They were to pay him the agreed amount and then leave the place. Ashari agreed with the plan except the location as he had not received instructions on that yet. The accused asked for $50 as an advance for his transport and was given the money.

19 After sending the accused to Bishan, the undercover officers returned to their headquarters to brief their...