Public Prosecutor v Mohd Zaini Bin Zainutdin and others

• Jurisdiction: Singapore
• Judge: Aedit Abdullah J
• Judgment Date: 21 April 2020
• Neutral Citation: [2020] SGHC 76
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 32 of 2018
• Published date: 25 April 2020
• Year: 2020
• Hearing Date: 26 February 2020,21 November 2018,23 October 2018,28 January 2019,20 November 2018,27 November 2018,21 March 2019,25 October 2018,08 March 2019,24 October 2018,22 November 2018,09 April 2019
• Plaintiff Counsel: Lau Wing Yam, Kenny Yang and Soh Weiqi (Attorney-General's Chambers)
• Defendant Counsel: Lee Yoon Tet Luke (Luke Lee & Co) and Sukdave Singh s/o Banta Singh (Winchester Law LLC),Aw Wee Chong Nicholas (Clifford Law LLP) and Mahadevan Lukshumayeh (Lukshumayeh Law Corporation),Hassan Esa Almenoar (R Ramason & Almenoar), Diana Foo (Tan Swee Swan & Co) and Sheik Umar bin Mohamad Bagushair (Wong & Leow LLC)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act,Criminal Procedure and Sentencing,Sentencing
• Citation: [2020] SGHC 76

Aedit Abdullah J: Introduction

The three co-accused were all jointly tried and convicted for offences involving the importation of drugs. The previously issued grounds of decision in Public Prosecutor v Mohd Zaini Bin Zainutdin and others [2019] SGHC 162 (“Mutaleb’s GD”) dealt primarily with the conviction and sentencing of the third accused, Abdoll Mutaleb Bin Raffik (“Mutaleb”). The second accused, Mohd Noor Bin Ismail (“Noor”) has recently appealed and these grounds of decision address his conviction and sentence.

The alleged facts

The alleged facts were already more completely set out in Mutaleb’s GD and are only summarised here for reference.

On the night of 10 September 2015 in Malaysia, the first accused, Mohd Zaini Bin Zainutdin (“Zaini”), Noor and a person referred to as “Apoi” packed 14 bundles containing not less than 249.63 grams of diamorphine into Zaini’s car.¹ The next morning, Noor drove the car (with Zaini inside) laden with the drugs into Singapore, to be delivered to Mutaleb.² This was pursuant to a conspiracy involving all four parties.³ Noor and Zaini were arrested at Tuas Checkpoint.⁴ Zaini then made a number of monitored calls to Mutaleb and the CNB arranged for a fake delivery to Mutaleb, who was then arrested.⁵ The 14 bundles contained 6,434.8g of a substance which on analysis was found to contain not less than 249.63g of diamorphine.⁶

The charges

Noor was charged under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) for importing not less than 12 bundles containing 5,520g of substance which contained not less than 212.57g of diamorphine, in furtherance of the common intention with Zaini. Zaini also faced the same charge.

Conduct at trial

Both Noor and Zaini indicated that they wished to plead guilty,⁷ but as required under s 227(3) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”), the matter proceeded to trial. Zaini gave evidence, which indicated that his involvement was limited to transportation.⁸ Noor elected not to give evidence, choosing to remain silent.⁹

Closing Submissions The Prosecution’s Case

The Prosecution relied on Zaini’s testimony at trial to prove the alleged facts. Zaini had testified that:¹⁰ Apoi had given him the drugs;¹¹ he knew that they were heroin;¹² Noor assisted him to packing the drugs into the car;¹³ and the both of them, in furtherance of their common intention, imported the drugs into Singapore.¹⁴

The Prosecution also relied on Zaini’s statements to the CNB, which were consistent with Zaini’s testimony at trial insofar as Zaini’s and Noor’s roles were concerned.¹⁵

As Noor elected to remain silent when called to give evidence in his defence, an adverse inference should be drawn against him pursuant to s 291(3) CPC.¹⁶ Noor had been implicated by Zaini’s evidence and statements, and had also been found to be driving the car in which the drugs were found.¹⁷ It was incumbent on him to explain himself, but failed to do so.¹⁸ He also did not cross-examine any of the Prosecution’s witnesses and his cross-examination of Zaini only sought to confirm that he assisted Zaini to pack and deliver the drugs to Singapore.¹⁹

It was also argued that the presumption of possession under s 21 MDA and the presumption of knowledge under s 18(2) MDA applied against both accused, and no evidence was adduced to rebut them.²⁰

Noor’s Case

Noor pleaded guilty to the charge.²¹ It was noted that Noor had wanted to plead guilty at the start of the hearing, and that he had chosen not to give evidence.²² However, he maintained that he had no actual knowledge that the bundles were drugs, instead thinking that they were only cigarettes or electronic cigarettes,²³ and that he only knew that the bundles contained drugs after his arrest.²⁴ Nevertheless, he accepted that the presumption of knowledge would apply against him as he drove the vehicle into Singapore knowing that the bundles were in the vehicle.²⁵ He accepted that he should have enquired as to what were in the bundles when he had the chance to do so.²⁶

It was emphasised that his involvement was only to assist Zaini, and his role at all times was that of a mere courier.²⁷ This was supported by Zaini’s testimony at trial.²⁸

It was also reiterated that there were no objections to the statements recorded from Noor.²⁹ In those statements, he had admitted to assisting Zaini in bringing the bundles into Singapore, but denied that he had actual knowledge that the bundles contained drugs.³⁰ Although Noor had initially lied in his first two statements, this was because he pitied Zaini, his cousin, and the court was urged not make any adverse findings against him for not admitting to the charge earlier.³¹ He was not a sophisticated person, with a low educational level.³²

The oral decision

I convicted both of them of the charges after trial.³³ However, Noor was not sentenced at the same time as the other two accused persons as the Prosecution applied to defer his sentencing, pending the resolution of other matters.³⁴ During Noor’s sentencing hearing, the Prosecution tendered a Certificate of Substantive Assistance (“CSA”) determining that Noor had substantively assisted the Central Narcotics Bureau (“CNB”) in disrupting drug trafficking activities within and outside Singapore.³⁵ I had also accepted that Noor was merely a courier.³⁶ Hence, Noor fulfilled the requirements of s 33(2) MDA and qualified for alternative sentencing under s 33B(1)(a) of the MDA. He was hence accordingly sentenced to life imprisonment and 15 strokes of the cane, the stipulated statutory sentence.³⁷

Noor has now appealed against both his conviction and sentence. These grounds set out the reasons for the decision on both matters, but should be read together with Mutaleb’s GD.

Analysis of decision

The actual act of importation was not in dispute. Noor did not deny that he was in possession of the drugs. He was arrested at the checkpoint with the drugs in the car, and had been driving the vehicle at the material time.³⁸ The issues were whether he had knowledge of the nature of the drugs, his involvement in the importation, and whether he had a common intention with Zaini to import the drugs into Singapore.

My decision on these issues had been set out in Mutaleb’s GD at [14] to [15]: 14 The elements of s 7 of the MDA were made out in relation to Zaini and Noor. Zaini’s evidence was consistent across his statements and oral testimony that Apoi had passed him the 13 bundles of drugs that were recovered from his car and that he knew that the bundles contained heroin. As for Noor’s refusal to give evidence in his own defence, I was entitled to draw an adverse inference against him from his decision to remain silent: s 291(3)(b) of the CPC. In any event, I was also satisfied that the relevant presumptions under ss 21 and 18(2) of the MDA operated against each of them, such that their possession of the bundles of drugs in Zaini’s car and their knowledge of the nature of the drugs were presumed. No attempt was made to rebut these presumptions. I therefore convicted both accused persons of the charges accordingly. 15 Of the three accused persons, Zaini and Noor qualified for alternative sentencing under s 33B as I found that they were only couriers involved in the transportation of the drugs in question. A certificate of substantive assistance was granted in respect of Zaini; he was sentenced to life imprisonment and 15 strokes of the cane. Noor’s sentencing was adjourned pending the resolution of other matters. As Mutaleb was not involved merely in the transportation of the drugs but had taken steps to purchase the drugs, the prescribed mandatory sentence applied; accordingly, he was sentenced to death.

In sum, Noor’s conviction was founded on evidence from Zaini, the adverse inference against Noor from his silence, and the applicable presumptions under ss 21 and 18(2) of the MDA. Since he was a courier and was granted a CSA, he was subsequently sentenced to life imprisonment and 15 strokes of the cane. These are elaborated on below.

The Evidence against Noor Zaini’s evidence

As submitted by the prosecution, Zaini had testified at trial that:³⁹ Apoi had given him the drugs;⁴⁰ he knew that they were heroin;⁴¹ Noor assisted him to packing the drugs into the car;⁴² and the both of them, in furtherance of their common intention, imported the drugs into Singapore.⁴³ Zaini also testified that Noor had assisted him and brought in drugs with him before on a previous occasion.⁴⁴

Zaini’s evidence was not substantially challenged by Noor’s counsel in cross-examination.⁴⁵ Instead, Noor’s counsel confirmed with Zaini that Noor had indeed assisted him by driving and packing the drugs into the car, to deliver to into Singapore.⁴⁶

Noor’s evidence

Noor did not testify and his counsel did not cross-examine any of the Prosecution witnesses.⁴⁷ Nevertheless, he did give various statements which were admitted:⁴⁸ Contemporaneous statement on 11 September 2015 (“Contemporaneous Statement”);⁴⁹ Cautioned statement on 14 September 2015 (“Cautioned Statement”);⁵⁰ Long statement on 16 September 2015;⁵¹ Long statement on 17 September 2015;⁵² Long statement on 23 September 2015;⁵³ Long statement on the morning of 5 November 2015;⁵⁴ and Long statement on the afternoon of 5 November 2015.⁵⁵

Noor did not contest the admissibility or voluntariness of any of his statements.⁵⁶ Even though not relied on by the Prosecution, I found that Noor’s statements supported that he was culpable, although not sufficient to show culpability on their own.

Initially, Noor denied knowledge of the bundles. In the Contemporaneous Statement, Noor denied knowing what was in the bundles and who they belonged to.⁵⁷ In the Cautioned Statement, he also denied knowing what was in the bundles and said that if he knew that Zaini was...