Public Prosecutor v Mohd Zaini Bin Zainutdin and others

• Jurisdiction: Singapore
• Judge: Aedit Abdullah J
• Judgment Date: 09 July 2019
• Neutral Citation: [2019] SGHC 162
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 32 of 2018
• Year: 2019
• Published date: 13 July 2019
• Hearing Date: 24 October 2018,20 November 2018,25 October 2018,23 October 2018,28 January 2019,09 April 2019,27 November 2018,21 March 2019,22 November 2018,21 November 2018,08 March 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
• Citation: [2019] SGHC 162

Aedit Abdullah J: Introduction

This was a joint trial involving three co-accused persons: Mohd Zaini Bin Zainutdin (“Zaini”), Mohd Noor Bin Ismail (“Noor”) and Abdoll Mutaleb Bin Raffik (“Mutaleb”). The three were charged for their involvement in the importation of 12 bundles of drugs (“the drugs”) that contained not less than 212.57g of diamorphine.

Zaini and Noor each faced a charge of importation of drugs with common intention, under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”) read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”), punishable under ss 33(1) or 33B of the MDA. They did not challenge the charges against them and I convicted them of their respective charges accordingly.

The alternative sentencing regime under s 33B of the MDA gave me the discretion to impose life imprisonment and 15 strokes of the cane on Zaini, as he satisfied the conditions under s 33B(2)(a)(i) and the Prosecution certified that he had substantively assisted the Central Narcotics Bureau (“CNB”) in disrupting drug trafficking activities within or outside Singapore under s 33B(2)(b). The issue of Noor’s sentencing has been adjourned to a later date, pending other matters.

Mutaleb faced the different charge of abetment by conspiracy to import drugs into Singapore, under s 7 read with s 12 of the MDA and punishable under ss 33(1) or 33B of the MDA. The charge read as follows:

That you … between 10 September 2015 and 11 September 2015, in Singapore, did abet by engaging in a conspiracy with one Mohd Zaini bin Zainutdin (FIN: [xxx]), one Mohd Noor Bin Ismail (FIN: [xxx]), one male known as “Apoi”, and others, to do a certain thing, to wit, to import into Singapore a Class A controlled drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), and in pursuance of that conspiracy and in order to the doing of that thing, on 11 September 2015 at about 10.54am at Tuas Checkpoint, Singapore, the said Mohd Zaini bin Zainutdin and Mohd Noor Bin Ismail did import into Singapore not less than twelve (12) bundles containing 5,520.4 grams of granular/powdery substance which was analysed and found to contain not less than 212.57 grams of diamorphine, without any authorisation under the MDA or the Regulations made thereunder, and you have thereby committed an offence under Section 7 read with Section 12 of the MDA, punishable under Section 33(1) of the MDA, or you may alternatively be liable to be punished under Section 33B of the MDA. [emphasis in original]

I convicted him of the charge after trial. As his actions were not limited to the transportation of drugs, he did not qualify for the alternative sentencing regime under s 33B of the MDA. I thus imposed the mandatory sentence of death on him.

These grounds of decision will primarily consider the Prosecution’s case against Mutaleb. The evidence against Zaini and Noor will not be examined in detail as they do not touch upon Mutaleb’s conviction. References to “the Defence” should therefore be generally taken to refer to Mutaleb’s case at trial.

Facts

It appeared from Zaini’s account that on 10 September 2015, Zaini, Noor and a man known as “Apoi” packed 14 bundles of diamorphine into Zaini’s car in Malaysia. Zaini and Noor drove into Singapore on 11 September 2015 and were arrested at Tuas Checkpoint. Their car was found to be carrying 13 bundles of drugs, which had been placed in hidden compartments. The 14th bundle was recovered on 21 September 2015. These bundles were found to contain 6,434.8g of a granular or powdery substance, which on analysis was found to contain not less than 249.63g of diamorphine.

When questioned by CNB officers after his arrest, Zaini gave information about what he was supposed to do with the drugs. What was disputed was whether Zaini did inform the CNB officers that he was to deliver the drugs to Mutaleb at Chai Chee. In any event, a number of monitored telephone calls were made to Mutaleb by Zaini in the presence of CNB officers.

Two CNB officers then took the car and drove to Chai Chee. There, mock drugs were supposedly handed over to Mutaleb, although the precise circumstances in which this occurred were disputed. What was not in issue was that Mutaleb dropped the bundles and was subsequently arrested.

The charges against Zaini and Noor

Zaini and Noor both faced charges under s 7 of the MDA read with s 34 of the Penal Code. They indicated at trial that they wished to plead guilty to the charges against them.¹ However, as required under s 227(3) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”), no plea of guilt was recorded as the Prosecution had not led evidence to prove its case. In the course of the trial, Zaini gave evidence to the effect that his involvement in the offence was restricted to the transportation of the drugs.² Noor did not give evidence, electing instead to remain silent when called to give evidence in his defence.³

The elements of the offence of importation under s 7 of the MDA have been set out by the Court of Appeal in Adili Chibuike Ejike v Public Prosecutor [2019] SGCA 38 at [27]. The Prosecution must prove that: (a) the accused person was in possession of the drugs; (b) the accused person had knowledge of the nature of the drugs; and (c) the drugs were intentionally brought into Singapore without prior authorisation.

The parties’ cases in relation to Mutaleb The Prosecution’s case

The Prosecution case was that the evidence, particularly Zaini’s, showed that Mutaleb engaged in a conspiracy with Zaini, Noor, a man named “Apoi” and others to import drugs. Zaini gave a statement describing a conversation that he had overheard between Apoi and Mutaleb on the night of 10 September 2015. Apoi had instructed Zaini to bring the drugs into Singapore, and was next to Zaini when he discussed the delivery with Mutaleb over the telephone. Telephone recordings and text messages also showed Mutaleb’s knowledge that Zaini would be meeting him to deliver 13 packets of drugs and that he was to pay $39,000 for the drugs.⁴ When the delivery was made by undercover CNB officers in place of Zaini and Noor, Mutaleb had $38,600 in his possession and collected a bag purportedly containing drugs from the undercover CNB officer. He only dropped the bag containing the drugs when he noticed CNB officers in the vicinity moving in on him.⁵

The Defence’s case

While the Defence took issue with the form of the charge against Mutaleb and the amendments that were made to the charge,⁶ the focus of its arguments was on the evidence relied upon by the Prosecution, primarily that of Zaini. It was denied that Mutaleb took part in any conspiracy; Zaini’s evidence against Mutaleb could not be relied upon as Zaini changed his evidence at trial several times, particularly as regards what he supposedly overheard.⁷ The doubts about Zaini’s evidence went to the issue, among others, of whether Mutaleb was really the intended recipient of the drugs that Zaini was instructed to deliver.⁸ Alternatively, any conspiracy that involved Mutaleb had been abandoned as new instructions had been given to Zaini for the drugs to be delivered to another person other than Mutaleb.⁹

My decision

Having considered the evidence and submissions, I convicted the three accused persons before me of their respective charges.

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.¹⁰ 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.

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.¹¹ 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.

The applicable law on abetment by conspiracy

The charge against Mutaleb was for abetting the importation of controlled drugs into Singapore, contravening s 7 read with s 12 of the MDA. The focus of the trial was on his involvement in a conspiracy between Zaini, Noor and others to import the drugs into Singapore. I set out the applicable law.

Section 12 of the MDA reads:

Any person who abets the commission of or who attempts or does any act preparatory to, or in furtherance of, the commission of any offence under this Act shall be guilty of that offence and shall be liable on conviction to the punishment provided for that offence.

Abetment is not otherwise defined in the MDA. But the general understanding is that s 12 of the MDA imports the definition under the Penal Code. Section 2 of the Interpretation Act (Cap 1, 2002 Rev Ed) provides that, unless expressly specified, the word “abet” has the same meaning as in the Penal Code: see also Govindarajulu Murali and another v Public Prosecutor [1994] 2 SLR(R) 398 at [43] and [44].

Section 107 of the Penal Code defines abetment. The subsection invoked was...