Public Prosecutor v Mohd Hisham Bin Mohd Salleh

• Jurisdiction: Singapore
• Judge: Marvin Bay
• Judgment Date: 03 December 2020
• Neutral Citation: [2020] SGDC 267
• Court: District Court (Singapore)
• Docket Number: District Arrest Case No 926447 of 2016 and another, Magistrate’s Appeals No MA-9816-2020-01 and MA-9816-2020-02
• Published date: 17 December 2020
• Year: 2020
• Hearing Date: 20 January 2020,08 October 2019,03 May 2018,15 February 2019,01 October 2020,07 November 2018,13 February 2019,04 May 2018,11 February 2020,09 October 2020,11 January 2018,10 January 2018,14 February 2019,07 October 2019
• Plaintiff Counsel: Chan Yi Cheng (Attorney-General's Chambers)
• Defendant Counsel: Accused in person
• Subject Matter: Criminal Law,Statutory Offences,Misuse of Drugs Act,Criminal Procedure and Sentencing,Mandatory minimum sentences,Sentencing where offences involve separate legally protected interests,Whether backdating a previous 'broken' remand period can result in a disproportionately light sentence where a concurrent sentence is also imposed
• Citation: [2020] SGDC 267

District Judge Marvin Bay: Introduction

This set of appeals against conviction and sentence filed by Mr Mohd Hisham Bin Mohd Salleh (“Mr Hisham”), a Singaporean aged 45, who claimed trial to two drug-related charges, has a convoluted procedural history. Mr Hisham had been convicted and sentenced on both charges on 11 February 2020, and had, after two successive extensions, been admitted to prison to commence the service of his sentence on 3 March 2020. Mr Hisham had represented himself for most of the trial for the present offences, after his erstwhile counsel Mr Ismail Hamid applied to be discharged at the beginning of the second tranche; being the third day of hearing, on the basis that Mr Hamid had not renewed his practicing certificate as he was leaving legal practice². It was fortuitous that, at that juncture, the evidence of six prosecution witnesses (PW3 to PW 8) had been completed. This crucially included the testimonial evidence of two doctors covering Mr Hisham’s observed condition and reported symptoms where he had asserted that certain ailments had inhibited or affected his ability to provide a urine sample, when required by a duly authorised person. After ten days of trial, and a further two days expended for submissions (allowance being given on account that he was acting in person), Mr Hisham was convicted on both charges, and sentenced to a global imprisonment term of three years and five months.

During subsequent PTC hearings for his three stood down charges, Mr Hisham; who already commenced serving his sentence, had indicated his wish to appeal, and obtained leave to appeal his conviction and sentencing out of time, with his subsequently engaged counsel filing the separate notices of appeal against conviction and sentence on 15 September 2020. It is understood that Mr Hisham’s appeal against sentence is predicated, at least in part, on a period of remand, which he contends, should have been taken into consideration when the sentence was imposed.

Mr Hisham’s new counsel had applied for bail pending appeal, and bail in the sum of $60 000 (with a non-monetary component of $30 000) had been granted on 1 October 2020, but Mr Hisham had not been bailed out. I had convened a bail review on 9 October 2020 and revised bail downwards to $55 000 (with a non-monetary component of $27 500). Despite this Mr Hisham’s sureties have not taken any further ostensible steps to secure his release on bail.

The charges

Mr Hisham faced two charges. The first; DAC 926447/2016³, is framed in the following terms: (Mr Hisham is) charged that you, on the 3 May 2016, at Bedok Police Division HQ CNB Office, did fail to provide a specimen of your urine to a police officer within such time as required by the said police officer, without any reasonable excuse, and (he has) thereby committed an offence under Section 31(2) of the Misuse of Drugs Act which is punishable under Section 33(1), and further, that (he), before the commission of the said offence, (was) on 27 August 2009 in Subordinate Court No. 10, vide DAC43104/2009, convicted of an offence for consumption of a specified drug, to wit, Methamphetamine under Section 8(b)(ii) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) and sentenced to 12 months’ imprisonment, which conviction and punishment have not been set aside to date and (he is) thereby liable to be punished under Section 33(4) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed).

The second charge; DAC 926449/2016⁴ was framed as follows: (Mr Hisham is) charged that (he), on or about 02 May 2016 at 4.30pm at Blk 115 Bedok Reservoir Road, in Singapore, did have in (his) possession a Class A Controlled Drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed), to wit, 01 packet containing not less than 0.27 gram of crystalline substance which was pulverized and homogenized into a powdery form and it was analysed and found to contain not less than 0.18 gram of Methamphetamine, without any authorization under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) or the Regulation made thereunder, and (he has) hereby committed an offence under Section 8(a) which is punishable under Section 33(1) of the said Act And further, that (he), before the commission of the said offence, had been convicted on 27 August 2009 in the Subordinate Court 10, vide DAC 43104/2009, convicted of an offence of possession of a controlled drug under Section 8(a) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) and sentenced to 08 months imprisonment, which conviction has not been set aside to date, and (he is) thereby liable for enhanced punishment under Sec 33(1) of the Misuse of Drugs Act (Cap 185,2008 Rev Ed).

To elaborate, charge DAC 926447/2016, concerned the accused failing to provide a specimen of urine for urine test without reasonable excuse on 3 May 2016 at Bedok Police Divisional Headquarters, contrary to s 31(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (''MDA'') and punishable under s 33(4) of the said Act, while DAC 926449/2016 alleged Mr Hisham’s unlawful; possession one packet of crystalline substance analysed to contain not less than 0.18g of methamphetamine, contrary to section 8(a) of the MDA.. It should be noted that Mr Hisham faced mandatory minimum sentences for both proceeded charges, and that the two charges, although flowing from a sequence of events on 2 to 3 May 2016, did involve separate and distinct legally protected interests. The differing nature of the two proceeded charges is quite evident despite their relative proximity in time of commission of the respective offences; given that the second charge concerned possession of a quantity of methamphetamine, a specified drug, while the first charge was in relation to Mr Hisham subsequent conduct after having been arrested, for failing to provide a urine sample when lawfully required to do so. The implications of the separate interests will be dealt with in greater details in the part of the grounds addressing the concurrent running of the two sentences in the global sentence that was eventually imposed, within the context of these considerations.

Parties and witnesses

As indicated above, Mr Hisham was self-represented from the third day of trial. DPP Chan Yi Cheng presented the State’s case against the accused. The case entailed the calling of no fewer than 14 prosecution witnesses, who were: PW1 Chia Xue Wei Sarah (HSA Analyst certifying finding of methamphetamine)⁵ PW2 Phua Yong Han (HSA Analyst certifying DNA result)⁶ PW3 W/SGT Yasmin Binte Mohd Idris (SPF, Bedok Div)⁷ PW4 Snr SSG Ahmad Faizal bin Ahmad (SPF, Bedok Div)⁸ PW5 Dr Lim Fang Jin (Examining Doctor)⁹ PW6 Dr Pravin Thiruchelvam (Doctor certifying Medical Report) ¹⁰ PW7 SGT Tan Wee Ming (SPF Bedok Div)¹¹ PW8 W/SGT Zafirah Adilah (SPF Bedok Div)¹² PW9 Ng Shilen (HSA DNA Analyst)¹³ PW10 Haifaa Bte Mohamed Anwar (CNB Forensic Response Team)¹⁴ PW11 W/SGT Poh Angie (SPF, Investigation Division) PW12 Muhammad Thobraani bin Mohd Soom (SPF Investigation Division, Statement recorder)¹⁵ PW 13 HTS 15 Gayathre Kalimuthu Mogan (DNA processing technician)¹⁶ PW 14 Low Zuhui (Investigation Officer, Statement recorder) ¹⁷

The defence case involved the following witnesses: DW1 Mohd Hisham Bin Mohd Salleh (Accused person)¹⁸ DW2 Siti Hajar Binte Sami’an ( Accused person’s fiancé)¹⁹ PW3 Dr Kang Jun Hui Larry (Doctor attending to accused in lock-up)²⁰

PROSECUTION’S CASE Brief facts of prosecution’s case involving the two proceeded charges

This is a brief precis to sketch an outline to afford a grasp of the salient events of this case, which will, of course, be fleshed out in greater detail in the main body if these grounds. To recapitulate DAC 926447/2016, involved the accused’ failing to provide a specimen of urine for urine test without reasonable excuse on 3 May 2016 at Bedok Police Divisional Headquarters, while DAC 926449/2016 involved the accused’s alleged possession of methamphetamine. There are two discrete events that circumscribe this brace of proceeded charges, with the first sequence starting from the discovery of the bag containing the methamphetamine filled sachet, and the second tranche of significant events occurring after the accused had been placed in custody for the purpose of obtaining his urine sample upon suspicion that he had consumed drugs. The run of the prosecution witnesses at trial was reversed to the chronological sequence of events; with PW3 to PW 6 offering their testimonies to the events connected to the unsuccessful attempts to procure a urine sample, and the latter witnesses PW7 to PW 14 giving oral evidence connected with Mr Hisham’s drug possession charge. This flip seemed to be predicated on accommodating the time required for an voir dire ancillary hearing to address Mr Hisham’s anticipated challenge to ‘positive’ statements he had given to the investigation officer.

Discovery of accused’s son with black backpack, later found to contain drugs

In chronological sequence, the prosecution’s case starts with the discovery of Mr Hisham’s son; Mohamad Henry Shah bin Mohd Hisham (“Master Shah”) on 2 May 2016, at 3.30 p.m. This was when PW7 Police Sgt Tan Wee Ming (“Officer Tan”); an officer with Bedok Police Division and his team had been patrolling the void deck of Block 115 Bedok Reservoir Road. The patrol detail had found the young boy asleep on a bench at the block, and with a black backpack in his possession. Sgt Tan had approached the boy in repose as he had been concerned that he might be a missing person.²¹

Master Shah had informed Sgt Tan that he was waiting for his father; Mr Hisham, as well as his stepmother and two brothers. He had also revealed that Mr Hisham was selling keychains at a nearby block. Officer Tan opened the black in the presence of the Master Shah, and the officers had found a used syringe, one small black pouch...