Public Prosecutor v Mohd Aziz bin Hussain

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 29 January 2018
• Neutral Citation: [2018] SGHC 19
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 9 of 2017
• Published date: 21 November 2018
• Year: 2018
• Hearing Date: 24 October 2017,08 December 2017,23 October 2017,14 December 2017,14 September 2017,11 August 2017,10 August 2017,20 November 2017,12 September 2017,13 September 2017,17 August 2017,16 August 2017,18 April 2017,15 August 2017
• Plaintiff Counsel: Terence Chua and Kenny Yang (Attorney-General's Chambers)
• Defendant Counsel: Hassan Esa Almenoar (R Ramason & Almenoar) and Diana Foo (Tan See Swan & Co)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act
• Citation: [2018] SGHC 19

See Kee Oon J: Introduction

The accused was charged under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) for having in his possession a controlled drug for the purpose of trafficking. The controlled drug in question was not less than 49.98 grams of diamorphine (“the drugs”), which is a Class A controlled drug listed under the First Schedule to the MDA.

At the conclusion of trial, in which the accused challenged the admissibility of various inculpatory investigation (long) statements recorded from him, I was satisfied that the Prosecution had proved the charge beyond a reasonable doubt. Upon delivering brief grounds for my decision to find him guilty, the accused was convicted and sentenced on 14 December 2017. I now set out the grounds of my decision in full.

The Prosecution’s case

The trial was originally to have involved three accused persons who were to be jointly tried with each other, albeit on different charges involving differing quantities of drugs. The other two co-accused, Rashid bin Zali (“Rashid”) and Nordiana binte Mohd Yusof (“Nordiana”) initially faced related charges involving possession of 33.46 grams of diamorphine for the purpose of trafficking. They eventually elected to accept the Prosecution’s respective offers of reduced (non-capital) charges and plead guilty. By 11 August 2017, when the trial proper involving the charge against the accused commenced, Rashid and Nordiana had already been convicted and sentenced. Both of them were called to testify as prosecution witnesses in the present trial.

The Prosecution led evidence from 54 witnesses, mostly by way of their conditioned statements pursuant to s 264 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”). Eight prosecution witnesses testified only for the ancillary hearing to determine the voluntariness of the statements recorded from the accused.

Background: Arrest, seizure of exhibits and analyses

The accused is a male Singaporean who was 48 years old at the time of the offence on 18 March 2015. He was a landscape subcontractor. In outline, the Prosecution’s case was that a day before the accused was arrested, he had received three bundles of diamorphine from one “Datuk”. He was to repack them into smaller packets and deliver them to buyers on “Datuk’s” instructions. On the morning of 18 March 2015, he brought these three bundles into his rented minivan bearing licence plate number GW2420D (“the van”) and started repacking them into smaller sachets. He fully repacked only one of the three bundles and partially repacked the second bundle. He left a third bundle (C1A1) (“the third bundle”) intact. The third bundle was later found to contain not less than 16.52 grams of diamorphine.

At about 9.00 am, the accused drove the van to Block 471, Tampines Street 44. He parked the van and proceeded to unit #03-216 (“the flat”) where Rashid and Nordiana resided, bringing with him the repacked bundle and the partially repacked bundle, and leaving the third bundle in the van. He also brought along cash in varying denominations of $5, $10, $50 or $100 to be sorted into bundles. When he arrived at the flat, Rashid opened the door and let him in. Nordiana was still asleep. Rashid then went to the toilet and the accused laid out newspaper on the floor of the living room and started to repack the drugs into smaller sachets. He later persuaded Rashid and Nordiana to assist him in repacking the drugs and in counting and sorting the cash.

Officers from the Central Narcotics Bureau (“CNB”) had begun surveillance near the flat after 9.00 am, as they had targeted Rashid as a suspect involved in drug activities. The accused left the flat at around 10.00 am with the repacked drugs. After placing the drugs in the van, he drove off. When the accused realised that he was being followed by CNB officers, he abandoned the van and started running. With the CNB officers in pursuit, the accused tripped and fell and was consequently restrained and arrested. As the accused had hurt his right arm upon falling down, he was sent to Changi General Hospital (“CGH”) for medical attention. He was later found to have a fractured right humerus.

After the accused was sent to CGH, a contemporaneous statement¹ was taken from him. He confirmed that he was able to give a statement after he had been given medication. He admitted that the items in his van were drugs (specifically, heroin) but he claimed that he was only helping to deliver the drugs to a “budak motor” for “Acit” (ie, Rashid) as a favour, for which he would not be paid. He claimed that all the drugs belonged to Rashid. A total of 49.98 grams of diamorphine, with a gross weight of 1399.7 grams, was recovered from the van. He admitted that the contemporaneous statement was given voluntarily.

The recovered drugs were contained in two bags. First, there was a pink paper bag (B1 – P28) which was found between the driver’s seat and the front passenger’s seat. P28 contained a black bag (B1A – P29) which in turn contained a black drawstring bag (B1A1 – P30) in which nine packets of drugs were found. These nine packets, within eight of which were various smaller sachets containing drugs, had a gross weight of 940.9 grams. There was also a digital weighing scale (B1A1K – P40) stained with diamorphine and an empty pouch.

Next, another red plastic bag (C1 – P42) was found underneath the driver’s seat. Within it, there was a torn orange plastic bag (C1A – P42), which in turn contained a plastic bag (C1A1A – P43) bound by a layer of black tape (C1A1 – P43), and within C1A1A was one packet of drugs (C1A1A1 – P43) which had a gross weight of 458.8 grams.

Apart from the drugs mentioned above, various other items were recovered from the van. A red sling bag (D1 – P44) was found between the driver’s seat and the front passenger’s seat. P44 contained numerous miscellaneous letters (D1B – P49) and one yellow “Ferrero” paper bag (D1A – P45) which in turn contained one red plastic bag (D1A1 – P46). P46 was found to contain the following items:

one digital weighing scale with a black pouch (D1A1A);

two packets each containing numerous empty packets (D1A1B); and

one box containing one charger, one pair of scissors, one receipt for the purchase of plastic packets (D1A1C).

The “Ferrero” paper bag (P45) also contained numerous other empty packets (D1A2 – P48) as well as one “Samsung” box containing one manual, one travel charger and one receipt from Sim Guan Electrical Shop (D1A3 – P48). Finally, in a black sling bag (E1 – P50) behind the driver’s seat, there was cash amounting to S$24,145 (E1A – P51; P52) and three mobile phones (E1B-MABH-HP1; E1B-MABH-HP2; E1B-MABH-HP3 – P53).

The analysis of all the relevant drug exhibits with the total gross weight of 1399.7 grams by the Health Sciences Authority (“HSA”) and the chain of custody of all the exhibits were not disputed. It was common ground that the analysis of the relevant drug exhibits revealed that they contained not less than 49.98 grams of diamorphine. In addition, the Prosecution adduced records of phone calls and text messages from the accused’s mobile phones.

In summary, the evidence pertaining to the accused’s arrest, the seizure of the exhibits, the HSA analyses and the analyses of the accused’s mobile phone records was generally not disputed. The accused sought to show through his cross-examination of the CNB officers that he had been tripped by a CNB officer and had been manhandled and assaulted on his arrest, which resulted in his fractured humerus. However, the arresting officers confirmed that he stumbled and fell and this was what enabled them to catch up with him and arrest him. Necessary force had to be used to subdue and handcuff him.

The ancillary hearing – admissibility of the seven statements

The accused’s various statements comprised a contemporaneous statement, a cautioned statement recorded under s 23 of the CPC, as well as six “long” investigative statements recorded under s 22 of the CPC. In his statements, the accused essentially admitted to being in possession of all the drug exhibits which were found in his van. The contemporaneous statement (P122 – English translation in P125) was admitted in evidence as the accused accepted that it was given voluntarily.

The accused challenged the admissibility of the remaining seven of his investigation statements (“the seven statements”). The first indication from the accused that he was disputing the admissibility of the seven statements emerged only after Rashid and Nordiana had both pleaded guilty to reduced charges and the trial proper was to commence. Objections were then raised as to their proposed inclusion in the Agreed Bundle of documents.

As a consequence, an ancillary hearing was convened to determine the admissibility of the seven statements. In the course of the ancillary hearing, the Investigating Officer, Station Inspector Ranjeet Ram Behari (“the IO”), stated that at no point did he offer any threat, inducement or promise to the accused prior to or during the recording of the statements. He had always confirmed when the statements were being recorded that the accused was well and fine and able to give his statements. The accused had also not mentioned that he was in pain or asked for any breaks or medication. Contrary to the accused’s claims, the IO maintained that he had not induced the accused to confess by promising him a reduced (non-capital) charge involving 14.99 grams of diamorphine. He did not threaten the accused by banging the table, telling him “not to be funny”, and saying that his co-accused had implicated him.

The accused raised a variety of matters, none of which had apparently surfaced prior to the commencement of the trial. Other than his claims of feeling afraid of the IO and allegations about the manner in which the IO had allegedly threatened or induced him, these...