Public Prosecutor v Mohsen Bin Na'im

CourtHigh Court (Singapore)
JudgeChan Seng Onn J
Judgment Date29 July 2016
Neutral Citation[2016] SGHC 150
Citation[2016] SGHC 150
Publication Date03 August 2016
Docket NumberCriminal Case No 9 of 2016
Plaintiff CounselChee Min Ping and Jason Chua (Attorney-General's Chambers)
Defendant CounselKanagavijayan Nadarajan and Ranadhir Gupta (A Zamzam & Co., Kana & Co.)
SubjectCriminal Law,Statutory offences,Misuse of Drugs Act,Illegal importation of controlled drugs,Presumptions of possession and knowledge
Chan Seng Onn J:

The accused claimed trial to a single charge under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), punishable under s 33(1) of the MDA. In the morning of 31 December 2014, the accused entered Singapore from Malaysia in a car, together with his wife and two of his brothers-in-law. Found in the car were three packets of brown granular substance containing diamorphine, three packets of white crystalline substance containing methamphetamine, 1,000 tablets containing nimetazepam and two baskets containing 200 live birds.

I have considered with great care the evidence and submissions of both the Prosecution and the accused, who have put before me two competing factual narratives. Neither narrative is without some degree of attractiveness, nor is either free from difficulty. But given the statutory presumptions on which the Prosecution relies as part of its case, the burden ultimately lies on the accused to demonstrate that he did not have the requisite knowledge. On the evidence, I find that the accused has failed to discharge this burden and I reject his defence. I also find that the elements of the offence under s 7 of the MDA have been satisfied.

I therefore find the accused guilty of the offence for which he has been charged. I will explain my reasons.

The charge

There are three charges against the accused, all under s 7 and punishable under s 33(1) of the MDA. The Prosecution proceeded with one charge at trial, for the importation of diamorphine (“the Charge”). The Charge reads as follows:

That you, MOHSEN BIN NA’IM,

on 31 December 2014 at or about 8.45 a.m., at the Tuas Checkpoint, Singapore, did import into Singapore a controlled drug listed in Class ‘A’ of the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed), to wit, not less than 1378 grams of granular I powdery substance which was analysed and found to contain not less than 44.75 grams of diamorphine, without authorisation under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) or the regulations made thereunder, and you have thereby committed an offence under Section 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) and punishable under section 33(1) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed).

The accused

The accused is Mohsen Bin Na’im (“the Accused”). He is a 42-year-old Singapore citizen. His wife is Yusmazina Binte Mohd Yusof (“Yusmazina”), a Malaysian citizen.1 They have one biological child. The Accused and Yusmazina resided at Jalan Indah Nusajaya, Johor Bahru, Malaysia (“the Accused’s residence”) together with their biological child and two children from Yusmazina’s previous marriage.

Yusmazina has two brothers-in-law. They are Saiful Azman Bin Mohd Yusof (“Saiful”) and Baddrul Shah Bin Mohd Yusof (“Baddrul”). Yusmazina had been working in Singapore since 2010. She was employed at Singapore Airlines as a ticketing officer and thereafter worked at Carlson Wagonlit Travel Pte Ltd as a travel consultant.2 Every weekday morning, Yusmazina would drive into Singapore from Malaysia to attend at her workplace3 in her car, a white 7-seater Proton Exora bearing Malaysian registration number JMT7831 (“Yusmazina’s car”).4 Prior to 31 December 2014, Yusmazina earned a monthly salary of S$2,800 to S$3,000.5

I will describe the Accused’s employment history and family finances in some detail as they are relevant to his submissions.

At trial, the Accused provided a full description of his employment history. Between 1995 and 2013, he worked in a number of companies, largely in the export and logistics industries.6 He resigned in November 2013 to focus on several “businesses” which he had started during his formal employment.7 These “businesses” were unregistered businesses and were largely operated on a freelance basis.8 He started a “travel business” sometime in 2011 or 2012, and another “bird [trading] business” in 2012.9 The Accused also had a “transport business” which he began in 2011.10 In addition, he owned a chicken farm in Johor Bahru since 2014. This was a small-scale operation. The chicken farm was located at a compound at the back of a house belonging to a friend of the Accused. His friend provided the necessary property space and managed the farm, while the Accused himself provided the finance to build the chicken coops. The Accused invested approximately 10,000 RM in the chicken farm, and earned about RM 1,000 of profit per month from the farm.11

The Accused’s sister and mother live at Spooner Road, Singapore.12 The Accused commuted into Singapore with Yusmazina frequently for business, at a rate of about four or five days out of a five-day working week in December 2014.13 On each occasion, Yusmazina would drop him off at his mother’s residence at Spooner Road. The Accused would bring with him any items ordered by the customers of his “bird business” and deliver those items to his customers in the morning. This would normally take between two to three hours. The Accused would then return to his mother’s residence. At about 2 to 3 pm, he would either go to his uncle’s flat at Bedok North and thereafter to a bird shop near his uncle’s flat, or to HarbourFront to assist in a friend’s ferry ticketing business. If the Accused went to the bird shop, he would look for bird cages or new birds, and would also trade with the shop.14 If he had orders for ferry tickets, he would head to HarbourFront where his friend’s company, “Wave Master Ferry Services”, was located. The Accused would refer customers to his friend or collect ferry tickets from him. At about 5 to 5.30 pm, the Accused would make his way to Yusmazina’s office and return to Johor Bahru together with her. They would reach home past 7 pm on a normal day. On days when he did not have travel orders or bird business orders, he would remain in Johor Bahru.15

In relation to the family finances, I gather from the evidence provided by the Accused, both at trial and in his statements to the police, that his family was reasonably comfortable, free from debt and in fact able to indulge quite frequently in holidays abroad. He stated that he was able to earn about S$3,000 per month from the bird trading business and S$2,000 to S$4,000 per month from his travel business. During the school holiday season, he could easily earn S$4,000 a month as there was a higher demand for travel.16 The Accused gave Yusmazina S$800 to S$1,000 a month, of which Yusmazina saved between S$300 to S$500. The remaining amount was used for travel and other expenses.17 The Accused himself spent S$500 to S$600 per month for his own purposes.18 Added to Yusmazina’s monthly income of S$2,800 to S$3,000, it would appear as a matter of simple arithmetic that the family’s combined monthly income ranged from S$7,800 to S$10,000.

The Accused emphasised that his family did not suffer from financial problems prior to his arrest. This was corroborated by Yusmazina’s evidence.19 The family travelled to Hong Kong in March and November 2014, and to Tokyo in October 2014.20 He paid S$1,500 and S$2,200 for the two Hong Kong trips respectively21 and S$3,500 for the holiday to Tokyo.22 Yusmazina paid for the remaining expenses.23 Before 2014, the family visited locations closer to Malaysia such as Phuket, Thailand and Bandung, Indonesia.24

Agreed facts

The Prosecution and the Accused have jointly produced a Statement of Agreed Facts under s 267 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”), which I will adopt. I begin by summarising the key facts.

On 31 December 2014, at about 7.15 am, the Accused drove Yusmazina’s car from the Accused’s residence towards the Second Link Checkpoint in Johor Bahru. Yusmazina sat on the front passenger seat of the car, while Saiful and Baddrul sat on the passenger seats behind the driver’s seat. When they reached the Second Link Checkpoint, the Accused and Yusmazina switched seats. Yusmazina then proceeded to drive the car to the A1 Green Channel, lane 10 of Tuas Checkpoint.

Yusmazina’s car was stopped by officers from the Immigration and Checkpoint Authority (“ICA”) for an inspection. Corporal Mohammed Fithzuan Bin Maschek (“CPL Fithzuan”) proceeded to check Yusmazina’s car, and found two baskets of live birds under the driver’s seat. CPL Fithzuan then directed Yusmazina to drive the car to the Arrival Green Channel Zone 1 Vehicle 100% Inspection Pit (“the Inspection Pit”) for further checks. The Accused, Yusmazina, Saiful and Baddrul were directed to exit the car. They were subsequently placed under arrest.

At about 8.35 am, at the Inspection Pit, ICA officers conducted a search on Yusmazina’s car. They found two baskets of live birds under the front passenger seat and two grey plastic bags suspected to contain controlled drugs under the passenger seats behind the driver’s seat.

The Central Narcotics Bureau (“CNB”) was immediately notified. While ICA officers awaited the arrival of CNB personnel, the two grey plastic bags and their contents were left on the passenger seat behind the driver’s seat. CNB officers arrived at about 8.50 am and seized several items as case exhibits.

When CNB officers arrived, they seized:25 One grey plastic bag (marked as “A1”) containing: One transparent plastic packet (marked as “A1A”) containing one transparent plastic packet of brown granular substance (marked as “A1A1”); and One transparent plastic packet (marked as “A1B”) containing one transparent plastic packet of brown granular substance (marked as “A1B1”). One grey plastic bag (marked as “A2”) containing: One grey plastic bag (marked as “A2A”), which contained wrapping paper with a strip of black tape (marked as “A2A1”). Within A2A1 was further wrapping paper (marked as “A2A1A”). Inside A2A1A was one translucent plastic packet with strips of black tape (marked as “A2A1A1”), which in turn contained one translucent plastic packet of brown granular substance (marked as “A2A1A1A”).

At about...

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6 cases
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    • Singapore
    • District Court (Singapore)
    • 24 November 2017
    ...12 at [41]. 13 Nagaenthran a/l K Dharmalingam v Public Prosecutor [2011] 4 SLR 1156 at [30], and Public Prosecutor v Mohsen Bin Na’im [2016] SGHC 150 at [115(c)].The Court of Appeal stated in Obeng Comfort v Public Prosecutor [2017] SGCA 12 at [41]: ‘a finding of wilful blindness is simply ......
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    • Court of Three Judges (Singapore)
    • 10 March 2017
    ...of the drug. In this regard, we respectfully disagree with the observations of the High Court in Public Prosecutor v Mohsen bin Na'im[2016] SGHC 150 at [115(a)(i)] in so far as the court suggested that knowledge that the item was a controlled drug is necessary to satisfy the requirement of ......
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    • High Court (Singapore)
    • 2 November 2016
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  • Adili Chibuike Ejike v Public Prosecutor
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    • Court of Three Judges (Singapore)
    • 27 May 2019
    ...[2017] 1 SLR 633 (“Obeng Comfort”) at [34], where we expressly disagreed with the view expressed in Public Prosecutor v Mohsen Bin Na’im [2016] SGHC 150 (at [115(a)(i)]) that in order to prove the fact of possession, the Prosecution had to “prove beyond a reasonable doubt that the accused p......
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1 books & journal articles
  • Criminal Law
    • Singapore
    • Singapore Academy of Law Annual Review Nbr. 2017, December 2017
    • 1 December 2017
    ...85 See s 18(1)(d) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed). 86 Obeng Comfort v Public Prosecutor [2017] 1 SLR 633 at [34]. 87 [2016] SGHC 150 at [115(a)(i)]. 88 Obeng Comfort v Public Prosecutor [2017] 1 SLR 633 at [34]. 89 Obeng Comfort v Public Prosecutor [2017] 1 SLR 633 at [35]......

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