Public Prosecutor v Muhammad Mustafa Bin Mohd Haniffa

• Jurisdiction: Singapore
• Judge: Shawn Ho
• Judgment Date: 25 April 2022
• Neutral Citation: [2022] SGDC 69
• Court: District Court (Singapore)
• Docket Number: District Arrest Case No. DAC 907780 of 2020 & Ors, 9081/2022/01
• Year: 2022
• Published date: 06 May 2022
• Hearing Date: 07 March 2022,29 March 2022,13 October 2021,23 March 2022,12 October 2021,09 March 2022,22 March 2022,25 April 2022,08 March 2022
• Plaintiff Counsel: Kenneth Kee (Attorney-General's Chambers)
• Defendant Counsel: Accused in Person.
• Subject Matter: Criminal Law,Offences,Misuse of Drugs Act,Failure to Provide Urine Specimen without Reasonable Excuse,Criminal Procedure and Sentencing,Statements,Admissibility,Sentencing,Corrective Training
• Citation: [2022] SGDC 69

District Judge Shawn Ho: Introduction

The Accused claimed trial to one charge of failing to provide a urine specimen without reasonable excuse to a Central Narcotics Bureau officer. Sixteen other charges were stood down for the trial.

The Accused argued that his mental and physical state was affected by his intoxication (alcohol, sleeping pills and other substances) to the extent that he had a reasonable excuse not to provide a urine specimen.

All things considered, the Prosecution proved its case beyond a reasonable doubt, and the Accused was convicted on the proceeded charge.

The Prosecution asked for 9 years’ Corrective Training (“CT”), an enhanced sentence of 247 days and 6 strokes of the cane. The formative arc of CT was traced in Sim Yeow Kee v Public Prosecutor [2016] 5 SLR 936.

I sentenced the Accused to 8 years’ CT, an enhanced sentence of 247 days and 6 strokes of the cane. He has appealed against conviction and sentence. I set out my reasons.

Charges and legal context

The Accused claimed trial to one charge under s 31(2) punishable under s 33A(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”) and s 50T(1)(a) of the Prisons Act (Cap 247, 2000 Rev Ed) (DAC 907780-2020).

You, Muhammad Mustafa Bin Mohd Haniffa, are charged that you, on 5 February 2020 at about 10.50 pm, at Changi General Hospital (Ward 18 Bed 6), Singapore, failed to provide a urine specimen without reasonable excuse to an officer from the Central Narcotics Bureau – Sgt Abdul Azmin bin Abdul Rahman, and you have thereby committed an offence under s 31(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed),

and further, that you, before the commission of the said offence, were on 15 February 2016, convicted of an offence for the consumption of cannabis, a specified drug, vide DAC 942606/2015 in State Court No. 18, in Singapore under s 8(b)(ii) of the MDA, and sentenced under s 33A(1) of the said Act with 5 years’ imprisonment and 3 strokes of the cane, which conviction has not been set aside to date, and you shall now be punished under s 33A(2) of the MDA,

and further, that you, from 18 May 2019 to 27 January 2021, were subject to a remission order made by the Commissioner of Prisons under Division 2 of Part VB of the Prisons Act (Cap 247, 2014 Rev Ed), which is subject to the basic condition under section 50S(1) of the Prisons Act, and upon your conviction of the said offence, would be deemed to have committed an offence in breach of the basic condition of the remission order, and you are thereby liable under s 50T(1)(a) of the Prisons Act to an enhanced sentence not exceeding 358 days representing the remaining duration of the remission order in effect when the said offence was committed.

The burden of proof in showing that an accused person had a reasonable excuse lies on the defence: Public Prosecutor v Mohammad Farhan bin Ahmad Saifuddin [2017] SGDC 108 at [31].

As to what amounts to a “reasonable excuse”, some guidance is provided from an analogous scenario in Madiaalakan s/o Muthusamy v Public Prosecutor [2001] 3 SLR(R) 580. This was a case where an offender failed to provide a breath specimen, which is an offence under s 70(4) of the Road Traffic Act (Cap 276, 2004 Rev Ed). In Madiaalakan at [9], the High Court gave examples of a reasonable excuse, such as when the person from whom the specimen was required was “physically or mentally unable to provide it or the provision of the specimen would entail a substantial risk to his health” or when the person was unable to provide a specimen despite having “tried as hard as he could”.¹

Prosecution’s case

The Accused failed to provide a urine specimen without reasonable excuse. He was fit for urine collection.

Defence’s case

The Accused’s mental and physical state was affected by his intoxication (alcohol, sleeping pills and other substances) to the extent that he had a reasonable excuse not to provide a urine specimen. At the material time, his “bladder (was) in pain”,² he “really could not give (his) urine as (he has a) problem with (his) bladder” ³ and he had constipation⁴.

Ancillary hearing

Challenging the Statement’s Voluntariness. The Accused challenged the voluntariness of his long statement. An ancillary hearing was held.

The Law for Ancillary Hearing

Where voluntariness is challenged, the burden is on the Prosecution to prove beyond a reasonable doubt that the statements were made voluntarily and not on the Defence to prove on a balance of probabilities that the statements were not made voluntarily: Muhammad bin Kadar and another v Public Prosecutor [2011] 3 SLR 1205 (“Kadar”) at [177], and Azman bin Mohamed Sanwan v Public Prosecutor [2012] 2 SLR 733 at [19]-[27] (Ho Hock Lai, On the Obtaining and Admissibility of Incriminating Statements, SJLS [2016] 249 at 253-255 and 260-261).

It is only necessary for the Prosecution to remove a reasonable doubt of the existence of the threat, inducement or promise, and not every lurking shadow of influence or remnants of fear: Panya Martmontree v Public Prosecutor [1995] 2 SLR(R) 806 at [32] (Chin Tet Yung, Criminal Procedure Code 2010: Confessions and Statements by Accused Persons Revisited, (2012) 24 SAcLJ 60 at [16]-[33] and [52]-[53]).

The voluntariness test is applied in a manner which is partly objective and partly subjective: Sulaiman bin Jumari v Public Prosecutor [2021] 1 SLR 557 at [39]. The objective limb is satisfied if there is a threat, inducement or promise. The subjective limb is satisfied when the threat, inducement or promise operates on the offender’s mind through hope of escape or fear of punishment connected with the charge: Chai Chien Wei Kelvin v Public Prosecutor [1998] 3 SLR(R) 619 at [53] (Dorcas Quek, The Concept of Voluntariness in the Law of Confessions, (2005) 17 SAcLJ 819 at [35]).

The Court of Appeal in Garnam Singh v Public Prosecutor [1994] 1 SLR(R) 1044 at [31] stated that “in order for the effects of withdrawal from drugs to affect the drug user’s medical and psychological condition to render any statement he makes to be involuntary, he must be in a state of near delirium, that is to say, that his mind did not go with the statements he was making”.

The litmus test for oppression is whether the investigation was, by its nature, duration or other attendant circumstances, such as to affect the accused person’s mind and will such that he speaks when he otherwise would have remained silent: Tey Tsun Hang v Public Prosecutor [2014] 2 SLR 1189 at [113]. The same standard applies even where the allegation is not that the accused person would have remained silent, but that he would have given a different version of the statement, had he not been oppressed: Public Prosecutor v Ridhaudin Ridhwan bin Bakri [2019] SGHC 105 at [52].

The Court of Appeal in Chai Chien Wei Kelvin summarised the test for oppression as follows (at [56]-[57]): “(o)ppression is a circumstance which may render a confession involuntary and thus inadmissible, and whether the accused has been subjected to oppression is a question of fact … In other words, a statement would not be extracted by oppression unless the accused was in such a state that his will was ‘sapped’ and he could not resist making a statement which he would otherwise not have made”.

In this regard, Explanation 1 to s 258 of the CPC states that:

If a statement is obtained from an accused by a person in authority who had acted in such a manner that his acts tend to sap and have in fact sapped the free will of the maker of the statement, and the court is of the opinion that such acts gave the accused grounds which would appear to the accused reasonable for supposing that by making the statement, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him, such acts will amount to a threat, an inducement or a promise, as the case may be, which will render the statement inadmissible. [emphasis added]

Explanation 2(b) to s 258 of the CPC states that “If a statement is otherwise admissible, it will not be rendered inadmissible merely because it was made in any of the following circumstances: … (b) when the accused was intoxicated”.

Even if an accused person’s statement is voluntary, the court can exclude it if its prejudicial value outweighs its probative value, for example, where there is lack of language interpretation or procedural flaws in the recording which cast serious doubts on the accuracy of the statement recorded: Kadar at [53]-[56] and Sulaiman bin Jumari at [54].

Allegation against the recorder

The Defence alleged that Sgt Abdul Azmin bin Abdul Rahman⁵ had recorded a long statement even though the Accused was not in a proper mental and physical state to provide a statement.⁶ This was because he had been intoxicated by Ethanol, Nitrazepam, Nordiazepam, Tramadol,⁷ Mirtazapine, Quetiapine, and Benzhexol.⁸ This was essentially a claim of oppression, which arose individually or cumulatively from the following factors:⁹ He had drunk alcohol prior to his arrest and was under its influence at the material time; He had purchased and consumed illegal sleeping pills that could have contained benzodiazepines or any other unknown substances; It was possible that he held on to the prescribed medication issued by Changi Prison upon his release in June 2019 and had consumed it some 8 to 9 months later prior to his arrest; and He was suffering from withdrawal symptoms as he was dependent on all of the above substances.

Long statement was voluntarily given

After the ancillary hearing, I found that the Prosecution had proven beyond a reasonable doubt that the long statement recorded on 5 February 2020 at 10.55p.m. had been voluntarily given.¹⁰ I accepted the evidence of the Prosecution witnesses.

HSA analyst’s evidence

Ms Fu Baohui,¹¹ an analyst from the Health Sciences Authority (“HSA”), stated that all the...