Public Prosecutor v Muhammad Farid bin Sudi and others

• Jurisdiction: Singapore
• Judge: Hoo Sheau Peng JC
• Judgment Date: 21 September 2017
• Neutral Citation: [2017] SGHC 228
• Court: High Court (Singapore)
• Hearing Date: 31 January 2017,26 January 2017,10 February 2017,25 January 2017,09 February 2017,24 January 2017,15 February 2017,22 February 2017,15 May 2017,23 February 2017,08 February 2017,16 February 2017,17 February 2017,21 February 2017,15 June 2017,14 February 2017
• Docket Number: Criminal Case No 2 of 2017
• Plaintiff Counsel: Wong Woon Kwong and Sarah Shi (Attorney-General's Chambers)
• Defendant Counsel: Mahmood Gaznavi s/o Bashir Muhammad (Mahmood Gaznavi & Partners) and Mahadevan Lukshumayeh (ST Chelvan & Company),Luke Lee Yoon Tet (Luke Lee & Co) and Sukdave Singh s/o Banta Singh (Winchester Law LLC),Mohamed Niroze Idroos and Mohamed Baiross (IRB Law LLP)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act
• Published date: 30 October 2018

Hoo Sheau Peng JC: Introduction

The three accused persons in this case were tried jointly on charges of trafficking in diamorphine. The first accused person, Muhammad Farid bin Sudi (“Farid”), and the third accused person, Tika Pesik (“Tika”), each claimed trial to a single charge of trafficking in a controlled drug, namely 26.29g of diamorphine, in furtherance of their common intention, an offence under s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed). The second accused person, Hamzah bin Ibrahim (“Hamzah”), claimed trial to a charge of having the 26.29g of diamorphine in his possession for the purpose of trafficking, an offence under s 5(1)(a) read with s 5(2) of the MDA.

The charges stated that Farid and Tika made arrangements between 19 and 20 December 2013 for Farid to deliver two packets of granular/powdery substance (which, on analysis, was found to contain 26.29g of diamorphine) to Hamzah on 20 December 2013, and that Farid did so on that day from about 1.40pm to 2 pm while he was in a car with Hamzah.

At the conclusion of the trial, I found that the elements of the respective charges were made out against each of the accused persons, and I convicted them accordingly.

The prescribed punishment under s 33(1) of the MDA, read with the Second Schedule to the MDA, is death. Section 33B(1)(a) provides that if the two requirements set out in s 33B(2) are satisfied, the court has a discretion not to impose the death penalty. The first requirement is that the acts of the accused were restricted to those listed in s 33B(2)(a)(i)–(iv) – acts which have been referred to as those of a “courier”. The second requirement, as stated in s 33B(2)(b), is that the Public Prosecutor (“PP”) certifies that the accused person has substantively assisted the Central Narcotics Bureau (“CNB”) in disrupting drug trafficking activities within or outside Singapore.

I found that: Farid met both requirements. His role in the transaction was to deliver the drugs to Hamzah. His packing of the drugs into a plastic bag was incidental to the delivery and he thus acted as no more than a courier. The PP issued a certificate of substantive assistance. Hence, I imposed the mandatory sentence of life imprisonment and 15 strokes of the cane on him. Hamzah only met the second requirement. He was issued a certificate of substantive assistance by the PP. However, it was clear to me that his purpose after taking delivery of the drugs was to sell them. His involvement in the transaction went beyond that of a courier. I passed the mandatory death sentence on him. Tika met neither requirement. She had coordinated the supply of the drugs to Hamzah through Farid and another person and could not be said to have acted as a courier. Also, she was not issued a certificate of substantive assistance by the PP. Hence, I passed the mandatory sentence of death on her.

Hamzah and Tika have each filed an appeal against their conviction and sentence. I now provide the reasons for my decision.

The undisputed facts

I will first set out the undisputed facts.

Arrest of the accused persons and seizure of the exhibits

On 20 December 2013, at about 1.40pm, Farid drove a car bearing registration number SGM 8355Y (“the Car”) to Deck 5 of the multi-storey carpark at Block 632 Senja Road. He parked the Car near the walkway link on Deck 5. Hamzah walked from the walkway link towards the Car, boarded it, and sat in the front passenger seat.¹

Farid drove the Car to Dairy Farm Crescent. At about 2pm, Farid stopped the Car along Dairy Farm Crescent, before Dairy Farm Road, and turned on the hazard lights. Hamzah alighted and crossed the road towards the rubbish collection point at Dairy Farm Crescent.²

When he was near the rubbish collection point, officers from the CNB moved in and arrested Hamzah. Farid, who was still in the driver’s seat of the Car, was also placed under arrest. ³

Farid and Hamzah were escorted by CNB officers in two vehicles to Deck A2 of the multi-storey carpark at Block 217A Petir Road. Farid was in the Car, while Hamzah was in a CNB vehicle. At the carpark, the Car was searched in the presence of Farid and Hamzah.⁴

The CNB officers took a number of items from the Car as exhibits. The following are the significant exhibits:⁵ A white plastic bag (bearing the logo “Giant”) containing a sheet of newspaper, one larger plastic packet of brown granular powdery substance (“A1A1”) and one small plastic packet of brown granular powdery substance (“A1A2”). The contents within the two packets formed the subject matter of the charges; A white plastic bag containing both a packet of empty white plastic bags of the same type and three packets of empty zip lock bags. A stack of Singapore dollar bills tied with a red rubber band, amounting to $1,800; A white plastic bag (bearing the logo “FairPrice”) containing a stack of Singapore dollar bills tied with two red rubber bands, amounting to $4,510; A sling bag containing a packet wrapped and taped with brown paper. The packet contained a plastic packet which itself contained 10 packets of granular/powdery substance. There was another white plastic bag, tied with a red rubber band, containing brown granular/powdery substance; A “Davidoff” perfume box containing a plastic packet containing one packet of crystalline substance, two packets of brown granular/powdery substance and one packet of empty zip lock bags; An improvised utensil; and A digital weighing scale.

Also, certain personal possessions of Farid and Hamzah were seized, including Farid’s mobile phone (marked as “MF-HP”), and Hamzah’s two mobile phones (marked as “H-HP1” and “H-HP2”).

On 8 September 2014 at about 3.35pm, Tika was stopped at Woodlands Checkpoint when she attempted to enter Singapore as she had been placed on the “wanted persons” list. There were three other people in the car with her, K Saravanan A/L Kuppusamy (“Saravanan”), her husband Ahmad Hanafi bin Sudi and her son Muhammad Firdaus bin Ahmad Hanafi.⁶

Analysis of exhibits by the Health Sciences Authority

On 24 December 2013, A1A1 and A1A2 were submitted by the CNB to the Health Sciences Authority (“HSA”) for analysis.⁷

Exhibit A1A1 was analysed and found to contain not less than 18.28 g of diamorphine, which is a Class A controlled drug under the first Schedule to the MDA.⁸ Exhibit A1A2 was analysed and found to contain not less than 8.01 g of diamorphine.⁹ In total, exhibits A1A1 and A1A2 were found to contain not less than 26.29g of diamorphine, and formed the subject matter of the charges.

HSA’s analysis also revealed that Farid’s DNA was found on¹⁰ the “Giant” plastic bag, the exterior of A1A2, the sling bag, some of the packets of brown granular/powdery substance inside the sling bag, the packet of crystalline substance inside the perfume box, the packets of brown granular/powder substance inside the perfume box, and the digital weighing scale. Hamzah’s DNA was found on the exterior surface of the digital weighing scale.¹¹

Statements of the accused persons

Pursuant to s 258(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”), the Prosecution tendered certain statements recorded from the accused persons in the course of investigations as part of its case. There were no objections from the accused persons as to their admissibility, although at [26]–[27] below, I set out how Hamzah vacillated on the admissibility of his statements. Also, I pause to add that while Farid and Hamzah did not dispute the contents of their statements (which implicated all three accused persons), Tika alleged that Farid and Hamzah had falsely implicated her in drug dealings. The significance of this allegation will be dealt with from [58] onwards.

Statements made by Farid

Eight statements were recorded from Farid, and all of them were admitted into evidence. These were: The contemporaneous statement recorded under s 22 of the CPC recorded on 20 December 2013 at 3.07pm by Staff Sergeant Norizan binte Merabzul;¹² The cautioned statement recorded under s 23 of the CPC on 21 December 2013 by Station Inspector Muhammed Nizammudin (“SI Nizamuddin”)¹³; Five long statements recorded by SI Nizamuddin under s 22 of the CPC on 22 December 2013, 23 December 2013, 24 December 2013, 14 July 2014 and 27 August 2014. These were marked as “P98”, “P99”, “P100” , “P101” and “P102”; and A long statement recorded on 9 September 2014 under s 22 of the CPC by Station Inspector Fathli bin Mohd Yusof (“SI Fathli”).¹⁴

In his contemporaneous statement, Farid said that the plastic bags and money found in the Car belonged to Hamzah. He said that the other plastic bags which contained “chocolate powder” had been taken in the morning at Woodlands from an “Indian person from Malaysia”.¹⁵ He described himself as a “drug sender” who would need to wait for a call to be told where to send the drugs.

In his cautioned statement, Farid said that he was “not willing to take the responsibility as the drugs [were] not [his]”¹⁶. He added that “[t]hey just told me to send the drugs to the people who will call me”, although he did not identify who “they” referred to.

Of the five long statements, P98, P99, and P100 were significant in that they contained an extensive account of Farid’s involvement in the transaction for which he was arrested and similar previous transactions. According to these statements: Farid was also known as “Boy”. He had come to know of a person named “Nana” when a friend of his, “Farid Botak” had called her using his mobile phone. That was also how Nana got his mobile number. Nana called him in August or September 2013 saying she was looking for Farid Botak who, according to her, had run away with “drug” money. Farid said he was looking for Farid Botak too. Nana gave him directions to Farid Botak’s house.¹⁷ A few weeks later, Nana...