Public Prosecutor v Ng Pen Tine and Another

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 14 October 2009
• Neutral Citation: [2009] SGHC 230
• Court: High Court (Singapore)
• Published date: 20 October 2009
• Citation: [2009] SGHC 230
• Plaintiff Counsel: Tan Kiat Pheng and Ferlin Jayatissa (Attorney-General's Chambers)
• Defendant Counsel: Leo Cheng Suan (Infinitus Law Corporation) and Lam Wai Seng (Lam W S & Co),Fong Chee Yang (C Y Fong & Co) and John Tay Choon Leng (John Tay & Co)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act
• Year: 2009

14 October 2009 Judgment reserved.

Chan Seng Onn J:

Introduction

1 The present charge against the first accused, Ng Pen Tine (“1st accused”), a Singaporean national, reads:

That you, Ng Pen Tine, On the 4th day of October 2007 at about 9.30 a.m. at the pavement in front of Block 55A Commonwealth Drive, Singapore, did traffic in a controlled drug specified in Class “A” of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, by having in your possession for the purpose of trafficking sixty-one (61) packets of granular/powdery substance containing a total of not less than 34.97 grams of diamorphine without any authorisation under the Misuse of Drugs Act or the regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) read with section 5(2) and punishable under section 33 of the said Act.

2 The second accused, Lam Chee Yong (“2nd accused”), a Malaysian national, allegedly passed the said 61 packets of heroin to the 1st accused. The charge against him reads:

That you, Lam Chee Yong, On the 4th day of October 2007 at about 9.20 a.m. at the car park in front of Block 61 Commonwealth Drive, Singapore, did traffic in a controlled drug specified in Class “A” of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, by handing over sixty-one (61) packets of granular/powdery substance containing a total of not less than 34.97 grams of diamorphine to one Ng Pen Tine without any authorisation under the Misuse of Drugs Act or the regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) and punishable under section 33 of the said Act.

3 The other charges against the accused persons were stood down.

The factual background

4 On the morning of 4 October 2007 at 7.35am, officers from the Central Narcotics Bureau (“CNB”) began to observe the actions of the 1st accused at Block 36 Tanglin Halt Road.

5 At about 8.45am, a Malaysian-registered car bearing the car registration number JFS 1554 (“the Car”) was sighted entering Commonwealth Drive. It eventually parked in front of Block 39 Tanglin Halt Road, with its driver, the 2nd accused, sitting at a pavilion beside Block 42 Tanglin Halt Road.

6 Within a short time, the 1st accused was observed meeting the 2nd accused at the pavilion. They conversed with each other as they made their way to the Car. They then boarded the Car and drove off.

7 At about 9.20am, the Car was observed to be parked in front of Block 61 Commonwealth Drive. The 1st and 2nd accused both alighted, empty-handed, and went to the rear of the Car. Subsequently, the former was seen holding a plastic bag. The latter was seen opening the car boot, taking some newspapers and an inflatable wading pool out of the boot, and throwing them on the ground. Both of them were then observed to be meddling with something in the boot.

8 Thereafter, the 1st and 2nd accused took six black bundles out from the boot, four from the right signal light compartment and two from the left signal light compartment and placed them in the plastic bag which the 1st accused brought. The 1st accused took the plastic bag containing the six bundles and left the 2nd accused. He then walked towards Commonwealth Drive with the plastic bag. The 2nd accused went back to the Car and drove away.

9 At about 9.30am, CNB officers arrested the 1st accused in front of Block 55A Commonwealth Drive. The 1st accused put up a violent struggle but was eventually subdued. The plastic bag was seized and was found to contain the six bundles. These were later analysed and found to contain 34.97 grams of diamorphine in 61 packets, 50 slabs of Nimetazepam tablets and 50 tablets of Methylenedioxy phenethylamine in one plastic packet.

10 As for the 2nd accused, he drove off after the transaction with the 1st accused. CNB officers tailed him until he reached Woodlands Centre. At about 9.45am, CNB officers arrested the 2nd accused as he walked towards Block 4A Woodlands Centre Road.

11 After arresting the 1st accused, CNB officers proceeded to raid #01-73 of Block 36, Tanglin Halt Road (“the Flat”) where they recovered more controlled drugs from the master bedroom. The Flat was the residence of the 1st accused’s girlfriend, one Tay Bee Hoon (“Tay”). After considerable struggle, Tay was placed under arrest.

12 The 1st and 2nd accused were eventually charged for drug trafficking.

Admissibility of the 1st accused’s statements

13 The prosecution’s case is based, inter alia, on the testimonies of the various CNB officers involved in the case including the CNB Investigating Officer, ASP Soh Choon Hock Richard (“ASP Richard Soh”), statements made by the 1st accused and 2nd accused to ASP Richard Soh and the testimonies of the doctors who examined both accused persons in the course of investigations.

14 The prosecution sought to admit the following five statements of the 1st accused recorded by ASP Richard Soh:

(i)	First cautioned statement recorded under section 122(6) Criminal Procedure Code (“CPC”) on 4 October 2007 between 9.02 p.m. and 9.20 p.m. at CNB Headquarters (“First Cautioned Statement”);
(ii)	Second cautioned statement recorded under section 122(6) CPC on 4 October 2007 between 9.21 p.m. and 9.28 p.m. at CNB Headquarters (“Second Cautioned Statement”);
(iii)	First statement recorded under section 121 CPC on 10 October 2007 between 6.54 p.m. and 8.54 p.m at CNB Headquarters (“First Long Statement”);
(iv)	Second statement recorded under section 121 CPC on 11 October 2007 between 9.30 a.m. and 12.18 p.m. at CNB Headquarters (“Second Long Statement”); and
(v)	Third statement recorded under section 121 CPC on 30 November 2007 between 10.05 a.m. and 10.58 a.m. at Queenstown Remand Prison (“Third Long Statement”).

15 The 1st accused challenged the admissibility of these five statements, on the ground that his answers found in these statements were involuntary, having been given as a result of a variety of threats, inducements and promises, and otherwise under oppressive conditions when he was suffering from drug withdrawal symptoms, coldness, tiredness, insufficient rest and/or hunger.

16 Counsel submitted that the 1st accused was assaulted at the time of his arrest. His girlfriend, Tay, was also assaulted in the master bedroom of the Flat. The 1st accused was threatened that if he did not cooperate, both he and Tay would be further assaulted. In addition, the following promises and inducements were made by ASP Richard Soh to the 1st accused:

(i)	His capital charge would be reduced to one of trafficking in not less than 14.99 grams of diamorphine or to one in which he would be liable for 20 to 30 years’ imprisonment;
(ii)	Tay would not face the death penalty;
(iii)	The 1st accused was offered and allowed to smoke two cigarettes;
(iv)	His capital charge would be reduced if he would identify his drug supplier, one “Ah Seng”.

17 Counsel produced a table showing what threats, inducements and promises and oppressive conditions operated on the 1st accused in respect of each of the five statements, thereby rendering all of them involuntary.

[LawNet Admin Note: Table is viewable only by LawNet subscribers via the PDF in the Case View Tools.]

The law

18 The law on the operation of threat, inducement, promise and oppression in respect of voluntariness of statements made by accused persons is fairly well settled. First, there must objectively be a threat, inducement or promise and second this subjectively must operate on the mind of the accused: Chai Chien Wei Kelvin v PP [1999] 1 SLR 25. Any self-perceived inducement will not in law amount to an inducement or promise: Lu Lai Heng v PP [1994] 2 SLR 251. A statement given when the accused exhibited drug withdrawal symptoms would be involuntary if he is in a state of near delirium such that his mind did not go with the statement he was making: Garnam Singh v PP [1994] 2 SLR 243.

19 With respect to the issue of oppression, it was held in the seminal case of R v Priestly (1966) 50 Cr App R 183 that it must be something which leads to sap or has sapped the accused’s free will before a confession is rendered involuntary.

20 In Yeo See How v PP [1997] 2 SLR 390, the appellant alleged that (i) he was feeling cold; (ii) he was not given medicine for his gastric pain; and (iii) he was hungry. It was held that there was no necessity for the interrogators to remove all discomfort. On the contrary, some discomfort had to be expected. The issue was whether the discomfort was of such a great extent that it caused the making of an involuntary statement.

21 In PP v Tan Boon Tat [1990] SLR 375, it was held that even when an accused person was tired, hungry, and thirsty and under great stress, this was insufficient to amount to oppression unless he was in such a state that he had no will to resist making the statement.

22 In Ong Seng Hwee v PP [1999] 4 SLR 181, the appellant alleged that he was given little to eat and laboured under illness and medication at the time the statement was recorded from him. It was held that the relevant inquiry was whether the circumstances prevailing at the time of the recording of the statement were such that the appellant’s free will was sapped and he could not resist making the statement. It was held that the evidence as a whole suggested that the appellant was perfectly alert and lucid, albeit tired. The circumstances hardly came close to establishing the requisite weakening of the appellant’s free will that would render the statement involuntary.

23 As was set out in Teo Yeow Chuah v Public Prosecutor [2004] 2 SLR 564, the court ought to be satisfied beyond reasonable doubt that the statements of the accused sought to be admitted in evidence were given voluntarily without any threat, inducement or promise or any form of oppressive conduct or coercion before admitting them into evidence at the trial. It is trite law that the burden of proof is on...