Public Prosecutor v Norasharee Bin Gous
| Jurisdiction | Singapore |
| Judge | Toh Yung Cheong |
| Judgment Date | 22 February 2007 |
| Neutral Citation | [2007] SGDC 53 |
| Published date | 04 April 2007 |
| Court | District Court (Singapore) |
| Plaintiff Counsel | Adeline Ee (Deputy Public Prosecutor) |
| Defendant Counsel | S K Kumar (S K Kumar & Associates) |
| 22 February 2007 |
Judgment reserved. |
District Judge Toh Yung Cheong
1. The accused, Norasharee Bin Gous, was convicted after a trial on the following charge of consumption of a controlled drug under s.8(b) of the Misuse of Drugs Act (Chapter 185):
You, Norahsaree Bin Gous, m/33 years, are charged that you, on or before the 9th day of October 2006, in Singapore, did consume a Specified Drug listed in the Fourth Schedule to the Misuse of Drugs Act, Chapter 185, to wit, Buprenorphine, without any authorisation under the said Act and you have thereby committed an offence under Section 8(b)(ii) of the Misuse of Drugs Act, Chapter 185.
2. As the accused has appealed against his conviction and sentence, I will now set out the reasons for my decision.
Outline
3. On 9 October 2006, the accused was stopped at Woodlands Checkpoint and urine samples collected from him showed the presence of Buprenorphine, a controlled drug. The accused did not dispute the test result or the way in which his urine samples were collected and handed over to the Centre for Forensic Science for analysis.
4. The key issue in this case was whether the accused’s positive test result was due to him being prescribed Subutex by the Institute of Mental Health as part of the Subutex Voluntary Rehabilitation Program (“SVRP”).
Prosecution’s Case
Evidence concerning the urine samples and analysis
5. On 9 October 2006, Sergeant Teo Wee Hock (PW1) of the Central Narcotics Bureau (“CNB”) was on duty at the Woodlands Checkpoint when the accused was referred to him.[note: 1] The accused provided two bottles of his urine to Sgt Teo who then sealed the bottles and placed it in a locked metal container. The next day, Sergeant Chua Long Chor (PW2) from the CNB submitted the accused’s urine samples to the Centre for Forensic Sciences, Health Sciences Authority.
6. The urine samples were analysed by the Health Sciences Authority. The two HSA certificates issued under s.16 of the Act show that the accused’s urine samples contained Buprenorphine.
Evidence of PW5 Dr Thong Jiunn Yew
7. Dr Thong Jiunn Yew (“Dr Thong”), is a Registrar at the Department of General Psychiatry at the Institute of Mental Health (“IMH”). He testified that the IMH organised the Subutex Voluntary Rehabilitation Programme (“SVRP”) for addicts in order to wean them off Subutex addiction. This was in view of Buprenorphine (the active ingredient of the drug commonly known as “Subutex”) becoming a specified drug.
8. According to Dr Thong, the accused was placed on the SVRP and was initially seen by him on 23 August 2006. After being diagnosed with opiate dependence, the accused was prescribed Subutex over a period of five days. At the start, 8mg of Subutex was administered and the amount was progressively lowered and on the fifth day, only 2mg was administered. The Subutex was administered in an IMH clinic under the direct supervision of a pharmacist and the accused was not allowed to bring any Subutex home.
9. On 28 August 2006, Dr Thong reviewed the accused’s condition and found that the accused was suffered normal withdrawal symptoms. In the circumstances, Dr Thong did not prescribe any more Subutex or order that the accused be warded. According to Dr Thong, there were no records showing that the accused had been prescribed Subutex after 27 August 2006. In addition, he pointed out that in the normal course of events, treatment under the SVRP would be completed within five to seven days.
10. Dr Thong explained that after this medical treatment, patients could attend counselling sessions organised by the IMH. Counselling sessions were run by counsellors and not doctors and these counsellors could not prescribe or adminster Subutex. When it was put to Dr Thong that the accused had been given 8mg of Subutex on a weekly basis, Dr Thong replied that a weekly dose of Subutex would have no medical value in helping a patient rid himself of his addiction.
11. In addition, Dr Thong’s records show that the accused had been uncontactable after 28 August 2006. A letter dated 15 September 2006 had been sent by courier to the accused to inform him about his Hepatitis B status but the letter was returned unopened and without any acknowledgement from the accused.
Evidence of Dr Lui Chi Pang (PW6)
12. Dr Lui Chi Lang (“Dr Lui) is the Head of the Narcotics Laboratory (No.1) at the Centre for Forensic Sciences of the Health Sciences Authority of Singapore. He was called by the prosecution to give his expert opinion regarding the persistence of Buprenorphine in a person’s urine.
13. Dr Lui testified that Buprenorphine can generally be detected in the urine for about three to four days after a person consumes the drug. Though this is influenced by factors such as the amount of drug consumed, the amount of water consumed, and the individual metabolic and excretion rate, Dr Lui was of the view that the general detection period was around three to four days. In particular, given his knowledge of biochemisty, he also found it very unlikely that variations in metabolic rates among individuals could result large variations from the usual detection period of three to four days.
14. Dr Lui based his conclusions on his experience in this field and also on the relevant literature. He explained that Buprenorphine is a type of opiate similar to morphine and that the detection time would be similar to that of morphine, which is about three days. According to Dr Lui, it would be “extremely unlikely” that Buprenorphine consumed on 27 August can still be detected in a urine sample collected on 9 October.
15. During cross-examination, Dr Lui agreed that there was no specific scientific study done to calculate the persistence of Buprenorphine in urine. However he maintained that given his experience and reading of the literature in this field, he was in a position to say that the detection period was three to four days. He also mentioned that he had previously given evidence regarding the persistence of morphine in urine in both the Subordinate Courts and High Court and as far as he knew, his evidence has never been rejected.
Close of the prosecution’s case
16. Counsel for the accused made a submission of no case to answer as he claimed that there was “no evidence” that the accused consumed the Subutex on 9 October. Again, this tied in with Counsel’s position that the presumption under s.22 of the Misuse of Drugs Act did not apply in the present case[note: 2].
17. As I will explain later, I found that the presumption under s.22 of the Act was applicable in this case. After considering the relevant principles, I found that there was prima facie evidence, which if accepted as accurate, would establish each essential element of the alleged offence. Accordingly, I called upon the accused to enter his defence.
Defence Case
Evidence of the accused
18. The accused elected to give evidence in his own defence. Basically, his defence was that he had been prescribed Subutex right up to 30 September 2006, a week before his arrest:
a) On 23 August 2006, the accused registered for the SVRP.
b) After 28 August 2006, he went for counselling sessions at the IMH. He attended about two or three counselling sessions per week until September 2006.
c) He saw a counselor three times a week over five weeks.[note: 3] During these counselling sessions, the patients would ask for Subutex and the counsellor agreed to give them Subutex so that they could “relax.”[note: 4] They would all troop out of the counselling room and head to a doctor’s office. Once there, the doctor would take Subutex out of a drawer and give it to the counsellor. The counsellor would crush the Subutex and the doctor would give it to the patients who wanted it. The accused saw the doctor writing into a book after dispensing the Subutex. The doctor had also expressly stated that the dosage was 8mg.
d) The accused was unable to name any of the counsellors who dispensed Subutex to him despite the fact that he had met some of the counsellors more than once during the 15 sessions he attended and furthermore, each session lasted about two hours.
e) The last three occasions where he was prescribed Subutex were 28, 29 and 30 September 2006. The last counselling session he attended was on 30 September 2006.
f) The accused could not provide any documentary evidence to substantiate his claim that he attended the counseling sessions as he did not know where his attendance card was.
Prosecution’s rebuttal evidence
19. After the accused gave evidence, the prosecution sought to call Ms Elizabeth Pang, Head of the Counselling Programme of the SVRP as a rebuttal witness. The Defence objected to this and highlighted the case of Bridges Christopher v PP
20. In Bridges Christopher v PP, the High Court set out the criteria which a court should consider before allowing rebuttal evidence to be called. In particular, Yong CJ stated at paras 84-85:
84 The law in relation to the calling of rebuttal evidence was recently dealt with by the Court of Appeal in Zainal bin Kuning & Ors v Chan Sin Mian Michael
It is true that a discretion lies with the trial judge to allow the plaintiff to call evidence to rebut evidence of the defence: Williams v Davies 1 Cr & M 464; 149 ER 481. This is so even where the defence was disclosed in the cross-examination of the plaintiff and his witnesses: Shaw v Beck (1853) 8 Exch 392. Generally, leave will be granted where the party has been misled or taken by surprise: Bigsby v Dickinson (1876) 4 Ch D 24. The same principles were enunciated in Rafiq Jumabhoy v Alrich
‘It seems to me settled law that evidence in rebuttal should only be permitted to a plaintiff (i) if a matter or development has quite unexpectedly arisen during trial which the plaintiff could not reasonably anticipate or (ii) in answer to evidence of the defendant in...
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