Public Prosecutor v Ong Chin Keat Jeffrey
| Jurisdiction | Singapore |
| Judge | Aedit Abdullah |
| Judgment Date | 31 May 2004 |
| Neutral Citation | [2004] SGDC 130 |
| Plaintiff Counsel | Mr Tan Chee Meng with Ms Melanie Ho (Harry Elias Partnership) |
| Published date | 21 June 2004 |
| Court | District Court (Singapore) |
| Defendant Counsel | ASP Thulesiram (Prosecuting Officer) |
| Subject Matter | Criminal Law,Misuse of Drugs Act,Whether accused should be convicted of possession only when act of trafficking was induced by the Central Natcotics Bureau,Whether accused was within the targeted class of the trafficking provisions |
31 May 2004
District Judge Aedit Abdullah:
The Appeal
1. The accused was tried on one charge of trafficking in a Class A controlled drug, namely Ecstasy, by selling one tablet of Ecstasy to an undercover CNB officer. The charge, Exhibit P1A, reads:
You, Jeffrey Ong Chin Keat, Male, 30 years, NRIC S7305455I are charged that you on, on the 15th day of July 2003 at about 11.40 am, at Tiong Bahru MRT Station, 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 selling one (1) tablet marked “CU” which was analysed and found to contain 0.12 gram of N, a-dimethyl-1,3-(methylenedioxy)phenethylamine, to one W/Sgt Jennifer Lim, an officer of the Central Narcotics Bureau, at S$80/-, at the said place, without any authorization under the said Act or the Regulations, made thereunder, [and] you have thereby committed an offence under Section 5(1)(a) of the Misuse of Drugs Act, Chapter 185 and punishable under Section 33 of the Misuse of Drugs Act, Chapter 185.
2. Another charge of possession of Ecstasy was stood down pending the trial. At the conclusion of the trial, this Court found the accused guilty as charged, convicted him, and sentenced him to five and a half years’ imprisonment and 5 strokes of the cane.
3. The accused now appeals against conviction and sentence.
The Facts
The Statement of Agreed Facts
4. A statement of agreed facts was agreed between the parties, and this was admitted under s 376 of the CPC. The Statement of Agreed Facts, Exhibit P3A, [hereafter, the SOAF] reads, in material portions, as follows:
3. On 14th July 2003, SSgt Patrick Chan was chatting on the Internet IRC using the nickname ‘Johnny’ when he saw someone advertise the sale of Viagra on one of the chatrooms. So SSgt Patrick Chan inquired into the price of the Viagra. Thereafter, after an inquiry by ‘Johnny, the person agreed to sell one Ecstasy pill to ‘Johnny’. SSgt Patrick then obtained the person’s mobile phone number and proceeded to discuss the sale of one Ecstasy pill via SMS. SSgt Patrick also informed CNB Sgt Shahrulnizam of this case. SSgt Patrick arranged to meet the person at Tiong Bahru Plaza the next day and told him that he, SSgt Patrick will bring a friend along. The person agreed to meet SSgt Patrick at Tiong Bahru Plaza the next day.
4. On 15th July 2003, complainant and the team of CNB Supervision A planned an operation to arrest the Accused. SC Sgt Vikas was to pose as ‘Johnny’ and W/Sgt Jennifer Lim would be present at the transaction as well. At the meeting, ‘Johnny’ asked for the original price of S$140 to be reduced to S$40. Johnny told the accused that $40 was the market price. The accused said that his lowest price was S$80 and he left since the price could not be agreed. Later, Johnny called the accused back on his handphone and agreed to the sale of one pill at $80. The accused sold (1) tablet (later marked ad [sic] JEF-1) to undercover CNB officer W/Sgt Jennifer Lim at the said place for the price of $80. Subsequently, at or about 11.40 am, at Tiong Bahru MRT Station, the Accused was arrested by a party of CNB officers from CNB Supervision A, led by the complainant. A search was conducted on the Accused and the marked notes of one (1) piece of S$50 note and three (3) pieces of S$10 notes were found clutched in his right fist….
5. According to the SOAF, the tablet was analysed and found to contain N, a-dimethyl-3-4-(methylenedioxy)Phenethylamine, which is a Class A controlled drug listed in the First Schedule to the MDA. The SOAF concluded by stating that investigations revealed that the accused had procured the Ecstasy pill from a customer to whom he had sold Viagra over the internet.
6. The Prosecution was content to rest on the SOAF, the defence indicating that they did not require any cross-examination of any of the prosecution witnesses.
The defence
7. The accused, as is evident from the SOAF, does not deny that the transaction took place. Nor does the accused deny knowledge of the nature of the drug.
8. The accused, who has O levels, testified that he runs a business in film distribution. He also sold generic Viagra on the internet. In May 2003, he had a customer asking for 4 pills of Viagra, which was to be sold for $160. The accused agreed to meet the customer, and gave the customer 4 pills in a strip. However, the customer had only $80, although the price was supposed to be $160. The customer gave two pills, one of which is the Ecstasy pill in question in the charge.
9. When the accused got back home, he cut up one of the pills to see what it was like. He left the other pill, as well as the fragments left from cutting up the other, on a shelf, and forgot about it.
10. About 2 months later, around July 2003, while the accused was chatting on the Internet, and selling generic Viagra, the accused was asked by someone whether he had Ecstasy. The accused remembered he had one Ecstasy pill. The accused agreed to sell the pill at $150. The customer had actually asked for 7 pills more, but the accused told him that he had only one. The accused says that he did not have 7 pills to sell as he was selling Viagra.
11. The accused and the customer agreed to meet. There were a number of SMS messages exchanged, as the customer asked the accused for more pills.
12. The accused and the customer met at Tiong Bahru Plaza. The customer was with a lady. These persons asked the accused to sell the pill at a cheaper rate. They told the accused that the market price was between $25 to $30, to which the accused told them he wanted $150. The parties bargained, with the negotiations coming down to $80, but there was no deal as the buyers did not agree to that price.
13. The accused then walked down to the MRT station. He was then called by the customer, who agreed to $80. When the accused returned to the first floor of Tiong Bahru Plaza, the customer was there. The accused passed the pill to the customer, who paid him. At that point, the accused was arrested.
14. After the arrest, the accused was brought back to CNB. He told the CNB that he had obtained the pill from a person he had sold the Viagra to. He assisted the CNB by messaging to the person he had sold Viagra to.
15. The accused testified that at the time of the transaction he did not know the market price of Ecstasy. He did not post the Ecstasy for sale in the internet chat room, and was selling generic Viagra only. The accused further testified that apart from the one pill, he had never sold Ecstasy before.
16. In cross-examination, the accused testified that he did not know that it was wrong to sell generic Viagra; he thought it was only wrong if he sold fake Viagra. He said it was only later that he came to know it was wrong to sell Viagra. The accused admitted that he was told by his Viagra customer that the 2 pills given to him for the Viagra were Ecstasy pills, and he was satisfied that they were Ecstasy pills. The accused claimed that he would have been satisfied with anything that was given to him in return for the Viagra. The accused just wanted the shortfall in the payment to him to be made up. The accused could not sell less than 4 pills to his customer as the Viagra came in a strip. The accused claimed that if he did not take the Ecstasy pills offered to him, and just accepted the $80 that the customer had with him, the customer might ask him to do so against he next time, instead of paying the full amount. The accused was prepared to make a loss, but wanted to get back something.
17. The accused further claimed when questioned by the Prosecution that although he knew that Ecstasy was a drug, he did not know that it was so serious as to merit a jail term. He however knew that it was wrong to buy Ecstasy, and when it was put to him, he agreed that it was wrong to sell the Ecstasy. When questioned by the court why he had sold the Ecstasy when he knew it was wrong, the accused said that he wanted to get back the shortfall on the Viagra sale earlier.
Submissions
The Prosecution
18. The Prosecution’s case was that the SOAF, and the testimony of the accused, were such to show that the charge had been proven beyond a reasonable doubt. Pointing to the reliance by the defence on the case of Ng Yang Sek v PP
The Defence
19. The defence is that the accused is not within the targeted class of the Misuse of Drugs Act. Counsel for the accused submitted that the accused was not guilty of trafficking as, firstly, the offence committed by him was not trafficking under the MDA. In Counsel’s words, the accused was not an evil trafficker intended to be addressed by the statute. Secondly, there was such instigation by the CNB in this case that went beyond fair and reasonable entrapment, that the accused should not be convicted of trafficking.
The criminal act was not trafficking
20. Taking the first point, that the offence was not trafficking, Counsel argued that the Accused is not within the targeted class of the MDA. Counsel contends the accused was not a person who ‘truly and extensively, traffic in controlled drugs. It is said that the accused did not procure the Ecstasy pills, but these were acquired by him in the course of another transaction, and he had not attempted to sell of the pills immediately, but had kept them with him for about 2 months. The accused, was not, in other words, a trader in narcotics.
21. Counsel also argues that the minimum sentence of 5 years and 5 strokes is too severe punishment for the circumstances of his case.
22. Ng Yang Sek is relied upon for the statement of the Court of Appeal in that case, that in construing whether the accused was guilty of trafficking, the court considered whether he fell within the class of offenders that the legislature had in mind when s 5 of the MDA was...
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