Public Prosecutor v Ong Seow Ping and another

• Jurisdiction: Singapore
• Judge: Valerie Thean J
• Judgment Date: 06 April 2018
• Neutral Citation: [2018] SGHC 82
• Court: High Court (Singapore)
• Hearing Date: 04 October 2017,26 September 2017,28 September 2017,05 February 2018,03 October 2017,05 October 2017,17 January 2018,18 January 2018,19 January 2018,15 March 2018,27 September 2017
• Docket Number: Criminal Case No 64 of 2017
• Plaintiff Counsel: John Lu Zhuoren, Chin Jincheng and Shenna Tjoa Kai-en
• Defendant Counsel: Chung Ting Fai (Chung Ting Fai & Co) and Prasad s/o Karunakarn (K Prasad & Co),Nadwani Manoj Prakash (Gabriel Law Corporation), Jeeva Arul Joethy (Regent Law LLC) and Luo Ling Ling (Aequitas Law LLP)
• Subject Matter: Criminal Law,Statutory Offences,Misuse of Drugs Act
• Published date: 08 April 2020

Valerie Thean J: Introduction

Following a joint trial, I convicted the first accused, Ong Seow Ping (“Ong”) and the second accused, Abdul Rahim Bin Shapiee (“Abdul”) on separate charges of possessing a Class A controlled drug for the purpose of trafficking under s 5(1)(a), read with s 5(2), of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). As s 33B of the MDA was not applicable, I imposed the mandatory sentence of death on both accused persons. These are my reasons.

Charges

Ong is a 45-year-old male Singaporean who was initially charged with possessing, for the purpose of trafficking, 41 packets containing not less than 1,285.3g of granular/powdery substance which was found to contain not less than 51.73g of diamorphine (referred to by witnesses at the trial by its street name, heroin).¹ At the conclusion of the trial, the Prosecution accepted that Ong had intended to consume one of the packets which was found to contain 0.04g of diamorphine and applied for the charge to be amended accordingly pursuant to s 128(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”).² The Defence had no objection and the application was granted. I thereafter convicted Ong on the following charge:³

… on 3 August 2015, at about 10.20 p.m., inside unit #05-196 of Block 728 Jurong West Avenue 5, Singapore, did traffic in a Class ‘A’ controlled drug listed in the First Schedule to [the MDA], to wit, by having in your possession for the purpose of trafficking, forty (40) packets containing not less than 1284.05 grams of granular/powdery substance which was analysed and found to contain not less than 51.69 grams of diamorphine, without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) read with section 5(2) punishable under section 33(1) of the MDA, and further upon your conviction under section 5(1)(a) read with section 5(2) of the MDA, you may alternatively be liable to be punished under section 33B of the MDA.

Abdul is a 41-year-old male Singaporean, who was initially charged with possessing, for the purpose of trafficking, 14 packets and three straws containing not less than 965.6g of granular/powdery substance which was found to contain not less than 41.24g of diamorphine.⁴ The Prosecution accepted, after trial, that Abdul had intended to consume the eight packets and three straws found in two exhibits containing 1.37g of diamorphine. The Defence had no objection to the amendment of the charge to exclude these exhibits.⁵ I allowed the amendment and convicted Abdul on the following amended charge:⁶

… on 3 August 2015, at about 10.00am, inside unit #06-45 of Block 175C, Yung Kuang Road, Singapore, did traffic in a Class ‘A’ controlled drug listed in the First Schedule to [the MDA], to wit, by having in your possession for the purpose of trafficking, six (6) packets containing not less than 928.1 grams of granular/powdery substance which was analysed and found to contain not less than 39.87 grams of diamorphine, without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) read with section 5(2) punishable under section 33(1) of the MDA, and further upon your conviction under section 5(1)(a) read with section 5(2) of the MDA, you may alternatively be liable to be punished under section 33B of the MDA.

At the request of the Prosecution at the commencement of trial, the two accused, whose offences arose from the “same series of acts” (see s 144 of the CPC), were jointly tried. No objection was taken by defence counsel.⁷

Agreed Facts

An agreed statement of facts (“ASOF”) was tendered under s 267(1) of the CPC. The agreed facts are as follows.

At about 10.00am on 3 August 2015, officers with the Central Narcotics Bureau (“CNB”) raided unit #06-45 of Block 175C, Yung Kuang Road, Singapore (“the Yung Kuang Unit”), where Abdul was residing at the time. Abdul and one Nuraiin Binte Rosman (“Nuraiin”) were arrested in one of the bedrooms of the said unit. Abdul was packing granular powdery substances while Nuraiin was packing white crystalline substances.⁸

Seized exhibits included 14 packets and three straws of granular/powdery substance⁹. These exhibits, were marked A1A1 (two packets), A1B1 (three packets), B1A (three packets), B2A1 (one packet) and B4 (five packets and three straws). Abdul admitted to ownership and possession of the various exhibits seized. He knew that the various packets contained heroin.¹⁰ The six packets in A1A1, B1A and B2A1, which formed the subject matter of the amended charge which Abdul was convicted of, were found to contain a total of not less than 39.87g of diamorphine.¹¹ Several weighing scales, empty cut straws, glass tubes, empty plastic packets and other paraphernalia were also seized.¹² In Abdul’s presence, the seized exhibits were put into polymer bags and sealed.¹³

On the same day, at about 7.42pm, Ong called Abdul. Several calls later, Abdul informed the CNB officers that Ong would like to collect one pound of heroin at Block 728 Jurong West Ave 5, Singapore. Under the supervision of ASP Chor Guo Hui Desmond (“ASP Chor”), who was the officer in charge of the operation,¹⁴ Abdul called Ong at about 10.06pm, informing Ong that he had arrived at the carpark of Block 725 Jurong West Ave 5.¹⁵

At the same time, a second team of CNB officers was despatched to observe unit #05-196 of Block 728 Jurong West Ave 5, Singapore (“Jurong West Unit”).¹⁶ Ong was seen leaving the said unit at about 10.15pm, and he was arrested shortly thereafter at about 10.20pm, after a struggle, at the ground floor of Block 728 Jurong West Ave 5.¹⁷

Subsequently, Ong was brought to the Jurong West Unit, where he was residing at the time.¹⁸ Seized exhibits included the following: E1A (21 packets), E2A1A (one packet), F1A1 (one packet), G1A1A (one packet), H2 (one packet), J1A1 (five packets), J1B1 (five packets) and K1A1A (six packets).¹⁹ Ong admitted to ownership and possession, and knew that they contained heroin.²⁰ The seized exhibits were placed into polymer bags that were sealed in Ong’s presence.²¹ The Prosecution subsequently accepted that H2 (containing not less than 0.04g of diamorphine) was meant for Ong’s personal consumption. The remaining exhibits, 40 packets found to contain a total of not less than 51.69g of diamorphine,²² formed the subject matter of the charge which Ong was convicted of.

The applicable law and the key issue

Ong and Abdul were charged under ss 5(1) and (2) of the MDA which read as follows:

Trafficking in controlled drugs

5.—(1) Except as authorised by this Act, it shall be an offence for a person, on his own behalf or on behalf of any other person, whether or not that other person is in Singapore — (a) to traffic in a controlled drug;

…

(2) For the purposes of this Act, a person commits the offence of trafficking in a controlled drug if he has in his possession that drug for the purpose of trafficking.

“Traffic” (with “trafficking” given a corresponding meaning) is defined in s 2 of the MDA as (a) to sell, give, administer, transport, send, deliver or distribute; or (b) to offer to do the same, in the absence of authority given under the Act.

The Prosecution’s case was that Ong and Abdul possessed the various exhibits for the purpose of trafficking. The elements of a charge for possessing a controlled drug for the purpose of trafficking under s 5(1) read with s 5(2) of the MDA were set out by the Court of Appeal in Muhammad Ridzuan bin Md Ali v Public Prosecutor and other matters [2014] 3 SLR 721 at [59]: possession of a controlled drug; knowledge of the nature of the drug; proof that possession of the drug was for the purpose of trafficking which was not authorised.

Because it was clear from the agreed facts that both Ong and Abdul admitted that they had possessed the quantities of drugs stated in the proceeded charges and had known the nature of the drugs to be heroin,²³ only element (c) was in dispute in this case. The presumption of trafficking in s 17 of the MDA was applicable. Both Ong and Abdul were arrested with more than 2g of diamorphine in their possession, and the onus was accordingly on them to rebut the presumption on the balance of probabilities. The presumption provides:

Presumption concerning trafficking

17. Any person who is proved to have had in his possession more than —

…

(c) 2 grammes of diamorphine;

…

whether or not contained in any substance, extract, preparation or mixture, shall be presumed to have had that drug in possession for the purpose of trafficking unless it is proved that his possession of that drug was not for that purpose.

Ong and Abdul’s defences, which I will turn to, rested upon consumption. In Muhammad bin Abdullah v Public Prosecutor and another appeal [2017] 1 SLR 427 (“Muhammad bin Abdullah”) at [31], the Court of Appeal highlighted the following factors which are relevant when examining the defence of consumption: rate of drug consumption; frequency of supply; whether the accused had the financial means to purchase the drugs for himself; and whether the accused had made a contrary admission in any of his statements that the whole quantity of drugs was for sale.

These four factors formed the framework for considering the Prosecution’s case, the defences raised and my decision for each accused person, which I detail below.

Ong The Prosecution’s case

The Prosecution submitted that Ong’s defence of consumption was not plausible. They pointed out that the quantity of heroin found in the Jurong West Unit could sustain his addiction for 7 years and 31 days.²⁴ The Prosecution submitted that it was illogical for Ong to stockpile such a large quantity of heroin if he had genuinely intended to consume all of it, because he had ready...