Public Prosecutor v Punithan a/l Genasan

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 15 May 2020
• Neutral Citation: [2020] SGHC 98
• Court: High Court (Singapore)
• Hearing Date: 16 January 2018,02 March 2020,11 January 2018,27 November 2018,14 January 2019,07 February 2019,12 July 2018,12 January 2018,21 November 2018,17 January 2018,28 November 2019,10 July 2018,28 November 2018,11 July 2018,26 November 2019,18 January 2018,09 July 2018,22 November 2018,19 November 2019,08 February 2019,20 November 2019
• Docket Number: Criminal Case No 2 of 2018
• Plaintiff Counsel: Terence Chua and Wuan Kin Lek Nicholas (Attorney-General's Chambers)
• Defendant Counsel: Peter Keith Fernando (Leo Fernando LLC), Chia Kok Seng (KSCGP Juris LLP) and Chenthil Kumar Kumarasingam (Oon & Bazul LLP)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act
• Published date: 20 May 2020

Chan Seng Onn J: Introduction

The accused person, Punithan a/l Genasan, claimed trial to the following charge under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”) and s 34 of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”):

That you, PUNITHAN A/L GENASAN,

on 28 October 2011, in Singapore, together with one V Shanmugam a/l Veloo and Mohd Suief bin Ismail, in furtherance of the common intention of you all, did traffic in a Class A controlled drug listed in the First Schedule to the Misuse of Drugs Act (Cap. 185,2008 Rev. Ed.) ("the Act"), to wit, that on 12 October 2011, at the West Coast McDonald's carpark you had introduced the said V Shanmugam A/L Veloo to one Mohd Suief Bin Ismail to facilitate an impending drug transaction, and pursuant to this meeting between the three of you, on 28 October 2011, V Shanmugam A/L Veloo, acting under your direction, came into Singapore driving a motor vehicle JLT8467 and met up with Mohd Suief Bin Ismail, and V Shanmugam A/L Veloo did have in his possession, with your knowledge and consent, 10 packets of granular/powdery substance which were analysed and found to contain not less than 28.50g of diamorphine, which is a Class A controlled drug listed in the First Schedule to the Act, for the purposes of trafficking in the said controlled drug with Mohd Suief Bin Ismail, and the possession and intended transaction of the said controlled drug was without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under section 5(l)(a) of the Act read with section 5(2) of the Act and section 34 of the Penal Code (Cap 224, 2008 Rev Ed), and the offence is punishable under s 33(1) of the Act.

His trial follows on the back of the convictions of V Shanmugam a/l Veloo (“Shanmugam”) and Mohd Suief bin Ismail (“Suief”) (collectively, the “Couriers”). The Prosecution’s case is that the accused was the mastermind who directed the Couriers to transport and deliver not less than 28.50g of diamorphine on 28 October 2011. The Defence’s case is a denial of the accused’s involvement.

At the end of the trial, I reserved judgment. Having considered the evidence led at trial and the submissions of the parties, I find that the Prosecution has proven the charge against the accused beyond a reasonable doubt and I convict him accordingly. Here are the reasons for my decision.

Facts

I begin with the undisputed facts.

On 28 October 2011, the Couriers trafficked in not less 28.50g of diamorphine in furtherance of their common intention. They were convicted after a joint trial before Choo Han Teck J on 3 February 2015 (see PP v V Shanmugam a/l Veloo and another [2015] SGHC 33 (“HC 2014 Trial”). Shanmugam was sentenced to life imprisonment and 15 strokes of the cane while Suief was sentenced to death. Their convictions and respective sentences were upheld by the Court of Appeal (“CA”) in Mohd Suief bin Ismail v PP [2016] 2 SLR 893.

While there is no agreed statement of facts, the following points do not appear to be in dispute: The accused was not in Singapore on 28 October 2011.¹ On 28 October 2011, Shanmugam entered Singapore driving a vehicle with license plate no. JLT 8467 (“Kenari car”).² Shanmugam picked up Suief from a bus stop at Haw Par Villa before driving to an Esso petrol kiosk.³ The Couriers proceeded to Block 405 Pandan Gardens. There, Suief alighted from the Kenari car carrying a black plastic bag (“Black Plastic Bag”) containing three bundles of diamorphine.⁴ He placed the Black Plastic Bag amongst some flowerpots on the staircase landing between the seventh and eighth floor of Block 405 Pandan Gardens (“Staircase Landing”).⁵ Officers from the Central Narcotics Bureau (“CNB”) arrested Suief at his mother’s flat on the 13th floor of Block 405 Pandan Gardens and Shanmugam in the Kenari car.⁶ Three bundles of diamorphine were found inside the Black Plastic Bag which was placed amongst the flowerpots at the Staircase Landing. Seven bundles of diamorphine were found inside a Mizuno Bag (“Mizuno Bag”) in the Kenari car.⁷ The ten bundles were found to contain not less than 28.50g of diamorphine (collectively, “the Controlled Drugs”).⁸

The accused last entered and left Singapore on 12 October 2011.⁹

During the course of investigations, Shanmugam implicated the accused as being the mastermind behind the drug transaction on 28 October 2011.¹⁰ Investigating Officer Assistant Superintendent Xie Junhao thus applied for a warrant of arrest for the accused on 25 February 2014.¹¹ The accused was arrested in Malaysia on 16 January 2016, extradited to Singapore on 21 January 2016 and arrested by CNB officers at the Woodlands Checkpoint.¹²

The law

The accused faces a charge under s 5(1)(a) read with s 5(2) of the MDA and s 34 of the Penal Code. As it is undisputed that the Couriers were the actual traffickers of the Controlled Drugs on 28 October 2011, I focus on s 34 of the Penal Code which states as follows:

Each of several persons liable for an act done by all, in like manner as if done by him alone

34. When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone.

In Muhammad Ridzuan bin Md Ali v Public Prosecutor and other matters [2014] 3 SLR 721 (“Ridzuan”), a case involving two individuals jointly charged for trafficking in diamorphine in furtherance of a common intention, the CA laid out the relevant principles governing the interplay between s 5(1)(a) of the MDA and s 34 of the Penal Code. The purpose of s 34 of the Penal Code is to impute constructive liability on a secondary offender in relation to an offence arising from a criminal act committed by the actual doer in furtherance of the common intention shared by the actual doer and the secondary offender (at [27] citing Daniel Vijay s/o Katherasan v PP [2010] 4 SLR 1119 (“Daniel Vijay”) at [76]). To impute liability to a secondary offender under s 34 of the Penal Code, three elements must be shown, namely: (a) the criminal act; (b) the common intention; and (c) the participation (at [34]). The criminal act encompasses the aggregate of all the diverse acts done by the actual doer and secondary offender which collectively give rise to the offence that they have been charged with (at [35] citing Daniel Vijay at [92]). In Ridzuan, the criminal act encompassed the secondary offender’s arrangements to take delivery of the bundles of drugs from a “jockey” (a term for a courier) and the actual doer’s collection of the drugs pursuant to those arrangements from the “jockey”. The common intention can form before or during the commission of an offence (at [41] citing Daniel Vijay at [109]). The existence of the common intention must frequently be inferred from the offenders’ conduct and all other relevant circumstances (at [42] citing Daniel Vijay at [97]). The common intention must include the intention to commit the very criminal act done by the actual doer; only then will the criminal act done by the actual doer be considered to have been done in furtherance of the common intention of the actual doer and the secondary offender (at [43] citing Daniel Vijay at [166]). In Ridzuan, the common intention of both the actual doer and secondary offender was to collect any number of bundles of heroin handed to them by the “jockey”. The element of participation requires that the secondary offender either participates in the specific criminal act committed by the actual doer or that he participates in any of the diverse acts which altogether forms the unity of criminal behaviour resulting in the offence for which they are charged, such offence being commonly intended by all the offenders (at [36] citing Daniel Vijay at [163]). In Ridzuan, the element of participation was made out as the secondary offender arranged for the collection of the bundles and relayed instructions to the actual doer to collect the bundles.

Given that the parties do not dispute that the Couriers have committed the offence of trafficking in the Controlled Drugs, the Prosecution bears the burden of proving the following: A criminal act was committed by the accused and the Couriers. The aggregate of their diverse acts that resulted in Shanmugam transporting the Controlled Drugs into Singapore for the purposes of trafficking with Suief would encompass the accused’s recruitment of Shanmugam and Suief as couriers and the arrangements made by the accused to transport the Controlled Drugs. The accused shared a common intention with the Couriers to transport the Controlled Drugs. The accused participated in the diverse acts that resulted in Shanmugam’s possession of the Controlled Drugs for the purpose of trafficking with Suief.

Finally, the CA was of the view in Ridzuan that where the elements of s 34 of the Penal Code are satisfied, constructive liability for the criminal act which constitutes an offence is imputed to the secondary offender (ie, the accused). There is no need for the elements of that offence to be made out additionally against the secondary offender (at [29]).

The main issue

The sole issue at trial is the accused’s complicity in trafficking the Controlled Drugs.

The Prosecution’s case is that the accused was the mastermind who introduced the Couriers to each other on 12 October 2011 to facilitate an impending drug transaction and directed Shanmugam to drive the Kenari car into Singapore on 28 October 2011 to meet up with Suief. Pursuant to the accused’s instructions, Shanmugam had the Controlled Drugs in his possession for the purpose of trafficking them with Suief (“the Drug Transaction”). This was with the accused’s knowledge and consent.¹³

I will state a brief account of the Couriers’ evidence here for context; a more detailed...