Public Prosecutor v Roshdi bin Abdullah Altway

• Jurisdiction: Singapore
• Judge: Valerie Thean J
• Judgment Date: 30 October 2020
• Neutral Citation: [2020] SGHC 232
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 44 of 2019
• Year: 2020
• Published date: 05 November 2020
• Hearing Date: 17 September 2019,01 July 2020,24 September 2019,30 June 2020,23 June 2020,17 August 2020,24 June 2020,02 July 2020,25 June 2020
• Plaintiff Counsel: Mark Tay, Chan Yi Cheng and Shana Poon (Attorney General's Chambers)
• Defendant Counsel: Peter Keith Fernando (Leo Fernando LLC), Rajan Sanjiv Kumar and Lee May Ling (Allen & Gledhill LLP)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act,Criminal Procedure and Sentencing,Statements,Voluntariness
• Citation: [2020] SGHC 232

Valerie Thean J: Introduction

Roshdi bin Abdullah Altway (“Roshdi”) claimed trial to a single charge of possession of 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”). I found Roshdi guilty and convicted him as charged. The death penalty was mandatory in his circumstances and I sentenced him accordingly. These are my grounds of decision.

Agreed facts

Roshdi is 61 years of age. On 14 September 2016, at about 6.15am, officers from the Central Narcotics Bureau (“CNB”) arrested Roshdi at the void deck of Block 209B Compassvale Lane.¹ He was carrying a Nokia phone, a set of keys to unit #04-106 of Block 209B Compassvale Lane (“the Compassvale Unit”), a stack of S$50 notes (later ascertained to be a sum of S$4,000), and a blue plastic bag containing a stack of money wrapped with paper (later ascertained to be a sum of S$14,000).²

At the time of his arrest, he complained of shortness of breath. An ambulance was called and he was attended to by a paramedic.³ He was subsequently brought to the Compassvale Unit where he identified the room he stayed in (“the Compassvale Room”).⁴

Various exhibits were recovered from the Compassvale Room. The subject matter of Roshdi’s charge (collectively, “the Drugs”) were found under the bed and inside a cupboard in the bedroom, as follows:⁵ 128 packets of granular/powdery substance marked H1A; 13 straws of granular/powdery substance marked H2A; 2 packets of granular/powdery substance marked H5A; 84 straws of granular/powdery substance marked H5C; 137 packets of granular/powdery substance marked J1A; and 153 straws of granular/powdery substance marked J2A.

In addition, drug paraphernalia such as spoons,⁶ papers,⁷ empty packets,⁸ empty straws⁹ and digital weighing scales were also seized.¹⁰ The search ended at around 8.28am.¹¹

Subsequently, the Drugs were analysed. The 2,201.22g of granular powdery substance was found to contain not less than 78.77g of diamorphine.¹² Spoons, various pieces of paper and three digital weighing scales were found stained with diamorphine.¹³ The drug analysis and chain of custody of the diamorphine were not disputed in this case.¹⁴

Charge and context

Roshdi was charged with possession of not less than 78.77g of diamorphine for the purpose of trafficking under s 5(1)(a) read with s 5(2) of the MDA:

That you, ROSHDI BIN ABDULLAH ALTWAY,

on 14 September 2016, at or about 6.40 a.m., at the bedroom beside the living room of Blk 209B, Compassvale Lane, #04-106, Singapore, did traffic in a Class 'A' Controlled Drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) ("MDA"), to wit, by having in your possession for the purpose of trafficking 267 packets and 250 straws containing 2201.22 grammes of granular/powdery substance, which was analysed and found to contain not less than 78.77 grammes of diamorphine, without authorisation under the MDA or the Regulations made thereunder, and you have thereby committed an offence under Section 5(1)(a) read with Section 5(2) of the MDA and punishable under Section 33(1) of the MDA, and further upon your conviction, you may alternatively be liable to be punished under Section 33B of the MDA.

Sections 5(1)(a) and 5(2) of the MDA read as follows: 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.

The term “traffic” is defined under s 2 of the MDA as follows:

“traffic” means — (a) to sell, give, administer, transport, send, deliver or distribute; or (b) to offer to do anything mentioned in paragraph (a),

otherwise than under the authority of this Act, and “trafficking” has a corresponding meaning

The elements of a charge under s 5(1)(a) read with s 5(2) of the MDA are as follows (per Muhammad Ridzuan bin Md Ali v Public Prosecutor and other matters [2014] 3 SLR 721 at [59]): possession of the controlled drug; knowledge of the nature of the controlled drug; and the possession was for the purpose of trafficking which was not authorised.

Elements not disputed

The first two elements were admitted by Roshdi at trial. Roshdi consistently acknowledged that he had possession of the Drugs.¹⁵ Roshdi admitted to having rented the Compassvale Room¹⁶ and storing the Drugs there.¹⁷ He also stated that the owner of the Compassvale Unit who rented the Compassvale Room to him did not know of the existence of the Drugs in the room¹⁸ and would not have accessed the room without his permission.¹⁹ In respect of knowledge, Roshdi admitted to knowing the nature of the Drugs that he had in his possession at trial as well.²⁰

The only issue in dispute at trial was the third element, that of possession for the purposes of trafficking.

Possession for the purposes of trafficking Prosecution’s case and Roshdi’s defence

The Prosecution relied primarily on Roshdi’s statements. Their case was that there was sufficient evidence to prove beyond a reasonable doubt that Roshdi was in possession of the Drugs for the purposes of trafficking. In the alternative, Roshdi’s possession of at least 78.77g of diamorphine brought him within the statutory presumption stated in s 17(c) of the MDA that his possession of the Drugs were for the purposes of trafficking, and the onus was on him to rebut this presumption on a balance of probabilities.

Roshdi’s defence was that he was in possession of the Drugs not for the purposes of trafficking, but as a bailee for one ‘Aru’, intending to return them all along. He relied principally on Ramesh a/l Perumal v Public Prosecutor and another appeal [2019] 1 SLR 1003 (“Ramesh”), in particular, that ‘a person who holds a quantity of drugs with no intention of parting with them other than to return them to the person who originally deposited those drugs with him does not come within the definition of possession of those drugs “for the purpose of trafficking”’: Ramesh at [110]. In that regard, Roshdi’s evidence was that he was only given the Drugs for safekeeping.²¹ He invited the court to amend the charge to one of simple possession under s 8(a) of the MDA.²²

The main plank of the Prosecution’s case was Roshdi’s statements. I therefore deal with their admissibility first.

Admissibility of the statements

In the course of investigations, nine statements were recorded:²³ on 14 September 2016, by Staff Sergeant Muhammad Fardlie Bin Ramlie (“SSgt Fardlie”) at about 9.00am, pursuant to s 22 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”); on 14 September 2016, by SSgt Fardlie at about 9.55am, pursuant to s 22 of the CPC; on 14 September 2016, by SSgt Fardlie at about 12.55pm, pursuant to s 22 of the CPC; on 15 September 2016 by Assistant Superintendent Prashant Sukumaran (“ASP Sukumaran”) at about 3.26am, pursuant to s 23 of the CPC; on 21 September 2016 by Staff Sergeant Ibrahim bin Juasa (“SSgt Ibrahim”) at about 2.14pm, pursuant to s 22 of the CPC; on 23 September 2016 by SSgt Ibrahim at about 3.11pm, pursuant to s 22 of the CPC; on 25 September 2016 by SSgt Ibrahim at about 9.30pm, pursuant to s 22 of the CPC; on 26 September 2016, by SSgt Ibrahim at about 2.07pm, pursuant to s 22 of the CPC; and on 27 September 2016, by SSgt Ibrahim at about 3.08pm, pursuant to s 22 of the CPC.

The admissibility of these statements, save for the cautioned statement recorded on 15 September 2016 by ASP Sukumaran, were challenged by the defence. After an ancillary hearing, I held that the statements were admissible.²⁴

The eight statements in dispute

Roshdi contended that the statements were inadmissible under s 258(3) of the CPC:

Admissibility of accused’s statements

258.—(3) The court shall refuse to admit the statement of an accused or allow it to be used in the manner referred to in subsection (1) if the making of the statement appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused grounds which would appear to him reasonable for supposing that by making the statement he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

The test of voluntariness has an objective limb and a subjective limb, which were stated in Chai Chien Wei Kelvin v Public Prosecutor [1998] 3 SLR(R) 619 as follows (at [53]):

The test of voluntariness is applied in a manner which is partly objective and partly subjective. The objective limb is satisfied if there is a threat, inducement or promise, and the subjective limb when the threat, inducement or promise operates on the mind of the particular accused through hope of escape or fear of punishment connected with the charge: Dato Mokhtar bin Hashim v PP [1983] 2 MLJ 232 and Md Desa bin Hashim v PP [1995] 3 MLJ 350.

Roshdi contended that he made the first three statements arising from inducement from SSgt Fardlie, and made the last five statements owing to inducement from SSgt Ibrahim. I take each category in turn.

The Fardlie Statements

The first three statements were contemporaneous statements recorded on the day of the arrest by SSgt Fardlie at 9.00am, 9.55am and 12.55am (collectively, “the Fardlie Statements”). Roshdi contended that he had been induced to make these statements when, prior to recording the first contemporaneous statement, SSgt Fardlie had told Roshdi in Malay, “Sekarang Singapore ada undang undang baru. Itu barang bukan kamu punya, kamu tidak...