Public Prosecutor v Shah Putra bin Samsuddin

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 30 November 2018
• Neutral Citation: [2018] SGHC 266
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 5 of 2018
• Published date: 04 December 2018
• Year: 2018
• Hearing Date: 24 January 2018,23 January 2018,08 March 2018
• Plaintiff Counsel: Andrew Tan and Michelle Lu (Attorney-General's Chambers)
• Defendant Counsel: Amolat Singh (Amolat & Partners) and Lau Kah Hee (Derrick Wong & Lim BC LLP)
• Subject Matter: Criminal Law,Statutory Offences,Misuse of Drugs Act
• Citation: [2018] SGHC 266

Chan Seng Onn J: Introduction

This is the trial of Shah Putra bin Samsuddin (“Shah”), a 30-year-old Malaysian national. Shah faces one charge under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). The charge states that in a motor trailer bearing license plate number JJQ 4179 (“the Trailer”) at 2.20pm on 4 December 2015, at Woodlands Checkpoint, Singapore, Shah imported three packets of granular powdery substance, which was analysed and found to contain not less than 54.69 grams of diamorphine.¹ Shah claimed trial and contested the charge by arguing that he did not have the requisite level of knowledge for the charge to be made out.

At the end of the trial, I reserved judgment. I now set out my decision.

Background The undisputed facts

Most of the material facts are set out in a Statement of Agreed Facts. I recount the relevant portions below.

Shah was 27 years old when he was arrested on 4 December 2015. At the time of his arrest, he was working as a trailer driver for Kuan Seng Transport & Trading Sdn Bhd.² About a week prior to his arrest, Shah received a call from an unknown male, whom he addressed as “Boss”, requesting for help to deliver some “stuff” to Singapore. Boss offered to pay RM1000 for every delivery made by Shah. Shah agreed to perform the delivery.³

Shah performed his first delivery for Boss on 3 December 2015 (“the first delivery”). On that day, Boss called Shah and informed him that he would be giving Shah’s mobile phone number to another person. An unknown Indian male (“the first unknown Indian male”) then called Shah and agreed to meet Shah at a place in Malaysia called “Pandan R&R”. Shah drove the Trailer to “Pandan R&R” and met the first unknown Indian male there. The first unknown Indian male was driving a white Perodua Viva car. At the location, the first unknown Indian male opened the Trailer’s passenger door and threw a red plastic bag towards Shah. He then closed the door and left. After this, Shah drove the Trailer containing the red plastic bag into Singapore.⁴

At about 9.00am on 4 December 2015, Boss called Shah and asked the latter to perform another delivery to Singapore (“the second delivery”). After much persuasion, Shah agreed to do so and drove the Trailer to a bus stop near Giant Hypermart in Tampoi, Malaysia (“the Giant bus stop”). Boss told Shah to wait for two persons there. At the Giant bus stop, another unknown Indian male (“the second unknown Indian male”) riding a red and black motorcycle approached the Trailer. The second unknown Indian male opened the Trailer’s passenger door and placed a red plastic bag (“A1”) inside a compartment under the passenger seat before leaving.⁵

After about 30 minutes later, the first unknown Indian male from the previous day approached the Trailer, opened the passenger door, and threw another red plastic bag (“B1”) towards Shah. In an angry tone, he told Shah not to “give him any problem next time”. He then slammed the passenger door shut and left.⁶ Shah looked into B1 and saw that it contained “ganja”. “Ganja” is a street name for cannabis. Shah placed B1 in the slot above the Trailer’s radio communication console, and drove towards Singapore.

Shah’s arrest took place at about 2.20pm that same day. He drove the Trailer into Singapore via the Woodlands Checkpoint. At the Woodlands Checkpoint, he was stopped by officers from the Immigration and Checkpoints Authority (“the ICA”).⁷

The ICA officers conducted a search of the Trailer, and recovered A1 from under its passenger seat. A1 contained one red plastic bag (“A1A”). Within A1A, there were three packets of granular/powdery substance (“A1A1”; A1A2”; A1A3”; collectively “the A1 packets”). The A1 packets contained the drugs that form the subject matter of the charge against Shah. From the inside slot above the radio communication console of the Trailer, the ICA officers recovered B1. B1 contained one plastic bag (“B1A”). Within B1A, there was one block of vegetable matter (“B1A1A”) wrapped in cling wrap (“B1A1”).⁸

Shah admitted to possession and ownership of the drugs listed above. Shah was referred to officers from the Central Narcotics Bureau (“the CNB”) and was placed under arrest by the CNB officers.⁹ The drug exhibits were also seized by the CNB officers, and the exhibits were subsequently sent to the Health Sciences Authority on 7 December 2015 for analysis. A1A1 was found to contain not less than 18.43 grams of diamorphine. A1A2 was found to contain not less than 18.23 grams of diamorphine. A1A3 was found to contain not less than 18.03 grams of diamorphine. The drug exhibits found within A1 contained a total of not less than 54.69 grams of diamorphine. B1A1A was found to be one block containing not less than 220.3 grams of cannabis and not less than 743.8 grams of cannabis mixture.¹⁰

The Statement of Agreed facts states that the integrity and custody of all the drug exhibits were not compromised in any way at any point of time. It also states that Shah knew that the A1 packets contained controlled drugs, and that block B1A1A contained cannabis.¹¹

Statements recorded from Shah

In the course of investigations, the CNB officers recorded six statements from Shah.¹² There is no dispute as to the admissibility of the statements and both parties agree that the statements were given voluntarily.¹³ The account given in the six recorded statements generally corresponds with the facts as set out in the Statement of Agreed Facts. However, certain details from the recorded statements are absent from the Statement of Agreed Facts and I set them out below.

In Shah’s statement recorded under s 22 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) by Assistant Superintendent Michelle Sim on 6 December 2015 at 10.00am, Shah gave details on what transpired during the first delivery for Boss on 3 December 2015. Shah stated that after he had cleared the Woodlands Checkpoint that day, he travelled to Woodlands Avenue 6 to unload certain pre-cast concrete slabs that he was also delivering to a construction site. He was then told by Boss to wait outside the construction site. Throughout this period, Boss called him repeatedly to ask for his location. Shah “felt really uncomfortable” because he thought there was “something fishy about the red plastic bag that [he was] holding”. He then “quickly put the red plastic bag under a tree nearby” before standing about a metre away from the red plastic bag. Eventually, about 40 minutes later, a Malay male showed up. Shah picked up the bag and handed it over to the Malay male.¹⁴

In the same statement, Shah also revealed that he initially did not agree to conduct the second delivery because he felt “uncomfortable”. Apparently this was because he had not been paid for performing the first delivery on 3 December 2015.¹⁵ Shah revealed that Boss called him repeatedly, trying to convince him to make the second delivery. Shah initially refused, but eventually relented after Boss told him that he would be paid for the first delivery as well as the second one.¹⁶

Shah’s testimony at trial

Shah’s testimony at trial generally corresponded with the events as set out in the Agreed Statement of Facts and the six recorded statements. He did not dispute being in possession of the A1 packets.¹⁷ His defence was that he did not know what was inside A1, because he never checked the plastic bag.¹⁸

Shah clarified that Boss told him prior to the first delivery that the items he would be delivering were “not illegal items”, but “books and chocolates”.¹⁹ He also testified that he felt “uncomfortable” with making the second delivery not only because he had not been paid for the first delivery, but also because he was uncomfortable about the legality of the items he had brought in on the first delivery.²⁰ Shah agreed that he had the opportunity to check A1 before entering Singapore.²¹

The applicable legal principles

Section 7 of the MDA provides:

Import and export of controlled drugs

7. Except as authorised by this Act, it shall be an offence for a person to import into or export from Singapore a controlled drug.

Section 2 of the Interpretation Act (Cap 1, 2002 Rev Ed), states that to import means “to bring or cause to be brought into Singapore by land, sea or air”. There are two elements to the offence of importing a controlled drug (see Public Prosecutor v Khor Chong Seng and another [2018] SGHC 219 at [44]): the controlled drug was brought into Singapore without authorisation; and the accused had the knowledge that the said controlled drug was being brought into Singapore or the intention to bring the said controlled drug into Singapore.

In Public Prosecutor v Adnan Bin Kadir [2013] 3 SLR 1052 at [70], the Court of Appeal confirmed that s 7 of the MDA did not require the Prosecution to prove that the importation of a controlled drug was for the purposes of trafficking.

The key issue in dispute

It is not in dispute that Shah was in physical possession of not less than 54.69 grams of diamorphine within the A1 packets at the relevant time. It is also not disputed that he had brought the diamorphine into Singapore (see [9]–[11] above). Hence, only the second element of the charge, ie, the knowledge that the drug was being brought into Singapore or the intention to bring the drug into Singapore, is in dispute.

The Prosecution invokes the presumption of knowledge under s 18(2) of the MDA, and argues that Shah has failed to rebut that presumption.²² The Defence submits that although Shah “did think [A1] may also contain cannabis or ganja”, he did not know that A1 contained diamorphine, and hence the presumption was rebutted.²³ According to the Defence, Shah did not know that A1 contained diamorphine because he did not check A1.

Therefore, the key issue in the present case is whether Shah had knowledge that he was importing the diamorphine contained within the A1...