Public Prosecutor v Shanmuganathan s/o A Suppiah

• Jurisdiction: Singapore
• Judge: Christopher Tan Pheng Wee
• Judgment Date: 05 December 2019
• Neutral Citation: [2019] SGDC 273
• Court: District Court (Singapore)
• Docket Number: DAC 944740/2017 & Ors
• Published date: 01 February 2020
• Year: 2019
• Hearing Date: 06 September 2019,18 November 2019,21 May 2019
• Plaintiff Counsel: Tan Wee Hao, Shana Poon and Teo Su Ping (Deputy Public Prosecutors)
• Defendant Counsel: Peter Keith Fernando and John Tan (Leo Fernando LLC)
• Citation: [2019] SGDC 273

District Judge Christopher Tan Pheng Wee: Introduction

The Accused is a 42-year-old male Singaporean. The Prosecution proceeded against him on two charges under s 8(a) of the Misuse of Drugs Act¹ (“MDA”) of drug possession (“Proceeded Charges”). He pleaded guilty to both charges and consented to a third charge, also under s 8(a) of the MDA, being taken into consideration (“TiC”) for the purpose of sentencing.

I imposed a global imprisonment term of 5 years and 6 months. The Prosecution, which sought an imprisonment term of at least 9 years, has appealed against the sentence. The Accused is currently serving his imprisonment term.

Facts

The following sets out the facts of this case, as gleaned from the Statement of Facts admitted to by the Accused.

On 6 December 2017, at about 10.00am, the Accused was arrested by officers from the Central Narcotics Bureau (“CNB”) at No.1 Yishun Street 1, Aposh Bizhub #08-09, Singapore (“Bizhub Unit”).

The First Proceeded Charge (DAC 944740/2017)

Upon searching the Bizhub Unit, the CNB officers found the following two trays of damp vegetable matter in the Accused’s possession: One tray (marked as ‘B1’) placed on the floor, containing not less than 1,335 grams of damp vegetable matter; and Another tray (marked as ‘G1’) placed under a table, containing not less than 1,339 grams of damp vegetable matter.

The trays B1 and G1 were sealed and sent to the Health Sciences Authority (“HSA”) for analysis. Thereafter, HSA issued two certificates under s 16 of the MDA certifying the following. In respect of tray B1:² not less than 4.00 grams of damp vegetable matter was removed by HSA for analysis; and the remaining damp vegetable matter was dried to a constant weight of not less than 982.6 grams. In respect of tray G1:³ not less than 4.17 grams of damp vegetable matter was removed by HSA for analysis; and the remaining damp vegetable matter was dried to a constant weight of not less than 989.0 grams.

HSA’s certificates further stated that the damp vegetable matter in sub-paragraphs 6(a)(i) and (b)(i) above, as well as the dried vegetable matter in sub-paragraphs 6(a)(ii) and (b)(ii) above, contained the following synthetic cannabinoids: THJ-2201 or its fluoro positional isomer in the pentyl group (these being Class A Controlled Drugs under the First Schedule to the MDA); and 5-fluoro-MDMB-PINACA or its fluoro positional isomer in the pentyl group (these being Temporarily Listed Drugs in the Fifth Schedule to the MDA).

The dried vegetable matter in sub-paragraphs 6(a)(ii) and (b)(ii) above, which collectively added up to a weight of not less than 1,971.6 grams, thus formed the subject of the first charge proceeded with against the Accused (“First Proceeded Charge”):

DAC 944740/2017

You … are charged that you, on 6 December 2017 at about 10:00 a.m., at No.1 Yishun Street 1, Aposh Bizhub, #08-09, Singapore, did have in your possession a Class ‘A’ Controlled Drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), to wit, not less than 1,971.6 grams of dried vegetable matter and 8.17 grams of damp vegetable matter, in which THJ-2201 or its fluoro positional isomer in the pentyl group was detected, without authorisation under the MDA or the Regulations made thereunder, and you have thereby committed an offence under section 8(a) of the said Act …

The Accused, who was not authorised to possess controlled drugs, admitted to the following: He knew that the vegetable matter in the trays B1 and G1 contained THJ-2201 or its fluoro positional isomer in the pentyl group. He had received the vegetable matter from a contact of one Abang Kumar. He had, on Abang Kumar’s instructions, put the vegetable matter into the trays B1 and G1 to dry. He intended to return the dried vegetable matter to Abang Kumar, upon which he would be paid for drying the vegetable matter. This was the second time that the Accused had performed this task.

The Second Proceeded Charge (DAC 904741/2019)

After the Accused was arrested at the Bizhub Unit, he was escorted to his residence at Block 124 Rivervale Drive, where the CNB officers conducted a raid. The CNB officers found, inter alia, three packets which collectively contained not less than 66.18 grams of vegetable matter. These three packets were marked as exhibit N1A.

The HSA issued a certificate under s 16 of the MDA stating that exhibit N1A contained the synthetic cannabinoids as set out at paragraph 7 above.⁴ Exhibit N1A thus formed the subject of the second charge proceeded with against the Accused (“Second Proceeded Charge”):

DAC 904741/2019

You … are charged that you, on 6 December 2017 at about 4:40 p.m., at Blk 124 Rivervale Drive, #04-227, Singapore, did have in your possession a Class ‘A’ Controlled Drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), to wit, three packets containing not less than 66.18 grams of vegetable matter in which THJ-2201 or its fluoro positional isomer in the pentyl group was detected, without authorisation under the MDA or the Regulations made thereunder, and you have thereby committed an offence under section 8(a) of the said Act …

In respect of exhibit N1A, the Accused admitted that he: knew that it contained THJ-2201 or its fluoro positional isomer in the pentyl group; and had received exhibit N1A from Abang Kumar and intended to return the same to the latter.

The TiC Charge

A further charge under s 8(a) of the MDA, pertaining to the Accused’s possession of two packets collectively containing not less than 42.28 grams of vegetable matter,⁵ was taken into consideration for the purpose of sentencing. Both packets, which had been seized from the Bizhub Unit, also contained THJ-2201 or its fluoro positional isomer in the pentyl group.

The Accused’s Antecedent History

The table below sets out the Accused’s antecedent history. Of relevance is the Accused’s conviction on 1 April 2003 for possession of cannabinol, under s 8(a) of the MDA. As that conviction still stands, he is now liable to a minimum imprisonment term of 2 years⁶ for each of the two Proceeded Charges.

Date of Conviction / Order	Offence	Sentence / Order	Global Sentence
4 Sep 1997	Drink driving - s 67(1)(b) Road Traffic Act	$15,000 fine + Disqualification from driving for 18 months	--
15 Jan 1998	Disorderly behaviour – s 20 Miscellaneous Offences (Public Order and Nuisance) Act	$1,000 fine	--
22 Jun 1999	Voluntarily causing hurt - s 323 Penal Code (3 counts)	1st count: 4 months’ imprisonment [Consecutive]; 2nd count: 2 months’ imprisonment [Consecutive]; 3rd count: 2 months’ imprisonment [Concurrent]	6 months’ imprisonment
Mischief - s 427 Penal Code	1 month’s imprisonment [Concurrent]
Disorderly behaviour - s 20 Miscellaneous Offences (Public Order and Nuisance) Act	TiC
Indecent/threatening/abusive /insulting words or behaviour towards a public servant - s 13D(1)(a) Miscellaneous Offences (Public Order and Nuisance) Act	TiC
3 Jan 2002	Consumption of cannabinol derivative - s 8(b)(i) MDA	15 months’ imprisonment	--
3 Nov 2002	--	Placed under drug supervision (24 months)	--
1 Apr 2003	Possession of cannabinol – s 8(a) MDA	18 months’ imprisonment [ Consecutive ]	18 months’ imprisonment
Consumption of cannabinol derivative - s 8(b)(i) MDA	18 months’ imprisonment [Concurrent]
Possession of diamorphine - s 8(a) MDA	TiC
Possession of drug utensils – s 9 MDA	TiC
4 Nov 2003	--	Placed under drug supervision (24 months)	--
4 Apr 2005	Import/Export/Delivery of more than 2 kg of tobacco – s 130(1)(a)(iii) Customs Act	$274,560 fine, in default 18 months’ imprisonment	--
Import/Export/Delivery of more than 2 kg of tobacco – s 130(1)(a)(iii) Customs Act read with ss 26 & 77 Goods and Services Tax Act	$17,550 fine, in default 3 months’ imprisonment
5 Jan 2007	Consumption of buprenorphine - s 8(b)(ii) MDA, with enhanced punishment under s 33(4) MDA (this being a subsequent conviction) (2 counts)	1st count: 3 years’ imprisonment [Consecutive]; 2nd count: TiC	3 years & 3 months’ imprisonment
Criminal trespass - s 447 Penal Code	3 months’ imprisonment [Consecutive]
Affray - s 160 Penal Code	6 months’ imprisonment [Concurrent]
17 Jan 2009	--	Placed under drug supervision (24 months)	--
1 Oct 2009	Consumption of buprenorphine - s 8(b)(ii) MDA, with enhanced punishment under s 33A(1) MDA (LT1)	5 years & 8 months’ imprisonment + 3 strokes caning	--
13 Jun 2013	--	Placed under drug supervision (24 months)	--
10 Jun 2016	Drink driving - s 67(1)(b) Road Traffic Act	3 weeks’ imprisonment + Disqualification from driving for 3 years [Consecutive]	3 weeks’ imprisonment + Disqualification from driving for 3 years
Reckless driving - s 64(1) Road Traffic Act	1 week’s imprisonment [Consecutive] + Disqualification from driving for 18 months
Failure to provide particulars at accident scene - s 84(1)(a) Road Traffic Act (2 counts)	1st count: 1 week’s imprisonment [Concurrent] + Disqualification from driving for 18 months; 2nd count: 1 week’s imprisonment [Concurrent] + Disqualification from driving for 18 months
Driving without reasonable consideration - s 65(b) Road Traffic Act	TiC

Plea in Mitigation

In the mitigation plea, the Defence highlighted that the Accused is the primary caregiver of his 69-year-old mother, who depends on him for her daily needs and medical expenses.⁷

Parties’ Submissions on Sentence Overview of submissions

The Prosecution argued that although the First Proceeded Charge was one for possession...