Public Prosecutor v Sudarshan S/O Sagaya Kumaran

• Jurisdiction: Singapore
• Judge: Luke Tan
• Judgment Date: 07 July 2016
• Neutral Citation: [2015] SGDC 171
• Court: District Court (Singapore)
• Docket Number: DAC 5829/2014 and Ors
• Published date: 08 July 2016
• Year: 2016
• Hearing Date: 19 June 2015,01 June 2016,20 August 2015,22 June 2016,19 August 2015,27 April 2016,26 April 2016,18 June 2015
• Plaintiff Counsel: Shen Wanqin
• Defendant Counsel: the accused in person
• Citation: [2015] SGDC 171

District Judge Luke Tan: Introduction

The accused, Sudarshan S/O Sagaya Kumaran, is a 28-year-old Singaporean. He faced a total of seven charges under the Misuse of Drugs Act (“MDA”). For the hearing, the prosecution proceeded with the two drug trafficking charges, DAC 5829/2014 and DAC 5830/2014, and applied to stand down the remaining five charges.

For the two proceeded charges it was alleged that on 11 June 2013 at about 9.20pm, at Block 105 Bukit Purmei Road #07-21 (“the Flat”), the accused did traffic a Class `A’ controlled drug, by having in his possession for the purpose of trafficking two blocks containing: 173.1 grams of vegetable matter which was analysed and found to contain cannabis (DAC 5829/2014), and 761.69 grams of vegetable matter which was analysed and found to contain cannabinol and tetrahydrocannabinol (“cannabis mixture”) (DAC 5830/2014), in contravention of s 5(1)(a) read with section 5(2) and punishable under s 33(1) of the MDA.

The prosecution’s case can be summarised as follows: The accused was caught in actual possession of the drugs (contained in exhibits A4 and B1A) that were found in his bedroom at the material time. The accused had actual knowledge of the nature of the drugs. He had specifically admitted that exhibits A4 and B1A contained “ganja”. The accused was also presumed to have had in his possession the cannabis and cannabis mixture for the purpose of trafficking pursuant to sections 17(d) and 17(e) of the MDA. The accused has failed to rebut the presumption. In any event, the accused admitted that he intended to keep exhibits A4 and B1A for one Muruga (sometimes also referred to by the accused in the proceedings and his statements as “Murugan”¹). The accused further intended to return exhibits A4 and B1A to Muruga. This meant that he was in possession of the drugs for the purposes of trafficking i.e. for delivery to Muruga.

The defence of the accused was largely along the lines that the drugs were wrongly delivered to him, that he safeguarded them for Muruga under duress, and that he allegedly knew that the drugs were “ganja” only because the CNB officers had said so.

Having considered all the evidence, the comprehensive submissions put up by the prosecution, and also the detailed arguments from the accused, I was satisfied that the prosecution had proven its case against the accused beyond a reasonable doubt, and I convicted the accused accordingly.

Thereafter, following his conviction on the two charges proceeded with, the accused accepted the prosecution’s offer, and pleaded guilty to three of remaining five charges, namely for being in possession of a controlled drug i.e. 16.98 grams of methamphetamine (DAC 5831/2014), being in possession of drug taking utensils (DAC 5833/2014), and for consumption of a controlled drug i.e. methamphetamine (DAC 5834/2014). Two other charges of drug possession and drug consumption were also taken into consideration for sentencing.

After considering the precedent cases tendered by the DPP Ms Shen Wanqin, as well as considering matters raised by the accused in mitigation, I sentenced the accused to a global sentence of 24 years’ imprisonment and the mandatory minimum of 20 strokes of the cane.

The accused has filed an appeal against his conviction and sentence. I now set out my detailed grounds of decision.

The legal requirements for the two drug trafficking charges

The accused was charged with two counts of drug trafficking by having in his possession the stated amount of cannabis and cannabis mixture for the purposes of trafficking, in contravention of section 5(1)(a) MDA read with section 5(2) of the MDA.

Possession of drugs for the purpose of trafficking

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

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.

To prove an offence of possession of drugs for the purpose of trafficking under 5(1)(a) read with section 5(2) of the MDA, the following elements have to be established²: Possession of a controlled drug; Knowledge of the nature of the controlled drug; and Proof that possession of the controlled drug was for the purpose of trafficking which was not authorized.

“Traffic” has been further defined under s 2 of the MDA as follows: to sell, give, administer, transport, send, deliver or distribute; or to offer to do anything mentioned in paragraph (a), otherwise than under the authority of this Act, and “trafficking” has a corresponding meaning.

In Mohd Halmi bin Hamid and anor v Public Prosecutor³, at [6], the Court of Appeal explained the meaning of “delivery”, in the context of the definition of “traffic”, as follows:

“The actions under s 2 that constitute trafficking are capable of application in a very wide range of situations and circumstances. In the case of delivery, all that is envisaged is that there was an intention to hand the drugs to another person, but there is no requirement that the recipient must be known or identified.”

[emphasis mine]

In Public Prosecutor v Goh Hock Huat⁴, the Court of Appeal held at [20] that for “delivery within the definition of trafficking under the Act”, the “requirement is merely the transfer of possession from one party to another”, and included circumstances where the prohibited drugs were returned to their “owner” after they had been entrusted to the custodian. In the subsequent case of Lee Yuan Kwang v Public Prosecutor⁵, the Court of Appeal rejected the argument of the fourth appellant that his intention to return the drugs to the person who entrusted them to him for safekeeping, did not amount to an act of “delivery” for the purposes of trafficking. At [57], the Court held:

“In the present case, the charge against Yakoob was one of trafficking by virtue of his possession of the drugs for the purpose of trafficking. Yakoob’s evidence was that he had originally intended to keep the drugs for Lee as requested. Upon realising that a substantial quantity of drugs was involved, he later vaccillated and was considering whether to return them to Lee when he was arrested. On either analysis, whether he was a mere bailee or custodian or even if he was in the process of returning the drugs to Lee, it was evident that he had possession of the drugs for the purpose of trafficking, i.e. he would eventually transfer possession back to Lee. This alone would bring Yakoob’s case within s 5(2)...”

[emphasis mine]

The Court of Appeal in Tay Kah Tiang v Public Prosecutor⁶ has also held that even if the offender was safekeeping the drugs for another person, and would be passing them back to the first person, or to a third person, the offender would still be in possession of the drugs for the purpose of trafficking. At [35], the Court stated:

“35 …. According to the appellant, she was to keep the drawstring bag (with the contents) for Hak Chai, and that Hak Chai would later contact her to tell her how to dispose of the drugs. …. It must be borne in mind that “traffic” is defined in the MDA to mean, inter alia, “give”, “transport” or “deliver”. Indeed, the fact that the appellant would be delivering the drugs either back to Hak Chai or to a third person reinforces the point that she was in possession for the purpose of trafficking.”

[emphasis mine]

Section 17 MDA: Presumption concerning trafficking

Sections 17(d) and 17(e) of the MDA provide that when an offender is proved to have had in his possession more than 15g of cannabis or more than 30g of cannabis mixture respectively, he is presumed to have had the said drugs in his possession for the purpose of trafficking, unless it is proved that his possession of the controlled drugs was not for that purpose (see Tang Hai Liang v Public Prosecutor⁷). The defence therefore bears the burden of rebutting the presumptions triggered.

Summary of the Evidence

Evidence was adduced by way of oral testimonies from the Central Narcotics Bureau (CNB) officers, documentary exhibits, the accused’s statements and the accused’s oral testimony. I will summarise the evidence adduced in court.

Arrest of the accused and the recording of the contemporaneous statement P2

On 11 June 2013 at about 9.20 p.m., a party of CNB officers arrested the accused in the Flat⁸. Immediately following his arrest, the CNB officers recovered drug paraphernalia and drug exhibits, including exhibits A4 and B1A, from the accused’s room in the Flat.

A contemporaneous statement P2 was recorded from the accused on 11 June 2013 at 10.30 p.m. During the recording of the contemporaneous statement, exhibit A4, as seen in the photograph P4-42, was shown to the accused. The accused admitted that he identified exhibit A4 as ganja⁹. The accused was also shown exhibit B1A, as seen in photograph P4-54. He also admitted that he identified exhibit B1A as ganja¹⁰.

After the arrest of the accused, the drug exhibits were subsequently handed over to the Health Sciences Authority (HSA) for analysis. The analyses of the drug exhibits were undisputed. They showed that¹¹: Exhibit A4 contained not less than 25.19 grams of cannabis mixture; and Exhibits B1A1 contained not less than 173.1 grams of cannabis and not less than 736.5 grams of cannabis mixture.

The total amounts of cannabis and cannabis mixture detected in these exhibits were thus 173.1 g and 761.69 g respectively.

The accused’s version

The accused’s evidence was that: On 11 June 2013, he met one unidentified male Indian subject and took a big and heavy bag (“the Bag”) from him; After receiving the Bag from the male Indian subject, the accused opened the Bag...