Public Prosecutor v Sugianto and Another
|24 March 1994
| SGCA 48
| SGCA 48
|JB Jeyaretnam (JB Jeyaretnam),Choo Han Teck (Helen Yeo & Pnrs)
|19 September 2003
|Seng Kwang Boon and Ong Hian Sun (Deputy Public Prosecutors)
|24 March 1994
|Criminal Appeal No 52 of 1993
|Court of Appeal (Singapore)
|Misuse of Drugs Act,Absence of agreement,s 122(6) Criminal Procedure Code (Cap 68),Admissibility,Evidentiary value,Complicity,s 18 Misuse of Drugs Act (Cap 185),Criminal Law,Whether actus reus present,Statutory offences,Essential ingredients,Criminal Procedure and Sentencing,Statements,Criminal conspiracy,Importing controlled drugs,Presumption of possession and knowledge,Whether rebutted,Accused taking possession of baggage containing drugs only on landing at Changi Airport,Section 122(6) statement
Cur Adv Vult
The first respondent, Sugianto bin Pardi (`Sugianto`) was tried in the High Court on a charge of importing into Singapore on 7 March 1992 not less than 2,186.10g of cannabis (`the cannabis`) contrary to s 7 of the Misuse of Drugs Act (Cap 185) (`the Act`). The second respondent, Abdullah bin Abdullah (`Abdullah`) was jointly tried for conspiring with Sugianto in the importation of the cannabis, also contrary to s 7 but read with s 12 of the Act. Pursuant to s 33 of the Act, both respondents would have been sentenced to death on conviction of the respective offences with which they were charged. The High Court, however, acquitted both respondents. The public prosecutor now appeals against their acquittals.
Sugianto had travelled to Singapore from Bangkok on Singapore International Airlines (`Singapore Airlines`) flight SQ33 on 7 March 1992 in company with three other persons, namely, Mohamed Najeeb bin Abdul Gani (`Najeeb`) , Edros bin Mohd Ali (`Edros`) and Darusarif bin Atahan (`Darus`). Flight SQ33 was cleared through terminal two of Changi Airport at about 7pm. Acting on information received, Sugianto, Najeeb, Edros and Darus were spotted by the customs officers on duty at terminal two. They were seen collecting luggage from conveyor belt No 36, which they placed on three trolleys, and proceeding towards the customs counter. At the customs counter, one of them offered to pay customs duty on the goods they were carrying. The customs officers, however, led them to the customs duty office where their luggage was searched. In a green checked carrier bag (which will be referred to as `P31` hereafter) concealed in a bed quilt, which was wrapped in a plastic bag, were found three plastic laundry bags bearing the name `Alpine Inn`.
When the laundry bags were slit open, they were found to contain several small plastic packets of greenish vegetable matter which on later analysis was certified by the government chemist to be cannabis. A similar green checked nylon carrier-bag but with a red and yellow loop which served as a sling, which will be referred to as `P29`, was among the luggage on the three trolleys. As will be seen later, a `third green checked carrier bag` was also on one of the three trolleys. Sugianto, Najeeb, Edros and Darus were detained.
A more detailed description of the three green checked carrier bags is necessary as so much turns on the identity of these bags and to whom each of them belonged. There is no contention but that the cannabis were found in P31. This bag, as we can see from the photographs produced at the trial, was green checked with red trimmings along the edges and with a red loop which served as a sling. P31 was identical with the `third green checked carrier bag` in size and it too had red trimmings along the edges and had a red loop which served as a sling. P29 from what we can see from the photographs produced at the trial appears a little bigger than P31 and `the third green checked carrier bag`. It was also green checked and had red trimmings along the edges but what made it different from P31 and the `third green checked carrier bag` was that it had a red and yellow loop which served as a sling.
At about the same time, that is to say about 6pm on 7 March 1992, Thai International flight TG409 had arrived from Bangkok and the passengers from that flight were being cleared through terminal one. Abdullah was a passenger on that flight. He was travelling light, having only hand luggage with him. Acting on information received, the customs officers at terminal one were on the look-out for Abdullah. He was stopped by the customs officers on duty there going through the customs green channel in the arrival hall. He was searched and nothing incriminating was found on him except for one Erimin-5 tablet which was found in his wallet. He was detained.
Initially, Sugianto who was alleged to have had the possession, custody or control of P31 was charged with importing the cannabis into Singapore and the other four men were charged with abetting the commission of the offence. Subsequently, the charges against Najeeb, Edros and Darus were dropped and they gave evidence for the public prosecutor against Sugianto and Abdullah of the charges they were respectively charged with.
Sugianto, Abdullah, Najeeb, Edros and Darus were all colleagues working for Singapore Airlines in Singapore. On 5 March 1992, which was a Thursday, Abdullah left Singapore for Bangkok on a Thai International Airlines flight. On arrival there, he checked into the Alpine Inn. Later that day, Najeeb and Edros travelled to Bangkok on a Singapore Airlines flight. On arrival, they intended to check into the Alpine Inn but, finding they could not get a room there, checked into the Stella Palace Hotel for a night before checking into the Alpine Inn the next morning. Sugianto and Darus travelled to Bangkok on Friday, 6 March 1992, also by a Singapore Airlines flight. They too intended to check into the Alpine Inn but, when they found that they could not get a room, did not check into another hotel but stayed in Abdullah`s room at the Alpine Inn. All of them said in their evidence that they preferred to stay at the Alpine Inn because Singapore Airlines personnel usually stayed there when in Bangkok. In Bangkok, the five men spent their time shopping. They then returned to Singapore on 7 March 1992, as already stated; Abdullah by TG409 and the other four by SQ33, and were all taken into custody.
It is now necessary to refer to the evidence in much greater detail and in logical sequence as the case against Sugianto was that he was in possession or had the custody and control of P31 and that, by reason of the presumptions in the Act, he had imported the cannabis into Singapore; the case against Abdullah was that he had assisted Sugianto by financing Sugianto`s trip to Bangkok. The learned judicial commissioner who tried this case found `that Sugianto had rebutted the operative presumption of possession under s 18(1) of the Act` and accordingly acquitted him. Having acquitted Sugianto of the offence of importing the cannabis into Singapore, the learned judicial commissioner felt impelled to acquit Abdullah as well and refused to imply a conspiracy between Sugianto and Abdullah, holding that `in the absence of an agreement to import cannabis, the charge against Abdullah of conspiring with Sugianto to import the cannabis into Singapore (was) untenable.`
We would preface our narration and evaluation of the evidence with the observations the learned judicial commissioner made of the impressions he had formed of the three principal witnesses for the prosecution, namely, Najeeb, Edros and Darus, and also of Abdullah and Sugianto when they gave evidence on their behalf. He found that Najeeb, Edros and Darus were unreliable and untruthful witnesses. He found that they were not only inconsistent in the evidence they gave but they also contradicted each other. He also found their evidence to be `self-serving` in order to divert attention from them since they were present when the cannabis were discovered. He found Abdullah also to be an unreliable and untruthful witness. On the other hand, he found Sugianto to be a reliable and truthful witness whose evidence he believed. It is now well settled and beyond dispute, for which no authority need be stated, that an appellate court will not interfere with a trial judge`s findings of fact when those findings are based on the veracity of the witnesses whom the trial judge had seen and observed when giving their evidence unless it can be shown that those findings of fact were clearly against the weight of the evidence and unsupportable. It would be different where inferences are to be drawn from truthful evidence. If authority be needed we would refer to Baggallay JA in The Glannibanta , a case which we have cited with approval in other judgments of this court. He said:
Great weight is due to the decision of the judge of first instance whenever, in a conflict of testimony, the demeanour and manner of witnesses who have been seen and heard by him are material elements in the consideration of the truthfulness of these statements.
To begin with, Najeeb, Edros, Darus and Abdullah gave evidence that their meeting up at the Alpine Inn in Bangkok on 6 March 1992 was a coincidence when it was clear from the evidence of Sugianto that the visit to Bangkok was pre-arranged by Abdullah who had provided the airfare for Najeeb, Darus and Sugianto, at least. The probabilities are that Sugianto was speaking the truth and the others were not, having regard to the fact that all five of them were colleagues and the visit to Bangkok was over the same period of 5 to 7 March 1992 and that all five of them sought accommodation at the Alpine Inn, where Abdullah had checked in on 5 March 1992 and where they all eventually stayed even to the extent of Najeeb and Edros changing their accommodation from the Stella Palace Hotel to the Alpine Inn after the night of 5 March 1992. It is to be noted that, later in his evidence, Darus admitted that he, Abdullah, Najeeb and Sugianto had discussed the visit to Bangkok on the morning of 5 March 1992 at the printing room of Singapore Airlines` premises. It is plainly evident that each of them was trying to distance himself from each of the others.
In our judgment there is also no reason to disbelieve Sugianto`s evidence that he agreed to go to Bangkok at Abdullah`s behest to enable Abdullah to use his luggage allowance, for the jeans and other items of clothing Abdullah said he intended to purchase in Bangkok, for the return flight, having regard to the fact that Sugianto travelled to Bangkok on 6 March to return on 7 March and that he travelled both ways with a single piece of hand luggage. The learned judicial commissioner accepted this evidence and we can find no evidence to say why he should not have accepted it since the prosecution was unable to...
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