Public Prosecutor v Sulaiman bin Jumari

• Jurisdiction: Singapore
• Judge: Aedit Abdullah J
• Judgment Date: 09 September 2019
• Neutral Citation: [2019] SGHC 210
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 48 of 2018
• Year: 2019
• Published date: 12 September 2019
• Hearing Date: 10 May 2019,03 August 2018,26 February 2019,31 July 2018,23 August 2018,28 February 2019,21 August 2018,02 August 2018,27 February 2019,17 September 2018,01 August 2018
• Plaintiff Counsel: April Phang, Zulhafni Zulkeflee and Desmond Chong
• Defendant Counsel: Anand Nalachandran (TSMP Law Corporation), Lim Wei Ming, Keith (Quahe Woo & Palmer LLC), and Koh Weijin, Leon (N S Kang)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act
• Citation: [2019] SGHC 210

Aedit Abdullah J: Introduction

The Accused was charged for the possession of 22 packets of drugs containing not less than 52.75 grams of diamorphine for the purposes of trafficking.

The charge against the Accused read as follows:

That you…on 23 June 2016, at about 4.45 p.m., at Sunflower Grandeur, 31 Lorong 39 Geylang #03-02, 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), to wit, by having in your possession for the purpose of trafficking, twenty two (22) packets containing not less than 1520.23 grams of granular/powdery substance which was analysed and found to contain not less than 52.75 grams of diamorphine, without any authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under [section 5(1)(a)], read with section 5(2) and punishable under section 33(1) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed), or alternatively be liable to be punished under section 33B of the same Act.

I convicted him of the charge after the trial. As the Accused did not qualify for the alternative sentencing regime under s 33B of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), I thus imposed the mandatory sentence of death on him. Background

A statement of agreed facts was entered into evidence under s 267 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”). This was signed by the Prosecution and counsel for the Accused. The statement recorded that: The Accused was arrested on 23 June 2016 at about 4.45 pm while alone in a rented room in a condominium located along Lorong 39 Geylang, Singapore.¹ A number of packets containing drugs were recovered from a wardrobe (described in the statement as a cupboard), a bedside table, and the bed in the room.² The drugs that were captured in the charge consisted of two packets wrapped in black tape and one unwrapped packet from a drawer in the wardrobe containing a total of 49.86 grams of diamorphine (Exhibits A1A, A2A and A3) (“the drugs in question”), and packets from the bedside table, containing 2.89 grams of diamorphine (which the Accused did not dispute possession of).³ The Accused was found in possession of a remote control opening the main gate of the condominium and a bunch keys; a key opening a side gate; a key to the apartment; and a key to the room rented by him.⁴ The Accused’s DNA was found on various exhibits, but not on the three packets containing the drugs in question.⁵ The packaging of Exhibits A2A and A3 were found to have been manufactured by the same machine, while the packaging for Exhibits A1A and A3 could have come from the same machine. The heat seal characteristics of Exhibits A1A, A2A and A3 indicated that the same heat sealer was used.⁶ Several statements were recorded from the accused while he was in lock-up and Changi Prison. The voluntariness of these statements was not in issue.⁷

What was in dispute were the circumstances of the arrest of the accused, particularly, whether he knew that the three packets of drugs in question that were the subject of the charge were in his room. Also in issue was the voluntariness of a statement given by the Accused shortly after the drugs were discovered in his room (“the contemporaneous statement”).

The Prosecution’s case

The Prosecution argued that the evidence had proved that the Accused knowingly possessed the drugs and knew their nature beyond a reasonable doubt.

While the Accused was being placed under arrest, he was asked by officers from the Central Narcotics Bureau (“CNB”) if he had anything to surrender. The Accused responded “three” while gesturing to the wardrobe. A search of the wardrobe uncovered from a drawer, amongst other things, the three packets containing the drugs in question.⁸

The Accused admitted clearly in his contemporaneous statement that the drugs in question belonged to him, that he knew they were diamorphine and that they were intended for both smoking and for sale. The cautioned statement given by the Accused, as well as other evidence, showed that he had sole control and power over access to the room in which the drugs in question were found.⁹

The contemporaneous statement was made voluntarily. The Accused was not suffering from drug withdrawal as he could provide specific details which were supported by extrinsic evidence. In the circumstances, full weight should be given to the contemporaneous statement. The Accused was opportunistically cherry picking which portions of the contemporaneous statement to rely upon while disavowing the rest.

In the alternative, the presumptions under ss 18(1)(c) and 18(2) of the MDA applied against the Accused, establishing that he had the drugs in his possession and knew the nature of drugs. These presumptions were unrebutted.¹⁰

The evidence further showed beyond a reasonable doubt that the Accused possessed the drugs in question for the purposes of trafficking.¹¹

Apart from the Accused’s admissions in the contemporaneous statement, he was also found in possession of drug trafficking paraphernalia. Taken together with the sheer quantity of the drugs found in the Accused’s possession, it could be inferred that the Accused intended to traffic in the drugs forming the subject of the charge against him.¹²

The Defence’s case

The Defence denied that the Accused was referring to the drugs in question when he responded “three” to the CNB officers who asked if he had anything to surrender.¹³ The Accused was suffering from withdrawal symptoms at the time of the raid and during the recording of the contemporaneous statement.¹⁴

The Accused did not know that the drugs in question were in his room. Several other persons had access to the room, including on the day the Accused was arrested; the drugs in question could have been placed in the wardrobe drawer without the Accused’s knowledge.¹⁵

The Defence argued against the admission of the contemporaneous statement as it was not made voluntarily. Alternatively, it should be excluded as a matter of discretion, or if admitted should be given minimal weight if at all. The statement was procured by inducement as the Accused was made to understand that he would be able to rest and thus obtain relief from his withdrawal symptoms if he would “make it fast”.¹⁶ In the alternative, the common law discretion to exclude relevant evidence if its prejudicial effect exceeded the probative value should be exercised. At the time of the giving of the statement, the Accused had not slept in three days, and was under the effects of methamphetamine consumption and withdrawal symptoms from diamorphine consumption. These were corroborated by factual errors showing doubt over its reliability, and he was consistent in his position thereafter.¹⁷

As the only evidence of possession was the contemporaneous statement, the Prosecution failed to prove beyond a reasonable doubt that the Accused had possession of the drugs in question, and even if he did have possession of the packets of drugs, he did not have knowledge that they contained diamorphine.¹⁸

The presumptions in ss 18(1)(c) and 18(2) of the MDA were rebutted on the balance of probabilities. The drugs were not found on his person, nor was his DNA found on any of the packets.¹⁹ He had also given evidence that he only trafficked in lower amounts to avoid a capital charge.²⁰ Another person, Jepun, also had a set of keys to the room, which was confirmed by Defence witnesses. Various persons had access to the room to consume drugs, with some staying for extended periods.²¹ There was no evidence showing actual knowledge of how the drugs in question came to be in the room.

There was no evidence showing that the Accused intended to traffic the drugs in question. The Prosecution could not invoke both the presumptions under ss 18 and 17 of the MDA.²²

The Defence also alleged that there were various lapses and deficiencies in investigation, and that alternative explanations could not be ruled out. A reasonable doubt had been raised.²³

The Decision

I was not persuaded to revisit my earlier decision to allow the contemporaneous statement to be admitted; it was not given as the result of any inducement, threat or promise, or any adverse conditions stemming from any drug withdrawal symptoms suffered by the Accused. Its contents were accurate and reliable.

I was of the view that the case had been proven against the Accused beyond a reasonable doubt. I accepted that the evidence showed that the Accused had control over the room. The elements of the charge against the Accused were made out: he had actual possession of the drugs in question and knew their nature. The drugs in question were also possessed by the Accused for the purposes of trafficking.

As for the Prosecution’s alternative case that the presumption under s 18(1)(c) of the MDA could apply, I had some concerns about the operation of the presumption, but I could not go behind the Court of Appeal decision in Poon Soh Har and another v Public Prosecutor [1977–1978] SLR(R) 97 (“Poon Soh Har”). The presumption in s 18(1)(c) did not apply to the present case.

While the Accused claimed that part of the drugs were to be consumed, there was insufficient evidence of what was to be consumed.²⁴ I was satisfied that any such consumption was incidental.

I accepted that there were shortcomings in the investigation. However, these were not such as to render conviction unsafe.

Analysis

The issues to be determined were: Whether the Accused had possession of the drugs in question; Whether the Accused had knowledge of the nature of the drugs in question; and Whether the Accused possessed the drugs in question for the purposes of trafficking. Much turned on the contemporaneous statement recorded shortly after the arrest of the Accused. Its voluntariness was challenged because of an alleged...