Public Prosecutor v Mas Swan bin Adnan and another appeal

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 14 May 2012
• Neutral Citation: [2012] SGCA 29
• Court: Court of Appeal (Singapore)
• Hearing Date: 28 November 2011,08 February 2012
• Docket Number: Criminal Appeals Nos 7 and 8 of 2011
• Plaintiff Counsel: Hay Hung Chun and Sharmila Sripathy-Shanaz (Attorney-General's Chambers),Mohamed Muzammil bin Mohamed (Muzammil & Company) and Gloria James (Civetta & Co)
• Defendant Counsel: N Kanagavijayan (Kana & Co) and Ranadhir Gupta (A Zamzam & Co)
• Subject Matter: Criminal Law,Statutory Offences,Misuse of Drugs Act
• Published date: 18 May 2012

Chan Sek Keong CJ (delivering the judgment of the court): Introduction

These appeals arise out of the decision of the High Court judge (“the Judge”) in Public Prosecutor v Mas Swan bin Adnan and another [2011] SGHC 107 (“the Judgment”), which involved a joint trial of two persons, Mas Swan bin Adnan (“Mas Swan”) and Roshamima binti Roslan (“Roshamima”), who were jointly charged with the following charge (“the joint charge”):¹

… that you on the 6 May 2009, at or about 9.56 p.m. in a Malaysian registered motor car bearing registration number JHA 7781, at Woodlands Immigration Checkpoint, Singapore together with [Roshamima in the Prosecution’s case against Mas Swan and Mas Swan in the Prosecution’s case against Roshamima], in furtherance of the common intention of you both, did import into Singapore a controlled drug specified in Class A of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, one hundred and twenty-three (123) packets of substances containing not less than 21.48 grams of diamorphine, without any authorization under the said Act or the Regulations made thereunder, and you have thereby committed an offence under Section 7 of the Misuse of Drugs Act (Chapter 185) read with Section 34 of the Penal Code (Chapter 224) and punishable under Section 33 of the Misuse of Drugs Act. [emphasis in bold in original]

The Judge acquitted Mas Swan of the joint charge and convicted Roshamima of the following amended charge (“the amended charge”):

… that you, on 6 May 2009, at or about 9.56 p.m. in a Malaysian registered motor car bearing registration number JHA 7781, at Woodlands Checkpoint, Singapore, did import into Singapore a controlled drug specified in Class A of the First Schedule of the [Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”)], Chapter 185, to wit, one hundred and twenty-three (123) packets of substances containing not less than 21.48 grams of diamorphine, without any authorization under the said Act or the Regulations made thereunder, and you have thereby committed an offence under section 7 of the [MDA] and punishable under section 33 of the [MDA].

The amendment was to remove the reference in the joint charge to Mas Swan in the light of his acquittal of that charge.

Criminal Appeal No 7 of 2011 (“CCA 7/2011”) is the Prosecution’s limited appeal against the Judge’s acquittal of Mas Swan.² The Prosecution seeks to have Mas Swan convicted of an amended charge of attempting to import an unspecified quantity of a controlled drug commonly known as “ecstasy”.³ Criminal Appeal No 8 of 2011 (“CCA 8/2011”) is Roshamima’s appeal against her conviction on the amended charge.

Background

As the background facts of these appeals have been set out in considerable detail in the Judgment (at [4]–[31]), we will only highlight the salient facts germane to the present appeals.

The relationship between Mas Swan and Roshamima

Mas Swan and Roshamima are both Malaysians. Mas Swan was 27 years old at the time of his arrest. He was unemployed. Roshamima was 24 years old at the time of her arrest. She was working as a recovery officer for a bank in Malaysia.

Mas Swan and Roshamima were due to be engaged on 6 June 2009 and to get married the following day. They were living together in Johor Bahru before their arrest.⁴

Background to the arrests

At about 9.56pm on 6 May 2009, Mas Swan and Roshamima arrived at Woodlands Checkpoint from Malaysia in a vehicle bearing the registration number JHA 7781 (“JHA 7781”). The Judge made no finding on who drove the car. As Mas Swan’s passport was blacklisted, JHA 7781 was searched. Although a manual search did not discover anything incriminating, an X-ray backscatter scan detected three dark spots in the front left door panel of JHA 7781. However, dogs from the Police K-9 unit were not able to detect the presence of any controlled drugs.

A more thorough inspection was then carried out, resulting in the discovery of two green bundles and one black bundle (wrapped in tape of the respective colours) (“the three bundles”) hidden inside the front left door panel of JHA 7781. One of the green bundles was cut open and was found to contain brown granular substance. Mas Swan and Roshamima were accordingly placed under arrest.

Mas Swan’s defence

Mas Swan’s defence was that he knew that the three bundles in JHA 7781 contained controlled drugs. He claimed that he was delivering those drugs on behalf of one “Mickey”, who (according to Mas Swan) was a friend of one “Murie”, who, in turn, was a friend of Roshamima. Mas Swan further admitted that he had made a total of four successful drug deliveries for Mickey before his arrest on 6 May 2009. Mas Swan claimed that he believed that the three bundles in JHA 7781 contained ecstasy pills and not diamorphine because Roshamima had told him that those bundles contained the former.

Roshamima’s defence

Roshamima’s defence was that she did not know that the three bundles were concealed in the front left door panel of JHA 7781 when she entered Singapore with Mas Swan on 6 May 2009. She claimed that the purpose of her entry into Singapore on 6 May 2009 was not to deliver controlled drugs, but to obtain items for the planned engagement and wedding of Mas Swan and herself.

The decision below

The Judge acquitted Mas Swan of the charge of importing diamorphine (viz, the joint charge mentioned at [1] above) as he was satisfied that Mas Swan had rebutted the presumption under s 18(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”) that he knew that the three bundles contained diamorphine. He gave the following reasons for his finding: Mas Swan’s consistent evidence in both his statements and his oral testimony in court was that he believed that the three bundles that he was delivering for Mickey contained ecstasy pills. The Judge preferred Mas Swan’s evidence to Roshamima’s evidence because his evidence was more consistent than hers and was also self-incriminating. It was Roshamima who had inducted Mas Swan into the drug delivery racket. She had been delivering bundles before Mas Swan. Mas Swan was therefore aware that Roshamima had knowledge of the drug deliveries. Mas Swan’s role in and knowledge of the drug deliveries was limited. The Judge observed that Mas Swan was “mild-mannered and somewhat timid”, whereas Roshamima had “an assertive and dominant personality”. Mas Swan’s role was simply to accompany Roshamima. The Judge also noted that when Mas Swan and Roshamima were detained at Woodlands Checkpoint, all calls from Murie and Mickey were made to Roshamima’s mobile phone, indicating that Mas Swan’s role and knowledge was limited. On every occasion involving the delivery of bundles, it was usually Roshamima who would inform Mas Swan of the availability of a “segmen”, ie, the availability of ecstasy pills for delivery to Singapore. Mas Swan had no reason to disbelieve Roshamima’s information that the three bundles contained ecstasy pills. He was to be engaged to marry Roshamima, and would have had no reason to disbelieve what she told him. The Prosecution did not challenge the veracity of Mas Swan’s statements or his oral evidence that he believed that the three bundles contained ecstasy pills. In fact, it appeared from the Prosecution’s questions during cross-examination that the Prosecution accepted Mas Swan’s testimony that he believed that the three bundles contained ecstasy. From the manner in which the Prosecution conducted its case, it appeared to the Judge that the Prosecution was not challenging Mas Swan’s belief, but rather, was attempting to persuade the court that the presumption under s 18(2) of the MDA (“the s 18(2) presumption”) was not rebutted because Mas Swan was wilfully blind to the nature of the controlled drugs in the three bundles. Mas Swan was not wilfully blind to the nature of the controlled drugs in the three bundles. Although Mas Swan had testified that the nature of the controlled drugs did not matter to him, he had consistently maintained that he honestly believed that the three bundles contained ecstasy pills. The fact that Mas Swan had opportunities to inspect the three bundles was not sufficient to prove wilful blindness.

In contrast, the Judge found on the evidence that Roshamima knew that the three bundles were hidden in the front left door panel of JHA 7781 and contained controlled drugs. He gave the following reasons for this finding: Mas Swan’s evidence, which the Judge believed in preference to Roshamima’s evidence, was that Roshamima and Mas Swan were delivering controlled drugs. Roshamima’s evidence on the purpose of her visit to Singapore was fabricated to conceal the fact that the true purpose of the visit was to deliver controlled drugs to Singapore. Although the Judge considered that it was not strictly necessary to rely on Mas Swan’s and Roshamima’s evidence of prior deliveries, he found that the “highly similar circumstances” of the prior deliveries showed that it was “very likely” that Roshamima was aware that they were delivering controlled drugs on 6 May 2009.

This finding triggered the operation of the s 18(2) presumption that Roshamima knew the nature of the controlled drugs in the three bundles. The Judge then found that Roshamima had failed to discharge this presumption as she had relied on an “all or nothing” defence and had not led any evidence to show that she was not aware of the true nature of the controlled drugs in the three bundles. Her “all or nothing” defence had been pitched at the threshold level that she did not know that the three bundles were concealed in the front left door panel of JHA 7781.

The appeals CCA 7/2011

In CCA 7/2011, the Prosecution argues that on the evidence, this court is justified in exercising, and should exercise, its power under s 163(1) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) read with s 54(2) of the Supreme Court of Judicature Act...