Public Prosecutor v Mas Swan bin Adnan and another

• Jurisdiction: Singapore
• Judge: Steven Chong J
• Judgment Date: 29 April 2011
• Neutral Citation: [2011] SGHC 107
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 22 of 2010
• Year: 2011
• Published date: 09 April 2013
• Hearing Date: 06 September 2010,01 September 2010,29 October 2010,30 August 2010,08 September 2010,03 September 2010,02 September 2010,07 September 2010,31 August 2010,16 September 2010,14 September 2010,15 September 2010
• Plaintiff Counsel: Isaac Tan, Sharmila Sripathy-Shanaz and Wynn Wong (Attorney-General's Chambers)
• Defendant Counsel: N Kanagavijayan (Kana & Co) and Ranadhir Gupta (A Zamzam & Co),Mohamed Muzammil bin Mohamed (Muzammil & Company) and K Prasad (K Prasad & Co)
• Subject Matter: Criminal Law,Statutory Offences,Section 7 Misuse of Drugs Act,Import of controlled drugs,Evidence,Proof of evidence,Presumptions,Presumption of knowledge of controlled drugs under section 18(2) Misuse of Drugs Act,Admissibility of evidence,Similar fact rule
• Citation: [2011] SGHC 107

Steven Chong J: Introduction

The two accused persons are Malaysians from the state of Johor, Malaysia. The first accused is Mas Swan Bin Adnan (“Mas Swan”), 27 years old and unemployed at the time of his arrest;¹ the second accused is Roshamima Binti Roslan (“Roshamima”), nicknamed “Wawa”,² a 24-year-old recovery officer for a bank in Malaysia at the time of her arrest.³ The two were in a romantic relationship and were due to be engaged on 6 June 2009 and get married the following day. Their marriage plans came to an abrupt halt, however, after they were arrested on 6 May 2009 when entering Singapore in a Malaysian-registered motor car bearing registration number JHA 7781 (“JHA 7781”). Three bundles comprising 123 packets containing a total of 21.48 grams of diamorphine were found in the car.

As a result, they were committed to stand trial on one joint charge under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) for importing not less than 21.48 grams of diamorphine read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed”) (“Penal Code”) (“the Charge”):

That you [both] on the 6th day of May 2009, at or about 9.56 p.m. in a Malaysian registered motor car JHA 7781, at Woodlands Checkpoint, Singapore ... in furtherance of the common intention of you both, did import into Singapore a controlled drug specified in Class A of the First Schedule of 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] read with section 34 of the Penal Code, Chapter 224 and punishable under section 33 of the [MDA].

In their respective defences, both accused persons adopted different and sometimes conflicting positions. Essentially, Mas Swan admitted to importing bundles which he believed contained “ecstasy” pills and implicated Roshamima as well, whereas Roshamima denied having any knowledge of the existence or presence of the bundles in the car altogether.

Background facts The events leading up to the arrests

On 6 May 2009, at about 9.56 pm, Mas Swan and Roshamima arrived at the Woodlands Immigration Checkpoint (“Woodlands Checkpoint”) from Malaysia in JHA 7781. When Corporal Muhammad Ilhan Bin Rahmat, the Immigration and Checkpoints Authority (“ICA”) officer who was on duty at Counter 28, screened Mas Swan’s passport for clearance, he was immediately alerted that Mas Swan had been blacklisted. The ICA Quick Response Team (“QRT”) was notified and they dispatched two officers to Counter 28. After they arrived, the QRT officers gave instructions to Mas Swan to drive to the ICA Arrival Car Secondary Team Office (“ST Office”) and to park JHA 7781 at one of the parking lots, with which instructions Mas Swan complied.

Mas Swan and Roshamima were later directed to drive JHA 7781 to the Inspection Pit with an ICA officer in the rear seat. At the Inspection Pit, a manual search of the interior and undercarriage of JHA 7781 was carried out but nothing incriminating was found. Mas Swan was then instructed to drive JHA 7781 to the Scanning Area where a backscatter scan (ie, an X-ray scan using a Backscatter Van) was conducted on the car. The scan detected three dark spots in the front left door panel of JHA 7781. One of the ICA officers shone his torchlight into the door panel and spotted a green bundle inside.

The Police K-9 unit was mobilised but the dogs did not detect the presence of any drugs. JHA 7781 was then driven to the Detention Yard for a more thorough inspection, and Mas Swan and Roshamima were escorted there on foot. At the Detention Yard, the front left door panel was opened partially and three bundles were retrieved from within the door panel: two were wrapped in green tape (the “green bundle” or “green bundles”, as the case may be) and one was wrapped in black tape (the “black bundle”). One of the green bundles was cut open by Sergeant Muhammad Jasman Bin Sinwan (“Sgt Jasman”) using a pen knife in the presence of Mas Swan and Roshamima and it was found to contain brown granular substances. Sgt Jasman could not recall, however, whether he had shown the brown substance to Mas Swan or Roshamima.⁴ Both Mas Swan and Roshamima were immediately placed under arrest and officers from the Central Narcotics Bureau (“CNB”) were notified accordingly.

One green bundle consisted of 61 smaller packets which subsequent analysis by the Health Science Authority (“HSA”) showed to contain 6.81 grams of diamorphine. The other green bundle comprised 61 smaller packets which were found to contain 6.55 grams of diamorphine. The black bundle comprised just one packet and was found to contain 8.12 grams of diamorphine. The diamorphine found in all three bundles formed the subject of the Charge against both Mas Swan and Roshamima (see [2] above). Mas Swan and Roshamima did not challenge the analysis by the HSA of the nature or of the weight of the granular substances contained in the bundles seized from JHA 7781.

Mas Swan and Roshamima were then taken to the CNB B3 Office at Woodlands Checkpoint at about 12.40 am on 7 May 2009.

The statements recorded from Mas Swan

After they were brought to the CNB B3 Office at Woodlands Checkpoint, Sergeant Azhar Bin Abdul Aziz (“Sgt Azhar”) recorded a contemporaneous statement (“P31”)⁵ from Mas Swan between 1.43 am and 1.55 am. A total of four questions were posed in Malay to Mas Swan who also gave his answers in Malay. Sgt Azhar recorded the entire statement in English: Q1. What is this? A1. I don’t know Q2. Who does it belong to? A2. I don’t know Q3. The car belongs to who? A3. The car belongs to me. I took over from a friend of mine and I paid the monthly instalment of the car. Q4. What is your purpose coming to Singapore? A4. To meet my girlfriend’s aunty to collect marriage gifts. After recording the statement, Sgt Azhar interpreted it back to Mas Swan in Malay and he duly signed it.

At 3.21 am, a police report was lodged at Woodlands Checkpoint Police Station and the three bundles found in JHA 7781 were seized. Both Mas Swan and Roshamima were sent to the CNB headquarters at the Police Cantonment Complex (“PCC”), where Assistant Superintendent of Police Chan Gin Choong (“ASP Gary Chan”) recorded a cautioned statement⁶ from Mas Swan (“P32”) under s 122(6) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”) with the assistance of a Malay interpreter, Ms Sofia Bte Sufri (“Ms Sofia”). ASP Gary Chan, who had earlier been appointed the investigating officer at around 12.30 am,⁷ spoke in English and recorded the following confession in P32 from Mas Swan between 8.02 am and 8.34 am of 7 May 2009 in his office (room B0310B):

I admit guilty to the charge. This is my first time bringing drugs into Singapore.

During the trial, Mas Swan challenged the admissibility of P32 which accordingly, became the subject of a voir dire. I will be addressing the admissibility of P32 in a later section of my judgment (see [21]–[31] below).

Another six long statements were recorded from Mas Swan under s 121(1) of the CPC: (a) the first long statement was recorded on 8 May 2009 at about 8.47 pm by ASP Gary Chan (“P34”); (b) the next long statement was recorded on 10 May 2009 at about 2.10 pm by ASP Gary Chan (“P35”); (c) the third long statement was recorded on 10 May 2009 at about 6.53 pm by ASP Gary Chan (“P36”); (d) the fourth long statement was recorded on 12 May 2009 at about 9.36 am by ASP Gary Chan (“P39”); (e) the fifth long statement was recorded about two months later on 7 July 2009 at about 11.05 am by Inspector Dinesh Kumar Rai (“Inspector Dinesh”) (“P41”); and (f) the sixth long statement was recorded on 10 July 2009 at about 2.10 pm by Inspector Dinesh (“P43”).

Initially, the admissibility of P35 was also contested but counsel for Mas Swan, Mr Kanagavijayan, confirmed during the voir dire that he was withdrawing that challenge after it became apparent that Mas Swan’s position regarding P35 was not that the statement was involuntarily made but that he had not mentioned some words ascribed to him in the statement.⁸

The statements recorded from Roshamima

While at the CNB B3 Office at Woodlands Checkpoint, Corporal Mohammad Nasran Bin Mohd Janbari (“Cpl Nasran”) (now a Sergeant) recorded a contemporaneous statement (“P30”) from Roshamima between 2.05 am and 2.20 am on 7 May 2009. Woman Sergeant Palan Hemmamalani was present throughout the recording. Cpl Nasran posed a total of six questions in Malay to Roshamima, who answered all the questions in Malay. Cpl Nasran recorded P30 in English: Q1: What is this? (recorder’s note: pointing to the seized exhibits) A1: I do not know. Q2: Who does it belong to? A1[sic]: I do not know. Q3: Who is this? (recorder’s note: pointing to a photocopy of one I/C belonging to Mas Swan bin Adnan, I/C: 830524-01-5311) A3: He is my boyfriend. Q4: Who does the car belong to? (recorder’s note: car no JHA7781) A4: Belongs to my boyfriend. Q5: What is your purpose of coming to Singapore? A5: To meet my Aunty at Rochor. Q6: What is the purpose to meet your aunty? A6: To take some gifts for my engagement. After recording the statement, Cpl Nasran interpreted it back to Roshamima in Malay which she duly signed.

Roshamima was taken to CNB headquarters at PCC (see [10] above), where, from 8.40 am to 9.07 am on the same day, in CNB office room B0310B, ASP Gary Chan recorded a cautioned statement (“P33”) from her with the help of Ms Sofia (the same interpreter who assisted in the recording of Mas Swan’s statements). P33 reads as follows:

I do not admit to the charge. I only follow [sic] Mas Swan after I finish [sic] work.

Four long statements were later recorded from Roshamima: (a) the first long statement was recorded...