Public Prosecutor v Tan Aik Heng

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 07 April 1995
• Neutral Citation: [1995] SGCA 37
• Date: 07 April 1995
• Subject Matter: Whether prima facie case established at end of prosecution's case,Trials,Joint possession,Respondent seen merely talking to another accused,Respondent's defence,Criminal Law,Criminal Procedure and Sentencing,Misuse of Drugs Act,ss 5, 17 & 18 Misuse of Drugs Act (Cap 185),Statutory offences,Respondent present at scene of drug packing operations,Whether trial judge should have called for accused to enter defence,Respondent implicated by confession of co-accused,Trafficking in controlled drugs
• Docket Number: Criminal Appeal No 47 of 1994
• Published date: 19 September 2003
• Defendant Counsel: Peter Fernando (Leo Fernando)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Christine Lee and Ng Cheng Thiam (Deputy Public Prosecutors)

Three accused, namely, Foong Seow Ngiu (the first accused), Tan Aik Heng (the respondent) and Lim Ping Hwa (the third accused), were tried before the High Court on a charge that, on or about 8 April 1994 at about 3.35pm at Blk 62, Circuit Road, #08-307, Singapore, in furtherance of a common intention, they had in their possession 32 packets of substance containing not less than 26.37g of diamorphine for the purpose of trafficking and by virtue of ss 5(2) and 17 of the Misuse of Drugs Act (Cap 185) they trafficked in that quantity of diamorphine, an offence under s 5(1)(a) and punishable under s 33 of the Act. At the close of the prosecution`s case, the trial judge held that a prima facie case had been made out against the first and third accused but not against the respondent. Accordingly he acquitted the respondent without calling for his defence. Against the acquittal this appeal was brought and was heard before us. We allowed the appeal and remitted the case to the trial judge for the respondent`s defence to be called. We now give our reasons.

The prosecution`s case

The evidence adduced by the prosecution at the close of its case was this. On 8 April 1994 at about 12pm, a team of officers from the Central Narcotics Bureau (CNB) kept watch on Blk 62, Circuit Road, particularly the flat #08-307 (the flat) which belonged jointly to the first accused and his wife, Ng Soi May. At about 3pm, the officers were keeping watch from three different locations. Staff Sergeant K Jeyathasan (S/Sgt Jeyathasan), Cpl Chua Kek Kiong (Cpl Chua) and Azmi bin Basiriun (Azmi) positioned themselves at the MacPherson Secondary School along Circuit Road. Acting Staff Sergeant Lester Lim Hang Meng (Ag S/Sgt Lim) and Patrick Phoa Soo Yeong (Patrick Phoa) placed themselves on the ground floor of Blk 62. Another officer, Yap Keng Chuan (Yap) kept watch over the first accused`s flat from Blk 67 which overlooks Blk 62. Soon thereafter, Yap saw a person, who fitted the description of the first accused, leaving the flat and proceeding to the ground floor. He informed Ag S/Sgt Lim on the walkie-talkie and hurried down the staircase and joined Ag S/Sgt Lim and Patrick Phoa on the ground floor of Blk 62. All three of them waited at the lift landing on the ground floor. When the doors of the lift opened, they saw the first accused; he was holding a brown envelope in one hand. They arrested him after a brief struggle. During the struggle the first accused threw the brown envelope onto the floor a little distance away. The envelope was recovered and was found to contain ten sachets of granular substance, later discovered to be heroin. A key pouch was seized from the first accused. Thereafter, the officers went to the first accused`s flat. Cpl Chua opened the front wooden door with a key from the key pouch. S/Sgt Jeyathasan entered first with his revolver drawn. He saw the first accused`s wife, Ng Soi May, seated in the hall near a fish tank watching television, and the respondent and the third accused seated opposite each other on the floor at the entrance of the kitchen. S/Sgt Jeyathasan moved in and placed Ng Soi May under arrest. S/Sgt Lim placed the respondent under arrest and Cpl Chua placed the third accused under arrest.

Both Cpl Chua and S/Sgt Lim testified that they saw the third accused sitting at the entrance of the kitchen facing a large number of drug exhibits which was laid out before him. The respondent was sitting and leaning against the kitchen archway, facing the third accused. They saw the third accused holding a plastic spoon in his right hand and a small plastic sachet in his left. They could not remember seeing drugs on the spoon. They assumed that the third accused was filling the sachet. S/Sgt Lim testified that the respondent appeared to be talking to the third accused but was doing nothing else.

The drug exhibits laid out before the respondent and the third accused were:

(a) one big packet of granular substance;

(b) 31 sachets of granular substance;

(c) a smaller, loose sachet of granular substance;

(d) a stack of 21 new empty plastic sachets;

(e) an improvised weighing scale which has a metal rod with hooks at each end, a string tied in the centre and which was taped to a chair in front of the third accused, and at one end there was a plastic sachet with 1-cent, 5-cent and 20-cent coins in it serving as counterweight.

(f) three disposable lighters;

(g) a pair of scissors;

(h) a pair of tweezers;

(i) two packets of Marlboro cigarettes;

(j) a plastic container with water; and

(k) a light brown envelope.

S/Sgt Lim stated that he also saw a rolled up aluminium foil, which appeared to be unused, lying on the floor.

Senior Staff Sergeant Cheong Wah Chow (Sn S/Sgt Cheong) was the investigating officer. He testified that he arrived at the flat at about 4.20pm. He was briefed on the events that had transpired. S/Sgt Jeyathasan handed to him the brown envelope containing ten plastic sachets of granular substance and the key pouch (recovered from the first accused). He seized and marked the various drug exhibits. He also seized an orange coloured plastic bag containing a bundle of 280 new empty plastic sachets on top of the concrete slab in the kitchen. In addition, he seized from the respondent a handphone and a pager. The 21 new sachets seized from the floor each measured 10cm x 7.5cm, and were of the same size and transparency as the 31 sachets containing the granular substance. These 31 sachets were still not sealed. The ten sachets recovered from the first accused were of the same size and transparency as those seized in the flat, but were heat sealed. The 280 empty new sachets were also of the same size and transparency.

Sn S/Sgt Cheong further testified that he weighed one of the ten sachets. It weighed 7.94g. The 31 sachets together weighed 261.12g with their wrappings. The smaller sachet was half-filled. This was heat sealed, but with a small hole in one corner. He was of the view that this sachet could have been used for smoking. He also said that he came across an aluminium foil. He did not seize it as he thought it was not significant. He agreed with defence counsel that the rolled up paper, aluminium foil, tweezers and water were all articles which could be used for consumption of heroin. He agreed that the smaller sachet as well as one or more of the 31 sachets could be used for consumption. The three coins on the scale weighed 8g. Sn S/Sgt Cheong weighed one of the 31 sachets randomly and found that it weighed 7.8g. From his experience in the CNB, heroin was sold in the streets in sachet form with each sachet weighing approximately 8g. The plastic container with water can also be used for packing drugs.

Counsel for the respondent sought to admit the respondent`s statement taken under s 122(6) of the Criminal Procedure Code (Cap 68) (CPC). The statement was admitted, and it read as follows:

I met `Ah Hwa` at the ground floor of Blk 62, Circuit Road. `Ah Hwa` brought me to a flat on the eighth storey to chitchat with his friend. I do not know the name of his friend. About five minutes later, CNB officers came and arrested all of us inside the flat.

The name `Ah Hwa` referred to the third accused.

Sn S/Sgt Cheong agreed with counsel for the third accused that in not seizing items like the aluminium foil and not submitting them for analysis he had caused an omission in the evidence. He also agreed that the rolled up piece of paper could be used for inhaling heroin and if that was so, the foil could have burnt marks and could have been used to inhale heroin. He did not see any plastic trimmings on the floor.

Counsel for the third accused introduced the third accused`s statement made under s 122(6) of the CPC which Sn S/Sgt Cheong had recorded on 9 April 1994 at midnight and the statement was admitted. It read as follows:

When I went to the flat #08-307 at Blk 62, Circuit Road, the heroin was already on the floor at kitchen. The heroin does not belong to me and I do not know its ownership.

Inspector Vincent Teo Chin Seng attached to the financial investigation department of the CNB testified that $3,600 was seized from the respondent`s pocket, $1,100 from his wallet and $15,500 from the glove compartment of his car. The first accused was according to his financial profile quite poor. No evidence was given of the financial profile of the respondent and the third accused.

The big packet and the 31 sachets had 389.97g of granular substance with a net diamorphine content of 26.37g. The big packet contained 150.30g and the 31 smaller packets contained 239.67g. The purity level was 6.76%. The ten sachets contained 73.27g of granular substance with a net weight of 4.76g of diamorphine. The purity level was 6.46%. Helena Granroth, the scientific officer, testified that the difference between the two purity levels in relative terms was not significant. They were both of the same low grade of heroin.

Dr Lee Tong Kooi, the other scientific officer, testified that each of the accused had the following amounts of morphine in their urine samples:

(i) in respect of the first accused`s sample, 49.29mg per 5ml;

(ii) in respect of the respondent`s sample, 425.4mg per 5ml; and

(iii) in respect of the third accused`s sample, 359.7mg per 5ml.

The admissibility of the statements of the first accused recorded by Sn S/Sgt Cheong was objected to. After a voir dire, they were admitted in evidence. These comprised a statement made under s 122(6) of the CPC (the s 122(6) statement) recorded on 8 April 1994 at 10.33pm and a statement made under s 121 of the CPC (the s 121 statement) recorded on 12 April 1994 between 10.30am to 12.30pm and 13 April 1994 at 2pm. The s 122(6) statement was as follows:

Ah Heng brought the heroin to my flat for packing. The heroin does not belong to me or my wife Ng Soi May.

The first accused, in his examination-in-chief in the voir dire, referred...