Public Prosecutor v Tan Boon Tat

• Judgment Date: 28 March 1990
• Date: 28 March 1990
• Docket Number: Criminal Case No 2 of 1989
• Court: High Court (Singapore)

Public Prosecutor

Plaintiff

and

Tan Boon Tat

Defendant

[1990] SGHC 124

L P Thean J

and

Yong Pung How J

Criminal Case No 2 of 1989

High Court

Criminal Law–Statutory offences–Misuse of Drugs Act (Cap 185, 1985 Rev Ed)–Trafficking in controlled drugs–Presumptions of possession and knowledge–Accused arrested with two bags of drugs in car–Accused given sizeable loan for carrying bags–Accused claimed he had no knowledge of contents of bag–Whether accused successfully rebutted presumptions–Sections 18 (1) and 18 (2) Misuse of Drugs Act (Cap 185, 1985 Rev Ed)–Criminal Procedure and Sentencing–Statements–Admissibility–Cautioned statement–Investigating officer failed to explain charge and warning to accused but accused had been otherwise made to understand the substance of the charge and the adverse implication of not stating exculpatory fact–Whether statement admissible–Criminal Procedure and Sentencing–Statements–Voluntariness–Investigating officer reassured wife of accused of his help should she tell him what she knew–Reassurance not addressed to accused but made within his hearing–Wife did not persuade accused to make statement as result of reassurance–Whether words of comfort constituted inducement

The accused was charged with trafficking in controlled drugs by transporting two bags of diamorphine. At the time when the accused was arrested, the arresting officers found in the boot of his car the bags of drugs. The accused claimed that he did not know the contents of the plastic bag he was asked to carry, and that he was given the consideration of a sizeable loan in return for carrying the bag by someone he was obliged to for past favours. When the drugs were off-loaded from the boot of his car and also at the time when the accused was in the room of the investigating officer, the latter requested the accused to co-operate. When narcotics officers raided the apartment of the accused's wife, the same investigating officer spoke to her and asked her not to worry, that he and the accused were “best friends” and that he could help and that whatever she knew she could tell him. These reassurances were not made to the accused, though they were made within his hearing. There was no evidence that in consequence of what the investigating officer said, the accused's wife asked or persuaded the accused to speak up and make the statement under s 122 (6) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“the Code”) which he later made. The interpreter interpreted the charge and the warning to the accused in Hokkien and the accused understood the charge and the warning. The Prosecution adduced the statement made by the accused to the narcotics officers, to which the Defence objected, on the grounds that it was not made voluntarily, and that no proper warning was given to the accused.

Held, convicting the accused:

(1) The test for voluntariness of a statement was that the Prosecution must show that the statement did not owe its origin to some person in authority exercising fear or prejudice, or holding out hope of advantage. Words of comfort made by the investigating officer to a third party, albeit within the hearing of the accused, and not conveyed by the third party to the accused, were not inducement held out to the accused. On the facts, before and after his statement was recorded, the accused was not threatened or put in fear, neither was any inducement held out to him: at [25], [27], [29] and [30].

(2) An accused making statements while tired, hungry and thirsty and under great stress did not of itself mean that he had no will to resist making any statement which he did not wish to make. The accused was not in such a state of shock, exhaustion or fatigue that he had no will to resist making any statement which he did not wish to make: at [31].

(3) A failure to explain the charge and the warning to an accused, pursuant to s 122 (6) of the Code, was not a reason for excluding a statement which was otherwise admissible. If an accused had been made to understand the substance of the charge and the adverse implication of not stating any fact which might exculpate him, then that subsection would have been complied with. It was not intended by that subsection that the recording officer should explain the ingredients of the offence with which the accused was being charged. On the facts, the charge and the notice of warning had been explained to the accused for the purpose of s 122 (6): at [36], [38] and [39].

(4) Proof of the act of transporting with the presumption of possession for the purpose of trafficking would constitute aprima facie case of trafficking which, if unrebutted, would warrant his conviction. In those circumstances the burden of proof would clearly shift to the accused and he would have to rebut the case made out against him. If he could convince the trial court by a preponderance of evidence or on the balance of probabilities that the drug was for his own consumption he would be entitled to an acquittal. As the car containing the drugs was driven by him, he had to rebut the statutory presumptions of possession and knowledge of the nature of the drug against him. Any normal person who was made an offer of a considerable loan for carrying bags would have looked upon it with grave suspicion and circumspection, and would enquire the content of the bags and the purpose of the delivery. It was also incredible that there were so many things in the boot of the car which he said did not belong to him and he did not know to whom they belonged, and the accused had not called witnesses to testify that persons other than himself had frequently or occasionally put things in the boot. The accused had therefore failed to rebut these presumptions: at [50], [52] to [54].

[Observation: A failure to comply with s 122 (6) might affect the weight to be attached to that statement and its probative value. If no statement was made by the accused, and such a failure was present, the court in determining whether the accused was guilty of the offence charged might decline to invoke s 123 (1) to draw any adverse inference against the accused: at [37].]

Director of Public Prosecutions v Ping Lin [1976] AC 574 (folld)

Loong Phong Hoy v PP [1979-1980] SLR (R) 688; [1980-1981] SLR 141 (folld)

PP v Chan Sway Beng [1988] 1 SLR (R) 437; [1988] SLR 496 (not folld)

Wong Kee Chin v PP [1977-1978] SLR (R) 628; [1978-1979] SLR 114 (refd)

Criminal Procedure Code (Cap 113, 1970Rev Ed)ss 121 (5),121 (6)

Criminal Procedure Code (Cap 68, 1985Rev Ed)ss 122 (6),123

Misuse of Drugs Act (Cap 185, 1985Rev Ed)ss 18 (1), 18 (2) (consd);ss 17,21

Jasvender Kaur (Deputy Public Prosecutor) for the Public Prosecutor

R S Wijaya (Gupta Sam & Wijaya) for the accused.

L P Thean J

(delivering the grounds of decision of the court):

1 The accused, Tan Boon Tat (“the accused”), was charged with having trafficked in controlled drugs by transporting two polythene bags of drugs containing not less than 1,120.81g of diamorphine from the carpark of Lorong 7, Toa Payoh to the entrance of the carpark of Balestier Plaza in a motor car EP 3230P between 3.30pm and 3.46pm on 10 May 1987. The charge against him was as follows:

You, Tan Boon Tat, are charged that you on or about 10 May 1987 between 3.30pm and 3.46pm in Singapore, did traffic in a controlled drug specified in Class 'A' of the First Schedule to the Misuse of Drugs Act (Cap 185), to wit, by transporting two polythene bags of drugs containing not less than 1,120.81g of diamorphine from the carpark of Lorong 7, Toa Payoh to the entrance of the carpark of Balestier Plaza in a motor car, EP 3230P without any authorization under the said act or the regulations made thereunder and you have thereby committed an offence under s 5 (a) and punishable under s 33 of the Misuse of Drugs Act.

2 He was tried before us, and at the conclusion we found him guilty of the charge, and we convicted him accordingly.

Case for the Prosecution

3 The evidence led by the Prosecution from a number of witnesses was this. In the morning of 10 May 1987, which was a Sunday, Jamaludin bin Salleh, the senior narcotics officer of the Enforcement Division, Central Narcotics Bureau (“CNB”), received certain information concerning a male Chinese known to him as “Ah Tat”. He telephoned his colleague, Lim Chei Yoo, another senior narcotics officer, and sought the latter's assistance to trail “Ah Tat” who was believed to be at 369-A, Balestier Road. After he had telephoned Lim, Jamaludin instructed four narcotics officers, Ismail bin Senin, Riduan bin Mohamad Noor, Juraimi bin Suradi, and Wan Othman Wan Noah, and a volunteer special constable, Ong Thian Chin, to proceed to the vicinity of 369-A, Balestier Road to keep a surveillance on “Ah Tat”. All five of them left in two cars: one driven by Juraimi with Wan Othman as the passenger and the other car driven by Ong Thian Chin with Riduan and Ismail as the passengers. Jamaludin also left for the same destination on his motorcycle with an assistant narcotics officer, Lim Tian Siew, as his pillion rider. In the meanwhile, Lim Chei Yoo got in touch with his team consisting of narcotics officer Chew Khai Chow, and four assistant narcotics officers, See Leng Yeow, Tai Kwong Yong, Tan Wu Chyuan and Siew Lai Lone, at their residences respectively, and instructed them to report to the CNB office. Lim Chei Yoo and his team assembled at the office and there he briefed his team, and immediately thereafter, at about 12.05pm, they left for 369-A, Balestier Road. At about 12.15pm, all the officers were present at or around the vicinity of 369-A, Balestier Road and took up their respective positions. It was understood that Jamaludin would identify “Ah Tat” to them. At about 12.20pm, Jamaludin saw “Ah Tat” at the five-foot way of a row of shophouses, wearing dark pants and a blue T-shirt. He thereupon informed, over a radio set, the rest of the officers of...