Public Prosecutor v Tan Kay Yong and another

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin J
• Judgment Date: 26 March 2018
• Neutral Citation: [2018] SGHC 67
• Court: High Court (Singapore)
• Docket Number: Criminal Case No 51 of 2017
• Published date: 09 February 2019
• Year: 2018
• Hearing Date: 12 October 2017,20 July 2017,28 July 2017,01 December 2017,21 July 2017,26 July 2017,25 July 2017,27 July 2017,19 July 2017
• Plaintiff Counsel: Lau Wing Yum, Tan Zhongshan and Michelle Lu (Attorney General's Chambers)
• Defendant Counsel: Low Cheong Yeow (Tito Isaac & Co LLP) and Loo Khee Sheng (KS Loo & Co),Amolat Singh (Amolat & Partners) and Dhanaraj James Selvaraj (James Selvaraj LLC)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act
• Citation: [2018] SGHC 67

Lee Seiu Kin J:

The first accused is Tan Kay Yong (“Kay Yong”), a Singaporean male who was 42 years old at the time of the alleged offence. The second accused is Mazlan bin Yusoff (“Mazlan”), a Singaporean male who was 48 years old at the time of the alleged offence. Kay Yong faced one charge of possession of a Class A controlled drug (diamorphine) for the purpose of trafficking under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). Mazlan faced one charge of trafficking in a Class A controlled drug (diamorphine) under s 5(1)(a) of the MDA. The respective charges read as follows:

That you 1. TAN KAY YONG,

on 20 July 2015, at about 7.20 pm, at the lift landing of Blk 31 Bendemeer Road, 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 one (1) packet containing not less than 459.4 grams of granular/powdery substance which was analysed and found to contain not less than 18.71 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) of the Misuse of Drugs Act (Cap 185, 20008 Rev Ed) and punishable under section 33(1) of the said Act.

That you, 2. MAZLAN BIN YUSOFF,

1st CHARGE

on 20 July 2015, sometime before 7.20 pm, in the vicinity of Blk 31 Bendemeer Road, 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 delivering to one Tan Kay Yong, NRIC: S[xxx], one (1) packet containing not less than 459.4 grams of granular/powdery substance which was analysed and found to contain not less than 18.71 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) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) and punishable under section 33(1) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed).

Both Kay Yong and Mazlan claimed trial to the charges. On the first day of the proceedings, the Prosecution applied for a joint trial, which application I granted.

At the conclusion of the joint trial, I found that the Prosecution had proven both the charges against Kay Yong and Mazlan beyond a reasonable doubt. I therefore convicted Kay Yong and Mazlan of the respective charges against each of them. Under s 33(1) of the MDA, the punishment prescribed for the charges is death. However, s 33B(1)(a) of the MDA gives the court the discretion to impose the alternative sentence of life imprisonment and a minimum of 15 strokes of the cane if the conditions under ss 33B(2)(a) and 33B(2)(b) of the MDA are met. I found that these conditions were met with respect to Mazlan, and exercised my discretion to impose life imprisonment. Caning was not imposed as Mazlan was over 50 years of age at the time of sentencing. On the other hand, Kay Yong had not fulfilled either requirement under s 33B(2) of the MDA. Thus, I imposed the mandatory sentence of death. I now provide the grounds of my decision.

Facts Events prior to the arrests

The facts pertaining to Mazlan’s activities prior to his arrest were mostly not in dispute. Kay Yong was, for the most part, not in a position to dispute these facts. Sometime before 20 July 2015, Mazlan became acquainted with a person called Mani through a friend. According to Mazlan, Mani was also known by the name of Ah Boy.¹ The said friend recommended Mani to Mazlan as a drug supplier because Mazlan wanted to obtain drugs for his own consumption.² This friend then gave Mazlan’s phone number to Mani.³ Prior to 20 July 2015, Mazlan never met Mani in person.

About three to four weeks before 20 July 2015, Mani called Mazlan several times and asked Mazlan to help him make drug deliveries. Mazlan initially refused these requests.⁴

Sometime in the afternoon of 20 July 2015, Mani called Mazlan again and asked him for help with sending drugs to someone called “Botak”. At the time, Mazlan did not know who Botak was.⁵ At trial, however, he identified Kay Yong as Botak.⁶ Although Mazlan had previously refused Mani, he agreed to assist Mani in delivering the drugs this one time.⁷ Mani then instructed Mazlan to meet him that same day at the end of Tuas Avenue 11 in a red car.

At around 4pm that afternoon, Mazlan went to Tuas Avenue 11, where Mani was waiting in a red car which bore a Malaysian registration plate.⁸ When Mazlan approached the car, Mani rolled down the window and handed Mazlan a 7-Eleven plastic bag containing two packets of granular substance.⁹ Mani told Mazlan to deliver one packet to Botak,¹⁰ and added that Botak would give him a sum of money. He did not, however, specify how much money Mazlan should expect.¹¹ Mani also told Mazlan the number of Botak’s mobile phone, which the latter wrote on a piece of paper.¹² Mazlan’s evidence was that Mani then told him to expect a call from Botak later on.¹³ Kay Yong disagreed that Mani could have told Mazlan to expect a call from him because Mani (known by Kay Yong as Ah Boy) had said that Mazlan would call him first¹⁴. However, little turned on this dispute of fact.

Mazlan then parted ways with Mani and walked towards a nearby bus stop where he waited for a taxi. At about 5.40pm,¹⁵ while he was still at Tuas Avenue 11, Mazlan received a phone call from Kay Yong, whose number matched that which Mani had given to him as Botak’s number (see [7] above).¹⁶ Mazlan’s testimony in court was that Kay Yong spoke to him in Malay and asked, “Barang ada pada lu?”¹⁷ At trial, the interpreter for Mazlaninformed the court that this can either mean “Is the stuff with you?” or “Is the thing with you?”.¹⁸ After Mazlan answered in the affirmative, Kay Yong told Mazlan to meet him at Blk 31 Bendemeer Road.¹⁹ Kay Yong’s evidence, which was unchallenged, was that Mazlan also told him to bring a bag with him.²⁰

Subsequently, Mazlan received a call from his girlfriend, Suhana binte Noordin (“Suhana”),²¹ who asked to meet up with Mazlan. Mazlan asked Suhana to pick him up from Tuas Avenue 11.²² Sometime later, Suhana and another friend of Mazlan’s, Nur Aida Binte Borhan (“Aida”), fetched Mazlan from Tuas Avenue 11 in a yellow car bearing registration number SJH 1649L (“the Car”). Aida was the driver,²³ while Suhana sat in the front passenger seat. Mazlan boarded the Car and sat in the rear passenger seat behind Suhana.²⁴ He told Suhana that he wanted to meet a friend at Bendemeer Road. The three of them proceeded to Bendemeer Road in the Car.²⁵

Kay Yong’s arrest

At about 6.15pm that same day, 20 July 2015, a party of Central Narcotics Bureau (“CNB”) Special Task Force (“STF”) officers arrived in the vicinity of Blk 31 Bendemeer Road. At about 6.40pm, Senior Staff Sergeant Wong Kah Hung Alwin (“SSS Alwin”) spotted Kay Yong near the fourth floor lift lobby of Blk 31 Bendemeer Road. He reported this through radio set communications. Shortly thereafter, Senior Station Inspector Ng Tze Chiang Tony (“SSI Tony”) reported that he saw Kay Yong at the ground floor of Blk 31 Bendemeer Road, walking in the direction of Blk 30 Bendemeer Road.²⁶

At about 7.05pm, SSI Tony observed the Car moving towards the rubbish collection area near Blk 31 Bendemeer Road. SSI Tony also saw Kay Yong walking towards the same rubbish collection area.²⁷

At the rubbish collection area where the Car had stopped, Kay Yong approached the passenger side.²⁸ He was carrying a black bag (“the Black Bag”).²⁹ As the Car only had two doors, when Suhana opened her door she had to hunch forward so that the backrest of her seat could be pushed forward, to allow Mazlan to pass what he was conveying to Kay Yong.³⁰

What occurred next was a matter of contention. Suhana testified that there was no conversation between Mazlan and Kay Yong, and that the only thing she heard was Kay Yong saying to Mazlan, “Just put inside here,” in English.³¹ She also did not see anything being exchanged between Mazlan and Kay Yong, because she was hunched forward and her head was down.³² Mazlan’s evidence was that Kay Yong did not say anything apart from “Masukkan dalam beg”, which in Malay means “Put it in the bag”.³³ Kay Yong’s evidence was that he could not remember if he had said anything to the effect of “Just put inside here”.³⁴ Defence counsel for Kay Yong, Mr Low Cheong Yeow and Mr Loo Khee Sheng, took the position that Suhana and Mazlan’s evidence was unreliable, and that Kay Yong never said “just put inside here” either in English or in Malay.³⁵

Whatever Kay Yong and Mazlan may have said to each other, it was not in dispute that some words were spoken after which Kay Yong opened the Black Bag.³⁶ Mazlan placed one of the packets of granular substance he had received from Mani in a reddish-orange plastic bag (“the Plastic Bag”),³⁷ which he identified in court to be the item marked as Exhibit A1A,³⁸ and placed the Plastic Bag inside Kay Yong’s Black Bag.³⁹ Kay Yong then handed Mazlan a stack of money, and walked away.⁴⁰

A short while after Kay Yong and Mazlan had met at the rubbish collection area, SSI Tony saw Kay Yong walking away from the Car towards Blk 31 Bendemeer Road, while the Car drove off. Kay Yong then proceeded to the fourth floor of Blk 31 Bendemeer Road. When Kay Yong was near the ‘lift lobby A’ area on the fourth floor, SSI Tony, Senior Staff Sergeant Chew Thye Kwang @ Jordi (“SSS Jordi”), Staff Sergeant Norizan Binte Merabzul (“SS Norizan”) and Staff Sergeant Muhammad Helmi Bin Abdul Jalal (“SS Helmi”) moved in to arrest him.⁴¹ SSS Jordi remained on the ground floor, while SSI Tony, SS Norizan and SS Helmi proceeded to the fourth floor.⁴² The officers were in plain clothes.⁴³ When they reached the fourth floor, SSI Tony testified that they saw Kay Yong...