Public Prosecutor v Tan Joo Kwang

• Jurisdiction: Singapore
• Judge: Shawn Ho
• Judgment Date: 05 July 2023
• Neutral Citation: [2023] SGDC 125
• Court: District Court (Singapore)
• Docket Number: District Arrest Case No. 901124 of 2021 & Ors
• Hearing Date: 04 July 2023,05 July 2023,20 March 2023,21 March 2023,31 March 2023
• Citation: [2023] SGDC 125
• Year: 2023
• Plaintiff Counsel: Mr Arvindren R (Attorney-General's Chambers)
• Defendant Counsel: Accused-in-person.
• Subject Matter: Criminal Law,Offences,Misuse of Drugs Act,Criminal Procedure and Sentencing,Statements,Admissibility
• Published date: 12 July 2023

District Judge Shawn Ho: Introduction

Mr Tan Joo Kwang (“the Accused”) claimed trial to two charges of having drugs in his possession for the purpose of trafficking (“the drugs”). Six other charges were stood down for the trial.

The Accused did not dispute that he had both possession and knowledge of the nature of the controlled drugs. The only matter in dispute was whether such possession of the drugs was for the purpose of trafficking which was not authorised. His defence was that the drugs were solely for his own consumption.

Due to drug withdrawal symptoms, the Accused claimed that he was not sober when his statements were recorded on 19 January 2021 at 11.09 a.m. and 20 January 2021 at 3.07 p.m.. After an ancillary hearing, I found that both statements had been voluntarily given.

All things considered, the Prosecution proved its case beyond a reasonable doubt. The Accused was convicted on both charges.

I set out my reasons.

Charges

The Accused claimed trial to two charges:

You, Tan Joo Kwang, are charged that you, on 14 January 2021, at about 12.45pm, at room 704 of Hotel Compass located at 36 Lorong 22 Geylang, 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) (“MDA”), to wit, by having in your possession for the purpose of trafficking 15 packets containing a total of not less than 112.70 grams of granular/powdery substance which was analysed and found to contain not less than 1.14 gram of diamorphine, without any authorization under the MDA or the regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) read with section 5(2) of the MDA,

and further, that you, before the commission of the aforementioned offence, were convicted on 11 April 2008, in Court No. 40 of the Subordinate Courts, vide DAC 08734/2008, of an offence of trafficking in a controlled drug under section 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed), and sentenced to 5 years’ imprisonment with 5 strokes of the cane, which conviction and punishment have not been set aside to date, and you shall now be punished under section 33(4A)(i) of the MDA,

and further, that you, from 29 October 2019 to 26 August 2021 (both dates inclusive), were subject to a remission order made by the Commissioner of Prisons under section 50I of the Prisons Act (Cap 247, 2000 Rev Ed), which remission order is subject to the basic condition under section 50S(1) of the Prisons Act, and while the remission order was in effect, you committed the aforementioned offence on 14 January 2021, and upon conviction and the imposition of a sentence reflected under section 50S(1)(b) of the Prisons Act, shall be deemed to have breached the basic condition of your remission order, and you are thereby liable to be punished under section 50T of the Prisons Act with an enhanced sentence of imprisonment for a term not exceeding the remaining duration of the remission order of 225 days (from 14 January 2021 to 26 August 2021).¹

You, Tan Joo Kwang, are charged that you, on 14 January 2021, at about 12.45pm, at room 704 of Hotel Compass located at 36 Lorong 22 Geylang, 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) (“MDA”), to wit, by having in your possession for the purpose of trafficking 1 packet containing not less than 50.04 grams of crystalline substance which was analysed and found to contain not less than 34.00 grams of methamphetamine, without any authorization under the MDA or the regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) read with section 5(2) of the MDA,

and further, that you, before the commission of the aforementioned offence, were convicted on 11 April 2008, in Court No. 40 of the Subordinate Courts, vide DAC 08734/2008, of an offence of trafficking in a controlled drug under section 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed), and sentenced to 5 years’ imprisonment with 5 strokes of the cane, which conviction and punishment have not been set aside to date, and you shall now be punished under section 33(4A)(i) of the MDA,

and further, that you, from 29 October 2019 to 26 August 2021 (both dates inclusive), were subject to a remission order made by the Commissioner of Prisons under section 50I of the Prisons Act (Cap 247, 2000 Rev Ed), which remission order is subject to the basic condition under section 50S(1) of the Prisons Act, and while the remission order was in effect, you committed the aforementioned offence on 14 January 2021, and upon conviction and the imposition of a sentence reflected under section 50S(1)(b) of the Prisons Act, shall be deemed to have breached the basic condition of your remission order, and you are thereby liable to be punished under section 50T of the Prisons Act with an enhanced sentence of imprisonment for a term not exceeding the remaining duration of the remission order of 225 days (from 14 January 2021 to 26 August 2021).²

Prosecution’s case

The drugs were in the Accused’s possession for the purpose of trafficking, which he admitted to in his statements recorded on 19 January 2021 at 11.09 a.m. and 20 January 2021 at 3.07 p.m. (“Long Statements”).

Defence’s case

The drugs were solely for the Accused’s own consumption. The Accused did not dispute possession of the drugs or that he had knowledge that the drugs were diamorphine and methamphetamine. Due to drug withdrawal symptoms, he was not sober during the recording of his Long Statements.

Ancillary hearing

Challenging the Voluntariness of the Long Statements. The Accused challenged the voluntariness of his Long Statements. An ancillary hearing was held.

The Law for Ancillary Hearing

Where voluntariness is challenged, the burden is on the Prosecution to prove beyond a reasonable doubt that the statements were made voluntarily and not on the Defence to prove on a balance of probabilities that the statements were not made voluntarily: Muhammad bin Kadar and another v Public Prosecutor [2011] 3 SLR 1205 (“Kadar”) at [177] and Azman bin Mohamed Sanwan v Public Prosecutor [2012] 2 SLR 733 at [19]-[27] (Ho Hock Lai, On the Obtaining and Admissibility of Incriminating Statements, SJLS [2016] 249 at 253-255 and 260-261).

It is only necessary for the Prosecution to remove a reasonable doubt of the existence of the threat, inducement or promise, and not every lurking shadow of influence or remnants of fear: Panya Martmontree v Public Prosecutor [1995] 2 SLR(R) 806 at [32] (Chin Tet Yung, Criminal Procedure Code 2010: Confessions and Statements by Accused Persons Revisited, (2012) 24 SAcLJ 60 at [16]-[33] and [52]-[53]).

The voluntariness test is applied in a manner which is partly objective and partly subjective (Sulaiman bin Jumari v Public Prosecutor [2021] 1 SLR 557 at [39]). The objective limb is satisfied if there is a threat, inducement or promise. The subjective limb is satisfied when the threat, inducement or promise operates on the offender’s mind through hope of escape or fear of punishment connected with the charge (Chai Chien Wei Kelvin v Public Prosecutor [1998] 3 SLR(R) 619 at [53]).

The Court of Appeal in Garnam Singh v Public Prosecutor [1994] 1 SLR(R) 1044 at [31] stated that “in order for the effects of withdrawal from drugs to affect the drug user’s medical and psychological condition to render any statement he makes to be involuntary, he must be in a state of near delirium, that is to say, that his mind did not go with the statements he was making”.

The litmus test for oppression is whether the investigation was, by its nature, duration or other attendant circumstances, such as to affect the accused person’s mind and will such that he speaks when he otherwise would have remained silent (Tey Tsun Hang v Public Prosecutor [2014] 2 SLR 1189 at [113]). The same standard applies even where the allegation is not that the accused person would have remained silent, but that he would have given a different version of the statement, had he not been oppressed (Public Prosecutor v Ridhaudin Ridhwan bin Bakri [2019] SGHC 105 at [52]).

The Court of Appeal in Chai Chien Wei Kelvin summarised the test for oppression as follows (at [56]-[57]): “(o)ppression is a circumstance which may render a confession involuntary and thus inadmissible, and whether the accused has been subjected to oppression is a question of fact … In other words, a statement would not be extracted by oppression unless the accused was in such a state that his will was ‘sapped’ and he could not resist making a statement which he would otherwise not have made”.

In this regard, Explanation 1 to s 258 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) states that:

If a statement is obtained from an accused by a person in authority who had acted in such a manner that his acts tend to sap and have in fact sapped the free will of the maker of the statement, and the court is of the opinion that such acts gave the accused grounds which would appear to the accused reasonable for supposing that by making the statement, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him, such acts will amount to a threat, an inducement or a promise, as the case may be, which will render the statement inadmissible. [emphasis added]

Explanation 2(b) to s 258 of the CPC states that “If a statement is otherwise admissible, it will not be rendered inadmissible merely because it was made in any of the following circumstances: … (b) when the accused was intoxicated”.

Even if an accused person’s statement is voluntary, the court can exclude it if its prejudicial value outweighs its probative value, for example, where there is lack of language interpretation or procedural flaws in the recording which cast serious doubts on the...