Public Prosecutor v Thamodren a/l Kuppusamy

• Jurisdiction: Singapore
• Judge: Salina Bte Ishak
• Judgment Date: 18 September 2013
• Neutral Citation: [2013] SGDC 302
• Court: District Court (Singapore)
• Docket Number: DAC 033844-2012, Magistrate’s Appeal No 189 of 2013/01
• Year: 2013
• Published date: 26 September 2013
• Hearing Date: 19 August 2013,11 June 2013,12 June 2013,29 July 2013
• Plaintiff Counsel: DPP Eunice Ng (Attorney-General's Chambers)
• Defendant Counsel: Mr Thamodren a/l Kuppusamy, the Accused acting in person.
• Citation: [2013] SGDC 302

District Judge Salina Ishak: Background

The Accused, Mr Thamodren a/l Kuppusamy, initially faced a capital charge in CHC-00092-2011 that on 25 May 2011 at about 10.44 p.m. at the Motorcycle Arrival Channel of Woodlands Checkpoint, Singapore, he imported a controlled drug specified in Class ‘A’ of the First Schedule to the Misuse of Drugs Act (Cap 185), namely three (3) packets of granular substances which were analysed and found to contain 15.17 grams of diamorphine, at the said place without authorization under the said Act or the Regulations made thereunder and he had thereby committed an offence under Section 7 and punishable under Section 33 Misuse of Drugs Act (Cap 185). He was first produced in Court 26 on 26 May 2011.

The Charge

The said charge against the Accused was subsequently reduced to and amended to a non-capital charge which read as follows:

Charge (5th Amendment)

DAC 033844 – 2012 - the Accused, on 25 May 2011, at or about 10.32 p.m. at the Bike Arrival Channel of Woodlands Check Point, Singapore, he imported a controlled drug specified in Part I of the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed), namely three packets of granular substances weighing a total of 1366.90 grams which were analysed and found to contain not less than 14.99 grammes of diamorphine without authorization under Section 7 and punishable under Section 33 of the aforesaid Act.

To establish its case against the Accused, the prosecution adduced evidence on the chain of events from the time he arrived at the Bike Arrival Channel of Woodlands Checkpoint Singapore on 25 May 2011 at or about 10.32 pm until the time the drugs were analysed by the Health Sciences Authority (“HSA”) and found to contain diamorphine in the certificates dated 18 January 2012. Further, to prove that the Accused was aware that he was importing heroin into Singapore, the prosecution had relied on his unchallenged contemporaneous statement recorded at the scene by PW7, Sergeant Suhan s/o Sukumaran that the three bundles contained heroin. In the alternative, the prosecution sought to rely on the presumption under Section 18(2) Misuse of Drugs Act (Cap 185, 2008 Rev Ed) as it was undisputed that the Accused knew that he had brought 3 bundles of drugs that were sandwiched between his waist and his jeans.

Essentially, the main thrust of the Accused defence is that the drugs belonged to a Malaysian Chinese named ‘Ah Long’ whom he owed money. According to him, he had been forced to bring the drugs into Singapore under duress after being assaulted in Kulai over a few occasions from 24 May 2011 to 25 May 2011 and after being threatened at gunpoint by three Indian men. According to him, the 3 men had also taken his two mobile phones away from him during the period he was held captive and had only returned them to him on his way to the Singapore Customs. He had gone into the Woodlands Check Point as he could not turn back.

At the conclusion of the trial, I was satisfied that the Prosecution had proven its case beyond reasonable doubt against the Accused in respect of the charge. I accepted his contemporaneous statement and found that the Accused knew that he was importing 3 packets of diamorphine into Singapore on 25 May 2011 at or about 10.32 pm and had not done so under duress. Accordingly, I convicted the Accused on DAC 033844 - 2012 and imposed a sentence 25 years’ imprisonment and 15 strokes of the cane with effect from 26 May 2011.

Dissatisfied with my decision, the Accused has filed a Notice of Appeal against his conviction and sentence on 21 August 2013. He is now serving his sentence in Cluster B. His earliest date of release is on 25 January 2028.

I now set out the reasons for my decision.

In coming to my decision in respect of the charge, I was mindful of the case of PP v Adnan bin Kadir [2013] SGCA 34 where in Criminal Reference No: 3 of 2012, the Public Prosecutor referred the following question of law of public interest to the Court of Appeal pursuant to s 397(2) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”):

Whether, in the case of a prosecution for an offence under section 7 of the Misuse of Drugs Act (Chapter 185, 2008 Rev Ed), the Prosecution bears the burden of proving, beyond a reasonable doubt, that the accused imported the controlled drug for the purpose of trafficking.

In Adnan bin Kadir v PP [2012] SGHC 196, Chan Sek Keong CJ, had held that the burden was on the Prosecution to prove beyond a reasonable doubt that the Appellant had brought the drug into Singapore for the purpose of trafficking. If the Prosecution was unable to discharge this burden, the Appellant could only be convicted of the offence of unauthorised possession of a controlled drug under s 8(a) of the current Misuse of Drugs Act (Cap 185). Nevertheless, on 28 June 2013 after the hearing of the present case, the Court of Appeal in PP v Adnan bin Kadir [2013] SGCA 34 held that the Question should be answered in the negative, viz, Section 7 of the Misuse of Drugs Act does not require the Prosecution to prove that the accused imported the controlled drug for the purpose of trafficking in order to secure a conviction under that section.

Undisputed Facts

Before setting out the prosecution’s case, it is pertinent to note that the following facts are not disputed: On 25 May 2011 at or about 10.32 p.m. the Accused had ridden a Malaysian registered motorcycle with the registration number JKE3659 into the Woodlands Checkpoint, Singapore from Johor Bahru, Malaysia alone; on the same day, the Accused had gone to PW3, Corporal Norjuliana Binte Hashim’s Arrival Motor Counter 43 for immigration checks. After she scanned the Accused’s passport, her EECUS terminal prompted her that the Accused was ‘Cat H’ subject. She alerted the Operations Room to send an AETOS officer to her counter and asked the Accused for his motorcycle keys and his passport; When the AETOS officer, PW4, Corporal Mohamed Azmin Bin Mohamed Amin arrived at her counter, PW3 handed the Accused’s passport and motorcycle key to him. He was then escorted to the Secondary Team (“ST”) Office by PW4 and his partner PW5, Sergeant Muhamad Hisham Bin Ya’akop. They then handed over custody of the Accused, his motorcycle keys and passport to an ICA Officer ASP Gng Cheang Wee. ASP Gng then handed over custody of the Accused, his motorcycle keys and his passport to a CNB Officer, PW6 Staff Sergeant Yew Kok Hong; PW6 conducted a frisk search on the Accused and he felt something bulging from the Accused’s waistline. When asked what was inside his jeans, the Accused had told PW6 that there were drugs inside his jeans. PW6 then retrieved 3 bundles of drugs wrapped in aluminum foil and masking tape that was sandwiched between the Accused’s waist and his jeans; The three certificates from the HSA marked and admitted as Exhibits P32, P33 and P34 indicate that the three bundles of drugs marked by the CNB as “A1A”, “A2A” and “A3A” contained a total of 15.17 g of diamorphine. The Accused initially faced a capital charge of importing 15.17 g of diamorphine but the charge was subsequently amended to a charge of importing not less than 14.99 g of diamorphine; f) Telephone calls were made as well as received on the Nokia 1280 mobile handphone i.e. Exhibit P44 belonging to the Accused at the material time. SMSes were also received and sent out from the Nokia 1280 mobile phone as well as the Sony Ericsson K530i mobile phone i.e. Exhibit P45 belonging to the Accused and recovered from him during his arrest at the material time; The HSA report from the DNA Profiling Laboratory bearing Lab No. DN-1143-00884 dated 13 January 2012 i.e. Exhibit P36 indicate that the Accused’s DNA profile was obtained from the adhesive and non-adhesive sides of the masking tapes from the drug exhibits marked as “A2A” and “A3A”.

Issues

The main issues for my determination are: whether on 25 May 2011 at or about 10.32 pm, the Accused had imported the three bundles of drugs contained not less than 14.99 grams of diamorphine, a Class A controlled drug listed in the First Schedule to the Misuse of Drugs Act, (Cap 185) into Singapore without authorization and whether he was acting under duress when he brought the three bundles of drugs wrapped in aluminum foil and masking tape that sandwiched between his waist and his jeans.

The Prosecution’s Case Chain of Evidence

It is the prosecution’s case that the Accused had entered Singapore on 25 May 2011 at or about 10.32 p.m. through Counter 43 of the Bike Arrival Channel of the Woodlands Checkpoint. When the Accused’s passport was scanned, PW3, Norjuliana Binte Hashim, an ICA Officer was prompted by the computer system to alert the Operations Room to send an AETOS officer to her counter. The Accused was then escorted to the Secondary Team Office when he was subsequently handed over to a CNB Officer, PW6, Staff Sergeant Yew Kok Hong.

PW6 conducted a frisk search on the Accused and he felt something bulging from the Accused’s waistline. When asked what was inside his jeans, the Accused told PW6 that there were drugs inside his jeans. PW6 then retrieved 3 bundles of drugs wrapped in aluminum foil and masking tape that was sandwiched between the Accused’s waist and his jeans. The 3 bundles were marked “A1A”, “A2A” and “A3A” and handed over to PW9, HSA Analyst Tan Ying Ying of the Health Sciences Authority on 26 May...