District Judge Salina Ishak:
The Charges
Background
The Accused, Mr Veeramani Manikam, initially faced a capital charge in CHC-000202-2011 that on 30 December 2011 at about 0650 hours, inside a motor vehicle bearing registration number JKJ1408 at 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 two bundles of vegetable matter weighing approximately 776.43 grams believed to be cannabis, 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(1) Misuse of Drugs Act (Cap 185). He was first produced in Court 26 on 31 December 2011.
The Charges
The said charge against the Accused was subsequently reduced to and amended to two non-capital charges and an additional charge was tendered, namely: on 30 December 2011 at about 7 am inside a motor vehicle JKJ1408 at Woodlands Checkpoint, Singapore, he imported a Class A controlled drug listed in the First Schedule to the Misuse of Drugs Act, Chapter 185 (revised edition, 2008) namely two blocks containing a total of 474.4 grammes of vegetable matter which was analysed and found to be cannabis a controlled drug without authorization under the said Act or the Regulations made thereunder and he had thereby committed an offence under Section 7 of the said Act and punishable under Section 33(1) Misuse of Drugs Act (Cap 185) (DAC 30722-2012 – 1st Charge (Re-Amended); on 30 December 2011 at about 7 am inside a motor vehicle JKJ1408 at Woodlands Checkpoint, Singapore, he imported a Class A controlled drug listed in the First Schedule to the Misuse of Drugs Act, Chapter 185 (revised edition, 2008) namely two blocks containing a total of 246.52 grammes of fragmented vegetable matter which was analysed and found to be cannabinol and tetrahydrocannabinol, which were cannabis mixture as defined under Section 2 of the said Act without any authorization under the said Act or the Regulations made thereunder and he had thereby committed an offence under Section 7 of the said Act and punishable under Section 33(1) Misuse of Drugs Act (Cap 185) (DAC 30723-2012 – 2nd Charge (Re-Amended); and on 30 December 2011 at about 7 am inside a motor vehicle JKJ1408 at Woodlands Checkpoint, Singapore, he possessed a Class C controlled drug listed in the First Schedule to the Misuse of Drugs Act, Chapter 185 (revised edition, 2008) namely, one tablet marked “028” on one side and “5” on the other side which was analysed and found to contain Nimetazepam without authorization under the said Act or the Regulations made thereunder and he had thereby committed an offence under Section 8(a) of the Misuse of Drugs Act, Cap 185 (“the Act”) (DAC 708-2013 – 3rd Charge (Re-Amended);.
Prescribed Punishment
As the first charge involves the importation of 474.4 grammes of cannabis, an amount that was not less than 330 grammes and not more than 500 grammes as provided in the Second Schedule of the Act, the offence attracted a minimum sentence of 20 years’ imprisonment and 15 strokes of the cane and a maximum sentence of 30 years’ imprisonment or imprisonment for life and 15 strokes of the cane. The second charge which involves the importation of 246.52 grammes of cannabis mixture attracted the minimum sentence five years’ imprisonment and 5 strokes of the cane and a maximum sentence of 30 years’ imprisonment or imprisonment for life and 15 strokes of the cane. Lastly, the third charge for possession of one tablet of Nimetazepam, a Class C controlled drug is punishable with a maximum imprisonment term of 10 years, a fine of up to $20,000 or to both.
At the commencement of the trial, the Accused declined the prosecution’s offer to proceed with the first charge and to take into consideration the remaining two charges on condition of his plea of guilt. He claimed trial to all the three charges preferred against him.
His defence is essentially that he had nothing to do with the drugs that were found in the engine compartment of the Malaysian registered motorcar JKJ1408 that he had driven into Singapore. According to him, the drugs that were contained in a black bag belonged to his ‘singer’ friend whom he was suppose to travel with into Singapore. In addition, it was also his defence that he was asleep for most part of the journey to Singapore while his singer friend drove the car. After a Malaysian Traffic Police officer woke him up at the Malaysian Customs, he found his ‘singer’ friend gone from the car. Nevertheless, he had no choice but to drive into Singapore from Johor Bahru due to the heavy traffic.
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 all three charges. I also found that the presumption under Section 18(2) and Section 21 Misuse of Drugs Act (Cap 185) had not been rebutted by the Accused on a balance of probabilities. Accordingly, I convicted the Accused on all three charges and imposed the following sentences: DAC 030722-2012 - 20 years’ imprisonment and 15 strokes of the cane; DAC 030722-2012 -7 years’ imprisonment and 5 strokes of the cane and DAC 000708-2013 - 6 months’ imprisonment. As the Accused had been convicted and sentenced to imprisonment for three distinct offences, pursuant to Section 307(1) Criminal Prodedure Code (Cap 68), I ordered the sentences for DAC 30722-2012 and DAC 708-2013 to run consecutively. His total sentence is 20 years’ 6 months’ imprisonment and 20 strokes of the cane with effect from 31 December 2011.
Dissatisfied with my decision, the Accused has filed a Notice of Appeal against his conviction and sentence on 21 June 2013. He is now serving his sentence. I now set out the reasons for my decision.
In coming to my decision in respect of the first and second charges, I was mindful of the case of PP v Adnan bin Kadir [2013] 1 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 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 stating the prosecution’s case, it would be useful to set out the undisputed facts and they are as follows: on 30 December 2011 at or about 6.50 a.m. the Accused had driven a Malaysian registered motor vehicle i.e. a Proton Wira with the registration number JKJ1408 into the Woodlands Checkpoint, Singapore from Johor Bahru, Malaysia alone. He was in-charge of the vehicle at the material time; on 30 December 2011 at about 6.50 a.m., PW1, Corporal Noraizah Binte Mohd Said and her partner, PW2, Staff Sergeant Mohammed Khairil Bin Abdul Karim from the Immigration & Checkpoints Authority (“ICA”) were activated by their Duty Officer to attend to one ‘Cat H’ subject or an ICA ‘person of interest’ subsequently identified as the Accused at the Arrival Car Secondary Team (ST) Office. He had been escorted to the ST Office by an AETOS Officer; Once PW1 and PW2 were activated, they went to the ST Office and called out the Accused’s name and escorted him out to check his vehicle. The Accused led PW1 and PW2 to the car he had driven and he unlocked it by using his key. The ICA Officers conducted a search of the motor vehicle JKJ1408 that was parked in parking lot A5 outside the ST Office; on 30 December 2011 at about 06.59 a.m., when the Accused opened the hood or bonnet of the car as instructed by PW1, PW1 saw a car mat. When she lifted up the car mat, she saw a black bag (“Exhibit P35”) hidden in between the air filter compartment and the car battery. When PW1 looked inside and inspected the contents of the bag, there were two bundles of vegetable matter subsequently marked as “B1A” and “B1B1A1” suspected to be controlled drugs. The Accused was then placed under arrest by PW2; After the two bundles of vegetable matter were found, PW1 closed the bonnet of the car and sat in the rear passenger seat of the car with the Accused. PW2 then drove the said car to the Arrival Car Inspection Pit as the parking area at the ST Office was packed with other cars that were there to purchase their Autopass from the LTA Office. At the Inspection Pit, PW1 and PW2 conducted a further search on the other parts of the car. At about 7.00 a.m., PW1 called up the CNB officer in view of the exhibits found in the bonnet of the car. At about 7.17 a.m. PW3 Senior Staff Sergeant Chew Tai Wai came arrived at the Arrival Car Inspection Pit and PW1 handed over both the Accused and the drug exhibits to him; On 30 December 2011, PW8, Staff Sergeant Abdul Rahman Bin Kadir from the Forensic Response Team of CNB was activated to help out in the photo-taking of the scene and the case...
