Public Prosecutor v Virat Kaewnern

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 27 February 1993
• Neutral Citation: [1993] SGCA 15
• Docket Number: Criminal Appeal No 20
• Date: 27 February 1993
• Year: 1993
• Published date: 19 September 2003
• Plaintiff Counsel: EC Foenander with Teh Y-Lyn (State Counsel)
• Citation: [1993] SGCA 15
• Defendant Counsel: NK Rajah with Winnifred Gomez (Muru Rajah & Partners)
• Court: Court of Appeal (Singapore)
• Subject Matter: Evidence,Inconsistent evidence of prosecution witnesses regarding behaviour of respondent at material time,Respondent caught carrying diamorphine,Misuse of Drugs Act,Accused to prove on balance of probabilities,Rebutting presumption,Whether prima facie case made out,Possession of controlled drugs,Statutory offences,Criminal Law,Proof of evidence,Presumption under s 18(2) of Misuse of Drugs Act (Cap 185),Unsworn statement of co-accused exonerating respondent,Onus of proof,s 18(2) Misuse of Drugs Act (Cap 185),Whether presumption had been rebutted,Whether burden discharged

This is an appeal by the public prosecutor against the order of acquittal of the respondent at the end of the prosecution case, when the learned judge ruled that the accused need not be called on to enter on his defence. After hearing counsel, we allowed the appeal. We reversed the order of acquittal and remitted the case to the trial judge for the respondent`s defence to be called. We now give our reasons.

The respondent was charged, together with another person, Manit Changthong, with the offence of importing into Singapore 3,860.92g of diamorphine in furtherance of their common intention, contrary to s 7 of the Misuse of Drugs Act

(Cap 185), read with s 34 of the Penal Code (Cap 224).

At the trial, the evidence of the prosecution witnesses was as follows. On 3 November 1988, Senior Customs Officer Ramachandra and two of his officers, Customs Officers Kirupanathan and Kimsani, were keeping observation at Clifford Pier. At 12.45pm, a launch came alongside. Six men, crew members of an oil tanker, disembarked from the launch and got onto the jetty. The respondent who was one of the six was seen carrying a red polythene bag. Ramachandra and his officers decided to conduct a routine check on all the six persons. Kirupanathan signalled to the respondent to open the bag. The respondent did not comply. Kimsani then tapped him on the shoulder and the respondent put the bag down on the floor and pointed to the first accused Manit, telling Manit to tell the customs officers that the bag was Manit`s. Manit readily came up and told the customs officers that the bag was indeed his.

In the bag and contained in layers of wrappings were two packets containing nine slabs of a substance which on subsequent analysis was found to contain the amount of diamorphine mentioned in the charge.

Manit was placed under arrest. The respondent was allowed to go. It was only later in the afternoon, when he returned to Clifford Pier with the other four crew members, that he was arrested.

The learned judge tried this capital case alone under the new provisions of the Criminal Procedure Code introduced by Act 13 of 1992. At the end of the prosecution case, he directed himself on the question whether there was a prima facie case against the respondent which if unrebutted would warrant his conviction. The learned judge was doing what s 189 of the Code required him to do. He also referred to the principles enunciated by the Privy Council in the case of Haw Tua Tau v PP [1981] 2 MLJ 49

The learned judge said, correctly, that essentially the issue in the case was whether the respondent knew what was in the plastic bag he was carrying. The learned judge referred to the presumption in s 18(2) of the Misuse of Drugs Act (Cap 185)(`the Act`). These provisions read as follows:

Any person who is proved or presumed to have had a controlled drug in his possession shall, until the contrary is proved, be presumed to have known the nature of that drug.

The learned judge found that the presumption against the accused had been rebutted by evidence in the prosecution case itself. He referred in this connection, firstly, to a statement made by the other accused, Manit, when charged, that `Virat does not know what I am doing.`

Secondly, the learned judge referred to the evidence of the investigating officer, Teo Chin Seng, to the effect that his investigations showed that it was Manit, the first accused, who had brought the parcels in the red polythene bag from Thailand to Singapore. Teo also testified that his...