Public Prosecutor v Yap Cheng Kwee
| Jurisdiction | Singapore |
| Judge | Kow Keng Siong |
| Judgment Date | 01 December 2006 |
| Neutral Citation | [2006] SGDC 279 |
| Court | District Court (Singapore) |
| Published date | 28 December 2006 |
| Year | 2006 |
| Plaintiff Counsel | DPP Imran Hamid / DPP Gilbert Low |
| Defendant Counsel | Harbajan Singh |
| Citation | [2006] SGDC 279 |
| 1 December 2006 |
Judgment reserved. |
District Judge Kow Keng Siong:
The charges & the appeal
1 This Judgement arises from an appeal against sentence by an accused.
2 The Accused, Dr Yap Cheng Kwee, had pleaded guilty to the following charges:
a. an offence under section 8(a) of the Misuse of Drugs Act for unauthorised possession of 16 tablets containing Triazolam, a Class C controlled drug listed in the First Schedule to the Act: DAC 40031/2006; and
b. an offence under section 5 of the Poisons Act for unlicensed possession for sale 10,000 tablets containing Midazolam, a poison listed in the Schedule to the Act: HSA 533/2006.
3 The Accused had also admitted to another similar charge under the Poisons Act –involving the unlicensed possession for sale of 5,000 tablets containing Midazolam – and had consented to it being taken into consideration during sentencing: HSA 639/2006.
4 After considering the circumstances of the case and the submissions made by parties, I sentenced the Accused as follows:
a. DAC 40031/2006: 3 months’ jail;
b. HSA 533/2006: 12 months’ jail;
c. Both sentences to run concurrently (total: 12 months).
The facts
5 The Accused is a Malaysian. He is a qualified doctor who is licensed to practice, and resides, in Johor Bahru.
6 On 17 August 2006, CNB conducted an operation against one Sng Guan Cheng (Sng), a suspected drug-trafficker.
7 At about 9.45 pm that day, CNB officers trailed Sng to a carpark behind Block 1A, Woodlands Centre Road where he parked his car. Thereafter, Sng appeared to be waiting for someone at the carpark.
8 At about 10.55 pm, the Accused appeared at the carpark wearing a yellow waist pouch and carrying an orange-black haversack. He entered Sng’s car and sat in the rear left passenger seat. Sng, who was then in the driver’s seat, then his body to face the Accused and spoke to him.
9 At about 11 pm, CNB officers moved in and arrested both the Accused and Sng in the car. They recovered the following items from the Accused’s possession:
a. orange-black haversack: 10,000 tablets containing Midazolam (commonly known as Dormicum). These tablets were found in 1,000 blister packs, each containing 10 tablets: HSA 533/2006;
b. yellow waist pouch: an assortment of other tablets, including 16 tablets containing Triazolam: DAC 40031/2006.
10 During the investigations immediately following the arrests, the Accused identified himself as ‘Mr Yap Cheng Kwee’, a Malaysian. When asked to produce his passport, the Accused claimed that he had lost it and that he had entered Singapore via a taxi that day.
11 CNB officers recovered from the Accused a bunch of keys, including one bearing a ‘BMW’ logo. Acting on a hunch, they drove around several carparks located at the vicinity of Block 1A searching for a BMW car bearing Malaysian registration plates. During the search, the Accused remained silent whilst in the CNB car.
12 CNB officers eventually spotted a BMW car bearing Malaysian registration plates BFP 833 and a sticker label with the name ‘Dr Yap Cheng Kwee’ at a carpark in front of the old Woodlands Theatres, at the vicinity of Woodlands Centre Road. In the Accused’s presence, CNB officers manually de-activated the car’s locking mechanism with the key earlier seized from the Accused. At this juncture, the Accused confirmed that the car belonged to him. When asked if he had anything to surrender before the car boot was searched, the Accused informed that his passport was in it.
13 During a search of the Accused’s car, CNB officers recovered, amongst others, the following items:
a. a textbook entitled, ‘The Laws of Drug Possession and Trafficking in Malaysia’; [note: 1]
b. a photocopy of a Malay newspaper article entitled, ‘Sale through middle-men’.[note: 2]
14 Investigations revealed that the Accused had intended to sell the 10,000 Dormicum tablets in his possession to Sng at a price of S$220 per 100 tablets (total: S$22,000). At the time of his arrest, Sng was found with S$25,000. The Accused did not have a license to sell these Dormicum tablets to Sng.
15 Investigations also disclosed that the Accused had earlier on 17 August 2006 brought in the 16 tablets containing Triazolam from Malaysia without any authorization under the Misuse of Drugs Act or its Regulations.
Sentencing considerations
Prescribed punishments
16 Under section 33 read with the Second Schedule of the Misuse of Drugs Act, a first offender (as in the Accused’s case) having unauthorized possession of Triazolam can face up to a maximum of 10 years’ imprisonment, or $20,000 fine, or both.
17 As for the unlicensed possession of Midazolam for the purpose of sale, section 16(1) of the Poisons Act provides that an offender shall be liable on conviction to a fine not exceeding $10,000, or to imprisonment for a term not exceeding 2 years, or to both.
Mitigation plea
18 Mr Harbajan Singh, Counsel for the Accused, urged the Court to consider imposing a fine for the unauthorized possession of Triazolam. He submitted as follows: [note: 3]
a. The Accused’s offence is technical in nature. This is because he would not have been charged if only he had obtained the Triazolam in Singapore with a doctor’s letter. Counsel highlighted that a medical practitioner in Singapore may legitimately –
i. supply: under Rule 7(2) of the Misuse of Drugs Regulations, and
ii. sell: under section 7 of the Poisons Act
Triazolam to his patients;
b. The controlled drugs that were seized were (i) of a small amount (16 tablets) and (ii) for his own use only;
c. Triazolam is not a controlled drug under the Malaysian Drugs Act. It appears on the Poisons List under the Malaysian Poisons Act and may be obtained in Malaysia with proper prescription.
19 As for the charge under the Poisons Act, Mr Singh suggested that the maximum fine of $10,000 be imposed. In support of this plea, Counsel made the following submissions: [note: 4]
a. The Accused had decided to sell off ‘at one go’ a supply of Dormicum tablets that he had. This was an ‘error of judgement’ on his part;
b. Midazolam is not a ‘narcotic drug’. It has a ‘ceiling effect and is not very harmful’;
c. The views expressed by Dr Brian Yeo Kah Loke in his report should be given due weight; [note: 5]
d. The Accused was remorseful. He had pleaded guilty and cooperated fully with the authorities;
e. The Court should consider the sentencing precedent set in PP v Lee Wee Chong (HSA 587/2005). There, a district court had imposed a $8,000-fine (i/d 3 months’ imprisonment) for an offence involving 3,520 Dormicum tablets.
Prosecution’s submissions
20 The Prosecution, on the other hand, submitted that the Accused’s offences were committed under aggravating circumstances. With regards to the offence concerning the 10,000 Dormicum tablets, the Prosecution contended that –
a. it was premeditated;
b. it was motivated solely by profit; and
c. it raised a public safety issue.
Custodial threshold breached
21 In my view, there cannot be any doubt that custodial sentences are warranted for the Accused’s offences.
Unauthorised possession of Triazolam
22 I shall first turn to the offence of unauthorized possession of Triazolam, which Parliament had classified as a Class C controlled drug, falling at the lower end of the spectrum of dangerous drugs.
23 I am unable to agree with Counsel that the Accused had committed a mere technical offence. It is important to remember that Parliament was so concerned with the grave health and social issues of Triazolam abuse that it had –
a. narrowly defined the circumstances in which possession of the drug is authorized: section 10B of the Misuse of Drugs Act read with regulation 5 of the Misuse of Drugs Regulations;
b. laid down stringent documentation, record keeping and storage requirements for the drug: section 10B of the Misuse of Drugs Act read with Part III and regulation 20 of the Misuse of Drugs Regulations;
c. provided for the compulsory treatment and rehabilitation or both of controlled drug abusers at an approved institution for up to 3 years: section 34 of the Misuse of Drugs Act; and
d. prescribed very severe penalties for unauthorized Triazolam possession.
24 It is clear that our drug laws are designed to ensure the strict regulation and control of access to Triazolam in Singapore. Consistent with this policy, our courts have thus far meted out deterrent sentences on transgressors of section 8(a) of the Misuse of Drugs Act. A review of sentencing precedents will reveal the following:
a. Our Courts have generally imposed sentences ranging from 1 to 18 months’ jail for unauthorized possession of between 1 to 211 tablets of Class C controlled drugs for first offenders who plead guilty: Shan Kai Weng v PP
b. It is only in an exceptional case, where a first offender is able to prove that the controlled drug was in his possession to alleviate a genuine chronic medical condition, that a fine will be imposed: see for instance Ching Ling Ka @ Lincoln Cheng v PP (MA 253/1995).
25 The cases cited above of course pre-date the seminal case of Dinesh Singh Bhatia v PP
26 I am mindful that as a practising doctor, the Accused would have had authorized access to Triazolam in Malaysia. That fact alone however did not render it less culpable for him to possess 16 tablets containing...
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