Public Prosecutor v Yulia Kalinichenko

• Jurisdiction: Singapore
• Judge: Wong Keen Onn
• Judgment Date: 30 March 2007
• Neutral Citation: [2007] SGDC 61
• Court: District Court (Singapore)
• Published date: 04 May 2007
• Year: 2007
• Plaintiff Counsel: DPP Jeyendran Jeyapal
• Defendant Counsel: Daniel Chia (Drew & Napier)
• Citation: [2007] SGDC 61

30 March 2007

District Judge Wong Keen Onn

Background

The accused, Yulia Kalinichenko, a female Russian National, pleaded guilty to and was convicted of the following charge.

“DAC 49184/06 (Exhibit P1)

You, Yulia Kalinichenko, F/18 yrs (FIN No. G0216799P, D.O.B. 2.8.1988) are charged that you on the 15^th day of October 2006, in Singapore did consume a controlled drug specified in Class A of the First Schedule to the Misuse of Drugs Act, Cap 185, to wit, α–Methyl–3,4–(methylenedioxy) phenethylamine, without authorization under the said Act or the regulations made thereunder and thereby committed an offence under Section 8(b)(ii) and punishable under Section 33(1) of the Misuse of Drugs Act, Cap 185.

2 Upon her conviction on the above charge, she admitted to another charge of unauthorized possession of one tablet and a fragment of a tablet containing 0.11 gm of α–Methyl–3,4–(methylenedioxy) phenethylamine, a Class A controlled drug, under Section 8(a) of the Misuse of Drugs Act. She consented to the charge to be taken into consideration for the purpose of sentencing. I sentenced her to 6 months’ imprisonment.

3 On 19 January 2007, Counsel for the accused lodged a notice of appeal against sentence. On 24 January 2007 bail pending of $24,000 with one surety or $12,000 with two sureties was offered to the accused. Counsel for the accused informed the Court that the accused was prepared to serve sentence pending appeal. At the time of writing the ground of decision, she is still serving sentence.

Facts

4 The accused admitted to the Statement of Facts without qualifications. This is reproduced below for easy reference.

“1 The accused person is Yulia Kalinichenko, female 18 years old (D.O.B. 2 August 1988), Russian National, FIN No. G0216799P.

2 On 15 October 2006, at or about 2.10 am, the accused person was detained by the Chief Security Manger of the Ministry of Sound, located at Clarke Quay, one Azhar Bin Osman and the club security officer, one Johari Bin Mohamad Asral. The Chief Security Manager and the club security officer suspected that the accused person had been dealing with a controlled drug.

3 Shortly, the duty Central Narcotics Bureau (“CNB”) officer, ASP Gomes Michael Joseph, and a party of CNB officers arrived at the Ministry of Sound. A search was conducted on the accused person, upon which she was arrested and brought to the CNB HQ for investigation.

4 At the CNB HQ, the accused person provided two bottles of her urine sample, and in her presence, the urine samples were sealed as “CENTRAL NARCOTICS BUREAU” and were marked “C-CN-06-00476-1 KALINICHENKO YULIA G0216799P” and “C-CN-06-00476-2 KALININCHENKO YULIA G0216799P” respectively.

5 On 16 October 2006, the two sealed and marked urine samples were sent to the Health Sciences Authority (“HSA”) for analysis.

6 On 23 October 2006, the HSA issued two certificates (Lab Nos. N2-2006-19152-001 and N2-2006-19152-003 respectively), stating that the two urine samples marked “CENTRAL NARCOTICS BUREAU” and were marked “C-CN-06-00476-1 KALINICHENKO YULIA G0216799P” and C-CN-06-00476-2 KALINICHENKO YULIA G0216799P” had been analyzed and found to contain α–Methyl–3,4–(methylenedioxy) phenethylamine, which is a Class ‘A’ controlled drug listed in the First Schedule of the Misuse of Drugs.

7 The accused person has therefore committed an offence of consuming a Class ‘A’ controlled drug without any authorization under the Misuse of Drugs Act or the Regulations made thereunder. This is an offence under s 8(b)(ii) and is punishable under s 33(1) of the Misuse of Drugs Act. The accused is charged accordingly.

Mitigation

5 The accused is a first offender and she had pleaded guilty at the first opportunity. At the time of the offence, she was 18 years old. The accused is a foreigner who had been residing overseas. She had finished her High School in Switzerland and had just enrolled as a diploma student in the Swiss School, Switzerland to pursue her diploma in Hotel Management. She has yet to start her studies there and had, prior to her enrolment in the Swiss school, arrived in Singapore in July 2006 to visit her parents (pg 10-A, 11-E of N.E.). Prior to this, she had studied in other schools in Thailand and also in the International School of Singapore when she was 14 years old. As for the commission of the offence, Counsel informed the Court that the accused had met some friends on the night of 14 October 2006 and had gone to the disco club, “The Ministry of Sound” at Clarke Quay. While she was there, she met an acquaintance, (one “Jeremy”) who offered her a pink tablet. She was told that the tablet was Ecstasy. In an instance of foolishness, she agreed to take the table. She was also offered and received another one and a half tablet of Ecstasy which were “for later”. Counsel emphasized that the accused had no intention to consume any drug prior to meeting her acquaintance that night. She had neither solicited nor paid for the tablets given to her. Counsel urged the Court to consider probation and raised the following factors in mitigation:

(1) she is 18 years old and is a first offender with no prior antecedents;

(2) she did not solicit or paid for the drugs. The drugs were prescribed to her by an acquaintance;

(3) she only consumed half a tablet and was not a habitual or casual drug user. Her act was not premeditated and was a one-off act of foolhardiness;

(4) she was a foreigner who spent all her life overseas and was only in Singapore to visit her parents who were working here and this offence arose from her meeting with her acquaintance who had dubious intentions;

(5) the accused was not a wayward child but had been described by her teachers as “having a strong character and a high degree of self-reliance, “having a big heart and a lot of potential” and “willingness to take responsibility for her actions”;

(6) she lacked the level of maturity and ability to appreciate her actions in view of her young age; and

(7) she cooperated with the police and confessed and pleaded guilty early.

6 Counsel for the accused relied on the cases of Dinesh Singh Bhatia s/o Amarjeet Singh v. PP [2005] 3 SLR 1 at paragraph 39, PP v Muhammad Nuzaihan bin Kamal Luddin [2001] 1 SLR 34, Goh Lee Yin v PP [2006] SGDC 241, PP v Nurhidayah binte Abdullah, PP v Wong Jia Yi [2003] SGDC 53 to urge the Court to place the accused on probation. Counsel informed the Court that the accused’s parents were in the process of applying for Permanent Resident status and would be willing to take measures to ensure that the conditions of a probation order would be complied with (pg 3-C, 13-D of N.E.). However, Counsel argued that Reformative Training should not be imposed as the accused would be regarded as a “prohibited immigrant” if she is sent to the Reformative Training Centre (pg 8-D of N.E.). Counsel also submitted that in the event the Court did not consider probation to be appropriate, the Court should impose a fine as the accused would fall within “the lowest tier of Class A drug offences”. However, should the Court consider a custodial sentence, counsel urged the Court to impose a short term of imprisonment.

Prosecution’s Submission

7 The prosecution strongly objected to the granting of probation, reformative training or the imposition of a fine, but instead sought for a custodial sentence to be imposed on the accused person. The DPP relied on the case of Tan Choon Huat v PP to argue that a probation order would be wholly inappropriate as the accused was a foreigner and also that the accused person’s parents were not permanent residents in Singapore. The accused’s father is an employment pass holder while the accused’s mother has been residing in Singapore on a dependant’s pass (pg 7-E, 11-D and 12-B of N.E.). In addition, the accused person was seeking admission into a school in Switzerland, which clearly indicated that the accused person had no intention of residing in Singapore on a permanent, or, at least, on a long term basis. These were indicative of the accused person’s lack of roots in Singapore. The DPP also submitted the reformative training was not suitable for offence of drug consumption.

8 The Prosecution’s reasons for a custodial sentence to be imposed, as opposed to probation, reformative training or a fine, are:

i. the accused person had on previous occasion consumed Ecstasy;

ii. offences under the Misuse of Drugs are all serious in nature and do not fall under the type of offences for which probation would be a suitable option: see: PP v Muhammed Nuzaihan bin Kamal Luddin [2001] 1 SLR 34 at 40 (paragraph 16);

iii. the accused is a foreigner and does not have any roots in Singapore;

iv. this was not a case of experimentations borne out of immaturity. In fact, the accused person knew that what she had consumed was a controlled drug, having consumed the same drug before, and fully appreciated the criminal consequences that might follow as a result of abusing the drug;

v. her second instance of abuse of the same drug indicates a flagrant disregard on the part of the accused person against Singapore’s laws in respect of drugs and drug abuse;

vi. the accused person had in her possession a pink tablet and a fragment of a pink tablet, which tablets were Ecstasy. The accused person had admitted to the Central Narcotics Bureau that these tablets were “for later” use;

vii. the accused person’s second encounter with the same drug and the fact that she would have proceeded to consume the tablets in her possession at a later time indicates a propensity to abuse drugs and shows signs classically displayed by usual drug abusers; and

viii. this is not a case which could be interpreted as a “purely exceptional case”, as espoused by VK Rajah J in Dinesh Singh Bhatia v PP [2005] 1 SLR 1.

Reasons for the sentence

9 In arriving at an appropriate sentence, a court should invariably take into account the sentencing considerations of deterrence, retribution, prevention and...