Ramesh a/l Perumal v PP

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Andrew Phang Boon Leong JA,Tay Yong Kwang JA
• Judgment Date: 15 March 2019
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeals Nos 57 and 58 of 2017
• Date: 15 March 2019

Ramesh a/l Perumal

and

Public Prosecutor and another appeal

[2019] SGCA 17

Sundaresh Menon CJ, Andrew Phang Boon Leong JA and Tay Yong Kwang JA

Criminal Appeals Nos 57 and 58 of 2017

Court of Appeal

Criminal Law — Statutory offences — Misuse of Drugs Act (Cap 185, 2008 Rev Ed) — Accused claiming that he believed that drug bundles contained betel nuts instead of drugs — Whether presumption of knowledge under s 18(2) Misuse of Drugs Act rebutted — Section 18(2) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal Law — Statutory offences — Misuse of Drugs Act (Cap 185, 2008 Rev Ed) — Accused giving drugs to another person with view to later taking them back — Whether such act constituted trafficking — Section 2 Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal Law — Statutory offences — Misuse of Drugs Act (Cap 185, 2008 Rev Ed) — Accused initially claiming that he believed that plastic bag containing drugs bundles contained office documents instead — Accused subsequently admitting to handling one bundle — Accused claiming that he had intention to return plastic bag — Co-accused claiming that accused was supposed to deliver drug bundles to another party — Whether Prosecution could prove that accused was supposed to deliver drug bundles to another party — Whether accused's defence could be accepted even if defence in some respects inconsistent with accused's own narrative — Whether accused who returned drugs to person who initially entrusted him with drugs was trafficking in drugs — Section 2 Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal Law — Statutory offences — Misuse of Drugs Act (Cap 185, 2008 Rev Ed) — Accused initially claiming that he believed that plastic bag containing drugs bundles contained office documents instead — Accused subsequently admitting to handling one bundle — Whether knowledge of nature of drugs proved beyond reasonable doubt — Whether presumption of knowledge under s 18(2) Misuse of Drugs Act rebutted — Section 18(2) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Held, allowing Criminal Appeal No 57 of 2017, convicting Ramesh on an amended charge and sentencing Ramesh to ten years' imprisonment, and dismissing Criminal Appeal No 58 of 2017:

(1) Chander had not rebutted the presumption of knowledge of the nature of the drugs under s 18(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). Chander's claim that he believed the bundles contained betel nuts was unbelievable and inconsistent. First, Chander had not mentioned the betel nut defence in his contemporaneous and cautioned statements. Second, Chander's claim that he thought the bundles contained betel nuts was undermined by his cautioned statements. Third, when Chander previously delivered diamorphine to Harun, Harun handed Chander a large sum of money in return. Given the large sum of money involved, Chander must have known that what he had previously delivered and what he was delivering again could not have been betel nuts: at [39] to [44].

(2) For the purpose of a charge for trafficking, or possession for the purpose of trafficking, the requirement of knowledge of the nature of the drugs referred to knowledge of the actual controlled drug. This requirement was not made out against Ramesh beyond a reasonable doubt. While Ramesh may well have known that the D bundles contained some illicit substance attracting harsh penalties, this was different from knowledge of the nature of the drug. Unlike Chander, who had previously performed a delivery to Harun and had witnessed a large sum of money being paid in the previous delivery, there was no evidence that Ramesh had previously performed a similar delivery. Chander's own account was that he told Ramesh that the bundles contained betel nuts and it was Ramesh's first time making deliveries. There were also references in Chander's statements to Ramesh being reluctant to assist with the deliveries and initially refusing to be involved. The overall impression which emerged from Chander's statements was that Ramesh was fairly inexperienced, and not very well acquainted with the task he had been asked to perform. It was reasonably plausible that despite the fact that Ramesh did have some level of interaction or involvement with the drug suppliers generally, it was not to such an extent that Ramesh knew the full details of their operations, including the precise contents of the bundles: at [65] and [67] to [69].

(3) The Prosecution thus had to rely on the presumption found in s 18(2) of the MDA to prove that Ramesh had knowledge of the nature of the drug. Ramesh could not rebut this presumption. His explanation that D1 contained office documents was wholly unsustainable, given that he had since admitted that he opened D1 and saw that there were four bundles within. Ramesh's claim that he saw the bundles but was “not very sure” what was inside of them was not credible, inconsistent with what he had testified at trial, and in any event utterly insufficient to rebut the presumption of knowledge: at [70].

(4) The Prosecution could not prove its primary case that Ramesh was supposed to deliver the D bundles to a recipient in Bedok. There were significant problems with the manner in which the Prosecution's case against Ramesh had developed. As a matter of procedural fairness, given that the trial was a joint trial, it was incumbent upon the Prosecution to develop a unified case theory regarding the material facts which both Chander and Ramesh and their respective counsels could challenge as a single objective account; rather than two separate case theories which contradicted each other. The Prosecution shifted its position in the middle of trial regarding an important aspect of the case, namely, the time when Chander had the crucial discussion with Ramesh during which he obtained Ramesh's agreement to help with delivering the D bundles. This shift occurred only after counsel for Ramesh had mounted a serious challenge to the veracity of Chander's account. Chander's account formed the basis for the version of events that had been put to Ramesh in the earlier part of the trial. Quite apart from procedural fairness, there were problems with the narrative which the Prosecution eventually settled on, which was that the crucial discussion took place while Chander and Ramesh were en route to Singapore in the first lorry. First, there was a contradiction between the objective phone records and Chander's narrative. This raised doubts about Chander's credibility and reliability. Second, the evidence given by Chander himself, that Ramesh was extremely reluctant to assist in performing deliveries of the bundles, did not sit well with the Prosecution's case (that Ramesh would have agreed to perform a delivery of the D bundles on the spur of the moment, based on a brief exchange while they were en route to Singapore). Third, the Prosecution offered a fragmented narrative as to what exactly Ramesh had agreed to do with the D bundles. There was no evidence concerning who exactly Ramesh was to deliver the D bundles to, nor was there evidence concerning how much, if anything, Ramesh had been offered in return for performing the delivery: at [82] to [86].

(5) The court should not shut its mind to any defence which was reasonably available on the evidence, even where that defence was (in some respects) inconsistent with the accused's own narrative. The fact that Ramesh had agreed to take on the D bundles did not mean, without more, that he had agreed to perform a delivery of the same. There was a reasonable possibility that Ramesh was safekeeping the drugs with the intention of returning them to Chander. This was consistently asserted in Ramesh's statements, albeit in the context of the claim that D1 contained office documents: at [87].

(6) An accused who took custody of drugs, with the intention of returning them to the person who initially entrusted him with the drugs, and in fact returned the drugs would not be trafficking in such drugs. The act of returning drugs did not unambiguously fall within the definition of “traffic” in s 2 of the MDA. In enacting the MDA and legislating for harsh penalties to be imposed in respect of trafficking offences, Parliament was not simply concerned with addressing the movement of drugs per se, but the movement of drugs along the supply chain towards the end-users. Seen in this light, there was a fundamental difference in character between holding a quantity of drugs only with the intention of returning them to the person who originally deposited those drugs, and possession with the view to passing the drugs onwards to a third party. In the former situation, the returning of the drugs could not form part of the process of disseminating those drugs from the original source of supply towards the ultimate recipient to whom the drugs were to be supplied because the act of returning the drugs ran counter to that very direction. On the other hand, in the latter situation, the intended transfer of the drugs to a third party was presumptively part of the process of moving the drugs along a chain in which they would eventually be distributed to their final consumer: at [103] to [110].

(7) The appropriate course of action was to amend the charge against Ramesh to a charge for possession simpliciter under s 8(a) of the MDA. Given the quantity of drugs involved and the fact that Ramesh knew he was committing some act that was connected, in a loose sense, to the illicit circulation of drugs, it was appropriate to impose a sentence of ten years' imprisonment: at [117] and [118].

(8) An accused who gave drugs to another with a view to later taking them back came within the definition of trafficking in the MDA. Such an act fell unambiguously within the ordinary meaning of terms such as “giving” and “delivering” which were found within the definition of “traffic” in s 2 of the MDA. Such an understanding of the definition of “traffic” did not lead to a result that was...