Roshdi bin Abdullah Altway v Public Prosecutor and another matter

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 11 November 2021
• Neutral Citation: [2021] SGCA 103
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeal No 29 of 2020 and Criminal Motion No 18 of 2021
• Published date: 16 November 2021
• Year: 2021
• Hearing Date: 11 August 2021
• Plaintiff Counsel: Andre Darius Jumabhoy, Low Ying Ning Elaine and Priscilla Chia Wen Qi (Peter Low & Choo LLC)
• Defendant Counsel: Hri Kumar Nair SC, Francis Ng Yong Kiat SC, Jiang Ke-Yue, Senthilkumaran s/o Sabapathy, Jaime Pang and Keith Jieren Thirumaran (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act,Criminal Procedure and Sentencing,Statements,Admissibility,Disclosure
• Citation: [2021] SGCA 103

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

It is not controversial that the Prosecution owes a duty to the court and to the wider public to conduct matters with the aim of ensuring that the guilty, and only the guilty, are convicted. This in turn gives rise to a related duty to place all relevant material before the court to assist it in determining the truth. The Prosecution’s role is therefore not purely adversarial but is largely shaped by its particular duty to assist the court. This much was stated in Muhammad bin Kadar and another v Public Prosecutor [2011] 3 SLR 1205 (“Kadar”) (at [200]) and was the basis for our holding that the Prosecution owes disclosure obligations to the Defence in respect of certain unused materials that might be credible and relevant to the guilt or innocence of the accused. More recently, this principle was reiterated in Muhammad Nabill bin Mohd Fuad v Public Prosecutor [2020] 1 SLR 984 (“Nabill”), where we further held that the Prosecution was required, in addition, to disclose to the Defence, statements furnished to the police by a “material witness”. In Nabill, we referred to this duty as the Prosecution’s “additional disclosure obligations”. A “material witness” was defined in this context as a person “who can be expected to confirm, or conversely, contradict an accused person’s defence in material respects” (the “Current Definition”; Nabill at [4]). Any reference to a “material witness” or the “materiality” of a witness in this judgment should be understood in this light, unless otherwise specified.

In the present appeal, CA/CCA 29/2020 (“CCA 29”), an issue has been raised as to the ambit of the Prosecution’s additional disclosure obligations. Because of the way the Defence contends this duty should be applied, the Prosecution invites us to reconsider our holdings in Nabill in respect of the definition of a “material witness” and seeks guidance on certain aspects of the scope of that duty. Specifically, guidance is sought as to the process of identifying “material witnesses”, the potential consequences of any breach of its additional disclosure obligations, and whether the Prosecution has a positive duty to conduct further investigations once a witness has been identified as “material”. As will be evident from our reasoning below, any meaningful discussion of these issues requires a proper appreciation of the Prosecution’s critical role in the criminal justice process. We also clarify our reasoning in Nabill (at [70]–[71]) as to the evidential burden that an accused person must discharge when raising a defence.

Finally, this case also presents us the opportunity to develop the principles articulated in Ramesh a/l Perumal v Public Prosecutor and another appeal [2019] 1 SLR 1003 (“Ramesh”), which concern the situation where there has been an alleged “bailment” of drugs. In Ramesh, we held that the legislative policy underlying the harsh penalties for trafficking offences in the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) was to target the movement of drugs along the supply chain towards end-users. In the context of a charge of trafficking (or possession for the purpose of trafficking), we held that where a person merely holds drugs as a “bailee” intending to return the drugs to the person who initially gave them to him, “[s]uch a person cannot, without more, be liable for trafficking because the act of returning the drugs is not part of the process of supply or distribution of drugs” [emphasis in original] (Ramesh at [114]). Unfortunately, Ramesh appears to have been misinterpreted as standing for the general proposition that a “bailee” who safekeeps drugs with a view to returning them to the “bailor” can never be liable for trafficking. Ramesh does not stand for such a proposition, as we explain below.

Background

The appellant in this case, Roshdi bin Abdullah Altway (“Roshdi”), claimed trial to a capital charge (the “Charge”) of having in his possession for the purpose of trafficking 267 packets and 250 straws containing 2,201.22g of granular/powdery substance, which was analysed and found to contain not less than 78.77g of diamorphine (the “Drugs”), an offence under s 5(1)(a) read with s 5(2) of the MDA. At his trial below, Roshdi admitted to having both possession of the Drugs and knowledge of their nature. He denied, however, that he had the Drugs in his possession for the purpose of trafficking. Roshdi’s defence was that he was just safekeeping the Drugs for a person known as “Aru”, to whom he had all along intended to return the Drugs. We refer to this defence as the “safekeeping defence”. Based on Roshdi’s identification, police investigations ascertained “Aru” to be one Chandran Prasanna Anu (“Chandran”).

The High Court judge (the “Judge”) who tried the matter rejected Roshdi’s safekeeping defence, finding that (a) the Prosecution had proved the element of possession for the purpose of trafficking beyond a reasonable doubt; and (b) alternatively, that Roshdi had failed to rebut the presumption of trafficking in s 17(c) of the MDA. The Judge thus convicted Roshdi of the Charge. As Roshdi was not a courier and he had not been issued a certificate of substantive assistance, the Judge imposed the mandatory death penalty on Roshdi under s 33(1) read with the Second Schedule to the MDA: see Public Prosecutor v Roshdi bin Abdullah Altway [2020] SGHC 232 (the “GD”).

CCA 29 is Roshdi’s appeal against his conviction and sentence. On appeal, the crux of Roshdi’s case is that the Judge erred in finding that he had the Drugs in his possession for the purpose of trafficking. Amongst other things, the Judge is said to have incorrectly admitted and relied upon eight statements that were given by Roshdi to the police. Roshdi also contends that his safekeeping defence ought not to have been disbelieved, and that if it had been believed, the element of possession for the purpose of trafficking would not be made out. Furthermore, Roshdi claims that there was late disclosure by the Prosecution of Chandran’s police statements, which amounted to a breach of its additional disclosure obligations. In Roshdi’s view, Chandran was clearly a “material witness” and by reason of the Prosecution’s omission to call him to testify at trial, it in fact “failed to discharge its burden of proof to rebut Roshdi’s safekeeping defence”. Since this last-mentioned ground of appeal was not set out in Roshdi’s original Petition of Appeal, Roshdi filed CA/CM 18/2021 (“CM 18”) seeking leave to advance this argument.

Roshdi’s arrest and police statements

Roshdi is a 62-year-old Singaporean male. On 14 September 2016, at about 6.15am, officers from the Central Narcotics Bureau (“CNB”) arrested Roshdi at the void deck of Block 209B Compassvale Lane. He was carrying a Nokia phone, a set of keys to a unit at Compassvale Lane (the “Compassvale Unit”), cash in the amount of $4,000 and a blue plastic bag containing $14,000 in cash. After his arrest, Roshdi was taken to the Compassvale Unit where he identified the bedroom he occupied. Various exhibits were found under the bed and inside a cupboard in the bedroom, as follows: 128 packets of granular/powdery substance marked H1A; 13 straws of granular/powdery substance marked H2A; 2 packets of granular/powdery substance marked H5A; 84 straws of granular/powdery substance marked H5C; 137 packets of granular/powdery substance marked J1A; and 153 straws of granular/powdery substance marked J2A. These exhibits comprise the Drugs which form the subject-matter of the Charge. The total weight of the granular/powdery substance found was 2,201.22g and upon analysis, it was found to contain not less than 78.77g of diamorphine (more commonly known as “heroin”).

In addition, drug paraphernalia such as spoons, pieces of paper, empty packets, empty straws and digital weighing scales were recovered from Roshdi’s bedroom. Some smaller quantities of cannabis and cannabis mixture were also seized, and these formed the subject-matter of two other charges against Roshdi of possession of a controlled drug for the purpose of trafficking. These charges were withdrawn pursuant to s 147(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) upon Roshdi’s conviction on the Charge. They are not material for the purposes of this appeal.

In the course of police investigations, nine statements were recorded from Roshdi between 14 September 2016 and 27 September 2016 (collectively, the “Statements”): Staff Sergeant Muhammad Fardlie bin Ramlie (“SSgt Fardlie”) recorded the first three contemporaneous statements pursuant to s 22 of the CPC (collectively, the “Contemporaneous Statements”). These are respectively referred to as the “1st”, “2nd” and “3rd contemporaneous statements”. In these Contemporaneous Statements, Roshdi identified the Drugs as heroin and admitted that they were for sale. He also set out the prices at which the Drugs would be sold and the quantities thereof. When asked who the Drugs belonged to, Roshdi replied, “All belong to me”. He later added that he worked for a person named “Aru” and stated that “I only pack and keep the thing. If someone wants I will send.” A cautioned statement was recorded by Assistant Superintendent Prashant Sukumaran (“ASP Sukumaran”) on 15 September 2016 at about 3.26am pursuant to s 23 of the CPC (the “Cautioned Statement”). In the Cautioned Statement, Roshdi claimed that he was “just a worker” and that “[t]he one who owns the things is another person”. Between 21 September 2016 and 27 September 2016, Staff Sergeant Ibrahim bin Juasa (“SSgt Ibrahim”) recorded five long statements from Roshdi pursuant to s 22 of the CPC (collectively, the “Long Statements”). These statements are respectively referred to as the “1st”, “2nd”. “3rd”, “4th” and “5th long statement”. In the Long Statements, Roshdi admitted to receiving, storing, repacking and...