Roshdi bin Abdullah Altway v PP

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Andrew Phang Boon Leong JCA,Judith Prakash JCA,Steven Chong JCA,Chao Hick Tin SJ
• Judgment Date: 11 November 2021
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeal No 29 of 2020 and Criminal Motion No 18 of 2021

Roshdi bin Abdullah Altway

and

Public Prosecutor and another matter

[2021] SGCA 103

Sundaresh Menon CJ, Andrew Phang Boon Leong JCA, Judith Prakash JCA, Steven Chong JCA and Chao Hick Tin SJ

Criminal Appeal No 29 of 2020 and Criminal Motion No 18 of 2021

Court of Appeal

Criminal Law — Statutory offences — Misuse of Drugs Act — Appellant claiming at trial that he was safekeeping drugs for another to whom he intended to return drugs — Whether element of possession for purpose of trafficking made out — Whether judge erred in disbelieving appellant's case at trial — Whether disputed element made out even on appellant's case at trial — Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal Procedure and Sentencing — Disclosure — Appellant alleging late disclosure of statements recorded from “material witness” — Whether Prosecution was in breach of its additional disclosure obligations

Criminal Procedure and Sentencing — Disclosure — Prosecution proposing revision of its additional disclosure obligations — Whether definition of “material witness” should be narrowed — Whether Defence should bear duty of identifying “material witnesses” — Whether court should resolve any disputes as to “materiality” of witness — Whether Prosecution had duty to conduct further investigations when “material witness” was identified — Whether consequences of breach of Prosecution's additional disclosure obligations should be defined

Criminal Procedure and Sentencing — Statements — Admissibility — Appellant challenging voluntariness of statements — Whether statements voluntary and admissible — Section 258(3) Criminal Procedure Code (Cap 68, 2012 Rev Ed)

Evidence — Proof of evidence — Standard of proof — Prosecution seeking clarification of law governing legal and evidential burdens in criminal cases — Whether law was changed by Muhammad Nabill bin Mohd Fuad v PP[2020] 1 SLR 984

Held, allowing CM 18 and dismissing the appeal against conviction and sentence:

(1) CM 18 was allowed as the Court saw no objection against granting it: at [26].

(2) The Contested Statements were admissible in evidence. The Judge did not err in finding that the Alleged Representations had never been made to Roshdi. In any case, even if the Alleged Representations had been made, they did not objectively constitute a threat, inducement or promise. Subjectively, the said representations also did not operate on Roshdi's mind when he gave the Contested Statements, and there was no basis for the Court to exercise its residual exclusionary discretion to exclude the said statements: at [67] to [70].

(3) The Purported Interpretation of Nabill (at [70]–[71]) was plainly incorrect, both as a reading of the decision and as a proposition of law. Nabill did not change the established law governing the operation of the legal and evidential burdens in criminal cases. In the present case, the only disputed element was whether Roshdi had the Drugs in his possession for the purpose of trafficking. The legal burden was on Roshdi to rebut the presumption of trafficking under s 17(c) of the MDA, and he also bore the evidential burden of adducing sufficient evidence to raise an issue for the consideration of the trier of fact: at [76] to [82] and [87].

(4) The Judge was correct to disbelieve Roshdi's safekeeping defence. Roshdi's police statements contained detailed explanations and admissions indicating that he had the Drugs in his possession for the purpose of trafficking. His safekeeping defence was only raised for the first time at trial, and his explanations for the discrepancies with his statements were incoherent. There was also no merit in Roshdi's contention that the Judge had failed to properly scrutinise the evidence relating to Chandran's involvement as Chandran's police statements did not support Roshdi's safekeeping defence: at [90] to [98] and [102].

(5) In any case, even assuming that Roshdi had a safekeeping arrangement with Chandran, the element of possession for the purpose of trafficking would nevertheless be made out: at [126].

(6) Ramesh at [110] did not establish a general proposition that a “bailee” who received drugs intending to return them to the “bailor” would never be liable for trafficking (or possession for the purpose of trafficking). In deciding whether the act or intended act of returning drugs to the “bailor” constituted “trafficking” as defined in the MDA, the key inquiry was whether the “bailee” in question knew or intended that the “bailment” was in some way part of the process of supply or distribution of the drugs. While this key inquiry was concerned with the “bailee's” subjective state of mind at the material time, the requisite knowledge and/or intention could be inferred from the surrounding objective facts, including the “bailee's” own conduct and any other relevant circumstances. There was, however, no requirement for the Prosecution to prove that the accused person was moving the drugs in a particular direction closer to their ultimate consumer: at [115] to [120] and [184].

(7) Based on Roshdi's own case at trial, Roshdi was undoubtedly aware that by safekeeping the Drugs for Chandran, he was facilitating the process of their intended sale and distribution. His intended act of returning the Drugs to Chandran would therefore constitute “trafficking” under the MDA, and he would nonetheless have been in possession of the Drugs for the purpose of trafficking: at [123] and [124].

(8) That being the case, there was no question of the evidential burden ever having shifted to the Prosecution to rebut Roshdi's safekeeping defence since a hopeless defence raised nothing to rebut. It was thus unnecessary for the Prosecution to call Chandran as a witness to rebut Roshdi's safekeeping defence: at [126] to [128].

(9) Since Roshdi's safekeeping defence was hopeless, the issues relating to the Prosecution's additional disclosure obligations did not in fact arise. Nevertheless, the Court set out its views on the said issues: at [129].

(10) The Prosecution's Proposed Redefinition of a “material witness” was not accepted. Contrary to the Prosecution's submission, the two key rationales for imposing the additional disclosure obligations did not only apply to witnesses who might be the “true culprit”. Rather, they were generally engaged whenever there was a witness who could be expected to materially confirm or contradict the accused person's defence: at [137] to [143].

(11) The Prosecution's suggestion that the Defence should bear the duty of identifying “material witnesses” was not accepted. It would in effect transform what was meant to be a disclosure obligation borne by the Prosecution into a duty falling upon the Defence to outline its case prior to trial. This was out of touch with the purposes that the additional disclosure obligations were meant to achieve. It was also inaccurate for the Prosecution to suggest that at all stages of a criminal proceeding, the identification of a “material witness” was dependent on the defence that the accused person ultimately ran at trial. Rather, at each stage of a criminal proceeding, the “materiality” of a witness was assessed only by reference to such defences as the accused person might have disclosed at that point in time: at [146] to [151].

(12) The general process of identifying “material witnesses” should be as followed. At the pre-trial stage, the Prosecution should first disclose the statements of witnesses whom it thought were “material” based on the accused person's statements and the Case for the Defence (if any). This should take place in accordance with the timelines set out in Nabill (at [50]). If the Prosecution had any doubt as to whether a witness was “material”, it should generally err on the side of disclosure. Once the Prosecution had made its initial disclosures, the Defence could then decide whether it wished to notify the Prosecution of any additional witnesses whom it also considered to be “material”. There was, however, no duty compelling the Defence to do so. Where the Defence decided to seek the statements of such additional witnesses prior to trial, it ought to explain to the Prosecution (and/or the court) why the additional witnesses were “material”. Once trial begun and in any subsequent appeal, it would be incumbent upon both the Prosecution and the Defence to identify any new “material witnesses” at the earliest opportunity: at [156] to [160].

(13) In the event of a dispute as to the “materiality” of a witness, either party could apply to the court for a ruling on the issue: at [146] and [161].

(14) There was no legal duty on the Prosecution or law enforcement agencies to conduct further investigations or to record statements whenever a “material witness” was identified. Nabill at [77] did not impose any such duty. The position was simply that if the Prosecution chose not to pursue any further investigations, it took the risk that it might be found to have failed to discharge its evidential burden in respect of facts that had properly come into issue: at [166] and [167].

(15) The consequences of any breach of the Prosecution's additional disclosure obligations would necessarily depend on all the facts at hand. There was no stock answer to this question. The most critical question was whether, in all the circumstances, the Prosecution's breach was so egregious that it occasioned a failure of justice or otherwise rendered the conviction unsafe. On any particular set of facts, the court was well able to determine the impact of any breach: at [168], [169] and [177].

(16) On the present facts, the Prosecution's disclosure of Chandran's statements was not late or in breach of its additional disclosure obligations: at [180].

(17) The Prosecution had established the element of possession for the purpose of trafficking beyond a reasonable doubt. In any case, Roshdi had failed to rebut the presumption of trafficking in s 17(c) of the MDA. Roshdi's appeal against conviction was...