Rusli Bin Sembayang v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 12 March 2003
• Neutral Citation: [2003] SGCA 11
• Plaintiff Counsel: Amolat Singh (Amolat & Partners), Lim Swee Tee (Lim Swee Tee & Co)
• Published date: 17 December 2003
• Court: Court of Appeal (Singapore)
• Defendant Counsel: Lim Yew Jin, Tan Wee Soon (DPP's)
• Subject Matter: Criminal Law,Controlled drugs,Trafficking,Accused claimed that the drugs belonged to another person,Failure to provide any details of alleged owner of the drugs,Whether the accused was a trafficker,Possession,Accused admitted to throwing white plastic bag and slabs of drugs outside flat,White plastic bag and bundles containing drugs recovered from ground floor of accusedÂ’s flat,Whether prosecution had proved possession of drugs by accused beyond reasonable doubt,Evidence,Confession,Confession retracted,Inconsistency between confessions and evidence at trial,No good explanation offered,Whether accused may be convicted solely on the strength of his retracted confession

Delivered by Yong Pung How CJ

1 The appellant, Rusli bin Sembayang, was a 44 year old Singaporean. He was tried and convicted on the following charge:

That you, RUSLI BIN SEMBAYANG, are charged that on or about the 11^th day of April 2002, at about 1.20 am, at Blk 125 Hougang Avenue 1 #07-1476, Singapore, did traffic in a controlled drug specified in Class "A" of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, by having in your possession for the purpose of trafficking, 1100.2 grams of cannabis, without any authorisation under the said Act or the regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) read with section 5(2) of the Misuse of Drugs Act, Chapter 185, and punishable under section 33 of the Misuse of Drugs Act.

Rusli also faced a second charge of trafficking in 959.31 grams of cannabis resin which was stood down during the trial below.

2 On 11 April 2002, police and Central Narcotics Bureau officers arrived at Rusli’s flat at Block 125, Hougang Avenue 1. The officers identified themselves and demanded entry into the flat. The officers saw Rusli briefly emerge from the master bedroom. He did not open the door. Instead, he simply muttered an apology to the officers and retreated back into the master bedroom.

3 Rusli was then seen climbing down the side of the block by one of the officers stationed at the scene. When Rusli reached the ground floor, he was approached by that officer who identified himself and told him to stop. Rusli promptly ran away and managed to board a taxi. After a chase and some resistance, he was eventually apprehended at Geylang Serai.

4 The officers found a white plastic bag at the ground floor of Rusli’s block. Inside the plastic bag were a brown slab of drugs and a broken paper cutter. Three other slabs and a square block of drugs were found lying nearby. The officers also recovered portions of a broken mobile phone. Analysis showed that the packages of drugs recovered contained a total of 1100.2 grams of cannabis. Loose fragments of cannabis and records of drug transactions were also found inside Rusli’s flat.

5 Several statements were recorded from Rusli following his arrest. The voluntariness of these statements was not challenged. In these statements, Rusli claimed that the drugs belonged to a friend of his named ‘Ahmad’. He claimed that Ahmad was a known cannabis trafficker who had brought the drugs to the flat. In his statements, Rusli admitted that he had previously assisted Ahmad in cutting, weighing and packing slabs of cannabis. Rusli also claimed that he did not know that Ahmad had brought such a large quantity of drugs into his flat until the day of his arrest.

6 Rusli’s version of events was that Ahmad was physically present in the flat when the officers first arrived. He alleged that Ahmad had climbed out of the window upon realising that a raid was in progress, but the officer stationed at the foot of the block had somehow failed to notice him. Rusli further alleged that only after Ahmad had climbed out of the window did he realise such a large quantity of drugs had been left in his flat. In a fit of panic, he grabbed Ahmad’s drugs and threw them out of the flat’s window.

7 The prosecution’s case was that Rusli was in possession of the cannabis for the purpose of trafficking, and that he was in the process of packing the drugs when the officers arrived at his flat. He threw out the evidence of his trafficking activities, which were the items subsequently found on the ground floor. Rusli then climbed out of the window, hoping to escape. When finally arrested, he concocted a fictitious character named Ahmad in order to rebut the presumption that his possession of the cannabis was for the purpose of trafficking.

8 During the trial below, Rusli attempted to retract most of the incriminating portions of his earlier statements. He did not retract the portions of his statements which alleged that the drugs belonged to Ahmad.

The decision below

9 The trial judge held that Rusli’s account of Ahmad’s presence and escape from the flat was pure fabrication. The evidence showed that Ahmad was nothing more than a fictitious character. The trial judge noted that Rusli was unable to provide the address, contact number or whereabouts of Ahmad. This severely damaged the credibility of his story, since he claimed that Ahmad was a childhood friend and had been a frequent visitor to his flat.

10 In addition, the trial judge held that there was compelling evidence that Rusli was involved in the trafficking of cannabis. In his statements, Rusli had repeatedly referred to the cutting, weighing and packing of cannabis. The evidence seized during the arrest showed that Rusli had notes of the price of the drugs, records of sales transactions and even a specific code word for cannabis. The trial judge also found Rusli’s retraction of his incriminating statements to be an afterthought, and noted that the court was entitled to convict him on the strength of his retracted confessions as long as it was satisfied as to the truth of the retracted portions.

11 The trial judge thus held that the prosecution had proved its case beyond a reasonable doubt, and Rusli had not, on a balance of probabilities, rebutted the presumption under the Misuse of Drugs Act that the cannabis found in his possession was for the purpose of trafficking. Under s 17 of the Act, a person is presumed to be a trafficker if he has in his possession more than 15 grams of cannabis. In the present case, Rusli had in his possession more than 1000 grams of cannabis, which clearly brought the presumption into operation. Rusli had failed to establish his defence as he was unable to prove the existence of Ahmad. He was consequently found guilty and sentenced to death under s 33 of the Act.

Issues arising on appeal

12 The main issue before us was whether the trial judge had erred in holding that Ahmad was merely a fictitious character. The other issues arising on appeal were whether the trial judge had erred in finding that Rusli was in possession of the cannabis in question, and whether there was any error in the trial judge’s rejection of Rusli’s attempt to retract the incriminating portions of his statements. We dismissed the appeal, and now give our reasons.

The existence of Ahmad

13 Rusli’s entire defence revolved around the existence of Ahmad. His sole rebuttal to the presumption of trafficking was that the drugs did not belong to him. Counsel for the appellant in fact characterised the appeal in the following terms: if Ahmad exists, that...