Saravanan Chandaram v Public Prosecutor and another matter

• Jurisdiction: Singapore
• Court: Court of Three Judges (Singapore)
• Judge: Sundaresh Menon CJ,Steven Chong JA,Andrew Phang Boon Leong JA
• Judgment Date: 29 April 2020
• Neutral Citation: [2020] SGCA 43
• Citation: [2020] SGCA 43
• Defendant Counsel: Professor Kumaralingam Amirthalingam (Faculty of Law, National University of Singapore) as amicus curiae.,Kristy Tan, Anandan Bala, Wong Woon Kwong, Lu Zhuoren John, Nicholas Wuan Kin Lek and Shen Wanqin (Attorney-General's Chambers)
• Published date: 05 May 2020
• Docket Number: Criminal Appeal No 46 of 2017 and Criminal Motion No 15 of 2018
• Subject Matter: Purposive approach,Misuse of Drugs Act,Construction of statute,Statutory Interpretation,Criminal Law,Statutory offences,Equality before the law,Offences,Equal protection of the law,Definitions,Constitutional Law
• Plaintiff Counsel: The appellant in person
• Date: 29 April 2020
• Hearing Date: 22 March 2018,07 May 2019

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

The present appeal arises out of the prosecution of the appellant, Saravanan Chandaram (“the Appellant”), for two separate charges involving the importation of cannabis and cannabis mixture respectively under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”, which abbreviation will also denote the corresponding predecessor version of this Act where the context so requires). Ten wrapped bundles were found in the car that the Appellant had driven into Singapore from Malaysia. Each of these bundles was analysed by the Health Sciences Authority (“the HSA”) and reported to contain both cannabis and cannabis mixture. The determination of the existence of cannabis mixture was made in line with the interpretation of the statutory definition of “cannabis mixture” that was laid down in Public Prosecutor v Manogaran s/o R Ramu [1996] 3 SLR(R) 390 (“Manogaran”). It was on this basis that the Prosecution preferred one charge of importing cannabis (“the Importation of Cannabis Charge”) and one charge of importing cannabis mixture (“the Importation of Cannabis Mixture Charge”) against the Appellant. According to the Prosecution, this is in line with its current charging practice, which may be summarised thus: where a single compressed block of cannabis-related plant material is certified by the HSA as containing (a) cannabis as well as (b) fragmented vegetable matter containing cannabinol (“CBN”) and tetrahydrocannabinol (“THC”), the Prosecution will consider preferring a charge of trafficking in, importing or exporting cannabis in respect of the portion certified by the HSA as consisting purely of cannabis, and a charge of trafficking in, importing or exporting cannabis mixture in respect of the portion consisting of fragmented vegetable matter that, while not specifically certified by the HSA as cannabis, has been found to contain CBN and THC. We refer to this charging practice as the Prosecution’s “Dual Charging Practice”.

This appeal offers us the opportunity to revisit the judicial interpretations of the definition and classification of “cannabis” and “cannabis mixture” enacted in the MDA, and to determine, in that light, whether the elements of both the Importation of Cannabis Charge and the Importation of Cannabis Mixture Charge have been proved beyond reasonable doubt. We consider this in the light of the testing and analytical procedures and practices adopted by the HSA. Before turning to these issues, we will first address the Appellant’s primary case, which is that he believed the ten bundles that he brought into Singapore to contain nothing other than contraband tobacco. We begin with the facts.

The undisputed facts

The Appellant, a Malaysian citizen who was residing in Malaysia at the material time, was tried and convicted in the High Court of the Importation of Cannabis Charge and the Importation of Cannabis Mixture Charge. These two charges read as follows:

That you …

[Importation of Cannabis Charge:]

on the 6th day of November 2014, at about 10.40 a.m., at Woodlands Checkpoint, Singapore, did import into Singapore a Class A controlled drug listed in the First Schedule to the [MDA], to wit, by bringing into Singapore ten (10) bundles containing not less than 1383.6 grams of vegetable matter which was analysed and found to be cannabis, without any authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under Section 7 of the [MDA] and punishable under Section 33(1) of the said Act, and alternatively, upon conviction, you may be liable to be punished under Section 33B(1) of the [MDA].

[Importation of Cannabis Mixture Charge:]

on the 6th day of November 2014, at about 10.40 a.m., at Woodlands Checkpoint, Singapore, did import into Singapore, a Class A controlled drug listed in the First Schedule to the [MDA], to wit, by bringing into Singapore ten (10) bundles containing not less than 3295.7 grams of fragmented vegetable matter which was analysed and found to contain [CBN] and [THC], without any authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under Section 7 of the [MDA] and punishable under Section 33(1) of the said Act, and alternatively, upon conviction, you may be liable to be punished under Section 33B(1) of the [MDA].

[emphasis in bold in original]

The Appellant was arrested at Woodlands Checkpoint on 6 November 2014 after driving a Malaysian-registered rental car (“the Car”) from Malaysia into Singapore through the checkpoint. The Car was searched at the checkpoint, and ten bundles, concealed in two areas of the Car, were discovered by the enforcement authorities: six bundles were in the armrest of the left rear passenger seat, and four bundles were in that of the right rear passenger seat. These ten bundles were subsequently reported by the HSA to contain an aggregate of not less than 1,383.6g of cannabis and not less than 3,295.7g of fragmented vegetable matter containing CBN and THC. These bundles are the subject of the two charges brought against the Appellant. The ten bundles that are referred to in each of these charges are the same bundles.

An agreed statement of facts (“the Statement of Facts”) was tendered at the trial pursuant to s 267(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”). There, it was stated that sometime in August 2014, the Appellant met an unidentified Malaysian man called “Aya”. The Appellant knew that Aya was a drug syndicate leader in Malaysia who arranged deliveries of drug consignments to Singapore and accepted Aya’s offer to employ him as his driver.

On 5 November 2014, the Appellant agreed, at Aya’s direction, to deliver ten bundles to a client in Singapore, for which he was to be paid S$5,000. On the witness stand, the Appellant testified that Aya had instructed him to collect the Car from a specified venue in Johor Bahru and then get its windows tinted. The Appellant followed these instructions. Subsequently, he met Aya, who handed him a blue bag containing the ten bundles. Aya allegedly told him that the bundles contained tembakau (meaning tobacco in the Malay language) and were to be concealed in the Car. The Appellant then consumed some methamphetamine with Aya. According to the Appellant, this was the first time he had consumed that drug, and having done so, he felt “very brave”. On Aya’s instructions, the Appellant placed four of the ten bundles in the armrest of the right rear passenger seat and the remaining six bundles in the armrest of the left rear passenger seat. He then parked the Car near his residence and handed the keys of the Car to Aya. The next morning, a relative of Aya handed the keys back to the Appellant, and on Aya’s instructions, the Appellant drove the Car to Singapore. The Appellant admitted bringing the ten bundles into Singapore. After entering Singapore, he was to call a Malaysian number to obtain instructions from Aya pertaining to the delivery of the bundles to the intended recipient in Singapore.

After his arrest, two statements were recorded from the Appellant, one under s 22 of the CPC on 6 November 2014, and one under s 23 of the CPC on 7 November 2014.

The parties’ respective cases at the trial

The matter was heard before a High Court Judge (“the Judge”). The main dispute at the trial centred on the Appellant’s knowledge of the nature of the contents of the ten bundles that he had imported into Singapore. There was no dispute as to the act of importation since the Appellant had admitted bringing these bundles into Singapore.

The Appellant’s version of the events

The Appellant denied knowing that the ten bundles contained controlled drugs. He said that his involvement in the transportation of the ten bundles to Singapore arose out of his need to repay a loan he had obtained from Aya for an operation that his son had to undergo. Aya was willing to have the loan repaid by way of deductions from his salary and presumably from other payments due to him, and he therefore agreed to deliver tembakau. According to the Appellant, Aya had initially asked him to transport controlled drugs to Singapore, but he had declined to do so. He had made it clear to Aya that he would not deliver controlled drugs to Singapore because of the severe penalties for bringing such drugs into Singapore. He claimed that in discussing the delivery of tembakau with Aya, Aya had said to him, “No problem, even if you get caught, you will serve a few months”. He claimed that in this instance, he had been deceived by Aya into bringing “ganja” (meaning cannabis) into Singapore, and that he would never have done so knowingly because he was aware that he could face the death penalty if he were caught. He also claimed that Aya had told him not to open the bundles because the intended customer in Singapore might complain if he received bundles that had been tampered with. Thus, when the officers at Woodlands Checkpoint asked him what was inside the bundles, he replied tembakau because, not having opened the bundles, that was what he thought they contained. We note in passing that the Appellant’s claim that he thought he was only transporting contraband tobacco was not reflected in any of his statements, and the first time he was recorded to have advanced this defence was when he was giving evidence at the trial. On the witness stand, the Appellant also changed his position regarding the payment he stood to receive for the delivery, from the sum of S$5,000 stated in the Statement of Facts to a sum of RM2,000, which was around a seventh of the amount that he had initially stated.

The Prosecution’s case

The Prosecution submitted that the presumptions of possession and knowledge under ss 18(1) and 18(2) respectively of the MDA applied and had not been rebutted. We digress to observe that there was no need for...