Shan Kai Weng v Public Prosecutor

• Judge: Yong Pung How CJ
• Judgment Date: 06 November 2003
• Neutral Citation: [2003] SGHC 274
• Citation: [2003] SGHC 274
• Subject Matter: Whether accused admitted offence without qualification,Possession of controlled drug under s 8(a) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed),Criminal Procedure and Sentencing,Revision of proceedings,Principles,Whether sentence manifestly excessive,Sentencing,Whether accused understood nature and consequences of plea
• Year: 2003
• Defendant Counsel: James E Lee (Deputy Public Prosecutor)
• Plaintiff Counsel: Bhargavan Sujatha (Bhargavan & Co)
• Court: High Court (Singapore)
• Published date: 26 November 2003

1 This was a petition for criminal revision of a decision of a subordinate court, and an appeal against the sentence imposed. I dismissed the application for revision, but allowed the appeal against sentence and reduced the sentence imposed. I now give my reasons.

The undisputed facts

2 On 7 July 2003, the appellant was driving into Singapore at 2.30am when he was stopped by the police, and his vehicle searched at the Woodlands Checkpoint Arrival Car Inspection Pit. The police officers found a tablet inside a red wrapper at the driver’s seat near the dashboard. The appellant admitted to ownership of the tablet and was placed under arrest. His urine tested negative for drug consumption.

3 Upon analysis by the Health Sciences Authority, the tablet was found to contain nimetazepam, a Class C controlled drug listed in the first schedule to the Misuse of Drugs Act (Cap 185)(the “MDA”).

4 On 5 August 2003, the appellant appeared before the district judge in person and pleaded guilty to the following charge for unlawful possession of drugs:

You, Shan Kai Weng, M/27 years old, IC No S76111491, are charge [sic] that you, on or about the 7^th day of July 2003 at about 0230 hrs, at Woodlands Checkpoint Arrival Car Inspection Pit, Singapore, did have in your possession a controlled drug as specified in Class C of the First Schedule to the Misuse of Drugs Act (Chapter 185), to wit, one tablet marked “028” on one side and “5” on the other side which was analysed and found to contain nimetazepam, without authorization under the said Act or the Regulation made thereunder, and you have thereby committed an offence under Section 8(a) and punishable under Section 33 of the Misuse of Drugs Act (Chapter 185).

5 The Notes of Evidence for the relevant court proceedings state:

Charge read, explained and understood in English.

Punishment prescribed by law explained to Accused.

Accused pleads guilty.

Understands nature and consequences of plea.

Statement of Facts “A”.

Statement of Facts read.

Facts admitted without qualification.

Court: Guilty and convicted.

Antecedents: Nothing known.

Mitigation: I am pleading for a light sentence.

Court: Six months’ imprisonment.

The appellant’s case

6 The appellant did not deny possession of the tablet. However, he claimed before me that he did not know the nature of the tablet in his possession, believing it to be a sleeping pill. His version of events was as follows: –

7 Whilst playing volleyball at Sentosa in mid-May 2003, the appellant complained about having constant headaches from early May. An acquaintance, one “John”, told him that he had some tablets for headaches, which had helped him. John gave the appellant a tablet, which the appellant believed to be a sleeping pill. The appellant took the tablet. Since he did not have a headache at the time, he left the tablet in his car.

8 On 19 June 2003, the appellant had to undergo minor surgery to remove three of his wisdom teeth. He was given eight days medical leave after surgery. The dentist told him that his headaches could have been caused by his problems with his teeth. After the surgery, the appellant no longer experienced the headaches. Having no need of the tablet, he left it in his car and forgot about it until the police officers found it.

9 When stopped at the Woodlands checkpoint, the appellant’s immediate response to the investigating officers was that the tablet was a sleeping pill. Upon further questioning, he explained to them how he had come by the tablet; that he had believed all along that it was a sleeping pill, and that he only came to know it was a controlled drug when the officers told him so. In reply, the police officers told him that since they had found him with the drug, they would charge him for possession of the drug, regardless of whether he knew what it was.

10 The appellant was not represented by counsel when he appeared before the trial judge. At the time his plea was taken, he believed that there was nothing more he could add to its contents, as he had already stated his position to the police officers earlier. He thus pleaded guilty to the charge, and intimated that he knew the nature and consequences of his plea. As reflected in the Notes of Evidence, he also admitted to the Statement of Facts without qualification after it was read to him. The relevant portion of the Statement of Facts reads:

Upon checking the vehicle driver’s seat near the steering wheel dashboard, complainant recovered one tablet inside a red wrapper with the marking “5” believed to be a controlled drug. Accused was the driver of the vehicle and he admitted ownership to the one tablet. Accused was then placed under arrest for possession of controlled drugs.

11 The Statement of Facts went on to say that upon analysis, the tablet was found to contain nimetazepam, a class C controlled drug listed in the MDA. The appellant claimed that he believed that he had to admit to the Statement of Facts since it was true that he was found with the tablet. He was not aware of the presumption under s 18 of the MDA, which provides:

(1) Any person who is proved to have had in his possession or custody or under his control –

(a) anything containing a controlled drug;

……

shall, until the contrary is proved, be presumed to have had the drug in his possession.

(2) Any person who is proved or presumed to have had a controlled drug in his possession shall, until the contrary is proved, be presumed to have known the nature of that drug.

As such, he argued that he was unaware that he should qualify his plea by informing the court that he was unaware that the tablet was a controlled drug, so as to rebut the...