Sharom bin Ahmad and Another v Public Prosecutor

• Judgment Date: 17 July 2000
• Date: 17 July 2000
• Docket Number: Criminal Appeal No 2 of 2000
• Court: Court of Appeal (Singapore)

Sharom bin Ahmad and another

Plaintiff

and

Public Prosecutor

Defendant

[2000] SGCA 36

Yong Pung How CJ

,

L P Thean JA

and

Chao Hick Tin JA

Criminal Appeal No 2 of 2000

Court of Appeal

Criminal Law–Statutory offences–Misuse of Drugs Act (Cap 185, 1998 Rev Ed) –Presumption of trafficking–Presumption of possession –Whether presumptions in ss 17 and 18 (1) (c) of the Misuse of Drugs Act can be used together–Sections 17 and 18 (1) (c) Misuse of Drugs Act (Cap 185, 1998 Rev Ed)–Criminal Law–Statutory offences–Misuse of Drugs Act (Cap 185, 1998 Rev Ed)–Trafficking by selling–Trafficking by possession–Drugs found in flat–Whether proof of ownership of flat necessary to prove possession of drugs–Raising of presumption of possession–Possession of drug trafficking paraphernalia–Whether possession of drugs proved beyond reasonable doubt–Criminal Procedure and Sentencing–Charge–Substitution of joint charge with separate charges –Whether substitution of fresh charges correct–Whether joint trial should be severed after substitution with separate charges–Whether different offences committed in same transaction–Sections 163 (1) and 176 Criminal Procedure Code (Cap 68, 1985 Rev Ed)–Evidence–Admissibility of evidence–Voluntariness of statement–Whether confession made under inducement, threat or promise–Section 24 Evidence Act (Cap 97, 1997 Rev Ed)–Evidence–Witnesses–Corroboration–Lies–Corroborative value and indication of consciousness of guilt–Whether conviction on uncorroborated accomplice evidence allowed–Evidence–Witnesses–Witness with interest to serve–Conviction on uncorroborated evidence of witness with interest to serve–Sections 116 illus (b) and 135 Evidence Act (Cap 97, 1997 Rev Ed)

The first appellant (“Sharom”) and his girlfriend were observed going to and leaving from a flat. They were arrested at the car park as they were about to leave. When questioned by the Central Narcotics Bureau (“CNB”) officers upon his arrest, Sharom told a series of lies about his own identity, where they had come from and where he had changed his clothes. When a body search was conducted, drugs and keys were recovered from Sharom, who admitted the things belonged to him. The keys were keys to the flat, which belonged to the second appellant (“Boksenang”). A search of the flat recovered a haversack in which heroin was found. When the haversack and its contents were shown to Sharom, he identified the drugs and admitted the haversack belonged to him. The search of the flat also recovered various drug trafficking paraphernalia which Sharom admitted belonged to him.

Boksenang was arrested by CNB officers some time later. In one of the long statements he recorded, Boksenang confessed that he had bought heroin from a third party and had immediately sold some to Sharom, who was also present during the purchase of the heroin. He claimed he saw Sharom place the ten packets of heroin into the latter's haversack.

In Sharom's defence, he denied buying any heroin from Boksenang and alleged that the drugs belonged to Boksenang, whom he claimed had borrowed the haversack from him. Boksenang himself sought to challenge the admissibility of the long statement containing the incriminating confession. He claimed that the statement was made as a result of inducement, threat and promise being exercised on him.

In the proceedings below, the two appellants were originally jointly tried on a joint charge of being a party to a criminal conspiracy to traffic drugs. At the end of the trial, the judge rejected Sharom's defence and found that the drugs in the haversack had been proved to be in Sharom's possession for the purpose of trafficking. With regard to Boksenang, the trial judge found, after a voir dire, that the long statement containing his confession was made voluntarily and admitted it as evidence. After reviewing all the evidence before him, the trial judge found that the evidence did not support the original joint charge of criminal conspiracy. Thus, the joint charge was substituted with two separate charges against each of the appellants. After giving all parties the opportunity to answer to the fresh charges, the judge found the two appellants guilty as charged and convicted them. Both appellants appealed. Sharom raised several grounds of appeal, viz, that the trial judge erred in (a) substituting the fresh charges against the appellants and proceeding with the substituted charges in a joint trial; (b) failing to give sufficient weight to Sharom's evidence; (c) using the presumptions in ss 17 and 18 (1) (c) of the Misuse of Drugs Act (“MDA”) (Cap 185, 1998 Rev Ed) together to find a case against Sharom; and (d) failing to direct himself to treat Boksenang's evidence with caution under s 116 illus (b)of the Evidence Act (Cap 97, 1997 Rev Ed). In Boksenang's appeal, he argued that the trial judge erred in holding that the confession was made voluntarily.

Held, dismissing the appeals:

(1) Section 163 (1) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”) conferred on the court the power to frame a new charge in substitution for an existing charge. This power existed at every stage of the trial, before judgment had not been given. Consequently, the trial judge's decision to substitute fresh charges against the two appellants was not wrong in law: at [25].

(2) Under s 176 of the CPC, two or more accused persons might be tried jointly for charges of different offences that were committed in the same transaction. In this case, the two separate offences were committed in the same transaction and therefore, there was no error in the trial judge's decision to continue with the joint trial. In any case, the joint trial of the two substituted charges did not cause any prejudice to Sharom at all and the trial judge had taken the necessary precautionary safeguards: at [26] and [27].

(3) To prove possession of drugs found in a flat, the Prosecution need not prove that the person in possession of the drugs was also the owner of the flat, and conversely, proof of non-ownership of the flat in which the drugs were found did not necessarily mean that the non-owner could not have been in possession of the drugs. The presumption of possession in s 18 (1) (c) of the MDA was raised once the accused was proved to have in his possession, custody or control the keys of the premises in which the drug was found: at [29].

(4) The weight of the evidence showed that Sharom was in possession of the drugs found in the haversack. His assertions were inconsistent and implausible and were not supported by the evidence. The series of lies told by Sharom shortly after his arrest had corroborative value and indicated a consciousness of guilt on his part. Further, the possession of drug trafficking paraphernalia by Sharom was relevant circumstantial evidence of his drug trafficking activities: at [34] and [36].

(5) The presumption of trafficking in s 17 of the MDA, and the presumption of possession in s 18 (1) (c) of the MDA, could not be used at the same time as the presumption in s 17 applied only if the possession of the controlled drug was proved and not merely presumed. Although the trial judge's holding that Sharom had failed to rebut both the presumptions in ss 17 and 18 (1) (c)of the MDA was highly misleading and erroneous, this did not mean that Sharom was wrongly convicted. The evidence proved sufficiently that the drugs were in Sharom's possession and as such, the Prosecution only needed to rely on the presumption of trafficking in s 17, which was not rebutted on the facts: at [37] and [38].

(6) Section 135 of the Evidence Act had abrogated the common law rule that a court must warn itself of the danger of convicting on uncorroborated evidence of an accomplice. Reading s 135 with s 116 illus (b), the court might convict an accused person based on uncorroborated accomplice evidence, while bearing in mind that the evidence should still be treated with caution as the accomplice might, and not must, be presumed to be unworthy of credit. The above principles applied similarly to a witness who was not an accomplice but one who had an interest to serve: at [40] and [41].

(7) The test of the admissibility of a statement under s 24 of the Evidence Act involved two stages. First, was the confession made as a consequence of any inducement, threat or promise; and second, whether in making that confession, the accused did so in circumstances which would have led him to reasonably suppose that he would gain some advantage for himself or avoid some evil of a temporal nature to himself: at [46].

(8) Boksenang's allegations of inducement, threat and promise were self-contradictory, inherently improbable and not otherwise supported by objective evidence. There was no reason to depart from the trial judge's findings that the confession was made by Boksenang voluntarily and was admissible as evidence: at [51].

Abdul Aziz bin Ahtam v PP [1996] 3 SLR (R) 799; [1997] 2 SLR 96 (refd)

Aziz bin Abdul Kadir v PP [1999] 2 SLR (R) 314; [1999] 3 SLR 175 (refd)

Chai Chien Wei Kelvin v PP [1998] 3 SLR (R) 619; [1999] 1 SLR 25 (refd)

Chan Hock Wai v PP [1995] 1 SLR (R) 296; [1995] 1 SLR 728 (folld)

Chia Song Heng v PP [1999] 3 SLR (R) 166; [1999] 4 SLR 705 (refd)

Chua Keem Long v PP [1996] 1 SLR (R) 239; [1996] 1 SLR 510 (folld)

Chua Poh Kiat Anthony v PP [1998] 2 SLR (R) 342; [1998] 2 SLR 713 (folld)

Dato Mokhtar bin Hashim v PP [1983] 2 MLJ 232 (refd)

Gulam bin Notan Mohd Shariff Jamalddin v PP [1999] 1 SLR (R) 498; [1999] 2 SLR 181 (refd)

Kwang Boon Keong Peter v PP [1998] 2 SLR (R) 211; [1998] 2 SLR 592 (refd)

Lee Teck Wah v PP [1998] 1 SLR (R) 726; [1998] 2 SLR 827 (refd)

Low Kok Wai v PP [1994] 1 SLR (R) 64; [1994] 1 SLR 676 (refd)

Mohd Desa bin Hashim v PP [1995] 3 MLJ 350 (refd)

Poh Kay Keong v PP [1995] 3 SLR (R) 887; [1996] 1 SLR 209 (refd)

PP v Yeo Choon Poh [1993] 3 SLR (R) 302; [1994] 2 SLR 867 (folld)

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