Steven Chong JCA:
Introduction
In a case where an accused person has been charged with drug trafficking and his defence was that he intended to consume the entirety of the drugs in his possession, must the court apportion and deduct a quantity meant for his own consumption from that amount even if the court should reject his total consumption defence (the “Apportionment Argument”)?
The application by Mr A Steven s/o Paul Raj pursuant to s 394H(1) of the Criminal Procedure Code 2010 (2020 Rev Ed) (the “CPC”) for permission to make a review application in respect of an earlier judgment of the Court of Appeal in CA/CCA 24/2021 (“CCA 24”), which was reported in A Steven s/o Paul Raj v Public Prosecutor [2022] 2 SLR 538 (“A Steven (CA)”), is premised on the Apportionment Argument. The applicant argues that the Court of Appeal in CCA 24 fell into error by failing to engage in such an apportionment exercise notwithstanding its rejection of the total consumption defence.
The present application provides a fitting opportunity for this court to examine the consequences of pursuing an unsuccessful total consumption defence and to clarify the circumstances under which the court can and/or should apportion the drugs in the possession of an accused person for his own consumption in the context of s 394H(1) of the CPC.
Before turning to deal with the application, it should be clarified that unless otherwise stated, references in this judgment to the rate of consumption of diamorphine should be understood as referring to the weight of the granular/powdery substance containing diamorphine, as opposed to the weight of the diamorphine.
Factual and procedural background
Background facts
On 23 October 2017, the applicant ordered two “batu” (or bundles) of “panas” (a street name for diamorphine) from one “Abang”, his Malaysian drug supplier. The applicant received the drugs on 24 October 2017 and was arrested by officers from the Central Narcotics Bureau (“CNB”) on the same day. Following searches by the CNB officers, the following items, among other things, were found on the applicant’s person or in his flat: Two packets of granular/powdery substances, which were the drugs the applicant had ordered from “Abang”, were seized from the basket of the applicant’s bicycle. These were found to contain a total of 901.5g of granular/powdery substance containing not less than 35.85g of diamorphine (the “Relevant Drugs”). One yellow cut straw (which was examined and found to be stained with diamorphine), a large assortment of empty zip lock bags, one piece of stained aluminium foil, one improvised smoking utensil, two stained spoons, two lighters and four digital weighing scales were found beneath the kitchen sink in the applicant’s flat.
The trial and the trial judge’s decision
The applicant was charged under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (the “MDA”) with one charge of trafficking in a controlled drug. At the trial, the applicant did not dispute his possession of the Relevant Drugs or that he had knowledge that the Relevant Drugs were diamorphine. As the presumption of trafficking under s 17(c) of the MDA was triggered, the burden of proof was on the applicant to show that the Relevant Drugs were not in his possession for that purpose. The only defence raised by the applicant to rebut the presumption of trafficking was that the Relevant Drugs were meant solely for his own consumption (or to be given to his friends occasionally as part of some reciprocal arrangements to help each other), but not for trafficking to anyone else. He claimed to be a heavy user of diamorphine, smoking two to three packets of 8g (ie, 16–24g) of diamorphine per day: see Public Prosecutor v A Steven s/o Paul Raj [2021] SGHC 218 (the “GD”) at [1], [6] and [8].
The trial judge (the “Judge”) found that the presumption of trafficking under s 17(c) of the MDA was not rebutted as the applicant had failed to establish his total consumption defence on a balance of probabilities, and therefore convicted the applicant of the charge against him. In particular, the Judge reasoned that the applicant’s evidence on his claimed daily rate of consumption was contradicted by the evidence of the doctors who had examined him, and the applicant could not satisfactorily explain those discrepancies. The applicant’s total consumption defence was also undermined by, inter alia, the large amount of the Relevant Drugs and his possession of paraphernalia normally used in drug trafficking: see the GD at [10]–[12], [17]–[45] and [51].
The appeal and the Court of Appeal’s decision
The applicant’s case on appeal, like his case at the trial, was confined to his total consumption defence. The Court of Appeal affirmed the Judge’s decision that the applicant had failed to rebut the presumption of trafficking under s 17(c) of the MDA and dismissed the applicant’s appeal against his conviction and sentence.
The Court of Appeal affirmed the Judge’s conclusion that the applicant had failed to establish his claimed rate of consumption of 16–24g of diamorphine per day. Although the applicant’s claimed rate of consumption was recorded in a statement taken from him under s 22 of the CPC on 30 October 2017 (the “First Long Statement”), it was significantly higher than the consumption rates recorded by the doctors who had examined the applicant both before and after the First Long Statement (A Steven (CA) at [31]–[33]): Dr Tan Chong Hun (“Dr Tan”), a prison medical officer of the Changi Prison Complex Medical Centre who had examined the applicant on 26 October 2017, recorded that the applicant’s consumption rate was 4g of diamorphine per day. In a report dated 28 October 2017 which was countersigned by Dr Munidasa Winslow, it was certified that the applicant consumed 4g of diamorphine per day. In the First Long Statement recorded on 30 October 2017, the applicant stated: “These days I smoke about 2–3 8g packets of panas every day.” Dr Jaydip Sarkar (“Dr Sarkar”), a psychiatrist with the Institute of Mental Health at the material time who had conducted interviews with the applicant on 3, 6 and 9 November 2017, recorded in his report dated 14 November 2017 that the applicant claimed to have consumed “one packet of heroin daily” of about 8g each.
The explanations offered by the applicant for the substantially inconsistent consumption rates he provided to the doctors were unconvincing. The applicant’s assertions that his consumption rates were incorrectly recorded were never put to Dr Tan and Dr Sarkar. The applicant also provided no basis to disturb the Judge’s finding of fact that his mental state did not affect his communication with the doctors (A Steven (CA) at [29] and [35]).
The Court of Appeal also considered that the applicant’s total consumption defence was further undermined by the following factors: The applicant possessed paraphernalia normally associated with drug trafficking activities, whose utility was obviously for the preparation of drugs for sale. The sheer amount of empty zip lock bags and weighing scales found in the applicant’s flat constituted objective evidence that the Relevant Drugs were meant for trafficking (A Steven (CA) at [37]–[40]). The applicant made certain admissions in his statements and to Dr Sarkar to the effect that he sold small quantities of diamorphine to his friends on a regular basis (A Steven (CA) at [41]–[43]). The large amount of the Relevant Drugs found in the applicant’s possession suggested that the Relevant Drugs were meant for trafficking. The applicant’s explanation that “Abang” had persuaded him to purchase a larger quantity of the said drugs to avoid supply disruptions during the Deepavali festive period only emerged belatedly in a statement recorded from the applicant under s 22 of the CPC on 22 February 2018 (the “Second Long Statement”), and appeared to be a mere afterthought (A Steven (CA) at [45]–[46]).
The parties’ cases in this application
The Applicant’s case
In the present application, the applicant submits that the Court of Appeal in CCA 24 erred in not attempting to apportion the quantity of the Relevant Drugs which, on a balance of probabilities, was meant for the applicant’s own consumption. Relying on the case of Muhammad bin Abdullah v Public Prosecutor and another appeal [2017] 1 SLR 427 (“Muhammad bin Abdullah”), the applicant argues that even if the Court of Appeal disbelieved his total consumption defence, that did not relieve the court of the task of undertaking an apportionment if it was accepted by the court that he intended to personally consume more than a de minimis amount of the Relevant Drugs. According to the applicant, the portion of the Relevant Drugs which the court accepts was meant for his own consumption must be calculated and deducted from the total quantity of drugs set out in the charge against him.
The applicant submits that it was neither challenged that a significant portion of the Relevant Drugs was meant for his own consumption, nor that his “daily use of heroin could be 8g a day”. The applicant further argues that the court may infer that he intended to consume the Relevant Drugs over a period of 69 days, as he allegedly last purchased diamorphine from “Abang” in mid-August 2017 prior to his arrest on 24 October 2017. On the basis that the applicant consumed 8g of the Relevant Drugs a day over 69 days, 552g would have been reserved for his own consumption, leaving 349.5g for sale. Based on the applicant’s calculation, he contends that the average purity of that 349.5g would contain 13.98g of diamorphine, below the capital threshold of 15g.
The applicant also submits that the requirements set out under s 394J of the CPC are satisfied because: the Apportionment Argument could not have been adduced earlier as it would have undermined his total consumption defence at the trial and on...
