Sulaiman bin Jumari v Public Prosecutor

• Judge: Sundaresh Menon CJ
• Judgment Date: 02 December 2020
• Neutral Citation: [2020] SGCA 116
• Citation: [2020] SGCA 116
• Defendant Counsel: April Phang and Tan Ee Kuan (Attorney-General's Chambers)
• Hearing Date: 01 July 2020
• Plaintiff Counsel: Anand Nalachandran (Forte Law LLC), Lau Kah Hee (BC Lim & Lau LLC) and Koh Weijin Leon (N S Kang)
• Docket Number: Criminal Appeal No 25 of 2019
• Published date: 06 December 2020
• Court: Court of Appeal (Singapore)
• Subject Matter: Criminal Procedure and Sentencing,Statutory Offences,Admissibility,Misuse of Drugs Act,Voluntariness,Statements,Criminal Law

Tay Yong Kwang JA (delivering the judgment of the court): Introduction

The appellant, Sulaiman bin Jumari, was tried and convicted on the following charge under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”):

That you ... on 23 June 2016, at about 4.45 p.m., at Sunflower Grandeur, 31 Lorong 39 Geylang #03-02, Singapore, did traffic in a 'Class A' controlled drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed), to wit, by having in your possession for the purpose of trafficking, twenty two (22) packets containing not less than 1520.23 grams of granular/powdery substance which was analysed and found to contain not less than 52.75 grams of diamorphine, 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) and punishable under section 33(1) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed), or alternatively be liable to be punished under section 33B of the same Act.

The primary issue in the trial in the High Court was whether the contemporaneous statement recorded from the appellant shortly after his arrest was admissible as evidence. The contemporaneous statement contained admissions relating to the appellant’s possession and knowledge of the nature of the drugs that were the subject of the charge. The appellant sought to exclude the statement on two grounds: first, under s 258(3) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) because there was an inducement given by the recording officer and second, under the court’s exclusionary discretion set out in Muhammad bin Kadar and another v Public Prosecutor [2011] 3 SLR 1205 (“Kadar”). In support of this second ground, the appellant alleged that during the recording of the contemporaneous statement: (a) he was suffering from drug withdrawal having consumed diamorphine earlier that day; (b) he had consumed methamphetamine shortly before his arrest; and (c) he had not slept for the previous three days due to the influence of drugs.

At the end of an ancillary hearing, which took approximately six days, the trial Judge (“the Judge”) found that the contemporaneous statement was admissible under both s 258 of the CPC and the principles set out in Kadar. At the conclusion of the trial, the Judge maintained his earlier finding on the admissibility of the contemporaneous statement and gave full weight to it. Given the admissions in the statement, the Judge held that the Prosecution had proved the elements of the trafficking charge beyond reasonable doubt. As the appellant was involved in selling the drugs, he was held not to be a mere courier and therefore did not qualify for the alternative sentencing regime in s 33B of the MDA. Accordingly, the Judge passed the mandatory death sentence on the appellant. The Judge’s decision is recorded in Public Prosecutor v Sulaiman bin Jumari [2019] SGHC 210 (“the GD”).

The appellant appealed against his conviction, primarily on the ground that the Judge erred in admitting the contemporaneous statement as evidence despite the appellant’s vulnerable condition at the material time. This appeal therefore turns essentially on whether the contemporaneous statement should have been admitted in evidence. In our judgment, we also discuss the relationship between the admissibility of statements under s 258 of the CPC and the common law exclusionary discretion stated in Kadar.

Facts

Most of the background facts were not disputed and were set out in a statement of agreed facts. The appellant is a male Singapore Citizen. He was 56 years old at the time of the arrest. He is now 60 years old. On 23 June 2016, the appellant was arrested by officers from the Central Narcotics Bureau (“CNB”) while he was alone in a rented room of an apartment on the third storey of Sunflower Grandeur, a condominium in Geylang. Drug exhibits were seized from three locations in the room namely, the second drawer of a wardrobe (“A”), the bedside table (“B”) and underneath the bed (“C”).

At the trial, the appellant admitted possession of all drug exhibits except the three drug bundles found in the second drawer of the wardrobe, ie, location A (“the drugs in question”). The drugs in question were analysed by the Health Sciences Authority (“HSA”) subsequently and found to contain a total of 49.86g of diamorphine. They comprised:

Exhibit	Analysis
1 bundle wrapped in black tape marked A1 containing 1 plastic marked A1A	Gross weight: 455.7g Nett weight: 17.87g of diamorphine
1 bundle wrapped in black tape marked A2 containing 1 plastic marked A2A	Gross weight: 459.1g Nett weight: 15.05g of diamorphine
1 plastic marked A3	Gross weight: 455.3g Nett weight: 16.94g of diamorphine

The three bundles of the drugs in question, together with various smaller packets of diamorphine recovered from the bedside table, location B, containing a total of 2.89g, for which possession was not disputed, formed the subject matter of the trafficking charge.

In the same second drawer where the drugs in question were found, the following exhibits were also seized:¹ 1 blue plastic bag marked A4 containing (i) a taped bundle containing granular substance; and (ii) a packet containing crystalline substance. No common controlled drug was detected in A4; 1 packet containing crystalline substance marked A5, analysed and found to contain 80.62g of methamphetamine; 1 packet containing granular substance marked A6, analysed and found to contain 0.26g of diamorphine; 1 electronic weighing scale marked A7, with no common controlled drug detected; and 5 polka-dotted pink packets marked A8.

The appellant was also found in possession of a remote control for the main/vehicle gates of the condominium, a key for the side/pedestrian gate of the condominium, a key for the main door of the apartment and a key to the room rented by him. The appellant was the only person in possession of the remote control at the material time. There were also seven mobile phones, two tablet computers and two thumb-drives in the rented room.

The arrest

The arrest took place at around 4.45pm on 23 June 2016. The CNB officers forced their way into the appellant’s rented room and found the appellant lying on his bed using his mobile phone. One of the officers asked whether the appellant had anything to surrender and he responded by saying “three” and using his head to gesture towards the wardrobe.

A search was conducted in the wardrobe and the drugs in question were found in the second drawer there.² The rest of the room was also searched and the other drug exhibits were found at the appellant’s bedside table (B) and underneath his bed (C). The search was conducted in the presence of the appellant who was sitting on the bed.

Circumstances surrounding the contemporaneous statement

At around 5.55pm that day, after the search and the marking of the scene were completed, Sergeant Fardlie (“the recording officer”) recorded the contemporaneous statement from the appellant in his field diary. The questions and the answers were in Malay as that was the language chosen by the appellant. This took place while the other CNB officers stood outside the rented room. The process took approximately 32 minutes, ending at around 6.27pm.

The contemporaneous statement consisted of a series of 29 questions and answers. In the contemporaneous statement, the appellant admitted that the drugs in question belonged to him, identified them as heroin and stated that they were intended for consumption and for sale.³

At the trial, the appellant took issue with the contemporaneous statement in two main respects. First, he alleged that before the commencement of the contemporaneous statement, the recording officer offered an inducement to him by telling him to “make it fast then you go and rest”.⁴ Second, the appellant asserted that he was in a vulnerable mental state during the recording of the contemporaneous statement due to the confluence of three factors:⁵ He had consumed diamorphine that morning and had begun to experience withdrawal symptoms; He was high on methamphetamine having consumed it shortly before the CNB officers entered his room; and He had not slept for three days due to the effects of methamphetamine.

Accordingly, the appellant argued that the contemporaneous statement should be excluded as it was involuntary within the meaning of s 258(3) of the CPC or on the basis of the common law discretion to exclude evidence under the Kadar principles. As a result of the appellant’s challenge to the admission of the contemporaneous statement, an ancillary hearing was convened in accordance with s 279 of the CPC.

We set out below an overview of the key events concerning the appellant’s arrest and the recording of the contemporaneous statement: On 23 June 2016: In the morning, the appellant consumed diamorphine; Shortly before his arrest at 4.45pm, the appellant consumed methamphetamine; At around 4.45pm, the appellant was arrested; and From 5.55pm to 6.27pm, the contemporaneous statement was recorded. On 24 June 2016: At around 4.15pm, before the recording of the cautioned statement, the appellant underwent a pre-statement medical examination by Dr Yak Si Mian (“Dr Yak”). No drug withdrawal symptoms were observed by the doctor; Between 4.50pm and 5.12pm, the cautioned statement was recorded; At around 10.12pm, the appellant underwent his post-statement medical examination by Dr Raymond Lim. No drug withdrawal symptoms were observed by the doctor. On 25 June 2016 at around 4.10pm, the appellant was admitted into the Complex Medical Centre (“CMC”) for drug withdrawal assessment. He was found to be suffering from moderate drug withdrawal symptoms and was warded. In the morning of 28 June 2016, the appellant was discharged from the CMC.

The...