Syed Feisal bin Yahya v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Karthigesu J
• Judgment Date: 29 April 1992
• Neutral Citation: [1992] SGCA 28
• Docket Number: Criminal Motion No 71 of 1989
• Date: 29 April 1992
• Published date: 19 September 2003
• Year: 1992
• Plaintiff Counsel: SH Almenoar (Tan Rajah & Cheah)
• Citation: [1992] SGCA 28
• Defendant Counsel: Yang Ing Loong (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: Criminal Law,Words and Phrases,Statutory offences,Furthering or advancing distribution,Meaning of 'transport',Misuse of Drugs Act,Trafficking in controlled drugs,ss 2, 5(a) & 8 Misuse of Drugs Act (Cap 185),Transportation for own consumption not trafficking,Purpose of transportation,'Transport',s 2 Misuse of Drugs Act (Cap 185),Proper test,Whether prosecution to prove that accused intended to part with possession at intended destination,'Traffic'

Cur Adv Vult

The applicant was convicted on a charge of trafficking, by transporting 22.33kg (net) of cannabis from Tuas to an apartment in the development known as Corona Ville, 35 Jalan Haji Alias, under s 5(a) of the Misuse of Drugs Act (Cap 185) (`the Act`).

The facts of the case are as follows. At about 12 noon on 26 August 1987, a party of narcotics officers kept surveillance in the vicinity of Corona Ville. At about 1pm, the applicant and another person, one Rosman, were seen leaving Corona Ville in motor car WX7690 driven by Rosman. The narcotics officers trailed them until the junction of Sixth Avenue and Bukit Timah Road where both vehicles stopped at the traffic lights. The narcotics officers moved in and arrested both the applicant and Rosman. Nothing incriminating was found in the car WX7690. Both of them were then taken back to apartment #01-04 at Corona Ville, where a search was carried out. The apartment was rented in the name of one Rohani bte Sani (`Rohani`), a girlfriend of Rosman. The master bedroom was occupied by the applicant and one Saripah Noraini bte Mohd (`Saripah`). In one of the cupboards in the master bedroom the narcotics officers recovered 14 packages, which were subsequently ascertained to contain 22.33kg of cannabis. Both Rohani and Saripah were then arrested as well.

Subsequently, the applicant made two statements, the first under s 122(6) of the Criminal Procedure Code (Cap 68) (`the CPC`) and the second under s 122(5). Saripah also made a statement under s 122(6). Based on these statements, the applicant and Saripah were jointly charged with the offence set out above. Both challenged the admissibility of these statements in court. The applicant alleged that the s 122(6) statement was inadmissible because a different charge of trafficking from that for which the statement was sought to be admitted was notified to him. He also alleged that he was unwell at the time of the statement because of a migraine and that he had been threatened. The applicant challenged the admissibility of the s 122(5) statement on two grounds: his migraine and that no Malay interpreter had been present. Saripah alleged that her statement was involuntary because she was in fear for her baby`s safety and she had been threatened. Following separate trials-within-a-trial, the district judge found that the applicant and Saripah had voluntarily made those statements and admitted them. In his s 122(6) statement, the applicant said: `The rest of the accused persons did not know that the cannabis were meant for selling. Saripah Noraini only followed me two days ago to collect the cannabis at Tuas.`

In his s 122(5) statement which was made after the s 122(6) statement, the applicant recounted how he and Saripah had gone to Tuas on 24 August 1987 in the car WX7690. At about 5pm, they collected two-and-a-half gunny sacks of cannabis from some Thais who came in a motorized sampan. He transported the cannabis in his car to Corona Ville. There he deposited the cannabis in a cupboard in the master bedroom occupied by them and threw the gunny sacks away. Later that evening, the applicant took some of the cannabis to Upper Boon Keng Road where he sold 700 sticks of it to one Ghani.

Rosman also gave evidence regarding a conversation he had with the applicant who told Rosman about the trip to Tuas and the cannabis kept at Corona Ville. The district judge did not place any reliance on Rosman`s evidence as he decided that it was prudent not to do so, since Rosman was to face a charge in another case and also because he had been one of the occupants in the Corona Ville apartment. In addition, the district judge found the manner in which Rosman gave his evidence to be unsatisfactory.

In his defence, the applicant denied that he made the trip to Tuas on 24 August 1987. This was contradicted by the evidence of Saripah who said that on that day the applicant did bring her to Tuas, allegedly to look at the scenery, and they had stayed there for four hours. She did not, however, admit that any gunny sacks were collected on the trip.

After considering all the evidence, the district judge found that both the applicant and Saripah had transported the cannabis from Tuas to their Corona Ville apartment on 24 August 1987 at about 5pm. He rejected the defence of both accused that they had never transported the cannabis and that they did not know the cannibis was in their bedroom cupboard. The district judge also found that it was clear that both accused intended to sell the cannabis as was done by the applicant on the night of 24 August 1987 as stated above. These findings of the district judge were not challenged in the High Court and the learned judicial commissioner expressly stated that the findings were amply supported by the evidence.

The district court decision

The learned district judge held that the facts found by him did not substantiate the charge of trafficking but only proved possession of the cannabis. He interpreted the verb `transport` in the definition of `traffic` in s 2 of the Act as requiring an intention to part with possession of the cannabis at the intended destination, ie the Corona Ville apartment. In reaching this view, the learned district judge considered the cases of PP v Ong Ah Chuan [1981] 1 MLJ 64 and PP v Lau Chi Sing. [1988] 1 MLJ 383 (HC) [1989] 1 MLJ 5 (CCA) The learned district judge`s opinion is set out in three critical paragraphs:

In all the cases cited, the accused persons were arrested in the midst of transporting. The fundamental requirement was for the prosecution to prove the accused persons intended to part with possession of the drugs to someone at the intended destination. In the instant case, this was clearly not so. The facts clearly showed both accused transported the cannabis to themselves. They moved the drugs to themselves. There was absolutely no evidence that they intended to part with possession to anyone at the Corona Ville apartment. In my view both accused were merely moving possession of the cannabis from one place to another - still retaining possession.

It was clear that both accused intended to sell the cannabis as was done by first accused on the night of 24 August 1987. However, he was not charged for that offence. It seemed to me this was a case of possession for the purpose of trafficking but not trafficking .

It seemed clear to me, therefore, the presumption under s 17 of the Misuse of Drugs Act had been rebutted by the events themselves. Both accused had possession of the cannabis for the purpose of trafficking only. On 24 August 1987 about 5pm they could not be said to have been trafficking in the said controlled drugs.

The emphases are those of the district judge. He accordingly convicted the applicant and Saripah of possession and sentenced them to four and two years` imprisonment respectively.

The High Court decision

The public prosecutor appealed against the decision, but, at the hearing in the High Court, proceeded only against the applicant. The appeal was heard by Chao Hick Tin JC (as he then was), who allowed the appeal and convicted the applicant of trafficking and sentenced him to 20 years` imprisonment and 15 strokes of the cane. [See [1990] 3 MLJ 161 .] Chao Hick Tin JC relied on the same cases as the district judge; save that, by the time of the hearing, the decision in Lau Chi Sing [1988] 1 MLJ 383 (HC) [1989] 1 MLJ 5 (CCA) had been approved by the Court of Criminal Appeal. The difference of view was that the learned judicial commissioner stressed that the crucial element was the intention of the transporter at the time of transportation. Chao Hick Tin JC`s reasoning was as follows [at p 164]:

The fact situation in the present case is of course not the same as in Ong Ah Chuan or Lau Chi Sing. But I think applying the broad principles enunciated in those two cases, what was done here by the first respondent [the applicant] clearly amounted to trafficking. It is not disputed that on 24 August 1987 at 5pm, the first respondent transported the cannabis in question from the beach at Tuas to Corona Ville for the purpose of selling them or promoting their distribution. The quantity which the first respondent transported was very much larger than was likely to be needed for his and/or the second respondent`s [Saripah`s] consumption and the inference is irresistible that he was transporting the cannabis for the purpose of trafficking in them. But that is not all. Not only had the first respondent not offered any explanation for the transportation of that large quantity of cannabis, and not only did he not say that the entire lot of cannabis was for his and/or the second respondent`s own consumption, he had in his own statement very clearly admitted that he was a drug dealer and the cannabis was for sale. The district judge has also found that the drugs were for sale. Even without resorting to the presumption contained in s 17 of the Act, there is ample evidence that the transportation of the cannabis by the first respondent on 24 August 1987 was done with the aim of selling them or promoting their distribution.

In my opinion, on these facts, all the ingredients necessary to constitute the offence of trafficking under s 5 of the Act have been proven. There was transportation and there was the intention to sell. Granted that a person who is charged with trafficking is more likely to be one who is caught in the course of transporting. But there is no reason why a person may not be charged with trafficking if there is evidence of such transportation even though he was not intercepted in the course of transporting but after the drugs have been moved to another place to facilitate sale or distribution. To hold otherwise would mean that if the first respondent were intercepted anywhere on the journey before he reached Corona Ville, an offence of trafficking would be established; but it would not be established if the...