Syed Yasser Arafat bin Shaik Mohamed v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 24 August 2000
• Neutral Citation: [2000] SGCA 46
• Docket Number: Criminal Appeal No 4 of 2000
• Date: 24 August 2000
• Published date: 19 September 2003
• Year: 2000
• Plaintiff Counsel: Amolat Singh (Amolat & Partners) and M Sivakumar (Azman Soh & Murugaiyan)
• Citation: [2000] SGCA 46
• Defendant Counsel: Hay Hung Chun (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether right to draw inference from accused's silence that he is guilty,Presumption of possession for purpose of trafficking,Whether accused had knowledge of drug in his physical possession,Voluntariness,Controlled Drugs,Whether accused had physical possession of drug,Robust questioning,Whether sufficient evidence to call on accused to enter his defence,ss 5, 13 and 17 Misuse of Drugs Act (Cap 185, 1998 Rev Ed),Trials,Accused remaining silent when defence called,Proof of evidence,Criminal Procedure and Sentencing,ss 189 and 196 Criminal Procedure Code (Cap 68, 1985 Rev Ed),Whether statements should be excluded,Trafficking,Admissibility,Criminal Law,s 24 Evidence Act (Cap 97, 1997 Rev Ed),Offences,Threats, inducement or promise,Statements,Evidence,Threats to accused's family members

(delivering the grounds of judgment of the court): The charge against the appellant was possession of controlled drug for the purpose of trafficking. The mainstay of his defence was his challenge to the proof of possession of a haversack that contained the drug. The appellant elected to remain silent and did not call any witnesses for his defence. He was found guilty of the charge, convicted and sentenced accordingly.

At the appeal, counsel for the appellant brought up several interrelated issues pertaining to the proof of possession as well as the admissibility of three long statements that were highly incriminating to the appellant. We unanimously rejected the submissions. We agreed that Justice Rubin`s scrutiny of facts was meticulous and that his findings of facts were amply justified. There was neither strong nor compelling ground, on either law or facts, to justify quashing the conviction.

The facts

The charge was that the appellant trafficked in a controlled drug, by having in his possession five packets of diamorphine weighing 32.27 g nett for the purpose of trafficking, without any authorisation, and had thereby commited an offence under s 5(1)(a) read with s 5(2) and punishable under s 33 of the Misuse of Drugs Act (`MDA`).

The time and location of the arrest, as well as the identities of the parties involved were not challenged. Earlier on the day of arrest, a team of officers from the Central Narcotics Bureau (`CNB`) carried out surveillance on an apartment block at Kallang Bahru (`the Kallang Bahru apartment block`). A Malay male, later identified as Daud, was spotted at the void deck of the Kallang Bahru apartment block. At about the same time, one of the officers noticed a taxi arriving at the entrance of a multi-storeyed car park, next to the Kallang Bahru apartment block. Daud boarded the taxi from the front passenger side, seated himself and waited.

Then, the appellant was spotted at the corner of the corridor on the fifth floor of the Kallang Bahru apartment block. He was seen walking towards the staircase on the corridor of the fifth floor. Shortly after, the appellant emerged at the ground level. He immediately boarded the taxi from the rear left passenger side and occupied the rear left passenger seat.

The taxi driver testified that the appellant had a haversack with him then (`the haversack`). This was confirmed by Daud. Daud testified that, when he turned to the appellant and asked for the taxi`s destination, he noticed that the appellant had the haversack by his side. The appellant told them to proceed to a certain apartment at Yishun (`the Yishun apartment`).

The CNB officers trailed the taxi from Kallang Bahru to Yishun. At a certain junction, the taxi was intercepted by the CNB officers. Daud was arrested at the front passenger seat. The appellant was arrested at the rear passenger seat. The arresting officer, S/SSgt Tan testified that he saw the haversack laid beside the appellant.

At about 5pm, S/SSgt See and his team of officers arrived at the scene to take over the case from S/SSgt Tan and the arresting party. S/SSgt Tan briefed S/SSgt See and pointed out to S/SSgt See the haversack that was still beside the appellant in the taxi.

In the presence of both the appellant and Daud, S/SSgt See proceeded to unzip the haversack and found in it five packets of granular substance. These were later certified to be diamorphine by the Department of Scientific Services (`DSS`). A search was immediately conducted on Daud and the appellant. Amongst other things, a bunch of six keys was found in the appellant`s left trouser pocket.

At about 5.55pm, Insp Soh, with his party of officers arrived at the scene and took over the case from S/SSgt See, who handed over the haversack and the bunch of keys seized from the appellant. Then at about 6.25pm, Insp Soh, S/SSgt See and the team of officers brought along Daud and the appellant, and carried out a raid at the Yishun apartment. The officers used two keys from the bunch of six keys seized from the appellant, to gain entrance.

Both Daud and the appellant were brought into the Yishun apartment. In the ensuing search, some drug-related paraphernalia were found in a cabinet and a wardrobe, in a small room. They were:

- from the left drawer of the cabinet, two boxes of candles;

- from the right drawer of the cabinet:

(a) a plastic container containing numerous empty sachets;

(b) two stained pincers;

(c) a digital weighing scale;

(d) a plastic container containing a bowl with a knife and two spoons;

(e) a box of candles;

(f) a plastic container;

(g) three stacks of envelopes;

(h) empty sachets in a plastic bag; and

- from the right bottom drawer of the wardrobe, a straw of heroin wrapped in tin foil.

Besides certifying that the five packets in the haversack contained a total of 32.27g nett of diamorphine, the DSS also certified that the bowl, two spoons and two of the plastic containers were stained with diamorphine.

The mainstay of the appellant`s defence was his challenge to the evidence of possession of the haversack. At the appeal, counsel for the appellant submitted that the prosecution had not proven beyond reasonable doubt the possession of the haversack by the appellant. It was submitted that there were numerous CNB officers on the specified surveillance mission observing the appellant and they were not merely perchance witnesses.

However, the evidence was clear on this. We will first highlight the relevant pieces of evidence, to demonstrate that there was no break in the chain of evidence showing that the appellant had physical possession of the haversack that contained the drug.

W/Sgt Yap spotted the appellant carrying the haversack as the appellant was walking towards and boarding the taxi at the entrance of the multi-storeyed carpark. This was not challenged by the defence at the trial.

The taxi driver testified that he saw the appellant with a haversack over his back. He even demonstrated to the court the manner in which the appellant carried the haversack.

Daud`s testimony on this confirmed the taxi driver`s testimony. Daud testified that after the appellant boarded the taxi, he turned to the appellant to ask him for the destination. Daud saw that the appellant had the haversack under his right arm. Daud also demonstrated to the court the manner in which the appellant held onto the haversack, and positively identified the haversack. The defence did not contest Daud`s testimony that the appellant had the haversack with him.

S/SSgt Tan, who arrested and handcuffed the appellant, also testified that the haversack was found in the taxi next to the appellant. The defence did not contest S/SSgt Tan`s testimony on this. In fact, the defence appeared to agree with S/SSgt Tan that the haversack was indeed recovered from the appellant in the taxi.

Whatever the contention regarding the surveillance evidence from the CNB officers of the appellant`s activities prior to his boarding the taxi, the indisputable fact was that the appellant brought the haversack with him when he boarded the taxi. This was confirmed by two witnesses, ie Daud and the taxi driver. And none of their testimonies could be faulted.

The appellant failed to successfully challenge this chain of evidence showing him having physical possession of the haversack that contained the drug. However, the presumption under s 17 MDA only arises where possession of the drug (not merely physical possession) has been proven. Many precedents can be found, such as Toh Ah Loh & Anor v R [1949] MLJ 54 , Chan Pean Leon v PP [1956] MLJ 237 , Sukor v PP [1995] 1 SLR 221 , Low Kok Wai v PP [1994] 1 SLR 676 , PP v Wan Yue Kong & Ors [1995] 1 SLR 417 , Lim Lye Huat Benny v PP [1996] 1 SLR 253 , Poh Kay Keong v PP [1996] 1 SLR 209 and Yeo See How v PP [1997] 2 SLR 390 . The prosecution must also show that the appellant had knowledge of the drug in the haversack.

There was ample evidence to show that the appellant did in fact have such knowledge. We would address the evidence from his cautioned statement, the drug-related paraphernalia, the three long statements that revealed much of the appellant`s activities and were highly incriminating to him, as well as his silence when his defence was called. Taking into account all the evidence, we agreed that it was amply justified for the trial judge to have found that possession was proven beyond reasonable doubt, and the presumption of possession for the purpose of trafficking under s 17 MDA was triggered.

Cautioned statement under s 122(6) of the CPC

In the cautioned statement, the appellant simply stated:

I do not know anything about the stuff. That is all.

It was acknowledged by the trial judge. Counsel for the appellant submitted however that the trial judge had erred in law and in fact in failing to adequately consider and give due weight to the appellant`s defence disclosed by this cautioned statement.

In Tan Ah Tee v PP SLR 211 , Wee Chong Jin CJ, stated that:

once the prosecution had proved the fact of physical control or possession or possession of the plastic bag and the circumstances in which

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