Tan Ah Lay v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 06 July 1994
• Neutral Citation: [1994] SGCA 90
• Published date: 06 December 2012
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Tham Kok Leong
• Defendant Counsel: Wong Keen Onn (Deputy Public Prosecutor)

JUDGMENT:

Grounds of Judgment

The appellant, Tan Ah Lay, was convicted and sentenced to suffer death on a charge of trafficking by transporting not less than 38.5g of diamorphine, an offence under s 5(a) and punishable under s 33 of the Misuse of Drugs Act (the Act). We dismissed the appeal of the appellant against his conviction at the end of the hearing without finding it necessary to hear the learned deputy public prosecutor. We now give our reasons.

On 24 May 1988, acting on information received, a team of officers from the Central Narcotics Bureau (the CNB) kept watch at the President Merlin Hotel (the Hotel) at Kitchener Road on the appellant and his motorcar, registration number EY 8049S (the car). Two members of the surveillance team, namely Chew Khai Chow (Chew) and Tai Kwong Yong (Tai) positioned themselves in the lobby of the Hotel. At about 10.45am, the appellant came out of a lift, approached the reception counter for a short while and then retook the lift. At about 11.00am, the appellant came out of a lift again. This time he was accompanied by three persons namely one Ng Ah Chew (Ng), one Yeo Geok Soo (Yeo) and a Thai woman, Oi Thong Anu (Oi).

It transpired that earlier in the morning, the appellant had arranged with Ng and Yeo to go to the Beauty World Centre (the Centre) along Upper Bukit Timah Road to have their hair washed. Ng and Yeo went along to room 718, shared by the appellant and Oi, to meet them. Shortly after Ng and Yeo arrived at room 718, the appellant left the room to go upstairs to another room 1116 to get some clothing which was to be sent to the laundry. When he returned, he was carrying a white plastic bag (the plastic bag). The appellant did not enter the room but waited in the corridor for the rest. Together, they took the lift to the lobby. Inside the lift, the appellant handed the plastic bag to Oi.

After coming out of the lift, Oi walked straight to the front entrance of the Hotel with the plastic bag. Meanwhile, the appellant, Ng and Yeo went to the reception counter. A few minutes later, the three men proceeded to the front entrance where Oi was waiting. There was a slight drizzle at that time. The appellant walked to his parked car and drove it to the covered porch to let the three passengers board the car. Ng and Yeo took the rear seats whilst Oi sat in the front passenger seat. The plastic bag was placed on the floor board of the front passenger seat.

The appellant drove off to the Centre, trailed by the surveillance officers on motorcycles. At the third deck of the multi-storey carpark at the Centre, the appellant stopped to give way to another vehicle. At this juncture, two of the officers Lim Chei Yoo (Lim) and Tan Lye Huat (Tan) rushed in to effect arrest. Before Lim arrested the appellant, he identified himself as a government official. After he handcuffed the appellant, he said he was from the CNB and was looking for drugs. He asked the appellant to surrender any drugs in his possession. The appellant replied that someone had given him a packet which was in the plastic bag. Simultaneously, the appellant used both his handcuffed hands to point to the plastic bag lying on the floor board of the front passenger seat. The plastic bag was examined by Tan. It contained some items of clothing and a bundle wrapped in newspapers. At the trial, the appellant said that the statement and the gesture were not made by him. The trial judge accepted the evidence of Tan and Lim as a true account of what happened at the scene of arrest. On appeal, the same contention was raised before us by the appellant. We accepted the trial judge's finding that the statement and the gesture were made by the appellant.

Following the arrest, the appellant and the other three were brought back to the CNB headquarters. The bundle wrapped in newspapers found in the plastic bag was unwrapped to reveal a big packet and two small sachets containing a brown, granular substance. On 25 May 1988, the big packet containing the brown, granular substance was sent to the Department of Scientific Services (the DSS) for analysis. According to Dr Saw Chwee Guan from the DSS, the substance was duly analysed and found to contain, in total, not less than 38.5g of diamorphine.

In the afternoon of 24 May 1988, the CNB officers returned to the Hotel to conduct a search of some of the rooms. From room 718, which was previously occupied by the appellant and Oi, the officers conducting the search found and seized, amongst other things:

i) the Hotel's key cards, used for identification and collection of room keys for both rooms 718 and 1116;

ii) the Hotel's official receipts for rooms 718 and 1116.

In the course of the search, a black briefcase (the briefcase) was seen in room 1116 by Wong Wah Yan (Wong), another CNB officer. He did not seize the briefcase because he did not know at that time who the occupant of the room was. However, he arrested Song Wan Gee (Song) who was loitering outside room 1116.

We now set out the material evidence in dispute on appeal. According to Ng and Yeo, on the morning of 24 May 1988, Oi was not carrying anything with her when she left room 718. She was handed the plastic bag in the lift. At the reception desk, Ng saw the appellant returning a key. As Oi boarded the car, she handed the plastic bag to the appellant who placed it on the floor board in front of the seat. Both of them said they had not seen the bundle containing the drugs before the incident.

Next, we turn to the evidence of a key witness, Song. Song was introduced to the appellant by one Ah Chwee in December 1987. They had all stayed in room 1116 at one time or another in May 1988. He stayed in room 1116 on 23 and 24 May 1988 and had been there for the past two weeks. He was not the registered guest of room 1116. The appellant, Ah Chwee and he were able to obtain the key from the reception. Often, the appellant, Ah Chwee or he would take their laundry to a shop along Bukit Timah Road to be washed. However, he said that none of the items of clothing in the plastic bag belonged to him.

The briefcase was kept in room 1116 and had a combination lock. The combination number was known to both the appellant and Ah Chwee. Drugs were kept in the briefcase. On 23 May 1988, there was a big packet containing one pound of heroin in the briefcase. All the heroin belonged to the appellant. Song took out half a pound and repacked it into over 20 sachets. Sometimes, all three of them would repack the drugs together. He delivered 20 sachets to a customer leaving three small sachets in the briefcase. On the morning of 24 May 1988, he opened the briefcase and found that the big packet and two small sachets were missing. Any one of the three of them could have taken the drugs to deliver to customers. Later on the same day, he was arrested outside room 1116. After his release, he returned to the Hotel on 25 May 1988, and went to the Hotel's storeroom to claim his personal belongings. He also collected the briefcase. By then, there was only one small sachet and a small daching inside it. Out of fear, he threw away both items. He surrendered the briefcase to Lim on 11 July 1988.

Finally, we refer to two statements made by the appellant which were admitted into evidence at the conclusion of a trial- within-a-trial by the trial judge. These were a statement made on 28 May 1988 (Exh P36) and another made on 22 July 1988 (Exh P40). The material portions of the admitted statements are produced:

That night at about 10.00pm Kim Boo paged me. I returned him a call and he told me that he wanted to collect the heroin from me. He then made appointment to meet me the next day at noon in front of Court Home Furniture Building at Bukit Timah Road 7 m.s.

On 24.5.88 ... At about 10.45am, Ah Ng and Ah Tow came to my room 718 and I was bathing. After I had dressed up I told them that I wanted to collect some clothing from my friends upstairs to send it to laundry for washing. I then went to the lobby and collected room key number 1116 from an Indian lady at the receptionist counter and went to room 1116. In the room 1116, I opened my suitcase and took out the remaining 1 bundle of heroin and put it inside a plastic bag. This white plastic bag with pink designs was taken out by me from the cabinet inside the room 1116. When I first saw this plastic bag there were clothing inside it. I took out the plastic bag and hid the bundle of heroin underneath the clothing. I then carried the plastic bag and went back to my room 718 where Ah Ng, Ah Tow and Ah Oi were waiting for my return. When I returned to the room 718, Ah Ng opened the door for me. I remained at the door step and asked him to leave for Beauty World Centre. The four of us took the lift from the 7th floor of President Merlin Hotel. In the lift, I asked Ah Oi to carry the plastic bag for me because I was going to return the key of room 1116 ...

... Before Ah Oi boarded the car, she handed the plastic bag to me and placed it on the floor board in front of the front passenger seat. I then drove off my car to Beauty World Centre's multi-storey car park ... Suddenly I saw a motor cycle stopped in front of my car and the pillion rider alighted from the bike and came to my car. He opened the door of the front passenger seat and handcuffed one of my hand. The rider of the motor cycle came to open the door on my side. He then identified himself as Narcotics Officer ... The officer then told me that he was looking for drug and asked me to surrender if I have any drug in the car. After a short while, I told the officer that a friend gave me a bundle which was kept inside the plastic bag ... The officer then started to examine the plastic bag. The plastic bag was placed back at the floor board in front of the front passenger seat ... (Exh P36)

I am now shown a black "Diplomat" label briefcase and I confirmed that it was the briefcase I used to keep my heroin. (Recorder's Notes - I showed a...