Tan Ah Tee and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 10 October 1979
• Date: 10 October 1979
• Docket Number: Criminal Appeal No 12
• Court: Court of Appeal (Singapore)

Tan Ah Tee and another

Plaintiff

and

Public Prosecutor

Defendant

[1979] SGCA 18

Wee Chong Jin CJ

,

T Kulasekaram J

and

F A Chua J

Criminal Appeal No 12 of 1978

Court of Criminal Appeal

Criminal Law–Statutory offences–Misuse of Drugs Act 1973 (Act 5 of 1973)–Trafficking in controlled drugs–Lack of authorisation–Rebuttal of presumption–Possession of contents of package–Criminal Procedure and Sentencing–Trials–Burden on Prosecution–Proof of elements–Exception to general rule–Specified circumstances or classes–Evidence–Proof of evidence–Presumptions–Trafficking in controlled drugs–Lack of authorisation–Burden of proof

The two appellants were convicted on a joint charge of trafficking in a controlled drug in furtherance of their common intention. They appealed contending that the Prosecution failed to show that they were not authorised under the Misuse of Drugs Act 1973 (Act 5 of 1973) (“the Act”) to traffic in the controlled drug. The second appellant also contended that she had rebutted the presumption that she knew the contents of a plastic bag contained the controlled drug.

Held, dismissing the appeals:

(1) The exception to the rule that the Prosecution must prove every element of the charge is limited to offences under enactments which properly construed prohibit the doing of an act except for specified circumstances or by persons belonging to specified classes or with special qualifications or with the licence or permission of specified authorities: at [13] and [14].

(2) As s 3 of the Act prohibits trafficking in a controlled drug except in specified circumstances, the Prosecution did not have to prove a prima facie case of lack of authorisation. Each appellant had to prove that he was authorised to do the prohibited act: at [15].

(3) It was unnecessary for the Prosecution to rely on s 106 of the Evidence Act (Cap 5, 1970 Rev Ed) to prove lack of authorisation. Even if there were no statutory presumptions against the accused under the Act, once the Prosecution has proven the fact of physical control or possession of a bag and the circumstances in which it was acquired and remained in possession, a trial judge would be justified in finding that the accused had possession of the contents, unless an explanation was given which was accepted or raised a doubt as to possession: at [15] and [19].

(4) Under the Act, the burden rests on the person in possession to prove on a balance of probabilities that he did not know the nature of the contents of the package: at [25].

Attygalle v R [1936] AC 338; [1936] 2 All ER 116 (distd)

Jayasena v R [1970] AC 618; [1970] 1 All ER 219 (refd)

R v Edwards [1975] QB 27 (folld)

R v Stone (1801) 1 East 639; 102 ER 247 (refd)

Seneviratne v R [1936] 3 All ER 36 (distd)

Warner v Metropolitan Police Commissioner [1969] 2 AC 256 (folld)

Evidence Act (Cap 5, 1970 Rev Ed) s 106

Misuse of Drugs Act 1973 (Act 5 of 1973) ss 2, 3 (a), 16, 29

Penal Code (Cap 103, 1970 Rev Ed) s 34

Drugs (Prevention of Misuse) Act 1964 (c 64) (UK)

Tan Chor Yong (J Tan Chor-Yong & Co) for the first appellant

Francis T Seow and Aisha Alkaff (Francis T Seow) for the second appellant

Glenn Knight (Deputy Public Prosecutor) for the respondent.

Judgment reserved.

Wee Chong Jin CJ

(delivering the judgment of the court):

1 At about 10.15am on 3 September 1976 two narcotics officers, Teo and Cheong kept observation on a car with a Malaysian registration number BM 8854 which was parked near Block A of Far East Mansions, Kim Yam Road, Singapore. About ten minutes later the two officers saw a man, Tan Ah Tee and a woman, Low Hong Eng, emerging from Block A and walking towards the parked car. Tan Ah Tee was carrying a plastic bag. On reaching the car Tan Ah Tee handed the plastic bag to Low Hong Eng and unlocked the front passenger seat door. Low Hong Eng occupied the front passenger seat and Tan Ah Tee the driver's seat. The car proceeded from Kim Yam Road, with the two narcotics officers following it on a motorcycle, into River Valley Road, Tank Road, Clemenceau Avenue, Cavenagh Road, Kampong Java Road, Hampshire Road, Race Course Road, Kerbau Road, Upper Dickson Road to Dickson Road where it stopped.

2 Low Hong Eng alighted from the car carrying the plastic bag. Cheong went up to her, identified himself and asked her what was in the plastic bag she was carrying. She looked stunned and dropped the plastic bag. Cheong seized the plastic bag and after a violent struggle arrested her. Tan Ah Tee was arrested by Teo. The plastic bag was examined by Teo and found to contain three polythene bags wrapped in newsprint. The contents of the three polythene bags, on examination were brownish solids which Teo suspected to be diamorphine. Tan Ah Tee and Low Hong Eng were subsequently taken to the Central Narcotics Bureau where on the same day they made cautioned statements to Senior Narcotics Officer Lee Tai Huat.

3 In his cautioned statement Tan Ah Tee said:

On 3 September 1976 at 9.30am I went to Ah Pui's house at Blk A, 18-G, Kim Yam Road, as this was arranged on the previous day. On my arrival at the house, Ah Pui handed over to me a plastic bag and I knew its contents were heroin and I was told that a female Chinese was waiting for me downstairs to accompany me to do delivery of the drug. I further received instruction from Ah Pui to hand over the plastic bag to the female Chinese and to send her home at Jalan Besar area. I left there with the female Chinese in my motor car BM 8854. The female Chinese all the way directed me down to Dickson Road. There she told me to stop and she got down from the car. She collected the plastic bag containing heroin from the car and walked away with it. This female was arrested and was taken to CNB together with me. The plastic bag seized by the officers was the one I handed to her while we were on our way down to Dickson Road.

4 In her cautioned statement Low Hong Eng said:

On 3 September 1976 at 9.30am. I received a telephone call from a female voice who identified herself to be the wife of Ah Pui. Ah Pui was introduced to me by Ah Chen about one month ago. The caller requested to see me at the cooked food stalls opposite Kandang Kerbau Hospital. I took a taxi to the place. On my arrival at the food stalls opposite the hospital I saw Ah Pui standing on the roadside. I did not see any female Chinese there. Ah Pui came up to me and requested me to help him to deliver something to his friend. He then hailed a taxi and we boarded it. The taxi stopped at a place where there were flats. We got down from the taxi and Ah Pui told me to wait for him at the foot of one of the flats. Ah Pui went away from there by foot. A short while later, a male Chinese approached me there and said that he was sent by Ah Pui to accompany me to deliver the thing. I saw him carrying only a plastic bag. This male Chinese then brought me into a motor car that was parked in the car park nearby. He then drove the car down to Dickson Road. He stopped the car and handed over a plastic bag to me. I took over the plastic bag and alighted from the car. While I was carrying the plastic bag, I was detained by a male Chinese who identified himself as CNB officer. The officer checked the contents of the plastic bag and informed me that I had heroin inside the bag. The male Chinese who handed me the plastic bag with its contents was also arrested somewhere there. The plastic bag with its contents belonged to him. Before I was detained by the officer, the male Chinese told me he would pay me $100 for my service for carrying the plastic bag. I also received instruction from this male Chinese that someone would come to collect the plastic bag from me. The male Chinese and myself were taken...