Tan Chin Hock v Public Prosecutor

• Jurisdiction: Singapore
• Court: Court of Appeal (Singapore)
• Judge: Chan Sek Keong CJ
• Judgment Date: 16 December 2010
• Neutral Citation: [2010] SGCA 49
• Citation: [2010] SGCA 49
• Defendant Counsel: Lee Sing Lit, Pao Pei Yu Peggy and Chan Huseh Mei Agnes (Attorney-General's Chambers)
• Published date: 22 December 2010
• Plaintiff Counsel: James Bahadur Masih (James Masih & Co) and Ong Cheong Wei (Ong Cheong Wei & Co)
• Hearing Date: 17 August 2010
• Docket Number: Criminal Appeal No 18 of 2009
• Date: 16 December 2010
• Subject Matter: Presumptions,Criminal Law,Statutory Offences,Evidence,Misuse of Drugs Act,Proof of Evidence

Chan Sek Keong CJ (delivering the grounds of decision of the court): Introduction

The appellant, Tan Chin Hock, was convicted by a High Court judge (“the trial judge”) of having in his possession 64.34g of diamorphine for the purposes of trafficking, an offence under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”) and punishable under s 33 of the MDA (see Public Prosecutor v Tan Chin Hock [2009] SGHC 189 (“the GD”)).

The appellant appealed against the trial judge’s decision. At the conclusion of the hearing of the appeal, we dismissed the appeal as there was, in our view, no reasonable doubt that the appellant was guilty of the offence which he was convicted of. We also said that we would give our reasons for dismissing the appeal; we now set out those reasons.

Background facts

The findings of fact of the trial judge are set out succinctly at [2]–[4] of the GD, which are reproduced below: 2 The evidence showed that the [appellant] was arrested at 9.45am on 28 March 2008 when officers of the Central Narcotics Bureau (“CNB”) entered his flat and broke into his room. He was found holding a maroon coloured bag in which the CNB officers found 36 packets of white substance subsequently ascertained to be heroin. More heroin was found elsewhere in his room[,] … the aggregate of which formed the subject matter of the first charge [this was also the sole charge which the Prosecution proceeded with at the trial]. The CNB officers also found drug trafficking materials, namely, a weighing scale, a pair of scissors and some small plastic sachets. Several other persons were also arrested at about the same time. They were later ascertained not to be concerned with the charges involving the accused. 3 The prosecution also adduced seven statements made by the [appellant] in which he gave detailed accounts of how he came to be staying at the flat, and how he came into the business of drug trafficking. These included details of his own addiction, how he was introduced to his supplier, and also the persons to whom he delivered drugs to. He obtained his supply from a Malaysian man known to him only as “Ah Seng”. He started delivering drugs for Ah Seng in February 2008. The drugs would be sent by courier to the car park near Blk 322, Ubi Avenue 1. Ah Seng would send heroin, Ecstasy tablets, Ice, and Erimin-5, all wrapped in black tape. Ah Seng would notify the [appellant] whenever anyone wanted to take delivery. The [appellant] would then follow Ah Seng’s instructions to make the delivery and collect payment on his behalf. He was paid $150 for each delivery he made. He made about 7 or 8 deliveries a week. He admitted that he had just collected a batch of drugs from Ah Seng’s courier on the morning of the day of his arrest. The drugs were meant to be collected from him sometime later but no instructions had been received at the time. The [appellant] merely checked the bundles and weighed them as instructed. 4 The [appellant] did not challenge any of the evidence[,] having instructed his counsel that he would plead guilty to the charge. At the close of the prosecution’s case, counsel declined to make any submission. I then called upon the defence and the [appellant] elected to remain silent. His counsel again declined to make any submission. On the evidence, I was satisfied that the prosecution had proved its case beyond reasonable doubt and I thus convicted the [appellant] and sentenced him to death.

On appeal, the appellant did not dispute the trial judge’s findings of fact and also did not dispute that he had elected to remain silent when his defence was called. Although the trial judge did not, in the GD, refer specifically to the evidence led by the Prosecution on the scientific analysis carried out on the “36 packets of white substance” (see [2] of the GD) found in the possession of the appellant at the time of his arrest (“the White Substance”), the record of proceedings showed that the Prosecution produced 22 certificates of analysis issued under s 16 of the MDA as proof of the type and the quantity of controlled drug contained in the White Substance. For convenience, we shall hereafter refer to these 22 certificates collectively as “P67–P88”, and to a certificate issued under s 16 of the MDA as a “s 16 MDA certificate”. A prosecution witness, Ms Lim Jong Lee Wendy (“PW5”), an analyst employed by the Health Sciences Authority (“HSA”), testified that P67–P88 were signed by her.

At the trial, the appellant did not challenge the validity of P67–P88. On appeal to this court, however, the appellant mounted such a challenge on the ground that PW5 had not explained precisely the steps taken to test the White Substance. It was argued that as a result of PW5’s failure in this regard, the Prosecution had failed to comply with the requirements of the law (as understood by the appellant (see further [17]–[19] below)) and, consequently, the Prosecution had not proved beyond reasonable doubt the type and the quantity of controlled drug contained in the White Substance. In essence, the appellant’s case before this court was that it was unsafe for the court to rely on P67–P88 as presumptive proof of the type and the quantity of controlled drug contained in the White Substance because:¹

[T]here is no evidence whatever as to who conducted the laboratory tests on the [White Substance] or what method was used or in any event how the tests were done. We [have] not [been] made aware whether [it was] the Analyst herself, PW5, who did the tests or whether it was someone else. We do not even have any evidence on record whether PW5 supervised the testing of the [White Substance].

The appellant’s argument as outlined above was based on certain observations made by the judge who heard the magistrate’s appeal in Lim Boon Keong v Public Prosecutor [2010] 4 SLR 451 (“Lim Boon Keong”). We rejected the argument and dismissed the appeal.

The decision in Lim Boon Keong

To better understand the appellant’s case before this court, which (as just mentioned) hinged upon certain obiter dicta of the judge in Lim Boon Keong (“the MA judge”), we shall first discuss that case.

The accused in Lim Boon Keong (“Lim”) was convicted in the District Court of the offence under s 8(b)(ii) of the MDA of unauthorised consumption of a specified drug listed in the Fourth Schedule to the MDA, namely, norketamine (see Public Prosecutor v Lim Boon Keong [2009] SGDC 511). The district judge who heard the trial (“the District Judge”) found that the procedure set out in s 31(4)(b) of the MDA for testing Lim’s urine sample for the presence of norketamine had been complied with, and, thus, the presumption under s 22 of the MDA (“the s 22 MDA presumption”) that Lim had consumed norketamine was applicable. In convicting Lim, the District Judge admitted in evidence, inter alia, a s 16 MDA certificate signed by Ms Kuan Soo Yan, an analyst employed by HSA at the material time (“Ms Kuan’s s 16 MDA certificate”), as prima facie evidence of the matters stated therein (eg, the type and the quantity of specified drug found in Lim’s urine sample).

On appeal to the High Court, the Prosecution withdrew its reliance on Ms Kuan’s s 16 MDA certificate and the s 22 MDA presumption, with the result that the Prosecution had no evidence against Lim on the offence charged, except for the confession given in his cautioned statement recorded on 20 March 2008 under s 122(6) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“the CPC”). That confession (“the s 122(6) confession”) was as follows:

I admit to my guilt and hope for a lighter sentence. I am married with 3 kids and I hope that I can be given a chance. I also have aged parents whom I visit often because my mother has difficulty walking.

The Prosecution argued that the s 122(6) confession by Lim and his decision to remain silent when his defence was called were, taken together, sufficient evidence to convict Lim of the offence charged. The MA judge disagreed and held that those two factors were not sufficient to prove beyond reasonable doubt that Lim knew that the substance consumed by him was, in fact, norketamine, given the assertion in his long statement recorded pursuant to s 121 of the CPC that he did not know he had consumed norketamine as he had only “mistakenly [taken] a few sips of water from a glass on the table in the Geylang premises where he was arrested” (see Lim Boon Keong at [63]).

The MA judge held that there was no evidence that Lim was capable of identifying norketamine as his previous convictions for the offence of unauthorised drug consumption under s 8 of the MDA (“the offence of drug consumption”) related to other drugs, such as ketamine or nimetazepam, but not norketamine, and no evidence was led by the Prosecution to show that ketamine and nimetazepam were similar to norketamine. The MA judge also noted that Lim had made the s 122(6) confession to the investigating officer only when he was informed by the latter that norketamine had been found in his urine sample after tests done by HSA. The MA judge found it “curious that [Lim had] confessed his guilt in the course of being cautioned, the whole purpose of which [was] for him to state any defence he might have” (see Lim Boon Keong at [63]). Given those circumstances, the MA judge held that it would not be safe to draw, based on Lim’s silence at the trial, any adverse inference as to Lim’s knowledge of or familiarity with norketamine. He was also not prepared to hold that Lim had sufficient knowledge of and familiarity with norketamine such that the s 122(6) confession was proof beyond reasonable doubt that Lim had in fact consumed norketamine.

We do not propose to comment on the merits of the actual decision in Lim Boon Keong as it is not relevant to the issue in this appeal. What is relevant, instead, is the appellant’s reliance on the MA judge’s observations on s...