Tan Chuan Ten and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 02 April 1997
• Neutral Citation: [1997] SGCA 16
• Docket Number: Criminal Appeal No 23 of 1996
• Date: 02 April 1997
• Year: 1997
• Published date: 19 September 2003
• Plaintiff Counsel: Sant Singh (Wee Tay & Lim), Laurence Goh Eng Yau (Lawrence Goh Eng Yau & Co) and Gordon Oh (Chor Pee & Co)
• Citation: [1997] SGCA 16
• Defendant Counsel: Arul Selvamalar and Marcus Song (Deputy Public Prosecutors),Surian Sidambaram and Parambir Singh Sekon (KS Chia Gurdeep & Param)
• Court: Court of Appeal (Singapore)
• Subject Matter: s 17 Misuse of Drugs Act (Cap 185),Whether reasonable inference of common intention can be drawn on totality of evidence -Whether defence ought to have been called,Presumption of trafficking,Accused found in possession of drugs,Possession of controlled drugs,Statutory offences,(follow title of statute: eg misuse of drugs act),Common intention with co-accused immaterial,Criminal Law,Controlled drugs,Prima facie case established,Evidence against co-accused of common intention to trafficking wholly circumstantial

The first and second appellants were convicted by the High Court of trafficking in 100 sachets of substance containing a total of 66.42gms of diamorphine at Apartment Block 204 Jurong Street 21, [num ]07-255, Singapore, on 17 January 1996, an offence under s 5(1)(a) read with s 5(2) and punishable under s 33 of the Misuse of Drugs Act (Cap 185) (the Act), and they were sentenced to death. Against their convictions, both the appellants have now appealed.

The facts

The relevant facts which are not in dispute are these. On 17 January 1996 at about 7pm, officers from the Central Narcotics Bureau (CNB) arrested the second appellant, Tong Chee Kong (Tong) whilst he was driving his car No SBY 9666P along Bedok North Avenue 1. A male Chinese passenger in the car was also arrested. Upon the arrest of Tong, the following items were recovered:

(a) cash on his person amounting to $17,418.80;

(b) two Motorola mobilephone Nos 98235797 and 97245149 respectively;

(c) two pagers Nos 96003857 and 94130199 respectively;

(d) a white plastic bag with two empty plastic bags inside on the floor board of the front passenger seat and

(e) his restricted passport which showed that he went to Malaysia on 12 January 1996 and returned on 17 January 1996.

On the same day at about 11.42pm, S/SSG Kanasalingam, Cpl Ey Hock Chin and a party of CNB officers arrested the first appellant, Tan Chuan Ten (Tan) at Apartment Block 204, Jurong East Street 21, [num ]07-255, Singapore 600204. At the time of the arrest, the following items were found in the flat:

(a) a Marlboro cigarette packet containing two sachets of yellow granular substance;

(b) a white plastic bag labelled `Together we care` containing three bundles wrapped with newspaper, and inside each of the bundles were found ten plastic sachets of yellow granular substance;

(c) a blue `SCV` plastic bag containing seven bundles also wrapped with newspaper, and again inside each of the bundles were found ten sachets of yellow granular substance;

(d) a razor blade cutter, a lighter, an empty straw, a bundle of empty plastic bags, a burnt tin foil paper and a roll of tin foil paper;

(e) a pager and

(f) cash amounting to $3,910.

The ten bundles were each wrapped in sheets of newspaper, and all the sheets came from the Straits Times dated 11 January 1996. One fingerprint was lifted from one of the 10 sheets used to wrap the 10 bundles; the fingerprint was found on the inside of the sheet which wrapped the bundle. ASP Lau Yeow Khoon testified that the print was from the left fore finger of Tong. This evidence was not challenged by Tong.

All the granular substances were subsequently analysed and were found to contain diamorphine. The two sachets of granular substance (9.55gms gross) in the Marlboro cigarette packet were found to contain not less than 0.86gms (nett) of diamorphine with a purity content in the region of 9%-10%. The 30 sachets of granular substance (219.2gms gross) found in the three bundles in the white plastic bag contained not less than 19.53gms (nett) of diamorphine with a purity content of 9%-9.10%. The 70 sachets of granular substance (512.0gms gross) found in the seven bundles in the blue plastic bag contained not less than 46.89gms (nett) of diamorphine with a purity content of about 9.3%. The total net diamorphine content of the 100 sachets (from the ten bundles) was 66.42gms (nett), which formed the subject matter of the charge.

After Tan was arrested, a statement was recorded from him by the investigating officer, Inspector William Chew Khai Chow, with the assistance of an interpreter, Wu Nan Yong. In his statement, Tan merely said:

I have nothing to say.

As for Tong, the prosecution sought to admit in evidence a statement recorded from him under s 121 (s 121 statement) of the Criminal Procedure Code (Cap 68) (the Code). The statement was recorded on 27 February 1996 by the investigating officer, Inspector William Chew, with the assistance of the interpreter, Wu Nan Yong. This statement was not challenged by Tong`s counsel and was accordingly admitted in evidence. In addition, a statement was recorded from him under s 122(6) of the Code (s 122(6) statement) and was admitted at the request of the defence.

The relevant portions of the s 121 statement are as follows:

3 The last time I met Ah Ngeow [Tan] was about ten over days before my arrest. I did not meet him on the day of my arrest by CNB officers at Bedok. I contact Ah Ngeow through his handphone no 728????. I also contact Ah Ngeow through his pager no 5001868 without using any code number.

...

5 I met Ah Ngeow about ten over days at the Regent night club in Orchard Road area before my arrest. Both of us had liquor in the night club. We had general conversation and also on horse betting. We went to the night club on our own. I also did not send him in my car after the drinking session.

6 Since that last drinking occasion at the Regent Night Club, I did not see Ah Ngeow because I went to Kuala Lumpur in my car no SBY 9666P. I returned to Singapore on 17 January 1996 and was subsequently arrested. On the day before my arrest, I remember I paged Ah Ngeow. Ah Ngeow returned my call on my handphone no 8235197. I paged him to find out how much was the bill he had paid in our last drinking session at the Regent night club because we used to share the bill. Ah Ngeow told me that he paid over $300 that night. I did not meet Ah Ngeow on the day of my arrest. I still owed him my share of my money of the bill.

7 I did not give any heroin to Ah Ngeow which were found in his flat. I am now informed that my finger print was found on the newspaper wrapping containing the heroin seized from Ah Ngeow. I cannot explain why my fingerprint was found on the newspaper wrapping containing the heroin seized from Ah Ngeow. I do not know why my fingerprint was on the newspaper wrapping.

His s 122(6) statement recorded on 29 March 1996 is as follows:

I did not know that Ah Ngeow is involved in heroin activities. I did not give him any heroin. I always have newspaper in my car and Ah Ngeow has always travelled in my car SBY 9666P. I did not involve in heroin activities. I am a loan shark and a runner for horse betting. I also have my own business. My income from these three sources was more than $15,000 a month. As such I did not have to sell heroin. I am married with a two year son. That is all.

At the commencement of the trial, the charge preferred against both the appellants was that on or about 17 January at about 11.42pm at Apartment Block 204, Jurong East Street 21, [num ]07-255, in furtherance of their common intention, they had in their possession the drugs for the purpose of trafficking and that by virtue of s 5(2) of the Act they committed the offence of trafficking in those drugs. At the close of the case for the prosecution, the charge against them was amended to the effect that they committed the offence between 11 January and 17 January. The purpose of the amendment is clear. While there was incontrovertible evidence that Tan had possession of the drugs in his apartment at about 11.45pm on 17 January 1996 when he was arrested, there was no primary evidence as to the precise date and the approximate time when Tong allegedly delivered the drugs to Tan. The prosecution`s case was that Tong delivered the drugs to Tan and Tan had possession of the drugs at a point of time during the period between 11 January and 17 January 1996.

Prima facie case

As the evidence shows, Tan was found in possession of 66.42g of diamorphine at the time of his arrest. By virtue of s 17 of the Act, he is presumed to have had the diamorphine in his possession for the purpose of trafficking, and by virtue of s 5(2) of the Act, unless the presumption is rebutted, he committed the offence of trafficking in that quantity of diamorphine. Hence, at the close of the prosecution, the trial judge held that a case had been established against Tan which, if unrebutted, would warrant his conviction.

As against Tong, the trial judge also held that a prima facie case had been made out. From the evidence adduced by the prosecution he drew, first, the `tentative` inferences that Tong wrapped the bundle containing ten sachets of diamorphine in the half newspaper sheets, as his fingerprint was found on the inside portion of the wrapping of one of the bundles, and, secondly, as all the bundles were wrapped in half pages of newspapers of the same date as well as in a similar manner Tong `in all probability` also wrapped all of them and delivered them or had them delivered to Tan between 11 January and 17 January 1996, as they were in regular contact with each other. On the basis of these inferences the trial judge held thus:

The Prosecution had prima facie proved that the 100 satches of heroin in the newspaper bundles were received by the first accused and the second accused had delivered them to the first accused. The actual offence constituted by the `criminal act` referred to in s 34 of the Penal Code was possession by the first accused of the heroin for the purpose of trafficking and it was he who committed the said `criminal act`. Section 34 states:

`When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him.`

His intention was to have the heroin for the purpose of trafficking and he trafficked in the same by virtue of the presumption under ss 17(c) and 5(2) of the Misuse of Drugs Act (Cap 185).

Section 34, in the circumstances, rendered the second accused liable for the said `criminal act` as he put the first accused in possession of the heroin pursuant to a pre-arranged plan and concert which acts constituted the common intention.

Accordingly, the Prosecution had proved prima facie that both the accused persons had trafficked in the 100

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