Tan Kheng Chun Ray v PP

• Jurisdiction: Singapore
• Judgment Date: 03 February 2012
• Date: 03 February 2012
• Docket Number: Criminal Appeal No 3 of 2011
• Court: Court of Appeal (Singapore)

Tan Kheng Chun Ray

Plaintiff

and

Public Prosecutor

Defendant

[2012] SGCA 10

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

Choo Han Teck J

Criminal Appeal No 3 of 2011

Court of Appeal

Criminal Law—Statutory offences—Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal Procedure and Sentencing—One transaction rule—Appellant faced, inter alia, two charges for importing diamorphine and methamphetamine into Singapore—Whether sentences in respect of both charges should be served concurrently or consecutively

On 10 October 2009, at approximately 11:45 pm, the appellant (‘the Appellant’) drove his motor car alone into Singapore via the Woodlands Checkpoint. The Appellant was directed by an officer of the Immigration and Checkpoints Authority (‘ICA’) to Lane 6 of the Arrival Car Green Channel Zone for an inspection.

During the inspection, the ICA officer discovered a box of tissues containing glassware and pipes. The ICA officers then activated officers of the Central Narcotics Bureau (‘CNB’) for assistance. Upon inspection by the CNB officers, two plastic bags containing packets of granular/powdery substances were found in addition to one black pouch containing two packets of crystalline substance, a glass tube, a glass pipe and a straw. The items were seized by the CNB officers and the Appellant was placed under arrest. Analysis of the aforesaid items seized from the Appellant during his arrest at the Woodlands Checkpoint revealed the following contents: 30.91g of diamorphine; 1.12g of methamphetamine; and two sets of utensils intended to be used for consumption of drugs. These exhibits formed the subject matter of four charges: a charge under section 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘the Act’) for importation of not less than 14.99g of diamorphine (‘First Charge’); a charge under s 7 of the Act for importation of not less than 1.12g of methamphetamine (‘Second Charge’); one charge under s 9 of the Act for possession of utensils intended for the consumption of methamphetamine (‘Fourth Charge’) and one charge under s 9 for possession of utensils intended for the consumption of controlled drugs (‘Fifth Charge’).

After his arrest, the Appellant was accompanied by CNB officers to his residence. Upon searching the residence, three tablets (which were subsequently analysed and found to contain nimetazepam) and one glassware with two inserts (which was subsequently analysed and found to be stained with methamphetamine) were found. The Appellant was also subject to a urine test which revealed that he had consumed methamphetamine. From this set of facts, the appellant was charged with three separate offences: a charge under s 8 (b) (ii) of the Act for consumption of methamphetamine (‘Third Charge’), a charge under s 9 of the Act for possessing utensils intended for the consumption of methamphetamine (‘Sixth Charge’), and a charge under s 8 (a)of the Act for possessing nimetazepam - a controlled drug specified in Class 'C' of the First Schedule to the Act (‘Seventh Charge’).

The Appellant pleaded guilty to all seven charges before the High Court judge (‘the Judge’) in the court below. The Judge sentenced the Appellant to a total of 27 years' imprisonment with 20 strokes of the cane. In arriving at this decision, the Judge ordered the sentences in respect the First and Second charges to be served consecutively pursuant to s 18 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed (see now s 307 of the Criminal Procedure Code 2010 (Act 15 of 2010)), with the sentences in respect of the remaining charges to run concurrently.

Held, allowing the appeal and reducing the total sentence to 22 years and eight months' imprisonment with 20 strokes of the cane.

(1) The one-transaction rule required that where multiple offences were committed within the course of a single transaction, all sentences in respect of those offences should be ordered to be served concurrently: at [13] and [14].

(2) The one-transaction rule was not meant to be an inflexible rule which inhibited the imposition of deterrent consecutive sentences when appropriate: at [16].

(3) The one-transaction rule applied in respect of the First and Second charges as the offences underlying these charges were committed in one instance in so far as the Appellant had imported both the diamorphine and methamphetamine into Singapore at the same time via the same modus by transporting them in his vehicle: at [18].

(4) In view of the significant distinguishing factors between the present case and the precedents cited by the Prosecution, there were no significant aggravating factors in the present case which warranted the imposition of consecutive sentences in respect of the First and Second charges, the sentences in respect of the First and Second charges were ordered to be served concurrently: at [21] to [23].

Fricker Oliver v PP [2011] 1 SLR 84 (refd)

Meeran bin Mydin v PP [1998] 1 SLR (R) 522; [1998] 2 SLR 522 (refd)

PP v Firdaus bin Abdullah [2010] 3 SLR 225 (refd)

PP v Irzan Azhar bin Mohd Rozi Criminal Case No 22 of 2008 (refd)

PP v Law Aik Meng [2007] 2 SLR (R) 814; [2007] 2 SLR 814 (refd)

PP v Ng Teng Kian Criminal Case No 5 of 2010 (refd)

PP v Tan Kiam Peng [2007] 1 SLR (R) 522; [2007] 1 SLR 522 (refd)

PP v UI [2008] 4 SLR (R) 500; [2008] 4 SLR 500 (refd)

Tan Kiam Peng v PP [2008] 1 SLR (R) 1; [2008] 1 SLR 1 (refd)

Zhao Zhipeng v PP [2008] 4 SLR (R) 879; [2008] 4 SLR 879 (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 18

Criminal Procedure Code 2010 (Act 15 of 2010) s 307

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) ss 7, 8 (a) , 8 (b) (ii) , 8 A, 9,33

Subhas Anandan and Sunil Sudheesan (RHT Law LLP) for the appellant

Anandan Bala and Kathryn Thong (Attorney-General's Chambers) for the respondent.

Andrew Phang Boon Leong JA

(delivering the grounds of decision of the court):

Introduction

1 This was an appeal against the sentence imposed by the High Court judge (‘the Judge’) inPP v Tan Kheng Chun Ray [2011] SGHC 183 (‘the GD’). The appellant (‘the Appellant’) pleaded guilty to seven charges under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘the Act’). The charges, as well as the sentences meted out by the Judge in respect of each charge (which have been placed in parentheses), were as follows:

First Charge(22 years' imprisonment and 15 strokes of the cane)

That you, Tan Kheng Chun Ray, on the 10^thday of October 2009 at about 11.45 p.m., at the Woodlands Checkpoint Arrival Car Green Channel, Singapore, did import into Singapore a controlled drug specified in Class 'A' of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, four (04) packets of granular/powdery substance containing not less than 14.99 grams of Diamorphine, without any authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under section 7 and punishable under section 33 of the Misuse of Drugs Act, Chapter 185.

Second Charge(5 years' imprisonment and 5 strokes of the cane)

That you, Tan Kheng Chun Ray, on the 10^thday of October 2009 at about 11.45 p.m., at the Woodlands Checkpoint Arrival Car Green Channel, Singapore, did import into Singapore a controlled drug specified in Class 'A' of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, two (02) packets of crystalline substance containing not less than 1.12 grams of Methamphetamine, without any authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under section 7 and punishable under section 33 of the Misuse of Drugs Act, Chapter 185.

Third Charge(8 months' imprisonment)

That you, Tan Kheng Chun Ray, sometime on the 10^thday of October 2009, in Malaysia, did consume a Specified Drug listed in the Fourth Schedule to the Misuse of Drugs Act, Chapter 185, to wit, Methamphetamine, without any authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under section 8 (b) (ii) read with section 8 A and punishable under section 33 of the Misuse of Drugs Act, Chapter 185.

Fourth Charge(3 months' imprisonment)

That you, Tan Kheng Chun Ray, on the 10^thday of October 2009 at about 11.45 p.m., at the Woodlands Checkpoint Arrival Car Green Channel, Singapore, did have in your possession utensils intended for the consumption of a controlled drug, to wit, one (01) glass tube, one (01) empty glassware with one (01) insert and one (01) glass pipe, and one (01) empty straw which were found to be stained with Methamphetamine, without any authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under section 9 and punishable under section 33 of the Misuse of Drugs Act, Chapter 185.

Fifth Charge(3 months' imprisonment)

That you, Tan Kheng Chun Ray, on the 10^thday of October 2009 at about 11.45 p.m., at the Woodlands Checkpoint...