Public Prosecutor v Tan Kiam Peng

• Jurisdiction: Singapore
• Judge: V K Rajah J
• Judgment Date: 29 November 2006
• Neutral Citation: [2006] SGHC 207
• Date: 29 November 2006
• Subject Matter: Misuse of Drugs Act,Illegally importing controlled drug,Section 18(2) Misuse of Drugs Act (Cap 185, 2001 Rev Ed),Statutory offences,Presumption of knowledge of nature of controlled drug applying,Defence arguing accused having no knowledge he was importing heroin,Accused arrested at customs clearance point with heroin strapped to his body,Whether presumption of knowledge rebutted,Distinction between recklessness and negligence on one hand and actual knowledge or wilful blindness on other,Possession of controlled drug not in dispute,Criminal Law
• Docket Number: Criminal Case No 13 of 2006
• Published date: 30 November 2006
• Defendant Counsel: B Rengarajoo (B Rengarajoo & Associates) and Ong Peng Boon (Ong & Co)
• Court: High Court (Singapore)
• Plaintiff Counsel: Christopher Ong Siu Jin and Ong Luan Tze (Deputy Public Prosecutors)

29 November 2006

V K Rajah J:

1 Life, it may seem at first blush, has dealt a poor hand to the accused, Tan Kiam Peng (“Tan”). 46 years of age, he is unmarried and lived alone in a HDB flat until his arrest. Known to his friends as “Pui Kia” (“Fatty” in colloquial Hokkien) because he is on the heavy side, he held a job as a tipper truck driver until he met with an accident. Because he lost that job, he was unable to repay debts that had accumulated. His utility bills and housing loan instalments also fell into arrears. By August 2005, these debts exceeded $8,000. Tan repeatedly attempted to seek full-time employment but only managed to secure a temporary, part-time job delivering noodles. He decided to join a gambling syndicate sometime around May 2005. His assigned role was to rent an apartment that would be used as a gambling den. However, this scheme promptly fell through and the apartment was used only once. As a consequence of this failed endeavour, Tan became even further indebted as he was personally liable for the rent.

2 Yet another factual thread reveals that soon after losing his job as a driver, Tan had travelled to Kuala Lumpur on 6 February 2005 to seek out other job opportunities. He stayed with his friend (“Ah Huat”) in whom he confided his financial problems. Out of desperation, Tan asked Ah Huat whether he had “lobangs” (“opportunities” in colloquial Malay) for “easy money” that could land him a job transporting drugs such as Ecstasy within Malaysia. This was to set in motion a train of events that has culminated in a capital charge being preferred against him.

3 Ah Huat duly introduced a man, known as “Uncle”. Uncle told Tan that it was difficult to find any lobangs as there had been many raids in Malaysia. However, Uncle passed his contact number to Tan, inviting him to call again in one or two weeks. Tan later called Uncle sometime in June 2005 to enquire whether there were any job opportunities. Uncle responded by inviting Tan to Johor Bahru for a discussion. On 27 June 2005, Tan travelled to Johor Bahru and met Uncle; however, Uncle informed him that it was still difficult to find any work. He could continue trying. Disappointed, Tan returned to Singapore. The next day, Tan returned to Johor Bahru again but was requested, once more, to be patient. Thereafter, Tan and Uncle remained constantly in touch with each other. On 17 August 2005, Tan borrowed some money from his friends and travelled again to Johor Bahru after being told by Uncle that “there might be something for [him] to do”.

4 Tan and Uncle met up again on the evening of 18 August 2005 at a hotel room in Johor Bahru. Uncle was carrying a backpack which contained three big packets wrapped in mahjong paper. According to Tan, he asked Uncle what those packets were, and Uncle just held up three fingers in reply. Uncle unwrapped the packets, which then revealed smaller packets of yellow powder within each packet. These packets were wrapped in clear plastic. Tan told Uncle that it was “a lot” but Uncle responded that it was not and used his fingers to indicate seven. Several questions and answers followed regarding transportation and the location of the drop-off point. Uncle then secured with tape ten packets of the yellow powder onto various parts of Tan’s body.

5 On Uncle’s instructions, Tan called for a taxi to take him to an address in Redhill, Singapore, where he was supposed to drop off the packets. However, at the customs clearance point at Woodlands (“the Woodlands checkpoint”), Police Constable Phua Han Siang (“Constable Phua”), a Cisco Auxillary Police Constable attached to the Immigration Checkpoint Authority Supplementary Force, noticed that Tan’s waist area appeared “bulky” and asked him whether there was anything on him. The accused gave a non-committal answer and Constable Phua, upon perceiving that Tan was “very nervous”, proceeded to pat the “bulky” part of his body. He could feel Tan’s body “shaking” during this examination. Upon confirming that there were strapped objects on the lower half of Tan’s body, Constable Phua directed Tan to another police officer who then escorted Tan to the search room. A full body search revealed that Tan had concealed ten packets of a yellowish powdery substance. Upon a chemical analysis, this substance was identified as diamorphine or, as it is more commonly known in everyday parlance, heroin. All in, the ten packets weighed 3.28829kg and contained 145g of pure heroin.

6 Tan was placed under arrest and later charged:

That you … on the 18th August 2005 at about 6.50 p.m., at the Inspection Pit Green Channel Left Lane 03, Woodlands Checkpoint, 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, ten (10) packets of granular/powdery substance containing not less than 145.07 grams (nett) of diamorphine, without 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, Cap 185.

7 On 22 September 2006, I convicted Tan of the charge and sentenced him in accordance with the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“MDA”). I now set out my reasons.

The Misuse of Drugs Act and its evidential presumptions

8 The drug trade is a major social evil. While drug peddlers may not be visibly seen or caught taking away or damaging lives, they nonetheless inflict alarmingly insidious problems on society that have the potential to destroy its very fabric if left unchecked. Each successful trafficker has the disturbing potential to inflict enormous and enduring harm over an extremely wide circle of victims. Apart from the harm that drugs inflict on an addict’s well-being, drug trafficking engenders and feeds a vicious cycle of crime that inexorably ripples through the community.

9 It is relatively easy and inexpensive to manufacture drugs. The remarkable sums generated in the drug trade have nothing to do with the complexities of production but rather are linked to and commensurate with the risks associated with being apprehended and severely punished. Given Singapore’s uncompromising attitude and relentless pursuit in enforcing and maintaining a relatively drug-free environment, extremely high returns may be realised through the successful distribution of drugs. This creates a potent siren-like temptation for certain avariciously desperate and/or determined persons to engage in the drug trade.

10 In order to minimise the risk of detection, international drug syndicates often employ apprentice couriers who do not have a criminal record. Unfortunately for such individuals, the MDA which is designed to deter all manner of drug trafficking activities does not and clearly cannot draw a line of notional demarcation between veteran and apprentice couriers by according preferential treatment to the latter. Such an approach would both inevitably and completely undermine the deterrent effect envisaged by the uncompromising punitive regime that the MDA entails, thereby rendering it nothing more than a drug peddlers’ charter. An apprentice courier who pleads that he has been apprehended on his first and last drug run cannot be excused if deterrence is to remain the hallmark of the drug enforcement regime.

11 When they are apprehended, apprentice couriers will almost invariably vigorously assert their innocence. The courts in dealing with such cases must adopt a sensible approach in assessing the credibility of an accused. While the truly innocent cannot be punished, such denials of knowledge must be scrupulously analysed and warily assessed for consistency and credibility. It is only too easy to disingenuously claim “I did not know”. Associated with the plea of “I did not know” are often belated claims of “I did not inspect” or “I was told it was something else”. These pleas are more often than not flimsy fabrications of last resort without an atom of credibility.

12 It bears emphasis that at all border control points and on all immigration entry cards, the mandatory penalties inextricably linked to trafficking or consuming drugs are clearly and unequivocally articulated. As a consequence, one can almost invariably assume that all persons entering Singapore would have been sufficiently alerted and sensitised of the need to take measures enabling them to ascertain the contents and nature of any substance they transport into or within Singapore. In so far as Singapore citizens and residents are concerned, it would certainly require remarkable temerity to plead an absence of knowledge of the risks pertaining to the transport or possession of drugs or other unascertained substances. This must be so in light of the all pervasive repetition of warnings about drug penalties through the many public channels of communication. Having said this, one cannot but acknowledge and accept that unusual instances will arise from time to time where drugs may be either planted on or inadvertently transported or possessed by entirely innocent persons. The courts must therefore remain constantly alert to and vigilant in identifying such cases, rare as they may be, when innocent victims have been duped by devious drug distributors.

The evidential presumptions

13 The MDA establishes three core evidential presumptions in connection with drug trafficking. First, a person who is proved to have had in his possession or custody or under his control a controlled drug shall, until the contrary is proved, be presumed to have had that drug in his possession: s 18(1) of the MDA. Second, if a person is proved or presumed to have had a controlled drug in his possession he shall, until the contrary is proved, be presumed to have known the nature of that drug: s 18(2) of the MDA. Third, upon proof of possession of an amount of the controlled drug in excess of a certain stipulated quantity it shall be...