Tan Kiam Peng v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 28 September 2007
• Date: 28 September 2007
• Docket Number: Criminal Appeal No 8 of 2006
• Court: Court of Appeal (Singapore)

Tan Kiam Peng

Plaintiff

and

Public Prosecutor

Defendant

[2007] SGCA 38

Andrew Phang Boon Leong JA

,

Kan Ting Chiu J

and

Woo Bih Li J

Criminal Appeal No 8 of 2006

Court of Appeal

Criminal Law–Statutory offences–Misuse of Drugs Act–Illegally importing controlled drug–Possession of diamorphine–Accused arguing that he knew he was carrying controlled drugs but did not know drugs consisting of heroin–Nature of knowledge required under s 18 (2) Misuse of Drugs Act–Whether necessary that accused knew precise nature of controlled drugs he was found in possession of–Whether knowledge encompassing constructive knowledge and wilful blindness–Section 18 (2) Misuse of Drugs Act (Cap 185, 2001 Rev Ed)

The appellant was convicted in the High Court under s 7 of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“the Act”) for importing heroin. He was sentenced to suffer the mandatory death penalty.

The appellant, who was in financial difficulties, had sought job opportunities in Kuala Lumpur, Malaysia. Through a friend, he came to know a man known to him as “Uncle” whom he hoped could give him a job transporting drugs such as ecstasy within Malaysia.

The appellant asked Uncle if there were any jobs available and was told that there might be. He travelled to Malaysia the next day and met Uncle in a hotel room. Uncle brought with him three big packets wrapped in mahjong paper. The packets contained smaller plastic packets of yellowish powder. When the appellant asked Uncle what those packets contained, Uncle held up three fingers in response. When the appellant said to Uncle that it was “a lot”, Uncle disagreed and used his fingers to indicate seven.

Uncle secured the smaller packets onto the appellant's body. The appellant was instructed to take a private taxi to Redhill, Singapore. He was arrested at Woodlands customs clearance point when the drugs were discovered.

Police Constable Phua (“Constable Phua”) asked the appellant some questions about the packets while carrying out the body search. This conversation was not documented but it emerged during cross-examination and was relied on by the trial judge (“the Judge”). Constable Phua testified that he had asked the appellant, in Hokkien, what the packets were and the appellant answered, “number 3”. When Constable Phua asked the appellant what “number 3” was, the appellant repeated, “number 3”.

Later, the appellant was interviewed by Inspector Teng (“Insp Teng”). They spoke in the Hokkien dialect. When asked what the packets of yellowish substance were, the appellant said, “I believed it is heroin number 3.”

During cross-examination, it emerged that Station Inspector Ong (“SI Ong”), one of the CNB officers who escorted the appellant back to the CNB Woodlands office and who carried out the raid at the appellant's flat, had spoken to the appellant in the course of the investigations. SI Ong testified at the trial that the appellant told him that the contents of the packets were “number 3” and that the appellant had been given $800 to bring “number 3” into Singapore.

The appellant's defence was that while he knew he was importing illegal drugs, he did not know the precise nature of the drugs he was carrying. The appellant contended that, inter alia, the Judge had erred in finding that the word “peh hoon” in Hokkien meant heroin or diamorphine and that the appellant knew that “number 3” or “peh hoon” was in fact heroin or diamorphine. The appellant also argued that it was Insp Teng who translated the Hokkien word “peh hoon” to mean heroin when he recorded the appellant's statement.

Held, dismissing the appeal:

(1) Besides actual knowledge, s 18 (2) of the Act encompassed the doctrine of wilful blindness which had been applied in many Singapore decisions in the context of the operation of the Act. Wilful blindness was treated as the legal equivalent of actual knowledge. To establish wilful blindness, there had to be the appropriate level of suspicion that led to a refusal to investigate further. If controlled drugs were slipped into an accused's bag without his or her knowledge, no offence under the Act would have been committed. On the other hand, if an accused knew that he or she was carrying controlled drugs, merely inquiring as to the nature of the drugs might not be sufficient. If the accused chose to assume such a large risk by trafficking drugs without establishing the true nature of the drugs he or she was carrying, this was wilful blindness: at [104], [121], [123] to [125], [129] and [130].

(2) Applying the relevant legal principles to the present case, the issue was whether or not the Judge was correct in holding that the appellant had clearly understood that “number 3” was the street name for heroin and that, in the circumstances, the appellant knew that he was carrying heroin. The court was concerned with the appellant's subjective knowledge assessed on an objective basis. Although the appellant was not a known drug abuser, he had some knowledge of controlled drugs. However it was not entirely clear that the knowledge of most persons in the drug trade - that “number 3” alone was the street name for heroin - would be general knowledge for persons in the appellant's shoes: at [151] and [153].

(3) Although it was not clear, from the appellant's oral statements to both Constable Phua and SI Ong, that he in fact knew that “number 3” alone effectively meant “heroin number 3”, on the evidence, he clearly suspected that the drugs he was carrying were heroin. The appellant did not pursue the matter further with Uncle after Uncle had held up three fingers in response to his question of what the packets contained, lest he (Uncle) confirm beyond peradventure that the drugs were in fact heroin. Uncle's extreme reluctance to elucidate the matter would have aroused the suspicion of a person in the appellant's shoes. He should have followed up or abandoned the deal. Even if the court assumed that there was ambiguity, it demanded clarification which the appellant refrained from seeking. Thus these oral statements demonstrated wilful blindness on the part of the appellant: at [155] to [157].

(4) The Judge found Insp Teng to be a credible witness and accepted his testimony that he had not suggested the Hokkien equivalent of heroin when he recorded the appellant's responses to his questions. An appellate court would be slow to interfere with the findings of the trial judge. As for defence counsel's argument that “peh hoon” did not mean “heroin” but “drugs” in Hokkien, this argument could not be sustained given the specific context in which the appellant had used these words. From the written statement recorded by Insp Teng, it was clear that the appellant had actual knowledge that the drugs he was carrying consisted of heroin. It followed that when the appellant referred to “number 3” in his statements to Constable Phua and SI Ong, it was a reference to “heroin number 3”: at [161], [163], [164], [167], [170] and [171].

[Observation: The “popular” view that the presumptions in ss 18 (1) and 18 (2) of the Act were motivated by the decision in Warner v Metropolitan Police Commissioner [1969] 2 AC 256 (“Warner”) was misconceived. The UK Drugs (Prevention of Misuse) Act 1964 (c 64) (“the 1964 UK Act”) was silent as to whether mens rea was required and the majority of the law lords in Warner considered that the 1964 UK Act created absolute offences. This was not the case with the Act which laid down presumptions that the accused must rebut on a balance of probabilities. The antecedents of the Act went as far back as 1927, before the Warner decision. Thus guidance must be sought from the actual language of the Act and the application of the House of Lords decision inWarner should be limited to the point of general principle relating to the concept of possession: at [35] and [69].

In Warner, most of the law lords in the majority recognised a qualification to the general principle if the accused did not know that he was in control or possession of the prohibited substance. However, Lord Pearce's comment that if the accused reasonably believed the tablets he or she possessed to be aspirin but they turned out to contain heroin, the accused would still be assumed to be in possession of heroin tablets even if he or she believed them to be sweets, went a little too far and could be explained on the ground that the 1964 UK Act created absolute offences. The Court of Appeal's decision in Tan Ah Tee v PP [1979-1980] SLR (R) 311, which applied Lord Pearce's example and had been cited in a long line of local cases since, should be regarded as having only endorsed that part of Lord Pearce's judgment dealing with the general concept of possession: at [35], [36], [49], [50], [52] and [53].

Section 18 (2) of the Act must be read with s 18 (1) to the extent that if the accused person successfully rebutted the presumption in s 18 (1) concerning possession, the presumption under s 18 (2) pertaining to knowledge of the thing possessed would not arise. However if the prosecution proved actual possession by the accused for the purposes of s 18 (1), the presumption under s 18 (2) would still operate. The Act had not dispensed withmens rea, but the s 18 presumptions were introduced to mitigate the practical difficulty of proving possession and knowledge on the part of the accused and to ensure that the policy underlying the Act would be fulfilled rather than frustrated. While the conditions for triggering the presumptions under s 18 of the Act had to be strictly proved, once the conditions had been satisfied, the accused bore the burden of rebutting the presumptions therein on a balance of probabilities: at [54], [55], [60] and [61].

There were two possible interpretations of the reference to knowledge in s 18 (2) of the Act - the first was that the reference to knowledge was to knowledge that the drug concerned was a controlled drug, and the second was that the...