Tan Meng Jee v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Goh Joon Seng J
• Judgment Date: 16 May 1996
• Neutral Citation: [1996] SGCA 34
• Docket Number: Criminal Appeal No 7 of 1996
• Date: 16 May 1996
• Year: 1996
• Published date: 19 September 2003
• Plaintiff Counsel: Peter Keith Fernando (Leo Fernando) and David Lee (Ang & Lee)
• Citation: [1996] SGCA 34
• Defendant Counsel: Ong Hian Sun (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: Relevant if probative force outweighed prejudicial effect,Similar fact evidence,Criminal Law,Statutory offences,Inference drawn from quantity,Proof of evidence,Evidence,Misuse of Drugs Act,Trafficking in controlled drugs,Possession of paraphernalia as evidence of intent,ss 14 & 15 Evidence Act (Cap 97, 1990 Ed),Trafficking,Whether possession proved,ss 2 & 5(1)(a) Misuse of Drugs Act (Cap 185),'Trafficking by transportation'

The facts

The appellant was tried in the High Court on the following charge:

That you, Tan Meng Jee, on or about 1 August 1995 at about 4.15pm in Singapore, did traffic in a controlled drug specified in Class A of the First Schedule to the Misuse of Drugs Act (Cap 185), to wit, by transporting three packets of substance containing not less than 114.3g of diamorphine in taxi SHB 3315S from Bukit Panjang Road to Ulu Pandan Road without any authorization under the said Act or regulations made thereunder, and you have thereby committed an offence under s 5(1)(a) punishable under s 33 of the Misuse of Drugs Act.

He was convicted of the offence in the High Court and sentenced to death. He appealed against conviction and sentence. We dismissed his appeal and now give our reasons.

In this appeal, counsel for the appellant did not challenge the trial judge`s version of events as found in his grounds of decision. The appellant had been detained in Seletar Camp in January 1995 after having spent five years in Chia Keng Prison for suspected drug trafficking. In February 1995, he had been placed on a day release scheme under which he had to report back to camp every evening. In March 1995, he absconded and did not return to Seletar Camp. Between this time and that of the arrest (ie 1 August 1995), the appellant`s testimony is that he had taken on various odd jobs and most recently had been a runner for bookies. The appellant had a friend, one `Lay Lay`. According to the appellant`s evidence, the latter had been generous with him, giving him $10,000 when he was on the run either as a `friendly loan` or as an outright gift.

On the day of the arrest, the appellant had gone to Woodlands to meet his girlfriend (one `Lai Yoke Chen` whom he called `Girl Girl`). He had earlier asked to borrow her handphone, his having broken down. They met and went shopping where she bought him a wallet. They then took a taxi together and he dropped off at Lay Lay`s Farjar Road block while she continued home.

The appellant testified that he wanted to consume drugs at Lay Lay`s flat. When he got there the door was opened by a Malaysian man. While consuming drugs by way of `chasing the dragon`, Lay Lay informed him that earlier certain persons had been at the Farjar Road flat asking for him. He thought they were CNB officers. Upon hearing this, he was afraid of being caught for absconding and caned. He left hurriedly. On his way out, the appellant said he saw Lay Lay being given a package by the Malaysian. Lay Lay in turn gave it to the appellant with instructions to hand it to another Malaysian in white long sleeves and dark glasses, standing at the phone booth in the car park at Ghim Moh where he had parked his red Honda car bearing a Malaysian plate. The appellant testified that he had heard the Malaysian at Lay Lay`s flat telling the latter that the package contained `money`. Lay Lay also told him not to worry and that the package only contained money.

The appellant upon leaving the Farjar Road flat got into a taxi SHB 3315S and headed towards Ghim Moh. The time was approximately 3.35pm. While in the taxi, he testified that he had been trying to open the package to see if it contained money. The taxi driver in cross-examination by defence counsel said that the appellant was seen `fiddling` with the bag but he could not say for sure that the appellant was trying to open the bag to see what was inside.

Unknown to the appellant, CNB officers acting on information received had since noon of 1 August been keeping the Farjar Road flat under surveillance for a male Chinese known as `Saw Ee` who was to collect his supply of heroin there. When the appellant was seen leaving the flat carrying a white plastic bag and entering the taxi, these officers trailed the taxi.

It was while the taxi was at the junction of Ulu Pandan and Pandan Valley that the narcotics officers pounced, surrounding the taxi, restraining the appellant and arresting him. The plastic bag was recovered from the floorboard of the passenger side of the taxi. One Inspector Chow questioned the appellant in Hokkien as to the contents of the bag but the appellant replied in Cantonese that he did not know. Inspector Chow denied that he had said `money`. The appellant was searched and two sets of keys were found on him being keys to a flat in Ghim Moh, which he had `borrowed` from his sister since she no longer lived in it, and the rented one in Jurong West.

The contents of the white plastic bag were later analysed to contain 114.3g of diamorphine.

On the day of the arrest, the narcotics officers raided the Ghim Moh flat and seized the following items:

(a) one digital weighing scale;

(b) one battery operated plastic sealer;

(c) one metal spoon;

(d) a pair of scissors;

(e) a Phillips handphone and a spare battery; and

(f) a radio scanner and an adapter.

The appellant gave a cautioned statement under s 122 (6) Criminal Procedure Code (Cap 68) (CPC) to Inspector Chow, the investigating officer, which reads as follows:

After I boarded the taxi, I sat next to the taxi driver. I did not notice anything on the floor board in front of me. I was chit-chatting with the taxi driver. When the taxi stopped at the traffic light junction, two or three persons came to the taxi and arrested me. That is all.

This is in contrast to his evidence in court where he produced the defence that involved Lay Lay, the two Malaysian men and the alleged bag of money. Indeed, the DPP has correctly pointed out that this discrepancy entitled the court to draw an adverse inference against the appellant under s 123 CPC. The appellant had failed to mention this defence in his cautioned statement. In fact, he had given a totally inconsistent account. This strengthened the trial judge`s ultimate holding that the appellant`s attempt to paint himself as the innocent go-between, who had been duped into thinking that the package contained money, was a fabrication.

The Law

The offence of drug trafficking is to be found in s 5(1)(a) of the Misuse of Drugs Act (Cap 185) (the Act). For a prosecution to succeed, it must prove (1) that the accused has possession of the controlled drug; (2) that he has done the act of trafficking in one of its forms as found in s 2 of the Act; and (3) that the accused had knowledge of the nature of that which he was in possession of.

The following is a summary of the findings of the High Court that led to the conviction in the present case:

(a) The appellant was proved to have the plastic bag under his control.

(b) He was, therefore, presumed to have possession of the drugs therein under s 18(1) of the Act.

(c) He was, therefore, presumed under s 18(2) to have knowledge of the nature of the drugs presumed to be in his possession.

(d) He had failed to rebut the presumptions in (b) and (c).

(e) The prosecution had proved its case that he had `transported` the drugs within the meaning of that term as interpreted by the courts.

The prosecution relied on the presumption in s 18 of the Act. It, therefore, had to prove that the appellant had `possession or custody or ... control` of the plastic bag containing the drugs wrapped in a paper package. Although he denied any knowledge of the plastic bag in his statement under s122(6) of the CPC, his testimony, in which he said that he had been given the plastic bag by Lay Lay but thought it contained money, clearly supports the finding that he had the package when he left Lay Lay`s apartment in Farjar Road. He was thus in possession of the bag by his own evidence . There is also the testimony of narcotics officers who observed him leaving the Farjar Road flat with a white plastic bag as well as the evidence of the taxi driver.

Once possession of the white plastic bag that was later found to contain the controlled drug was proved, the appellant would be presumed to be in possession of the drugs. The burden shifts, by virtue of s 18(1), onto him to show, on a balance of probabilities, that he was not in possession of the drugs.

This presumption can then be relied upon to further presume that he had knowledge of the nature of the drug under s 18(2). Against this was pitted the appellant`s contention that he thought the package contained money. However, it should be noted that he is presumed to know what was in the package once it had been proved that he was in possession of it. The burden of proof is, therefore, on him, on the balance of probabilities, to show that he did not know what was in the package and more specifically to show on the present facts that he thought the package contained money.

These propositions are supported by the case of Tan Ah Tee v PP [1980] 1 MLJ 49 where the Court of Criminal Appeal, applying the equivalent section in the Misuse of Drugs Act 1973, held that, where a person is in possession of a bag which contains in fact a controlled drug, it is presumed that he is in possession of and knows the nature of the controlled drug. This is not merely a strong prima facie inference, as is the case in England (to which, reference can be made to the oft-cited dictum of Lord Pearce in Warner v Metropolitan Police Commissioner [1969] 2 AC 256). In Singapore, legislation places the burden on the accused to prove on a balance of probabilities that he was not in possession of and did not know the nature of the controlled drug which was contained in the bag. (See also PP v Virat Kaewnern [1993] 2 SLR 9 .)

The appellant`s contentions, as noted above, are that he believed the package contained money. He does not dispute that he had possession in fact, only that he did not know the true nature of what he was in possession of. The twin presumptions in s 18 are, therefore, triggered. He is presumed to have possession of the drugs as well as knowledge of their nature. These presumptions are, of course, not irrebuttable.

How has the appellant attempted to rebut the presumption of knowledge and possession? The appellant`s version of the events of that day...