Tay Kah Tiang v Public Prosecutor

JudgeChao Hick Tin JA
Judgment Date31 March 2001
Neutral Citation[2001] SGCA 19
Citation[2001] SGCA 19
Defendant CounselBala Reddy and Stephanie Wong (Deputy Public Prosecutors)
Published date19 September 2003
Plaintiff CounselChristina Goh Siok Leng (Christina Goh & Co) and David Lee (Ang & Lee)
Date31 March 2001
Docket NumberCriminal Motion No 8 of 2001 Criminal Appeal No 23 of 2000
CourtCourt of Appeal (Singapore)
Subject Matters 17 Misuse of Drugs Act (Cap 185, 1998 Ed),Appeal,Non-availability, relevance and credibility of additional evidence,s 55 Supreme Court of Judicature Act (Cap 322, 1999 Ed),Trafficking in controlled drugs,Principles governing motion to adduce additional evidence,Whether presumption of possession for purpose of trafficking under s 17 of Misuse of Drugs Act (Cap 185, 1998 Ed) triggered-Whether appellant discharged burden of rebutting presumption,Criminal Law,Offences,Whether appellant in physical possession of drugs for purpose of trafficking,Whether conditions for court's exercise of discretion to admit additional evidence fulfilled,Whether appellant had knowledge of drugs,Motion to adduce additional evidence,Possession,Criminal Procedure and Sentencing

(delivering the grounds of judgment of the court): This was an appeal by the appellant against a conviction at the High Court of a capital charge of being in possession of 45 packets of substance containing not less than 24.12g of diamorphine for the purposes of trafficking. We heard the appeal on 2 March 2001 and dismissed it and now give our reasons.

The facts

The appellant, female, 36 years old, is a drug addict and was previously an inmate of the Drug Rehabilitation Centre. She is divorced with three children, but the children are in the custody of her ex-husband.

On 22 March 2000, at 4.20pm she was arrested by Central Narcotics Bureau (`CNB`) officers in room 507, Brendma East Park Hotel, Kitchener Road.
With her in the room was a male friend, one Lai Gek Siew (`Lai`), 41 years old, unemployed, who is also a drug addict. Both had been staying at the hotel from 14 March 2000 until their arrest. The staff of the hotel told the court that they would only allow a Singaporean to register for a room if he or she produced his/her identity card. The room was registered in the name of Lai because the appellant did not have her identity card, having lost it more than a year ago.

Heroin in packets was found in the room.
Three straws of heroin were on a chair. Three packets wrapped in newsprint and four straws were in a drawer of a dressing table. A black drawstring bag, with a total of 45 packets of heroin, was found hidden in the false ceiling above the bathroom. The drawstring bag was not sealed or locked. Inside the black drawstring bag were three plastic bags: a red, a blue and a black. In the red plastic bag were 20 packets of substance. In the blue plastic bag were two newsprint wrappings, each containing five packets of substance. In the black plastic bag there were three newsprint wrappers, each containing five packets of substance. The charge preferred against the appellant related only to the drugs found in the drawstring bag. The 45 packets had a net weight of 24.12g of diamorphine.

At the time, scissors, pincers (tweezers), paper foil, some 109 empty plastic sachets, a digital weighing scale and lighters were also found in the room.
Evidence was adduced which showed that the appellant had purchased a digital weighing scale a few days before her arrest. The receipt for the purchase was found in her wallet. But no heroin stains were found on the weighing scale.

In the appellant`s statement recorded on 23 March 2000, under s 122(6) of the Criminal Procedure Code (Cap 68) (`CPC`), she said:

I did not intend to sell the drugs. A male Malaysian asked me to keep the drugs for him. My friend Lai Gek Siew has nothing to do with the drugs.



In her second statement recorded on 29 March 2000, she admitted to the ownership of the drugs, stating that the 45 packets found in the black drawstring bag were given to her by one Hak Chai for safe-keeping and in return Hak Chai would forgo the $1,000 debt she owed him.
In her third statement recorded on 5 April 2000, she gave an account of her dealings with Hak Chai. She also exonerated Lai from any knowledge of the drawstring bag. In her words, `I did not tell (Lai) about the black bag.`

However, there is an aspect of the evidnece which should be mentioned at this juncture.
A fingerprint expert, ASP Lay Yeow Khoon, told the court that Lai`s fingerprints were found on the magazine paper used to wrap some of the drugs. Lai explained that he had been reading some of the magazines taken from the hotel front desk. The pages came from the 11-17 March 2000 issue of Singapore This Week, a tourist promotional magazine freely distributed at the hotel reception. The appellant did not make any comment regarding this aspect of Lai`s evidence. Lai also said that the heroin in the room belonged to the appellant, except as regards those in the drawstring bag found in the false ceiling, which he did not know existed. Neither did he know how the drawstring bag happened to be there. Lai was eventually not charged for drug-trafficking though he was arrested together with the appellant. Instead, he testified for the prosecution.

In the light of the foregoing evidence, the trial judge called upon the appellant to enter her defence.
The appellant`s evidence was that on 12 March 2000, she received five packets of heroin from Hak Chai, a drug peddler, who had taken over from a previous peddler, `Ah Tee`. Those five packets of heroin were for her own consumption. They cost $1,000 and were not paid for. In return for waiving the debt, Hak Chai wanted the appellant to safe-keep something for him. So on 19 March 2000, Hak Chai asked the appellant to go to a rubbish bin near the Toa Payoh Post Office to pick up a plastic bag. She collected the plastic bag at around 8pm and returned to the hotel. She then called Hak Chai and was asked by the latter to help him keep it. She was informed that its contents were of a value of $9,000. He also informed the appellant that he would call her again later with regard to the return of the drawstring bag.

On opening the plastic bag, the appellant saw a black drawstring bag and a paper wrapper.
Inside the paper wrapper, there were three packets of heroin. She took the three packets as they were meant for her personal consumption. She did not open the drawstring bag. She then hid the drawstring bag, with the substance therein, above the false ceiling of the bathroom. She did not touch it again. The next time she saw the drawstring bag was on the day of her arrest, when the CNB officers retrieved it from the false ceiling.

The appellant admitted that the three straws of heroin found on the chair and the three packets and four straws of heroin found in the drawer were hers, but they were for her own consumption.
She also stated that it was Hak Chai who had asked her to buy the digital weighing scale and the empty plastic sachets, although she did not know what purposes they were meant for.

It would be noted that the only inconsistency in her oral evidence, compared with the statements she gave earlier, was her denial of being the owner of the heroin, or that she suspected the black drawstring bag contained heroin.
She admitted that Hak Chai had placed three packets of heroin in the plastic bag (together with the black drawstring bag), for her personal consumption. The trial judge drew the obvious inference that the 45 packets of heroin found in the black drawstring bag were not meant for the appellant`s own consumption but was for trafficking. He also held that the appellant would be guilty of trafficking even if the drug in the drawstring bag were meant to be returned to Hak Chai later.

Motion to adduce additional evidence

Before we proceed to examine the grounds raised by the appellant at the appeal, we ought to refer to a motion filed by the appellant to adduce additional evidence for this court`s consideration of the appeal.

In her affidavit filed in support of the motion, the appellant alleged that it was Lai who had bought the digital weighing scale and had also brought the black drawstring bag into the hotel room, without telling her about them.
Furthermore, at the time the CNB officers raided the room, Lai had asked her to shoulder the blame and responsibility for the drugs found in the room. He repeated this request on two occasions later. She said that she did as was told by Lai because Lai had assured her that she would only serve a short sentence of between eight to ten years and he had also promised her that he would marry her after her imprisonment and would, while she was serving her imprisonment, look after her mother. As she loved him very much, she agreed to the suggestion. Furthermore, when she accepted blame, on behalf of Lai, she did not know that the black drawstring bag contained drugs. The appellant claimed that, for all these reasons, she concocted a story that she had collected the black drawstring bag from Hak Chai.

The appellant thus wanted to adduce the following additional evidence.
First, that Lai asked her to purchase the digital weighing scale. Secondly, that on 21 March 2000, Lai told her that a friend had left the black drawstring bag with him and told her not to ask so many questions about it. Lai then took the black drawstring bag to the bathroom and returned to the room without it. It was Lai who placed it above the false ceiling. Thirdly, Lai had, on several occasions, asked her to shoulder the blame for the drugs. She agreed to do so, because she loved him and thought that her own family (her three children) did not care for her.

Explaining why she decided to tell the true version of the events at this
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