Thiruselvam s/o Nagaratnam v Public Prosecutor

• Judge: Chao Hick Tin JA
• Judgment Date: 02 March 2001
• Neutral Citation: [2001] SGCA 13
• Citation: [2001] SGCA 13
• Defendant Counsel: Bala Reddy and Sia Aik Kor (Deputy Public Prosecutor)
• Published date: 19 September 2003
• Plaintiff Counsel: Surian Sidambaram (briefed) (Surian & Partners) and Pratap Kishan (assigned) (Sim Mong Teck & Partners)
• Date: 02 March 2001
• Docket Number: Criminal Appeal No 19 of 2000
• Court: Court of Appeal (Singapore)
• Subject Matter: Misuse of Drugs Act,Using previous inconsistent statements,Witnesses,Equal protection of the law,Whether s 24 of Evidence Act applicable to such confessions,Whether and when proof of voluntariness of statements necessary,Charging with and convicting principal offender of non-capital charge -Whether unfair discrimination against appellant exists,Confessions of witness,s 248, 147(6) Evidence Act (Cap 97, 1997 Ed),Abetment of trafficking -Whether charge proven beyond reasonable de abt,Criminal Law,Evidence,Constitutional Law,ss 5(1)(a), 12 & 33 Misuse of Drugs Act (Cap 185, 1997 Ed),Constitution of Republic of Singapore (1992 Ed) art 12(1),Appellant facing capital charge of abetment of trafficking,s 24 Evidence Act (Cap 97, 1997 Ed),Statutory offences,s 122 Criminal Procedure Code (Cap 68) (5)

(delivering the judgment of the court): The appellant, Thiruselvan s/o Nagaratnam, resided at Block 645, Ang Mo Kio Avenue 6, [num ]12-4995, Singapore. He was a lashing worker with the Port of Singapore Authority. On 13 January 2000, he was arrested for his involvement in a drug transaction with one Katheraven s/o Gopal (`Katheraven`). He was tried before the High Court on a charge for abetting Katheraven in trafficking in 807.6g of cannabis on 13 January 2000 at about 3.40pm at Ang Mo Kio Avenue 6, Singapore, an offence under s 5(1)(a) read with s 12 and punishable under s 33 of the Misuse of Drugs Act (Cap 185, 1997 Ed). He was convicted and was sentenced to suffer death. Against his conviction he now appeals.

The prosecution`s case

The evidence led by the prosecution was as follows. On 13 January 2000, Katheraven was introduced to an undercover narcotics officer, Sgt Andrew John Joachim (`Sgt Andrew`), who was interested in purchasing 1 kg of cannabis. He met Sgt Andrew at about 2.45pm at Bukit Merah View, and offered to sell to Sgt Andrew 1 kg of cannabis for $2,200 plus $500 commission. When Sgt Andrew asked for a reduction of the price, Katheraven made some calls on his handphone (No 97603714) and spoke in Tamil to the person at the other end. He then informed Sgt Andrew that the price could not be reduced. Upon confirmation of the deal, Katheraven made further calls on his handphone. Thereafter, he told Sgt Andrew that he had to go to Ang Mo Kio to collect the drugs.

According to the telephone records, which were subsequently obtained by the prosecution, there were four successive outgoing calls from Katheraven`s handphone to the appellant`s pager (No 96069940) between 3pm and 3.04pm on that day. This was followed by two incoming calls from the appellant`s home telephone (No 4525161) at about 3.05pm and 3.13pm.

Sgt Andrew drove to Ang Mo Kio with Katheraven. They arrived at the car park of Block 646, Ang Mo Kio Street 61 at about 3.30pm. Katheraven left the car and walked towards the direction of Block 648 Ang Mo Kio. The telephone records showed that there were two outgoing calls to the appellant`s pager at 3.36pm and 3.40pm respectively. A short while later, Katheraven ran back to Sgt Andrew`s car carrying something under his T-shirt. After he stepped into the car, he lifted his shirt, removed a slab of cannabis and handed it to Sgt Andrew. He was arrested immediately thereafter by officers from the Central Narcotics Bureau (`CNB`).

The slab of substance was subsequently analysed by the Department of Scientific Services and was found to contain 807.6g of cannabis and 115g of cannabis mixture.

The telephone calls

After Katheraven`s arrest, between 3.49pm and 6.37pm, there were 20 incoming calls to his handphone from the appellant`s home telephone, which were not answered by the arresting CNB officers. At about 7.20pm, Katheraven`s handphone rang again. This time the call was answered by one of the arresting officers, Cpl Anan Devan (`Cpl Anan`). The telephone records showed that this incoming call came from a public telephone (No 4549968) at Block 632 Ang Mo Kio [num ]01-952. According to Cpl Anan, the caller asked for `Kathi`. Cpl Anan informed him that Kathi was not around and that he was a friend of Kathi. The caller (later identified as the appellant) identified himself as `Thiruchy`. Cpl Anan could not remember the entire contents of the conversation but he distinctly recalled that the appellant said in Tamil `Porula Edutha Karsai Tharunam`, which meant, `If the thing is taken, the money must be paid`. Cpl Anan told him that he would not cheat him and would pay the money. Cpl Anan believed that the caller possibly mistook him for the purchaser of the drugs who would have the money to pay him. He accordingly informed the other CNB officers.

Shortly after, the appellant called again. The telephone records showed that this incoming call was received at 7.30pm and came from the same public telephone. The appellant asked for Kathi. Cpl Anan said that he was not around and asked the appellant where he wanted the money to be handed to him. The appellant said that he would be at the coffee shop at Block 630 Ang Mo Kio and that he would be wearing a `Milan` white soccer jersey and a pair of soccer shorts.

On the way to Ang Mo Kio, Cpl Anan received another call from the appellant, recorded at 7.47pm (from No 4520742), asking about the time Cpl Anan would reach the coffee shop. Cpl Anan replied that he was on his way. On arrival, Cpl Anan, together with SSgt Mohd Azam spotted a male Indian fitting the description in the company of two other male Indians in a coffee shop at Block 632. Before long, the appellant called again asking where he was and said that he was waiting for the money. Cpl Anan replied that he was in the vicinity but did not feel safe going to the coffee shop. Cpl Anan expressed his preference to meet in front of the bus stop at Block 639 Ang Mo Kio Avenue 6. The appellant agreed. The telephone records showed that this incoming call was made at 8.09pm and came from a public telephone (No 4522407) at Block 632 Ang Mo Kio Avenue 6.

There were altogether four telephone calls made to Katheraven`s handphone between 7.20pm and 8.09pm, which were answered by Cpl Anan. The appellant admitted that he made the four calls but disputed the contents of the conversations.

The arrest

At about 8.20pm, the appellant was arrested as he was walking toward the bus-stop at Block 639 Ang Mo Kio. He was wearing a `Milan` white soccer jersey. As he was being brought to his registered address for a search, he denied that he was the caller or that he was known as Thiruchy. When the appellant`s wife opened the door, Cpl Anan asked her in Tamil if Thiruchy was in, and in reply she said that he was not at home. At this juncture, the appellant shouted in Tamil that he was only known by his first name `Thiruselvam`.

Statements made by the appellant

The prosecution adduced several statements made by the appellant after his arrest. He did not challenge that the statements were made by him voluntarily and they were duly admitted in evidence. In these statements, the appellant gave accounts of the events leading up to his arrest. In the first four statements recorded from him between 13 and 19 January 2000, the appellant denied knowing Katheraven. He said that he merely agreed to do a favour for a friend known as Thambi who had requested him to collect a sum of over a thousand dollars from a person wearing black shirt and trousers at the bus-stop in front of Block 639 Ang Mo Kio. He had in turn informed Thambi that he was wearing soccer shirt and trousers. He denied knowing that the money he was collecting was drug money. In this version, he did not speak to Cpl Anan on the telephone; nor did he arrange to meet Cpl Anan at the bus stop where he was arrested.

In two subsequent statements recorded on 25 and 26 January 2000 by ASP Fan Tuck Chee (`ASP Fan`) and interpreted by Ms Caroline Edmund Susila (`Caroline`), the appellant admitted that he had not told the whole truth in his earlier statements. He had not mentioned Joe, who was a friend of Thambi. He now admitted knowing Katheraven who called him `Thiruchi`. Katheraven contacted him on 13 January 2000 on his pager (No 96069940) on three occasions in the afternoon in relation to Katheraven`s prior arrangement to meet Thambi or Joe. The first page was received at about 2pm. He assisted Katheraven by contacting Joe on his behalf and liaising between Katheraven and Joe using his house telephone. He had given Joe`s handphone to Katheraven so that he could contact Joe directly.

It is unnecessary to set out further details of his statements. In so far as they are material and assist the appellant in his defence, they contained an account substantially along the line of his defence to which we shall refer in a moment.

Evidence of Katheraven

Katheraven was called as a witness for the prosecution. He had earlier pleaded guilty in the High Court on 16 June 2000 to two non-capital charges for supplying the drugs to Sgt Andrew on 13 January 2001. He was sentenced to a total of 25 years` imprisonment and 24 strokes of the cane.

In his testimony in court, Katheraven completely exonerated the appellant from any involvement in the supply or sale of the drugs to him. His evidence was that on 13 January 2000 at about 12.45pm, he received a call on his handphone from his friend `Selvam` who asked for his assistance in obtaining 1 kg of cannabis for his friend, Andrew (ie Sgt Andrew). At about 1pm, he paged and telephoned one Joe Bhaskaran using his handphone to arrange for the supply of the drugs. He conceded that he spoke to the appellant on 13 January 2000 at about 1pm, but the call concerned the return of a sum of $300 which he had borrowed from the appellant earlier. He essentially denied discussing about drugs in any of his telephone conversations with the appellant.

According to the telephone records, there were no outgoing calls to Joe Bhaskaran`s number which Katheraven gave as 97517436. In fact there was no record of any such call from Katheraven`s handphone to this number on 13 January 2000. During the time between 12.44pm and 1pm, the records reflected only an incoming call from number 7458050 at 12.44pm following by an outgoing page to the appellant`s pager at 12.52pm. The next call was one coming from the appellant`s home at 12.54pm.

As a result of the material contradictions between Katheraven`s oral testimony and his previous statements, the prosecution applied for leave to refer to previous inconsistent and contradictory statements made by Katheraven with a view to impeaching his credit. These previous statements were: (i) a signed statement recorded on 20 January 2000, exh P29 (`P29`); (ii) a statement of facts which was produced in court and to which he admitted when he pleaded guilty to the trafficking charges on 16 June 2000, exh...