Tong Chee Kong and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 02 March 1998
• Date: 02 March 1998
• Docket Number: Criminal Appeal No 25 of 1997
• Court: Court of Appeal (Singapore)

Tong Chee Kong and another

Plaintiff

and

Public Prosecutor

Defendant

[1998] SGCA 15

Yong Pung How CJ

,

M Karthigesu JA

and

L P Thean JA

Criminal Appeal No 25 of 1997

Court of Appeal

Criminal Law–Complicity–Common intention–Trafficking–Whether common intention of two accused to put second accused in possession of drugs–Criminal Law–Statutory offences–Misuse of Drugs Act (Cap 185, 1997 Rev Ed)–Controlled drugs–Joint trafficking–Whether accused in possession of large quantity of drugs for own consumption–Effect of drug-related paraphernalia in accused's flat–Criminal Law–Statutory offences–Misuse of Drugs Act (Cap 185, 1997 Rev Ed)–Controlled drugs–Presumption of trafficking–Second accused's possession of drugs with first accused's knowledge and consent–Whether second accused presumed to have drugs in his possession for purpose of trafficking under s 17 of the Misuse of Drugs Act (Cap 185, 1997 Rev Ed)–Whether first accused deemed in possession of drugs under s 18 (4) of the Misuse of Drugs Act (Cap 185, 1997 Rev Ed)–Whether presumption under s 17 can apply against first accused–Sections 5 (2), 17 and 18 (4) Misuse of Drugs Act (Cap 185, 1997 Rev Ed)–Evidence–Proof of evidence–Confessions–Nature of confession–Whether statement must be plenary or unqualified to amount to confession–Whether confession can be non-plenary

The appellants, Tong and Tay, were convicted on a trafficking charge. The charge alleged that, in furtherance of a common intention, they had in their possession for the purpose of trafficking a packet containing diamorphine. Tong and Tay were arrested when their car was stopped by Central Narcotics Bureau (“CNB”) officers. At the material time, when ASP Lim Chai Yoo (“ASP Lim”) asked Tay whether he had any drugs with him, the latter pointed to his navel. A packet of granular substance was tucked under the front of his briefs. When queried as to the quantity of the drugs, Tay replied that it was 1lb. The CNB officers brought Tay to his flat, where drugs and other drug-related paraphernalia were recovered. ASP Lim then recorded an oral statement from Tay.

Tay's cautioned statement under s 122 (6) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”) and investigation statements under s 121 of the CPC were admitted in evidence unchallenged as to their voluntariness and accuracy. The gist of the statements was that Tay needed a supply of heroin for his own consumption and that Tong had sold him a pound of heroin for $3,000. The Prosecution sought to admit these statements against Tong under s 30 of the Evidence Act (Cap 97, 1990 Rev Ed).

Tay's defence was consistent with his statements to the CNB. The crux of his defence was that he was a severe addict and that he had purchased the drugs from Tong for his own personal consumption. The Prosecution called an expert to refute Tay's claim to severe addiction to heroin. The expert classified Tay as a mild to moderate heroin addict and he could not possibly have consumed heroin at the rate he claimed.

Tong denied that he had sold the drugs to Tay. Tong also called witnesses to show that his sources of income were not derived from drugs and that he had sufficient regular income to support his lavish lifestyle. Tong's counsel also submitted that Tay's three statements were inadmissible against Tong as they contained exculpatory material and therefore were not confessions for the purposes of s 30 of the Evidence Act. In any case, little credence ought to be given to them and to Tay's evidence inculpating Tong. The trial judge rejected both Tay's and Tong's defences and sentenced them to death. They appealed.

Held, dismissing the appeal:

(1) Tay had neither the income nor the high rate of consumption he claimed to account for the large quantity of heroin found in his possession. Further, the nature and extent of the drug-related paraphernalia found in Tay's flat militated against his defence: at [14].

(2) For a statement to amount to a confession, it need not be of a plenary or unqualified nature; it can also be of a non-plenary nature so long as the statement connected the accused in some way with the offence. Tay in his statements had admitted that he had taken delivery of the drugs and was in possession of the drugs and this unequivocally connected him with the offence with which he was charged. Accordingly his statements amounted to confessions: at [18].

(3) The appellants' common intention was to put Tay in possession of the drugs. Tong's sale and delivery of the heroin to Tay was an act in furtherance of that common intention. As Tay had possession of the drugs, s 17 of the Misuse of Drugs Act (Cap 185, 1997 Rev Ed) (“the Act”) operated and he was presumed to have had the drugs in his possession for the purpose of trafficking. By virtue of s 5 (2), Tay had committed the offence of trafficking. Section 34 of the Penal Code (Cap 224, 1985 Rev Ed) rendered Tong liable for this criminal act: at [13] and [16].

(4) Even without invoking s 34 of the Penal Code, Tong was still guilty of being in possession of the drugs. The evidence showed that Tay had possession of the drugs with Tong's knowledge and consent as Tong had sold and delivered the drugs to Tay for $3,000. Under s 18 (4) of the Act, Tong was deemed to be in possession of the drugs and under s 17 of the Act, was further presumed to have had the drugs in his possession: at [16].

Abdul Rashid bin Mohamed v PP [1993] 3 SLR (R) 656; [1994] 1 SLR 119 (folld)

Anandagoda v R [1962] MLJ 289 (refd)

Foong Seow Ngui v PP [1995] 3 SLR (R) 254; [1995] 3 SLR 785 (folld)

PP v Datuk Haji Harun bin Haji Idris (No 2) [1977] 1 MLJ 15 (folld)

PP v Tan Aik Heng [1995] 1 SLR (R) 710; [1995] 2 SLR 244 (folld)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) ss 121, 122

Evidence Act (Cap 97, 1990 Rev Ed) ss 24, 30

Misuse of Drugs Act (Cap 185, 1997 Rev Ed) ss 5, 17, 18 (4) (consd)

Penal Code (Cap 224, 1985 Rev Ed) s 34

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