Tse Po Chung Nathan and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 22 February 1993
• Date: 22 February 1993
• Docket Number: Criminal Appeal No 2
• Court: Court of Appeal (Singapore)

Tse Po Chung Nathan and another

Plaintiff

and

Public Prosecutor

Defendant

[1993] SGCA 14

Yong Pung How CJ

,

Chao Hick Tin J

and

Warren L H Khoo J

Criminal Appeal No 2 of 1992

Court of Criminal Appeal

Criminal Law–Statutory offences–Misuse of Drugs Act (Cap 185, 1985 Rev Ed)–Accused arrested with controlled drugs in airport transit lounge–Accused's final destination not Singapore–Whether accused imported drugs into Singapore–Meaning of “import”–Section 7 Misuse of Drugs Act (Cap 185, 1985 Rev Ed)–Criminal Procedure and Sentencing–Irregularities in proceedings–Accused thought she was carrying substance other than drugs–Whether Prosecution proven necessary mens rea–Trial judge referred to substance as “powdery”–Substance became powdery only when produced in court–Whether misdirection on part of trial judge–Criminal Procedure and Sentencing–Trials–Joint trial–Whether offences committed in same transaction–Whether trial judge took unfavourable view of co-accused–Whether unfavourable view taken of co-accused adversely affected case of other co-accused–Whether non-compellability of co-accused as witness adversely affected case of other co-accused–Whether miscarriage of justice–Words and Phrases–“Import”–Section 7 Misuse of Drugs Act (Cap 185, 1985 Rev Ed)

The two appellants were jointly tried and convicted on similar but separate charges of importing diamorphine into Singapore. (See PP v Tse Po Chung Nathan [1992] 1 SLR (R) 440.) On appeal, they argued that they did not “import” the drugs into Singapore as to come under s 7 of the Misuse of Drugs Act (Cap 185, 1985 Rev Ed) (“the Act”) as their final destination was not Singapore, citing the High Court of Australia case R v Bull (1973) 131 CLR 203, which held that mere entry into port in the course of transit with no unloading was not an importation. Counsel for the second appellant further argued that the joint trial with the first appellant had occasioned a miscarriage of justice, as they were neither charged for the first offence nor were the offences committed in the same transaction.

Held, dismissing the appeal:

(1) The word “import” in the Act should be given the meaning in s 2 of the Interpretation Act (Cap 1, 1985 Rev Ed): “to bring or cause to be brought into Singapore by land, sea or air”. The High Court of Australia was not laying down any general definition of the word “import” in the case of R v Bull (1973) 131 CLR 203, and that definition had no bearing on the construction which the Singapore court was asked to place on the word “import” in the Act: at [11], [16] and [18].

(2) The act of each appellant was so closely connected with the act of the other that each could be said to have been done conjointly with the other, there was a common or identity of purpose in the separate acts, the appellants were acting in concert, and there was also unity of place and proximity of time, as for their acts to form the same transaction: at [33].

[Observation: To construe the word “import” in the restricted sense contended by the appellants would mean that drug runners could use the Changi Airport transit lounge as a centre for international drug trafficking. This would be contrary to Singapore's obligations under the Single Convention on Narcotic Drugs 1961: at [18].]

Bell v R (1984) 3 DLR (4th) 385 (refd)

Canada Sugar Refining Company, Limited v R [1898] AC 735 (refd)

Ko Mun Cheung v PP [1992] 1 SLR (R) 887; [1992] 2 SLR 87 (refd)

Lau Chi Sing v PP [1988] 2 SLR (R) 451; [1988] SLR 106 (refd)

Ng Kwok Chun v PP [1992] 3 SLR (R) 256; [1993] 1 SLR 55 (folld)

R v Assim [1966] 2 QB 249 (folld)

Rv Bull (1974) 131 CLR 203 (distd)

R v Geesman (1970) 13 CRNS 240 (refd)

R v Salvador, Wannamaker, Campbell and Nunes (1981) 59 CCC (2d) 521 (refd)

R v Smith (Donald) [1973] QB 924 (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) ss 122 (6), 176

Customs Act (Cap 70, 1985 Rev Ed)

Interpretation Act (Cap 1, 1985 Rev Ed) s 2

Misuse of Drugs Act (Cap 185, 1985 Rev Ed) s 7 (consd);s 33

Customs Act 1901-1974 (Cth) ss 233A, 233B (1) (b)

Peter Yap (Peter Yap & Co) for the first appellant

Michael Khoo and Josephine Low (Michael Khoo & B B Ong) for the second appellant

Bala Reddy (Deputy Public Prosecutor) for the respondent.

Judgment reserved.

Chao Hick Tin J

(delivering the judgment of the court):

1 This appeal raises an important but identical point to that raised in Criminal Appeal No 24 of 1991, which was recently decided by this court (see Ng Kwok Chun v PP [1992] 3 SLR (R) 256). It concerns the meaning of the word “import” in s 7 of the Misuse of Drugs Act (Cap 185).

2 The two appellants herein were tried and convicted before the High Court of the following separate charges:

(a) First accused:

That you, Nathan Tse Po Chung, on or about 28 February 1989, at about 4.05pm at Singapore Changi Airport, Singapore, did import into Singapore a controlled drug specified in Class 'A' of the First Schedule to the Misuse of Drugs Act (Cap 185), to wit, 24 blocks of drugs containing not less than 2178.0g of diamorphine, without any authorization under the said Act or the Regulations made thereunder and you have thereby committed an offence under s 7 and punishable under s 33 of the Misuse of Drugs Act.

(b) Second accused:

That you, Cheuk Mei Mei, on or about 28 February 1989, at about 4.05pm at Singapore Changi Airport, Singapore, did import into Singapore, a controlled drug specified in Class 'A' of the First Schedule to the Misuse of Drugs Act (Cap 185) to wit, 24 blocks of drugs containing not less than 2190.3g of diamorphine, without any authorization under the said Act or the Regulations made thereunder and you have thereby committed an offence under s 7 and punishable under s 33 of the Misuse of Drugs Act.

3 They were sentenced to the mandatory sentence of death. (See PP v Tse Po Chung Nathan [1992] 1 SLR (R) 440.)

4 The undisputed facts of the case are as follows. On 28 February 1989 at about 2.24pm, the appellants, Tse and Cheuk, two Hong Kong nationals, arrived at Changi Airport from Phuket by Thai International Airways flight No TG 405. After they landed, they went into the transit lounge. They did not go through the immigration or customs checks. They intended to remain in the transit lounge until their connecting flight, KL 838, which was scheduled to depart from Singapore to Amsterdam, left at 9.55pm that same evening.

5 As the appellants arrived at the transit lounge they were being closely watched by customs officers. They were arrested at 4.00pm that day. A search of the persons of the appellants was carried out. They were found to have blocks of white substance wrapped in cellophane paper secured by elastic guards and strapped around their calves and thighs. Some smaller blocks were hidden in their shoes. The officers also seized from Tse's clutch bag the following items: (a) two boarding passes for flight TG 405; (b) a white ticket containing four passenger baggage checks for Thai International Airways; and (c) a white envelope containing two passenger ticket baggage checks for KLM Royal Dutch Airlines. When questioned by customs officers as to what were the blocks of white substance, Tse said, after some initial reluctance, that they were “pak fun” which in the Cantonese dialect literally means white powder but is slang for heroin. However, Cheuk, when questioned, said that she did not know what the substance in those blocks was.

6 Scientific evidence was tendered to show that the white substance seized from Tse contained 2,178g of diamorphine and from Cheuk it contained 2,190.3g of diamorphine.

7 In his s 122 (6) of the Criminal Procedure Code statement, Tse said:

I owed a moneylender known as 'David' HK$30,000. David told me to bring something...