Vadugaiah Mahendran v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 02 November 1995
• Date: 02 November 1995
• Docket Number: Magistrate's Appeal No 95/95/01
• Court: High Court (Singapore)

Vadugaiah Mahendran

Plaintiff

and

Public Prosecutor

Defendant

[1995] SGHC 261

Yong Pung How CJ

Magistrate's Appeal No 95/95/01

High Court

Criminal Procedure and Sentencing–Statements–Voluntariness–Person accused of drug consumption shown results of analysis of his urine samples before recording of s 122 (6) Criminal Procedure Code (Cap 68, 1985 Rev Ed) statement–Whether statement should be excluded–Evidence–Proof of evidence–Presumption of consumption of drug–Section 22 Misuse of Drugs Act (Cap 185, 1985 Rev Ed)

The appellant and three other persons were arrested during a spot-check. His urine samples were found to contain cannabis, and he was charged with illegally consuming a cannabinol derivative under s 8 (b) of the Misuse of Drugs Act (Cap 185, 1985 Rev Ed) (“the Act”). Before recording the appellant's statement under s 122 (6) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed), the recording officer showed him the results of the urine test. The appellant alleged that during the recording of the statement he was assaulted and threatened. He also alleged that his urine samples could have been mixed up with other urine samples and that he had unknowingly smoked a spiked cigarette before his arrest.

Two other witnesses, who had been arrested with the appellant, gave testimony. One of them alleged that the recording officer would fabricate evidence by concocting exculpatory statements in his police statement, but further alleged that he was coerced into signing the document. The other testified that she told the recording officer that she consumed drugs, but what was recorded was that she had said that she did not consume drugs. The district judge disbelieved the appellant and witnesses called in his defence and convicted him. The appellant appealed. His counsel invited the court to draw an adverse inference under s 116 (g) of the Evidence Act (Cap 97, 1990 Rev Ed) against the Prosecution for failing to call the lock-up officers to rebut the defence witnesses.

Held, dismissing the appeal:

(1) The district judge disbelieved the appellant's contention that he was assaulted. From the hesitant manner in which the appellant had attempted to demonstrate how he was assaulted and from the way he kept changing his reasons for signing the statement, the district judge concluded that the allegation was a fabrication. She accordingly admitted the statement. The district judge's decision was plainly based on her assessment of the witnesses' evidence in court, including their demeanour. There was nothing to show that she was not entitled to come to the decision that the allegations made by the appellant were untrue. Hence, it could not be said that the s 122 (6) statement was wrongly admitted: at [9] and [22].

(2) There was no reason why a person accused of drug consumption could not have been shown the urine test results before the statement was recorded, provided that nothing more was done which could be construed as an inducement, threat or promise. The mere fact that the accused had been shown the test results was not a sufficient basis to exclude the s 122 (6) statement: at [21].

(3) In the circumstances, there were more than sufficient grounds for the trial judge to hold that the defence witnesses were untruthful. There was thus no reason to disturb her finding: at [29].

(4) None of the witnesses could suggest any basis for the allegation that there had been a mix-up, to the extent that the appellant's urine sample was mixed up with the urine samples of someone apart from the defence witnesses. Certainly all the urine samples contained cannabis. That being the case, there was no reason to disagree with the district judge's finding that the appellant's allegation of a mix-up was spurious: at [25].

(5) The test for whether an adverse inference should be drawn against the Prosecution's failure to call a witness was whether it was open to the Defence to do so. In this case, no adverse inference should be drawn for the Prosecution's failure to call the lock-up officers: at [26].

[Observation: It was not sufficient for the defence to raise a reasonable doubt that the appellant did not know that he had consumed cannabis. The presumption in s 22 of the Misuse of Drugs Act that the accused had consumed that drug in contravention of s 8 (b) was two-fold, as it presumed both the actus reus of consumption, as well as the mens rea required for the offence. It had never been contentious that, when the burden of proof was on the accused, he had to discharge it on a balance of probabilities. However, there did appear to be an anomaly in that if the accused admitted that he committed the actus reus of the offence, but the Prosecution was unable to prove, for any reason, that both his urine samples contained the controlled drug, then the mens rea element of the offence must be proven beyond reasonable doubt. It may be that it can be shown that a cannabinol derivative would necessarily be found in the urine samples of someone who had recently consumed cannabis. In that case, an admission of consuming cannabis might be sufficient proof, by way of logical reasoning, that both his urine samples contained cannabis, and hence, he must rebut the presumption in s 22. There was, however, no need to decide this here: at [23] and [24].]

Khoo Kwoon Hain v PP [1995] 2 SLR (R) 591; [1995] 2 SLR 767 (refd)

Lim Kim Tjok v PP [1977-1978] SLR (R) 403; [1978-1979] SLR 306 (distd)

Lim Young Sien v PP [1994] 1 SLR (R) 920; [1994] 2 SLR 257 (folld)

Tan Ah Lay v PPCriminal Case No 14 of 1993 (folld)

Misuse of Drugs Act...