Van Damme Johannes v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 02 December 1993
• Neutral Citation: [1993] SGCA 93
• Docket Number: Criminal Appeal No 32 of 1993
• Date: 02 December 1993
• Published date: 19 September 2003
• Year: 1993
• Plaintiff Counsel: Edmond Pereira (Edmond Pereira & Pnrs) and James Masih (James & Bala)
• Citation: [1993] SGCA 93
• Defendant Counsel: Bala Reddy (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: Drugs found in suitcase retrieved from in-flight spur area,Calling of evidence,Presumptions of knowledge and possession,ss 7 & 18 Misuse of Drugs Act (Cap 185),Misuse of Drugs Act,Principles governing calling of further evidence on appeal,Whether appellant could be in possession of the suitcase if he did not know or have knowledge of its contents,Criminal Law,Criminal Procedure and Sentencing,Non-availability, relevance and reliability of additional evidence,Appeal,Importing controlled drugs,Appellant in Singapore on transit,Whether appellant had the suitcase in his possession, control or under his custody,Statutory offences

This is an appeal against the decision of S Rajendran J convicting the appellant of importing not less than 4,320g of diamorphine into Singapore under s 7 of the Misuse of Drugs Act (Cap 185) (`the Act`). After hearing arguments, we dismissed the appeal and indicated that we would give our reasons later, which we now do.

The facts

The appellant arrived at Changi International Airport on 27 September 1991 on board Tradewinds flight MI 851 from Phuket. It was not disputed that the appellant checked a suitcase with a combination lock into the plane direct to Athens via Swissair flight SR 183 from Singapore. It was also not disputed that the appellant was coming to Singapore to catch the same Swissair flight SR 183 to Athens which was scheduled to leave Singapore at 9.05pm that evening. The suitcase was retrieved by narcotics officers from the baggage area. Upon removing the interior cloth lining of one side of the suitcase, Narcotics Officer Seah Shyr Dong (`NO Seah`) found another shell implanted on to the original shell. After removing this shell, NO Seah found a light brown plastic bag containing a whitish substance. Another implanted shell was also discovered on the other side of the suitcase. NO Seah found another similar plastic bag containing a whitish substance under this shell. Dr Lee Tong Kooi, principal scientific officer from the department of scientific services, subsequently analyzed the two bags containing the whitish substance and certified that they contained in total not less than 4,320g of diamorphine.

The appellant was charged under s 7 of the Misuse of Drugs Act (Cap 185) for importing two packets of substance containing not less than 4,320g of diamorphine into Singapore. The appellant`s defence at the trial was that he did not know that diamorphine was concealed in the suitcase. He claimed that he was an innocent custodian of the suitcase and that he was carrying the bag from Bangkok to Athens as a favour for one John U Obiefuna (`Obiefuna`) who said it contained children`s clothes and clothes for his wife. The learned trial judge rejected the appellant`s defence that he did not know that diamorphine was concealed in the suitcase. Accordingly, he convicted the appellant. Against the conviction, this appeal was brought.

Motion to admit additional evidence

Together with the appeal, the appellant filed a criminal motion to adduce additional evidence in the form of four business cards, a jeweller`s brochure, three certificates of guarantees from jewellers, a Nigerian residence permit, the certificate of incorporation and the memorandum and articles of association of the company set up by the appellant`s wife in Nigeria.

The relevant principles governing the grant of leave to adduce additional evidence were set out very recently in Juma`at bin Samad v PP 1 at p 343(E-I):

The question is whether the above evidence is `necessary`. Certain principles are to be applied in determining this question and these were considered by the Court of Criminal Appeal in Rajendra Prasad v PP. The court held that in applying s 55(1) of the Supreme Court of Judicature Act (`SCJA`), which is materially similar to s 257(1) of the CPC, the principle encapsulated in the following statement from Denning LJ`s judgment in Ladd v Marshall should be observed:

`In order to justify the reception of fresh evidence for a new trial, three conditions must be fulfilled: first it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that if given it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be such as is presumably to be believed or in other words, it must be apparently credible, although it need not be incontrovertible.`

These three conditions - non-availability, relevance and reliability - are of course, similar to those enunciated by Lord Parker CJ in R v Parks and which have been time and again affirmed in Singapore and Malaysia courts: Mohamed bin Jamal v PP, Lo Fat Thjan v PP, Khamis v PP, Che Din bin Ahmad v PP, Dol bin Lasim v PP.

In short, the circumstances in which an application to introduce fresh evidence will be allowed are extremely limited.

The appellant`s reason for adducing additional evidence at this stage of the proceedings was that these documents were retained by the prison authorities despite his instructions that they be handed to his lawyer. Without expressing any opinion as regards the first condition of `non-availability`, we are of the view that the second and third conditions of `relevance` and `reliability` have not been met. Counsel for the appellant conceded that the additional evidence sought to be admitted had no bearing on the question of guilt or innocence of the appellant. The additional evidence was instead adduced for the rather tenuous reason that, had they been available at the trial, the trial judge`s impression of the appellant would have been different. The test of relevance is more stringent than that. We reiterate that the evidence must be such that, if given, it would probably have an important influence on the result of the case. As for the condition of `reliability`, we note that one of the certificates of guarantee was actually made out to `Mrs E Van Damme` and more significantly, was dated `26 September 1991`. Nowhere in the appellant`s testimony regarding his movements on 26 September 1991 did he mention visiting the jewellers. As for the business cards, there was absolutely no evidence as to when they might have been procured by the appellant. Accordingly, we found that there was no merit in the application and we dismissed the motion.

Grounds of appeal

Before this court, counsel for the appellant raised two grounds of appeal. First, that the presumptions raised by s 18 of the Act did not apply as the appellant did not have in his possession or custody or under his control the suitcase containing the controlled drug. Secondly, that the trial judge erred in law and in fact in finding that the appellant had not, on a balance of probabilities, proved that he did not know that there was a controlled drug concealed in the suitcase.

On the first ground of appeal, counsel for the appellant referred to the testimony of Punniyamoorthy s/o Muthusamy, a baggage supervisor with Singapore Airport Terminal Services (SATS), that luggage in the in-flight spur area cannot ordinarily be retrieved by the passenger except with permission from the Lost and Found staff. This, it was argued, meant that the appellant did not have `in his...