Vignes s/o Mourthi and Another v Public Prosecutor and Another Case

• Jurisdiction: Singapore
• Judgment Date: 22 January 2003
• Date: 22 January 2003
• Docket Number: Criminal Appeal No 13 of 2002
• Court: Court of Appeal (Singapore)

Vignes s/o Mourthi and another

Plaintiff

and

Public Prosecutor

Defendant

[2003] SGCA 2

Yong Pung How CJ

,

Chao Hick Tin JA

and

Judith Prakash J

Criminal Appeal No 13 of 2002

Court of Appeal

Criminal Law–Statutory offences–Misuse of drugs–Trafficking in controlled drugs –Defence of lack of knowledge that substances were drugs–Abetment of trafficking–Criminal Procedure and Sentencing–Alibi–Whether defence of alibi should be called at end of Prosecution's case–Criminal Procedure and Sentencing–Statements–Whether statement of accused amounting to confession–Whether presumption in Misuse of Drugs Act (Cap 185, 2001 Rev Ed) could be relied upon –Section 17 (2) Evidence Act (Cap 97, 1997 Rev Ed)

The first appellant, Vignes, was convicted of trafficking in controlled drugs by delivering a packet containing diamorphine to an officer of the Central Narcotics Bureau posing as a buyer. The second appellant, Moorthy, was convicted of a charge of abetting Vignes by conspiracy to traffic in the said drugs. Both appellants appealed against their convictions.

Vignes's defence was that he did not know that what he was delivering were drugs, as he had been told by Moorthy that the plastic bag contained “sambrani kallu”, meaning incense stones.

Counsel for Moorthy contended that the trial judge had erred in calling upon Moorthy to enter his defence. At the close of the Prosecution's case, the only evidence that implicated Moorthy was Vignes's statements which counsel argued were not confessions and therefore could not be used as evidence against Moorthy under s 30 of the Evidence Act (Cap 97, 1997 Rev Ed).

Held, dismissing the appeals:

(1) Vignes knew that he was transporting drugs for sale. Vignes never referred to the items in the plastic bag as “sambrani kallu” in any of his written statements, but rather as “kallu”, meaning stones, which in street jargon meant sachets of heroin in granular form: at [36].

(2) The effect of a statement had to be viewed within the framework of the law. By virtue of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed), Vignes was presumed to have known the nature of the substance he was carrying notwithstanding his protest to the contrary. As his statements stated or suggested the inference that he committed the offence, these were confessions, and could be taken into consideration by the trial judge against Moorthy: at [52].

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

Anandagoda v The Queen [1962] MLJ 289 (refd)

Haw Tua Tau v PP [1981-1982] SLR (R) 133; [1980-1981] SLR 73 (refd)

Ng Theng Shuang v PP [1995] 1 SLR (R) 407; [1995] 2 SLR 36 (refd)

Ramakrishnan s/o Ramayan v PP [1998] 3 SLR (R) 161; [1998] 3 SLR 645 (folld)

Tong Chee Kong v PP [1998] 1 SLR (R) 591; [1998] 2 SLR 843 (refd)

Evidence Act (Cap 97, 1997 Rev Ed) s 17 (2) (consd);s 30

Misuse of Drugs Act (Cap 185, 2001 Rev Ed)

Subhas Anandan and Anand Nalachandran (Harry Elias & Partners) for the first appellant

Lee Teck Leng and Michael Soo Chia (Tan Peng Chin LLC) for the second appellant

David Chew Siong Tai and Leong Wing Tuck (Deputy Public Prosecutors) for the respondent.

Judgment reserved.

Chao Hick Tin JA

(delivering the judgment of the court):

1 The first appellant (“Vignes”) was convicted of a capital charge of trafficking in controlled drugs by delivering a packet containing a net weight of 27.65 g of diamorphine to Sergeant S Rajkumar, who was an officer of the Central Narcotics Bureau (“CNB”), in exchange for $8,000. The second appellant (“Moorthy”) was convicted of a capital charge of abetting Vignes to traffic in the said drugs and in pursuance of their conspiracy, Moorthy handed the drugs to Vignes in order to enable the latter to deliver the drugs to Sgt Rajkumar. Both appellants were sentenced to suffer death. They appealed. Their appeals were heard on 25 November 2002. This is now our judgment which was reserved.

The Prosecution's case

2 About a week before 20 September 2001, Sgt Rajkumar was informed that a Malaysian syndicate, the members of which were Indians, was looking for heroin buyers in Singapore. He arranged, through his informer, for a deal to be done, with him posing as a potential buyer of heroin. He gave his handphone number to his informer so as to enable the syndicate members to contact him.

3 At about 11.00am on 20 September 2001, Sgt Rajkumar learnt that the syndicate had one pound of heroin for sale for $8,000. He was asked to proceed quickly to the Marsiling Mass Rapid Transit (“MRT”) station to wait for the seller's call. Sgt Rajkumar informed his superior, Assistant Superintendent S Krishnan, who immediately summoned eight officers and briefed them on his plan to arrest the suspected trafficker or traffickers.

4 The CNB officers arrived at the Marsiling MRT station at about 12.20pm. Sgt Rajkumar met his informer there as the seller of the drugs was only willing to call the informer's mobile phone. Ten minutes later, Sgt Rajkumar received a call on the informer's mobile phone and the person at the other end of the line identified himself as “Vignesh”, who then told Sgt Rajkumar that the place to effect the transaction had been changed to Admiralty Road, in front of the An-Nur Mosque. Sgt Rajkumar told “Vignesh” that his name was “Segar” and that he would be coming in a silver-coloured car bearing the licence plate number 9073. After the call, Sgt Rajkumar informed his colleagues of the change of venue for the transaction.

5 Sgt Rajkumar then left the Marsiling MRT station for the mosque, with Sgt Daniel Gan at the wheel. When they arrived near the mosque, Sgt Rajkumar noticed that a person was staring at his car and approaching it. He got out of the car and walked towards the person. The conversation in Tamil between the person (later established to be Vignes) and Sgt Rajkumar was subsequently recorded in English by Sgt Rajkumar in the field book at Clementi Police Division. That entry reads:

Raj:	Hi.
Vignesh:	[You] Segar right [?]
Raj:	Yes.
Vignesh:	I'm Vignesh.
Raj:	How [?]
Vignesh:	Where's the money [?]
Raj:	With my partner (pointing to Sgt Daniel Gan who was in the driver's seat).
Raj:	Where's the stuff [?]
Vignesh:	I've put it in front, near the Mosque. Take the money and follow me.
Raj:	OK (took the money from Sgt Daniel Gan and followed Vignesh).
Vignesh:	How, can [you] trust the male Chinese in the car [?]
Raj:	Don't worry, he's my financier. Without him, I can't deal.
Vignesh:	(After stopping in front of the Mosque, after the gate of the Mosque.) The stuff is with me. Take out the money. You know how much is it right [?]
Raj:	$8,000 right [?]
Vignesh:	Yes.
Raj:	Where's the stuff [?]
Vignesh:	(Handed over the white plastic bag from his maroon helmet.) Is the money correct [?]
Raj:	Yes (Handed the money to him).
Raj:	Is the stuff good [?]
Vignesh:	It's very good. [You] watch and see. You are sure to come back to deal with me again.

6 As pre-arranged, at that point Sgt Rajkumar gave the thumbs-up signal. Vignes was arrested by the other CNB officers who were lying in ambush. Vignes was then made to sit at the rear seat of the CNB staff car. Whilst in the car, Sgt Rajkumar questioned Vignes, who told him that his “annai” (which means “elder brother” in Tamil) had given the packet to him and that his brother was somewhere in the vicinity, waiting to collect the money from him. The substance in the packet was later established to contain not less than 27.65 g of diamorphine. As requested, Vignes called his “brother” using the handphone of one of the CNB officers. After the telephone conversation, Vignes said that his “brother” was in the vicinity of a fruit shop along Woodlands Centre Road and was on a motorcycle. The CNB officers then drove near to a spot, overlooking the fruit shop, for Vignes to point out his “brother”. Vignes duly identified a man in a grey shirt as his “brother”. That person was later established to be Moorthy.

7 This information was immediately passed on to ASP Krishnan and another CNB officer, who had positioned themselves in the vicinity. They approached Moorthy and, after identifying themselves, asked Moorthy what he was doing at the fruit shop and the latter replied that he was waiting for a friend. When asked for the name of the friend, Moorthy did not answer. He was then placed under arrest. Instead, Moorthy asked, “What happened, what happened” several times and also questioned why he was being arrested.

8 Both Vignes and Moorthy were brought back to the Clementi Police Station. At about 2.00pm, ASP Krishnan started to question Vignes in the presence of Sgt Rajkumar. The questions and answers were recorded in ASP Krishnan's field book as follows:

1. Q1: Pointing to a red plastic bag containing the exhibit, I asked the accused, “What is this?”

2. B1: “Kallu” (stone in Tamil).

3. Q2: Who gave it to you?

4. B2: He, Moorthy, gave it to me.

5. Q3: What did he ask you to do with it (exhibit) [?]

6. A3: Moorthy asked me to hand it over to Thayiru. He also asked me to collect $8,000 from Thayiru.

7. Q4: Showing the accused a passport with photograph, I asked him, is this Moorthy? Passport no H581957 of Moorthy A/L Angappan was shown to the accused.

8. A4: Yes, this is Moorthy.

9 Vignes signed against the above recording after it was read to him. Though invited, he did not make any corrections. However, he later denied there was such a conversation.

10 Both Vignes and Moorthy were sent for various tests. But no morphine was present in their urine samples.

11 Later that day, at about 8.00pm, a s 122 (6) statement was taken from Vignes, where he stated:

The stuff do not...