Wong Kee Chin v Public Prosecutor

• Judge: Chua F A J
• Judgment Date: 05 December 1978
• Neutral Citation: [1978] SGCA 36
• Citation: [1978] SGCA 36
• Defendant Counsel: Glenn J Knight (Deputy Public Prosecutor)
• Published date: 19 September 2003
• Plaintiff Counsel: S Rai (Goh & Hin)
• Date: 05 December 1978
• Docket Number: Criminal Appeal No 22 of 1977
• Court: Court of Appeal (Singapore)
• Subject Matter: Trafficking in controlled drugs,Presumption of trafficking,Shift of burden of proof to accused,Criminal Law,ss 2(i), 3, 4, 5 & 8 Narcotics Control Act 1960-61 [Canada],Transporting 137.78g of diamorphine,Diamorphine,Statutory offences,ss 2, 3, 6, 15 & 16(2) Misuse of Drugs Act 1973

(delivering the grounds of decision of the court): The appellant Wong Kee Chin was convicted by the High Court and sentenced to death on the following charge:

You, Wong Kee Chin, are hereby charged that you on or about 25 November 1976 at about 7.35pm in motorcar No BK 9850, at Woodlands Customs Station, Singapore, not being authorised by the Misuse of Drugs Act, 1973 (No 5 of 1973) or any regulations made thereunder, did traffic in a controlled drug, specified in Class `A` of Pt I of the First Schedule to the aforesaid Act, to wit 137.78g of diamorphine, and you have thereby committed an offence under s 3(a) of the Misuse of Drugs Act (No 5 of 1973), punishable under s 29 of the aforesaid Act.

He appealed against his conviction and at the conclusion of the hearing of the appeal we dismissed his appeal and intimated that we would give our reasons for our judgment later. We do so now.

The facts of this case were not seriously in dispute. It was common ground that on 25 November 1976 at about 12.30pm at a taxi stand near the Merdeka Stadium in Kuala Lumpur, the accused boarded a private taxi registration no BK9850, for travelling to Singapore. Along the whole journey from KL to Singapore there were with him three other passengers namely Wong Hon Kok, Khaw Cheng Leng and his son John Khaw Kye Oo. There was of course also the taxi driver.

When the taxi arrived at Gemas it made its first stop for about half an hour to enable the passengers to have some refreshment. Soon after it resumed its journey and near Simpang Rengam it picked up a passenger who eventually got off the taxi at Kulai.

The taxi eventually went through the Johor Bahru checkpoint and finally arrived at the Woodlands checkpoint on the Singapore side of the causeway at about 7.30pm. There all the four passengers including the appellant were asked to alight and go to a search room of the customs department. In that room they were subjected to a routine body search by customs officer Tee Seng Kay in the presence of two police officers.

The appellant was found carrying on his person two packages tucked under his socks, one on each leg, in the manner shown in photograph exh P2. These two packages were removed and opened by the said customs officer in the presence of the appellant and his fellow passengers and the two police officers. The first packet which was attached to the appellant`s left leg was found to contain 11 small plastic packets filled with some brownish-grey substance in the form of granules and powder while the other packet found on the right leg contained 16 such plastic packets containing the same type of brownish-grey substance. These two packages with all the contents were later sent for analysis to the Department of Scientific Services.

The result of the analysis conducted by Lim Han Yong a scientific officer revealed that the total weight of the brownish substance in the two packages was 280.08g and that the diamorphine content was 137.78g by weight.

Diamorphine is a controlled drug under the Misuse of Drugs Act 1973 (the Act), and is listed in the First Schedule in Pt I as a Class `A` drug. Under s 16(2) of the Act, anyone found in possession of a controlled drug is presumed to know the nature of this drug until the contrary is proved.

When the appellant arrived at Woodlands checkpoint on the day in question he had clearly transported, from Kuala Lumpur to Singapore, the subject matter of the charge i.e. 137.78g of diamorphine. The trial court held that by the definition of `trafficking` in the Act, the act of transporting by the appellant constituted `trafficking` under the Act. Accordingly at the close of the prosecution`s case they called upon the appellant to enter upon his defence on the charge on which he was being tried.

In his defence the appellant admitted that the person who gave him the two packages told him that they contained heroin and that although he had not opened the packages and seen the contents he had no reason to disbelieve what he had been told about their contents. The appellant claimed that he had been promised $1,000 for carrying the two packages from Kuala Lumpur to Singapore. The appellant further claimed that the person who gave him the two packages was Wong Hon Kok a fellow passenger in the taxi who was seated in the front seat beside the driver. The appellant told the trial court that he had not revealed Wong Hon Kok`s name to the customs officer that day because Wong had asked him not to say anything to the authorities if he was caught with the two packages.

The trial court found that even if what the appellant claimed was true, nevertheless he had transported the two packages from Kuala Lumpur to Singapore knowing that they contained heroin and that he was guilty of trafficking within the meaning of the Act. He was accordingly convicted and sentenced to death.

Before us the only point taken by counsel was that on the evidence, the act of the appellant of carrying the heroin from Kuala Lumpur to Singapore did not constitute `trafficking` within the definition of `traffic` as laid down in the Act. Counsel relied on a number of Canadian decisions but before looking at them it is necessary to look at the relevant provisions of our Act and of the Narcotics Control Act 1960-61 of Canada (the Canadian Act).

In our Act, the expression `traffic` is defined in s 2 as follows:

`traffic` means -

(a) to sell, give, administer, transport, send, deliver or distribute; or

(b) to offer to do anything mentioned in para (a) above, otherwise than under the authority of this Act or the regulations made thereunder; and `trafficking` has a corresponding meaning;

Section 3 provides:

3 Except as authorized by this Act or the regulations made thereunder, it shall be an offence for a person, on his own behalf or on behalf of any other person, whether or not such other person is in Singapore to -

(a) traffic in a controlled drug;

(b) offer to traffic in a controlled drug; or

(c) do or offer to do any act preparatory to or for the purpose of trafficking in a controlled drug.

Section 6 provides:

6 Except as authorized by this Act or the regulations made thereunder, it shall be an offence for a person to -

(a) have in his possession a controlled drug; or

(b) smoke, administer to himself or otherwise consume a controlled drug.

Section 15 provides:

15 Any person who is proved or presumed to have had in his possession more than -

(c) 2g of diamorphine (heroin) contained in any controlled drug; or ...

shall, until the contrary is proved, be presumed to have had such controlled drug in his possession for the purpose of trafficking therein.

Section 16(2) provides:

(2) Any person who is proved or presumed to have had a controlled drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug.

In the Narcotics Control Act of Canada, `traffic` is defined in s 2(i) as follows:

(i) `traffic` means

(i) to manufacture, sell, give, administer, transport, send, deliver or distribute, or

(ii) to offer to do anything mentioned in sub-para (i) otherwise than under the authority of this Act or the regulations.

Section 3 provides:

3(1) Except as authorized by this Act or the regulations, no person shall have a narcotic in his possession.

(2) Every person who violates sub-s (1) is guilty of an indictable offence and is liable to imprisonment for seven years.

Section 4 provides:

4(1) No person shall traffic in a narcotic or any substance represented or held out by him to be a narcotic.

(2) No person shall have in his possession any narcotic for the purpose of trafficking.

(3) Every person who violates sub-ss (1) or (2) is guilty of an indictable offence and is liable to imprisonment for life.

Section 5 provides:

(1) Except as authorized by this Act or the regulations, no person shall import into Canada or export from Canada any narcotic.

(2) Every person who violates...