Yeo Choon Huat v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 05 November 1997
• Neutral Citation: [1997] SGCA 50
• Docket Number: Criminal Appeal No 15 of 1997
• Date: 05 November 1997
• Year: 1997
• Published date: 19 September 2003
• Plaintiff Counsel: Myint Soe (Myint Soe Mohamed Yang & Selvaraj) and Jeffrey Soh (Jeffrey Soh & Co)
• Citation: [1997] SGCA 50
• Defendant Counsel: Wong Keen Onn and Terence Chua (Deputy Public Prosecutors)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether fact that charge notified to appellant when statement was made different from charge faced at trial relevant,s 116 illustration (g)Evidence Act (Cap 97, 1990 Ed),Whether prosecution withheld or suppressed evidence,ss 18(2) & 21 Misuse of Drugs Act (Cap 185),Misuse of Drugs Act,Trafficking in controlled drugs,Whether judge wrongly rejected whole of appellant's evidence on account of his credit having been impeached,Presumptions of possession and knowledge,Whether ample evidence to justify judge's finding that appellant's ultimate intention was to traffic in drugs,Purpose of transportation to be determined by ultimate intended use of drugs,Whether judge justified in finding appellant's credit impeached,ss 147, 157 Evidence Act (Cap 97, 1990 Ed),Impeaching witnesses’ credibility,Appellant neither misled nor prejudiced by amendments to charge,Statutory offences,Admission of cautioned statement for impeachment of appellant's credit,Possession of diamorphine,Criminal Law,Whether presumptions rebutted by appellant on balance of probabilities,Evidence,Whether adverse inference to be drawn against prosecution's failure to call witness,Witnesses,Trafficking by transportation,Distinction between withholding and failing to obtain evidence,s 5(1)(a) Misuse of Drugs Act (Cap 185)

Judgment:

KARTHIGESU JA

(delivering the grounds of judgment of the court): The appellant was convicted in the High Court on the following amended charge:

You, Yeo Choon Huat, are charged that you, on 9 January 1997, at 7.20pm did traffic by transporting 15 packets of diamorphone weighing 81.89g (nett), a Class `A` controlled drug in motorcar No SBJ 9516 T, from a carpark at Blk 505, Bishan Street 11 to the carpark at Blk 405 Sin Meng Avenue without any authorisation under the Act or the regulations made thereunder and you thereby committed an offence under s 5(1)(a) and punishable under s 33 of the Misuse of Drugs Act (Cap 185).

2.At the inception of the trial, the appellant was charged together with one Koh Chiang Meng (Koh). Koh faced four non-capital drug related charges, whilst the appellant faced three similar charges, of which one was a capital charge. The prosecution applied for a joint trial of the charges. The trial judge rejected the application and ordered the prosecution to proceed to trial only on the capital charge against the appellant. All other charges were stood down and the counsel for Koh was released. The prosecution then applied to amend the capital charge. At the end of the trial, the appellant was convicted on the amended charge and sentenced to the mandatory punishment of death. The appellant appealed against his conviction. After hearing counsel for the appellant, we dismissed the appeal. We now give our reasons.

3. The prosecution`s case

The appellant was kept under surveillance by a group of Central Narcotics Bureau (CNB) officers from 3.45pm on 8 January 1997 until the time of his arrest at 8.50pm on 9 January 1997. The prosecution`s case was founded on the testimonies of these officers. At about 10.40pm on 8 January 1997, the appellant was observed leaving the Woodlands checkpoint in Singapore for Johore Bahru in car SBJ 9516 T. The appellant had purchased this car about a month earlier. He was observed returning to Singapore via the Woodlands checkpoint at 7.05pm on 9 January 1997. The CNB officers trailed the appellant to a multi-storey carpark at Blk 505 Bishan Street 11 where he parked his car in Lot 118, Deck B3.

4.Corporal Ivan Tan (Cpl Ivan Tan) and Woman Narcotics Officer Delphine Tan (WNO Delphine Tan) each took up a different position overlooking Lot 118. Cpl Ivan Tan observed the appellant from Deck A5, about 15 metres away. Cpl Ivan Tan testified that he had had a clear view of the front bonnet, windscreen and interior of the appellant`s car. Both doors of the appellant`s car were wide open. The appellant was standing outside the motorcar. His head and upper body were inside the motorcar and he was bent over the front passenger seat. Cpl Ivan Tan saw the appellant take three or four white packets from the floor area below the front passenger seat and put them in a black sports bag. The appellant then proceeded to put the bag in the boot of the car.

5.WNO Delphine Tan positioned herself at a staircase landing in Blk 506, about 45 metres away. She testified that she had had an unobstructed view of the front passenger`s side of the appellant`s car. The doors of the appellant`s car were wide open. She saw the appellant carry a dark coloured plastic bag and a black sports bag to the front passenger seat. The appellant then crouched beside the front passenger seat and did something before carrying the two bags back to the boot . The appellant then returned to the front passenger seat and tidied up.

6.The appellant then drove to the carpark of Blk 283 Bishan Street 22 and parked his car on the ground floor. The appellant walked over to a coffeeshop at Blk 284 and only returned to his car twenty minutes later. The appellant then drove to the carpark at Blks 405 and 408 Sin Ming Avenue and parked his car in front of Blk 405. The appellant walked to the Bishan Park carpark where Koh was waiting for him. After speaking to Koh, the appellant returned to his car and retrieved the dark coloured plastic bag from the boot. The appellant then walked towards Blk 408, where Koh was now waiting for him in car EM 5931 C. The appellant got into the car and Koh drove off. The car made a u-turn and stopped along Sin Ming Avenue. The appellant alighted from the car without the dark coloured plastic bag he had been carrying earlier. Koh then drove off. The car was kept under surveillance and later intercepted by CNB officers at the junction of Marymount Road and Bishan Street 21. They arrested Koh and found the dark coloured plastic bag on the floor below the front passenger seat of Koh`s car. The bag contained five packets of brown envelopes filled with a substance believed to be heroin and sealed with masking tape. Upon analysis, the five packets were found to contain 13.17g of diamorphine.

7.The appellant was arrested by Cpl Ivan Tan near Blk 408 Sin Ming Avenue and brought to the carpark of Blk 405 Sin Ming Avenue, where his car was parked. The boot of the appellant`s car was found to contain a black sports bag and a 7-Eleven plastic bag. The black sports bag contained ten packets of substance believed to be heroin, three of which were wrapped with newspaper. Upon analysis, they were found to contain 69.67g of diamorphine. The 7-Eleven plastic bag contained five packets of substance believed to be heroin wrapped in brown envelopes and sealed with masking tape. Upon analysis, they were found to contain 12.22g of diamorphine. These packets were similar to those found in Koh`s motorcar. The ten packets in the black sports bag and the five packets in the 7-Eleven bag contained a total of 81.89g of diamorphine, and this formed the subject matter of the capital charge against the appellant.

8. The defence

The appellant gave evidence in his defence. The appellant claimed that he was employed by one Ah Soon, a Malaysian living in Johore Bahru, as a runner for Ah Soon`s illegal bookie operations in Singapore. He had gone to Johore Bahru on the night of 8 January 1997 to pay Ah Soon moneys he had collected from other runners in Singapore. He had spent the night in Johore Bahru at Ah Soon`s request. On 9 January 1997, Ah Soon had borrowed the appellant`s car SBJ 9516 T, for about ten minutes. During this time, Ah Soon must have placed the plastic bag in the boot of the car without the appellant`s knowledge. The appellant then left for Singapore and passed through customs unchecked. He was oblivious as to the bag and its contents.

9.After passing through the customs checkpoint, he received a call from Ah Soon on his cellular phone. Ah Soon told him that he had left a plastic bag in the boot of the appellant`s motorcar. He then asked the appellant to deliver the bag to Koh at Bishan Park. The appellant claimed to be a gullible and naive person who always complied with Ah Soon`s orders and demands.

10.On the way to Bishan Park, the appellant stopped at the multi-storey carpark at Blk 505 Bishan Street 11 to visit his brother, buy some cigarettes and go to the toilet. While at the carpark, he decided to clean his car. After opening up the boot and the two doors of the car, he remembered the plastic bag which Ah Soon had placed in the boot. The appellant decided to examine the plastic bag. On opening the bag, he found some packages wrapped in brown paper. The appellant did not go on to examine the packages. This was the dark coloured plastic bag which was later recovered from Koh`s motorcar and found to contain 13.17g of diamorphine. The appellant then noticed that a football which he had previously packed into his black sports bag was now lying outside the bag. He unzipped the black sports bag and found some packages containing a yellowish substance. He put the black sports bag on the ground and rummaged through it. A few of the packages were wrapped in newspaper. He thought that the yellowish substance was some kind of `keropok` because of the colour and because it felt crunchy. The appellant then took both the dark coloured plastic bag and the black sports bag to the driver`s side of the car and swung them onto the back seat of the car.

11.He immediately retrieved both bags as one of the handles on the plastic bag had given way. The appellant then returned the bags to the boot of the car. The appellant denied that he had taken any packages from the floor below the front passenger seat and repacked them into the black sports bag. The appellant then drove to Bishan Park and delivered the dark coloured plastic bag containing 13.17g of diamorphine to Koh.

12.The appellant claimed that he had not known that the two bags contained heroin. He also claimed that he had not noticed the 7-Eleven plastic bag which was later also recovered from the boot of his car and found to contain 12.22g of diamorphine. The crux of the appellant`s defence therefore was that he was an innocent courier of drugs and had not known that the bags found in his car contained heroin.

13.During the cross-examination of the appellant, the prosecution sought to impeach his credit by showing that his evidence was inconsistent with his statements to the police recorded under s 122(6) and s 121 of the Criminal Procedure Code (Cap 68). The appellant did not challenge the voluntariness of the statements. Having read the highlighted portions of the statements in respect of which the prosecution had sought to impeach the credit of the appellant, the trial judge found that:

There were material differences and contradictions in all the highlighted portions of the s 121 and s 122(6) statements as to affect the credit of the accused which require his explanation.

The appellant was then cross-examined and asked to explain the inconsistencies between the statements and the evidence he had given. At the close of the case, the trial judge ruled that the credit of the appellant had been impeached.

14.The trial judge found that the appellant had been the owner and the person in charge of car SBJ 9516 T at all relevant times. No...