Yeoh Aik Wei v Public Prosecutor and Another Case

• Judge: Chao Hick Tin JA
• Judgment Date: 06 February 2003
• Neutral Citation: [2003] SGCA 4
• Citation: [2003] SGCA 4
• Court: Court of Appeal (Singapore)
• Published date: 16 April 2007
• Plaintiff Counsel: Peter Fernando (Leo Fernando & Partners), Moh Yong Chee Chuen Alan (Tan Peng Chin LLC)
• Defendant Counsel: Hamidul Haq (PP)
• Subject Matter: Criminal Law,Controlled drug,Unauthorised import,Presumption of knowledge,Whether rebutted presumption,Misuse of Drugs Act (Cap 185) s 18(2), 21

Delivered by Chao Hick Tin JA

1 This was the appellant Yeoh Aik Wei’s (Yeoh) appeal against his conviction on a capital charge of the unauthorized import of a controlled drug, namely, 327.59 grams of diamorphine, for which offence he was sentenced to death. We heard the appeal on 20 January 2003 and dismissed it. We now give our reasons.

The facts

2 The facts of the case were largely not in dispute. At all material times, Yeoh resided in Johore but worked in Singapore. Thus, he commuted almost daily between the two countries. On 7 March 2002, at the early hour of 00.45 am, the appellant drove a Malaysian-registered Honda car from Johore into Singapore and stopped at the Woodlands Checkpoint. The duty officer, Cpl Yeo Kia Huat, inspected the boot of the car and found four newspaper-covered bundles in the well for the spare tyre. When questioned, Yeoh told Cpl Yeo that he did not know what they contained. As instructed, Yeoh then opened up the four bundles and they were found to contain some granular substance. Thereafter, he was placed under arrest.

3 Narcotics sniffer dogs were soon brought to the scene and they sniffed out four more bundles, two each on the left and the right sides of the boot of the car. Yeoh remained calm throughout the period from the time when Cpl Yeo checked the boot until the last four bundles were sniffed out.

4 At 2.50am, ASP Omar Ali Saifudeen of the Central Narcotics Bureau, who had arrived earlier at the scene, asked Yeoh some questions. He recorded the questions and answers in his pocket book and Yeoh signed against that recording. The gist of his answers was that he was asked by one "Tua Pui" to drive the car to Singapore for which he was to be paid $200/-. He said the things in the bundles were drugs. However, he later explained that he gave such an answer because he merely repeated what one of the policemen, who uncovered the bundles, said that they were.

5 In his s 122(6) statement recorded later that morning, Yeoh stated that he had nothing to say. In his s 121 statement taken from him in the afternoon, at about 3.05pm, Yeoh opened up and gave the following account. He owed a debt of RM$2,000 to a loan shark by the name of Tua Pui who, on the morning of 6 March 2002, gave him an ultimatum to either drive a car containing a package to Singapore or pay up the entire loan forthwith. That day, he came to work in Singapore as usual. In the course of the day, having given thought to the demand made by Tua Pui, he decided that he would do the latter’s bidding. At about 11.30pm, having returned to Johore after work, he met Tua Pui at the Mavesta Apartments. Tua Pui passed on to him a car key, a mobile phone with a phone number already keyed-in and two SIM cards. He was instructed to call that keyed-in number on his arrival in Singapore. As he knew that Tua Pui was a drug dealer involved in the sale of Ecstasy tablets, he thought that what he was asked to transport to Singapore were also Ecstasy tablets.

6 At the time of his arrest, a handwritten note in Chinese was found on Yeoh. He admitted writing the note but denied that it was a "farewell" note. We shall return to this note in a moment as it was germane to the defence raised by Yeoh.

7 No finger prints of Yeoh were found on any of the wrappings of the eight bundles. The substance in the eight bundles was later established to contain 327.59 grams of diamorphine.

Decision below

8 In his defence at the trial, Yeoh repeated the assertion made in his s 121 statement that he did not know it was diamorphine that he was bringing into Singapore. He thought it was Ecstasy tablets.

9 In view of the presumptions raised in ss 21 and 18(2) of the Misuse of Drugs Act (MDA), the burden fell on Yeoh to show, on the balance of probabilities, that he lacked such knowledge. At the conclusion of the trial, the judge found that the presumption had not been rebutted because:-

(i) There were material discrepancies between his testimony in court and what he said in his statements;

(ii) The handwritten note was a farewell note;

(iii) In the light of the suspicious circumstances, there was deliberate turning of a blind eye on the part of Yeoh as to what was in the car that he was driving into Singapore.

Appeal

10 Before us, counsel for Yeoh submitted that the trial judge erred in fact and in law by holding that Yeoh knew it was diamorphine he was importing. He argued that the trial judge failed to give sufficient consideration to the following points:-

(i) That at the Mavesta Apartments compound, Tua Pui in answer to Yeoh’s query said that there was one package containing Ecstasy tablets in the car and that it was not diamorphine.

(ii) The fact that Yeoh omitted certain facts in his statements could not mean that his claim, that he did not know he was importing diamorphine, could not be true.

(iii) That Yeoh was not guilty of "Nelsonian" knowledge because he was assured by Tua Pui that the package only contained Ecstasy tablets and was told by Tua Pui not to know where the package was kept and neither should he look for it in the car.

(iv) That the handwritten note was not a "farewell" note as Yeoh did not have death in mind. He was concerned that if he were caught transporting the Ecstasy tablets into Singapore, he would land himself in jail and would not know what to expect.

(v) That it was wrong of the trial judge to attribute guilt just because Yeoh had remained calm throughout the period when the eight packages were uncovered in the car.

Our consideration

11 We propose to deal with these grounds in turn, but in relation to grounds (i) and (ii) we shall consider them together as they are inextricably linked. We would, at this juncture, set out the facts which Yeoh omitted to mention in his statements and which he only alleged at the trial:-

(i) He was afraid that Tua Pui would kill him if he could not repay his debt as Tua Pui had previously said that he had arranged for loan defaulters to be knocked down by vehicles.

(ii) He once had a conversation with Tua Pui in which the latter told him that trafficking in Ecstasy would not attract the death penalty.

(iii) While Tua Pui was handing the car key over to him at the compound of Mavesta Apartments, Yeoh had asked and was told by Tua Pui that there was only one packet of Ecstasy tablets in the car and that trafficking in Ecstasy would not attract the death penalty in Singapore. He said he knew what the penalty in Singapore for trafficking in diamorphine was and would not have agreed to...