Zainal bin Hamad v Public Prosecutor and another appeal

• Judge: Sundaresh Menon CJ
• Judgment Date: 03 October 2018
• Neutral Citation: [2018] SGCA 62
• Citation: [2018] SGCA 62
• Defendant Counsel: Muhamad Imaduddien, Chin Jincheng and Shenna Tjoa (Attorney-General's Chambers)
• Published date: 06 October 2018
• Hearing Date: 11 September 2018
• Plaintiff Counsel: Chan Tai-Hui, Jason, Leong Yi-Ming (Allen & Gledhill LLP), Daniel Chia Hsiung Wen and Eugene Lee (Morgan Lewis Stamford LLC),Peter Keith Fernando (Leo Fernando), Loo Khee Sheng (K S Loo & Co) and Khoo Shuzhen Jolyn (Kelvin Chia Partnership)
• Date: 03 October 2018
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeals Nos 48 and 49 of 2017
• Subject Matter: Misuse of Drugs Act,Statutory offences,Criminal law

Sundaresh Menon CJ (delivering the grounds of decision of the court): Introduction

Following a joint trial, Zainal bin Hamad (“Zainal”) and Rahmat bin Karimon (“Rahmat”) (collectively, “the co-accused”) were each convicted in the High Court of one charge of trafficking in not less than 53.64g of diamorphine under s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”), punishable under s 33(1) of the MDA. Given that no certificate of substantive assistance was provided, the High Court judge (“the Judge”) imposed the mandatory sentence of death on both Zainal and Rahmat: see PP v Rahmat bin Karimon and another [2018] SGHC 1 (“the GD”) at [1].

In Criminal Appeals Nos 48 and 49 of 2017, Zainal and Rahmat appealed respectively against their convictions. After carefully considering the parties’ submissions and hearing their oral arguments, we dismissed the appeals and gave brief oral grounds. We now expand on those reasons and also take this opportunity to provide some guidance as to how the Prosecution and the Defence should approach cases in which the presumptions in both ss 17 and 18 of the MDA may potentially be applicable, given that it is clear that at least some of these presumptions cannot operate together in the same case.

Background

The material facts have been set out by the Judge at [4] to [13] of the GD. Essentially, this case concerns the transportation of a package of drugs, which was found to contain not less than 53.64g of diamorphine. The co-accused were charged with having trafficked in these drugs. Although they were both physically involved in handling the green bag that contained the drugs at various points, and even though in Rahmat’s case he accepted that he was in possession of the green bag, they each contended that they were not trafficking. The objective facts and the contentions of each of the co-accused in respect of these facts may be stated as follows. First, each co-accused claimed that he was dealing with or acting on the instructions of another person. Rahmat referred to the person he was dealing with as “Kanna”, while Zainal referred to the person he was dealing with as “Samba”. Second, the person or persons on whose instructions the co-accused were acting, was or were in fact responsible for arranging to transport the package of drugs. Third, Rahmat claimed that Kanna instructed him to deliver the package, which he ultimately claimed he thought contained medicines, to someone called “Bai”, who then directed him to deliver it to Zainal. Rahmat further claimed that he was to collect a sum of $8,000 which was said to be the repayment due to Kanna arising from an earlier unrelated illegal moneylending transaction, rather than the payment for the medicines. According to Rahmat, his main task was to collect payment of the supposed illegal loan. Fourth, Zainal, who had been a drug dealer, claimed that he wanted to move from drug dealing to dealing in uncustomed cigarettes. As his first endeavour in this direction, he asked Samba to arrange delivery of 200 cartons of such cigarettes. He was told that 20 cartons would be delivered first and in return he was to pay a sum of $8,000, which was the amount payable for the entire shipment. Fifth, Rahmat delivered the green bag to Zainal and collected the sum of $8,000. Zainal said he knew at once that the green bag did not contain the cigarettes. But he said he paid the sum of $8,000 as an advance payment for the anticipated future delivery of the cigarettes. He specifically maintained that he did not pay the $8,000 for the green bag. In fact, his case was that he never really took delivery of the green bag. The green bag was just incidental to the transaction as a whole and was curiously and for no apparent reason left there by Rahmat. Further, when Zainal later moved the green bag to a location in the warehouse behind some pallets where it could not readily be seen, he said he had done so with a view to retrieving it later and then returning it to Rahmat, whom he had hoped and expected would eventually return with the cigarettes. Sixth, throughout this transaction, Zainal said he was extremely uncomfortable because he thought they might be under surveillance by law enforcement officers.

The decision below

The co-accused were tried together in the court below. In relation to Zainal, the Judge made the following findings. Zainal had actual possession of the drugs since he was in control of the green bag that contained the drugs. The act of placing the bag behind a stack of pallets did not deprive Zainal of control as he intended to return to the bag at some point. In any event, the presumption of possession under s 18(1) of the MDA applied and was not rebutted for the same reasons (the GD at [78]–[87]). Since possession was established, the presumption of knowledge under s 18(2) of the MDA applied and was not rebutted. The Judge did not accept Zainal’s defence that he was expecting a delivery of 20 cartons of cigarettes because his actions were incongruous with one who expected to receive cigarettes but knew from the moment he met Rahmat that the latter did not appear to have the 20 cartons of cigarettes with him. In any event, these same factors would have led to a finding that Zainal had actual knowledge of the nature of the drugs, including wilful blindness (the GD at [88]–[107]). Zainal possessed the drugs for the purpose of trafficking, given that the quantity of diamorphine involved was more than triple that of the quantity that attracted the capital punishment and Zainal had not offered any credible explanation for why he had such a quantity. In any event, the presumption of trafficking under s 17 of the MDA would have applied based on the findings of actual knowledge and possession; this presumption had not been rebutted (the GD at [108]–[110]).

In relation to Rahmat, physical possession of the drugs was not in issue; Rahmat’s primary defence was that he did not know the nature of the drugs. The Judge found that Rahmat had actual knowledge, including wilful blindness, that the green bag contained diamorphine and in any event, the presumption of knowledge under s 18(2) of the MDA applied and was not rebutted (the GD at [39]). In particular, the Judge did not accept Rahmat’s claim that he thought the green bag contained medicines. The Judge considered it significant that there was insufficient basis for Rahmat to trust Kanna because of the brevity of their relationship and it was not likely that the delivery of medicines on such a small scale would have enabled Rahmat to obtain such a substantial loan from Kanna (the GD at [45]–[49]). The Judge also noted that Rahmat’s statements to the Central Narcotics Bureau (“the CNB”) differed significantly from the testimony he gave in court on important aspects such as what he thought the green bag contained and whether he had received payment for the delivery (the GD at [50]–[52]).

Against that backdrop, we considered the case run by each of the co-accused on appeal.

Zainal’s appeal

Mr Peter Keith Fernando (“Mr Fernando”), counsel for Zainal, ran two arguments. Both these arguments ultimately rested on his factual case that Zainal never took delivery of the green bag in return for which, it was said, he paid the sum of $8,000. The lynchpin of Mr Fernando’s argument, as we elaborate below, was that Zainal was not in possession of the drugs; alternatively, he did not know the green bag contained drugs. According to Mr Fernando, as far as Zainal was concerned, he never knew and really did not care what was in the green bag. He paid the money for an anticipated future delivery of uncustomed cigarettes. On this basis, Mr Fernando contended that first, Zainal never in fact had possession of the drugs; and second, that in the alternative, if Zainal did have possession of the drugs, he has rebutted the presumption under s 18(2) of the MDA that he knew the nature of the drugs.

We dismissed Zainal’s appeal on both these grounds. In addition, although Zainal did not appeal the Judge’s finding that he had the drugs for the purpose of trafficking and no part of Mr Fernando’s argument was directed to this, in our judgment, the evidence supported the Judge’s finding that Zainal possessed the drugs for the purpose of trafficking even without the presumption of trafficking under s 17 of the MDA. We turn to address each of these points.

Possession

In support of his first argument on possession, Mr Fernando relied on the authority of the Court of Appeal in Sim Teck Ho v PP [2000] 2 SLR(R) 959 (“Sim Teck Ho”) for the proposition that to prove the fact of possession, it is necessary to prove not just that there was physical control of the package but also that there was knowledge of the existence of that package. The latter requirement has been described in the case law as only requiring knowledge of “the thing” in question, and not knowledge of its nature or its name.

It is helpful to begin by referring to the relevant extract in Sim Teck Ho at [12]–[13]. There, the Court of Appeal cited the decision of the House of Lords in Warner v Metropolitan Police Commissioner [1969] 2 AC 256 (“Warner”) as follows: 12 Karthigesu JA went on [to] cite a portion of Lord Pearce’s judgment in Warner v Metropolitan Police Commissioner [1969] 2 AC 256, a decision of the House of Lords which involved the meaning of “possession” for the purpose of s 1 of the Drugs (Prevention of Misuse) Act 1964. Lord Pearce’s dicta had been cited in extenso with approval by the Court of Appeal in Tan Ah Tee v PP [1979–1980] SLR(R) 311. Wee Chong Jin CJ in delivering the judgment of the court, said that the word “possession” for the purpose of the Act should be construed as Lord Pearce had construed it. His Lordship had said in Warner:

One may, therefore, exclude from the “possession” intended by the Act the physical control of articles which have been “planted”...