Zainudin bin Mohamed v Public Prosecutor

• Court: Court of Appeal (Singapore)
• Judge: Sundaresh Menon CJ
• Judgment Date: 12 February 2018
• Neutral Citation: [2018] SGCA 8
• Citation: [2018] SGCA 8
• Published date: 15 February 2018
• Plaintiff Counsel: Eugene Singarajah Thuraisingam and Suang Wijaya (Eugene Thuraisingam LLP) and Dendroff Jason Peter (J P Dendroff & Co)
• Defendant Counsel: Ong Luan Tze, Carene Poh and Sia Jiazheng (Attorney-General's Chambers)
• Date: 12 February 2018
• Hearing Date: 11 May 2017
• Docket Number: Criminal Appeal No 29 of 2016
• Subject Matter: Sentencing,Criminal Procedure and Sentencing,Criminal Law,Statutory Offences,Misuse of Drugs Act

Steven Chong JA (delivering the judgment of the court): Introduction

This appeal raises the following question of undeniable importance: when is a drug trafficker who claims to be a mere “courier” not merely a “courier”? The answer to this question has a direct impact on a convicted person’s eligibility for the alternative sentence of life imprisonment under s 33B(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”).

The mandatory death penalty for specified drug trafficking offences was first introduced in Singapore in 1975. Since then, it has remained the governing regime for drug trafficking offences until 2012 when amendments were introduced to the MDA to vest the court with the discretion to sentence a convicted person to a term of life imprisonment in lieu of the death penalty. The person convicted is required to prove on a balance of probabilities that (a) he was merely a “courier” – that is to say, that his role in the offence was restricted only to the transporting, sending, or delivering of a controlled drug or acts incidental or necessary thereto – and either (b)(i) the Public Prosecutor certifies that he has substantively assisted the Central Narcotics Bureau (“the CNB”) in disrupting drug trafficking activities within or outside Singapore; or (b)(ii) that he was suffering from such abnormality of mind as substantially impaired his mental responsibilities for the acts and omissions constituting the offence. It is therefore apparent that in order to qualify for the alternative sentence of life imprisonment, the basic condition that must be satisfied – irrespective of the Public Prosecutor’s certification of substantive assistance or the court’s finding of abnormality of mind – is that the convicted person must be found to be a “courier”.

Since the introduction of s 33B of the MDA, a number of decisions have been handed down by our courts to explain when an offender would be considered to have crossed the boundary beyond merely “transporting, sending or delivering a controlled drug” or acts that are related or ancillary thereto. In an oft-cited passage from Public Prosecutor v Chum Tat Suan and another [2015] 1 SLR 834 (“Chum Tat Suan”), this court held at [68] that “a courier is someone who receives the drugs and transmits them in exactly the same form in which they were received without any alteration and adulteration” [emphasis added]. In reality, it is not uncommon for an offender to be involved in doing something more than just “transporting, sending or delivering a controlled drug”. The courts have, however, held that in a limited number of instances, an offender can nevertheless be regarded as remaining a “courier” notwithstanding his additional act so long as that act was “incidental” to or “necessary” for “transporting, sending or delivering”.

The appellant in the present case was convicted by the High Court of the offence of possession of not less than 22.73g of diamorphine for the purposes of trafficking under s 5(1) read with s 5(2) of the MDA and received the death sentence. He was found not to be a “courier” because at the time of his arrest, he had already embarked on the process of repacking one bundle of controlled drugs into two smaller packets of equal weight. Initially, he appealed against both his conviction and sentence. However, at the hearing of his appeal, he abandoned his appeal against conviction and elected to focus his submissions entirely on the issue of whether he could be considered a “courier”. This judgment will examine and rationalise the breadth of activities which would be considered “incidental” to and/or “necessary” for the purposes of “transporting, sending or delivering” within the meaning of s 33B(2)(a) of the MDA, with a particular focus on the division and packing of drugs since this was the act undertaken by the appellant in the present case.

Facts The Appellant and his co-accused

The appellant is Zainudin bin Mohamed (“the Appellant”), a 44-year-old male Singapore citizen. The Appellant faced a total of three charges for offences under the MDA. Two of those charges, involving consumption of a controlled drug and possession of drug-related utensils respectively, were stood down at trial. The Appellant claimed trial to the remaining charge against him, which states:

That you … on 16 May 2014 at about 6.10 pm, at Block 631 Ang Mo Kio Avenue 4 #03-924 Singapore, did traffic in a Class A controlled drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”), to wit, by having in your possession for the purpose of trafficking two packets of granular substance and some loose granular/powdery substance weighing not less than 897.08 grams which were analysed and found to contain not less than 22.73 grams of diamorphine, without authorisation under the MDA or the Regulations made thereunder, and you have thereby committed an offence under section 5(1) read with section 5(2) of the MDA, which is punishable under section 33(1) of the said Act, or you may alternatively be liable to be punished under section 33B of the MDA.

The Appellant was jointly tried with one Shanti Krishnan (“Shanti”), a 51-year-old female Singapore citizen. Shanti was charged with the offence of trafficking under s 5(1)(a) of the MDA, for delivering two packets of granular/powdery substance containing not less than 22.73g of diamorphine to the Appellant on 16 May 2014 at about 6pm.

Background facts

In mid-2013, the Appellant found himself in dire financial straits and unable to pay the instalments for a home loan that he had taken. The debt that he owed grew over the coming months.¹ In May 2014, he was contacted by one “Boy Ahmad”, a male whom the Appellant described as his friend. After the Appellant informed “Boy Ahmad” of his financial difficulties, “Boy Ahmad” suggested that he “deal with heroin to make fast cash”.² The Appellant agreed.

“Boy Ahmad” told the Appellant the role he was to play in the trafficking of diamorphine. He would send a person to the Appellant’s flat to deliver diamorphine. Having received the diamorphine, the Appellant was to await “Boy Ahmad’s” instructions. “Boy Ahmad” would then direct the Appellant to repack the diamorphine into small Ziplock packets and hand those packets over to “customers” who would come to the second floor lift lobby of the block of flats where the Appellant lived. Each packet prepared by the Appellant was to contain 7.8g of drugs containing diamorphine. The Appellant was to receive two “batu” each time, which, as he explained, referred to a total of about one kg of drugs (thus one “batu” contained about 500g of drugs).³ “Boy Ahmad” also informed the Appellant that he would be paid $300 for his efforts each time.⁴

On 10 May 2014, the Appellant met “Boy Ahmad” and they further discussed the arrangements between them. “Boy Ahmad” told the Appellant to buy small Ziplock packets, and passed the Appellant a digital weighing scale which he was to use to ensure that each packet of drugs weighed 7.8g. He also told the Appellant that he would be getting someone to deliver two “batu” to the Appellant on 12 May 2014, and the Appellant agreed.⁵ In addition, “Boy Ahmad” handed the Appellant a plastic bag containing $8,200 in cash, which was to be paid to the person who would pass the Appellant the diamorphine. He also gave the Appellant $300 as a prepayment for the latter’s efforts in receiving and packing the diamorphine.⁶

On 12 May 2014, “Boy Ahmad” contacted the Appellant and asked him to get ready to receive two “batu”. Later in the afternoon, “Boy Ahmad” contacted the Appellant again and gave him Shanti’s contact number. The Appellant then called Shanti, who asked the Appellant where she should meet him. The Appellant gave Shanti his block number and told her to meet him on the second floor of the block.⁷ When they met, the Appellant handed Shanti the plastic bag containing $8,200 and received from her a plastic bag containing a bundle wrapped in newspaper. The Appellant returned to his flat and unwrapped the bundle. He found two transparent packets containing diamorphine within the newspaper. About 15 minutes later, “Boy Ahmad” called the Appellant and instructed him to divide one of the two packets of diamorphine into two. Each of the two divided portions was to be placed into a Ziplock packet (each of which, according to “Boy Ahmad’s” directions, would contain about 226g of drugs). The Appellant complied, using the weighing scale to assist him.⁸ Upon “Boy Ahmad’s” further instructions, the Appellant distributed the two packets and the remaining “batu” to various recipients, who met the Appellant at or near his block to receive the diamorphine.⁹

On 13 May 2014, “Boy Ahmad” met the Appellant to pass him an envelope containing $8,200 in cash, as well as another payment of $300.¹⁰ “Boy Ahmad” called the Appellant in the morning of 16 May 2014, informing him that there would be a delivery of diamorphine at about 6pm that day.¹¹ This delivery led to the charge which forms the subject matter of the present appeal. At about 6pm, “Boy Ahmad” contacted the Appellant again and told him that a person had arrived to deliver diamorphine to the Appellant. The Appellant replied that he would meet that person on the second floor of his block.¹² The Appellant took the plastic bag containing $8,200 cash and went down to the second floor lift lobby of his block, as he had done before. He saw Shanti waiting there for him. Shanti passed the Appellant a plastic bag containing the diamorphine, and the Appellant in turn handed her the plastic bag containing the $8,200 cash. Thereafter, the Appellant went back to his flat and locked the metal gate behind him.¹³

The Appellant then called “Boy Ahmad”, informing him that he had received the two “batu” from Shanti. “Boy Ahmad” then instructed the Appellant to divide one of the two “batu” into half and pack each of the...