Zainudin bin Mohamed v Public Prosecutor

JurisdictionSingapore
CourtCourt of Three Judges (Singapore)
JudgeSundaresh Menon CJ,Tay Yong Kwang JA,Steven Chong JA
Judgment Date12 February 2018
Neutral Citation[2018] SGCA 8
Citation[2018] SGCA 8
Published date15 February 2018
Defendant CounselOng Luan Tze, Carene Poh and Sia Jiazheng (Attorney-General's Chambers)
Plaintiff CounselEugene Singarajah Thuraisingam and Suang Wijaya (Eugene Thuraisingam LLP) and Dendroff Jason Peter (J P Dendroff & Co)
Hearing Date11 May 2017
Docket NumberCriminal Appeal No 29 of 2016
Date12 February 2018

[2018] SGCA 8

Court of Appeal

Sundaresh Menon CJ, Tay Yong Kwang JA and Steven Chong JA

Criminal Appeal No 29 of 2016

Zainudin bin Mohamed
and
Public Prosecutor

Eugene Singarajah Thuraisingam and Suang Wijaya (Eugene Thuraisingam LLP) andDendroff Jason Peter (J P Dendroff & Co) for the appellant;

Ong Luan Tze, Carene PohandSia Jiazheng(Attorney-General's Chambers) for the respondent.

Case(s) referred to

AG v Ting Choon Meng [2017] 1 SLR 373 (refd)

PP v Abdul Haleem bin Abdul Karim [2013] 3 SLR 734 (refd)

PP v Azahari bin Ahmad [2016] SGHC 101 (refd)

PP v Christeen d/o Jayamany [2015] SGHC 126 (refd)

PP v Chum Tat Suan [2015] 1 SLR 834 (refd)

PP v Low Kok Heng [2007] 4 SLR(R) 183; [2007] 4 SLR 183 (refd)

PP v Muhammad Farid bin Sudi [2017] SGHC 228 (refd)

PP v Ranjit Singh Gill Menjeet Singh [2017] 3 SLR 66 (refd)

PP v Siva a/l Sannasi [2015] SGHC 73 (refd)

PP v Suhaimi bin Said [2017] SGHC 86 (refd)

PP v Syed Suhail bin Syed Zin [2016] SGHC 8 (refd)

PP v Tan Kah Ho [2017] SGHC 61 (refd)

PP v Yogaras Poongavanam [2015] SGHC 193 (refd)

Rosman bin Abdullah v PP [2017] 1 SLR 10 (refd)

Tan Cheng Bock v AG [2017] 2 SLR 850 (refd)

Legislation referred to

Interpretation Act (Cap 1, 2002 Rev Ed) ss 9A, 9A(1), 9A(2), 9A(2)(a), 9A(2)(b)(i)

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) s 33B(2)(a) (consd); ss 5(1), 5(1)(a), 5(2), 7, 18(2), 33(4A), 33B, 33B(1), 33B(1)(a), 33B(2), 33B(2)(a)(i)–(iv), 33B(2)(b), 33B(3), 33B(3)(a), 33B(3)(a)(i)–(iv), 33B(3)(b)

Criminal Procedure and Sentencing — Sentencing — Appeals — Appellant instructed to divide and repack diamorphine — Appellant to distribute repacked bundles of diamorphine to recipients — Appellant convicted of possession for purpose of trafficking — Appellant found not to be mere courier — Whether appellant's intended division and repacking of diamorphine was for purpose of delivering, sending or transporting diamorphine — Whether it was relevant that divided and repacked bundles were above retail size — Whether it was relevant that appellant did not exercise decision-making powers — Section 33B(2)(a) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Facts

The appellant agreed to assist one “Boy Ahmad” in the trafficking of diamorphine. “Boy Ahmad” told the appellant that 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 where the appellant lived. The appellant was to receive two “batu”, totalling about one kg of drugs (thus one “batu” contained about 500g of drugs), each time. “Boy Ahmad” also provided a digital weighing scale to the appellant which he was to use to ensure that each packet contained the correct amount of drugs.

On the day of his arrest, the appellant received a plastic bag at the lift lobby of his block. Within the plastic bag were two “batu” of drugs containing diamorphine. He returned to his flat and later received instructions from “Boy Ahmad” to divide one of the two “batu” into half and pack each of the two half “batu” into Ziplock packets. “Boy Ahmad” told him to await further instructions regarding delivery of the repacked drugs. The appellant made a few cuts on one of the packets, intending to divide and repack the contents, before the police entered his flat and arrested him. In the course of investigations, the appellant admitted that on a previous occasion, he had likewise received two “batu” of drugs. He had then repacked one of the “batu” into two smaller packets containing equal amounts of drugs, and handed the packets and the remaining “batu” to various recipients who arrived at his block or its vicinity.

The appellant was charged with 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 Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). At the close of the Prosecution's case, the appellant chose to remain silent and did not offer oral evidence in his defence. The High Court judge (“the Judge”) convicted the respondent and imposed the death penalty, finding that the appellant was not a “courier” because he had embarked on the process of dividing and repacking one bundle of drugs into two smaller packets.

Initially, the appellant appealed against both his conviction and sentence. However, at the hearing of his appeal, the appellant abandoned his appeal against conviction and elected to focus his submissions entirely on the issue of whether he could be considered a “courier”. The appellant argued that his act of dividing the “batu” was necessary for his onward transmission of the correct quantity of drugs to the parties who collected the drugs from him. The appellant also emphasised that the divided “batu” was still many times above the retail size and therefore was not meant to facilitate distribution or sale. Further, he had acted on instructions and did not exercise decision-making powers in seeking to divide and pack the drugs.

Held, dismissing the appeal:

(1) The legislative debates on the introduction of s 33B of the MDA showed that Parliament intended the conditions in s 33B to be limited and “tightly-defined” exceptions to the general rule that the death penalty was the appropriate punishment for those who trafficked or imported quantities of drugs exceeding the prescribed threshold. Parliament did not intend the enactment of s 33B to reflect any relaxation of the strict policy against drug-related activities. In fact, s 33B(2) was enacted to further disrupt such activities by incentivising drug couriers to volunteer information that would assist enforcement agencies in targeting those who held higher positions in drug syndicates: at [49] to [51].

(2) The common thread that ran through the types of conduct that had been found to fall within the scope of s 33B(2)(a) of the MDA, leaving aside acts that consisted of transporting, sending or delivering controlled drugs and offering to do such acts, was that they were all acts that were facilitative of or incidental to the transporting, sending or delivering of the controlled drugs by the offender to the intended recipient: at [81].

(3) Acts that were facilitative of the transporting, sending or delivering of drugs were, in other words, acts that were “preparatory to” or “for the purpose of” such transporting, sending or delivering. They enabled or assisted the offender to transport, send or deliver the drugs (and not to accomplish any unrelated aims which the offender might have had in mind). Acts that were incidental to the sending, transporting or delivering of controlled drugs were secondary or subordinate acts that occurred or were likely to occur in the course or as a consequence of such sending, transporting or delivering. A cautious and restrained approach had to be adopted in determining whether an act could properly be considered incidental to the primary acts of transporting, sending or delivering. For the offender's act to be incidental to the transporting, sending or delivering of the controlled drug, it had to be highly proximate to the nature and purpose of those primary acts: at [82] and [84] to [86].

(4) A courier simply carried out instructions given to him and had practically no room for his own exercise of discretion or decision-making. If the acts carried out by the offender indicated that he possessed some executive decision-making power in the organisation and activities of the drug syndicate, then it was highly unlikely that he could be considered a mere courier. However, the converse was not necessarily true: at [87].

(5) The division of drugs referred to the breaking up of an existing quantity of drugs into any number of smaller amounts, often accomplished by using a weighing scale to ensure that the original mass or quantity of drugs was separated into the desired number of parts, each consisting of the desired weight or amount of drugs. The packing (or repacking) of the drugs generally consisted of the individual parcelling of each of the divided parts of the drugs, typically by placing each of those parts into separate packets or bags: at [89].

(6) In determining whether an offender's division and packing of drugs was preparatory to or for the purpose of transporting, sending or delivering the drugs, it was of the first importance to have close regard to the reason or purpose for the division and packing, objectively ascertained. The analysis was inherently fact-sensitive and no a priori conclusion could be drawn as to whether an offender was or was not a courier based on his acts (or intended acts) of division and packing alone: at [92].

(7) If the offender's reason or purpose for the division and packing of drugs was, for instance, to ensure that the drugs could be transported securely without fear of inadvertent leakage or to allow for placement of the drugs into confined spaces within the transporting vehicle, then the division and packing of the drugs could be considered to be facilitative of the transporting, sending or delivering of the drugs: at [101].

(8) Breaking bulk for the purpose of enabling the original quantity of drugs to be transmitted to more than one recipient was not a preparatory step to deliver but rather an antecedent step involved in facilitating distribution to more than one recipient. Hence, if the reason or purpose of the division and packing was to enable the original quantity of drugs to be transmitted to a wider audience (that is, more than one person), then the division and packing was intended to be facilitative of the distribution of the drugs and not the mere transporting, sending or delivering of those drugs from point...

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13 cases
  • Public Prosecutor v Lokman bin Abdul Rahman and another
    • Singapore
    • High Court (Singapore)
    • 10 March 2020
    ...delivery: see Public Prosecutor v Abdul Haleem bin Abdul Karim [2013] 3 SLR 734 at [55]; Zainudin bin Mohamed v Public Prosecutor [2018] 1 SLR 449 at [83]. In this respect, the focus of the inquiry was “on the accused’s acts in relation to the particular consignment of drugs which form the ......
  • Mohammad Azli bin Mohammad Salleh v Public Prosecutor and another appeal and other matters
    • Singapore
    • Court of Three Judges (Singapore)
    • 23 April 2020
    ...Rosman bin Abdullah v PP [2017] 1 SLR 10 (distd) Tan Kiam Peng v PP [2008] 1 SLR(R) 1; [2008] 1 SLR 1 (refd) Zainudin bin Mohamed v PP [2018] 1 SLR 449 (refd) Legislation referred to Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 392(1) Misuse of Drugs Act (Cap 185, 2008 Rev Ed) ss 18(1), ......
  • Public Prosecutor v Muhammad Nabill bin Mohd Fuad
    • Singapore
    • High Court (Singapore)
    • 3 December 2018
    ...was restricted only to the activities of a courier as listed in s 33B(2)(a) of the MDA (see Zainudin bin Mohamed v Public Prosecutor [2018] 1 SLR 449 at [34]). In the present case, the Prosecution submitted that Nabill failed to show that his involvement was restricted only to the activitie......
  • Public Prosecutor v Mangalagiri Dhruva Kumar
    • Singapore
    • High Court (Singapore)
    • 21 March 2018
    ...and sentence was dismissed (CCA 30/2016).44 Zainudin’s appeal against sentence was dismissed (Zainudin bin Mohamed v Public Prosecutor [2018] SGCA 8). For the purposes of sentence, I found that the recent Court of Appeal decision of Suventher Shanmugam v Public Prosecutor [2017] 2 SLR 115 (......
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