Zulfikar bin Mustaffah v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 31 January 2001
• Neutral Citation: [2001] SGCA 8
• Docket Number: Criminal Appeal No 21 of 2000
• Date: 31 January 2001
• Published date: 21 November 2003
• Year: 2001
• Plaintiff Counsel: SS Dhillon (Dhillon Dendroff & Partners)
• Citation: [2001] SGCA 8
• Defendant Counsel: Han Ming Kuang and Mohamed Nasser Ismail (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: s 23 Misuse of Drugs Act (Cap 185),Whether adverse should be inference drawn against prosecution,s 5 Misuse of Drugs Act (Cap 185),Criminal Law,Misuse of Drugs Act,Possession of controlled drugs for purposes of trafficking,Element of possession,Wilful blindness as to contents no defence,Requisite knowledge of contents of packages,Failure to disclose identity of informer,Statutory offences

1 On the evening of 4 April 2000, several officers from the Central Narcotics Bureau (“CNB”) lay in wait on the 12th floor of Block 701, Yishun Avenue 5. At about 6.45pm, they received instructions to proceed three floors below, to the ninth floor of the same block. The officers did so. Upon their arrival at the ninth floor staircase landing, the officers saw the appellant. He was engaged in a conversation over his mobile phone, with his back facing the officers. The appellant also had a plastic bag (P22) in his possession. One of the officers announced their arrival by shouting “CNB”, whereupon they rushed up and apprehended the appellant.

2 Inside the plastic bag carried by the appellant were five bundles. Each bundle was wrapped in newspapers. Each bundle also had a plastic layer surrounding the newspaper wrapping. The five bundles were later found to contain a powdery substance (“the drugs”) which had a total diamorphine content of not less than 72.58 grams.

3 The appellant was further found to be in possession of two wads of money. The first wad consisted of ten dollar notes amounting to a sum of S$2,240. The second wad consisted of fifty dollar notes which added up to a sum of S$2,650.

4 After his arrest, the appellant’s home was searched but the police were unable to find any drug-related paraphernalia. A urine test for drugs conducted on the appellant also yielded negative results.

The trial below

5 The appellant was charged in the High Court as follows:

… you … on 4 April 2000, at about 6.45pm, at the 9th floor staircase landing of Blk 701 Yishun Avenue 5, Singapore, did traffic in a controlled drug specified in Class ‘A’ of the First Schedule to the Misuse of Drugs Act (Cap 185), to wit, by having in your possession for the purpose of trafficking, 1 plastic carrier containing 5 plastic packets of diamorphine weighing 72.58 grams (nett) at the said place without any authorisation under the said Act or the regulations made thereunder, and you have thereby committed an offence under s 5(1)(a) read with s 5(2), and punishable under s 33 of the Misuse of Drugs Act.

6 The trial was held before Judicial Commissioner Choo Han Teck.

The prosecution’s case

7 It was the prosecution’s case that the appellant knew what lay inside the five newspaper-wrapped bundles. It was further argued that this knowledge, coupled with the appellant’s physical control over the bundles, established the requisite element of possession of the drugs in the bundles. The prosecution then relied on s 17 of the Misuse of Drugs Act (Cap 185), for the presumption that the appellant was in possession of the drugs for the purpose of trafficking.

The defence below

8 The appellant’s defence, as laid down both by his long statement and by his testimony in court, was as follows.

9 On the night of 3 April 2000, which was the eve of his arrest, the appellant went by himself to the “Europa” pub at East Coast for a drink. While he was there, a Chinese man who introduced himself as “Ah Boy” approached the appellant. The appellant recognised “Ah Boy”, although he could not quite place his finger on where he had met “Ah Boy” before. In the course of the conversation that ensued between the two men, ‘Ah Boy’ found out that the appellant was unemployed, whereupon he offered to find the appellant a job. At “Ah Boy’s” request, the appellant gave “Ah Boy” his mobile phone number. They continued chit-chatting thereafter, until about midnight, when “Ah Boy” left the pub.

10 At about 10am the next morning, on 4 April 2000, the appellant woke up to find himself on a beach near the “Europa” pub where he had been drinking the night before. He made his way to a nearby food court to get some breakfast. At about 1pm, he received a telephone call from “Ah Boy”. “Ah Boy” reminded the appellant about the job offer which he made to the appellant the night before, and then gave the appellant certain instructions to follow. The appellant was told to turn up at the front of Riverdale Primary School at Sengkang, at 3.30pm that same afternoon. He was also given a telephone number, 9354 7663 (“the first number”), to call.

11 The appellant proceeded to follow “Ah Boy’s” instructions dutifully. He took a taxi and arrived at the school in Sengkang. At the appointed time, a Chinese man whom the appellant had never seen before, approached the appellant. The man did not identify himself, but merely handed the plastic bag P22 to the appellant. The man spoke in a mixture of Chinese and English, telling the appellant that the plastic bag belonged to “Ah Boy”, and that “Ah Boy” would contact the appellant later. As the man walked away, the appellant peered into the plastic bag, inserted his hand inside, and counted the five bundles.

12 Five minutes after the Chinese man’s departure, the appellant received another call from “Ah Boy”, instructing him to call the first number. The appellant did so, but the line was engaged. Subsequent attempts to get through failed. The appellant decided to go to a nearby block of flats to await further instructions. At about 5.00pm, “Ah Boy” called again. When the appellant reported his unsuccessful attempts to get through the first number, “Ah Boy” gave him a second number to call. The appellant accordingly called the second number, but this time the person picking up the phone told the appellant that it was the wrong number. The appellant decided to try calling the first number again. This time, he managed to get through. A man answered his call, whereupon the appellant identified himself as “Ah Boy’s” friend. The man instructed the appellant to go to Block 701, Yishun Avenue 5 (i.e. the block where the appellant was subsequently arrested).

13 Pursuant to these instructions, the appellant took a taxi from Sengkang and travelled to Yishun. Along the journey, he started feeling that something was amiss, and wondered whether “Ah Boy” had orchestrated the entire exercise simply to make a fool of him. However, the appellant never for once suspected that the bundles within the plastic bag contained drugs.

14 Upon his arrival at Yishun, the appellant received a call from “Ah Boy”. This time, “Ah Boy” instructed the appellant to put the plastic bag into “a dustbin”. No instructions were given for identifying which particular dustbin was to be used. As the appellant alighted at his destination, he saw a dustbin nearby, and placed the plastic bag into it. He then called the first number and asked the man (the one who had instructed him to go to Yishun) to come down and collect the bag. When the man refused, the appellant proceeded to walk to the block opposite block 701, to await for further instructions from “Ah Boy”. When it became apparent that no call from “Ah Boy” was forthcoming, the appellant called the first number again. By that time, it was already about 6.00pm, and the appellant complained to the man that it was getting late. The man instructed the appellant to bring the plastic bag up to the ninth floor. The appellant thus retrieved the bag from the dustbin and went upstairs. It was when the appellant was at the 9th floor that he was arrested by the CNB officers.

15 In a nustshell, the appellant’s defence was that he was merely an innocent courier who had been made use of by “Ah Boy”. He never knew what the contents of the bundles were. Contrary to the testimonies of the arresting CNB officers, he did not attempt to run away when he was arrested.

16 As for the huge sums of money found on him at the time of his arrest, he claimed to have won $3,000 in a 4D lottery two to three weeks prior to the arrest. To authenticate this claim, he gave the relevant lottery number to the Investigating Officer, who verified that it was indeed a winning number. The appellant further claimed to have won $1,000 in illegal horse-betting about a week after winning the 4D lottery. It was the appellant’s claim that the huge sums of money found on him were attributable to the proceeds from both these winnings.

Choo JC’s findings

17 Choo JC observed that “possession” in s 5 of the Misuse of Drugs Act implies possession with knowledge. Choo JC then went on to reject the defence advanced, i.e. that the appellant was only an innocent courier who had no knowledge as to the contents of the five bundles. Choo JC held:

The more relevant question is, what was he doing with the plastic bag over the three hours? The accused gained possession of the drugs in the bag, not by a purchase of what he thought to be something innocuous; not by an innocent or chance finding in circumstances that do not give rise to suspicion; but from a person he hardly knew, and for no clearly defined purpose other than mere delivery. The unusual and suspicious nature of the way the bag was given to him and the instructions which he had to follow are not in doubt. The accused himself admitted that at some point he felt ‘something amiss’ about it all. He had seen that the bag contained packed bundles which he counted to be five in total. He obeyed the instructions of a virtual stranger and carried the bag from Sengkang to Yishun. By the same token, it is inexplicable that ‘Ah Boy’ would entrust the large consignment of drugs to a person he hardly knew. He deposited the bag in a public waste bin, and then retrieved it to bring it to the 9th floor of a block of flats. Not only do I find the instructions of his contact person to be suspicious, but his own very conduct itself was suspicious. In such circumstances, the accused cannot say that he had neither opportunity nor reason to find out what he was carrying. If he was unable to find out, his only recourse was to abandon the bag. The accused claimed that although he spoke to ‘Ah Boy’ a couple of times over the handphone he could not ask what the bag contained because ‘Ah Boy’ kept hanging up on him. I find this unacceptable. Only a person with an extremely simple mind would have been led around in the way described by the...