Chia Beng Chye v Public Prosecutor [1980] 2 MLJ 171 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, TS Sinnathuray and Chua JJ).

See CRIMINAL LAW, Vol 4, para 458.

The accused was charged with having trafficked in controlled drugs by transporting 242.85 gms of diamorphine from Ghim Peng Hotel in Geylang to Singapore Changi Airport. The defence of the accused was that he believed he was transporting only certain jewellery and not drugs. These items which he thought he had were allegedly given to him by another man.

Held: (1) if, on the other hand, the purpose is for the transporter's own consumption, such act of transporting is not trafficking within the meaning of s 2; (2) it is the act of transporting drugs for the purpose of distribution which is one of the evils against which s 5 is directed; (3) following Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64 the test for determining whether an act of transporting drugs from one point to another falls within the meaning of 'transport' in s 2 of the Misuse of Drugs Act (Cap 185, 1985 Ed) is the purpose for which the drugs are being transported. If the drugs are transported for the purpose of distributing or giving them to one or more persons, known or in contemplation, at the intended destination, then the act of transporting falls within the statutory meaning and is an act of trafficking;so long as the drugs are transported for the purpose of distribution, it is immaterial whether the intended distribution takes place here, or abroad. Logically, it must follow that such a mover commits the offence immediately after he has begun his journey of moving the drugs, irrespective of whether he reaches his destination or not;the accused had not rebutted the presumptions by any credible evidence and the accused was convicted.

Public Prosecutor v Lau Chi Sing [1988] 1 MLJ 383 High Court, Singapore (Lai Kew Chai and LP Thean JJ).

The respondent was charged in the High Court with having 3,488.91g of cannabis mixture in his possession for the purpose of trafficking on 16 April 1996. The evidence of Dr Ipe from the Department of Scientific Services (DSS) was that the 3,488.91g of substance could not be classified as cannabis, as it failed the requirements stipulated in the United Nations Manual for testing cannabis. However, no other vegetable matter was detected. As such, Dr Ipe certified the substance as `cannabis mixture' since cannabinol and tetrahydrocannabinol were traced. This was said to be in accordance with the definition of `cannabis mixture' provided under s 2 of the Misuse of Drugs Act (Cap 185) (MDA). At the close of the prosecution case, the respondent was acquitted and discharged. The High Court ruled that it was bound by the decision of the Court of Appeal in Abdul Raman bin Yusof & Anor v PP [1996] 3 SLR 15, in which it was held that `cannabis mixture' as defined in the MDA would contemplate the co-existence of two or more separate vegetable matters, of both cannabis and non-cannabis origin. On appeal, the prosecution argued that `cannabis mixture' did not require a mixture of vegetable matter from two or more different species. Rather, in its primary meaning, `cannabis mixture' would mean a mixture of pure cannabis vegetable matter. In its extended meaning, it would include any mixture of cannabis and non-cannabis vegetable matter. By construing the term to give effect only to the extended meaning, as the Court of Appeal did in Abdul Raman, this would displace the primary meaning altogether. This could not have been Parliament's intention. The court was therefore invited to overrule its own decision in Abdul Raman and to direct the respondent to enter his defence to the charge. The prosecution further submitted that alternative charges of trafficking in cannabis and cannabis mixture could have been framed, since Dr Ipe had testified that her tests indicated the `presence of cannabis'. In reply, counsel for the respondent submitted that the construction of `cannabis mixture' adopted in Abdul Raman was correct, since Parliament had introduced the offence of trafficking in cannabis mixture to discourage the trafficking of cannabis which had been camouflaged by mixing with another vegetable substance. As the prosecution could not establish that there were two different vegetable matters in the alleged `mixture', the respondent had been correctly acquitted of the charge.

Held, overruling the decision in Abdul Raman with prospective effect and remitting the case to the trial judge for defence to be called on a new charge: (1) the exhibits could not be classified as `cannabis', since the requirements stipulated in the UN Manual had not been met. The only conclusive inference was that tetrahydrocannabinol and cannabinol had been detected. Strictly speaking, the exhibits should not have been described as `cannabis' at all. There was therefore no merit in the prosecution's submission that alternative charges of trafficking in cannabis and cannabis mixture could have been brought; (2) a restrictive construction of the phrase `mixture of vegetable matter' would operate to preclude a block composed of various parts of the same cannabis plant from being characterised as `cannabis mixture'. Such a construction could not have been intended by Parliament. It would clearly omit to give effect to the ordinary or primary meaning of the term `cannabis mixture'. In its literal sense, the term clearly contemplated an unadulterated mixture of vegetable matter of entirely cannabis origin; (3) the primary meaning of `cannabis mixture' should not be displaced by its `extended' meaning. It was primarily on this count that the court's construction in Abdul Raman was erroneous, in giving sole and exclusionary effect to the extended meaning of the term `cannabis mixture'. Both the primary and extended meanings had to be recognised; (4) the word `law' contained in art 2 of the Constitution was defined in an `inclusive' fashion. It had to be read in its ordinary, popular and natural sense to include judicial pronouncements, or judicial interpretation of statutory provisions which created criminal liability; (5) on 16 April 1996, when the offence was allegedly committed, in the absence of an affirmative judicial interpretation which confirmed what `cannabis mixture' meant and included, any uncertainty in the state of the law should prima facie be resolved in the respondent's favour. The decision in Abdul Raman would have had retrospective effect, and would have applied to all conduct regardless of whether it took place before or after the court delivered judgment on 29 July 1996. The decision would have affirmed the respondent's legitimate expectation that he would not have been charged with a capital offence of drug trafficking; (6) in view of art 11(1) of the Constitution and the principle of nulla crimen nulla poena sine lege, and having regard to the circumstances of the present case, prospective overruling was mandated. All acts done subsequent to the delivery of the court's judgment would be governed by the law as stated herein. Acts done prior to this date would be governed by the law as stated in Abdul Raman; (7) the respondent's acquittal of the charge of trafficking in cannabis mixture was upheld. A new charge in substitution for the capital charge was to be framed, averring that the respondent was in unauthorised possession of controlled Class A drugs, namely, cannabinol and tetrahydrocannabinol, contrary to s 8(a) of the MDA; (8) (per curiam) where art 11(1) of the Constitution and the principle nulla crimen nulla poena sine legewere brought into operation, the courts were precluded from retrospectively reversing a previous interpretation of a criminal statutory provision where the new interpretation created criminal liability for the first time, and where it would operate to the prejudice of an accused. The same prohibition against retrospective overruling had to apply equally where the new interpretation represented a reversal of the law as previously interpreted and effectively extended criminal liability.

Public Prosecutor v Manogaran s/o R Ramu [1997] 1 SLR 22 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

Muhammad Jeffry v Public Prosecutor [1997] 1 SLR 197 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Lai Kew Chai and Chao Hick Tin JJ).

A was convicted of trafficking in 33.71g of diamorphine and sentenced to death. He appealed. His defence was that he had been induced to commit the offence by one G, who was assisting the Central Narcotics Bureau. G had requested A to supply 25 packets of drugs. G was arrested by CNB officers and found in possession of ten packets of a white substance which when analysed turned out to contain diamorphine.

Held, dismissing the appeal: it was not necessary to consider whether G was an agent provocateur as the defence is not recognized in Singapore; neither does the defence of entrapment exist. On the evidence, a conviction on the charge was fully justified and the death sentence was mandatory.

How Poh Sun v Public Prosecutor Criminal Appeal No 11 of 1990 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Lai Kew Chai and Rajendran JJ).

The appellant in this case was observed by five customs officers led by Assistant Superintendent of Customs Cheong handing a white plastic bag to one Koh. The latter was finally arrested and the bag, which contained 26 packets of brownish substance which were analysed by the Senior Scientific Officer of the Department of Scientific Services, was found to contain 111.96g of diamorphine. The trial judges held that as it was the appellant who gave the plastic bag containing the diamorphine to Koh, and, having regard to the definition of 'traffic' in s 2 of the Misuse of Drugs Act 1973, prima facie case had been made out against him under s 3(a) of the Misuse of Drugs Act 1973. The trial judges accepted the voluntary statement the appellant gave to Assistant Superintendent of Customs Cheong on the night of his arrest. The statement was taken in writing by Assistant Superintendent of Customs Cheong under s 121(6) of the Criminal Procedure Code (Cap 113, 1970 Ed). The appellant contended that as an officer of customs is not a police officer, Assistant Superintendent of Customs Cheong had no power to record the statement from the appellant under the provisions of the Criminal Procedure Code and that the statement should not have been admitted in evidence. It was also submitted by the appellant that as a Scientific Officer is not a 'government chemist', a certificate given by the former is not a valid certificate under s 14 of the Misuse of Drugs Act 1973 that prima facie the 26 packets contained 111.96g of diamorphine.

Held, dismissing the appeal: (1) an officer of customs has a duty to investigate into the facts leading to the arrest and seizure. If, after investigation, the facts so warrant, he must charge the person in court for an offence under the Misuse of Drugs Act, for arrest is the first step of the judicial process in the administration of justice; (2) the powers given to officers of customs to arrest, search, seize and detain under the old ordinances and in the Misuse of Drugs Act, are similar to the powers given to police officers under the Criminal Procedure Code; (3) given that an officer of customs has a duty to investigate and charge offenders under the Misuse of Drugs Act, Assistant Superintendent of Customs Cheong in this case was empowered under s 121(6) read with s 121(8) of the Criminal Procedure Code to record a statement from the appellant; (4) a certificate purporting to be signed by the Senior Scientific Officer complied with s 14 of the Misuse of Drugs Act 1973; it must on the face of it also show that the Scientific Officer is a chemist in the service of the government, as a Scientific Officer can be a qualified officer other than a chemist.

Chia Beng Chye v Public Prosecutor [1980] 2 MLJ 171 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, TS Sinnathuray and Chua JJ).

A1, A2 and A3 were charged separately with trafficking in 1.7kg of diamorphine. All three were tried jointly and convicted. They appealed to the Court of Criminal Appeal, inter alia, on the ground that evidence led showing a common intention among the three of them was inadmissible as they had been separately charged.

Held, dismissing the appeal: (1) although they were not charged with having committed the offence in furtherance of a common intention, the trial judges had made findings of fact implying a conspiracy or common intention on their part. There is no principle of law to say that the court cannot make such a finding of fact or that evidence to show such intention is inadmissible if the accused are separately charged; (2) the Court of Criminal Appeal was of the view that the evidence against the accused was incontrovertible and dismissed the appeal.

Lim Kheng Boon & Ors v Public Prosecutor [1991] 2 MLJ 78 Court of Criminal Appeal, Singapore (Yong Pung How CJ, TS Sinnathuray and LP Thean JJ).

The appellant in this case, a gardener, lived with his father. On 27 May 1980, he was arrested by officers from the Central Narcotics Bureau (hereinafter referred to as CNB). He was taken to Joo Chiat Police Station where he was detained in a lock-up. The next day he was taken to CNB and from there to the Sembawang Drug Rehabilitation Centre, where he was detained and given the 'cold turkey' treatment. He was seen by a doctor on the next two consecutive days, but at no time was any sample of his urine taken for analysis. Later he was informed that he would be detained for three years. The applicant contended that he had been unlawfully detained. He applied for a writ of habeas corpus.

Held, allowing the application: (1) in the present case, there was no allegation of bad faith on the part of the director; (2) the power granted to the director under s 33(2) of the Misuse of Drugs Act 1973 to require a person to be admitted to an approved institution for treatment or rehabilitation is subjective of his satisfaction, which must be based on the evidence prescribed by the statute; (3) before the director can exercise his power under s 33(2), the person suspected to be a drug addict must be medically examined or observed or subjected to a urine test; (4) when a power has been confided to a person in circumstances indicating that trust is being placed in his individual judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another. An authority entrusted with a discretion must not in the purported exercise of its discretion, act under the dictation of another body or person; (5) the court cannot undertake an investigation into the sufficiency of the material which caused the director to 'reasonably suspect' the applicant. Once the director makes an order requiring a person, whom he reasonably suspects to be a drug addict, to be medically examined, the only question left is whether the director has exercised his power under s 33(1) of the Misuse of Drugs Act 1973 in good faith;the role of the court is limited to ensuring that the director's discretion has been exercised according to law. But where, as in the present case, the applicant had satisfied the court that the director did not have before him any factual evidence on which he could have made up his own mind whether or not the applicant was a person who required treatment at an approved institution, the order made by the director could not be sustained and must be set aside.

Daud bin Salleh v Superintendent, Sembawang Drug Rehabilitation Centre [1981] 1 MLJ 191 High Court, Singapore (Choor Singh J).

[Annotation: This case was not followed in Subramaniam s/o Marie & Anor v Superintendent, Selarang Park Drug Rehabilitation Centre [1981] 1 MLJ 194.]

The present case concerned the admission of the three applicants to the Selarang Park Drug Rehabilitation Centre ('the centre') for treatment and rehabilitation. At the hearing of the application on 26 November 1980, counsel for the applicants was unable to persuade Chua J to follow the decision of Choor Singh J in Daud bin Salleh v Superintendent, Sembawang Drug Rehabilitation Centre [1981] 1 MLJ 191. Chua J adjourned the hearing for a decision of a court of three judges as provided in s 334 of the Criminal Procedure Code. The applicant, Subramaniam, in Originating Motion No 67 was engaged in providing contract labour for the construction business. On 1 February 1980, he was arrested by police officers from Joo Chiat Police Station at Jalan Pasir together with 21 other persons. The police report revealed that the police officers had acted on information that a pot party was to be held at Jalan Pasir. They caused an ambush on the group and found three kartoos of dried greenish vegetable matter believed to be cannabis, and some reefers. Having regard to the circumstances of the arrest, on the same day, the director caused the applicant to be medically examined at the centre under s 33(1) of the Misuse of Drugs Act 1973 ('the Act'). Acting on the medical report that Subramaniam 'had definitely clinical evidence of drug withdrawal syndrome consistent with heroin addiction', the director in exercise of his powers under s 33(2) of Act made an order for the applicant's admission to the centre to undergo treatment and rehabilitation. Low Leong Poh in Originating Motion No 68 was employed as a daily-rated shipping attendant. Ow Yong Kay Tat in Originating Motion No 69 was a daily-rated lorry attendant. Both were drug supervisees. They went for regular urine tests at the Queenstown Police Station every fifth day. On 13 October 1980, when they reported at the police station for their urine tests, they were arrested. On 21 October 1980, they were admitted to the centre to undergo treatment and rehabilitation. The result of the medical examination for both Low Leong Poh and Ow Yong Kay Tat stated that they 'had definite clinical evidence of drug withdrawal syndrome consistent with heroin addiction'. The three applicants applied for orders that writs of habeas corpus be issued directed to the respondent.

Held, dismissing the appeal: (1) the legislature has not required of the government medical officer or a scientific officer of the Department of Scientific Services to furnish the director with detailed facts and analysis of his examination, observation or test. If that had been the intention of the legislature, it would not have used the clear and precise word 'result' in s 33(2) of the Misuse of Drugs Act 1973; (2) in the absence of any other finding before the director, he was entitled to accept the result of the medical examinations. As a layman, he was entitled to be guided by the findings of medical and scientific facts, the sufficiency of which is a matter only for the director; (3) so long as the director acts fairly, in good faith and follows properly the procedure set out in s 33(1) and (2) of the Misuse of Drugs Act 1973, it is not for the courts to adjudicate on matters which the Legislature has enjoined the director to decide; (4) the court's ruling on the scope of s 33(2) of Misuse of Drugs Act 1973 in Daud bin Salleh v Superintendent, Sembawang Rehabilitation Centre not followed.

Subramaniam s/o Marie v Superintendent, Selarang Park Drug Rehabilitation Centre and other applications [1981] 1 MLJ 194 High Court, Singapore (Wee Chong Jin CJ, Kulasekaram and TS Sinnathuray JJ).

[Annotation: Now see s 37(1) and (2) of the Misuse of Drugs Act (Cap 185, 1985 Ed).]

The first and second accused were jointly tried on the charge that they, in furtherance of their common intention, did traffic in a controlled drug by having in their possession for the purpose of trafficking 100 sachets of 66.42g of diamorphine at a flat without any authorisation, an offence under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act. The 100 sachets were bundled in newspapers found in the flat that the first accused was residing in. The first accused's defence was that he was a chronic drug addict and was in the habit of consuming one sachet of heroin a day and that all the drugs found in his possession were for his consumption, having bought them from the second accused. The second accused denied selling any heroin to the first accused and stated that he did not know of any reason why the first accused was implicating him.

Held, convicting the accused: (1) whilst the first accused was consuming heroin at one sachet daily and the 100 sachets would last him 98 days, it does not mean that he was not also a trafficker; (2) the court found the first accused from his own evidence and his demeanour to be a street-wise person. He was on his own admission living on illegal businesses in backlanes. The first accused's answers were a strain on his credibility; (3) in view of the history of the first and second accused's regular contacts and meetings, ie about three to four times a month, or more often if it was necessary, as they had exchanged each other's handphone and pager numbers and the amount, pattern and frequency of the supplies of diamorphine the first accused received from the second accused, it was only a small portion of the 100 sachets that were for the first accused's own consumption - in all probability, not more than 10 or 20 sachets which is the amount he had been regularly purchasing; (4) the court disbelieved the first accused's story that the second accused had told him about his going away into hiding for one or two months in Malaysia and as such, the court found that he was trafficking in the balance of 80 sachets to supplement his inadequate income and the dwindling lump sum of S$30,000 received from his wife six months earlier to sustain his expensive habit. The first accused had therefore failed to prove his defence of consumption on a balance of probabilities and in the light of the law; (5) the common intention in putting the first accused in possession of the heroin by virtue of s 34 in the circumstances applied to make the second accused liable in respect of the trafficking of the heroin. The reasonable inference the court drew from the large quantity being delivered was that the second accused did so knowing that it was for the purpose of trafficking.

Public Prosecutor v Tan Chuan Ten & Anor Criminal Case No 21 of 1996—High Court, Singapore (Amarjeet Singh JC).

The accused was charged under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185) for trafficking in 30.12g of diamorphine. In his defence, the accused alleged, inter alia, that: (a) the injuries found on his body during the pre-statement medical examination (which injuries were not disputed), were gratuitously inflicted upon him by Sgt Tan, the arresting officer, after he had been arrested and handcuffed to a railing; (b) his oral confession which was subsequently reduced to writing was not given voluntarily as he was labouring under a fear of further injury or assault when he made his oral confession; (c) the drugs were purchased for his own consumption; (e) he only purchased 30 sachets and he did not know that he was given more than 30 sachets on the day of his arrest; and (f) he earned a minimum of $8,000 a month by selling fruits and being a runner for unlicensed bookmakers at the Turf Club.

Held, convicting the accused: (1) the court did not find the accused to be a credible witness and did not believe his evidence that Sgt Tan handcuffed him and then assaulted him for no reason; (2) the accused was a person of sufficiently strong constitution physically and mentally not to have laboured under the kind of fear which he said he did in the van. The court was not convinced by the accused's account of what happened and the accused had not raised a reasonable doubt as to the voluntariness of his oral confession; (3) the accused's contention that he intended to purchase only 30 sachets and that he thought that he was in fact given 30 sachets was inherently implausible; (4) the court was highly sceptical of the accused's evidence of his income, as his evidence was that he was a severe drug addict consuming a large amount of drugs and as such would not have the energy and motivation to carry out his seemingly lucrative fruit business. Furthermore, there was no evidence of any receipt for the sale of fruit to him by his supplier so as to verify the supplier's sales to the accused; (5) the accused had not rebutted the presumption of trafficking.

Public Prosecutor v Lee Kong Joo Criminal Case No 55 of 1996—High Court, Singapore (Choo Han Teck JC).

The accused was charged with trafficking in a controlled drug by having in his possession for the purpose of trafficking 113 sachets containing not less than 44.95g of diamorphine, an offence under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act. The defence was that A had asked him to keep the packet of drugs for him and that he had agreed to it after he had checked that it did not include drugs. As for the two sachets of drugs found in the drawer, the accused claimed that they were for his own consumption.

Held, convicting the accused: (1) on a careful review of the evidence and the submissions made, the court had no doubt whatsoever that the accused had possession of all the drugs and the other related paraphernalia found in the flat. It was the accused who led the narcotics officers to recover the drugs in the flat. After that, the accused voluntarily admitted that he knew that they were sachets of heroin; (2) as for the evidence of the accused that A had put the drugs in the flat and that the drugs belonged to them, it was a hopeless defence. His evidence on the ownership of the drugs was simply a tissue of lies; (3) it was also now settled law that the ownership of drugs was not a prerequisite to trafficking in them. The crucial question was whether, regardless of the ownership of the drugs, an accused had knowlege that the substance which he had at the material time was drugs.

Public Prosecutor v Lee Teck Yeong Criminal Case No 53 of 1996—High Court, Singapore (Sinnathuray J).

The accused was charged with trafficking in 85 sachets of drugs (containing not less than 40.90g of diamorphine) by having them in his possession for the purpose of trafficking. The accused's defence was that the 85 sachets of diamorphine recovered were not for sale and were for his own consumption because he was a severe drug addict consuming a sachet of heroin a day. One of the issues was raised was whether the accused was a mild or severe drug addict.

Held, convicting the accused: (1) there was no doubt that the accused consumed heroin. The gooseflesh, the positive results of the analysis of his urine samples, the recovery of the straw of heroin, the rolled-up paper tube and the piece of tin foil all point to that; (2) the accused's claim that he had intended to keep 85 sachets for his own consumption did not stand up against his own evidence; (3) after reviewing all the evidence, the court rejected the accused's claim that he was a severe addict and that the diamorphine recovered was meant solely for his own consumption. He had not rebutted the presumption that the diamorphine was in his possession for the purpose of trafficking.

Public Prosecutor v Heah Song Mong Criminal Case No 40 of 1996—High Court, Singapore (Kan Ting Chiu J).

The accused was tried for trafficking in 2,223.7g of cannabis, an offence under s 5(1)(a) and punishable under s 33 of the Misuse of Drugs Act (Cap 185). The undisputed facts were that the accused and an eight-year-old girl were spotted by Central Narcotics Bureau officers carrying a bag and leaving that bag on the floor of a bus stop. The bag was later found to contain drugs. The accused's defence was that he was asked by a friend to hand the bag to another person and that he had not asked his friend what was in the bag. He also testified that he fabricated his s 122(6) statement in which he stated that he found the bag at a bus stop left behind by a passenger boarding a bus. Counsel for the accused submitted that lies in the statement, though deliberately made, should not be regarded as corroborative evidence as to his knowledge of the bag's contents.

Held, sentencing the accused to death: (1) the court's finding in all the circumstances was that the accused had knowledge that the contents of the carrier bag was cannabis; (2) knowledge of possession of drugs against an accused can be proved either directly by words or admissions of an accused, or his being found in the act of preparing or packaging drugs, by such evidence of a reliable witness or circumstantially by inferring or imputing possession. The court found knowledge on the part of the accused circumstantially; (3) the only reasonable and proper inference that the court could draw from the lack of compulsion on the accused's part to check the bag whilst admittedly saying that he had the opportunity to do so, the accused's lies in his s 122(6) statement, his failure to mention facts in his s 122(6) statement on which he was relying in court which failure and lies constituted corroborative evidence against him was that the accused knew that the contents of the bag was cannabis.

Public Prosecutor v Jeerasak Densakul Criminal Case No 56 of 1995 High Court, Singapore (Amarjeet Singh JC).

The respondent was convicted for trafficking 1,929.8g of cannabis. The respondent was a regular lashing worker at Brani Terminal, Port of Singapore. On 24 June 1994, after an absence of three weeks, he went there as usual to look for work. He proceeded to the Brani Terminal canteen to look at the deployment list for the day but unfortunately, the crane at which he worked at was not functioning. In any event, he went down to the crane site to collect his clothes which were kept in a travel bag which he had left behind. Shortly after, the appellant left for the bus stop intending to catch a bus to World Trade Centre to meet his girlfriend. He was seated by the kerb near the bus stop when he noticed a blue pick-up approaching him. As the pick-up was making a U-turn, the driver of the pick-up stared at him. This angered the appellant who then decided to follow the pick-up. He observed the pick-up pulling up near a rubbish collection bin whereupon the driver got out, threw a garbage bag into one of the bins and hurriedly left the place. His curiosity aroused, the appellant went to the rubbish bin, opened the garbage bag which the driver of the pick-up had thrown, took out two packages, one wrapped in a white plastic bag and the other in a black plastic bag, and put both packages in his travel bag. He did not examine the two packages as he was in a hurry to catch the bus. On board the bus, Police Constable Gai ('PC Gai') and Sergeant Mustafa ('Sgt Mustafa') did a routine search of the passengers to see if they had any goods to declare. When PC Gai approached the appellant and questioned him, the appellant took out the package wrapped in the white plastic bag and handed it to PC Gai. As PC Gai was about to check the package, the appellant dashed out of the bus with his travel bag. A struggle ensued and the appellant was apprehended. The two packages were later found to contain a total of 1,929.8g of cannabis. A total of four statements were recorded from the appellant which counsel for the defence sought to adduce in evidence. Defence counsel stated that the statements had been made voluntarily without any threat, inducement or promise. The fact of possession was not challenged. The appellant's defence was that he was under the impression that the packages contained Gudang Garam cigarettes or tobacco. The trial judge held that the appellant was not a credible witness and had failed to rebut the operative presumption of knowledge. The appellant subsequently appealed.

Held, dismissing the appeal: (1) on the evidence, the appellant's story could not be believed. The most cogent piece of evidence in favour of the prosecution was that the appellant's urine sample taken on that fateful day showed that he had recently consumed cannabis although the appellant maintained that he was a heroin addict and had never consumed cannabis; (2) in the witness box, the appellant chose to contradict his written statements by implying, inter alia, that they had not been accurately recorded. The appellant's subsequent attempt to wriggle out of the many matters which he had said in his statement, coupled with other inconsistencies in his evidence, showed that he was plainly an untruthful witness. Although a lie or two by the appellant in court would not have amounted to corroboration of his guilt, layer upon layer of lies and falsehoods led to the conclusion that the appellant was attempting to juggle the truth out of a realization of his guilt.

Mahmood Khan bin Anwar Hussain v Public Prosecutor Criminal Appeal No 4 of 1995 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellant was convicted on a charge under s 5(1)(a) of the Misuse of Drugs Act (Cap 185) of trafficking by transporting six packets of heroin containing not less than 294.5g of diamorphine in taxi SH 2894G from Bishan Street 22 to Ophir Road between 11.45am and 12 noon on 19 July 1996. The appellant's defence was that he was an innocent and unsuspecting carrier. According to him, he had thought that he was delivering spare parts for one Ah Poh to an acquaintance in Jurong. He had met Ah Poh through selling contraband cigarettes to him and had previously obliged Ah Poh by delivering spare parts to an acquaintance in Jurong. The appellant claimed that he had just collected the white nylon sack, which was in the black carrier bag seized from him in the taxi, from a cardboard box in Block 253, Bishan Street 22 on Ah Poh's instructions. He only discovered the contents were drugs when he opened the sack in the taxi. He wanted to confront Ah Poh and directed the taxi driver to go to Golden Mile Complex where Ah Poh frequented. On the way there, the taxi was boarded by CNB officers and the appellant was arrested. At the trial, the appellant's long statement was admitted at the very end of the trial, after the appellant had given evidence and during cross-examination, under s 147(3) Evidence Act (Cap 97, 1990 Ed). At the conclusion of the trial, the trial judge disbelieved the appellant's explanation and rejected his defence. He was convicted and sentenced to death. The appellant appealed.

Held, dismissing the appeal: (1) the appellant's story that he was going to confront Ah Poh when, on examining the contents of the white nylon sack, he realised that it contained heroin and not spare parts was totally unworthy of credit; (2) the trial judge had invoked the presumption under s 17 of the Misuse of Drugs Act (Cap 185) that the possession of drugs was for the purpose of trafficking and he found that the presumption had not been rebutted. However, the charge here was one of `trafficking by transporting' and not `trafficking by being in possession'. Even so, there had been no submissions that the appellant was transporting the heroin other than for trafficking. Even if the appellant had been going to Golden Mile Complex to see Ah Poh and presumably return the heroin to him, this would still have been trafficking by transporting; (3) even though the trial judge had criticised the tactics employed by the deputy public prosecutor at trial in relation to the appellant's long statement, the deputy public prosecutor could not be faulted as he was not attempting to supplement the prosecution's evidence or to withhold material evidence but genuinely desired to impeach the appellant's credibility as witness. The evidence in the appellant's long statement had been rightly admitted in evidence under section 147(3) of the Evidence Act and he had suffered no prejudice.

Tan Lay Keat v Public Prosecutor [1997] 2 SLR 382 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The accused was charged with the offence of trafficking in 9.5kg of cannabis under s 5(1)(a) of the Misuse of Drugs Act (Cap 185). His main defence was that he was an innocent courier and that he did not know that the bag given to him contained ganja. He also contended that: (a) his statement to the investigating officer was brought about by threats uttered and inducement offered by the interrogators; (b) the statement did not in fact reflect the essence of the defence of the accused and that it was taken partly from information given by the accused and partly from the prosecution's own sources; (c) an adverse inference should be drawn against the prosecution for its failure in producing an informer to give evidence.

Held, sentencing the accused to death: (1) the court was satisfied that the accused's cautioned statement recorded under s 122(6) of the Criminal Procedure Code (Cap 68) was made voluntarily by the accused. The threats and inducements were made up by the accused; (2) the statement was indeed given by the accused. Though the statement was disowned and retracted by the accused, it reflected in fact what clearly transpired; (3) the evidence of the Central Narcotics Bureau officers who were directly concerned with the operation was overwhelming. The presence or otherwise of the informer at the trial would not have made any difference; (4) para 10 of the statement further fortified the fact that the accused knew that the substance he was carrying was ganja and that he would receive a sum of money for his errand; (5) the defence advanced, ie that of lack of knowledge of the contents of the bag, was an exercise in vacuity.

Public Prosecutor v Osman bin Din Criminal Case No 70 of 1994 High Court, Singapore (Rubin J).

On 17 January 1996 at about 7pm, CNB officers arrested the second appellant, Tong Chee Kong (Tong) whilst he was driving his car along Bedok North Ave 1. On the same day at about 11.42pm, the first appellant, Tan Chuan Ten (Tan) was also arrested in his flat. At the time of Tan's arrest, ten newspaper bundles were found. One hundred sachets of heroin were found to be wrapped inside these bundles and the total net diamorphine content of the 100 sachets was 66.42g. One fingerprint was lifted from one of the ten sheets of newspaper used to wrap the ten bundles and this print was found on the inside of the sheet which wrapped the bundle. It was not disputed that this print came from the left forefinger of Tong. At the commencement of the trial, the charge preferred against both the appellants was that on or about 17 January at about 11.42pm at Apartment Block 204, Jurong East Street 21, #07-255, in furtherance of their common intention, they had in their possession the drugs for the purpose of trafficking and that by virtue of s 5(2) of the Misuse of Drugs Act (Cap 185) (the Act) they committed the offence of trafficking in those drugs. At the close of the case for the prosecution, the charge was amended to the effect that they committed the offence between 11 January and 17 January. The trial judge found that a prima facie case had been established against Tan which, if unrebutted, would warrant his conviction as he was found to be in possession of the drugs at the time of his arrest. As against Tong, the judge also held that a prima facie case had been made out. Firstly, the judge drew the inference from the fingerprint lifted from one of the sheets of newspaper that Tong wrapped that particular bundle of drugs. Secondly, as all the bundles were wrapped in half pages of newspapers of the same date as well as in similar manner Tong `in all probability' also wrapped all of them and delivered them or had them delivered to Tan between 11 January and 17 January 1996, as they were in regular contact with each other. They were both convicted and they appealed.

Held, dismissing the first appellant's appeal but allowing the second appellant's appeal: (1) a prima facie case had been made out against Tan and as he was the one found to be in possession of the drugs, it was immaterial whether or not he had a common intention with Tong in furtherance of which he committed the offence. As he was in possession of the drugs at the material time, he was, by virtue of s 17 of the Act, presumed to have had the drugs for trafficking, and by virtue of s 5(2), unless the presumption was rebutted, he would have committed the offence of trafficking; (2) the evidence against Tong by the close of the prosecution case was wholly circumstantial. The question was whether on the totality of the evidence there could reasonably have been inferred a common intention subsisting between Tong and Tan in furtherance of which Tan had possession of the drugs at his home for the purpose of trafficking; (3) a reasonable inference was one which, on looking at the totality of the evidence, one could say that there was a reasonable degree of probability, not just a mere possibility or a strong suspicion, that fact which the court could have inferred did occur. Such an inference did not have to be the only inference that the court could reasonably have drawn from the evidence. There could have been another or other inferences which the court could reasonably have drawn and any one of them could be relied upon to establish a prima facie case; (4) on the totality of the evidence, the inference which could reasonably have been drawn was that during the period between 11 and 17 January 1996 Tong and Tan met, and that Tong handled or touched one or more of the pieces of newspapers used to wrap the drugs. All that the evidence had shown was a strong suspicion that Tong could have been involved in Tan having possession of the drugs, but the evidence on the totality was not sufficient from which the court could reasonably have drawn the inference that Tong wrapped and delivered the drugs to Tan. Therefore a prima facie case had not been made out against Tong at the close of the case for the prosecution and his defence ought not to have been called; (5) although there was ample evidence of Tan's severe addiction, there still remained the question whether on the evidence Tan had rebutted the presumption that he had the drugs in his possession for the purpose of trafficking. The trial judge rejected his evidence that all the drugs in his possession were meant for his own consumption and his explanation for buying such a large quantity because his supplier was about to go into hiding for a month or two. Nor did the trial judge believe entirely his evidence in respect of his income from illegal activities, as his severe addiction to drugs would have adversely affected his capacity for work. The judge concluded that notwithstanding his severe addiction, a substantial portion of the drugs was intended for sale and hence he had not, on a balance of probabilities, rebutted the presumption under s 17 of the Act . This conclusion was justified on the evidence.

Tan Chuan Ten & Anor v Public Prosecutor [1997] 2 SLR 348 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

A was charged with trafficking in diamorphine. He was arrested by CNB officers and found in possession of a bag containing packets of diamorphine. He led the officers back to his flat where more such packets were found. D's defence was essentially a denial of the charge. He alleged that the drugs were not his but belonged to someone else.

Held, convicting the accused: after considering the testimony of the accused, the trial judges disbelieved him. A was convicted and sentenced to death.

Public Prosecutor v Tan Toon Hock Criminal Case No 13 of 1985 High Court, Singapore (Lai Kew Chai and Chan Sek Keong JJ).

A was convicted in the High Court of trafficking in 144.52g of diamorphine. He was a tour guide and was caught at Woodlands checkpoint with the drugs. At the time, he stated that he had been paid to deliver the drugs by an unknown man. His defence at the trial was that the drugs were for his own consumption.

Held, dismissing the appeal: the quantity of diamorphine found was too large for A's own consumption. It had a street value of S$192,000. A could not have afforded such a large quantity for himself. The conviction was upheld.

Ho Cheng Kwee v Public Prosecutor [1989] 1 MLJ 8 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, TS Sinnathuray and Chua JJ).

A was arrested at Changi International Airport as he was waiting to board a flight for Australia, with packets of diamorphine concealed under his clothes. He admitted to a police officer that he was carrying drugs. At the trial, A claimed that he did not know what was in the packets. A stated that he was carrying the goods on behalf of another person, Y, who had told him that he was carrying Chinese medicine. A asked Y whether it was dangerous or an offence to carry 'that thing'. Y told him that it was not an offence in Singapore but that it would be taxed in Australia. A also denied telling the police officer that he was carrying drugs. He was charged with attempting to export 1,269.8g of diamorphine from Singapore contrary to s 7 read with s 12 of the Misuse of Drugs Act (Cap 185) ('the Act'). In the alternative, he was charged with trafficking in the same quantity of diamorphine contrary to s 5(a) of the same Act.

Held, convicting A: (1) the sole question of fact here was whether A knew that he was carrying heroin or whether he believed, as he claimed, that he was merely carrying Chinese medicine to Australia; (2) having considered the entire evidence, the court was left in no doubt that A knew he was carrying heroin. The court also found that he had admitted that he was carrying drugs to Australia. He was accordingly convicted and sentenced to death.

Public Prosecutor v Goh Ah Lim [1989] 3 MLJ 461 High Court, Singapore (Lai Kew Chai and Chua JJ).

Public Prosecutor v Lau Chi Sing [1988] 1 MLJ 383 High Court, Singapore (Lai Kew Chai and Thean JJ).

See CRIMINAL LAW, Vol 4, para 452.

R1 and R2 were charged with trafficking in a controlled drug contrary to s 5(a) of the Misuse of Drugs Act (Cap 185). 22.3kg of cannabis had been found in a room occupied by them. In statements made to the police, R1 admitted that the drugs were for sale. He also admitted to having transported the drugs from Tuas to the flat in which they were found. After considering all the evidence, the district judge found that both R1 and R2 had transported the cannabis from Tuas to their flat. However, the district judge did not feel that he could convict them of trafficking because it had not been proved that they intended to part with the possession of the drugs to someone else at the intended destination. He accordingly reduced the charge to one of possession under s 8(a) and convicted them on this lesser charge. They were sentenced to four and two years' imprisonment respectively. The public prosecutor appealed. The appeal against R2 was stood down and only the appeal against R1 was proceeded with at this stage.

Held, allowing the appeal: (1) the mere moving of a quantity of drugs does not amount to trafficking. But if the movement is for the purpose of transferring possession from the mover to some other persons at the intended destination, the mover is guilty of the trafficking whether that purpose was achieved or not. The distinction is between movement for one's own consumption and movement for the purpose of sale; (2) the quantity of cannabis transported by R1 was much larger than was likely to be needed for his and/or R2's consumption. The inference was irresistible that he was transporting the cannabis for the purpose of trafficking. He had admitted in his statement to the police that the drugs were for sale; (3) on these facts, all the ingredients necessary to constitute the offence of trafficking under s 5 had been proven. There was transportation and there was intention to sell. There is no reason why a person may not be convicted of trafficking even if not actually caught in the act of transportation, as long as there is evidence of such transportation for the purpose of sale; (4) the conviction under s 8(a) was accordingly set aside and a conviction under s 5(a) substituted. R1 was sentenced to the minimum of 20 years' imprisonment and 15 strokes of the cane.

Public Prosecutor v Syed Feisal bin Yahya & Anor Magistrate's Appeal No 90 of 1989 High Court, Singapore (Chao Hick Tin JC).

A1 was charged with trafficking in 1,370.3g of diamorphine by transporting it from a hotel to the airport. A2 and A3 were charged with abetting her. The drugs were found in packets strapped around A1's body. After a trial within a trial, statements made by all the accused were admitted in evidence. A1 admitted that she agreed to carry the drugs to the US in return for payment. A2 and A3 admitted strapping the drugs on her in the hotel room. Counsel for the accused submitted that the case against A1 had not been made out as it had not been shown that she had transported the drugs. The submission was made that she could have strapped the packets on at the airport after taking off the packets in the hotel. It was submitted that she should have been charged with possession and not with trafficking.

Held, convicting the accused: the inference from the evidence was that the drugs had been strapped on A1 at the hotel, transported to the airport and were to be taken onto the aircraft. No other evidence was given by the accused, who elected not to call evidence. They were all accordingly convicted and sentenced to death.

Public Prosecutor v Sim Ah Cheoh & Ors Criminal Trial No 28 of 1986 High Court, Singapore (Lai Kew Chai J and Grimberg JC).

A was convicted of drug trafficking by the High Court. (See [1988] 1 MLJ 313.) He was caught transporting drugs in torch batteries. His defence, inter alia, was that the drugs were not meant to be consumed in Singapore.

Held, dismissing the appeal: it is not an element of the offence that when drugs are transported, they must be used in Singapore. The mere transportation of drugs would amount to the offence of trafficking even if they are intended for the transporter's own consumption. Any other result would be contrary to the intention of Parliament. The appeal was dismissed.

Lau Chi Sing v Public Prosecutor [1989] 1 MLJ 5 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Chua and Rajah JJ).

The accused was tried for the capital offence of trafficking in diamorphine by having 49.93g of diamorphine for the purpose of trafficking. In his defence, the accused claimed that the drugs were solely for his own consumption.

Held, convicting the accused: (1) the accused had to rebut the presumption that the drugs were for the purpose of his own consumption. He had to do so on a balance of probabilities. In view of the presumption under s 17 of the Misuse of Drugs Act, the prosecution need not produce evidence of an actual transaction which amounted to trafficking. In my judgment the accused failed to rebut the presumption on a balance of probabilities; (2) the accused was only a mild addict as shown by his mild withdrawal symptoms; (3) the paraphernalia found in the accused's room related to drugh trafficking - the large number of empty sachets, over 400 envelopes, two digital weighing scales.

Public Prosecutor v Chan Ah Kow Criminal Case No 49 of 1996—High Court, Singapore (Lai Kew Chai J).

The appellant was convicted of trafficking in 56.31g of diamorphine, an offence under s 5 of the Misuse of Drugs Act (Cap 185) ('the Act'). The appellant lived in a rented flat in an apartment block in Commonwealth Crescent, Singapore. On 12 February 1992, the appellant was arrested at the foot of his apartment block and was found to be in possession of a bunch of keys which included the key to his flat. He was then escorted back to his flat where the said drugs were discovered in the master bedroom. The appellant's defence during his trial was that the drugs were for his own consumption. On appeal the same defence was argued.

Held, dismissing the appeal: (1) the evidence does not support a finding that the accused could or would keep such a large stock of drugs for his own consumption; (2) even if the drugs were for the appellant's own consumption, there was no satisfactory evidence as to the appellant's source of income with which he could support his expensive drug taking habits.

Lee Hock Chuan v Public Prosecutor Criminal Appeal No 49 of 1993 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellant was convicted in the High Court of trafficking by transporting not less than 60.13g of diamorphine. As a result of a CNB-mounted operation, he was observed with a plastic bag and followed to an apartment belonging to one Tan Tee Kia ('Tee Kia') where he was arrested after ringing the door bell. In the plastic bag was a parcel wrapped in polka-dotted gift wrapping paper. Beneath the wrapping paper was a cardboard box containing 59 sachets of diamorphine weighing 60.13g. His fingerprint was found on the inside of the wrapping paper. Immediately after he was arrested and handcuffed, one ANO Chua questioned him as to the contents of the packet to which he replied 'gift', 'heroin' and '59 sachets' in that order. Various drug paraphernalia were later seized from his flat, including mini plastic bags and a weighing machine. The CNB operation had been mounted as a result of the arrest, four days earlier, of Tee Kia, who had disclosed to the CNB officers that his supplier was one 'Botak' (a nickname of the appellant) and had agreed to cooperate with the CNB to page for Botak and request for a supply of drugs. After his arrest, the appellant had volunteered a cautioned statement where he stated that it was Tee Kia who requested for the packet and that he had telephoned the appellant to make that request. During the trial, Tee Kia gave evidence as a prosecution witness but stated that his supplier was actually one Ah Lee and not Botak and that it was Ah Lee who he had paged the day the appellant was arrested. He explained that he had lied earlier to the CNB officers that Botak was his supplier in order to protect Ah Lee. The appellant's defence was premised on the fact that Ah Lee and Botak were two different persons and that it was Ah Lee who ultimately agreed to deliver drugs to Tee Kia on the day of the appellant's arrest. Ah Lee had asked the appellant as a favour to carry the parcel on his behalf as a present to Tee Kia. On appeal, it was argued that the damaging oral statements made by the appellant to ANO Chua were fabricated and, in any event, they were hearsay and should not have been admitted as evidence of the truth of what was said. It was also argued that Tee Kia was an agent provocateur and the appellant was merely an innocent courier in the transaction previously arranged by Tee Kia and Ah Lee, and that Ah Lee, who had access to the appellant's room, had used the appellant's cardboard box and wrapping paper to wrap the drugs in.

Held, dismissing the appeal: (1) notwithstanding that Tee Kia was a prosecution witness, the trial judge was correct in disbelieving his claim in court that he had spoken only to Ah Lee and not Botak on the day of the appellant's arrest in view of the fact that Tee Kia had admitted to lying in order to protect Ah Lee and was, therefore, not a credible witness; (2) concoction by ANO Chua of the damaging oral statements made by the appellant. These statements were clearly made by him in circumstances of spontaneity and went to show his knowledge of what he was carrying when he was arrested and formed part of the transaction of transporting the drugs. They would, therefore, be relevant under s 6 of the Evidence Act as facts so connected with a fact in issue as to form part of the same transaction and, by being relevant, were admissible under s 5 of the Evidence Act; (3) the appellant's explanation of the contents of his cautioned statement that it was Ah Lee and not Tee Kia who had telephoned him to bring the packet to the latter was unconvincing. His explanation of how Ah Lee had wrapped the packet of drugs also lacked credibility; (4) the defence of agent provocateur and entrapment do not exist in Singapore as defences simpliciter.

Chi Tin Hui v Public Prosecutor [1994] 1 SLR 778 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

Lee Lum Sheun v Public Prosecutor [1994] 2 SLR 497 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

See CRIMINAL LAW, Vol 4, para 592.

The accused was arrested for consumption of drugs and sent to a drug rehabilitation center. Two weeks later he was rearrested and charged with trafficking 39.84g of heroin after a search of his flat was conducted in his presence and drugs were found hidden in it. The accused challenged the admissibility of his confession given to the investigating officer on the grounds that it was not made voluntarily because of threats and inducements. He also contended that (a) the Chinese interpreter's contradictory statement at the preliminary inquiry should be used not only to impeach his credibility under s 157 of the Evidence Act (Cap 97) but should also be admitted as proof of the fact stated therein under s 147(3); (b) there was no case for the accused to answer at the end of the prosecution's case because the evidence adduced was inherently incredible; (c) he was not the person in possession of the drugs in the flat because they were placed there by some person without his knowledge; (d) the introduction of evidence by the prosecution that he was arrested with three sachets of heroin was inadmissible on the ground that it was highly prejudicial.

Held, sentencing the accused to death: (1) s 147(3) of the Evidence Act is not subject to s 157 or vice versa. The two provisions are not mutually exclusive and the legislative intent was clearly to insert s 147(3) to augment s 157. Hence, once a previous inconsistent statement is admitted, it may be used to discredit the witness (maker) and it may also be used to prove the fact stated therein. However, the maker must be given an opportunity to explain the inconsistency; (2) on the evidence, the Chinese interpreter's credibility was not impeached nor should his contradictory previous statement be adequate proof in itself that he arrived at the investigating officer's room after the accused entered the room; (3) statements made by the investigating officer to charge the accused's family members and to confiscate their house do not fall within the meaning of 'threat' under s 24 of the Evidence Act. That provision is intended to apply only to a threat, inducement or promise of a temporal nature so far as the charge against an accused was concerned. It does not operate where a confession is made in order to save a third party, whether a family member or not; (4) statements by the investigating officer that the accused need not worry because he did not have the keys to the premises and that he would not hang if he gave a good statement did not amount to inducements as they were vague and the accused did not provide any details. The 'threat, inducement and promise' complained of have no reference to the proceeding against the accused or to the charge against him; (5) to establish that the evidence adduced was inherently incredible, one ought to look at the nature and purport of the evidence in question and must be satisfied that it would be absurd to credit it with any value whatsoever. At a voir dire, the evidence should not be evaluated to establish whether the court would accept it as being proved at this stage; (6) the accused was nevertheless in possession because he was the sole occupant of the flat at the material time inasmuch as he was in possession of his clothing and personal effects in the flat; (7) 'possession' within the meaning of the Misuse of Drugs Act (Cap 185) is not restricted to mere physical possession of the drugs in the flat;the evidence that the accused was arrested with three sachets of heroin is admissible because it is relevant as being so connected with a fact in issue as to form part of the same transaction, that is, the trafficking of drugs as charged. The admission of such evidence is subject to the court's discretion to exclude it on the ground that it may unduly prejudice the accused. The mere fact that it directly affects the accused's defence is no reason to hold that this constitutes undue prejudice. The probative value far outweighs any prejudicial effect of its admission.

Public Prosecutor v Poh Kay Keong Criminal Case No 55 of 1995 High Court, Singapore (Choo Han Teck JC).

[Annotation: Reversed on appeal. See [1996] 1 SLR 209.]

The first accused was charged under s 5(a) of the Misuse of Drugs Act ('the MDA') with the offence of trafficking in a controlled Class A drug, namely 1040g of cannabis, punishable under s 33 of the MDA. The second accused was charged with conspiring to traffick in a controlled substance, an offence under s 5(a) read with s 12 of the MDA and punishable under s 33 of the MDA. Both accused were also charged under s 5(a) of the MDA read with s 34 of the Penal Code with the offence of having in their possession 943.3g of cannabis which they did traffick in under s 17 of the MDA. The facts showed that the Central Narcotics Bureau ('the CNB'), acting on information, effected an undercover operation to purchase 1kg of cannabis and arrest the person involved. In the process of the operation, one narcotics officer, NO Tan, inquired of the first accused whether he had any drugs for sale and the first accused agreed to sell 1kg of cannabis with delivery to take place the following day. The first accused arrived at the delivery point the following day on a motorcycle ridden by the second accused. The second accused waited outside with the motorcycle while the first accused met NO Tan and made the delivery. The first and second accused were both arrested and charged. The first accused's defence was that he been approached by a friend in the company of a total stranger, NO Tan, and asked whether he had any cannabis. The first accused knew his friend did sell cannabis and replied that he would see. The price was also discussed and the accused knew from his friends that it would be S$1,800 per kg. The following day, the accused was approached by NO Tan who asked about the cannabis. The first accused made inquiries with some friends and obtained the drugs as a result. He told NO Tan that the price was S$1,850 and arranged to meet him to collect the goods. He then arranged with a friend, the second accused, to take him on his motorcycle to the arranged meeting point. He maintained that the second accused was in no way involved with the sale or the discussions preceding the sale, and that he had only implicated him in his statement because he was upset that the second accused had told the authorities that the two bags seized belonged to him, the first accused. The second accused's defence denied all involvement. He said that he had obliged a friend with a lift. He had seen two bags on his motorcycle and asked the first accused about them and was told that they belonged to the first accused's friends. While the first accused went to speak to another friend, the second accused looked in the bag and took out the package inside. The first accused returned and asked him not to proceed, to which he obliged. He drove the first accused to the place he requested and waited for him. While he was waiting, he was arrested.

Held, acquitting the second accused and convicting the first accused on a reduced charge of possession of the substance referred to in the first and third charges under s 8(a) of the MDA and sentencing him to seven years' imprisonment for each charge to run concurrently: (1) notwithstanding the presence of the second accused near the scene, he had given a satisfactory explanation of his presence and successfully rebutted the operative presumptions of the MDA for both charges on the balance of probabilities; (2) the second accused was entitled to the benefit of a doubt following the reasoning given in Vinit Sopon v PP [1994] 2 SLR 226, in which it was held to be unsafe to anchor a conviction in a capital case on the evidence given by the prosecution; (3) the central issue in respect of the first accused was the element of mens rea in both charges. A private clinical psychologist found the first accused had an IQ of 74 (borderline cognitive capacity), could be very easily misled and might not be able to discern right from wrong; (4) it is a well-settled principle that expert evidence is no more than a tool to assist the court in arriving at a finding on facts. The central issue in respect of the contrasting testimonies was whether the first accused, given his attributes, was capable of discerning right from wrong or whether his mind was so overborne that he committed an offence which he would not otherwise have committed; (5) from the evidence given by the first accused, it was found that he had borderline cognitive capacity, that he could be easily manipulated, that he lacked intellectual capacity and may have difficulty in determining right from wrong; (6) given the first accused's psychological assessment, the question was whether he could form the requisite intention to traffick in the drugs and if not, there would be a successful rebuttal of the operative presumptions of s 17 of the MDA; (7) s 84 of the Penal Code notes that a person who is incapable of knowing the nature of his act is not capable of forming the necessary mens rea. The basic test is whether the accused knew his actions were wrong and against the law. Whether an educationally subnormal person is criminally responsible for his actions depends on whether he knows what he is doing is wrong (R v Windle (1952) 36 Cr App R 85). Subnormal intellect per se does not constitute unsoundness of mind for the purpose of s 84. The focus is on the state of the accused's mind when the alleged offence is committed. Evidence in support of a mental condition goes to mitigation and is not a defence in law; (8) the offence of trafficking is proven once possession is established. The operative presumptions mean that there is no need to establish actus rea and mens rea. The evidence is factual and is based solely on the circumstances. The fact that the first accused was mentally subnormal did not rebut the s 17 presumptions; (9) there is no defence of entrapment in law. In the same mode, the evidence of an agent provocateur does not need to be considered with special caution over that of a normal witness. R v Sang [1980] AC 402 held that courts are not concerned with how the evidence was obtained. Entrapment can, however, go to mitigation of the sentence and the courts in Singapore have a discretion to exclude the evidence of an agent provocateur if it would operate unfairly against the accused (PP v Teo Ai Nee (MA No 111/94/01-02)); (10) The fact that the accused could be easily manipulated and the fact that the CNB officers had taken a very active role in persuading the first accused to sell the drugs went to the degree of guilt. There was real doubt as to whether he could be criminally responsible so as to warrant the death penalty in light of his intellectual disability and the real possibility of his being manipulated; (11) on the balance of probabilities, the first accused was given the benefit of a doubt as to his capability to form the requisite mens rea to traffick in the drugs; (12) s 8(a) read with s 18(2) of the MDA define actual possession and knowledge of the nature of the drugs in terms of the mens rea for the offence of possession. Sukor v PP [1995] 1 SLR 221 requires both physical and mental elements to be present before the offence can be made out. The first accused was in posession of the drugs and he knew their nature. The mental element required is minimal.

Public Prosecutor v Rozman bin Jusoh & Anor Criminal Case No 49 of 1994 High Court, Singapore (Rubin J).

The appellant was arrested on 18 August 1994 at the entrance of Lido Entertainment Centre. Corporal Amrun ('Cpl Amrun') of the Central Narcotics Bureau ('the CNB') testified that he saw that both of the appellant's hands were resting on a yellow plastic bag placed in front of the appellant, on top of a parapet. Another officer did not see the plastic bag but saw that the appellant's elbows were resting on the parapet. A third officer said that when he saw the appellant, his hands were by his side. It was not disputed that the appellant was standing by himself and that the yellow plastic bag was about 16cm away from the appellant and was directly in front of him. There were three brown envelopes in the plastic bag, each marked with the figure '10' and containing ten packets of yellow granular substance amounting to 42.95g of heroin. These formed the subject matter of the first charge of trafficking. The appellant maintained that he had nothing to do with the drugs. At the appellant's flat, a bag containing 130.3g of heroin, a weighing scale and S$800 was found. These were the subject matter of the second charge of trafficking. According to the CNB officers, the appellant, when asked to whom it belonged, nodded his head and answered 'saya punya' 'mine'. The appellant said that he answered 'ini barang bukan punya' 'these things are not mine'. Ten packets of heroin in the bag were placed in a brown envelope with the figure '10' written on it. The appellant's defence was that the bag was given to him for safekeeping by one Rahim whom he had only met twice previously, one of which time was by chance. He did not know that it contained drugs. The appellant was convicted of both charges of trafficking.

Held, dismissing the appeal: (1) the trial judge was entitled to come to the conclusion that the appellant was in possession of the yellow plastic bag. It was the appellant's own evidence that there was nobody standing near him at the time of his arrest. It was also not disputed that the yellow plastic bag was only about 16cm away from and directly in front of the appellant. Cpl Amrun's evidence was that he saw the appellant place both his hands on the yellow plastic bag. This was supported by Narcotices Officer Mohd Noor's evidence that he saw the appellant resting his elbows on the parapet. The inference must be that either the appellant's hands were on the plastic bag or that the plastic bag was between his hands. The irresistible inference must be that the yellow plastic bag was in the appellant's possession; (2) the trial judge did not err when he found the appellant guilty of the second charge. It was necessary, in order to believe the appellant, not only to believe that he was so totally trusting that he believed Rahim when he said it was mere work clothes but also that Rahim so trusted him that he would leave the things with the appellant. It was not disputed that the appellant and Rahim knew each other only from the beginning of August 1994. Rahim would have been out of his mind if he had entrusted the drugs and S$800 to the appellant. It was also implausible that all the officers could have been distracted to the extent that they missed out the words 'ini barang bukan'. The officers' evidence that the appellant nodded his head and said 'saya punya' showed that they were paying attention to what he was saying; (3) although the Judicial Commissioner did not rely on the similar fact evidence, it provided confirmation that the appellant was rightly convicted. It would have been a remarkable coincidence if the drugs seized at the Lido Entertainment Centre and the drugs found in the appellant's flat were unconnected.

Mohd bin Esophoff v Public Prosecutor Criminal Appeal No 22 of 1995 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The respondent was arrested at a routine roadblock on 30 December 1992. A team of CNB officers then brought him to his flat at Block 131, Jalan Bukit Merah, #09-1599. There the respondent surrendered a grey bag, later found to contain 742.89g of diamorphine, to the CNB officers. In the bag there were also found a digital weighing scale, two hair clips, a bundle of empty sachets, a metal spoon and two disposable lighters. Eleven other sachets of diamorphine were found inside a drawer in the master-bedroom. The respondent's defence was that he was threatened by one 'Ah Seng' with a gun pointed to his head to keep the drugs for him. 'Ah Seng' (real name one Lu Lai Heng) also gave evidence on the stand. The trial judge acquitted the respondent. The Public Prosecutor appealed arguing, inter alia, that: (a) the trial judge's construction of the word 'delivery' was wrong; (b) the facts disclosed an alternative charge of abetment of trafficking under s 12 of the Misuse of Drugs Act (Cap 185) ('the Act'); and (c) the facts also disclosed another alternative charge of trafficking under s 5(c) of the Act by 'doing an act preparatory to or for the purpose of trafficking in the controlled drug'.

Held, allowing the appeal and sentencing the respondent to death: (1) if the respondent had transported the drugs back to Lu, the owner, or had handed them back to him on his calling for them on New Year's Eve, then, even though Lu was the owner, there would clearly have been a delivery within the definition of trafficking under the Act. The requirement is merely the transfer of possession from one party to another; (2) the wording of s 5(c) of the Act is plain and unambiguous. While the act of possession by itself may not come within the purview of s 5(c), the position would be very different if it were shown that the possession or keeping of the drugs was merely the prelude to an act of trafficking. In the present case, both the respondent and Lu had given evidence that the drugs were being kept by the respondent for the sole purpose of facilitating their later collection and distribution by Lu. In fact, Lu had even taught the respondent how to repack the drugs into smaller sachets, and the respondent had done some of this work shortly before he was arrested. Therefore the facts of this case clearly disclosed an offence the appropriate charge for which was under s 5(c) of the Act; (3) the Court of Appeal is not bound by the procedures in ss 163 to 166 of the Criminal Procedure Code (Cap 68) ('the CPC') when altering a charge. The two authorities cited by counsel related to appeals against sentence. It is clear that there are good reasons why the sentencing powers of an appellate court should be limited to those of the trial court. That is a question of jurisdiction of the Court of Appeal in sentencing, and is very different from the present issue which is whether the Court of Appeal is bound by the same procedural rules as the High Court. The Court of Appeal's power to amend the charge at the appeal stage is derived solely from s 54(1) of the Supreme Court of Judicature Act (Cap 322) and not the CPC.

Public Prosecutor v Goh Hock Huat [1995] 1 SLR 274 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The accused was charged with trafficking 104.91g of diamorphine found in his flat. The accused admitted possession and ownership of the drugs and his defence was that the drugs were not for trafficking but for his and his wife's consumption.

Held, sentencing the accused to death: (1) the court did not believe the defence that all the drugs were for the consumption of the accused and his wife. It did not accept their evidence that they were consuming that much heroin or that the accused had the means to pay for it without engaging in trafficking; (2) once it is accepted that any portion of the drugs alleged to be trafficked is intended for consumption, the charge for trafficking should only apply to the remainder of the drugs and the charge ought to be amended; (3) the accused failed to persuade the court that 15g or less of the heroin was intended for trafficking and that 89.91g or more of it was intended for consumption. There is therefore no necessity for the charge to be amended.

Public Prosecutor v Abdul Karim bin Mohd Criminal Case No 68 of 1994 High Court, Singapore (Kan Ting Chiu J).

[Annotation: Affirmed on appeal. See [1996] 1 SLR 1.]

The accused was charged with trafficking in a controlled drug, diamorphine, in contravention of s 5(a) of the Misuse of Drugs Act (Cap 185) ('the MDA') by transporting 46 packets of the drug on his motorcycle without authorization or, in the alternative, being in possession of the controlled drug, without authorization, in contravention of s 5(a) of the MDA. A statement from the third party, Yong, who was present with the accused was taken at the preliminary inquiry and was sought to be admitted under s 33 of the Evidence Act (Cap 97). Yong had been charged with the accused but the charge was later withdrawn and he received a discharge not amounting to an acquittal. The first trial was adjourned when Yong could not be found and set down for a later date. Attempts were made to find Yong but were unsuccessful. The prosecutor sought to admit a letter, allegedly written by Yong for the limited purpose of proving additionally that he could not be found. The evidence of Yong's mother identifying the letter was accepted and the court was satisfied that Yong could not be found by the prosecution, despite the reasonable exertion and due diligence used. The court was satisfied that the three preconditions of the provisions of s 33 of the Evidence Act had been satisfied as to the admissibility of Yong's statement; the proceedings were between the same parties the Public Prosecutor and the accused; the questions in issue were substantially the same and the defence's right and opportunity at the preliminary inquiry to cross-examine the prosecution witness had been exercised at the preliminary inquiry. Further, the amending legislation to the Criminal Procedure Code (Cap 68) ('the CPC') removed the full liberty of cross-examination to answer and rebut the prosecution evidence. The right to cross-examine as distinct from the opportunity no longer existed and the opportunity to do so is a mere indulgence on the part of the court. The present CPC, s 151, however, provides sufficient proof that the defence's right to cross-examine witnesses at the preliminary inquiry is preserved as it cannot be that the right exists only at the preliminary inquiry and not at the main trial. The defence may therefore cross-examine prosecution witnesses in an attempt to discredit them. The statement of Yong and evidence of his cross-examination was therefore admitted. For consideration were the following issues: (a) whether the accused was in possession of the drug; (b) if the accused was in possession of the drug whilst transporting it, whether this constitutes trafficking; (c) whether the s 122(6) statement was voluntary; (d) whether the statement of the pillion rider, Yong, who could no longer be found was admissible; (e) the weight to be given to the deposition statement of Yong; (f) whether a statement amounting to a confession by a party not called as a witness to a third party called as a witness, is admissible.

Held, convicting the accused on the offence of trafficking by transportation: (1) Public Prosecutor v Ong Ah Chuan [1981] 1 MLJ 64 is authority for the situation where an accused is caught in the act of conveying drugs. The purpose with which he did an act was a matter of inference from what he did and an accused caught conveying drugs much larger than is expected to be needed for private consumption raised the inference that he was transporting them for the purpose of trafficking. Amendments to s 17 of the MDA tightened that presumption in that more than 2mg of diamorphine by an accused was presumed to be an act of trafficking and not just having it in his possession for the purpose of trafficking. The burden lay on the accused to prove otherwise on the balance of probabilities; (2) James McNamara (1988) 87 Cr App R 246. In his statement, the accused, in referring to the drug as heroin, showed knowledge of its nature and from the fact that the drug was packed in 46 sachets in different envelopes, it can reasonably be inferred that the packets were for sale and distribution. The prosecution had proved possession of the drug by the accused as is required by s 17 of the MDA and as he had more than 2mg in his possession, he was presumed to be trafficking in it and transporting it on his motorcycle. The prosecution prima facie proved the alternative charge having regard to limb (b) of the definition of 'traffic' within the formula of Lee Ngin Kiat v PP [1993] 2 SLR 511. The offences are of identical gravity and constitute an offence under the same section and are similarly punishable; (3) the accused challenged the admissibility of his s 122(6) statement on the grounds that it was not voluntarily made and a voir dire was held to determine the admissibility of the statement. The statement was found to have been voluntarily made and was therefore admitted; (4) the defence sought to admit into evidence a statement by Yong, allegedly made to a third party concerning the offence, whereby Yong admitted that the drugs were his and for this reason did not want to appear in court. The defence sought to admit this to establish the state of mind of the speaker whereby the statement would not be hearsay and therefore be admissible because it was relevant to facts in issue. The authorities cited in support of its admission were distinguished on their facts and the statement of Yong, as a confession, was found to be not admissible within any of the clearly defined limbs; (5) apart from the presumption in MDA, ss 18 and 21, prima facie evidence was drawn under the common law that an accused who is in possession of the thing (ie the plastic bag) is in possession of their contents: R v Warner [1969] 2 AC 256 approved in Tan Ah Tee v PP [1980] 1 MLJ 49;the s 122(6) statement by the accused was a clear admission that it was the accused and not Yong who was in possession and custody of the drugs and knew their nature and had taken delivery of them to sell. There was both proof and a presumption that the accused was transporting and trafficking the drugs. It was not a mere act of conveyance. The accused, on the facts, had failed to rebut the fact that his wider intention in respect of the drug in his possession was to distribute it. There was sufficient evidence to convict the accused without consideration of Yong's evidence which, at best, only lent assurance to the other evidence tendered by the prosecution.

Public Prosecutor v Ong Ah Tee Criminal Case No 43 of 1994 High Court, Singapore (Amarjeet Singh JC).

The appellant was convicted of trafficking in not less than 1,456.97g of diamorphine by having the same in his possession for the purpose of trafficking at Block 263 Waterloo Street #20-216, Singapore ('the flat') at about 2.30pm on 10 January 1994. When officers from the Central Narcotics Bureau ('CNB') raided the flat, the appellant bolted the door. The appellant was then seen running about several times between the kitchen toilet and the kitchen sink. As the officers were about to break open the door, the appellant opened it and was arrested. He surrendered some heroin and admitted that he had flushed some packets of heroin down the toilet. The officers, together with the appellant, then went down to the bottom of the flat's rubbish chute on the fifth floor of the block. The heroin forming the subject matter of the charge was recovered from the plastic bin inside the rubbish chute terminal. The appellant's fingerprints were not found on any of the items recovered from the bin and no trace of heroin was found on the rubbish chute at the flat's kitchen. The appellant gave Staff Sergeant Ronnie See ('Staff Sergeant See') a short statement in the form of five Hokkien questions and answers which were recorded down phonetically in English alphabets by Staff Sergeant See. In the signed statement the appellant stated that he was keeping the drugs for someone. It was not disputed that the recording of the statement took some 30 to 35 minutes. At the trial, the appellant alleged that he was assaulted by the officers and that Staff Sergeant See had threatened to detain the appellant's family unless he admitted to having the drugs in his possession. The appellant explained that he was running between the kitchen sink and the kitchen toilet because he was trying to wash some heroin down the sink. They became stuck and he had to scoop them up and throw them into the toilet. It was not disputed that traces of heroin was found in the toilet bowl. The trial judge held that he was satisfied that the appellant had not been assaulted and that the appellant was not the sort of person who would be induced by any threats from Staff Sergeant See. The trial judge convicted the appellant. On appeal, it was also suggested by counsel that the appellant might have been under the influence of drugs when he gave the statements because the appellant was referred to hospital for drug withdrawal later that evening.

Held, dismissing the appeal: (1) the medical evidence did not support the appellant's allegation that he was assaulted. The trial judge, having observed the demeanour of the appellant and the prosecution witnesses during the trial, was perfectly justified in coming to the conclusion that the appellant had not been assaulted; (2) the trial judge having found that the appellant could not and would not have been influenced by any alleged threats, even if they were made, the fact that the recording of the statement took 30 to 35 minutes became quite immaterial. This finding also made it clear that it could not have been the case that Staff Sergeant See had suggested the answers to the appellant because the appellant would simply have refused to sign the statement; (3) the argument that the appellant was under the influence of drugs was never raised in the trial. The medical text cited by counsel was not expert evidence. It would be speculation to say that the appellant was under the influence of drugs simply because some six or eight hours later he was shown to be suffering from withdrawal. Accordingly, the statement was rightly admitted; (4) while there was no independent evidence to contradict the appellant's explanation, the story was so incredible that it was incapable of belief. Although no fingerprint was found on any of the packets of drugs recovered from the rubbish chute terminal and no heroin was found on the rubbish chute in the flat's kitchen, the fact that the appellant was seen running about several times between the kitchen sink and the kitchen toilet after he had latched his door supported the inference that he had thrown down the drugs. The likelihood that the drugs came from some other flat sharing the same chute or was placed in the rubbish chute bin was so miniscule that it could be discounted instantly. There was therefore sufficient evidence before the trial judge to justify his finding that the prosecution had proven beyond reasonable doubt that the appellant was in possession of the heroin found at the bottom of the rubbish chute.

Tan Yew Lee v Public Prosecutor [1995] 2 SLR 121 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

Seow Koon Guan v Public Prosecutor [1978] 2 MLJ 45 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Kulasekaram and D'Cotta JJ).

See CRIMINAL LAW, Vol 4, para 463.

The applicant applied for an order of habeas corpus against the respondent, the Commandant, Tanglin Detention Barracks. The applicant, a national serviceman, was convicted on 30 April 1984 by a general court-martial on his plea of guilty for possession of a controlled drug contrary to s 6(a) of the Misuse of Drugs Act 1973. He was ordered to undergo detention for six months. The Head of Legal Services of the Singapore Armed Forces appealed on 2 May 1984 against inadequacy of sentence to the Military Court of Appeal. The applicant served his setence and was released from detention on 13 July 1984. He completed his national service and was released from the army on 23 July 1984. The appeal against the sentence was heard by the Military Court of Appeal consisting of a Supreme Court judge as President and four other members, on 27 July 1984 and 11 August 1984. The applicant questioned the competency of the Military Court of Appeal to hear and adjudicate on the appeal.

Held, dismissing the application: (1) the Military Court of Appeal is a superior court. Its jurisdiction and the exercise of its full power to hear and determine appeals from a subordinate military court are matters that cannot be reviewed by any of the prerogative writs or orders of the High Court. An order for a writ of habeas corpus therefore cannot lie against the respondent; (2) when the notice of appeal was given on 2 May 1984, the Military Court of Appeal was seised of the appeal and the applicant was a full-time national serviceman subject to military law. The appeal was therefore properly before the Military Court of Appeal. Its jurisdiction not ousted by reason of the fact that the applicant was no longer in the army when that court heard the appeal.

Abdul Wahab bin Sulaiman v Commandant, Tanglin Detention Barracks [1985] 1 MLJ 418 High Court, Singapore (TS Sinnathuray J).

Both appellants were convicted of importing diamorphine into Singapore. Both appellants were arrested at the customs checkpoint at Changi Airport and found to be in possession of diamorphine which were strapped to their bodies by means of a special vest. In defence, the first appellant claimed that he did not know what he was carrying. Both appellants also contended that they had no intention of entering Singapore and were only in transit to Amsterdam. Therefore, they had not imported the drugs into Singapore nor had they any intention to do so.

Held, dismissing the appeal: (1) a rebuttable presumption arose under s 18(2) of the Misuse of the Drugs Act (Cap 185) ('the Act') that the first appellant knew the nature of the drugs he was carrying. The trial judges having heard his defence were entitled to find on the evidence before them that he had not discharged the presumption; (3) the meaning of 'import' in s 2 of the Interpretation Act (Cap 1) which was clear and unambiguous was applicable to s 7 of the Act. As both appellants had brought the diamorphine into Singapore, they were guilty of importing diamorphine into Singapore. The offence under s 7 of the Act was committed when the drugs were brought into Singapore regardless of whether or not Singapore was the ultimate destination.

Ko Mun Cheong & Anor v Public Prosecutor [1992] 2 SLR 87 Court of Criminal Appeal, Singapore (LP Thean, Goh Joon Seng and Rajendran JJ).

The accused was charged under s 7 of the Misuse of Drugs Act (Cap 185) ('the Act') for importing diamorphine into Singapore without authority. The accused was seen walking out of the arrival gate at Changi International Airport with unnatural bulges at his legs beneath his jeans. Customs officers conducted a physical search and found 18 packages of diamorphine strapped to the accused's thighs, waist and calves. The accused orally informed the customs officer that he had been asked by one Ah Weng to do petty smuggling. The diamorphine weighed 2,718g. Counsel for the defence contended that one Ah Weng had threatened the accused and his family with death in Phuket if the accused did not carry the items strapped to his body. It was further contended that the accused was ignorant of the contents of the items strapped . The prosecution endeavoured to admit a statement which was recorded under s 122(6) of the Criminal Procedure Code (Cap 68) ('the CPC'). It was contended by the defence that the statement should not be admitted as it had been recorded when the accused had not been fed for almost seven hours and by which time, his will had been sapped.

Held, convicting the accused: (1) the prosecution had proven its case beyond reasonable doubt that the accused had imported the diamorphine into Singapore in contravention of s 7 of the Act; (2) the defence of duress can only be substantiated where the threat is present at the time of committing the offence which reasonably causes apprehension of instant death. In this case, the threat was not one relating to apprehension of instant death; (3) further, there was no evidence that Ah Weng was in a position to carry out the threat and the threat was only made in Phuket; (4) the defence of ignorance as to the nature of the items strapped to his body also failed because there was a strong inference that a person in possession of packages is also in possession of its contents; (5) or if he was the owner but had received them innocently and had no reasonable opportunity since receiving the packages to acquaint himself with the contents; (6) the accused, according to his own evidence, was suspicious of the contents but did nothing to examine or discard the packages. Hence, he had not discharged the inference that he was in possession of the contents of the packages; (7) this strong inference may be rebutted if the person was in possession of the package in the capacity of a servant or a bailee who had no right to open it or to suspect that the contents were illicit drugs;the statement recorded under s 122(6) of the CPC was inadmissible as it had been recorded some seven hours after the accused had his last meal and hence, his will had been sapped when it was recorded, and also because the integrity of the recording process was questionable as the evidence of the recording officer had been contradicted by other prosecution witnesses.

Public Prosecutor v Fung Yuk Shing [1993] 3 SLR 69 High Court, Singapore (Kan Ting Chiu JC).

The appellant was tried in the High Court for the offence of importing 2,718g of diamorphine. The evidence led revealed that the appellant arrived in Singapore on a flight from Bangkok and Phuket. At Changi Airport he was observed to have unnatural bulges at his legs. He was arrested and upon being searched, 16 slabs were found strapped to his thighs, calves and waist. These blocks were found to contain 2,718g of diamorphine. In the course of the trial the prosecution sought to admit the appellant's cautioned statement. The trial judge found that the appellant had not been given food or drink for some seven hours and that there was a discrepancy in the evidence of the recording officer. He therefore ruled that the statement of the appellant was made in circumstances which sapped his free will and that the integrity of the recording process had been put into question, and rejected the statement. The appellant gave evidence in his own defence. He claimed that he was forced to transport the 16 slabs from Thailand to Singapore by a person named Ah Weng. He claimed that Ah Weng had threatened to kill him if he did not comply. He also claimed that Ah Weng had assured him that there were no drugs in the slabs and that he was only involved in petty smuggling. To rebut this testimony the prosecution called the evidence of the customs officer who arrested the appellant. The customs officer testified that the appellant had told him that the appellant had been paid HK$50,000 to transport the 16 slabs. The customs officer had made a record of this in his pocket book. The pocket book entries were admitted in evidence. The trial judge rejected this defence and convicted the appellant. He appealed mainly on the ground that it was wrong for the trial judge to have relied on the pocket book entries of the customs officer.

Held, dismissing the appeal: (1) the trial judge had the opportunity to observe both the customs officer and the appellant, and was satisfied as to the veracity and credibility of the customs officer's testimony; (2) although the trial judge referred to the pocket book entries in his judgment, this was done as part of the process of setting out the relevant background to the case. The admission of the pocket book entries as evidence did not occasion the appellant such prejudice as to deprive him of a fair trial; (3) (obiter) it was not realistic to take the sweeping stand that every failure to offer an accused sustenance constituted a 'threat' or an 'inducement' of such gravity as to automatically render any statement he made involuntary. There were numerous factors to be taken into account. In the present case, the appellant was without food for seven hours within the same day. Prior to his arrest, he had eaten a meal on board the plane. At no point during the interrogation did the appellant ask for a meal or complain of hunger pangs. It did not appear that the omission to offer the appellant sustenance was so serious and engendered such grave consequences that the appellant's will might have been completely overborne. An overly legalistic attitude on the part of the courts would ultimately form a clog on the proper exercise by the police of their investigatory function and indeed, on the administration of justice itself.

Fung Yuk Shing v Public Prosecutor [1993] 3 SLR 421 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The two accused were arrested at the Changi International Airport while in transit from Phuket to Amsterdam. They were arrested in the transit lounge. Blocks of white substance were found strapped around their calves and thighs. The white substance was tested and found to be diamorphine. At the airport, when questioned about the substance found on them, the first accused said 'Pak Fun' a Cantonese word meaning 'white powder' which was commonly used to describe heroin. Both accused persons denied knowledge of the nature of the substance they were carrying in their cautioned statements. They were charged with importing diamorphine into Singapore without authorization. When the defence was called, the first accused elected to remain silent. The second accused gave evidence that she thought she was carrying gold jewellery and also said that she did not know that she would be arriving in Singapore.

Held, convicting both accused: (1) as the voluntariness of the oral statements uttered at the airport was not in issue, the only issue was whether such a statement was ever uttered. Since the first accused did not avail himself of the opportunity to raise a reasonable doubt on the prosecution's case that it was uttered, the only evidence before the court was that he did utter the words 'Pak Fun' and the court accepted the evidence; (2) it was settled law that where there was a mixed statement, the court must juxtapose the differing parts and consider which was the truth. The first accused's explanation in his cautioned statement that he did not know the substance found on him were drugs could not be the truth; (3) the word 'import' included the bringing in of any merchandise from a foreign country for sale or use in Singapore as well as for the transhipment or distribution overseas. Bringing the drugs into the transit lounge of Changi Airport with a view only to proceeding to another destination did fall within the meaning of the word 'import'; (4) the defence of no knowledge of both the accused could not be believed. The first accused did not elect to give evidence and his silence gave rise to an inference that he knew or ought to have known that the substance he was carrying was drugs. The second accused's evidence that she thought it was gold jewellery was not credible and her evidence that she did not believe she was going to arrive in Singapore could not be believed.

Public Prosecutor v Tse Nathan & Anor [1992] 1 SLR 871 High Court, Singapore (Rajendran J and Rubin JC).

[Annotation: Affirmed on appeal. See [1993] 1 SLR 961.]

The appellants were arrested at the Changi International Airport after they had disembarked from a flight from Phuket. They were searched and the first appellant was found to be carrying 2,328.4g of diamorphine and the second appellant was carrying about 2,510.1g of diamorphine. They admitted that they knew that they were carrying diamorphine but claimed that their intention was to take the drugs to Brussels. They were charged with importing the said drugs and were convicted in the High Court. They appealed.

Held, dismissing the appeal: (1) the problems caused by the proliferation of the availability of narcotic drugs have to an extent been addressed by the United Nations in the form of the Single Convention on Narcotic Drugs 1961 ('the Convention'). The provisions of the Convention imposes an obligation on its signatories to ensure that their territory was not used as a transit point for the illegal movement of drugs; (2) the Convention had been ratified by Singapore and it was not disputed that the Misuse of Drugs Act (Cap 185) ('the Act') was intended to give effect to Singapore's obligations under the Convention; (3) the meaning of the word 'import' in s 7 of the Act applied in Ko Mun Cheong v Public Prosecutor gives effect to the intention and policy of the Act. Such a meaning was not contrary to international comity although it may in some instances result in the infliction of a punishment imposed by Singapore law which was heavier than that which would have been imposed by the country of ultimate destination. The act that was being punished was an act done in Singapore. Although the consequences of the act may be intended to take place in another country, it was not contrary to any rule of international comity to convict and punish an accused for an act occurring in Singapore, where that act was illegal by the laws of Singapore. International comity did not require that Singapore refrain from stamping out any inclination to use her as a staging post for the movement of drugs between countries. The legislature had enacted the Act to give effect to its obligations under the Convention and the courts would be frustrating the policy and the intention of the legislature to give the word 'import' in the Act a meaning which was different from the plain and ordinary meaning in the Interpretation Act (Cap 1); (4) there was no doubt that the importation of drugs was not a strict liability offence and proof of mens rea was required. Hence, apart from the physical act of bringing the drugs into Singapore, it had also to be shown that the appellants knew or intended to bring the drugs into the country; (5) the statement of the first appellant indicated that he intended merely to 'transit' Singapore. However, it was clear that he intended to change planes in Singapore as the plane which carried him into Singapore from Phuket did not continue to fly to Brussels. The first appellant's intention was to enter Singapore and that constituted mens rea; (6) the statement of the second appellant was also quite clear. He said that he merely passed through Singapore to take a flight to Brussels. It shows that he was aware that his flight from Phuket would take him to Singapore. He knew he was coming to Singapore although he intended only to be in transit. There was therefore the requisite mens rea.

Ng Kwok Chun & Anor v Public Prosecutor [1993] 1 SLR 55 Court of Criminal Appeal, Singapore (Chao Hick Tin, Chua JJ and Goh Phai Cheng JC).

On 30 September 1993, the appellant drove a maroon-coloured Proton Saga into Singapore via the Woodlands Checkpoint. After passing through immigration, his car was directed to the inspection pit for a dog search. Upon request, the appellant opened the car boot and went further by opening the four doors of the car. The narcotics dog reacted positively to something under the driver's seat. The police found a block wrapped with brown masking tape underneath the seat. The appellant on seeing the package ran away. He was subsequently arrested by two police officers at the Yaohan Departmental Store at Woodlands Central. On being detained, he repeatedly said to the officers, 'That's not mine'. Later, a further search of the car produced two other packages, similarly wrapped in brown masking tape, hidden behind the door panel at the driver's side. Upon analysis, the substances in the three packages were found to be cannabis weighing in total not less than 5,031g. The appellant's defence was that he was an innocent carrier who had no knowledge that the packages were hidden in the car. He claimed that he was paid by one Zulkifli to drive the motor car to Singapore and bring back some 'batik' and dress material. The trial judge convicted him. On appeal, the thrust of the appellant's case remained the same.

Held, dismissing the appeal: (1) the learned trial judge had carefully considered the evidence of the appellant and found the evidence unbelievable. He found that the appel-lant was not an innocent carrier of the drugs. The trial judge was fully justified in coming to that conclusion and there was no reason why his findings in this regard should be disturbed; (2) the absence of the appellant's fingerprints on the three packages and the opening of the car doors were quite neutral and equivocal facts, and did not really go very far in showing the lack of knowledge. All this evidence was too weak to rebut the overall evidence against the appellant.

Mohd Nasrul Esyam bin Shamsudin v Public Prosecutor Criminal Appeal No 15 of 1994 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The accused faced three charges under the Misuse of Drugs Act (Cap 185), of which the prosecution proceeded with one charge of trafficking. The accused was arrested at a coffeeshop in Bishan by a team of narcotics officers. The accused had with him a briefcase containing 40 white envelopes and a handphone. In his wallet, he had S$5,465 and one sachet of heroin which had been cut and sealed. The officers asked him whether he had anything in the car and he said 'sar liap' in Hokkien which meant 'three grains, balls or lumps'. He then led the officers to the car and stopped at the boot. The officers opened the boot with a key retrieved from the accused's trouser pocket and found three bundles. Each bundle had a packet of granular substance. The three packets were later analysed to contain 29.62g of diamorphine. In the accused's home the officers found 48 empty polythene packets, a plastic spoon, a metal clip and a 'daching' stained with diamorphine. The accused's urine samples contained morphine. The accused's defence was that only one of the three bundles of granular substance were his and that the other two belonged to a Malaysian friend. It was also his defence that the one bundle was for his own consumption.

Held, convicting the accused: (1) there was clear evidence that the accused had borrowed the car from his friend and was in possession of the one key that his friend gave him. He was arrested at a coffeeshop where the car was parked. That the accused was in possession of the drugs was therefore established; (2) the accused said that two of the three bundles belonged to his Malaysian friend. There was no evidence as to the identity or the existence of the Malaysian friend. The court therefore was not persuaded by this defence; (3) the accused's defence that he smokes one to two sachets a day was not consistent with his withdrawal symptoms. Medical evidence given indicated that a person who smokes from one to two sachets of heroin a day would suffer from severe drug withdrawal whereas the doctor who observed him at the Changi Prison Hospital was of the opinion that the accused was suffering from moderately severe drug withdrawal. The presumption in s 17 was therefore not rebutted; (4) the legislative intent behind the amendment to s 17 was to obviate the effect of the case of Poon Soh Har v Public Prosecutor. To give effect to that intention and to read the sections such that it does not render s 18 ineffectual, 'proved' in s 17 must also include proof by way of statutory presumption found in s 18.

Public Prosecutor v Low Kok Wai Criminal Case No 59 of 1992 High Court, Singapore (Goh Phai Cheng JC).

A1 and A2 were arrested on 14 March 1988. At the time of the arrest, both of them were in A1's motorcar ('the car'). The arresting officers searched the car and found 220.62g of heroin in the boot of the car. The heroin was wrapped in plastic packets. Both A1 and A2 were charged with being in possession of the heroin with the common intention to traffick. The statements of both accused were admitted into evidence at the trial. In his statement, A1 admitted knowledge of the heroin but claimed that A2 had introduced the drugs to him. A2 admitted that he was charged with the safekeeping of the plastic bags but denied knowledge of the heroin.

Held, convicting A1 of trafficking and A2 of possession: (1) the fact that A1 was the owner and driver of the car AR 4599 raised the presumption under ss 18(2), 17 and 21 of the Misuse of Drugs Act (Cap 185) ('the Act') that he was in possession of the drugs for the purposes of trafficking; (2) on the totality of the evidence, A1 was unworthy of belief. A1 had not on a balance of probabilities rebutted the presumption that he was in possession of the drugs for the purpose of trafficking; (3) A2 kept the plastic bags and was promised S$1,000 for the safekeeping of the bags. These facts raised a strong inference that he was in possession of the contents of the bag and he was presumed under ss 18 and 21 of the Act to be in possession of the heroin with knowledge of its nature. A2 had not rebutted the presumption; (4) the conflicting accounts given by both accused were inconsistent with there being a common intention. There was no dealing between them relating to the drugs, and no consent as contemplated by s 18(4) of the Act; (5) the evidence of each accused was that the other transported the heroin but their evidence did not disclose any shared intention as contrasted to similar intention to transport the drugs. The prosecution had therefore failed to establish the element of common intention in the charge; (6) on the evidence of A2 that he was only keeping the bags for A1 and the fact that he had not trafficked in the drugs as defined in the Act, the presumption of trafficking was rebutted; (7) A2 had nonetheless provided an essential service for A1 in hiding and keeping the bags, for which A2 was paid S$1,000. The quantity of the drugs was also substantial. These were factors to be considered in arriving at the appropriate sentence. A sentence should be imposed which would deter others from assisting traffickers; (8) A2 was sentenced to ten years' imprisonment.

Public Prosecutor v Lim Ah Poh & Anor [1992] 1 SLR 87 High Court, Singapore (TS Sinnathuray J and Kan Ting Chiu JC).

[Annotation: Affirmed on appeal. See [1992] 1 SLR 713.]

The accused persons were charged with trafficking in not less than 254.36g of diamorphine in furtherance of their common intention. They were apprehended at the Hyatt Regency Hotel with the drugs. The prosecution's main evidence came from Special Agent Fullet of the American Drug Enforcement Administration. Fullet testified that the first accused agreed to sell to him a quantity of heroin for US$9,000. The drugs were then brought by the two accused persons to the Hyatt and delivered to Fullet by the second accused. Both the accused gave evidence in their defence. The defence challenged the analysis of the drug exhibit seized. It was alleged that the scientific officer had followed the process of homogenization which was criticized in PP v Ang Soon Huat [1991] 1 MLJ 1. The cautioned statement of the second accused was admitted in evidence. In that statement, the second accused had stated that the first accused had told him that the bag he was carrying contained drugs. The first accused claimed that he thought that the powdery substance to be some medicinal drugs left at his friends' flat by a third party. He said his extreme curiosity propelled him to find out what the substance was and consequently by prior arrangement with Fullet, whom he believed was a dealer in chemicals, he brought the substance to the Hyatt to ascertain its true nature. The second accused's defence was that he just happened to accompany the first accused to the Hyatt on the day in question in the hope of getting a free lunch from Fullet. He admitted to carrying the bag which contained the drugs but denied knowledge of the contents.

Held, convicting both accused: (1) in Public Prosecutor v Ang Soon Huat the court was concerned with a weight of 18.77g. It was a borderline case. In the present case, the weight was 254.36g, a substantial quantity. The defence produced no scientific evidence to contest the scientific officer's testimony. The analysis in the instant case did not merit criticism; (2) the court accepted the evidence of Fullet. His evidence implicated the first accused. There was a meeting of minds between him and the first accused for the sale of the drugs. There was no entrapment by Fullet. He was acting as an undercover agent to ferret out a prospective trafficker. It was not Fullet who sought out the first accused to commit the offence; (3) the cautioned statement of the second accused implicated him. His explanations were rejected by the court; (4) where there was no direct evidence of common intention, this could be inferred from the surrounding circumstances and the conduct of the parties; (5) the evidence adduced showed that both accused persons were in possession of the drugs in question. By virtue of s 18(4) of the Misuse of Drugs Act, the accused persons were also presumed to be in possession of the drugs concerned. They had not rebutted this presumption. Their evidence was not accepted by the court.

Public Prosecutor v Jasbir Singh & Anor Criminal Case No 22 of 1990 High Court, Singapore (Rubin JC).

The first appellant was convicted in the High Court on a capital charge of trafficking by transporting not less than 76.3g of diamorphine on 21 March 1990 from Woodlands Checkpoint to a car park at Woodlands Centre in motor car NL 4807. The second appellant was convicted of abetting the first appellant. A third person, Awang, was acquitted of abetting the first appellant. Both appellants were Malaysians working in the hospital at Johore Bahru. The prosecution's case was that on 21 March 1990, Central Narcotics Bureau ('CNB') officers followed a Proton Saga with the second appellant and Awang riding in it from Woodlands Checkpoint to Woodlands Centre. Awang was arrested and he led the officers to the first and second appellants. The first appellant was found in possession of the keys to NL 4807. A search of the car revealed a package taped underneath the dashboard. When questioned the first appellant admitted that the package contained drugs. The contents of the package was analysed and found to contain 76.3g of diamorphine. The first appellant's written statements were admitted in evidence in which he admitted that he had been asked by the second appellant to smuggle something into Singapore for which he would be paid RM1,000. The second appellant had then handed him the package which was taped to the dashboard of NL 4807. The first appellant then drove the car into Singapore and met up with the second appellant at Woodlands Centre. In court the first appellant's testimony was similar to his statements. In the High Court the first appellant had challenged the chain of possession of the drugs. It was contended that in the initial charge the drugs were described as 'brownish' whereas the scientific officer who analysed it described it as 'greyish'. The scientific officer also described the drugs as 'powdery' in his evidence whereas it was described as 'granular' in his chemist's certificate. There was also a difference in the gross weight of the drugs when weighed by the investigating officer and the scientific officer. The second appellant argued that there was no evidence upon which his evidence should have been called as the only evidence against him at that stage was the statement of the first appellant.

Held, dismissing the appeal: (1) it was well settled on the authorities that the prosecution bears the burden of proving beyond reasonable doubt that the package seized from the first appellant's car was the substance eventually analysed. Undeniably there were 'disconcerting' elements concerning the descriptions of the substance in the package. However, the nature of these discrepancies were such as could be attributed to a difference of the witness's perception rather than those which raised doubts as to the identity of the exhibits. A visual perception by one witness of a substance as greyish as opposed to brownish or as granular as opposed to powdery was not so discrepant as to create an inference that it was a different substance that had been regarded by each witness. The purpose of weighing the substance by the CNB was for preparation of the initial charge, which in any event was always amended. It was not intended to be an exercise in scientific accuracy and the weighing machines employed by the CNB were not expected to give precise readings equivalent to those by the machines em-ployed by the Department of Scientific Services. The discrepancy of 23.6g between the investigating officers and the scientific officers' figures was one that could be attributed to the quality and accuracy of the CNB weighing machine; (2) the test of whether a statement was a confession was an objective one, whether to the mind of a reasonable person reading the statement at the time and circumstances in which it was made it could be said to amount to a statement that the accused committed the offfence or which suggested the inference that he committed the offence. For a statement to amount to a confession, it need not be of a plenary or unqualified nature and could also be of a non-plenary nature, so long as the statement connects the accused in some way with the offence. The admission by the first appellant in his statements that he was in possession of the package containing the drugs unequivocally connected him with the offence and his three statements therefore amounted to confessions. There was no reason why the confession of the first appellant implicating the second appellant must be left out of the equation in deciding whether there was a case for the second appellant to answer. That confession must be considered together with the rest of the direct and circumstantial evidence in deciding whether there was a case to answer; (3) at the end of the trial, the correct approach was that the confession must be taken together with the rest of the evidence in deciding on the totality of evidence whether the prosecution has proved the second appellant's guilt beyond reasonable doubt. However, in the present case, as the first appellant had given evidence which in essence adopted the contents of his confession especially the parts that implicated the second appellant, s 30 of the Evidence Act (Cap 97) no longer became a live issue since the trial judge in convicting the second appellant relied on the sworn testimony of the first appellant; (4) there was no rule of law which demanded that in every case where an accused person gave evidence which tended to incriminate a co-accused that there was a need for corroboration of such evidence; (5) neither the first nor the second appellant was credible witness in his own defence. There was no rule of law, however, that a court must except all of a witness's evidence or none at all. The trial judge had considered the testimony of the appellants and accepted the part of the first appellant's testimony which implicated the second appellant. There was no reason to interfere with that finding.

Abdul Rashid & Anor v Public Prosecutor [1994] 1 SLR 119 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellant was arrested after he was observed leaving his rented apartment. He was found in possession of nine sachets of granular substance which was later found to be diamorphine. The appellant was taken back to his apartment where a larger quantity of granular substance was discovered. This was analysed to be not less than 57.32g of diamorphine. The arresting officers also found a digital weighing scale, an electrical sealer, and several empty plastic sachets. The appellant was charged for trafficking. At the trial the appellant gave evidence that the drugs found in the apartment did not belong to him. He claimed that he had sublet a room in the apartment to a female Chinese and that the cabinet in which the drugs were found belonged to that female Chinese. He admitted that the drugs found on his person belonged to him but claimed that they were for his own consumption. The appellant testified that he was a 'heavy user' and consumed one sachet of heroin a day. The trial judge found that the appellant was in exclusive occupation of the apartment and therefore in possession of the drugs found therein. He further found that the appellant had not rebutted the presumption of trafficking and convicted the appellant.

Held, dismissing the appeal: (1) the room which the appellant claimed was occupied by the subtenant was unlocked and the appellant's dirty clothing were found hanging all over the railings in the dining area. This was inconsistent with the existence of a subtenant of the opposite sex. The appellant could only give the court a vague description of the subtenant and provided no real details of who this person was or where she could be found. The trial judge was perfectly entitled to conclude that this person was but a fiction; (2) the larger the quantity of drugs involved the stronger the inference that they were not intended for the personal consumption of the person in whose possession they were found and the more convincing the evidence needed to rebut it. The appellant did not have a steady job, fell into arrears vis-a-vis his rent and had found a need to pawn his jewellery. The appellant's assertion that he consumed one sachet a day could not be believed.

Lee Lum Sheun v Public Prosecutor [1994] 2 SLR 497 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellant was convicted and sentenced to death for trafficking by transporting 2,993g of cannabis from Harvey Crescent to Harvey Close. A CNB officer watched the appellant walking the distance with a bag in his hand. The bag contained a clutch bag wherein the cannabis was found wrapped in newspaper sheets. The underside of the newspaper wrapper, which was used to wrap one bundle of cannabis, had the appellant's fingerprints on it. The CNB officers recovered empty plastic bags of the same type found in the clutch bag containing the cannabis. More cannabis and a weighing scale was found in the appellant's house. A CNB officer was also informed by the appellant that the newspaper wrapper contained 'ganja'. However, the appellant contended that the cannabis was given to him by one Jali a day before for safekeeping. The appellant was not informed about the nature of the contents in the bag which Jali had given him. The appellant further contended that he knew about the nature of the contents of two packets in his possession minutes before his arrest and was arrested while he was about to hand over the cannabis to Jali who is the owner of the cannabis. The appellant contended that he did not traffic in cannabis or know the nature of the contents of the remaining packets. The trial judge rejected the appellant's defence and convicted him.

Held, dismissing the appeal: (1) ss 17 and 18 of the Misuse of Drugs Act (Cap 185) ('the Act') came into operation and the appellant failed to rebut the presumptions; (2) even under the common law there was evidence to support the finding that the appellant was in possession of the cannabis; (3) the appellant's inability to give details of Jali's whereabouts is indicative of the falsity of the defence; (4) the trial judge was correct in concluding that the appellant failed to rebut the presumptions in ss 17 and 18 of the Act with valid explanations.

Samsuri bin Mohamed Yus v Public Prosecutor Criminal Appeal No 37 of 1993 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellant was arrested by police officers on 13 October 1993, on the tenth floor of a block of flats in Dover Road. His arrest occurred immediately after he handed over to an officer 11 packets of diamorphine which the officer, using an alias, had sought to purchase over the telephone. Following his arrest, the appellant led the officers to the flat from which he had come ('the flat') prior to making the delivery. Although he stated that he did not in fact reside in the flat, the keys to the flat were found on his person. His bag was also in the bedroom of the flat. Inside the bedroom, the officers found 38 packets of diamorphine stored in a plastic container. On analysis, the net weight of the diamorphine was discovered to be 53.81g. At trial, the appellant pleaded guilty to a charge of trafficking in the above-mentioned 11 packets of diamorphine. It was not disputed that these 11 packets came from the same plastic container in the flat in which the other 38 packets of diamorphine were stored. The appellant denied, however, that he had harboured any intention of dealing with the remaining 38 packets. He claimed in his defence that he had woken up in the unfamiliar flat after a night of drunken carousing and that he had inadvertently stumbled upon the cache of drugs in the plastic container. Out of an impulsive desire to make a quick profit for himself, he had sought to dispose of 11 packets in response to the request from the police officer; but those 11 packets were all he had intended to dispose of out of the entire cache in the container. At the close of the trial, the trial judge found that the prosecution had proven possession by the appellant of the said 38 packets and thereby successfully invoked the presumption of trafficking in s 17 of the Misuse of Drugs Act (Cap 185). He held, further, that the appellant had failed to rebut the presumption and accordingly convicted the appellant of trafficking in the 38 packets of diamorphine. The appellant appealed.

Held, dismissing the appeal: (1) in order to prove possession of the 38 packets of drugs by the appellant, what the prosecution had to prove was that on 13 October 1993, the appellant had physical control over the said 38 packets remaining in the flat and the requisite intention to deal with these drugs as if they were his. The prosecution sought to do so by relying on such evidence as the retention by the appellant of the keys to the flat and his act of delivering 11 out of the original 49 packets to Kamsani in furtherance of a sale for his own profit. The trial judge accepted the prosecution's submissions in this respect and there was no reason to differ from him; (2) the original 49 packets of drugs were stored together in the plastic container in the flat and formed, in a very real sense, a 'pool' of drugs. In removing 11 packets from this 'pool' and in exercising dominion over these 11 packets, the appellant was evincing an intention to exercise dominion over all 49 packets which formed the complete 'pool' of drugs stored in the container, especially in view of the fact that 11 packets were not merely a negligible and minuscule portion of the original cache but constituted virtually one-quarter of it. There was nothing to suggest that the appellant could not have dealt with or exercised dominion over the remaining 38 packets; (3) the appellant's readiness to traffic in 11 packets of the heroin seemed plainly to belie his claims as to the innocuous circumstances of his presence in the flat.

Sukor bin Abdul Rahman Sidik v Public Prosecutor [1995] 1 SLR 221 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Chao Hick Tin J).

The appellants were tried for trafficking in 538.3g of diamorphine. The prosecution's case was centred around the testimony of one Plummer Wilbert Lee, a United States drug enforcement agent. Plummer had arranged to purchase US$2,000 of heroin from the first appellant. He alerted the Central Narcotics Bureau who laid an ambush for the appellants. On 10 December 1990, Plummer met the two appellants at the Dai-Ichi Hotel, handed over the money and was led to the appellant's hotel room. The CNB officers raided the room and seized a briefcase which was secured by a combination lock. The appellants supplied the combination to the lock and the officers found a plastic packet containing 538.3g of diamorphine hidden under a false bottom of the briefcase. In their defence, the appellant claimed that the briefcase belonged to one Uche who had left it with them. They called one Adiele who confirmed that he had seen Uche with the briefcase and was aware that Uche had left the briefcase with the appellants. The trial judge did not believe the appellants' defence and sentenced them to death. They appealed against their conviction on grounds, inter alia, that the judge had not given sufficient consideration to their defence and to the fact that the judge should have believed the testimony of Adiele as the prosecution had not put its case to him.

Held, dismissing the appeal: (1) the trial judge found several flaws in the evidence of the appellants and he disbelieved their story. There was no reason to disagree with those findings; (2) there was nothing to put to the witness Adiele as the prosecution's case was plainly that the appellants were jointly found in possession of the briefcase which contained the drugs in question. On that possession being proved the presumption of trafficking arose. It was for the appellants to rebut that presumption on a balance of probabilities which they sought to do through the evidence of Adiele.

Okonkwo & Anor v Public Prosecutor [1994] 1 SLR 337 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu JA and Chao Hick Tin J).

Foong Seow Ngui & Ors v Public Prosecutor [1995] 3 SLR 785 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Lai Kew Chai J).

See CRIMINAL LAW, Vol 4, para 499.

The appellant, a Nigerian, was tried and convicted of trafficking in 2.7kg of diamorphine. The diamoprhine was found concealed in talcum powder bottles which were in a bag which the prosecution maintained was in the appellant's possession. On 6 June 1991, the appellant and two other Nigerians were observed leaving the Lion City Hotel. The appellant loaded his luggage which included two large multi-coloured bags into a taxi and proceeded to the Changi Airport. Three narcotics officers followed the taxi to the airport and kept observation on the appellant. Just before the appellant checked into a KLM flight he was arrested and his luggage seized. The officers searched the luggage and found several talcum powder bottles in one of the bags. They found 13 packets of diamophrine hidden in some of the bottles. The appellant was arrested and charged with trafficking. At his trial, the appellant denied that he was the person followed from the Lion City Hotel and denied that the large nylon bags belonged to him. The trial judge accepted the evidence of the prosecution witnesses and found that the appellant had not proved his defence on a balance of probabilities.

Held, dismissing the appeal: (1) it was trite law that in a criminal case the burden on the accused was generally no more than to cast a reasonable doubt on the prosecution case. However, where the statute provides for presumptions of fact, the burden, an evidentiary one, was on the accused to rebut, on a balance of probabilities, the statutory presumptions raised against him; (2) under s 18 of the Misuse of Drugs Act (Cap 185), the prosecution has to prove beyond a reasonable doubt that the accused had in possession or custody or under his control the things stated in (a), (b), (c), or (d) of sub-s 1 before the presumptions provided for in the subsection can arise. Once a presumption under that subsection arises, however, the burden was on the accused to rebut it on a balance of probabilities; (3) there was ample, if not overwhelming, evidence before the trial judge of the appellant having the two nylon bags with him from the moment he boarded the taxi at the Lion City Hotel to the moment he was arrested at the airport. There was also evidence that it was with the help of a key produced by the appellant that the incriminating bag was opened. The bags were of conspicuous vivid colours, and the appellant was also dressed in a conspicuous manner; (4) the evidence of possession of the bags, therefore, had been proved beyond a reasonable doubt. When the trial judge referred to 'balance of probabilities' he was referring not to the issue of the possession of the bags as bags, but the question of rebutting the presumptions arising under s 18.

Hyecinth Ihejirika v Public Prosecutor [1994] 1 SLR 360 Court of Appeal, Singapore (LP Thean JA, Goh Joon Seng and Warren LH Khoo JJ).

The second and third appellant were charged in the High Court for trafficking in 8.25kg of diamorphine by transporting the said drugs from Plaza Hotel to Mandarin Hotel. The first appellant was charged with abetting the second and third appellant. The prosecution's evidence was that on 16 July 1989, the Central Narcotics Bureau ('CNB') mounted surveillance on the three appellants. All three appellants were seen at the Plaza Hotel. The first appellant then left in a taxi. The second and third appellants followed the taxi in a motor car driven by the third appellant. The taxi was followed to the Mandarin Hotel. The first appellant went to the coffee house where he was arrested in possession of the key to the motor car. The motor car had been driven to the Mandarin Hotel and the key left with the first appellant. The CNB officers arrested the second and third appellants at the Plaza Hotel. The motor car was taken to the CNB where it was searched. Prior to the search the first appellant informed the officers that the drugs were in the fuel tank. The drugs were eventually found hidden in the fuel tank. The second and third appellants admitted that they were paid RM2,500 by a person named David to drive the car to Singapore and hand it over to someone in Singapore. They were to inform this person to remove the fuel tank and scrape off the paint. In his defence the first appellant stated that he thought that he was dealing in gold and diamonds which he believed were hidden in the fuel tank. The second and third appellants said that they thought they were smuggling gold and diamonds. All three were convicted and sentenced to death. They appealed. One of the arguments raised by the first appellant was that his oral statements should not have been admitted in evidence as they were recorded by the investigating officer and interpreted by an arresting officer both of whom were biased. The first appellant also argued that the trial judge had wrongly relied on the evidence of the second and third appellants in convicting him.

Held, dismissing the appeal: (1) both the second and third appellants admitted that they were paid to drive the car into Singapore. They were told that 'the thing' was in the fuel tank. They did not ask what it was. As the drugs were found in the car which was owned by the second appellant, under s 21 of the Misuse of Drugs Act (Cap 185) ('the Act'), the drugs were presumed to be in his possession as the owner and the third appellant as the person in charge of the car for the time being. By virtue of s 17 of the Act they were presumed to have the drug in their possession for the purpose of trafficking; (2) the second and third appellants had not rebutted the presumptions. They knew that something was concealed in the fuel tank and yet they were not concerned to find out what truly it was. Neither of them asked David what the thing was. They were not told that they would be smuggling gold or diamonds. In those circumstances, it was manifestly not enough for them to say that they believed that what were hidden in the car were gold and diamonds. Such an explanation was too naive and simplistic for any court to accept; (3) the investigating officer was inquiring into a very serious offence at the time and it was clearly in order for him to interview the first appellant. There was no principle of law that required that on such an occasion an interpreter not involved in the investigation should be called upon to interpret; (4) it was not in all circumstances that a court should presume that an accomplice was unworthy of credit and treat his evidence with caution. In the instant case the evidence of the second and third appellants was corroborated by other evidence; (5) when the first appellant was arrested he was in possession of the key to the motor car and he led the officers to the car; (6) the first appellant in his defence did not give any or any plausible explanation that his involvement in the matter was purely coincidental and had nothing to do with the transportation of the drugs. It was incumbent on him to show that he did not know that the drugs were in the fuel tank and that his involvement was purely coincidental. That he had not succeeded in doing.

Kong Weng Chong v Public Prosecutor [1994] 1 SLR 34 Court of Criminal Appeal, Singapore (Karthigesu and LP Thean JJA, Chao Hick Tin J).

On 5 November 1988, the appellant and Ho So Mui were arrested at Changi Airport. The appellant was at the time in possession of a Gucci bag which was found to contain 4,594.65g of diamorphine. In his statements to the Central Narcotics Bureau, the appellant had said that he had been asked to carry the bag by a friend of Ho. He claimed that the bag belonged to her. At the trial he claimed that he had no knowledge of its contents. He was convicted of attempting to export the said drugs and sentenced to death. On appeal the appellant contended that he had rebutted the presumption of trafficking.

Held, dismissing the appeal: (1) it is well-settled law that under s 18(2) of the Misuse of Drugs Act (Cap 185) the burden was on the appellant to rebut the presumption of knowledge on a balance of probabilities. The appellant had continuous possession of the Gucci bag in the airport up to the time of arrest. At no time did the officers conducting surveillance see Ho handle the bag; (2) there were no reasons to interfere with the finding of the trial judge that the appellant knew that the bag contained diamorphine.

Wong Wai Hung v Public Prosecutor Criminal Appeal No 23 of 1992 Court of Criminal Appeal, Singapore (LP Thean, Rajendran and Warren LH Khoo JJ).

On 7 March 1992, the customs airport branch at Changi Airport received a tip-off that five Malay men who were employees of Singapore Airlines would be smuggling cannabis into Singapore from Bangkok that same day. An ambush was laid and the first and second accused were arrested together with three others, Darus, Najeeb and Edros. The luggage of the five persons were also seized. Among the luggage were two large nylon bags which were seized from the trolley which the first accused was pushing. The luggage was searched and 155 packets of vegetable substance were found in a large nylon bag. When the first accused was asked about the substance, the first accused told one of the officers that it was 'ganja' and it belonged to his friend Dollah. The vegetable matter was analyzed to be 2.398kg of cannabis. The first accused was charged with importing the cannabis and the second accused was charged with abetting him. Darus, Najeeb and Edros were called as witnesses for the prosecution. In the course of cross-examination of these witnesses, it was revealed that the baggage claim tickets of the checked-in luggage was issued to Darus and attached to his ticket. It was also Darus who checked in the luggage at Bangkok. It was also confirmed that there were six items of luggage, one belonged to him, one to Edros, one to Najeeb, one to the first accused and two to the second accused. The first accused made a cautioned statement which was admitted in evidence. In the statement, he claimed that the drugs belonged to Abdullah who was his roommate in Bangkok. The second accused's cautioned statement was also admitted in evidence, in which he stated that the first accused told him about the drugs in Bangkok but he told the first accused that he did not want anything to do with it. When their defences were called, both the accused elected to give evidence. The first accused claimed that he had shared a room with the second accused in Bangkok. He testified that on the day they left Bangkok he saw the two nylon bags in their hotel room. Darus had told him that the two bags belonged to the second accused and were to be brought back to Singapore. When they arrived back in Singapore it was Darus who had asked him to load the two nylon bags onto his trolley. The second accused denied knowledge of either of the nylon bags or the contents.

Held, acquitting both accused: (1) by virtue of the fact that the nylon bag with the cannabis was in the first accused's possession, the statutory presumption under s 18(1) and (2) of the Misuse of Drugs Act (Cap 185) ('the Act') arose. He had to rebut this presumption on a balance of probabilities; (2) the court accepted the first accused's evidence that the two nylon bags were only handled by him at the conveyor belt in Singapore and that he had nothing to do with the bags in Bangkok; (3) the court also accepted the first accused's statement that he had made the cautioned statement when he was panic-stricken as he had heard in Bangkok before they left that Abdullah wanted to bring cannabis to Singapore. The court was of the view that the first accused was only an innocent handler. The first accused had therefore rebutted the presumption in s 18(1) of the Act; (4) the essential ingredient of a conspiracy was agreement and agreement could be shown through the words and actions of the parties involved which indicate their intention in pursuit of a common purpose thus giving rise to an inference that there was a prior agreement. The first accused lacked the mens rea required for the offence of importation of cannabis. It was therefore impossible to draw the inference from the facts as submitted that there was a prior agreement between the first and second accused. In the absence of the agreement, the charge against the second accused of conspiring with the first accused to import cannabis was untenable.

Public Prosecutor v Sugianto bin Pardi & Anor Criminal Case No 25 of 1993 High Court, Singapore (Goh Phai Cheng JC).

Public Prosecutor v Lau Chi Sing [1988] 1 MLJ 383 High Court, Singapore (Lai Kew Chai and LPThean JJ).

See CRIMINAL LAW, Vol 4, para 452.

The respondent and two others (the first and third accused) were tried on a charge that they had, in furtherance of a common intention, in their possession 32 packets of substance containing not less than 26.37g of diamorphine for the purpose of trafficking and, by virtue of s 5(2), they trafficked in that quantity of drugs. The evidence was a team of officers from the Central Narcotics Bureau (CNB) had kept watch on a flat belonging to the first accused. The first accused had been arrested on his leaving the flat. Thereafter, the officers went into the flat and arrested the respondent and the third accused who were in the flat. The CNB officers testified that they saw the third accused sitting at the entrance of the kitchen facing a large number of drug exhibits laid out before him. He was holding a plastic spoon in one hand and a small plastic sachet in the other. The officers assumed that he was filling the sachet. The respondent was seated facing the third accused. He was seen talking to the third accused but was doing nothing else. The first accused's statements under ss 121 and 122(6) of the Criminal Procedure Code (Cap 68) were admitted. In his s 122(6) statement, the first accused said that the respondent brought the heroin to his flat for packing and that it did not belong to him or his wife. In his s 121 statements, the first accused said that the third accused introduced the respondent to him and that the respondent sold him the drugs for $3,600. The trial judge held that a prima facie case had been made out against the first and third accused but not against the respondent. Mere knowledge of possession of the heroin was not sufficient and he was unable to draw any irresistible conclusion adverse to the respondent merely from his proximity to the drugs. He also held that the first accused's s 122(6) statement was not a confession and could not be used against the respondent. The trial judge further held that the first accused's s 122(6) statement seriously contradicted his s 121 statement and that the contents of the s 121 statements were inherently incredible. The prosecution appealed.

Held, allowing the appeal: (1) the first accused's s 122(6) statement was a confession and was not inherently incredible in the circumstances. That being so, there was evidence that the respondent took the drugs to the flat for packing and that the drugs were in the possession of the first and third accused at the time of their arrest. Thus, the first and third accused had possession of the drugs with the knowledge and consent of the respondent, and consequently under s 18(4) the respondent was deemed to be in possession of the drugs. Under s 17, all three of them were presumed to have the drugs in their possession for the purpose of trafficking. This statement, if accepted, together with the other evidence adduced by the prosecution established the essential elements of the charge against the respondent; (2) the first accused's s 121 statement was also a confession. The relevant part of the statement was not inherently incredible in the circumstances. Thus, there was some evidence that the first and third accused, at the material time, had possession of the drugs with the knowledge and consent of the respondent. By selling and delivering the drugs to the first accused on the introduction and in the presence of the third accused, the respondent had knowledge of and consented to the first and third accused having possession of the drugs. Hence, on the basis of this statement and the other evidence adduced, the essential elements of the charge had been established against the respondent; (3) the discrepancy between the first accused's s 122(6) and s 121 statements on the issue of the respondent's involvement in the drugs was not material at this stage of the prose-cution's case. Both the statements incriminated the respondent, albeit in different ways. On the basis of either of the statements, the respondent was involved in bringing the drugs to the flat and had knowledge of and consented to the first and third accused having possession of the drugs; (4) at this stage of the prosecution's case, these discrepancies between the two statements were not such as to nullify entirely the evidential value of either statement and they were prima facie reliable. However, they would affect the weight to be attached to the first accused's allegations against the respondent with which the court would be concerned at the end of the whole case, after hearing all the evidence including the evidence, if any, adduced by the defence; (5) (per curiam) at the close the prosecution's case, the test to be applied in evaluating the evidence was that as laid down in Haw Tua Tau v PP [1981] 2 MLJ 49, which had been followed and applied consistently in the Singapore courts. It was unnecessary to dwell upon or adopt other judicial elaborations or pronouncements of the same test, such as those found in R v Galbraith (1981) 73 Cr App R 124 and R v Shippey[1988] Crim LR 767, which may give rise to some confusion.

Public Prosecutor v Tan Aik Heng [1995] 2 SLR 244 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellants were jointly tried for having trafficked in diamorphine. At the trial, the first appellant ('Lee') elected to remain silent when his defence was called. Instead, he gave evidence on behalf of the second appellant ('Quek'). Lee claimed that he was solely responsible for the offence and had led Quek to believe that they were only delivering contraband cigarettes. At the hearing of the appeal, counsel for Lee informed the court that he had instructions to apply to withdraw the appeal. The second appellant (Quek) was the driver of a rented car in which a drug transaction between Lee and the third appellant ('Choo') took place. A substantial quantity of drugs was also found in the car. As the driver of the vehicle, Quek was presumed to be in possession of the drugs by virtue of s 21 of the Misuse of Drugs Act (Cap 185) ('the Act'), and further presumed to have known the nature of the drugs by virtue of s 18(2) of the Act. Quek's defence was that he had merely assisted Lee to drive the car and deliver contraband cigarettes. He did not know that the car contained drugs and that Lee was involved in drug trafficking. The trial judge considered that various aspects of Quek's defence were suspicious. He disbelieved Quek's evidence that he was only delivering contraband cigarettes and convicted Quek of the offence as charged. On appeal, it was argued that the trial judge had erred in drawing only adverse inferences from the evidence adduced against Quek. It was emphasized that there was no direct evidence implicating Quek for the trafficking activities, apart from the fact that he had driven the vehicle. The third appellant (Choo) was a self-confessed drug addict. In relation to the first charge of trafficking by delivering drugs contained in a paper bag to the fourth appellant (Yakoob), he was presumed to have known the nature of the drug under s 18(2) of the Act. In his defence, Choo said that he did not know the contents of the paper bag which he handed to Yakoob and that he had only had possession of the bag for a brief duration. In relation to the second charge, the presumption under s 17 of the Act was that an additional quantity of drugs found in Choo's possession was meant for the purpose of trafficking. To this charge, he claimed that the drugs were for his own consumption. Dr Lim Yun Chin gave evidence on Choo's behalf to the effect that he was a hard-core drug addict. Choo claimed that he had suffered severe withdrawal symptoms while in the CID lockup. This claim was rejected by Dr Leow Kee Fong, who opined that Choo would not have managed to cope with these symptoms in the CID lockup if they had been as severe as described. The prosecution sought to impeach Choo's credit on the basis of contradictions between his oral testimony and two statements which he had made to the investigating officer. Choo alleged that these statements were not voluntarily made. This led to a voir dire on their admissibility. In the course of the voir dire, the trial judge looked at the statements in their entirety. The trial judge eventually admitted the statements for the purpose of impeachment proceedings. He stated in his grounds of decision that the statements were voluntarily made and that Choo's credit had been impeached. In respect of the first charge, the trial judge found that Choo had failed to rebut the presumption of trafficking. As for the second charge, the trial judge found that Choo did not present severe withdrawal symptoms while in the CID lockup and concluded that Choo did not have that high a degree of dependency on heroin. Moreover, Choo had not shown how he could have afforded to maintain his drug addiction at the rate of consumption alleged. The trial judge thus rejected Choo's defences and convicted him accordingly. On appeal, it was argued that the trial judge had erred in the conduct of the impeachment proceedings, such that Choo's defence was prejudiced. It was further submitted that insufficient weight was given to the circumstances surrounding the alleged commission of the offence, and that Choo's evidence was sufficient to rebut the presumptions of trafficking. The fourth appellant ('Yakoob') was charged with being in possession of a quantity of drugs which attracted the presumption of trafficking under s 17 of the Act. He claimed that his intention was merely to return the drugs to Lee, who had entrusted the drugs with him for safekeeping. It was contended that this would not constitute an act of 'delivery' for the purposes of falling within the definition of trafficking. In rejecting Yakoob's defence, the trial judge stated that Yakoob had failed to rebut the presumption that he was in possession of the diamorphine for the purpose of trafficking. He did not believe his evidence that he had agreed to keep the drugs as a favour for Lee and that his only intention was to return the drugs to Lee. On appeal, it was submitted that the trial judge had wrongly evaluated the evidence. Yakoob reiterated his defence that returning the drugs to their rightful owner (Lee) did not constitute trafficking within the meaning and purpose of the Act.

Held, dismissing the appeals: (1) Lee had admitted that he was responsible for the offence of drug trafficking. There was no allegation on any other basis that the trial judge had wrongly convicted him and counsel had applied to withdraw his appeal. Accordingly, his appeal was dismissed; (2) the evidence of common intention in respect of the charge against Quek was circumstantial and had to be inferred from his acts or conduct and the relevant surrounding circumstances. The degree of gullibility and unquestioning trust allegedly displayed by Quek was unbelievably extreme. On the evidence, the trial judge correctly rejected Quek's defence that he was merely assisting Lee to deliver contraband cigarettes; (3) it may have been procedurally improper for the trial judge to have looked at Choo's statements in their entirety in the course of the voir dire, before having determined whether the statements had been voluntarily made. Nevertheless, the main question was whether the trial judge had properly directed himself in finding that the statements had been voluntarily made. There was no material irregularity in the conduct of the impeachment proceedings which would occasion a failure of justice; (4) Choo was presumed to have known the nature of the drugs even though he might only have had them in his possession for a short while. His evidence that he never checked to see what the bag contained and was merely an innocent courier was not credible; (5) the fact that Choo was able to remain in the CID lockup contradicted his claims of slavish dependence on drugs and severe withdrawal symptoms. Even if he was capable of consuming drugs at the phenomenal rate alleged, it did not immediately follow that he was not also a trafficker; (6) s 30 of the Evidence Act only covered co-accused who were 'being tried jointly for the same offence.' As far as Yakoob was concerned, he did not fall within the s 30 scenario and the alleged confessions of Choo implicating Yakoob could not constitute independent evidence which could sustain a conviction. The judge was therefore wrong in ruling that the charges before him in respect of Choo and Yakoob constituted 'the same offence'. Rather, Yakoob faced an independent charge which was quite unconnected with the two charges against Choo. Nevertheless, nothing turned on this as the judge had not referred to Choo's oral statement in his grounds of decision dealing with Yakoob's case; (7) s 5(2) of the Act made it clear that a person committed the offence of trafficking if he had in his possession that drug for the purpose of trafficking. Yakoob's possession of the drugs for the purpose of eventually transferring possession back to Lee amounted to possession for the purpose of trafficking; (8) there was no requirement that the person found in possession of drugs must be shown to be a 'dealer' or 'supplier' in order for the presumption of trafficking in s 17 to operate.

Lee Yuan Kwang & Ors v Public Prosecutor [1995] 2 SLR 349 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

A was arrested in possession of 68.6g (5,623 straws) of diamorphine. He was observed to have transported the drugs from Toa Payoh to Thomson Road. When first questioned by the narcotics officers, A said he had nothing to say. When he gave evidence in court, A claimed that the drugs were for his own consumption and were four months supply.

Held, convicting A of trafficking: (1) mere possession of drugs per se could not amount to trafficking regardless of the quantity involved; (2) s 17 of the Misuse of Drugs Act (Cap 185) ('the Act') did not create any presumption of trafficking. Its utility was that it created a presumption of the purpose for which a person was in possession of drugs whilst doing any of the acts which fell within the meaning of trafficking; (3) the effect of the presumption was highest in cases of trafficking by transporting because not every act of transporting amounted to trafficking; (4) when a person was caught conveying drugs in a quantity much larger than was likely to be needed for his consumption, the inference that he was transporting them for the purpose of trafficking in them, in the absence of any plausible explanation by him, was irresistible. The effect of s 17 was to transform the inference into a presumption; (5) as A was not only in possession of the drugs but was also conveying them, he was presumed to be conveying them for the purpose of trafficking; (6) once the presumption came into operation, the prosecution did not need to prove that A was in fact conveying the drugs to promote their distribution to other persons; (7) the burden shifted onto A to show on a balance of probabilities that he was not conveying the drugs for that purpose; (8) A's defence that the drugs were for his own consumption was unsatisfactory. He did not say at the time of arrest and during the investigations that the drugs were for his own consumption; (9) if A was to consume 5,623 straws in four months, it would be equivalent to 46 straws a day, more than 15 times his claimed accustomed rate; (10) A thus had not rebutted the presumption.

Public Prosecutor v Ng Chong Teck [1992] 1 SLR 664 High Court, Singapore (Coomaraswamy J and Kan Ting Chiu JC).

The appellant was arrested in possession of 68.6g (5,623 straws) of diamorphine. He was observed to have transported the drugs from Toa Payoh to Thomson Road. When first questioned by the narcotics officers, the appellant had said nothing. When asked to make a cautioned statement, the appellant again said nothing. The appellant was charged with trafficking. At trial, in his defence, the appellant claimed that the drugs were for his own consumption and the drugs seized represented four months' supply. He was convicted and he appealed.

Held, dismissing the appeal: (1) it was settled law that s 17(c) of the Misuse of Drugs Act (Cap 185) ('the Act') created a rebuttable presumption and that the burden was on the accused person to rebut that presumption on a balance of probabilities. As a matter of common sense, the larger the quantity of drugs involved the stronger the inference that they were not intended for the personal consumption of the person carrying them and the more convincing the evidence needed to rebut it; (2) the appellant gave evidence that he was accustomed to consuming two to three straws of heroin daily. At the appellant's rate of consumption, he had five years' supply and not four months' supply. Alternatively, he would have to increase his consumption by 15 times to consume that the quatity of drugs seized in four months; (3) the appellant had no less than five opportunities to give his explanation for being in possession of the heroin. He did not do so. When administered the caution under s 122(6) of the Criminal Procedure Code (Cap 68), the appellant said that he had nothing to say; (4) the trial judges had rightly rejected his defence.

Ng Chong Teck v Public Prosecutor [1992] 1 SLR 863 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Warren LH Khoo and Karthigesu JJ).

A was charged with trafficking in not less than 220.62g of diamorphine. He was found in possession of the said drugs and the presumptions of trafficking in the Misuse of Drugs Act (Cap 185) ('the Act') were evoked. He was convicted and sentenced to death. He appealed on the ground that he had rebutted the presumption.

Held, dismissing the appeal: (1) A was the owner of the car in which the drugs were found. He was also in charge of the vehicle at the material time. This caused the presumption under s 21 of the Act to arise. Once that presumption arose, A by virtue of s 17 of the Act was presumed to have had, until the contrary was proved, the heroin in his possession for the purpose of trafficking therein. Accordingly, A had the burden of proving, on a balance of probabilities, that he was not in fact trafficking; (2) the trial judges had rejected A's evidence and found that he had not on a balance of probabilities rebutted the presumption that he was in possession of drugs for the purpose of trafficking; (3) an appellate court would not disturb findings of fact unless they are clearly reached against the weight of the evidence. In examining the evidence, an appellate court had always to bear in mind that it had neither seen nor heard the witnesses and had to pay regard to the trial judges' findings and their reasons therefor.

Lim Ah Poh v Public Prosecutor [1992] 1 SLR 713 Court of Criminal Appeal, Singapore (Yong Pung How CJ, LP Thean and FA Chua JJ).

The appellant was tried in the High Court for trafficking in diamorphine. On 31 May 1991, a team of narcotics officers saw the appellant leaving his flat with a white plastic bag. When the officers rushed towards the appellant to arrest him, the appellant threw the bag over the balcony. None of the narcotics officers observed the path of the bag after it passed the balcony or saw where it landed, but one of them immediately ran downstairs to retrieve the plastic bag. On reaching the ground floor, the narcotics officer saw, on a grass patch below the balcony outside the appellant's flat, seven bundles wrapped in newspapers scattered within a few steps of each other and a white plastic bag. These were recovered. The bundles were unwrapped to reveal a total of 53 packets of white granular substance, and the investigating officer marked the seven pieces of newspaper wrappings as A, B, C, D, E, F and G respectively. Photographs were taken of the contents of and the layout of the newspaper wrapping for each bundle. The 53 packets were then rebundled in their newspaper wrappings and taken to the Central Narcotics Bureau (CNB) headquarters. At the CNB headquarters, the investigating officer weighed on an electronic weighing machine each bundle in its newspaper wrapping. He found the total weight of the seven bundles to be 474.11g. The bundles were then locked in the investigating officer's personal cabinet. The investigating officer testified that those were the only drug exhibits in his cabinet on 31 May 1991, and that he was the only person with the key to the cabinet. On 1 June 1991, the investigating officer sealed the exhibits in a CNB plastic bag and sent them to the Department of Scientific Services for analysis. The scientific officer who conducted the analysis testified that he found in the CNB plastic bag 53 packets of powdery granular substance wrapped in seven pieces of newspaper marked A to G. He further testified that the contents of the 53 packets weighed 325.3g while the 53 empty packets weighed 30.68g. The scientific officer certified that the granular substance contained not less than 32.28g of diamorphine. At the trial, the investigating officer was recalled to weigh the seven newspaper wrappings on an analogue weighing machine provided by the defence counsel. These were found to weigh 40g. Adding 40g to the weight of 355.98g obtained by the scientific officer for the 53 packets and their contents, the defence counsel arrived at a gross weight of 395.98g for the 53 packets and their contents and the seven newspaper wrappings. There was therefore a discrepancy of 78.13g between the weight so calculated and the gross weight of 474.11g measured by the investigating officer. No evidence or explanation was given by the investigating officer or anyone else on behalf of the prosecution for this discrepancy in weight. The appellant was alleged to have made a statement in which he admitted to the following: obtaining heroin for resale; wrapping 53 packets of heroin in seven bundles with newspapers; placing the seven bundles in a plastic bag; leaving his flat on 31 May 1991 with the plastic bag intending to hide the heroin; and throwing the plastic bag 'downstairs' when he saw a few persons rushing towards him. This statement was admitted by the trial judge at the conclusion of a voir dire. When called upon to enter his defence, the appellant denied that he was in possession of the white plastic bag and its contents when he left his flat on 31 May 1991. He claimed that parts of his statement had been fabricated by the investigating officer. The trial judge rejected the appellant's defence and convicted him. The appellant appealed. On appeal, three main issues were raised. First, it was argued that the prosecution had not proved beyond reasonable doubt that the items recovered from the grass patch had been thrown by the appellant, and that the trial judge had applied the wrong standard of proof in coming to the conclusion that the appellant was in possession of the drugs. Secondly, it was argued that the statement was not given by the appellant voluntarily and should not have been admitted. Thirdly, it was argued that there was a serious discrepancy between the gross weight of 395.98g calculated from the scientific officer's measurements and the gross weight of 474.11g measured by the investigating officer. Accordingly, there was a serious doubt whether the 53 packets seized from the appellant were the same ones sent to the scientific officer for analysis.

Held (by a majority on the third issue), dismissing the appeal: (1) the trial judge did not apply the wrong standard of proof in coming to the conclusion that the appellant was in possession of the drugs; (2) the trial judge had admitted the appellant's statement after a long and exhaustive trial-within-a-trial. He had carefully analyzed the evidence in coming to his decision. There was no basis for interfering with his finding that the statement was made by the appellant without any inducement, threat or promise; (3) the crucial question was whether, on the evidence adduced, any doubt had been raised as to the identity of the drug exhibits. The drug exhibits were accounted for from the time they were recovered from the grass patch below the balcony outside the appellant's flat to the time they were analyzed by the scientific officer. On the facts, there was no break in the chain of evidence affecting the proof as to the identity of the drug exhibits. The discrepancy between the weight of the 53 packets arrived at by the investigating officer and that calculated from the measurements made by the scientific officer did not create any doubt as to the identity of the drug exhibits; (4) the prosecution had proved beyond reasonable doubt that the appellant was at the material time in possession of 53 packets of granular substance which contained not less than 32.28g of diamorphine. The statutory presumption that he trafficked in that quantity of drugs arose under s 17 of the Misuse of Drugs Act (Cap 185) and had not been rebutted; (5) (per Chao Hick Tin J, dissenting on the third issue) the trial judge had not given sufficient consideration to the huge difference between the weight of 474.11g obtained by the investigating officer and the weight of 395.98g calculated from the scientific officer's measurements. In percentage terms, there was a margin of error of about 16.49%. With this margin of discrepancy, the court should not dismiss it by saying there must be some error somewhere. The prosecution must explain the discrepancy; (6) (per Chao Hick Tin dissenting on the third issue) there was no basis for the trial judge to postulate the two alternative reasons he gave to explain the discrepancy. While a court may draw reasonable inferences from the facts which are before the court, the inferences drawn must be warranted by the evidence. The evidence of the investigating officer was that there was nothing wrong with the weighing machine, which was a digital weighing machine giving weight up to two decimal points. There was nothing in the investigating officer's evidence to suggest that the method of weighing which he adopted would give the wrong weight in so far as the gross weight was concerned; (7) (per Chao Hick Tin dissenting on the third issue) the establishment of the discrepancy seriously undermined the evidence given by the investigating officer. One could not possibly rule out some mix-up as a reason for the discrepancy. The investigating officer produced no records to show the drug movements in and out of his cabinet and relied solely on his memory. Where no proper record is kept of the movements of drugs kept in a cabinet, evidence based on memory to say that there were no other drugs in the cabinet, in the face of the discrepancy, ought to be scrutinized with utmost care, there having been a lapse of two years between the appellant's arrest and the trial; (8) (per Chao Hick Tin dissenting on the third issue) the discrepancy, in the absence of any explanation from the investigating officer, cast doubt on the chain of events as stated by him in so far as the exhibits were concerned. The prosecution should have asked the investigating officer to explain and let his explanation be put to the test through further cross-examination. A reasonable doubt existed as to whether the 53 packets sent to the scientific officer for analysis were the same packets that were seized from the appellant.

Lim Swee Seng v Public Prosecutor [1995] 1 SLR 425 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Chao Hick Tin J).

The appellant was convicted of trafficking in 1,120.81g of diamorphine. The appellant was observed carrying a white plastic bag and putting it in the boot of his car. The appellant was then trailed to Balestier Road where he was arrested. When the boot was opened, the plastic bag was seized and was found to contain diamorphine. In the course of the trial, the appellant's statement was admitted in evidence. The statement was recorded by a narcotics officer.

Held, dismissing the appeal: (1) a confession made to a narcotics officer was admissible in evidence provided the provisions of s 24 of the Evidence Act (Cap 97) were complied with. The court was required, inter alia, to determine if the confession appeared to have been caused by any inducement, threat or promise proceeding from a person in authority and approach the matter from the view point of the accused and consider whether the circumstances were such that it could give reasonable grounds for the accused to suppose that by making it he would gain an advantage or avoid any evil of the kind referred to in s 24; (2) although the appellant had not been given food or drink and was tired hungry and thirsty and under great stress, he was not in such a state of shock, exhaustion or fatigue that he had no will to resist making any statement which he did not wish to make; (3) whether the appellant had or had not rebutted the presumptions against him was entirely a question of fact. The trial judges had the benefit of observing the appellant and forming a view on his credibility. Bearing in mind the burden was on the appellant to rebut the presumption on a balance of probabilities, it was not unreasonable or irregular in the circumstances of the case for the trial judges to comment adversely on the appellant's failure to call any witnesses to testify on his behalf; (4) the appellant had failed to rebut the presumption raised by ss 18 and 21 of the Misuse of Drugs Act (Cap 185).

Tan Boon Tat v Public Prosecutor [1992] 2 SLR 1 Court of Criminal Appeal, Singapore (TS Sinnathuray, Rajendran and Karthigesu JJ).

The appellant was convicted for trafficking in diamorphine. The prosecution's case was that the appellant had been found by police officers in possession of 32 sachets, one straw and one packet of a granular substance later established to contain not less than 43.28g of diamorphine. A statement by the appellant, admitting that he had made arrangements with others to form a pool to purchase large quantities of heroin and that the drugs found on him on his arrest was such a purchase, was sought to be adduced. The appellant contended that the statement was involuntary, as inducements in the form of offers of cigarettes, family visits and leniency were held out; there was also oppression for the appellant had felt cold, had gastric pain and was hungry. It was contended that the inducements were shown by the fact that his requests for cigarettes and family visits were granted after the statement had been made. Furthermore, the recording of the statement ought not have been done in a question and answer style, without the questions being recorded. Such questioning amounted to cross-examination. The appellant gave evidence that he had formed with others a purchasing pool to take advantage of discounts for large purchases of heroin. He purchased a consignment, consisting of a one pound packet, on the day before his arrest. On the day of his arrest, he noticed police officers in the neighbourhood, so he decided to move the drugs out, including portions other than that in the packet, so that he would not lose them in a raid, and intended to meet up with the pool members. The trial judge admitted the statement, and found the case against the appellant proved. The appellant appealed, arguing that the statement was involuntary, and that he had rebutted the presumption of trafficking. In addition, it was contended that the investigation of the police was insufficient because fingerprints were not taken off the bag containing the drugs and the various items found therein, and no follow up investigation was made on the seller of the drugs and the members of his pool.

Held, dismissing the appeal: (1) the appellant failed to raise a reasonable doubt that the statement was involuntary. The judge was correct in finding that he did not make the statement in order to obtain cigarettes or a family visit, that the investigating officer gave no indication that he could have obtained leniency for the appellant and that the accedence to the appellant's requests was not made pursuant to any inducement or promise; (2) there was no oppression. The appellant had only suffered some minor discomfort. There was no necessity for interrogators to remove all discomfort and what discomfort there was did not render the statement involuntary. The recording of the statement in a question and answer format without the questions being recorded did not affect its admissibility. Nor did the pace of questioning amount to a form of cross-examination, which, although improper, would not have been inadmissible unless it amounted to oppression, which it did not in this case; (3) the appellant was undoubtedly trafficking, as on his own evidence, he was in possession of the drugs for the purpose of transporting, sending, delivering or distributing to the members of his pool; (4) the failure to obtain fingerprints from the various items found in the appellant's bag and to follow up on his information regarding his supplier and the people to whom he was to distribute the drugs was entirely irrelevant. The issue before the court was not who had supplied the drugs to the appellant but that he had transported them for distribution. There was no obligation on the police to take fingerprints for examination where the accused had been caught with the offending material.

Yeo See How v Public Prosecutor [1997] 2 SLR 390 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Chao Hick Tin J).

The appellant was cycling along Kallang Road when he was accosted by two narcotics officers. He tried to make a dash into a nearby village when he was arrested by the narcotics officers. The appellant was taken to the Central Narcotics Bureau where he was searched by a Senior Narcotics officer, Lee. On him were found two packets wrapped in Chinese newsprint. These packages were found to contain a total of 40.37g of diamorphine. The trial judges, after a trial within a trial, admitted in evidence a cautioned statement made by the appellant to Lee on the day of his arrest. The court rejected the contention put forth by the appellant that the diamorphine was for his own consumption and found that he was guilty of the offence by unauthorized trafficking in a controlled drug. He was sentenced to death. One of the submissions put forth by counsel for the appellant in the appeal was that the trial judges erred in admitting the cautioned statement. It was further argued that the appellant was not given an opportunity to speak in his native dialect, ie Cantonese, and could not understand the contents of the statement when he signed it as it was read to him in Hokkien.

Held, dismissing the appeal: (1) there was sufficient evidence on which the trial judge could properly act in arriving at their decision to admit the appellant's cautioned statement in evidence; (2) on the facts, the appellant was properly convicted of unlawfully trafficking in a controlled drug.

Lee Kin Kheong v Public Prosecutor [1978] 2 MLJ 141 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Kulasekaram and Rajah JJ).

The applicant was charged under s 5(a) of the Misuse of Drugs Act (Cap 185) ('the Act') with trafficking, by transporting 22.33kg of cannabis from Tuas to Corona Ville. The district court amended the charge to possession and convicted him accordingly. The Public Prosecutor appealed. The High Court allowed the appeal and substituted a conviction of trafficking instead. Leave was given for a question of law to be reserved for the decision of the Court of Criminal Appeal as to whether there was trafficking within the meaning of the Act where a person who was in possession of the drugs for the purposes of trafficking transported those drugs from one place to another without intention to part with or transfer possession of the drugs at the intended destination and did not so part with or transfer possession at the said destination.

Held, answering the question in the affirmative: (1) there was trafficking within the meaning of the Act if the person in possession of the drugs transferred them from one place to another for the purpose of ultimate distribution and not for personal consumption, even if he did not part with or transfer possession of the drugs to another person; (2) whether an act of conveyance amounted to trafficking by transportation depended on the purpose of conveyance at the time of conveyance. This purpose was not the intended use at the intended destination but the larger purpose of the intended use of the drugs. If they were solely for the use of the transporter and it was never intended that possession was to be parted with, whether at the intended destination or otherwise, then, the conveyance did not amount to trafficking. The correct test was that of the 'state of mind of the transporter at the time he was transporting the drugs'. This was so whether the accused was arrested during the transportation or later.

Syed Feisal bin Yahya v Public Prosecutor [1992] 2 SLR 190 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Warren LH Khoo and Karthigesu JJ).

Chia Beng Chye v Public Prosecutor [1980] 2 MLJ 171 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, TS Sinnathuray and Chua JJ).

See CRIMINAL LAW, Vol 4, para 458.

Tan Ah Tee & Anor v Public Prosecutor [1980] 1 MLJ 49 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Kulasekaram and Chua JJ).

See CRIMINAL LAW, Vol 4, para 446.

The appellant was convicted in the High Court for an offence of trafficking in diamorphine (heroin) under s 3(a) of the Misuse of Drugs Act 1973 ('the Act'). The evidence on which he was convicted consisted of eye-witnesses' account by Central Narcotics Bureau officers who saw the appellant carry a bag from a house in which was living to a provision shop. This bag, after it was seized by the officers, was found to contain a substance with a total diamorphine weight content of 1032.7g in 214 plastic packets, which was the subject matter of the charge. The appellant thereafter led the officers to the house which he produced a briefcase from which the officers seized three plastic packets which contained a substance with a total diamorphine weight content of 11.84g. The briefcase also contained his passport. Soon after his arrest, the appellant made a cautioned statement to an Assistant Director through the interpretation of another officer of the Bureau, which was also admitted in evidence. In the course of the trial, his counsel elicited from the bureau officer that they had been given copies of their statements and had sight of the evidence they had given at the preliminary inquiry. Evidence of the diamorphine weight content of the substance seized was given by a government chemist. The appellant contended before the appellate court, inter alia, that the charge was defective in that it merely alleged the appellant trafficked in diamorphine without stipulating the manner of trafficking, whereas s 2 of the Act set out a variety of ways trafficking could be carried out.

Held, inter alia: the charge fulfilled the requirements of ss 151 and 152(1) of the Criminal Procedure Code (Cap 113, 1970 Ed) ('the Code') and gave the accused sufficient notice of the matter with which he was charged. Section 153 of the code only applied when the accused did not have notice of the matter with which he was charged, in which case the charge must contain the particulars of the manner in which the offence was committed. In any event if there were insufficient particulars, the omission could not, in terms of s 155 of the Code, be regarded as material unless it was shown by the appellant that he had in fact been misled by the omission which had not been done here.

Lim Hong Yap v Public Prosecutor [1978] 1 MLJ 154 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Chua and Rajah JJ).

The accused in this case was charged with trafficking in 18.05g of diamorphine, a controlled drug under the Misuse of Drugs Act 1973, an offence under s 3(a) and punishable under s 29 of the Misuse of Drugs Act. The defence disputed, inter alia, the actual weight of the diamorphine. Under s 3 of the said Act, the punishment for a quantity more than 15g would be different from that for amounts less than 15g but more than 10g. The methods used to arrive at the quantity of diamorphin were the gas chromatography method and the colorimetric method by the use of sodium nitrite.

Held: (1) in borderline cases such as this, where the cromatogram suggested further investigation, such further investigation could have resolved any doubt that existed; (2) the accused should be given the benefit of the doubt as the amount of diamorphine analysed could well be below 25g but more than 10g.

Public Prosecutor v Lim Tee Leck [1979] 1 MLJ 164 High Court, Singapore (Kulasekaram and D'Cotta JJ).

The appellant was charged with trafficking in a controlled drug on board a Singapore-registered ship contrary to s 3(a) of the Misuse Drugs Act 1973. He was convicted by the district court and was sentenced to imprisonment for a term of 20 years and to 15 strokes of the rotan. On appeal, it was argued on his behalf that there was no statutory provision conferring criminal jurisdiction on a district court to try offences commited outside the territorial limits of Singapore.

Held, dismissing the appeal: there being uncontradicted evidence that the appellant was a Singapore citizen and the ship a Singapore ship, the trial court clearly had jurisdiction to try the appellant.

Mohamed Mokhtar bin Sarjani v Public Prosecutor [1976] 2 MLJ 153 High Court, Singapore (Wee Chong Jin CJ).

In this case, the appellant had been convicted of trafficking in 46.38g of morphine. In a cautioned statement he admitted the offence of trafficking in about 75g of morphine. The principal question in this case was as to the quantity of morphine in the packets. The government chemist subjected the packages to a qualitative test known as paper chromotography, and a quantitative test known as gas chromotography. He certified that the morphine content of the two packages amounted to 46.38g. A chemist instructed on behalf of the appellant was given samples of the contents of the two packages for analysis. The government chemist also repeated his analysis of the products and these produced the same results as before within less than 2% difference. The chemist called on behalf of the appellant could not complete his analysis before the trial as he found impurities in the apparatus used. A request for an adjournment was refused.

Held: (1) for by the time adjournment was asked for, there was no basis for suggesting that any relevant evidence could become available as a result of the chemist's quantitative analysis by gas chromotography; (2) in the light of the evidence given at the trial, the learned judges' refusal of the application for an adjournment was justified;although the judges had ruled that the cautioned statement of the appellant was admissible before giving his counsel an opportunity to make submissions to the contrary, they had in fact listened to counsel's submission after they had indicated their initial ruling and said that he had failed to make them change their minds. In any case, there was ample evidence against the appellant without resort to the confession and the appellant did not suffer any denial of justice at the trial.

Teo Hock Seng v Public Prosecutor [1978] 2 MLJ 1 Privy Council Appeal from Singapore (Lord Diplock, Lord Fraser of Tulleybelton and Lord Russell of Killowen).

Three male Chinese seen talking to each other on the 10th floor of Block 156, Mei Ling Street, Singapore, were under the observation of the narcotics officers. The latter subsequently waited at the lift entrance on the ground floor of Block 156 and arrested the two appellants when they came out of the lift. The appellants were taken to the Central Narcotics Bureau headquarters where the first appellant was questioned. The first appellant produced from within his underwear a bundle containing 9.08g of heroin. He disclosed that he had a few more placed in a letter box at Block 151, Mei Ling Street, and referred to the second appellant for the key to the said letterbox. The second appellant produced a bunch of three keys and, using one of them, the officer unlocked the letter box in which were found parcels of substance containing 43.3g of heroin. Shortly afterwards, the first appellant (in the absence of the second appellant) led the officers to 11-H, Block 151, Mei Ling Street, which was opened with one of the three keys. The first appellant pulled out a gramophone record from the stack of records and from within its corner took out a packet containing 2.82g of heroin. The officers had also found in the room two phials with a total heroin content of 0.05g. The total heroin content of the exhibits seized was 55.25 gms. The charge under which the two appellants were jointly tried and convicted reads as follows: '... that you ... at Blocks 151 and 156 Mei Ling Street, Singapore, in furtherance of the common intention of both of you, did traffic in a controlled drug, to wit, 55.25g of diamorphine (heroin), and you have thereby committed an offence under s 3(a) of the Misuse of Drugs Act.' To bring home the charge, the prosecution tendered evidence of other past criminal acts of the appellants and also invoked some of the presumptions laid down in the Act. Section 2 of the Misuse of Drugs Act 1973 reads as follows: 'traffic' means (a) to sell, give, administer, transport, send, deliver or distribute; or (b) to offer to do anything mentioned in para (a) above otherwise than under the authority of this Act or regulations made thereunder and 'trafficking'has a corresponding meaning.

Held: (1) the evidence in respect of past criminal activities of the appellants was inadmissible; (2) the evidence in this case was inadequate to convict the appellants on the charge for which they were tried; (3) to possess a drug for the purpose of trafficking is something totally different from the act of 'trafficking' as defined in s 2 of the Act; (4) there was no evidence on which the second appellant could have been convicted of any offence under the Act. As for the first appellant, he was guilty of the offence of having in his possession 55.2g of heroin in contravention of s 6(a) of the Act. He was sentenced to ten years' imprisonment.

Poon Soh Har & Anor v Public Prosecutor [1977] 2 MLJ 126 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Choor Singh and D'Cotta JJ).

Ong Ah Chuan v Public Prosecutor and another appeal [1981] 1 MLJ 64 Privy Council Appeal from Singapore (Lord Diplock, Lord Keith of Kinkel, Lord Scarman and Lord Roskill).

See CRIMINAL LAW, Vol 4, para 456.

This was an appeal against the conviction of the appellant on a charge that he did an act for the purpose of trafficking in a controlled drug by having in his possession a quantity of the drug. The appellant had been sentenced to death on that charge. The prosecution in this case had proved that the appellant was in possession of 55.48g of diamorphine and from that they relied on the statutory presumption that the appellant had the controlled drug 'for the purpose of trafficking therein'.

Held: (1) there is however no other provision making it an offence for a person to be in possession of a controlled drug 'for the purpose of trafficking therein'; (2) where the quantity of the controlled drug attracts the statutory presumption that the possession of the controlled drug is for the purpose of trafficking therein, the person in possession can be charged with and found guilty of an offence under s 3(c) of the Act if it can be proved that he did or offered to do any act preparatory to or for the purpose of trafficking therein; (3) an essential ingredient of the offence under s 3(c) of the Act is the doing of or offering to do an act preparatory to or for the purpose of trafficking in a controlled drug. Mere possession of a controlled drug for the purpose of trafficking therein does not however constitute the doing of an act for the purpose of trafficking therein; (4) possession per se of a controlled drug constitutes an offence under s 6(a) of the Misuse of Drugs Act 1973 ('the Act');the conviction under s 3(c) of the Act must be quashed and a conviction for possession under s 6(a) of the Act substituted therefor and the appellant sentenced to imprisonment for a term of ten years.

Seow Koon Guan v Public Prosecutor [1978] 2 MLJ 45 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Kulasekaram and D'Cotta JJ).

Wong Kee Chin v Public Prosecutor [1979] 1 MLJ 157 Court of Criminal Appeal, Singapore (Wee Chong Jin CJ, Chua and Choor Singh JJ).

See CRIMINAL LAW, Vol 4, para 572.

In these cases, the appellants appealed against their convictions for offences of trafficking in heroin contrary to s 3 of the Misuse of Drugs Act 1973 ('the Act'). The evidence against the appellants showed that they were in each case arrested in possession of the heroin which exceeded 15g and that they were transporting the heroin. As the amount of heroin involved exceeded 15g in each case, the mandatory sentence of death was imposed on the appellants. The appellants appealed to the Court of Criminal Appeal, which dismissed the appeal, following its earlier decision in Wong Kee Chin v Public Prosecutor [1979] 1 MLJ 157, on the true construction of the Act. At the appeal before the Privy Council, two additional grounds were raised on the constitutionality of the provisions in the Act. The first was that the provision in s 15 of the Act, that proof of possession of controlled drugs in excess of the minimum quantities stated in the section gives rise to a rebuttable presumption that such possession is for the purpose of trafficking, is inconsistent with the Constitution; and the second was that the provision in s 29 and the Second Schedule of the Act for a mandatory death penalty for trafficking in controlled drugs in excess of the higher minimum quantities stated in the schedule, is likewise inconsistent with the Constitution.

Held: (1) (b) if the quantity of controlled drugs being moved was in excess of the minimum quantity specified for that drug in s 15 of the Act, that section creates a rebuttable presumption that such is the purpose for which they were being moved, and the onus lies upon the mover to satisfy the court, upon a balance of probabilities, that he had not intended to part with the possession of the drugs to anyone else, but to retain them solely for his own consumption; (2) the Court of Criminal Appeal had in these cases applied the correct construction to the Misuse of Drugs Act 1973 and the appeals on this ground must fail; (3) in the case of the Control of Drugs Act 1973, any act done by the accused, which raises the presumption that it was done for the purpose of trafficking, is per se unlawful, for it involves unauthorized possession of a controlled drug which is an offence under s 6 of the Act. There is no conflict with any fundamental rule of natural justice, and so no constitutional objection to a statutory presumption (provided that it was rebuttable by the accused) that his possession of controlled drugs in any measurable quantity without regard to specified minima was for the purpose of trafficking in them. There is therefore no substance in the suggestion that s 15 of the Act is inconsistent with the Constitution, at any rate so far as it relates to proved possession, with which the cases under appeal were concerned; (4) the presumption under the Act works as follows: when an accused is proved to have had controlled drugs in his possession and to have been moving them from one place to another, (a) the mere act of moving them does not of itself amount to trafficking within the meaning of the definition in s 2 of the Act; but if the purpose for which they are being moved was to transfer possession from the mover to some other person at their intended destination, the mover is guilty of the offence of trafficking under s 3 of the Act, whether that purpose was achieved or not;there is nothing unconstitutional in the provision for a mandatory death penalty for trafficking in significant quantities of heroin and morphine. The dissimilarity in circumstances adopted as justifying the differentiation in punishment was not purely arbitrary but bore a reasonable relation to the social object of the law, and there is therefore no inconsistency with art 12(1) of the Constitution.

Ong Ah Chuan v Public Prosecutor and another appeal [1981] 1 MLJ 64 Privy Council Appeal from Singapore (Lord Diplock, Lord Keith of Kinkel, Lord Scarman and Lord Roskill).

The appellant was convicted in the High Court on a charge of trafficking in cannabis under ss 5(1)(a) and 5(2) read with s 17 of the Misuse of Drugs Act (Cap 185) ('the Act'). A number of packets of vegetable matter which were suspected to be cannabis were seized from the appellant's rented room at No 60 Watten Estate. A weighing scale, 41 empty polythene packets and a plastic bottle were also seized. Another weighing scale and a knife were seized from the appellant's place of employment. Dr Lee Tong Kooi, a scientific officer attached to the Department of Scientific Services, testified that his analysis of the seized vegetable matter revealed a total cannabis content of 2,653.5g. The appellant contended that the cannabis did not belong to him but to one Aziz. He was merely a bailee of the drugs, which began to emit a pungent smell after they had been left with him for a week. Aziz would collect the drugs from him later in order to return them to the supplier. Secondly, it was contended that irrespective of who owned the drugs, the appellant did not have the mens rea to traffic in the drugs because he had genuinely believed, at the time of arrest, that the cannabis was 'rotten' and was, therefore, not usable for the purpose of trafficking. The learned trial judge rejected these contentions and convicted the appellant as charged. On appeal, counsel for the appellant conceded that possession of drugs as a bailee pending their return to the owner could also involve trafficking. His sole argument was that the appellant had genuinely believed that he was merely keeping 'rotten' and useless cannabis which was meant to be returned to the supplier by Aziz. He submitted that the appellant had rebutted the presumption of trafficking since he did not have the requisite mens rea of trafficking.

Held, dismissing the appeal: (1) there was no acceptable evidence presented to the court by the defence to show that the vegetable matter seized was rotten and, therefore, useless. On the other hand, scientific evidence tendered by the prosecution had established beyond doubt that the vegetable matter which formed the subject matter of the charge did contain 2,653.5g of cannabis; (2) the appellant knew that he was in possession of cannabis and that the substance was in fact cannabis. It was no defence for him to say that he entertained a genuine belief that they were 'rotten' or of unmarketable quality. This, without more, did not lead to a conclusion that he had rebutted the presumption of trafficking.

Teo Tiang Hoe v Public Prosecutor Criminal Appeal No 25 of 1995 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

A red plastic bag with a package containing drugs was found in a drawer in the appellant's bedroom. The appellant's defence was that the package was given to him by the second accused for safekeeping and that he did not know that it contained drugs. The second accused denied giving the package to the appellant and relied on the defence of alibi. At the end of the trial, the trial judge completely disbelieved the appellant. The appellant was convicted and the second accused acquitted. The appellant appealed.

Held, dismissing the appeal: (1) mere possession of a parcel is sufficient to raise a strong inference of possession of its contents. In this case, it was not disputed that the appellant was in possession of the red plastic bag. This by itself was sufficient to call for the appellant's defence, as it was sufficient evidence on which to found a conviction. That being so, if the appellant's defence that he was given the parcel by the second accused was disbelieved so that no reasonable doubt remained, possession would have been proved. The presumption in s 17 of having it in his possession for the purpose of trafficking was then properly invoked; (2) given the number of blatant lies told by the appellant both in court and to the CNB, it was hard to see what other conclusion the trial judge could have arrived at. There was more than adequate basis for the trial judge to disbelieve the appellant. As it could not be believed that the appellant was handed the plastic bag for safekeeping, possession had been proved. The inference of knowledge was almost irresistible and the presumption in s 17 was, therefore, rightly invoked. There was no serious attempt to rebut this presumption and the only reasonable conclusion that could be arrived at was that the presumption was not in any way rebutted.

Neo Kay Liang v Public Prosecutor Criminal Appeal No 20 of 1995 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellant was charged with trafficking in a controlled drug under s 5(1)(a) read with 5(2) of the Misuse of Drugs Act ('the Act') for having in his possession for the purpose of trafficking not less than 34.48g of diamorphine. The appellant admitted possession and ownership of the drugs found in his flat on 15 September 1994, the day of his arrest. However, he denied that he was trafficking in the drugs because they were all for his personal consumption. The prosecution relied on the admission of possession and ownership of drugs and s 17 of the Act to raise the presumption of trafficking. In his defence, the appellant gave evidence that he had bought drugs from one Ah Thor as well as sachets of drugs from other sources. He said that he usually smoked half or three-quarters or a whole sachet of diamorphine a day. The trial judge accepted the opinion of Dr Leow, a medical doctor, that the appellant was a mild addict based on the fairly quick response to treatment after the appellant was arrested. The judge also found that there was no clear evidence as to the rate of consumption of heroin by the appellant nor the purity of the heroin he consumed. He had found the appellant to be an untruthful witness, in particular with respect to the evidence relating to the appellant's level and sources of income. The judge was of the view that once possession was proved and s 17 invoked, the appellant must satisfy the court on a balance of probabilities that he had the drugs for purposes other than trafficking. He was not satisfied that the appellant had rebutted the presumption of trafficking and convicted the appellant. The appellant appealed against his conviction.

Held, dismissing the appeal: (1) the trial judge had correctly accepted Dr Leow's opinion that the appellant was only a mild abuser. No question was put to Dr Leow in this case by counsel for the appellant as regard the physiological differences between individuals and the varying symptoms an individual will exhibit. Dr Leow had personally examined the appellant on 16, 17 and 19 September 1994 following the arrest; (2) as regards the high level of morphine in the urine, Dr Leow said that the amount of diamorphine in the urine depended on factors such as when the urine sample was taken, the amount consumed, the body's metabolic rate and the amount of urine inside the bladder. Dr Leow could not conclude from the urine sample per se that the appellant was either a mild or severe heroin abuser. He could only conclude that the appellant was a heroin abuser. This evidence was not inconsistent with Dr Leow's opinion that the appellant was a mild abuser based on the withdrawal symptoms exhibited. Sufficient weight had been placed by the judge with respect to the evidence relating to the urine sample; (3) in view of the fact that the purity of the heroin consumed was not ascertained, the appellant's assertion that he smoked up to a sachet a day was left to conjecture; (4) there was no evidence to suggest that sachets for the purpose of trafficking would normally contain uniform weights of diamorphine. In this regard, the evidence was at best equivocal. The onus was on the appellant to show evidence in respect of the quantum and quality of drugs in each packet in such a manner as to rebut the presumption of trafficking on a balance of probabilities. This the appellant had not discharged; (5) the evidence with respect to the sealing and resealing of the sachets and the paraphernalia found at the appellant's flat suggest that the appellant was a drug addict. The prosecution was not disputing that the appellant was a drug addict. The fact that the appellant was a drug abuser did not mean he could not have trafficked in those drugs; (6) a mild addict such as the appellant who would consume about 0.06g net of diamorphine per day (according to Dr Leow) would take about 18 months to consume 34.48g. Moreover, the appellant's evidence was that he had been buying drugs from Ah Thor every three or four weeks (ie on a fairly regular basis). Thus, the appellant had not rebutted the presumption that the drugs found in his flat were for the purpose of trafficking; (7) the trial judge's findings as regards the appellant's credibilty in relation the sources and level of the appellant's income should be accepted.

Yeo See Hiap v Public Prosecutor Criminal Appeal No 16 of 1995 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The accused was charged with trafficking of drugs by transporting 294.5g of diamorphine in a taxi from one place to another, an offence under s 5(1)(a) of the Misuse of Drugs Act (Cap 185). The accused's defence was that he was an innocent and unsuspecting carrier of the drugs and that he did not know that he was in possession of heroin until he had opened the parcel when the taxi was in motion. He alleged that he went to collect spare parts on behalf of his friend.

Held, convicting the accused: (1) under s 17 of the Misuse of Drugs Act, any person who was proved to have had in his possession more than 2g of diamorphine shall be presumed to have had that drug in possession for the purpose of trafficking unless it was proved that his possession of that drug was not for that purpose; (2) the court had carefully considered the explanation given by the accused in the witness box. Even though he attempted to make himself out to be an unsuspecting courier doing a favour for a regular patron, his explanations and emphatic declarations did not appear to have any ring of truth around them; (3) the law as settled by the Singapore Court of Appeal was that the highlighted parts of the statement admitted in evidence as being voluntarily made and used by the prosecution to impeach the credit of a person successfully, could be relied on for the truth of the facts contained in the statement. The said highlighted parts of the statement contained clear and unambiguous admissions by the accused that he was totally immersed in trafficking in heroin.

Public Prosecutor v Tan Lay Keat Criminal Case No 56 of 1996—High Court, Singapore (Rubin J).

The respondent was tried in the High Court on a charge of trafficking in heroin by having in his possession for the purpose of trafficking 24 packets containing not less than 28.36g of diamorphine, an offence under s 5(1)(a) of the Misuse of Drugs Act and punishable under s 33 with death. The learned judge did not convict the respon-dent on the original charge but amended the original charge by substituting the words 'not less than 10g and not more than 15g' for the words '24 packets containing not less than 28.36g' and convicted him on the amended charge. The learned judge sentenced the respondent to a term of 23 years and 15 strokes of the cane. The Public Prosecutor appealed against the acquittal of Dahalan on the original charge. On 6 July 1994, the police officers from Geylang Police Station whilst making a routine check in the vicinity of the Karachi Restaurant arrested the respondent and his friend, Sanusi, for failing to report for a urine test. The police later received a telephone call from the owner of the Karachi Restaurant that a bag belonging to one of the two Malays was still at the restaurant. The clutch bag was later retrieved. It had a yellow envelope containing 24 sachets of heroin. There were also in the clutch bag a handphone, S$3,026.28 in cash and a pager. Corporal Rajandran reported the arrest of the respondent and Sanusi to Sergeant Lai Thong Fock ('Sgt Lai') who in turn relayed the information to ASP Lim Chei Yoo of the Central Narcotics Bureau, who suggested that Sgt Lai interview the two persons first. The respondent made an oral statement to Sgt Lai at the Geylang Police Station. There was also an expanded account of it recorded by Sgt Lai later that day in his pocket book (both statements hereinafter called the 'Geylang Police Station statement'). This Geylang Police Station statement contained semblance of an admission by the respondent that the drugs were meant for trafficking. The respondent objected to the statement being admitted as evidence. The trial judge held that the statement was not admissible after the voir dire. He found that in the light of the effect of the erimin and heroin on the respondent when the oral statement was made, the absence of a Malay interpreter for the appellant and the irregularities in the way Sgt Lai kept a record of what the respondent said in that it was not in compliance with s 121(3) of the Criminal Procedure Code (Cap 68) and the Police General Orders, the trial judge held that it would be unsafe to admit as evidence what the respondent had allegedly told Sgt Lai. The learned judge found that the respondent was 'not only an intravenous abuser but a chronic intravenous abuser' of heroin. The respondent's evidence was that the 24 sachets of heroin were meant for his and his friend, Sanusi's consumption. Sanusi would be with the respondent four to five days in a week to consume drugs. Dahalan would consume about one to two straws per session up to six sessions per day. In the case of Sanusi, he consumes about three times a day in the company of the respondent. Two to three straws were used when they consumed together. It was the respondent's evidence at trial that he suffered severe drug withdrawal. Based on the pattern of consumption described aforesaid, Dr Lim Yun Chin, the expert witness for the defence testified that it was conceivable that the respondent would have no difficulty consuming the 24 packets in 14 days. In rebuttal, the prosecution called Dr Leow Kee Fong, who testified that it was possible for a severe addict to consume one sachet of heroin daily. Dr Leow added that he would expect a person consuming such a large amount of heroin to develop severe withdrawal symptoms which requires treatment in hospital. In cross-examination, Dr Leow was asked to read Dr Lim's report. He did so in court and said that he agreed with Dr Lim's report.

Held, dismissing the appeal: (1) having read the transcript of the evidence at the voir dire and the learned trial judge's well-reasoned grounds of judgment for not admitting 'the Geylang Police Station statement', the court agreed with the trial judge entirely; (2) it was more than evident to the court that the learned trial judge had meticulously examined every bit of the evidence in this case and in making his findings, whether in favour of the prosecution or the defence, supported them with credible evidence and good reasons. It could not be said that any of his findings were clearly against the weight of evidence and unsupportable, and where he had drawn inferences from primary facts, the inferences were properly drawn. Accordingly, the court upheld the findings of the learned trial judge.

Public Prosecutor v Dahalan bin Ladaewa Criminal Appeal No 24 of 1995 (Karthigesu and LP Thean JJA, Goh Joon Seng J) 30 October 1995

On 16 November 1994, officers from the Central Narcotics Bureau mounted surveillance on the appellant's residence at 24 Marshall Road. At about 3.59pm, the appellant was seen leaving the house and walking in the direction of East Coast Road. He was arrested by the CNB officers at the Katong Fruit Centre along East Coast Road and found with five satchets of a granular substance subsequently analysed to contain 2.58g of diamorphine. The appellant was subsequently taken by the CNB officers to his residence at 24 Marshall Road where a total of 22 satchets and three packets of granular substance together with various paraphernalia associated with drug trafficking were recovered from the attic which he occupied. A quantitive analysis on the largest of the three packets recovered was carried out and this was found to contain not less than 52.72g of diamorphine. The appellant faced two charges, the first under s 5(1) read with 5(2) of the Misuse of Drugs Act (Cap 185) ('the Act') for having in his possession at 24 Marshall Road one packet containing not less than 52.72g of diamorphine and two packets and 22 satchets said to contain a total of 563.83g of diamorphine for the purpose of trafficking, and the second for having in his possession at East Coast Road five satchets containing not less than 2.58g of diamorphine for the purpose of trafficking. The appellant's defence was that the drugs and paraphernalia seized by the CNB officers from his attic room at 24 Marshall Road belonged to Lim Kay Hing, a childhood friend to whom he referred to as 'Suay Heng'. It was the appellant's case that the appellant had agreed to keep the drugs and the paraphernalia for Lim Kay Hing because the appellant owed Lim Kay Hing money for the drugs supplied to the appellant for the appellant's consumption and that Lim Kay Hing had threatened that if the appellant refused to store the drugs and paraphernalia, he, Lim Kay Hing, would not supply the appellant with any more drugs. The trial judge did not believe what the appellant had said about his arrangement with Suay Heng over the drugs. The trial judge also held that the areas of evidence in which the appellant had contradicted himself were at the heart of his defence. The appellant's defence was accordingly rejected and the appellant sentenced to death on the first charge and five years' imprisonment with five strokes of the cane on the second.

Held, dismissing the appeal against conviction on the first charge, the appeal against conviction on the second not being pursued: (1) the trial judge's findings and observations that the appellant's evidence was unsatisfactory and that it was contradicted on material points by his investigation statement were fully supported by the evidence; (2) the contradictions in the appellant's evidence exposed by the impeachment proceedings by reference to s 157(c) of the Evidence Act (Cap 97) went to the 'heart of the defence' and the honourable court could not agree with appellant counsel's submission that the contradictions were 'not so serious as to undermine the superstructure of the appellant's defence'; (3) on the facts of this appeal and the findings of the learned judge, the appellant's possession of the drugs found and seized in the attic of 24 Marshall Road on 16 November 1994 was clearly proved. By reason of s 17 of the Act, the appellant was presumed to be in possession of the said drugs for the purpose of trafficking. Since he was unable to rebut the presumption, he had committed the offence of trafficking; (4) although the appeal against his conviction on the second charge was not pursued, that conviction, for the same reasons, could not be impugned. The sentences passed by the learned judge in respect of both charges were accordingly confirmed save by reason of s 231(b) of the Criminal Procedure Code, the sentence of caning should not be executed.

Lau Mui Hai v Public Prosecutor Criminal Appeal No 28 of 1995 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Goh Joon Seng J).

The accused was charged with trafficking in not less than 251.70g of diamorphine, by having them in his possession for the purpose of trafficking at a store room in Bukit Panjang Camp. At the time of the arrest, he was 22 years old serving his full-time national service as a physical training instructor at the Bukit Panjang Camp. In his evidence, the accused contended that he knew nothing about the drugs and the drug trafficking paraphernalia found in the store room. He also distanced himself from the newspaper bundle found in his waste paper basket in his office and the money and things recovered from his hired car. The defence maintained that the prosecution had not proved the case against the accused beyond reasonable doubt as the accused did not have exclusive possession of the key to the store room where the drugs were found. It alleged that with regard to the accused's oral confession, some questions had been put to him by the investigating officer and answers had been given by him which had not been recorded.

Held, convicting the accused: (1) the court rejected the accused's submission on his oral confession as the accused's self-serving evidence was not to be believed. There was no reason to doubt the evidence of the investigating officer and the recording made of the answers given by the accused. This recorded statement was subsequently confirmed by the accused when he voluntarily put his signature to the statement in the Central Narcotics Bureau office; (2) on the evidence, there was no doubt that the accused had exclusive possession of both his office and the store room that material day. There was no evidence whatsoever from the accused to rebut the presumption that the drugs found in the store room were for the purpose of trafficking; (3) the court rejected the evidence of the accused that he had substantial income from horse betting. The truth would be that his income was derived from trafficking in drugs.

Public Prosecutor v Fun Seong Cheng Criminal Case No 43 of 1996—High Court, Singapore (TS Sinnathuray J).

The accused was charged with the offence of trafficking in not less than 454.90g of diamorphine by transporting, for the purpose of delivery, to an unknown person ten packets of the drugs found in a carton. The accused contended that he did not know that the carton contained drugs and that it was a usual moonlighting job for some extra money. He thought that the plastic bag inside the carton contained welding tools or chemicals used in welding.

Held, convicting the accused: (1) the court had to consider both the incriminatory as well as the exculpatory parts of the accused's statements while bearing in mind that the incriminatory parts were likely to be there whereas the exculpatory parts did not carry the same weight; (2) as to his evidence about the carton, the accused actually opened the carton and had sight of what was inside. The accused was not telling the truth, Looking at the photographs of the plastic bag, no one could reasonably think it contained welding tools. Welding tools could not be packed so neatly and compactly. Chemicals used in welding did not come in that kind of packing; (3) when all the evidence was considered, the court could find nothing in his favour; (3) in the present case there was no special requirement for corroboration of the accused's guilt. The court had already considered the effect of all the lies of the accused on the rest of his evidence and came to the conclusion that because of the lies he could not be believed and that some of them demolished his own case. The lying statements of the accused did not call for a special consideration.

Public Prosecutor v Lau Boon Huat Criminal Case No 3 of 1997—High Court, Singapore (GP Selvam J).

The appellant, when arrested by narcotic officers, had on his person ten packets of diamorphine. A search of his flat revealed more diamorphine in his bedroom as well as 18 empty plastic sachets similar to the plastic sachets in which the diamorphine found on his person had been packed. The diamorphine in the appellant's bedroom was kept separately in a straw, a plastic phial and a large plastic packet. The total net weight of the diamorphine in his room added up to 27.24g and this was the quantity of diamorphine in which the appellant was initially charged with trafficking. At the trial, the prosecution conceded that the appellant was a drug addict and that the diamorphine found in the straw and in the plastic phial was meant for his private consumption. In respect of the diamorphine in the large plastic packet, however, the prosecution maintained that the appellant possessed this amount (24.29g) for trafficking purposes. The appellant denied this, claiming that all the diamorphine in his room were for his personal consumption. He gave evidence as to his consumption rate in an effort to show the severity of his drug addiction. The prosecution adduced evidence from Dr Leow Kee Fong, who examined the appellant five days after his arrest. Dr Leow testified that his examination of the appellant revealed an absence of the sort of withdrawal symptoms one would have expected in a severe drug addict. He opined that at most the appellant was a mild to moderate addict. The trial judge disbelieved the appellant's evidence as to his consumption rate. On the other hand, he believed that some of the diamorphine in the large plastic packet must have been for the appellant's own consumption. In deciding how much of the diamorphine should be allowed for the appellant's own consumption, the trial judge relied on evidence given by Dr Leow as to the consumption rates of various categories of drug addicts. Based on his calculations, he concluded that 6.1g out of the total 24.29g of diamorphine in the large plastic packet was for the appellant's own consumption. This left 21.24g of diamorphine in the appellant's room unaccounted for by his consumption needs. The charge against the appellant was therefore amended to one of trafficking in more than 15g but less than 24.29g of diamorphine. Since he admitted possession of all the diamorphine in his room, the presumption of trafficking provided for in the Misuse of Drugs Act (Cap 185) came into operation against him. The trial judge held that he had failed to rebut the presumption, and he was convicted and sentenced to death. He appealed. It was argued on appeal that the trial judge erred in accepting Dr Leow's evidence as to the consumption rates of various categories of addicts as well as his evidence as to the appellant's condition during examination. It was further argued that the trial judge in fact had the option of amending the charge against the appellant to specify a lower, non-capital quantity of diamorphine and that he should, as such, have given the appellant the benefit of the doubt.

Held, dismissing the appeal: (1) and the trial judge was wholly justified in placing reliance on those figures; (2) and there was nothing to suggest this could not be so; (3) on the evidence, the trial judge was justified in amending the charge against the appellant to specify trafficking in more than 15g but less than 24.29g of diamorphine; (4) it was arguable that Dr Leow employed a 'back calculation' method in reaching the conclusion that the appellant was at most a moderate drug addict at the time of his arrest, since his assessment of the degree of the appellant's addiction was based on an examination carried out five days after the appellant's arrest. However, Dr Leow's testimony in this respect was not shown to be objectionable in any way; (5) so far as Dr Leow's evidence on the consumption rates of various categories of drug addicts was concerned, no objection was raised by the defence during the trial below as to his qualifications as an expert witness. Nor did the defence attempt to adduce other expert evidence in rebuttal of Dr Leow's testimony or even to cross-examine him in respect of such evidence. In short, the figures given by Dr Leow as to the consumption rates of various types of drug addicts were not at any point in the trial shown to be wrong or unreliable;the submission that Dr Leow's evidence as to the appellant's condition during examination was unreliable was equally unfounded. The defence did not lead any evidence in the trial below to show that the examination carried out by Dr Leow was inadequate to detect drug withdrawal symptoms. Dr Leow himself testified that ten minutes were sufficient for him to find out what he needed to know;even if Dr Leow's evidence were rejected, the appellant would still have difficulty in mounting a successful appeal against his conviction. He admitted possession of the diamorphine found in his room, thus leading to the operation against him of the presumption of trafficking provided for in s 17 of the Misuse of Drugs Act (Cap 185). He then sought to rebut this presumption by testifying that his drug consumption rate was sufficiently high to account for all the diamorphine found. That testimony was disbelieved by the trial judge; and justifiably so, in view of the evidence before the judge. The appellant failed, in other words, to rebut the presumption of trafficking; and the charge against him must be held to have been proved beyond reasonable doubt.

Yeo Hee Seng v Public Prosecutor [1995] 1 SLR 193 Court of Appeal (Karthigesu and LP Thean JJA, Goh Joon Seng J).

The appellant was arrested with 20 sachets of substance containing not less than 29.63g of heroin in his possession. A brief cautioned statement was in dispute. At the voir dire, the appellant alleged that he was a hard core addict who was suffering from withdrawal symptoms at the time. According to the prosecution witnesses, the appellant was not suffering from withdrawal symptoms. In fact, the investigating officer said that the appellant did not suffer from withdrawal symptoms throughout his period in remand at the lock-up. The statement was admitted into evidence. In it, the appellant admitted that he sold heroin. Two experts gave evidence for the prosecution. Dr Leow Kee Fong ('Dr Leow') said that a mild drug addict would consume about one to two straws of drugs per day. Dr Leow who had examined the appellant in June 1991 when the appellant was admitted to a Drug Rehabilitation Centre said that the appellant was a mild drug addict in 1991. Assistant Superintendent Lim Chei Yoo ('ASP Lim') produced a report based on the straws of drugs seized by the Central Narcotics Bureau ('the CNB') in January 1994. Based on the report, he testified that the average gross weight of drugs in each straw was 0.242g. Since the gross weight of the drugs seized from the appellant was 159.38g, the appellant had in his possession the equivalent of approximately 658 straws of drugs. The market price of the 20 sachets found on the appellant would be between S$2,400 to S$3,000. In his defence, the appellant said that the drugs were for his own consumption. On average, he earned about S$1,000 per month. He bought the 20 sachets in bulk and at a cheap price. A hard core addict, he said he consumed about three to five sachets of drugs every week and the 20 sachets would last him two months. He also retracted the cautioned statement. On the evidence, the trial judge accepted that the amount of drugs in the appellant's possession could have been converted to 658 straws which would last a mild drug addict about a year. He also found that the appellant was only a mild addict relying on the evidence of the investigating officer and Dr Leow. Moreover, the appellant did not have the financial resources to sustain the stated rate of consumption. Accordingly, the appellant was convicted. On appeal, counsel contended that the cautioned statement was erroneously admitted. In all the circumstances of the case, the appellant's defence that the drugs were for his own consumption should have been believed. The trial judge should not have relied on the evidence of ASP Lim and Dr Leow. Counsel said the averages arrived at by ASP Lim were unreliable and not applicable in all cases because they were based on a small number of straws seized in January 1994 and the drug contents in the individual straws varied considerably. As such, the trial judge should not have found that the drugs seized from the appellant could have been converted to 658 straws. He also erred in accepting that the drugs would last a mild addict for about a year.

Held, dismissing the appeal: (1) all the allegations made by the appellant were fully considered and rejected by the trial judge who accepted the evidence of the prosecution witnesses that the statement was made without inducement, threat or promise. Ona review of the evidence on the voir dire, there was no reason to reverse the trial judge's decision to admit the statement into evidence; (2) although the report by ASP Lim was not a sophisticated one, the information contained within entitled the trial judge to come to the finding that he 'was satisfied beyond reasonable doubt that the drugs seized from the appellant could have been converted into 658 straws' such as the ones seized in January 1994. The finding that a mild addict would take about a year to consume the drugs was also justified since the trial judge had based the finding on Dr Leow's evidence on the usual drug consumption rate of a mild drug addict; (3) the significance of the findings above was in relation to the rebuttal of the defence of consumption. The larger the quantity of drugs, the stronger the inference that they were not intended for personal consumption. The findings above indicated to the trial judge that the quantity of drugs in the appellant's possession was too large to be for his own consumption. The trial judge was correct to draw such an inference. The evidence also indicated that the appellant was a mild drug addict who did not have the regular income to sustain the high rate of drug consumption which he alleged. In all the circumstances, the trial judge's finding that the appellant had not rebutted the presumption of trafficking was justified.

Aw Soh Boon v Public Prosecutor Criminal Appeal No 25 of 1994 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

Tan Chuan Ten & Anor v Public Prosecutor [1997] 2 SLR 348 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellant was arrested with possession of not less than 55.59g of diamorphine following a CNB operation. He was earlier observed meeting one Goh Cheng Kee ('Goh'), at a location at Saujana Road. Goh picked the appellant up in his car and they travelled to Jalan Lokam, where the appellant alighted. The appellant was seen holding a brown envelope and putting it into the left pocket of his trousers, just before he was arrested. This envelope was found to contain not less than 52.66g of diamorphine. Another envelope containing 2.93g of diamorphine was found in the appellant's right trouser pocket. At the trial, an agreed statement of facts was tendered under s 376 of the Criminal Procedure Code (Cap 68) ('the CPC') which proved the above facts. The appellant was in fact jointly charged with Goh for trafficking in the drugs, by the overt act of transporting it from Jalan Saujana to Jalan Lokam, contrary to s 5(a) of the Misuse of Drugs Act (Cap 185) ('the MDA'), read with s 34 of the Penal Code (Cap 224). At the conclusion of the prosecution case, the trial judge ruled that the prosecution had made out a prima facie case against the appellant but not against Goh, and accordingly acquitted him. The charge against the appellant was amended and the appellant was asked to enter his defence. The appellant declined to give any evidence. The trial judge found that the fact of possession of the drugs was proved and invoked the statutory presumptions under ss 18(2) and 17(c) of the MDA. By not giving evidence, the trial judge found that the presumptions of fact against the appellant became conclusive and drew the inference that the appellant was engaged in trafficking. The appellant was accordingly convicted and sentenced to death. The appellant appealed on two grounds. Firstly, it was contended that the agreed statement of facts suggested that the appellant had only just come into possession of the brown envelope containing 52.66g of diamorphine at Jalan Lokam and secondly, that it was inappropriate to draw any adverse inferences from the failure of the appellant to give evidence in his defence as it was so done to avoid implicating others who were arrested with him the same day.

Held, dismissing the appeal: (1) under s 376(1) of the CPC, facts admitted in an agreed statement of facts which was signed by counsel for both parties, were conclusive evidence of facts admitted. The inference that the brown envelope was in the appellant's possession throughout and was transported by him from Jalan Saujana in Goh's car was clearly one which the trial judge was entitled to draw on the evidence. As the appellant was found in possession of the drugs, he was presumed to have had the drugs for the purpose of trafficking under s 17(c) of the MDA and the onus of proving other-wise had shifted onto him. He was in a position to rebut the prosecution case and provide an explanation as to the manner in which he came into possession of the drugs. By remaining silent, the appellant had failed to rebut the presumption against him; (2) there was no basis on the evidence for the contentions made on behalf of the appellant on why he remained silent. The trial judge was entitled to draw any inferences from an accused person's silence that could be properly drawn under the circumstances and had not erred in concluding from the appellant's silence that he was engaged in trafficking the drugs found in his possession.

Loo Koon Seng v Public Prosecutor [1995] 2 SLR 57 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Goh Joon Seng J).

On 19 November 1993, the appellant, who was a Malaysian, entered Singapore in his car through the Woodlands checkpoint. At about 7.30pm on the same day, he was sighted by two policemen driving into a multistorey car park at Toa Payoh. The policemen were on deck 3 of the car park conducting an operation against the theft of vehicles. At that time, one-quarter of the deck was still vacant. Nevertheless, the appellant proceeded to deck 4. Being perplexed by this, the policemen decided to check on the appellant. Although satisfied that the appellant was the owner of the car, the policemen nevertheless proceeded to search the car. They found a paper bag and a black Coralite bag in the boot. The black bag contained a number of granular substance. They then called for assistance. In the meantime, the appellant explained that the substance was something to be applied to the body for the purpose of curing rashes. He demonstrated it to the police officers. Presently, a Narco dog was brought to the scene which, after a while, ascertained that the substance was probably drugs. The appellant was arrested. With the help of the appellant, the police officers discovered more packets of similar substance at various hidden compartments of the car. Upon ana-lysis, the entire quantity of substance was found to contain not less than 1,496g of diamorphine. This was not in dispute at the trial. The appellant's defence was simply that he had thought that he was smuggling medicine for one Ah Guan as this was what the latter had told him. The appellant claimed that he was a mere bailee who had no right or opportunity to inspect the items before he crossed the causeway into Singapore. He was convicted in the High Court. The appellant appealed.

Held, dismissing the appeal: (1) having regard to the undisputed facts, there was no need for the prosecution to prove possession. Both possession of the drugs and knowledge of the nature of the drugs were presumed, and the burden lay on the appellant to rebut the presumptions. He had not succeeded in rebutting the presumptions; (2) it was not open for the appellant to argue that, because he was not the owner of the contents, he had no obligation of inspection whatsoever. The circumstances of his receipt of those items were so suspect that any reasonable man would have thought it appropriate to take steps to ascertain their precise nature.

Teoh Kah Lin v Public Prosecutor [1995] 1 SLR 213 Court of Appeal, Singapore (Karthigesu and LP Thean JA and Chao Hick Tin J).

On 16 October 1992, Sgt Tan of the Central Narcotics Bureau ('CNB'), acting on information received, visited a construction site at Pasir Ris Drive 3 ('the construction site'). There, he met and befriended the first accused. Through the first accused, Sgt Tan met the third accused, a self-confessed call girl. On 20 October 1992, the third accused told Sgt Tan that she could obtain 10kg of cannabis. Sgt Tan followed up on this and continued to meet with the first and third accused to negotiate a buy. On 9 January 1993 Sgt Tan met with all the three accused persons and arrangements were made to sell 2kg of cannabis to Sgt Tan at 8pm on 10 January 1993. When Sgt Tan passed this information to his superiors a trap was set to catch the accused. The buy was to take place at the construction site. A party of CNB officers maintained surveillance of the scene. At about 7.50pm, the second accused was seen approaching Sgt Tan. He wanted to hand over the drugs to Sgt Tan but as the second accused was alone, Sgt Tan refused to accept it. He waited until the first and third accused arrived. When they did the drugs were placed in the boot of Sgt Tan's car. Sgt Tan then gave the first accused S$500 in marked notes as part payment. Sgt Tan told the first accused that the remainder of the money (S$500) would be paid by the end purchaser whom they were going to meet in Pasir Ris Town Centre. Sgt Tan then drove to Pasir Ris Drive 6 where a party of CNB officers descended upon the car and arrested the three accused. The drugs were seized and upon analysis were found to be not less than 1,198g of cannabis. The first and second accused were charged with trafficking in the said drug in furtherance of the common intention of them both. The third accused was charged with abetting the two of them. At the trial, counsel for the accused sought to exclude evidence of the previous conversations relating to the purchase of cannabis. The trial judge held that the evidence was admissible. When called upon to enter their defence, only the second and third accused elected to give evidence. The second accused claimed that during the crucial conversation when the alleged sale was transacted, the first and third accused had spoken to Sgt Tan in English which he did not understand. He claimed that he was unaware of any transaction to sell drugs. On the day of the arrest, the second accused claimed that the first accused had asked him to give the bag with the drugs to Sgt Tan. He claimed that he had no knowledge of the contents of the bag. The third accused denied that she had offered to sell drugs to Sgt Tan. She claimed that on 9 January 1993, the first accused had told her that Sgt Tan had joined them as they were going to look at beautiful women. She claimed that she had not talked to Sgt Tan at all.

Held, convicting all three accused: (1) it was apparent that the introduction of the evidence relating to occurrences prior to 9 January 1993 were more for completeness and for the purposes of establishing the train of events which culminated in the delivery of drugs on 10 January 1993. The evidence was relevant and its probative value outweighed its prejudicial effect; (2) the first accused's decision to remain silent did little to advance his cause. Evidence presented by the prosecution as to his discussions with Sgt Tan, his actions on 10 January 1993, his arrest together with the second accused and the offending bag which contained the cannabis, evidence of the receipt by him of the marked notes as part payment of the drugs under reference pointed conclusively to the guilt of the first accused; (3) the court disbelieved the evidence of the second accused. Though there was nothing placed before the court to suggest that the second accused played any role prior to 9 January 1993 and that he did not himself engage in any negotiation with Sgt Tan either on 8 or 9 January 1993, his role and actions on 10 January 1993, his physical possession of the bag and his delivery of the drugs ineluctably pointed towards his active involvement in the drug deal; (4) the several acts of the first and second accused on the night of 10 January 1993 suggested that there was a pre-arranged plan, and the element of common intention was established; (5) the court disbelieved the testimony of the third accused. The court found Sgt Tan to be a truthful witness. The acts and words of the third accused on 9 January unmistakenly pointed to active complicity and abetment on the part of the third accused.

Public Prosecutor v Don Promphinit & Ors Criminal Case No 89 of 1993 High Court, Singapore (Rubin J).

On 31 May 1989, at the Kiong Xi Lounge of the Tai Pan Ramada Hotel, under the surveillance of a party of Central Narcotics Bureau ('CNB') officers, undercover officer NO Lee was introduced by a CNB agent to the second appellant as an interested buyer of drugs. The second appellant told NO Lee that his connection had 1.5kg of brown sugar (common jargon for heroin from South America and the Golden Crescent) and 450g of pure white heroin for sale. NO Lee offered a price of S$50,000. The second appellant said that he would get in touch with his connection in India. A second meeting was then held at the Sea Breeze Coffee House of the Dai-Ichi Hotel at 7.45pm on 1 June 1989. At this meeting, the second appellant told NO Lee that his connection's lowest price was S$85,000 and also that the connection could arrive in Singapore on 2 June 1989. The price was agreed to. On 6 June 1989, the second appellant confirmed with NO Lee that his connection had arrived. NO Lee arranged for a meeting with the second appellant at the Luna Coffeehouse of the Apollo Hotel at 2pm. At the coffeehouse, at about 2pm, NO Lee noticed the first appellant walking into the coffeehouse and occupying a table close to him. The second appellant arrived at about 2.05pm and gave NO Lee a matchbox containing the drug samples. NO Lee then tested the samples in the toilet. When he returned to the table, NO Lee was informed by the second appellant that the drugs would be delivered by one 'Kumar' in two hours' time. NO Lee and the second appellant parted company. Two hours later, the first appellant arrived at the coffeehouse with a bag slung over his shoulders. He introduced himself as Kumar to NO Lee. The first appellant told NO Lee that the drugs were in the bag and placed the bag under the table. NO Lee went to the toilet and inspected the contents. He found 10 mangoes on top of two packets, one containing a whitish powder with the other containing brownish powder. NO Lee returned to the table, gave the signal and the first appellant was arrested by CNB officers. The second appellant was arrested on the same day at a coffee shop in Hougang. The contents of the brownish powder was analysed and found to contain not less than 325.7g of diamorphine. However, the contents of the whitish powder was analysed to be trimprazine which is not a controlled drug. The first appellant's defence was that he delivered the drugs to NO Lee on behalf of the second appellant because he had actually tasted the packet containing trimprazine and from his experience was convinced that it was not heroin. As such he assummed that the other packet did not contain heroin. The second appellant's defence was essentially to dissociate himself from the first appellant's delivery of the drugs as much as possible and to claim that his negotiations with NO Lee were for the sale of hydraulic and lithographic printing machines. Both appellants were convicted.

Held, dismissing both appeals: (1) if the trial judge had accepted the first appellant's story that he had tasted the white powder and thereby satisfied himself that both packets were not heroin, then the first appellant would have successfully rebutted the presumption of knowledge under s 18(2) of the Misuse of Drugs Act (Cap 185). However, given that this 'tasting episode' was the material part of his defence, his failure to mention it at all in his cautioned statement or in the very detailed statements which he later gave to the CNB dented his credibility severely; (2) the first appellant's explanation in court that the reason why he omitted the tasting episode were flimsy excuses as his entire statement had clearly implicated the second appellant in asking him to deliver heroin and there was no question of his being embarassed to mention the tasting episode. Secondly, the first appellant being an intelligent person would have considered this a very important detail, not to be missed out in trying to acquit himself to the CNB. Therefore the trial judge was entitled to rely on this material omission in the first appellant's police statements to disbelieve him over the tasting episode; (3) given that the first appellant was an intelligent person, his suspicions would not have been totally assuaged by the tasting episode (assuming that it happened) and he would have at least tried to get more answers from NO Lee as to what the transaction of handing over two bags of powder taken from a false bottom in a bag in exchange for S$85,000 was exactly about. As it turned out, the transaction proceeded with the fewest of words and in a most surreptitious manner with the bag containing the drugs being placed under the table. It was reasonable to infer from that encounter that it was a transaction in which the first appellant knew exactly what was happening; (4) whether or not the facts in the present case could also give rise to charges under s 5(b) of the Misuse of Drugs Act (Cap 185) and whether the prosecution should have charged the second appellant under that section was irrelevant. A trial court must concern itself with the charge at hand and decide at the end of the day whether the prosecution has proved beyond a reasonable doubt each and every element of the charge. Counsel appeared to suggest that, since the prosecution had presented the second appellant as the 'mastermind' of the whole affair, it was wrong to charge him with abetment and treat the first appellant as the principal offender. It is not for a court of law to consider the moral culpability of each accused person and question the prosecution's absolute discretion in deciding what charge to prefer. In any event, no prejudice could have arisen as against the second appellant in charging him with abetment, given that his defence was a total denial of anything to do with drugs; (5) the proper approach for a trial court to adopt when trying an abettor has been considered in Ong Ah Yeo Yenna v Public Prosecutor.

Govindarajulu Murali & Anor v Public Prosecutor [1994] 2 SLR 838 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The respondent was convicted of abetment by conspiracy of trafficking in diamorphine. On 13 May 1991, Sgt James of Central Narcotics Bureau ('CNB') received information that a drug syndicate had five pounds of diamorphine for sale. Together with Cpl Ey they decided to pose as potential buyers to meet representatives of the syndicate, who would be accompanied by a CNB informer known as Ah Hai at Luna coffee house in Apollo Hotel. The respondent, Yeo, Tee and Lai had come into Singapore that morning from Johor in his car JBU 365. Sgt James and Cpl Ey duly met up with Yeo, Tee, Lai and Ah Hai at the coffee house to discuss the sale of the five pounds of heroin. Lai informed Sgt James that the heroin was somewhere in Geylang, that the key to where the drugs were kept was held by someone in Geylang, and that Sgt James was to follow him to take delivery of them. Lai, Tee and Sgt James then left in two cars, with Lai driving his red Mazda accompanied by Tee. Sgt James followed in his car. Yeo remained behind with Ah Hai and Cpl Ey to collect payment once the drugs were delivered. At all times, both groups were monitored closely by two teams of CNB officers. The two cars arrived at Lorong 22 where the respondent was waiting at a coffee house. Lai got out of his car and went up to the respondent who handed him the key to his car JBU 365 which was not there, but parked in a carpark at Aljunied. The two cars then went off leaving the respondent behind. At Aljunied, Lai used the key given to him by the respondent to open the boot of the respondent's car JBU 365. Inside the boot were two plastic bags. Sgt James took possession of the bags and they proceeded back to Apollo Hotel. At Apollo Hotel, Lai and Tee were arrested. Yeo and the respondent were also subsequently arrested at the Kentucky Fried Chicken Restaurant in Woodlands. At the trial, the respondent's long statement was admitted in evidence without any challenge. The respondent was acquitted after the judge found that the respondent had successfully rebutted the presumption of knowledge under s 18(2) of the Misuse of Drugs Act (Cap 185). The Public Prosecutor appealed.

Held, allowing the appeal and convicting the respondent: (1) the charge against the respondent was that of abetment by conspiracy. The ingredients that the prosecution had to prove were the existence of a conspiracy to traffic in the drugs and that the trafficking was actually carried out. That the second limb had been fulfilled was not disputed. The essential question was whether it could be said beyond a reasonable doubt that the respondent was a party to that conspiracy; (2) the essence of a conspiracy is agreement and in most cases the actual agreement will take place in private in such circumstances that direct evidence of it will rarely be available. In fact there is no requirement in law that the alleged conspirators should remain in each other's company throughout or at all; (3) one method of proving conspiracy would be to show that the words and actions of the parties indicate their concert in the pursuit of a common object or design, giving rise to the inference that their actions must have been co-ordinated by arrangement beforehand. These actions and words do not of themselves constitute the conspiracy but rather constitute evidence of the conspiracy; (4) from the primary facts raised by the prosecution, at the close of the prosecution case, the prosecution evidence against the respondent was actually the strongest as compared to that against the other conspirators as quite apart from the other evidence adduced against him, the respondent had to rebut the presumption of knowledge of the drugs in his car boot on a balance of probabilities while the other three only had to raise a reasonable doubt; (5) upon a detailed review of the notes of the cross-examination of the respondent as well as the other evidence against him, the primary facts as adduced by the prosecution indicated that the entire transaction, from the moment the conspirators met up in Woodlands to the eventual delivery of the drugs to Sgt James, was co-ordinated beforehand, with the respondent being elemental in the transaction in that the drugs were stored in his car and that he passed the car key to Lai to facilitate the delivery of the drugs to Sgt James; (6) since the drugs were indisputably stored in his car, the respondent knew that he had to rebut the presumption of know-ledge on a standard of a balance of probabilities, and in doing so he tried to tailor his evidence in such a way as to distance himself as far as possible from the other conspirators by asserting that he never bothered to ask any questions as to what they were up to. However, this endeavour became a little over enthusiastic and exaggerated to the extent that they were clearly shown to be lies; (7) a reading of s 54(1) of the Supreme Court of Judicature Act (Cap 322) shows that the powers that the appellate court can exercise on an appeal from an acquittal are not subject to any express limitation. As the appeal in the present case is primarily an appeal on fact, the Privy Council decision of Cheo Swarup v King-Emperor, where the Board succinctly set out the principles that a High Court should consider when dealing with acquittals on a matter of fact from the sessions court, is highly instructive.

Public Prosecutor v Yeo Choon Poh [1994] 2 SLR 867 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu JA and Chao Hick Tin J).

On 15 April 1994, one Tan Seng Kim was under surveillance by the narcotics officers. He was seen leaving his apartment and meeting the first appellant nearby. The latter was seen to have driven up to Tan in his car. Tan was seen getting into the car and coming out later, holding an envelope and appearing to be counting. The officers observed that a few minutes later, the first appellant returned, Tan got into the car again and the first appellant drove to a nearby car park. There, Tan was seen leaving the car and carrying a plastic bag. On the following day, Tan was trailed all the way by narcotics officers to the airport, where after checking in for the flight to Madrid he was arrested. He was found to have one rubber pellet in his trouser pocket and inside his suitcase were found three 'Dodol' boxes which contained 225 rubber pellets. The appellants were subsequently arrested. Tan was charged with attempting to export 226 rubber pellets containing 871.77g of diamorphine to Spain and the appellants were charged with abetting Tan in the commission of that offence. The second appellant's handwriting specimens were highly similar to figures written at the bottom of the boxes. Statements were recorded from Tan and the appellants. Separate voir dires were held to determine the admissibility of those statements. Tan's statements were found by the trial judge to have been made voluntarily and were admitted. The trial judge deferred deciding on the admissibility of the first appellant's statements at the end of his voir dire and proceeded with the second appellant's voir dire. The statements of both appellants were then found to have been made voluntarily and were admitted. The statements stated, inter alia, that the rubber pellets in the 'Dodol' boxes were packed in a house in Batam and were later brought into Singapore. Keys to the Batam house were also recovered from the appellants. The first appellant's defence was that the keys were for him to use the house as a holiday home. That of the second appellant was that the keys were inadvertently kept by him when they should have been handed over to the first appellant. He admitted writing on the boxes but had forgotten why. The case against Tan was not disputed. The trial judge found against the first appellant on his own statements, the second appellant's statements and the keys he had. However, he held that Tan's statements could not be used against the first appellant as they were not charged with the same offence. The trial judge found against the second appellant on his own statements and his handwriting on the 'Dodol' boxes. They were all convicted. The appellants appealed.

Held, dismissing the appeals: (1) the trial judge was not wrong in postponing his decision on the admissibility of the first appellant's statements until after the conclusion of the second appellant's voir dire; (2) the trial judge was wrong in taking into account the evidence of the first appellant in the second appellant's voir dire in determining the admissibility of the first appellant's statements. But the first appellant did not suffer any prejudice as the trial judge had also considered the voluntariness of the statements without taking into account such evidence. Furthermore, even if the statements were excluded, there was other evidence which was sufficient to support the first appellant's conviction; (3) s 30 of the Evidence Act (Cap 97) applies to joint trials for the same offence, abetment of that offence, and attempts to commit that offence. Tan's statements thus could have been used against the first appellant, who had been charged with abetting him.

Goh Joon Tong & Anor v Public Prosecutor [1995] 3 SLR 305 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellants were convicted in the High Court on five separate and amended charges of trafficking in three different quantities of diamorphine. The first appellant was arrested while in possession of 7.11g of diamorphine. He admitted to and was convicted of trafficking this amount. The second appellant was arrested when he arrived at the building where the first appellant resided, carrying a total of 40.35g of diamorphine in several receptacles, including a large packet (the large packet). On a recall of the scientific officer, it was established that the large packet contained 39.85g of diamorphine. The second appellant admitted that he was delivering half of the contents of the large packet to the first appellant; the first appellant also admitted ordering the same from the second appellant. The second appellant was thus convicted of trafficking in 19.92g of diamorphine, and the first appellant was convicted of abetting him by instigating him to traffic in the same. A packet containing 39.04g of diamorphine was also discovered in a locked cupboard in a room in the same building, which was rented by the second appellant (the rear room). Keys to the cupboard were found on both appellants. The second appellant admitted that he had delivered this packet at the request of the first appellant, and was convicted of trafficking in this amount. The first appellant admitted that he had ordered this packet from the second appellant on behalf of his friend, Pui Tee, to whom he was intending to deliver it; he was similarly convicted of trafficking in this amount. On appeal, the first appellant argued that the s 121 statements in which he had made the above material admissions had been wrongly admitted by the trial judge since they had been made while he was suffering from drug withdrawal symptoms, and under inducements or promises made by the recording officer. The second appellant argued that there had been nothing in the prosecution evidence that linked him with the 39.04g of diamorphine found in the rear room; he also argued that the trial judge, in recalling the scientific officer to give evidence of the diamorphine content of the large packet under s 399 of the Criminal Procedure Code (Cap 68) ('the CPC'), had acted in a manner prejudicial to him by unfairly loading the scales in favour of the prosecution.

Held, dismissing the appeal: (1) there was nothing to suggest that the trial judge had erred in finding that the statements of the first appellant had been made voluntarily. The trial judge had considered the totality of the evidence and had been entitled to reject the appellant's allegations that he had been suffering from drug withdrawal symptoms or of inducements or promises made by the recording officer. The first appellant had also remained silent at the trial and had not retracted what he had said; (2) as regards the 39.04g of diamorphine found in the cupboard in the rear room, the second appellant had admitted to placing a similar amount of drugs in that cupboard, and the inference to be drawn was that he had admitted to delivering the 39.04g. This was supported by the evidence of the first appellant, and the fact that only the first and the second appellants had access to the cupboard; (3) the discretionary powers to recall a witness under s 399 of the CPC should be exercised with regard to the just decision of the case; however, the trial judge's recall of the scientific officer in the instant case was in no way prejudicial to the appellants as the recall was expressly made for the purpose of clarifying evidence already adduced before the court.

Chee Wee Tiong & Anor v Public Prosecutor [1994] 3 SLR 499 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The first and second appellants were charged in the High Court with trafficking in, by offering to sell, not less than 1,396.7g of diamorphine. The prosecution case against the first appellant was that he had offered to sell the said drugs to an undercover Central Narcotics Bureau ('CNB') officer. The case against the second appellant was that he had been involved together with the first appellant in the subsequent inspection and delivery of the drugs in the guest room at the Apollo Hotel. When the CNB officers raided the room, the drugs were missing. They were later found in the car park of the hotel. The second appellant was alleged to have thrown out the bag containing the offending drugs from the window of the room. The third appellant was charged with abetting by conspiracy the trafficking in of the said amount of diamorphine. It was shown that the third appellant had been present at the meeting between the first appellant and the CNB officer, where he (the third appellant) had purportedly participated in the deal and uttered words of advice and encouragement. The appellants' defence was a denial of knowledge of the drugs. In essence, they claimed that the conversations with the CNB officer never involved the topic of drugs and that all that had been discussed was a legitimate transaction of second hand electronic goods. It was also contended that the bag which was allegedly flung out of the window by the second appellant could have been thrown out coincidentally by someone else in the hotel at about the same time that evening. They alleged that the prosecution witnesses had fabricated the entire evidence. All three appellants were convicted and sentenced to death. On appeal, it was argued that the trial judge had erred in disbelieving the first appellant's story without first considering whether his version of events would have nonetheless cast a doubt on the prosecution case. The appellants also argued that the CNB informer should have produced the informer to testify. The trial judge was said to have erred in presuming the first appellant's authorship of certain incriminating handwritten notes when there was no conclusive evidence as to this. It was also argued that as there was a discrepancy in the weight of the drugs obtained by the CNB and the government analysts, a doubt had been created as to the identity of the drug exhibits. The identity of the bag containing the drugs was also questioned, as the hotel security guard who had picked it up after it was flung out of the hotel room could not identify it at the trial. Counsel for the first appellant disputed the credibility of the prosecution witnesses, claiming that their evidence was fraught with discrepancies and inconsistencies. It was argued on behalf of the second appellant that the prosecution had failed to establish his role in selling or offering to sell the drugs, as stated in the charge. This was because whatever transaction there was, had already been concluded between the first appellant and the CNB officer, and that whatever transpired in the hotel room in the second appellant's presence was merely for the purposes of inspection, payment and delivery. As for the third appellant, it was contended that the evidence adduced against him was insufficient to secure a conviction for abetting by conspiracy the trafficking in of the drugs.

Held, dismissing the appeals of the first and second appellants but allowing the appeal of the third appellant: (1) the learned trial judge had clearly not misdirected himself in deciding which amongst the two differing versions of events was the truth. In rejecting the first appellant's story, the trial judge considered the evidence as a whole before arriving at the conclusion that a reasonable doubt had not been raised as to his guilt; (2) the prosecution need not have called the CNB informer to testify as it did not rely on his evidence to support its case. There was overwhelming independent evidence against the first and second appellants. In any event, the non-production of the informer would have been entirely justified in light of s 23 of the Misuse of Drugs Act (Cap 185) which seeks to protect the identity of informers; (3) the weighing of drugs by the CNB is for the purposes of preparing an initial charge against an accused person. It is never intended to be an exercise in skilled precision. The discrepancy in the weight of the drugs was one that could be attributed to the quality and accuracy of the CNB weighing machine employed, the fact that the CNB's measurements included the weight of the packets containing the drugs, and the fact that the powdery/granular substance was contained in capsules. There was also no evidence to establish that the prosecution had tampered with the drugs, thereby creating a doubt as to the identity of the exhibits. As such, the trial judge was justified in finding that there had been no break in the chain of possession of the drugs; (4) in a complicated case such as this which involved numerous individuals taking part in an elaborate operation, one can scarcely demand that the witnesses, after a period of nearly two years, should be able to recollect with crystal clarity the precise chronology and details of the material events. Discrepancies and contradictions there inevitably would be but if these be not of such nature as to impair the strength of the prosecution case or to detract from the value of the witnesses' testimony, then, they ought to be disregarded. The discrepant portions of the testimony attacked by counsel for the appellants were minor and trivial and did not in any way render the witnesses untrustworthy. In light of the security guard's uncertain recollection as regards the identity of the bag he had picked up, the trial judge was justified in dismissing the discrepancy as simply a matter of perception and recall after a period of nearly two years; (5) as regards the second appellant's appeal, it would be unduly restrictive to interpret the words 'offer to sell' as extending to no more than the first meeting between the CNB officer and the first appellant. The offer must be viewed as one whole transaction extending all the way to the time when the contents of the bag were produced for inspection in the hotel room. When the second appellant produced the bag in the hotel room, he was as much involved in offering to sell the contents therein as the first appellant was earlier, provided of course that the prosecution satisfied the court that both the first and second appellants were acting in furtherance of a common intention to offer to sell the drugs; (6) common intention could be inferred from the surrounding circumstances. The trial judge's findings that the first appellant's disposition, the negotiation and facilitating of the inspection in the hotel room, the carriage of the bag by the second appellant to the hotel, as observed by the CNB officers keeping surveillance, the second appellant's presence in the hotel room, and his overt act in handing over the bag to the first appellant when inspection was carried out, all established beyond doubt that there was prior concert (and thus, common intention) between the two appellants to traffic in the drugs. The trial judge also concluded correctly that the second appellant had thrown the bag out of the window. Needless to say, the appellants' allegation that the CNB had concocted the evidence was wholly incredible and unsupported by proof. The appeals of the first and second appellants were accordingly dismissed; (7) as regards the third appellant, the prosecution had not proved its case beyond a reasonable doubt at the end of the appeal. The only evidence the prosecution had against the third appellant was the CNB officer's testimony as to what the third appellant had said at the meeting. The only other piece of evidence was the third appellant's inscription of certain words on a piece of paper indicating the first appellant's address in Singapore. These were all evidence which could secure a conviction only if it would inevitably and inexorably lead to the conclusion that the third appellant had engaged in a conspiracy to traffic in drugs; (8) the third appellant claimed that he understood little or no English. He was given the benefit of the doubt as the prosecution had shown no sufficient reason for the court to disbelieve him. The CNB officer and the first appellant may well have been discussing drugs, but the prosecution had not shown beyond reasonable doubt that the third appellant understood their conversation (which was in English) and participated therein, with the knowledge that he was involved in a drug transaction. The third appellant's failure to explain the presence of the note found in his possession showed at best, that he had lied about meeting the first appellant by chance in Singapore. No irresistible inference could be drawn from this that he engaged in a conspiracy to traffic in drugs or that he knew of the first appellant's intention to traffic in the drugs. In view of these factors, the appeal of the third appellant was accordingly allowed.

Vinit Sopon & Ors v Public Prosecutor [1994] 2 SLR 226 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellants were charged with trafficking in a controlled drug, 197.03g of diamorphine. Before the High Court, the prosecution led evidence to show that the first appellant offered to sell the drugs to two Central Narcotics Bureau ('CNB') officers. The second and the third appellants were present at the time. The drugs were in Geylang and evidence was led to show that the second appellant had showed them to it. The officers were led to a car, in the boot of which were found two plastic bags. When the bags were found to contain heroin, the first and the second appellants were arrested. The third appellant was subsequently arrested by other narcotics officers. In the course of the trial, the first appellant's cautioned statement was admitted in evidence. In the statement the first appellant admitted that he knew there was heroin in the boot of the car. In his defence, the first appellant claimed that he had been asked by the third appellant to accompany the CNB officers to collect something from Geylang. He claimed he did not know what that thing was. The second and the third appellants remained silent. All three appellants were convicted and they appealed. On appeal, they questioned the way in which the CNB officers had conducted the entrapment and challenged the chain of evidence.

Held, dismissing the appeals: (1) the defence of agent provocateur was not available in Singapore. It was not the province of the court to consider whether the CNB should have proceeded about its work in one way or another and a trial court could only be concerned with the evidence before it. To hold otherwise would be to place stumbling blocks in the investigative methods of our law enforcement agencies; (2) the ingredients of a charge of conspiracy were the presence of a conspiracy to do an illegal act, with the result that the illegal act which was the object of the conspiracy was actually carried out. The essence of a conspiracy is agreement and in most cases the actual agreement will take place in private such that direct evidence of it will rarely be available. A frequent method of proving a conspiracy is to show that the words and actions of the parties indicate their concert in the pursuit of a common object or design, giving rise to the inference that their actions must have been co-ordinated by arrangement beforehand. These acts do not of themselves constitute the conspiracy but constitute evidence of the conspiracy. The question that a trial court must ask itself at the end of the trial is whether in respect of each alleged conspirator the court was satisfied that on the evidence as a whole he must have conspired with one or more of the others; (3) the first and second appellants led the CNB officers to the drugs. The first appellant testified that he did not know the way to Geylang. The irresistible inference was that the second appellant showed the first appellant and the CNB officers the way to the drugs, thus pointing to his complicity in the conspiracy; (4) the cautioned statement as well as the evidence-in-chief of the first appellant gravely implicated the third appellant and bolstered the evidence of the CNB officers; (5) it cannot be that in every drug case it lies on the prosecution to laboriously call every single witness to establish the chain of possession of the seized drugs. The need to do so only arises where a doubt as to the identity of an exhibit has arisen. In the present case, nothing of the sort had happened. The exhibits had been properly labelled and handed over to the CNB store.

Lai Kam Loy & Ors v Public Prosecutor [1994] 1 SLR 787 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu JA and Chao Hick Tin J).

The accused was arrested in an operation conducted by the Central Narcotics Bureau ('CNB') officers when he travelled from South Bridge Road to Yuan Ching Road and thence to an apartment at Tah Ching Road. The accused was arrested in the apartment and a brown plastic carrier bag was seized from him. The bag was found to contain 59 packets of diamorphine, the net weight of which was 60.13g. The accused's cautioned statement was admitted in evidence in which he claimed that one 'Yaw Chui' had given him the bag. In his defence, the accused testified that he had been asked by a friend, Ah Lee, to deliver and was delivering a gift as requested to the occupant of a flat at Tah Ching Road. He gave no explanation why Ah Lee could not deliver the bag himself; neither was Ah Lee produced at the trial.

Held, convicting the accused: (1) the court drew an adverse inference from the accused's failure to mention Ah Lee's name in the cautioned statement; (2) the accused's fingerprint was found on the inside of the wrapping paper of the drugs. It was clear that the accused had wrapped the exhibit; (3) a bagful of empty mini plastic sachets was found in a box next to the accused's bed together with a daching. The presence of the exhibits in the accused's room went towards a rebuttal of any professed lack of knowledge of the contents of the plastic bag on the part of the accused. The court was entitled to conclude that these exhibits were things a trafficker would have.

Public Prosecutor v Chi Tin Hui Criminal Case No 18 of 1990 High Court, Singapore (Amarjeet Singh JC).

The accused was charged under s 5(a) of the Misuse of Drugs Act (Cap 185) for having in his possession 149.84g of diamorphine. There was no dispute between the prosecution and the defence regarding the quantity and quality of the drug. At the time the accused was arrested, he had with him a bag in which were a handphone and a package wrapped in newspaper, comprising two packets of granular substance. Inspector C Sivakumaran ('Insp Sivakumaran'), who was in charge of the investigations at that time, asked the accused what was inside the packets. There was some dispute as to what the accused said in reply. The defence put it to the court that what the accused said was substantially different from what he was alleged to have said. The prosecution allege that the accused answered 'peh hoon' meaning 'white powder' which is a term commonly used to describe heroin. The defence, on the other hand, claim that the accused said 'eor' which means medicine. The accused then brought the police to his sister's house from where he had come. The accused's sister lived in the house with her boyfriend and her son. The accused sometimes rested in the front room in the house. The police searched the room and found nothing incriminating. There was a locked cupboard in the room; Insp Sivakumaran asked the accused whom the cupboard belonged to, to which the accused answered he didn't know. The accused's nephew answered that the cupboard belonged to the accused. On being asked again, the accused admitted that the cupboard belonged to him. The police opened the cupboard with the key which was in the accused's trouser pocket. The contents of the cupboard were admitted as evidence, part of which was S$10,150 in notes. When asked who the money belonged to, the accused said that it belonged to someone called 'Ah Leong'; the accused later said that the money had been given to him by his sisters. In defence, the accused said that at the time of the arrest, he was detained at a drug rehabilitation centre because he consumed heroin; he was on a Day Release Scheme. The accused said that he met someone at the Centre who told him that a friend of his, one Ah Leong, was looking for people to seal sex-stimulating medicine for S$1 a sachet. The accused decided to do this. The accused said that the drugs found in the locked cupboard belonged to Ah Leong.

Held, convicting the accused of an amended charge and imposing on him the mandatory death sentence: (1) after the voir dire, the court believed that when the accused was asked what was inside the packets at the time of his arrest, he had answered 'peh hoon'. The statutory presumption under s 18(2) was not rebutted by the accused. Furthermore, the accused, being a consumer of heroin, should have recognized by sight and smell that the substance he was sealing in the sachets was not sex-stimulating medicine, but actually drugs; (2) the court found that the accused could not be believed. He lacked credibility as he gave conflicting explanations about the money found in his cupboard; (3) the charge with which the accused was charged was amended to trafficking a dangerous drug by transporting; (4) it is not a prerequisite that the drugs that one is trafficking should belong to oneself. It is possible to traffic drugs which belong to someone else.

Public Prosecutor v Chan Hock Wai Criminal Case No 20 of 1994 High Court, Singapore (Kan Ting Chiu J).

The appellant was convicted in the High Court of having trafficked in no less than 1728.87g of diamorphine. On appeal his counsel argued that the charge against him, which alleged trafficking 'by offering to sell, give, distribute or deliver, a controlled drug', was duplicitous and moreover was so widely framed as to have occasioned the appellant grave injustice in the conduct of his defence below. In the course of the appeal, the appellant alleged that the interrogating officers represented to the appellant when questioning him about drug activities unrelated to the charge that what he told them about these activities would not be recorded; and that this representation subsequently induced him to give his s 121(1) statements when he would not otherwise have spoken, thus rendering his s 121(1) statements inadmissible. His counsel further claimed that the statements being inadmissible, the trial judge had erred in relying on them to reject the appellant's defence below.

Held, dismissing the appeal: (1) the charge against the appellant was not duplicitous because it did not amount to a description of more than one offence. It was still clear from the wording of the charge that the appellant stood accused of one offence, that of trafficking in 1728.87g of diamorphine. Nor did the particularization of trafficking adopted in the charge prejudice the appellant in any way in the conduct of his defence below, because his defence all along was one of complete denial of possession of the drugs. He was able to offer his own detailed version of the events leading up to his arrest and he insisted throughout the trial below that he had no knowledge of the drugs seized; (2) activities unrelated to the charge against him was too remote from the subsequent recording of his s 121(1) statements to constitute an inducement to the appellant to make those s 121(1) statements. This was especially in view of the fact that the s 121(1) statements were recorded nearly a week after the questioning took place. Also, there was no suggestion that the appellant received, during the recording of his s 121(1) statements, representations similar to that allegedly made to him when he was questioned about the unrelated drug activities; (3) a representation to the appellant in respect of drug;the trial judge could not be said to have relied on the appellant's s 121(1) statements to reject his defence below. It was clear from the trial judge's grounds of decision that he had evaluated the appellant's testimony without reference to the statements and had found that testimony wanting. In any case, since the appellate court was satisfied as to the admissibility of the statements, there was no error in the trial judge placing reliance of some sort on them in arriving at his finding of guilt.

Lim Choon Chye v Public Prosecutor [1994] 2 SLR 517 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellant was arrested on 5 March 1991 and was found in possession of 117 packets of diamorphine. The packets were kept in a number of bundles in a plastic bag carried by the appellant. The appellant admitted that the plastic bag contained heroin but insisted that most of the packets were meant for his own consumption as he was a heavy addict. The Department of Scientific Services analysed the contents of the 117 packets and held them to contain 46.43g of diamorphine. The appellant raised a defence of consumption and gave evidence of his long terms of detention at Drug Rehabilitation Centres for treatment. The prosecution cross-examined the appellant on this defence. The appellant was convicted by the trial judge and he appealed. At the appeal, he contended that his defence should have been accepted and more importantly, the trial judge erred in law in allowing the prosecution to cross-examine him on the issue of his previous drug consumption offences; this had led in evidence supporting his bad character and the trial judge had improperly relied on such evidence. The Court of Criminal Appeal considered among other things the scope of ss 56 and 122(4) of the Evidence Act (Cap 97) ('the Act').

Held, dismissing the appeal: (1) the learned trial judge rightly rejected the defence of the appellant as he had not established on a balance of probabilities that the drugs found in his possession were for his own consumption; (2) the quantity of drugs, the number of bundles and his consumption habit did not support the defence and hence it failed; (3) the appellant had willingly and wilfully led evidence to establish his previous detention in Drug Rehabilitation Centres and as such the prosecution was entitled to cross-examine on this issue; (4) s 56 of the Act did not apply at all as the appellant did not in the first place put his good character as an issue during trial; (5) s 122(4) of the Act also did not apply as the prosecution did not intend to establish the appellant's bad character but was merely testing the defence put forward by the appellant which it is perfectly entitled to do.

Tan Nguan Siah v Public Prosecutor [1993] 3 SLR 895 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellant was charged with trafficking in a quantity of not less than 38.02g of diamorphine. On 2 August 1990, officers from the Central Narcotics Bureau ambushed the appellant near his flat. A package wrapped in newspaper was found lying on the ground next to the appellant and was found to contain ten packets of granular substance later analysed to be diamorphine. The appellant admitted that the drugs belonged to him. The officers then raided the appellant's flat and gained entry by using keys seized from the appellant. Three other persons were found in the apartment and they were arrested. The officers found 72 packets of diamorphine in the appellant's bedroom. This quantity was analysed to be of not less than 38.02g of diamorphine. The officers also found a portable electronic weighing scale, and numerous empty plastic bags. The appellant's urine was analysed and found to be negative for diamorphine. In his defence, the appellant claimed that he was a drug addict and all the drugs found in his flat were for his own consumption. He claimed he was unemployed but made money through gambling, winning four-digit lotteries and acting as an illegal moneylender. The trial judge disbelieved him and convicted him. He appealed.

Held, dismissing the appeal: (1) the appellant was in possession of 38.02g of diamorphine and under s 17 of the Misuse of Drugs Act (Cap 185), he was presumed until the contrary was proved, to traffic in that quantity of drugs; (2) not only had the appellant failed to rebut the presumption, but there was evidence strongly indicating that the appellant was a trafficker. The electronic scale, the empty plastic bags, the ten pre-packed packets of diamorphine, the large quantity of drugs found at his flat, were all indicative of the fact that the appellant was a trafficker.

Phang Sow Lam v Public Prosecutor [1994] 1 SLR 12 Court of Criminal Appeal, Singapore (LP Thean JA, Goh Joon Seng and Warren LH Khoo JJ).

On 29 April 1990, the accused was arrested by officers of the Central Narcotics Bureau. A key pouch was recovered from the accused. He admitted to the officers that he had about 20 pounds of heroin at his apartment at Prince Apartments. He led the officers to this apartment. Access was gained through a key in the pouch recovered from the accused. The accused admitted to the officers that he was the only one who had keys to the apartment. The officers recovered 676.8g of diamorphine from a briefcase found in the apartment. They also recovered weighing scales, plastic bags and S$8,000 and RM690 in cash. The accused was charged with trafficking. At his trial, he denied making an admission to the officers. He challenged the admissibility of the cautioned statement made to the investigating officer. After a voire dire, the statement was found to be voluntary. In the statement, the accused admitted that he received the drugs from a Malaysian. When called upon to give evidence, the accused claimed that the briefcase belonged to friend by the name of Pui Kia. He claimed that Pui Kia also had keys to the apartment. The accused claimed that he was keeping the briefcase for his friend.

Held, convicting the accused of trafficking: (1) on the undisputed fact that the accused had the keys to the bedroom from which the diamorphine was recovered, a rebuttable presumption of possession arose under s 18 of the Misuse of Drugs Act ('the Act'). The disputed admissions to the officers, if believed, also constituted direct evidence of possession. When possession was established, a presumption of trafficking may arise under s 17(c) of the Act. This presumption was rebuttable and it was up to the accused to rebut it; (2) the defence had not challenged the officers evidence that the accused had told them that he was the only one who had keys to the apartment. This contradicted his evidence that Pui Kia also had a key to the apartment; (3) the accused had failed to adequately explain why he had not mentioned Pui Kia when arrested and when he made his cautioned statement. There was also a paucity of evidence about Pui Kia. He was supposed to be a good friend of the accused but there was no evidence about him other than his nicknames, that he was a procurer and that he could be found at Sentosa Complex in Johor Bahru; (4) there was nothing to persuade the court that the accused had not made the oral statements to the officers; (5) the accused had failed to raise a reasonable doubt in the prosecution's case or to rebut the presumption of trafficking.

Public Prosecutor v Koh Aik Siew Criminal Case No 37 of 1991 High Court, Singapore (Kan Ting Chiu JC).

On 19 February 1989, a group of four policemen were performing routine patrol duty in their patrol car. Whilst at the junction of Cantonment Road and Hoe Chiang Road, one of the policemen, Police Constable Lim ('PC Lim'), noticed both appellants riding a Yamaha motor cycle FG 3418B. The first appellant was the pillion while the second appellant was the rider of the motor cycle. PC Lim caught sight of a white bag resting between the first appellant and the second appellant. PC Lim directed his colleagues to stop the motor cycle for a spot-check. PC Lim sounded the horn while PC Ari held up his hand and signalled to the rider to stop. At this juncture, both the rider and the pillion turned around, thereby allowing the officers a swift glimpse of their faces. The motor cycle then sped up into Everton Park, where the first appellant was seen jumping off the motor cycle and running away. PC Ari and SCs Ang and Tian ('SCs Ang and Tian') gave chase while PC Lim stayed at the patrol car. In the meantime, the second appellant made off in the direction of Cantonment Road on the motor cycle. A prosecution witness, Saruvamalai Victor, gave evidence that he saw the first appellant running past him clutching a folded white bag beneath his arms before his attention was distracted by the arrival of the patrol car. The first appellant was subsequently arrested by SCs Ang and Tian. When he was arrested, he was not carrying any white bag. A search was conducted and PC Lim found a white 'Takano' paper bag in the rear of a blue pick-up parked at the car park, which was in the vicinity where the first appellant was seen running. Inside the bag, two packets of granular substances was found. The substances, upon analysis were found to be 12.7g and 55g of diamorphine. The first appellant told the CNB that the rider was one Ah Kow. The motor cycle, which was found abandoned, was traced to the second appellant as the owner. He was subsequently arrested in relation to another case. An identification parade was conducted, and only SCs Ang and Tian were able to identify the second appellant as being the rider of the motor cycle. The second appellant alleged that he had lent his motor cycle to one Ah Kow on 18 February 1989 and Ah Kow had not returned it to him. Both appellants were convicted. On appeal, the first appellant argued that it was not proven beyond reasonable doubt that the white Takano bag found in the rear of the pick-up was the same bag PC Lim claimed to have seen the first appellant holding. The second appellant argued that his was a case of mistaken identity.

Held, dismissing the appeal of the first appellant and allowing the appeal of the second appellant: (1) the gaps that counsel claimed existed in the chain of the prosecution evidence which made the identification of the white 'Takano' bag uncertain were immaterial. There was no reason to disbelieve PC Lim's evidence that he had seen the first appellant in possession of a white bag whilst seated on the motor cycle and that the first appellant had still been clutching the bag when he fled from the police officers. The fact that the three officers had, in the excitement of the chase, missed the white bag did not in any way detract from PC Lim's evidence. In any case, the first appellant himself clearly admitted, in his s 122(6) statement, to there having been a plastic bag placed between himself and the rider of the motor cycle on 19 February 1989; (2) and that when the first appellant reappeared after being apprehended by the two SCs, he no longer had the white bag with him. Before he was apprehended, however, he was last seen by Saruvamalai near a lamp post at the rear corner of Block 7 Everton Park. This was where the blue pick-up, in which PC Lim found the white 'Takano' bag containing the drugs, was parked on 19 February 1989. The irresistible inference to be drawn from the above was that the white plastic bag found in the blue pick-up by PC Lim was the same bag which the first appellant was clutching as he ran off and which he later discarded before his arrest; (3) the quality of the identification evidence provided by SCs Ang and Tian left much to be desired. Both officers stated that they had only had one look at the motor cycle rider on 19 February 1989, when he turned and looked at their patrol car. They conceded that, at that point, his motor cycle was about seven to eight feet from their patrol car and it must be remembered that the two SCs did not have a completely unobstructed view of the rider for they were then sitting in the rear of the car. SC Ang admitted in cross-examination that he had only seen the rider 'momentarily' while SC Tian estimated his sighting of the rider to have lasted 'three or four seconds', agreeing with defence counsel that it was 'for a very, very short span of time'; (4) of further detriment to the prosecution's case was that the first appellant, when shown a photograph of the second appellant, asserted that the person in the photograph was not the motor cycle rider on 19 February 1989. He insisted that the rider was one Ah Kow and even called a witness to prove the existence of such a character; (5) when Saruvamalai first saw the first appellant, he was clutching a white bag as he ran;in the final analysis, the only factor which indicated a link of sorts between the second appellant and the events of 19 February 1989 was his ownership of the motor cycle. It is true that the alibi proffered by the second appellant could not be substantiated due to his inability to provide the full names and addresses of the persons he made reference to. Nevertheless this in itself could not be said to constitute corroboration for the SCs' identification of the second appellant, bearing in mind Lord Widgery CJ's injunction in R v Turnbull.

Tan Han Tiong & Anor v Public Prosecutor [1994] 2 SLR 587 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The accused was arrested on 9 July 1992 by a team of narcotics officers. The officers found two brown envelopes in the left trouser pocket of the accused and a bundle wrapped in newspapers. When asked what was in the bundle the accused replied 'peh hoon'. In each of the brown envelopes were found ten sachets of granular substance and inside the newspaper was one packet of granular substance. All the packets were analysed and found to contain 392.14g of granular substance analysed to be diamorphine of not less than 50.28g. During the period the accused was in custody, the accused suffered heroin withdrawal. In his cautioned statement to the investigating officer, the accused stated that the heroin recovered was for his own consumption. When his defence was called, the accused stated that all the heroin on his person was for his own consumption. He claimed he carried the heroin with him because he was afraid that his father might find the drugs and throw them away if they were left at home. He further testified that he consumed about one 8g sachet of heroin a day. The prosecution called rebuttal evidence to the effect that the accused suffered from only mild withdrawal during his period of custody and, based on this, he would only be a mild user consuming about one to two 0.16g straws of heroin a day.

Held, convicting the accused: (1) the accused was an untruthful witness. If the accused was indeed smoking one sachet a day this would be equal to about 73 straws which was most unlikely and conflicted with the medical evidence; (2) if the accused was, in fact, consuming the amount of heroin claimed by him, he did not have the means to support his addiction. The accused's earnings per month based on his own evidence would be between S$4,000 to S$5,000. At a consumption rate of 73 straws per day, the accused would have spent S$10,350 per month on heroin; (3) the court also did not believe the accused's explanation that he was carrying the drugs around with him because he was afraid that his father would throw them away. The accused must have known that if he carried drugs above a certain amount he would face the death penalty.

Public Prosecutor v Leong Wing Kong Criminal Case No 69 of 1993 High Court, Singapore (Goh Phai Cheng JC).

The accused persons, who were Malaysians, were charged with trafficking in 76.3g of diamorphine. The first accused was charged as the principle offender and the second and third accused persons as the abettors. The drugs were found hidden underneath the dashboard of a Toyota motor car driven by the first accused. The prosecution led evidence to show that on 21 March 1990, a Proton Saga driven by the third accused was followed from the Woodlands checkpoint to the Woodlands Centre Road by Central Narcotics Bureau ('CNB') officers. The second accused was the passenger in the car. The third accused was arrested at Woodlands Road and he led the CNB officers to the first and second accused. The first accused informed the officers that he had entered Singapore in the Toyota motor car; the key of the car was seized from him. He led the officers to the motor car and a package of substance was discovered. When the first accused was asked what was in the package he said 'drugs'. The drugs were weighed at the CNB headquarters and found to be 425.5g. When the substance was sent for analysis, it was found to be 449.1g in weight. The prosecution witnesses also gave conflicting accounts of the colour and nature of the substance. The defence challenged the chain of evidence, suggesting that the substance seized from the Toyota was not the same substance sent for analysis. The first accused did not object to his statements being admitted in evidence. In these statements, the first accused claimed that the package was handed to him by the second accused, who had told him to tape it to the bottom of the dashboard. The first and second accused were called upon to give their defence. The first accused's testimony was substantially the same as his statements; he claimed that the package had been handed to him by the second accused. The first accused claimed that he did not know of the contents. He claimed that he never informed the CNB officers that the package contained drugs when he was arrested. The second accused denied giving the first accused the package.

Held, convicting the first and second accused, but acquitting the third accused without calling his defence: (1) a lack of direct evidence did not raise a reasonable doubt as to whether the drugs seized were the same ones sent to the chemist for analysis. It was sufficient that the drugs seized had been marked and these markings were confirmed by the investigating officer and the chemist as being the same markings. There was no doubt that the drugs seized from the Toyota were the same drugs that were sent for analysis; (2) the first accused's defence was a straightforward denial of knowledge that the package contained drugs. Knowledge generally implies consciousness of facts. Once a person was in possession of a bag or package which contained in fact a controlled drug, it was presumed that he was in possession of and knew the nature of the controlled drug. The first accused did not care to inspect the package and it did not appear to the court that he did not know of its contents. He had failed to rebut the presumption; (3) an act of abetment, be it by conspiracy or by aid, could be a continuing one. The presence of the second accused in Singapore where the actual offence was said to have taken place vested jurisdiction with the High Court in Singapore; (4) so long as a statement connects an accused in some way with the offence charged, it would be deemed a confession. A confession of a co-accused was sufficient, if corroborated by evidence from other sources. But it was not necessary that such corroborative evidence should by itself be sufficient to support the evidence. Whether corroboration was sufficient must depend on the nature of each particular case. Bearing in mind the circumstantial evidence and the statement of the first accused, the prosecution had made out a prima facie case against the second accused. Having heard the testimony of the first and second accused, the court was satisfied that the account narrated by the first accused connecting the second accused to the offence was a true version. There was no rule of law that the testimony of a witness must either be believed entirely or not at all. The court was perfectly entitled to accept one part of the first accused's evidence and reject the rest; (5) conspiracies were generally proved from inference of conduct as it was often difficult to have direct evidence of such a conspiracy; (6) except that he was arrested, there was insufficient evidence that the third accused was connected to the offence with which he was charged. All the long statements put together did not in any way implicate him.

Public Prosecutor v Abdul Rashid bin Mohd & Ors [1993] 3 SLR 794 High Court, Singapore (Rubin JC).

On 12 February 1993, officers from the Central Narcotics Bureau raided the accused's flat and seized three lots of diamorphine (heroin) totalling 57.74g (analysed net weight). The total gross weight of the drugs was 808g. The first lot of 1.43g (analysed net weight) was found in a pencil case together with paraphernalia related to drug smoking such as straws of heroin, foil paper and paper funnels. The second lot of 54.28g (analysed net weight) was found in three plastic packets in a nylon sling bag taken from the wardrobe of the master bedroom. The third lot of 2.03g (analysed net weight) was found in the master bedroom underneath a blanket. At the trial, the prosecution conceded that the drugs found in the pencil case were for the accused's own consumption and amended the trafficking charge to reflect a net weight of 56.31g. The accused's defence was that the drugs found in the flat were all for his own consumption. He claimed that he consumed between 9.5 to 4.5g gross of heroin a day. The prosecution adduced evidence that the accused had admitted to the prison doctor the fact that he consumed 2.56g gross of heroin a day. The prosecution also called evidence to show that the street value of the drugs seized was about S$90,000.

Held, convicting the accused: (1) the accused having been found in possession of more than 2g of diamorphine was presumed to traffic in the said drug. He was then under a burden to prove on a balance of probabilities that either the presumed actus reus or mens rea was not present; (2) the accused had given two different versions of his rate of consumption of drugs. But even on the exaggerated rate of consumption, it would have taken the accused about ten months to consume the drugs found in his possession; (3) the lot of heroin in the pencil case was probably for the accused's own consumption given the presence of paraphernalia associated with drug consumption. The other two lots were more likely meant for distribution given that they were packed in packets of more or less the same quantity, and wrapped in magazine paper which was something that an addict would not do; (4) the accused was not truthful in his claim that all the drugs were for his own consumption. He had not the means to buy such a large quantity of heroin. He was trafficking in the two lots of heroin and from the ill-gotten gains he could support his drug taking habits and live in a rented flat with no source of income from any gainful employment. He failed to prove that he was not trafficking in the drug.

Public Prosecutor v Lee Hock Chuan Criminal Case No 35 of 1993 High Court, Singapore (Lai Kew Chai J).

The appellant was charged with trafficking in 99 packets containing not less 37.26g of diamorphine in his possession in his room at Veerasamy Road, Singapore. On 31 July 1990, a team of narcotics officers arrested the appellant at Serangoon Road. They took him to his apartment and gained access by a key seized from the appellant. The officers then gained access to the appellant's room through another key that they seized from him. The drugs were recovered from a toilet attached to the room which the appellant rented. The officers also found a daching and several empty plastic sachets. The owner of the flat testified that the appellant was visited by friends from time to time. The appellant in his defence claimed that there were other persons who had access to the flat and he had no knowledge whatsoever of the drugs. In particular, he stated that the flat was used by a man called Lim Soh Chew and further there were other persons, Ah Ho and Ngeow Chi, who had been to the flat. These persons were not called to testify. The trial judge placed no weight on the appellant's evidence of Ah Ho and Ngeow Chi.

Held, dismissing the appeal: (1) the appellant had the keys to the flat and the room which he rented. The owner of the flat gave evidence that she never went into the appellant's room and this evidence was not disputed. As for the other persons having access to and using the room and the extent of their use, no evidence was adduced apart from the bare statements of the appellant; (2) the drugs were found in the toilet attached to the appellant's room and the keys to the toilet were in the appellant's possession. The trial judge was justified in finding that the appellant had exclusive possession of the drugs in the toilet. By reason of the appellant having possession of the drugs a presumption of trafficking in the drugs arose and on the evidence the presumption had not been rebutted; (3) there was no credible evidence before the trial judge of any person named by the accused sharing the accommodation with him.

Oh Teh Hwa v Public Prosecutor [1994] 2 SLR 18 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellant was convicted of trafficking in not less than 29.62g of diamorphine. The evidence against him was that on 6 November 1992 the appellant was arrested by narcotics officers. A small packet of diamorphine and a sum of S$5,465 was found on his person. The officers also seized a key to a Toyota Corolla motor car from the appellant. In the motor car the officers found three plastic bags together containing 29.62g of diamorphine. The officers later raided the appellant's apartment and found 48 polythene packets, a plastic spoon and a weighing scale. The plastic spoon was found to be stained with morphine. The appellant's defence was that he was a drug addict. He claimed that the drugs found in the car were for his own consumption. He further testified that the polythene bags in his apartment belonged to his friend. He also stated that only one of the plastic bags of diamorphine found in the car belonged to him. The others belonged to his friend David. The prosecution called rebuttal evidence to show that heavy addicts would consume at most four to five straws a day. Evidence was led to show that the drugs found on the appellant's person was not less than 7g and could be divided into about 140 straws. Further rebuttal evidence was led to show that one straw of diamorphine would cost about S$20. The trial judge disbelieved the appellant's story and convicted him. The appellant appealed. One of his main grounds of argument was that the defence of the appellant should not have been called as the only evidence against him was that he was in possession of the key to the motor car, and this did not raise a presumption of trafficking. The appellant also argued that prejudicial evidence was admitted in the way of the drugs found on his person.

Held, dismissing the appeal: (1) prior to February 1990, the words 'or presumed' were present in s 17 of the Misuse of Drugs Act (Cap 185) ('the Act'). By the amendment of 15 February 1990, these words were omitted. By reason of this omission, Parliament must have intended that the presumption of trafficking in s 17 was only to apply where a person was in possession of a controlled drug and not merely presumed to be in possession of a controlled drug. If Parliament had intended s 17 to also apply to the situation of 'presumed' possession, then, it would not have deleted those two words. It was a rule of construction that a word in a statute must bear the same meaning unless the context clearly otherwise required. The word 'proved' must bear the same meaning in s 17 as in s 18. Parliament, by deleting the words 'or presumed' had shown abundantly that it did not intend to create a situation of triple presumption, namely, linking ss 18(1), (2), and 17; (2) the prosecution had shown that from end October to 6 November 1992 the appellant was in possession of the car. He had the only key to the car. There was evidence that the appellant knew that the three bundles were in the car. It was clear that the appellant had physical control of the three bundles and he also knew of their existence. Accordingly, a prima facie case of possession had been made out against him. The situation in the instant case was no different from a situation where an accused was carrying a case wherein bundles of drugs were found. No reliance need be placed on s 18(1); (3) ss 14 and 15 of the Evidence Act (Cap 97) allowed evidence of the drugs found on the appellant's person to be admitted. If an accused should raise in his defence that the drugs which were the subject of the charge were only for his own consumption, the prosecution would be entitled in cross-examination to extract evidence to show that that could not be so or to tender evidence to counter that claim. Similar fact evidence may be adduced even though no specific defence had been raised provided that it was of sufficient probative value; (4) the appellant was a drug addict. There was evidence to show that he suffered from withdrawal symptoms after his arrest. However, the totality of the amount of diamorphine possessed by the appellant at the time was pertinent in the boot, on his person and at his home. Also pertinent was the amount of money he was carrying. Viewing all that, it could not be said that the trial judge was wrong to have rejected the defence. The evidence pointed overwhelmingly to the fact that the appellant was a trafficker and that the drugs in the car boot could not have been intended for his own consumption.

Low Kok Wai v Public Prosecutor [1994] 1 SLR 676 Court of Criminal Appeal, Singapore (Karthigesu and LP Thean JJA and Chao Hick Tin J).

On 16 October 1992, Staff Sergeant Tan How Boon ('Tan') of the Central Narcotics Bureau ('CNB') made acquaintance with the first appellant. He was subsequently introduced to the third appellant who told Tan that she could supply him with 10kg of cannabis. The first appellant then offered to sell Tan 2kg of cannabis. There were several attempts to complete the sale which were aborted. Finally they met again on 8 and 9 January 1993, in the presence of the second and third appellant, and it was agreed that delivery of the 2kg of cannabis would be made on 10 January 1993. An ambush was set for the first and third appellants. When Tan arrived, the second appellant approached him and offered a black plastic bag which contained the drugs. Tan refused to take delivery as the first and third appellant were not present. He therefore waited for the first and third appellant to arrive in a car. The plastic bag was placed in the boot, Tan and the second appellant got into the car. Tan paid the first appellant with a set of marked notes. The car was then driven to Pasir Ris. There the car was ambushed and the appellants arrested. The drugs in the bag were seized and analysed to contain 1,198g of cannabis. All three appellants were charged with trafficking. When their defence was called, the first appellant chose to remain silent. The second appellant testified that he was merely asked to deliver the bag to Tan and did not know of its contents. Although he was present at the time that the sale of the cannabis was agreed, he claimed he did not understand what was said as the first appellant and Tan spoke in Teochew. The third appellant also claimed that she did not understand what was said between the first appellant and Tan. She claimed that she had no idea that they were arranging a sale of cannabis. The trial judge rejected their defence and convicted all the appellants. The first appellant on appeal claimed that the trial judge had allowed irrelevant and prejudicial evidence of the earlier abortive sales to be admitted.

Held, dismissing the appeals of the first and second appellants, but allowing the appeal of the third appellant: (1) the evidence of Tan of the earlier instances of abortive sales and negotiations between him and the first appellant were admissible against the first appellant. Those events were intricately connected with the facts in issue and presented a complete picture of the circumstances in which the offence was committed; (2) even if such evidence was entirely excluded, there was ample evidence adduced before the trial judge which fully justified the conviction of the first appellant; (3) as against the second appellant, only the presumptions under s 18(1) and (2) of the Misuse of Drugs Act (Cap 185) arose. It was not in dispute that he carried the black bag that contained the cannabis from the quarters at the construction site, and, together with the first appellant, went to meet Tan while the latter was in his car and at Tan's request he placed the bag in the boot of the car. In considering whether the second appellant rebutted the presumptions under s 18, it was pertinent to take into account his conduct at the meeting of 8 and 9 January 1993. It is true that his conduct showed that he had no interest or involvement in the drug transaction which had been negotiated between the first appellant and Tan. He might therefore be an innocent courier. But his actions on the night of 10 January 1993 showed otherwise. The second appellant was seen by Tan standing at the five-foot way of the construction site, he saw the first appellant walking down the wooden staircase of the quarters and the second appellant emerging from the side lane carrying a black plastic bag. The second appellant was together with the first appellant when the bag was delivered, and it was the second appellant who placed the bag in the boot of the car. The second appellant also made a cautioned statement in which he admitted the charge; (4) the offer of the third appellant to supply Tan with 10kg of cannabis did not show any complicity with the instant charge. The evidence adduced as against the third appellant was much too scanty to warrant a finding that the third appellant abetted the first and second appellants in the commission of the offence by conspiring with them.

Don Promphinit & Ors v Public Prosecutor [1994] 3 SLR 193 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The two accused were charged with having the common intention of trafficking in a controlled drug, ie 55.59g of diamorphine. At the time of arrest, a brown envelope containing one big packet of granular substance and four sachets of greenish granular substance were found in the trouser pockets of the first accused. The granular substance was analysed by the Scentific Officer and was found to contain heroin. The second accused was acquitted and discharged as no prima facie case had been made out against him. The prosecution sought to admit as evidence four statements which the first accused had made to the police under s 121 of the Criminal Procedure Code (Cap 68). The defence objected to this alleging that the statements had been made by the first accused as a result of assault, threats, promises and inducements. A voir dire was held to determine the admissibility of the statements.

Held, acquitting and discharging the second accused but convicting the first accused on an amended charge: (1) the prosecution had not discharged the heavy burden of proof that the s 121 statements had been made by the first accused voluntarily. The court was impressed with the behaviour of the first accused when he gave evidence in the voir dire he was not malicious. After reviewing all the evidence, the court held that the s 121 statements were inadmissible as there was a real possibility that the first accused had been assaulted as alleged, and that he had made the statements for a combination of reasons; (2) the prosecution had proved beyond a reasonable doubt that the first accused was in possession of the drugs and that the amount was more than that allowed by the law, ie 2g; (3) the presumption under s 17 of the Misuse of Drugs Act (Cap 185) is that the first accused was trafficking the drugs by transporting it in the car. This presumption was not rebutted by the first accused, who chose to remain silent.

Public Prosecutor v Loo Koon Seng & Anor Criminal Case No 32 of 1994 High Court, Singapore (Amarjeet Singh JC).

The appellant was arrested by narcotics officers. Twenty-four packets of substance containing not less than 50.28g of diamorphine were found on his person. He was charged with trafficking in the diamorphine, an offence under s 5(a) of the Misuse of Drugs Act (Cap 185) ('the Act'). The appellant admitted possession of the drugs. His defence was that the drugs were for his own consumption. At the trial, an officer of the Central Narcotics Bureau ('the CNB') gave evidence for the prosecution on the practice of drug users and suppliers in Singapore. The appellant contended that the witness was not an expert witness within the meaning of ss 47 and 48 of the Evidence Act (Cap 97, 1990 Ed). Hence, the opinion evidence was hearsay and inadmissible. The trial judge was satisfied that the witness was an expert witness by virtue of his work experience and admitted the evidence. At the end of the trial, the trial judge held that the appellant had proved on a balance of probabilities that three out of the 24 packets of drugs found in his possession were for his consumption, while, with respect to the remainder of the drugs found in his possession, the appellant had not rebutted the presumption under 17 of the Act. Accordingly, the trial judge convicted the appellant on the amended charge of trafficking in 21 packets of substance containing not less than 49.32g of diamorphine. The appellant appealed.

Held, dismissing the appeal: (1) the competency of an expert is a matter for the court. An expert must be skilled. He need not be so by special study, he may be so by experience. The long-serving officer with the enforcement division of the CNB had sufficient work experience to be considered an expert in matters relating to the drug scene in Singapore; (2) however, it is difficult to categorize the practice of drug users and suppliers as either 'science or art' within s 47 of the Evidence Act. To do so requires the court to strain the meaning of the term 'science or art'. It is preferable to admit such evidence by virtue of s 51 of the Evidence Act, sub-s (a) of which refers to the 'usages and tenets of any body of men or family'. The word 'usages' includes 'what the people are now or recently in the habit of doing in a particular place'. The practice of drug users and suppliers come within the ambit of s 51(a) of the Evidence Act. Opinions of persons having 'special means of knowledge' of such matters are relevant. By virtue of his work experience with the enforcement division of the CNB, the officer had 'special means of knowledge' of the practice of drug users and suppliers, so his evidence was admissible; (3) on the totality of the evidence at trial, the appellant had not proved on a balance of probabilities that the 21 packets of diamorphine found in his possession were for his own consumption. Hence, he had failed to rebut the presumption by virtue of s 17 of the Act that he was trafficking in the diamorphine.

Leong Wing Kong v Public Prosecutor [1994] 2 SLR 54 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The accused was charged with trafficking in 69.34g of diamorphine, a dangerous drug as specified under the Misuse of Drugs Act (Cap 185), under s 5 of the said Act. When arrested, the accused was found to have 48 sachets of drugs with him. There was no dispute between the prosecution and the defence as to the circumstances leading to the accused's arrest, whether the substance found with the accused was a drug, or even to the amount of drugs which the accused had in his possession. The prosecution sought to admit two statements the defendant made to the police; the defence counsel objected to this. The defence argued that the statements had not been made voluntarily, and that the accused had not said what he was alleged to have said. Defence counsel brought to the attention of the court that the accused was not told of his right to remain silent before he made the statements to the police. The defence also claimed that the statements should not be allowed as evidence as the accused had been threatened, etc by the police while in custody; that when the accused made the statements, he was suffering from withdrawal symptoms; and that the accused was not given a medical check-up before the statements were made by the accused. A voir dire was held to determine the admissibility of these statements. There was a further dispute as to the amount of drugs the accused had intended to traffic the prosecution alleged that the accused intended to sell all 48 packets, while the defence claimed that the accused only intended to sell ten packets. It was alleged by the defence that the accused wanted to keep the remaining 38 packets for his own consumption, as he was a hardcore addict who relied heavily on drugs to see him through each day. The opinions of medical experts was tendered to support this allegation. The defence also brought up the fact that the police had set up a trap for the accused, using the accused's friend, Azman. Azman testified for the accused, saying that the accused had indeed been set up.

Held, convicting the accused as charged: (1) after the voir dire, the court allowed the two statements to be admitted as evidence. It is not necessary for the accused to be told of his right to remain silent prior to his having made a statement: Public Prosecutor v Mazlan bin Maidin [1993] 1 SLR 512. There was no case law or existing practice to support the allegation that the accused should be given a medical check-up. Further, after reviewing the medical evidence, the court opined that at the time the accused made the statements, he was not in a state where his will was so overborne that he could not have made the statement voluntarily: Garnam Singh v Public Prosecutor [1994] 2 SLR 243; (2) the defence of entrapment is not available in Singapore; (3) the issue of whether the accused intended to traffic 38 packets or 48 packets of the drugs was immaterial because either way, the weight of the drugs was more than 15g. The accused had to rebut, on a balance of probabilities, the presumption under s 17 of the Misuse of Drugs Act. Although the accused was a hardcore addict and it was possible for a hardcore addict to consume the amount of drugs the accused claimed to consume, the balance of probabilities had not been tilted in his favour; (4) the prosecution had discharged the burden of proving the case against the accused beyond a reasonable doubt. It is a point to be noted that a drug addict is still capable of trafficking.

Public Prosecutor v Goh Soon Huat Criminal Case No 59 of 1994 High Court, Singapore (Rubin J).

The three accused were jointly charged with trafficking in 26.37g of diamorphine in furtherance of a common intention with each other, under s 5(1)(a) of the Misuse of Drugs Act (Cap 185) read with s 34 of the Penal Code (Cap 224). At the conclusion of the prosecution's case, the court acquitted and discharged the second accused. The prosecution appealed against the acquittal and the appeal was allowed. The case was remitted to the trial court and the trial continued with the second accused being called upon to enter his defence. The second accused elected to remain silent.

Held, sentencing the three accused to death: (1) as a result of the insertion of s 147(3) of the Evidence Act in 1976, both the prosecution and defence have a choice now whether to impeach a witness' (including an accused's) credit under s 157(c) of the Evidence Act or to make an application to treat the evidence of any fact stated in the statement as a substantive piece of evidence, ie by substituting his testimony in respect of the fact with that contained in the statement; (2) a precedent condition must be satisfied before a s 147(3) statement proved under the section can be admissible of the fact stated therein and that is that the defence counsel must be allowed an opportunity to cross-examine the accused in respect of the contents of such a statement; (3) all the three accused failed to rebut on a balance of probabilities the presumed act of trafficking in the 26.37g of heroin.

Public Prosecutor v Foong Seow Ngiu & Ors (No 2) Criminal Case No 74 of 1994 High Court, Singapore (Amarjeet Singh JC).

The three accused were jointly charged with trafficking in 26.37g of diamorphine in furtherance of a common inten- tion with each other, under s 5(1)(a) of the Misuse of Drugs Act (Cap 185) read with s 34 of the Penal Code (Cap 224). During the trial, the first accused objected to the admission of his statements to the investigating officer on the grounds that he was assaulted, threatened, and induced to make those statements.

Held, acquitting the second accused: (1) it is not necessary that the accused should provide positive proof to establish that the statements taken from him had been obtained by assault, threats, persuasion or promises. He merely had to show that a sufficient circumstance or circumstances existed to afford reasonable grounds for believing that the statement was not voluntarily made and in this regard, the court is entitled to take into account the surrounding circumstances and draw such proper inferences; (2) the first accused was not a truthful witness and the evidence of the arresting officer, investigating officer and the certified interpreter were materially free from contradictions and were corroborative of the circumstances narrated by them; (3) the proven act of joint possession of the heroin including the very act of re-packing the heroin by the third accused into the small packets from a large one was prima facie evidence of knowledge on the part of the third accused that the small packets were to be sold to addicts themselves. The intention of the first and third accused in whose flat the re-packing was being done was to traffic in the small packets and such intention was known to each accused and shared by them. There was unity of criminal behaviour; (4) the recovery of S$20,200 from the pocket, wallet and car of the second accused did not in the context of the direct evidence ipso facto show or necessarily lead to the irresistible inference that the second accused was in joint possession of the drugs or engaged in their trafficking; (5) in evaluating all the direct evidence and the promixity of the second accused to all the drugs lying on the floor and the other drug paraphernalia used for the re-packing of the heroin, the court was unable to come to a prima facie finding that the second accused had either possession or joint possession of the heroin within the meaning of s 18(4) of the Misuse of Drugs Act. He had no doubt knowledge that many packets of heroin were lying in front of him but knowledge alone was insufficient to burden him with joint possession of the heroin. He must be shown to exercise practical control over it in some way; (6) the second accused's presence in the company of the first and third accused could not be regarded ipso facto as 'knowledge and consent' within s 18(4) of the Misuse of Drugs Act sufficient to constitute joint possession.

Public Prosecutor v Foong Seow Ngiu & Ors (No 2) Criminal Case No 74 of 1994 High Court, Singapore (Amarjeet Singh JC).

Acting on information received, officers from the Central Narcotics Bureau ('the CNB') kept watch on the appellant and his car. They trailed the appellant from a multi-storey car park along Bangkit Road to a petrol kiosk along Jalan Muhibbah. When the appellant got out of his car at the petrol kiosk, the CNB officers arrested him. The appellant resisted arrest. In the boot of his car, the CNB officers found 29 packets and 14 sachets of granular substance which contained in total 678.9g of diamorphine. In his defence, the appellant said that the drugs did not belong to him and that he did not know they were in the boot of his car. He was involved in some illegal betting activities with a Thai national by the name of Kang Son. Two days before his arrest, Kang Son left a bag in the boot of his car. It turned out that this bag contained some drugs. The appellant did not have any knowledge as to the contents of the bag. On the night of his arrest, he was asked by Kang Son to leave the boot of his car open at the multi-storey car park so that Kang Son's friend could place some items in the car. The appellant complied. Shortly after, he drove away from the car park and was arrested by the CNB officers at the petrol kiosk. He did not know of the existence of the other bags in the boot of his car which contained the other packets and sachets of drugs. The trial judge rejected his defence of lack of knowledge of the drugs. On appeal, counsel for the appellant contended that the appellant was not in possession of the drugs and that he had no knowledge of the drugs.

Held, dismissing the appeal: (1) the appellant did not deny at the time of his arrest that he was in possession of the bags. In fact, he could not deny this. The appellant was the only occupant of the car. He was trailed and kept under close observation for a considerable time and distance. He was arrested after he had parked his car. Immediately after, the boot of the car was searched and the drugs were found. By his own admission, he knew that Kang Son had put a bag in his car two days before. On the totality of the prosecution evidence, the appellant's possession of the drugs was clearly proved without relying on the presumptions of possession within the Misuse of Drugs Act (Cap 185) ('the Act'); (2) the total and abject denial of the knowledge of the contents of the bags lacked credibility. The only inference that could be drawn from the evidence was that the appellant knew fully well that the bags contained drugs. The appellant had not rebutted the statutory presumption of trafficking within s 17 of the Act.

Cheng Tim Fook v Public Prosecutor Criminal Appeal No 27 of 1995 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

Acting on information received, officers from the Central Narcotics Bureau ('the CNB') kept watch in the vicinity of Block 211 along Ang Mo Kio Avenue 3 for the appellant and his car. At about 12.50pm, the appellant's car came to a stop behind a stationary Mercedes-Benz along the side of Ang Mo Kio Avenue 3. Using two of their cars, the CNB officers blocked the front and the rear of the appellant's car. Corporal Amrun ('Cpl Amrun') got into the front passenger seat of the appellant's car and identified himself as a CNB officer. Meanwhile, Sergeant Riduan ('Sgt Riduan') tried to open the door to the driver seat. However, the appellant had used his elbow to lock the door. Then, the appellant reversed his car hitting the CNB car behind him before manoeuvring his car past both the Mercedes-Benz and the CNB car in front of him. With Cpl Amrun still in the car, the appellant sped off. The other CNB officers gave chase in their cars. Shortly after, the appellant's car crashed and came to a stop in the middle of a road junction. The appellant dashed away pursued by the CNB officers. Finally, he was subdued and arrested. From his car, 30 packets of granular substance containing in total 27.92g of diamorphine were recovered. In his statements to the police which were admitted without challenge, the appellant confirmed that the 30 packets of drugs belonged to him and that he ordered the drugs from one Zul to supply to his workers. In his defence, the appellant said that the packets of drugs did not belong to him. The night before his arrest, Zul, his supplier of drugs, borrowed his car. The next day, Zul arranged for the appellant to pick up the car at a petrol kiosk in Ang Mo Kio. At the same time, the appellant ordered two packets of drugs from Zul. After meeting Zul, the appellant drove his car to a car park and smoked half a packet of drugs. He proceeded to Ang Mo Kio Avenue 3 to pick up one Jamil. It was then that someone entered his car and hit his neck. By mistake, he pressed on the accelerator and the car moved. He only realized that the men chasing him were CNB officers when they handcuffed him. Except for two packets of drugs found in a clutch bag, the appellant denied he knew about the other 28 packets of drugs. In cross-examination, the appellant said he could not remember anything about the day in question and refused to answer the prosecution's questions. The trial judge rejected the defence of the appellant. The main contention on appeal was that apart from the two packets of drugs in the clutch bag, the appellant had no knowledge whatsoever of the existence of the 28 packets of drugs in the car. He was arrested soon after Zul had returned the car to him. He did not have reasonable time or opportunity to inspect the car. He was not in possession of the drugs.

Held, dismissing the appeal: (1) the appellant had reasonable time and opportunity to inspect the car. If he had checked, he would have found the envelope containing the drugs which was on the floorboard in front of the driver's seat. In any case, there were serious doubts as to the appellant's assertion that the car was lent to Zul the day before his arrest. Also, the appellant could not explain his dangerous driving on the day of his arrest. It was telling that he kept quiet when the drugs were recovered from his car. On the totality of the evidence, the appellant was clearly in possession of the 30 packets of heroin at the time of his arrest. He had not rebutted the statutory presumption of trafficking; (2) the objection to the admission of the appellant's statements which was not canvassed before the trial judge was unfounded. The medical evidence showed that the injuries sustained on the day of the arrest were not as to debilitate the appellant to an extent to deprive him of the will to make a statement. Next, the questions addressed by the trial judge to the appellant at trial were perfectly proper and correct. The criticism of the trial judge's conduct was not justified; (3) finally, the contention that the trial judge should have concluded that some or all of the drugs the appellant was in possession of was for his personal consumption was without merit because there was no evidential basis on which the trial judge could have said how much of the heroin in the appellant's possession was for his own consumption.

Atan bin Joki v Public Prosecutor Criminal Appeal No 23 of 1995 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The first appellant (Foong) was arrested on the ground floor of his block of flats on 8 April 1994. Ten sachets of heroin were seized from him. The CNB officers then led Foong upstairs to his flat. On entering the flat, they saw the second appellant (Tan) and the third appellant (Lim) sitting on the floor with a number of drug exhibits before them, including a big packet of heroin, 31 unsealed sachets of heroin, a stack of empty sachets and a weighing scale. At that time, Lim was holding a spoon in his right hand and a small plastic sachet in his left. Tan was talking to Lim but appeared to be doing nothing else. Morphine was found in all three accused's urine sample. All three of them were jointly charged with trafficking in the drugs found in the flat. Foong's s 122(6) and s 121 statements were admitted after a voir dire. In his s 122(6) statement, Foong said that Tan took the drugs to his flat for packing and that it did not belong to him. In his s 121 statement, he said that he asked Lim on 6 April to order 1lb of heroin from Tan. Lim quoted the price of S$3,600 per pound. On 8 April, Lim brought Tan to Foong's flat for the first time. There the sale took place and Foong handed the S$3,600 to Lim who in turn passed it to Tan. Foong then packed ten sachets with the help of Lim for delivery to one George. Before leaving the flat with the ten sachets, Foong asked Lim and Tan to continue packing the heroin. In his evidence, Foong said that the drugs were bought from Ah Seng and that the drugs were his. His defence was that part of the drugs were for consumption. It was suggested that some 43.1% were for consumption and that less than 15g were for trafficking. Foong claimed that he did not make any profit from George and that he only charged S$5 a packet for transport. Tan did not give evidence. Lim's evidence was that the S$3,600 seized from Tan were gambling debts paid by him. He had met Tan on the ground floor to settle those debts. Tan had a stomach-ache and he took Tan to Foong's flat to use the toilet. Lim said that the drugs were already there when they went to the flat. When the CNB officers entered the flat, he was trying to scoop half a spoonful of drugs into the small sachet so that he could take it with him to the sauna with Tan and that he thought that Foong would not notice. The prosecution applied for Lim's s 121 statement to be admitted under s 147(3) of the Evidence Act (Cap 97, 1990 Ed) to contradict him and with a view to admitting it as evidence of the facts stated therein. Voluntariness was disputed. In the voir dire, apart from allegations of threats, promises and inducement, there was a complaint that Lim was a Hokkien and that no interpreter was used even though the investigating officer was a Cantonese. The investigating officer claimed he was competent in Hokkien. It was also argued that the clause stating that the statement had been read back to Lim and that Lim was offered an opportunity to make amendments was not inserted at the end of the statement. The trial judge held that the statement was admissible. In his s 121 statement, Lim said that Foong had called him up to look for drugs. Lim called Tan and arranged for him to meet Foong on 7 April. They met and Foong spoke to Tan about the quantity and the price. Tan and Foong arranged to meet again on 8 April and said that Lim should be present. On 8 April, Lim went to the flat first. Later he went downstairs to fetch Tan. The sale took place in the flat and Foong handed the S$3,600 to Tan. Lim helped Foong to pack the ten sachets before Foong went downstairs. All the three accused were convicted. They appealed.

Held, dismissing the appeals: (1) at the time of Foong's arrest he had in his possession ten sachets of granular substance which contained heroin. He admitted that he was on his way to deliver the ten sachets to George. Later, in his flat there were found further quantities of heroin. He knew that they contained heroin. Foong therefore had possession of the drugs and under s 17 of the Act he was presumed to have had the drugs in his possession for the purpose of trafficking, and under s 5(2) of the Act, he committed the offence of trafficking in that quantity of drugs, unless he could successfully rebut the presumption under s 17; (2) the argument that 11.37g or 43.1% out of the 26.37g of drugs were for Foong's consumption was rightly rejected by the trial judge on the ground that there was no credible basis in support and there was evidence to the contrary. The best that could be said for Foong was that the drugs were meant both for consumption and for sale. This was not sufficient to rebut the presumption that he had possession of the drugs for the purpose of trafficking in view of the evidence; (3) the most damning evidence against Lim was the uncontested evidence that Lim was caught with a spoon in one hand and a small empty sachet in the other with all the relevant drug exhibits laid before him. The inference was that Lim was at the time engaged in repacking the heroin from the big packet into the sachets. The trial judge was entitled to reject his explanation. The evidence against Lim was overwhelming and there was no justification for disturbing the trial judge's findings. Lim was also in possession of the drugs and he had not rebutted the presumption of trafficking; (4) an interpreter was not indispensable just because Lim was a Hokkien and the investigating officer was a Cantonese. The only issue, so far as this question was concerned, was the competence of the investigating officer in the Hokkien dialect. The trial judge found that he was competent in Hokkien. There was no reason to differ from the trial judge; (5) the omission of the clause stating that the statement had been read over to Lim and that he had been offered the opportunity to make corrections was not a serious irregularity. What was important was not whether that clause was included at the end of the statement, but whether the statement was read over to the maker and, after correction, if any, signed by him. The trial judge had directed his mind to this question and had adequately dealt with it; (6) so far as the allegations of inducements, threats and promises are concerned, these were rejected by the trial judge. He had the benefit of seeing and hearing both the investigating officer and Lim giving evidence and he disbelieved Lim. There is no basis for disturbing his finding; (7) under s 147(3) of the Evidence Act the underlined parts of Lim's s 121 statement may be used as evidence of the facts stated therein; (8) there were discrepancies between Foong's and Lim's s 121 statements, but they are not truly material. The two statements were consistent on the core transaction, which was that Tan sold the heroin to Foong for S$3,600 at Foong's flat and that the sale was arranged or procured by Lim and was consummated in Foong's flat; (9) the trial judge was entitled to draw an adverse inference against Tan from his failure to give evidence in his defence. The evidence adduced before him clearly called for an explanation from Tan; (10) both Foong and Lim were in joint possession of the drugs for the purpose of trafficking in them. Assuming that Tan was not in possession of the drugs for the purpose of trafficking, there was a common intention to put Foong or Lim or both of them in possession of the drugs. All three of them had acted in concert and there was a pre-arranged plan to bring the drugs to Foong. Prior to delivery, each of them was engaged in carrying out a different act. The separate acts resulted in Foong having possession of the drugs at the material time. Section 17 operates and he is presumed to have had the drugs in his possession for the purpose of trafficking and by virtue of s 5(2) he committed the offence of trafficking in the drugs. The resulting criminal act was committed by Foong; (11) the actual offence constituted by the criminal act was possession of the drugs for the purpose of trafficking and the persons who committed the criminal act were Foong and Lim and the intention of these two was to have the drugs for the purpose of trafficking, and s 34 could be invoked to render Tan liable for that criminal act. It does not matter whether Tan had possession of the drugs at the material time; (12) even without invoking s 34, the prosecution has proved the charge against all the three appellants. It has been proved that Tan had brought the drugs to the flat and sold them to Foong pursuant to an arrangement made by or through Lim. There is no question that Tan knew that what he had sold to Foong were drugs. His knowledge and handling of the drugs had been proved. By virtue of s 18(4) of the Misuse of Drugs Act and on the facts of the case he was deemed to be in possession of the drugs: he had knowledge of and consented to Foong and also Lim having possession of the drugs. In that sense, possession has been proved; (13) even without the presumption under s 17, there was sufficient evidence to show that the drugs were in the possession of all three of them for the purpose of trafficking. It is immaterial that Foong was the only one who bought the drugs and therefore he was the only one who was capable of trafficking in the drugs. All three of them had possession of the drugs and the intended purpose of the drugs was for trafficking. It does not matter if only one of them would or could traffic in those drugs.

Foong Seow Ngui & Ors v Public Prosecutor [1995] 3 SLR 785 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Lai Kew Chai J).

On 9 October 1993, the appellant was arrested whilst in possession of 24 packets containing not less than 29.63g of diamorphine. The presumption of trafficking under s 17 of the Misuse of Drugs Act (Cap 185) ('the Act') was thereby raised. The appellant was subsequently convicted of the offence of trafficking under s 5(a) of the Act. The appellant's defence was that he was a heavy consumer of heroin and that he had purchased the 24 sachets of heroin on 9 October 1993 from one Ah Seng for his own consumption. He did not deny being in possession of the 24 sachets of heroin at the time of his arrest and the prosecution did not dispute that he was a drug abuser. As to his drug consumption habits, he testified that, prior to his arrest, his daily consumption was about half a packet of heroin. He alleged that he had taken one 'L-4-A' tablet on the morning of his arrest to prevent him from suffering withdrawal symptoms that day. The appellant also maintained that the sources of his income to support his drug addiction were from gainful employment and gambling. He did not give details of his remuneration as a casual labourer, the length of employment and details of any previous employment. Yet he had over S$2,000 with him when he met Ah Seng on 9 October 1993 and it was found that a total of S$4,560 was deposited into his POSB accounts between July and October 1993. Though he said that he gambled at card games and bet on horses, the appellant had little knowledge of placing bets on horses. Further, he did not know the address or telephone number of his employer and also admitted that he had never been to the place of employment. The judge was satisfied that the appellant had not, on a balance of probability, proved that the 29.63g of diamorphine were for his own consumption. Accordingly, the judge held that the presumption had not been rebutted and convicted the appellant. The appellant appealed against his conviction. On appeal, counsel for the appellant submitted that the trial judge had erred in not apportioning a part of the 29.63g of diamorphine for the appellant's own consumption and that, had the judge done so, the judge could have found that a least half was for the appellant's own consumption in which case he could not be trafficking in more than 15g of diamorphine and would not be sentenced to death.

Held, dismissing the appeal: (1) the absence of withdrawal symptoms exhibited by the appellant following his arrest and the fact that no pharmacological or other expert evidence was led by the appellant as to what 'L-4-A' tablet was and whether it in fact had the effect of alleviating withdrawal symptoms brought about from the consumption of heroin led to the irresistible inference that the appellant was not a heavy consumer of heroin; (2) the high morphine content in the appellant's urine sample, as explained by the scientific officer, could be either due to the particular intake of the drug being high or that at the time the urine sample was taken the drug expelled by the body into the urine had not yet passed out. The scientific officer also stated that normally it takes about eight hours for the body to expel the drug into the urine. In the present case, as the sample was taken just 15 minutes beyond eight hours after consumption, the probabilities are that the drug expelled by the body into the urine had not been recently passed out. In any case, this evidence is equivocal and does not establish on a balance of probabilities that the appellant was a heavy consumer of drugs; (3) the appellant's evidence of the sources of his income to support his drug addiction was utterly unconvincing and was quite rightly rejected by the leaned judge; (4) as regards whether the judge should have apportioned a part of the 29.63g of diamorphine for the appellant's own consumption, there was no evidence or sufficient evidence before the learned judge of the appellant's rate of consumption of heroin or of the purity of the heroin he consumed. Any such exercise would have been an exercise in futility and purely whimsical. The learned judge was right not to have considered it at all.

Ismail bin Sumali v Public Prosecutor Criminal Appeal No 16 of 1994 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Chao Hick Tin J).

The appellants were convicted of trafficking in a controlled drug and sentenced to death. On 5 January 1995, the first appellant, who was carrying a red plastic bag was observed with his brother at the front of Blk 384 Bukit Batok East Avenue 3. The second appellant, who had a dark plastic bag, was then seen meeting the first appellant shortly. The two appeared to be doing something with the plastic bags. The first appellant then drove off while the second appellant waited for a taxi. The appellants were apprehended separately. The first appellant gave a statement ('s 121 statement') which disclosed that he had arranged to meet and sell some heroin to the second appellant. As for the second appellant, he had on being questioned after his arrest said 'chit liap', which was understood to mean one pound of heroin. At his flat, he was further heard to say that he had to purchase drugs in large quantities for his own consumption and that he was finished as he was caught with so much. In his defence, the first appellant testified that his brother had met the second appellant. The first appellant denied knowing the second appellant. With regard to the statement recorded from him, he alleged that it was involuntary for during a separate interrogation conducted by the CNB Interrogation Team ('IT'), he had been threatened with a beating unless he told a believable story. Subsequently, when the statement was recorded, these threats were in his mind. He was concerned to ensure that the version told to the recording officer matched the one given earlier to the IT. On 7 April 1995, a further statement was given by him, retracting his earlier one, and disclosing that he was frightened and confused when making the earlier statement. It was also claimed that the first appellant in making the earlier statement was influenced by his brother's entreaty not to implicate him. The second appellant's defence was that he had been offered ginseng by the first appellant. Though the trial judge was prepared to accept that some threats had been made during the IT interrogation, it was found that the threats were not as serious as claimed or that they operated on the mind of the first appellant when the statement was recorded. What was on the first appellant's mind was his brother's entreaty not to implicate him. The further statement and the other evidence were both self-contradictory. The second appellant's defence that he had sought ginseng was rejected as it was inconceivable that the first appellant would have handed over heroin then. On appeal, it was mainly argued by the first appellant that the s 121 statement was wrongly admitted. The second appellant appealed on the basis that his evidence had rebutted the presumption of trafficking.

Held, dismissing the appeals: (1) the judge was correct in rejecting the first appellant's contentions that his statement was involuntary; (2) even without that statement, there was evidence from the second appellant that he had received the plastic bag from the first appellant and not the brother. The first appellant's evidence and further statement could not be believed then; (3) the second appellant could not give any credible explanation of why he had been given heroin instead of ginseng. As heroin was found in the second appellant's urine, it was inferred that the second appellant was a heroin consumer. Though the second appellant maintained that no payment had been made for the ginseng, the first appellant was found with almost S$4,000 in a plastic bag in his possession. The appellants were seen doing something to the plastic bags carried. The inference was that money was exchanged. Incriminating oral statements were also made by him to CNB officers. There was thus no reason to disturb the findings of the trial judge.

Toh Chwe Chuan & Anor v Public Prosecutor Criminal Appeal No 29 of 1995 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Lai Kew Chai J).

The appellant was arrested at Thomson Plaza with 48 sachets of diamorphine, with a net diamorphine content of not less than 69.34g, by CNB officers. The operation leading to the arrest of the appellant was set up following the detention of one Azman. In the presence of CNB officers, Azman had paged for the appellant and after speaking to him, had told the officers that his supplier was going down to Thomson Plaza to meet him. After his arrest, the appellant gave a statement under s 122(6) of the Criminal Procedure Code (Cap 68) (the CPC), stating that the drugs were for his own consumption and not for trafficking. The same evening, the appellant was interrogated by a CNB team led by CNB Sgt Lio. In the early hours of the next morning, the appellant suffered from drug withdrawal and was rushed to Changi Prison Hospital. After his discharge, the appellant was again interrogated by Sgt Lio. Three days after his last interrogation, the first of two statements under s 121(1) of the CPC was taken from him by the investigating officer W/Insp Chong through a CNB interpreter. The second statement was taken three days after that. The appellant challenged the voluntariness of the s 121 statements. He alleged, inter alia, that he was suffering from the effects of drug withdrawal at the time he gave the s 121 statements and that they were concocted by W/Insp Chong and the interpreter. The appellant argued that he should have been sent for medical examinations before and after the taking of the s 121 statements. The trial judge rejected the contentions and admitted the s 121 statements. In the s 121 statements, the appellant described how he had purchased the drugs in Woodlands on the day of his arrest and then gone to Thomson Plaza from Woodlands. The appellant admitted to being in possession of the drugs. His defence was that he was at Thomson Plaza to deliver only ten sachets to Azman. The remaining 38 sachets were for his own consumption. He was consuming drugs at home in Serangoon Gardens that day when Azman paged him. In his hurry to get to Thomson Plaza, the appellant had forgotten to remove the 38 sachets from his briefcase. In the trial, the appellant called expert evidence to show that he was capable of consuming 38 sachets of heroin in 38 to 90 days. Azman also testified for the defence. The trial judge held that even accepting that the appellant was a heavy user of heroin, this did not mean that he could not also traffic in heroin. The trial judge was satisfied that the defence was fabricated by the appellant and Azman, and accordingly convicted the appellant. On appeal, it was argued that the trial judge erred in admitting the statements and that in any event the trial judge ought to have accepted the appellant's defence as it was supported by Azman's evidence.

Held, dismissing the appeal: (1) in the circumstances of the case, there was no need to send the appellant for a medical examination before and after the taking of the statements under s 121(1) of the CPC. In order for the effects of withdrawal from drugs to affect the drug user's medical and psychological condition to render any statement he makes to be involuntary, he must be in a state of near delirium. The appellant was nowhere near such a state. Further, there were no allegations that the appellant had been assaulted either before or during the recording of the statements under s 121 and the appellant had not asked to be sent to a doctor; (2) after reviewing the evidence, the court was also satisfied that the statements under s 121 were not given as a result of threats or inducement. Further, the allegations of concoction made against the recording inspector and the interpreter were fabricated by the appellant; (3) the amendments which affected ss 5 and 17 of the Misuse of Drugs Act (Cap 185) did not affect the right of the appellant to rebut the presumption of trafficking by showing on a balance of probabilities that the 38 sachets were for his own consumption; (4) given the rather unsatisfactory state of evidence on whether Azman and the appellant got together to concoct the defence about delivering only ten sachets, the benefit of the doubt should be given to the appellant; (5) however, even accepting that the appellant was a hard-core addict capable of consuming 38 sachets in 38 to 90 days, and that the appellant was at Thomson Plaza to deliver ten sachets, it did not follow that he was not also trafficking in the 38 sachets. Apart from the appellant's bare allegation, all the evidence pointed away from his defence. The appellant had, therefore, failed to rebut the presumption of trafficking; (6) (per curiam) it was not necessary for the appellant to minutely detail all his defences in his s 122(6) statement. However, this did not mean that the court must accept what the appellant said as true. This must still be weighed against the other evidence. It may not always be clear when an omission to state details becomes an omission to state material particulars. This was a matter for the trial judge on an evaluation of all the evidence at the trial.

Goh Soon Huat v Public Prosecutor [1995] 1 SLR 634 Court of Appeal, Singapore (Karthigesu and LP Thean JJA and Goh Joon Seng J).

Foong Seow Ngui & Ors v Public Prosecutor [1995] 3 SLR 785 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Lai Kew Chai J).

See CRIMINAL LAW, Vol 4, para 499.

On 24 May 1988, acting on information received, a team of officers from the Central Narcotics Bureau ('CNB') kept watch on the ap-pellant and his car at the President Merlin Hotel. At about 11am, the appellant came out of a lift of the hotel into the lobby area accompanied by one Ng Ah Chew ('Ng'), one Yeo Geok Soo ('Yeo') and a Thai lady named Oi Thong Anu ('Oi'). Oi was carrying a white plastic bag which was handed to her in the lift by the appellant. They got into the appellant's car and the appellant drove off to the Beauty World Centre along Upper Bukit Timah Road. At the carpark of the Beauty World Centre, they were stopped and arrested by the CNB officers. Some items of clothing and a bundle wrapped in newspapers were found in the plastic bag. The bundle contained a big packet and two small sachets of brown, granular substance. Subsequently, on analysis by the Department of Scientific Services, the substance in the big packet was found to contain, in total, not less than 38.5g of diamorphine. In the afternoon of 24 May 1988, the CNB officers returned to the hotel to conduct a search of some of the rooms. They arrested one Song Wan Gee ('Song') who was loitering outside one of the rooms. The appellant made two statements to CNB officer Lim Chei Yoo ('Lim'), acting as both interpreter and recorder. Lim had taken part in the surveillance, arrest and search process. The statements were admitted into evidence at the end of the trial-within-a-trial by the trial judge. In the statements, the appellant admitted that the drugs belonged to him, that he put the drugs in the plastic bag and was going to deliver the same to one 'Kim Boo'. At the trial, Ng and Chew, who were initially charged together with the appellant, gave evidence for the prosecution. They disclaimed any knowledge of the drugs. Further, they said that except for the plastic bag handed to her, Oi was not carrying anything else with her that morning. Song also gave evidence for the prosecution. Song admitted being involved in the appellant's drug activities together with one Ah Chwee. However, he said the drugs recovered by the officers belonged to the appellant. The appellant's defence was a complete denial of any knowledge of the heroin which was found in the plastic bag. He believed he was only carrying dirty clothing to the laundry as a favour for Ah Chwee. The items of clothing did not belong to him. The trial judge rejected the appellant's defence and convicted him of trafficking by transporting the diamorphine. On appeal, the appellant contended that he was deprived of a material witness who was able to give crucial evidence because the prosecution did not produce or offer Oi as a witness. The appellant further contended that the statements made by the appellant should not have been admitted because they were induced by promises made to the appellant by Lim. Alternatively, the statements were translated and recorded by Lim who was likely to be biased. Finally, he contended that the incriminating evidence of Ng and Yeo who were initially charged together with the appellant and the evidence of Song who was an accomplice should not have been accepted by the trial judge.

Held, dismissing the appeal: (1) the prosecution had an undoubted discretion whether or not to call a particular witness, provided there is no ulterior motive in the decision. A witness who is available to, but not called by the prosecution should be offered to the defence. There are limits to the duty to make a witness available to the defence. The essence of the discretion and the duty is to ensure fairness of the trial and to the accused. The prosecution should not conceal material evidence or witnesses from the court. The duty may be discharged, in appropriate cases, by giving the particulars of such witnesses to the defence; (2) Oi was not called by the prosecution as a witness or offered to the defence. He was, however, personally acquainted to the appellant. Furthermore, Oi was offered to the defence at the preliminary inquiry. Action should have been taken then to secure Oi as a witness. The absence of Oi as a witness was brought about by the inaction of counsel for the appellant; (3) on a careful consideration of the evidence on the voire dire, the statements were found to be made without any promises proceeding from Lim or any other person in authority; (4) in general, bias on the part of the interpreter or recording officer does not constitute 'inducement, threat or promise' within the ambit of s 24 of the Evidence Act (Cap 97) or s 122(5) of the Criminal Procedure Code (Cap 68). Whether there is a basis, apart from the statutory provisions, for the court to exclude such statements remains to be considered when the appropriate opportunity arises and the issue is fully addressed. In the present case, the allegation of bias on the part of Lim was based on his role as an investigating and arresting officer. The likelihood of bias was only a fanciful one. In the event, the statements were properly admitted into evidence; (5) there was no legal presumption that an interested witness should not be believed. Such a witness is entitled to credence until cogent reasons for disbelief can be advanced in the light of evidence to the contrary and the surrounding circumstances. However, where evidence is given by a witness who may be regarded as having a purpose of his own to serve, the judge must direct his mind to the danger of convicting on the uncorroborated testimony of such a witness. This was not a rule of law but depended very much on the circumstances of each case. If there is clear and convincing evidence to such an extent that an appellate court was satisfied that no miscarriage of justice has arisen by reason of the omission of the direction, the court will not interfere. Even if Ng and Yeo were interested witnesses, it was clear that the trial judge had not relied on their 'uncorroborated' testimony. There was clear and convincing evidence by the prosecution to prove that the appellant was in possession of the drugs.

Tan Ah Lay v Public Prosecutor Criminal Appeal No 14 of 1993 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The respondent, Yeo, Tee and Lai were Malaysians. On 13 May 1991, they arrived in Singapore from Johore. The respondent was driving his Proton Saga JBU 365 with Yeo as his passenger. Lai and Tee came in their own cars. Central Narcotics Bureau ('CNB') officers met Yeo, Tee and Lai and discussed the sale of 5 pounds of diamorphine. After the deal was concluded, it was agreed that the drugs were to be collected at Geylang. As Lai was unsure of the way, he asked one of the officers to lead him. The party was followed discreetly by more CNB officers to a coffee shop at Lorong 22 Geylang. Lai got out of his car and went up to the respondent who handed him the key to JBU 365 which was parked at Aljunied. The group then drove to Block 109 Aljunied where two plastic bags were taken out of the Proton Saga and handed to one of the CNB officers. The contents were found to be 197.03g of diamorphine. Yeo, Lai, Tee and the respondent were then arrested and charged with trafficking. At the trial, the respondent gave evidence in his own defence. He claimed that he had merely followed the instructions of Yeo. He claimed he had no knowledge of the drugs. His testimony was supported by Yeo and Tee who testified that the respondent had no knowledge of the drugs. The trial judge convicted the other three accused but acquitted the respondent. The public prosecutor appealed.

Held, allowing the appeal and sentencing the respondent to death: (1) the charge against the respondent was that of abetment by conspiracy. The ingredients that the prosecution had to prove were the existence of a conspiracy to traffic in the drugs and that the trafficking was actually carried out. That the second limb had been fulfilled was not in dispute. The essential question was whether it could be said beyond a reasonable doubt that the respondent was a party to that conspiracy; (2) the essence of a conspiracy was agreement and in most cases the actual agreement would take place in private in such circumstances that direct evidence of it will rarely be available. In fact, there was no requirement in law that the alleged conspirators should remain in each others's company throughout or at all; (3) one method of proving a conspiracy would be to show that the words and actions of the parties indicate their concert in the pursuit of a common object or design, giving rise to the inference that their actions must have been co-ordinated by arrangement beforehand. These actions and words do not of themselves constitute the conspiracy but rather constitute evidence of the conspiracy; (4) the primary facts raised by the prosecution was that the respondent had come into Singapore with the other conspirators, that they had met at Woodlands Checkpoint, that at Block 109 Aljunied the drugs were transferred into the boot of his car and that he gave his car key to Lai to facilitate the later collection of the drugs. At the close of the prosecution case, the evidence against the respondent was actually the strongest as compared to that against the other conspirators, as quite apart from the other evidence adduced against them, the respondent had to rebut the presumption of knowledge of the drugs in his car on a balance of probabilities while the other three only had to raise a reasonable doubt; (5) upon a detailed review of the notes of the cross-examination of the respondent as well as the other evidence against him, the primary facts as adduced by the prosecution indicated that the entire transaction, from the moment the conspirators met in Woodlands to the eventual delivery of the drugs to the CNB officer, was coordinated beforehand, with the respondent being a participant in the common design to traffic. Since the drugs were indisputably in his car the respondent knew he had to rebut the presumption of knowledge on the standard of a balance of probabilities, and in doing so he had tried to tailor his evidence in such a way as to distance himself as far as possible from the other conspirators by asserting that he never bothered to ask any questions as to what they were up to. However, this endeavour became a little over-enthusiastic and exaggerated to the extent that they were clearly shown to be lies; (6) the mere fact that an accused tells lies should not be taken as evidence of his guilt. But lies can in certain circumstances amount to corroboration because it indicates a consciousness of guilt. The lie must be deliberate, it must relate to a material issue, the motive for the lie must be a realization of guilt and a fear of the truth and the statement must be clearly shown to be a lie by independent evidence. The court was of the view that the lies of the respondent were a deliberate attempt to dissociate himself from his conspirators as well as to maintain ignorance of the drugs in his car; (7) before reaching a conclusion on facts an appellate court should first consider the views of the trial judge as to the credibility of the witnesses, the presumption of innocence in favour of the accused, the right of the accused to the benefit of doubt, and the slowness of an appellate court in disturbing a finding of fact by the trial judge who had the advantage of seeing the witness; (8) the respondent's evidence at some points was quite incredible. The court was firmly convinced that he was not a credible witness and had not succeeded in rebutting the presumption of knowledge. His acquittal was against the weight of evidence.

Public Prosecutor v Yeo Choon Poh [1994] 2 SLR 867 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu JA and Chao Hick Tin J).

The accused persons were arrested on 6 June 1991 at Changi Airport. The first accused was found in possession of 2,703g of diamorphine. The drugs were concealed in talcum powder bottles found in the first accused's luggage. All three accused persons were followed from Lion City Hotel to Changi Airport by narcotics officers. The first accused was charged with trafficking, and the second and third accused with trafficking in common intention with the first accused, alternatively, for abetting the first accused. At the trial, the prosecution adduced evidence that the first accused was seen in the hotel room of the second and third accused on 6 June 1991 and that all three left the Lion City Hotel at the same time. Further evidence was led to show that all three accused were seen together at various times in Singapore and that the first and second accused's return airline tickets had been confirmed by the same person. When his defence was called the first accused testified that he was not at the Lion City Hotel on 6 June 1991. He also denied ownership of the luggage in which the drugs were found.

Held, acquitting the second and third accused without calling their defence but convicting the first accused: (1) the prosecution evidence was weak and insufficient against the second and third accused. The circumstantial evidence against them did not warrant the drawing of an irresistible inference, whether taking the elements of the circumstantial evidence separately or together, that the second and third accused's acts could not be explained on any other hypothesis except their guilt. No drugs were found in their luggage. There was an absence of presumptive evidence against the second and third accused. The burden of proof therefore remained throughout, in the circumstances, on the prosecution to prove mens rea on the part of the second and third accused. The circumstantial evidence fell short of the standard of proof required to be marshalled for the drawing of any irresistible inference against the said accused persons in respect of the offences charged. Their behaviour might well be said to be suspicious but that was far from being enough; (2) the motive for the lie must be a realization of guilt and it must be clearly shown to be a lie by independent evidence. The lies referred to by the prosecution did not implicate the second and third accused in a material particular, touching on the issue of knowledge or consent of the first accused's possession of the drugs or their subsequent transport as such from Lion City Hotel to the airport; (3) there were differences in the evidence of the prosecution witnesses. However, these were not significant. Such differences as not being able to state the exact location of the three accused, as to whether all the accused came out of the hotel together, were bound to occur where different witnesses were involved due to differences in perspective of the witnesses and as to what and on whom they were concentrating their attention; (4) the prosecution had relied on certain lies told by the second and third accused in their statements. Before a lie can be treated as corroborative, it must be deliberate; it must relate to material facts;all the witnesses had identified the first accused. He was conspicuously dressed and his luggage was outstanding. The first accused's defence was a litany of lies. The denials he made were outrageous in the face of the eye-witness testimony of the prosecution witnesses.

Public Prosecutor v Chief Hyicenth Ihejirika & Ors Criminal Case No 41 of 1992 High Court, Singapore (Amarjeet Singh JC).

The accused was charged with trafficking in 39.2g of diamorphine found in the bedroom of the flat in Potong Pasir by virtue of s 17 of the Misuse of Drugs Act (Cap 185). T and L had been arrested by the CNB. T said that his supplier was staying at a flat on the second story of Blk 109 Potong Pasir and he surrendered a bunch of keys to the flat in Potong Pasir. The officers went to the Potong Pasir flat and opened the door using the keys recovered from T. The accused and one H were found in the master bedroom. A 'CAAS' plastic bag containing the drugs, an 'ang pow' packet and an electronic weighing scale were recovered from a drawer in the room. One CNB officer, P, testified that when questioned, the accused admitted that the bag belonged to him after some hesitation. A bunch of keys recovered from the accused's trouser pockets could be used to open the bedroom door. T gave evidence for the prosecution. He testified that he had rented the room at the Potong Pasir flat and gave a key to the accused who was his friend and not to anyone else. T said he slept at the flat but the accused did not. T also said that he knew there were drugs at the Potong Pasir flat as the accused had gone to the flat earlier with a bag and he roughly knew that the accused had taken drugs from the bag for him (T). A trial-within-a-trial was conducted for the accused's cautioned statement recorded on 7 February 1992 at 1.55am and the long statement recorded on 15, 18 and 26 February. An additional injury of a 3.5cm abrasion on the accused's left knee was observed by the doctor in the post-statement examination. The doctor testified that it was possible that he missed this injury in the earlier examination, or that the injury became more obvious subsequently or that it could have been a fresh injury. The accused testified that he was assaulted by four CNB officers, one of them being a Chinese officer with a tattoo on his lower arm and denied that the injury was caused by his diving through the window. T, L, H and the accused were later taken to the station. L testified that he had been assaulted by CNB officers when he was arrested. H also said that he was assaulted.

Held, acquitting the accused: (1) and (e) the existence of the mysterious officer with the tattoo alluded to by the other witnesses as well; (2) further, compliance with s 122(6) of the CPC may also be relevant to the admissibility of such statements, particularly in circumstances where the failure to comply is so serious as to render the statement inadmissible as being involuntary or having been made while under some misapprehension. In such instances, it cannot be said that non-compliance can only affect the inferences that may be drawn under s 123(1). There was repetition in the typewritten charge and the handwritten charge. The question whether the accused had been misled into thinking that there were two different charges against him, although not established in evidence, is nonetheless a factor to be considered as part of the circumstances relevant to the consideration of the admissibility of that statement. The second question is whether it is material that the charge which the accused faced when the statement was recorded was for possession of the gross weight of the granular substance with common intention shared among H and T whilst the charge before the court was for possession of the net weight of the diamorphine it actually contained and for trafficking alone. The weight of the drugs may not be remedied as it is not possible for the DSS to have furnished the net weight in time for the accused to be formally charged in court. The material point in this case is that the final charge is for trafficking alone and not with common intention. In this case, the argument is not strong that the accused has been misled as the charge against him is the same. There may be other cases where the difference is far more material; (3) although the investigating officer did not observe any signs of ill-health, the station lock-up diary, however, appears to bear out the accused's testimony that he had complained to the investigating officer but was scolded instead. The diary showed that on 15 February 1991, 0023hrs, the accused complained that he was not feeling well. The investigating officer was informed at 0030hrs and he gave instruction to take the necessary action if required. No further action appeared to have been taken as there were no further relevant entries in the diary. The investigating officer's evidence that he did not inspect the conditions in the lock-up and therefore, cannot confirm the accused's complaint that there were no blankets or pillows could not be believed as his own evidence and the entries in the station lock-up diary shows that he had gone to fetch the accused from the lock-up on several occasions and it could not have been that he did not observe the conditions of the lock up. The accused was denied visitation rights until after the last part of his statement had been recorded. The other parts of the statements were recorded by a question and answer method. Cross-examining the accused while recording his statement would render it inadmissible if it amounted to oppression. It is not possible, without looking at the statement, to determine whether the questions were by way of cross-examination. However, that was unnecessary as on the totality of the evidence, the court was not satisfied that the statement was voluntary. Furthermore, the statement recorded did not contain at the beginning that the charge had been read and explained so that the accused would know the purpose for which his statement was being taken. The long statement was not admitted in evidence; (4) the words in s 17 of the Misuse of Drugs Act, 'any person who is proved to have had in his possession', do not preclude the prosecution from relying on the legal presumptions in s 18. The presumptions were established by legislature as an aid to the prosecution to prove something which would otherwise be very difficult to prove beyond a reasonable doubt. The onerous effect of such a presumption is alleviated by the fact that such presumptions are rebuttable. If the new s 17 precludes the application of s 18, then, the amended s 17 would have failed to achieve the intended effect which appears clearly on the face of the amendment to enable the prosecution to make out a case of trafficking on the basis of possession of a certain quantity of drugs. And if this is so, s 18 would no longer have any use whatsoever; (5) in looking at the evidence of the defence, the judge as a decider of fact must keep an open mind as to the accuracy of any prosecution witness until the defence has tendered such evidence as it may want to call and at the end of the prosecution's submission, the court must examine the evidence adduced and assess the veracity and accuracy of the witnesses and consider whether the prosecution has proved the guilt of the accused beyond reasonable doubt. The evidence of P, in the light of the inconsistencies in the evidence of the other witnesses, therefore, could not be accorded much weight and his testimony that the accused admitted ownership of the drugs could not be believed; (6) under s 135 of the Evidence Act (Cap 97), a court is no longer required to warn itself of the danger of relying on the testimony of an accomplice. Although T is not strictly within the definition of an accomplice, it may be said that he had a purpose of his own to serve in giving evidence against the accused as the drugs were found in the room that he had rented and that he himself had the keys to the room. T had pleaded guilty and was sentenced to imprisonment and could be said to have had nothing to gain in giving evidence. His evidence therefore clearly needed corroboration; (7) the accused's statement recorded under s 122(6) of the Criminal Procedure Code (Cap 68) ('the CPC') was not admitted for the following reasons: (a) the accused's allegation of assault was supported by the other witnesses who had said that they were assaulted; (b) there was doubt as to whether the four arrested persons were kept together or separate and thus, there was no corroborative evidence of whether there was an assault; (c) the accused was not given food from the time of his arrest to the time the statement was taken; (d) it was likely that accused was suffering from severe withdrawal symptoms when the statement was recorded on 7 February 1991 at 1.55am as he was observed on 7 February 1991 at 1.50pm to be suffering from severe withdrawal symptoms rarely seen in Singapore;on the question of possession, the evidence against the accused apart from the presumption was purely circumstantial in that there was nothing in the evidence to create a nexus between the drugs found in the cupboard and the accused. There was no evidence that he had known of the presence of the drugs in the cupboard as no weight was placed on the evidence of T and P. The accused admitted that he had the keys to the main door of the flat and the bedroom. However, it was difficult to make the inference from the fact that the accused was in the bedroom when he was arrested and that he had the keys to the premises that he knew of the presence of the drugs in the cupboard. The only evidence of this was that of T and P which the court did not attach great weight to. The mere fact of the possession of the keys was insufficient to show that the accused was truly in possession of the drugs. The circumstances under which the accused was arrested were not such as to point only to the guilt of the accused.

Public Prosecutor v Theo Teo Leng Criminal Case No 71 of 1992 High Court, Singapore (Goh Phai Cheng JC).

The accused was charged with trafficking in 107.7g of diamorphine on 13 July 1990. He was arrested on 11 July 1990 on suspicion that he trafficked in drugs. Two sets of keys were seized from his person. He then led the arresting officers to a house in Geylang Road. The door to the house was opened with one of the keys taken from the accused. The arresting officers were led by the accused to a wardrobe from which the drugs were recovered. The officers also found a 'daching', empty plastic packets, and three candles with the drugs. The accused told the arresting officers that the drugs belonged to one Ah Jaw. This person, Ah Jaw, was arrested and charged with the accused. He was subsequently convicted in the subordinate courts of other offences and the joint charge of trafficking with the accused was withdrawn. Ah Jaw was not called to give evidence. The accused remained silent after his defence was called.

Held, convicting the accused: (1) the accused was in possession of the drugs found in the room which he had rented. Further, he had led the officers who used the keys in the accused's possession to effect entry and to finally recover the drugs. He knew the bag contained drugs; (2) even without the presumptions in the Misuse of Drugs Act (Cap 185), it was reasonable to infer, from the presence of the plastic packets, candles and 'daching' scale together with the drugs that the accused had the drugs in his possession for the purposes of selling or distributing; (3) the act of possession included possession by a servant or bailee of drugs; (4) in the instant case, the accused knew that the briefcase contained drugs and hence, had possession of the drugs as a servant despite the fact that someone else might have been the owner of the drugs; (5) the presumption of trafficking may be rebutted by evidence without calling any witnesses and by relying on the prosecution evidence. However, the submission that the accused was merely in passive possession of the drugs could not by itself rebut the presumption.

Public Prosecutor v Ho Yan Fee Criminal Case No 38 of 1992 High Court, Singapore (Rajendran J).

The appellant was charged with trafficking in 676.8g of diamorphine. The drugs were found in a briefcase belonging to the appellant which was in an apartment which the appellant rented. In his cautioned statement, the appellant stated that the drugs were given to him by a Malaysian. The admissibility of this statement was challenged by the appellant but after a trial-within-a-trial, the statement was admitted. In his defence, the appellant stated that he had lent his briefcase to one 'Pui Kia' and the drugs must have been put there by 'Pui Kia'. No other name for 'Pui Kia' was given and the authorities were unable to trace such a person. The appellant was convicted and sentenced to death. He appealed. He contended that the cautioned statement was wrongly admitted. He further contended that at the time of the discovery of the drugs, he was in the custody of the CNB officers and therefore, could not have committed the actus reus of the offence as set out in s 2 of the Misuse of Drugs Act (Cap 185) ('the Act').

Held, dismissing the appeal: (1) in his grounds of decision, the trial judge stated that an accused who is alleged to have made a cautioned statement needs to prove on a balance of probabilities that he did not make it voluntarily for the statement to be rendered inadmissible. The trial judge had misdirected himself in considering the evidence adduced during the voir dire because it was still for the prosecution to prove beyond a reasonable doubt that the statement was made voluntarily. The trial judge therefore applied the wrong burden of proof. As it was impossible to say what the result would have been had the trial judge proceeded correctly, the statement must be excluded from the evidence to be considered for the purposes of the appeal; (2) notwithstanding that the statement had been wrongly admitted, this would not be sufficient to justify allowing the appeal. There was other evidence sufficient to justify the conviction; (3) the proper interpretation of s 17 of the Act was that it presumed the act of possession to be an act in the course of selling, giving, transporting and so on, or offering to do so and thus, the actus reus of possession was presumed to be the actus reus of trafficking. That being so, an accused person presumed to be in possession and to traffic would have to rebut the presumption by adducing satisfactory evidence that he was not in possession for any of the overt acts of trafficking in s 2 of the Act; (4) as the act of possession could be presumed to be any of the seven overt acts of trafficking, this might be unduly burdensome for an accused to show that he was not in possession of the drugs in the course of performing any of these acts. In that case, therefore, the particulars in the charge with respect to the manner of trafficking should be more specifically stated and the charge should state which of the several overt acts of trafficking in s 2 the accused was charged with; (5) this problem would be met by amending the charge to include the words 'by offering to sell or distribute' before the mention of the quantity of drugs; (6) the Court of Criminal Appeal has the power to amend the charge but this must be done judiciously and the possibility of prejudice must be of utmost concern when a charge is amended. In the present case, the appellant's defence had been one of complete denial of the act of possession. There would therefore be no prejudice occasioned by the amendment as the defence, if believed, would be a complete answer to the charge; (7) the large quantity of drugs having been found in the appellant's briefcase, the appellant was presumed to have possession of the drugs and to have trafficked in the same. In addition, paraphernalia associated with the handling of the drugs for sale and distribution were found in the room. The defence of the appellant that he had no knowledge of the drugs and that they belonged to 'Pui Kia' was not accepted.

Koh Aik Siew v Public Prosecutor [1993] 2 SLR 599 Court of Criminal Appeal, Singapore (Yong Pung How CJ, LP Thean and Chao Hick Tin JJ).

The accused was arrested on 2 August 1990 at the ground floor of Textile Centre, Singapore on suspicion of being a drug trafficker. Upon arrest, he put up resistance but was overpowered. The arresting officer found a newspaper packet where the struggle took place and it contained ten packets of heroin. The prosecution stood down this charge of being in possession of ten packets of heroin. The accused acknowledged that it was his and further led the arresting officers to his rented flat in Textile Centre. The accused also led the arresting officer to a cupboard where, among other things, 74 packets of heroin, numerous plastic packets, an electronic weighing scale, aluminium foil and a newspaper was found. The accused indicated that the 74 packets of drugs belonged to him and the net weight was 38.02g. The DSS officer also gave evidence that the newspaper leaf which was used to wrap the ten packets, in relation to the possession charge which was stood down, came from the newspaper which was kept in the cupboard together with the 74 packets, the subject matter of the trafficking charge. The defence counsel objected to the admissibility of this evidence on the ground that it was prejudicial to his client. Defence was called and the accused elected to give evidence. The accused stated that the drugs were meant for his own consumption and he had pre-packed them to enable him to consume only a fixed quantity for a day. He further stated that in the lock up, after his arrest, he suffered withdrawal symptoms but the DSS urine analysis did not indicate any presence of morphine. The defence also contended that since there was no overt act of trafficking the charge should be amended to possession of dangerous drugs.

Held, convicting the accused: (1) the evidence of the DSS officer pertaining to the newspaper was admissible because it was relevant and its probative value outweighed its prejudicial effect; (2) there is no need for the prosecution to prove the overt act of trafficking as the presumption in s 17 of the Misuse Of Drugs Act (Cap 185) presumes possession of more than 2g of diamorphine to be trafficking unless rebutted by the accused; (3) the accused failed to establish, on a balance of probabilities, that the drugs was meant for his own consumption; (4) the possession of paraphernalia like the weighing scale and numerous plastic packets indicated that the heroin was not for personal consumption; (5) further, the defence that the drugs were pre-packed because the accused wanted to consume a fixed quantity of drugs per day could not be substantiated in view of the varying amounts of drugs packed in the 74 packets; (6) the accused's urine analysis also did not support the contention that he was an addict.

Public Prosecutor v Phang Sow Lam Criminal Case No 18 of 1992 High Court, Singapore (Rubin JC).

The appellant was charged and tried in the High Court on a charge of trafficking in 147.8g of diamorphine. Evidence was led to show that the appellant was arrested by narcotics officers on 13 August 1990. He led the officers to his apartment at St George's Road where the drugs were discovered. The appellant was in possession of the keys to the flat at the time of the arrest. It was not disputed that the appellant was in possession of the drugs. However, he contended that there could be no offence of trafficking because none of the overt acts set out in s 2 of the Misuse of Drugs Act (Cap 185) ('the Act') was proved. The appellant was convicted and he appealed.

Held, dismissing the appeal: (1) the clear words of s 17 of the Act were that an offence of trafficking was presumed from the mere act of possession of more than a certain quantity of controlled drugs. It could not be that the presumption served no purpose in cases where the accused was only proved to be in possession and was usefully invoked when there was the act of possession and some additional evidence of trafficking; (2) the phrase 'presumed to traffic' in s 17 clearly indicated that the accused was presumed to be in the course of trafficking at the time he was proved to be in possession. The overt acts of trafficking set out in s 2 of the Act may be a continuous progressive act and possession may be an act in the course of performing any of the overt acts. The crucial proposition was that an act of possession could theoretically amount to an act of trafficking if it was committed in the course of such an ongoing and progressive overt act of trafficking. Thus, when s 17 was invoked, the act of possession was presumed to be an act of possession in the course of selling, giving, transporting and so on, or offering to do so. The act of possession was therefore presumed to be that of trafficking; (3) this interpretation might, however, be unfair to the accused as an act of possession could be presumed to be any, or an offer to do any, of the seven overt acts of trafficking. Therefore, if this interpretation was to be adopted, the particulars in the charges with respect to the manner of trafficking should be specifically stated. The charge should state the form of trafficking, that is, which of the overt acts of trafficking the accused was charged with; (4) the Court of Criminal Appeal had the power to alter the charge. This power must, however, be exercised judiciously; (5) the appellant in the instant case had remained silent after his defence was called and it could not be said that a charge that was too widely framed might deprive him of a chance to establish a defence; (6) the charge was amended by inserting the words 'by offering to sell or distribute' after the words 'did traffic in'.

Lee Ngin Kiat v Public Prosecutor [1993] 2 SLR 511 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Goh Joon Seng and Karthigesu JJ).

The accused was charged with trafficking in 37.26g of diamorphine. The said drugs were found in a flat occupied by the accused. The prosecution led evidence to show that on 31 July 1991, officers from the Central Narcotics Bureau ('CNB') arrested the accused and brought him to his rented flat. There, the accused led the officers to the toilet which was locked. The accused then showed the officers where the key to the toilet was located. When the toilet was opened, the drugs were recovered from a pail that was suspended from the ceiling. The officers also found a 'daching' stained with diamorphine under the bed in the master bedroom. They also found several plastic sachets. The accused gave evidence in his own defence. He claimed that he did not occupy the said flat. He testified that he had sublet the premises to a person named Soh Chew and that he (the accused) only visited the flat to collect his mail. The accused also claimed that other persons, named Mimi and Ah Ho, visited and had use of the flat.

Held, convicting the accused: (1) the prosecution has to prove that the accused had possession in fact and that he had knowledge of the drugs in the pail. This animus possidendi was a matter of fact to be inferred from the surrounding circumstances; (2) in order to establish common law possession, there must be exclusivity of possession by the accused. The court disbelieved the accused's evidence about Mimi using the flat. Mimi was nothing more than an afterthought introduced by the accused himself to increase the number of occupants of the flat. Mere presence in the premises did not make persons occupiers and hence, have sufficient exclusivity of possession of the drugs; (3) the only person who merited consideration was Soh Chew. It was not put to the owner of the flat that Soh Chew was occupying the premises. The essence of the rule of putting a point to a witness in cross-examination was really fair play whereby one side would not be allowed to steal a march on the other side. The flip side of the coin was that not only would the witness to which the point had not been put be more likely to be believed but accordingly, the side which failed to put the point would be less likely to be believed; (4) the court came to the conclusion that Soh Chew was a mere visitor. The accused was not an impressive witness and contradicted himself several times. The court disbelieved his story. The accused was not able to rebut the presumption of trafficking on a balance of probabilities.

Public Prosecutor v Oh Teh Hwa Criminal Case No 5 of 1993 High Court, Singapore (Lai Kew Chai J).

On 13 August 1990, the accused was arrested by a team of narcotics officers and taken to his apartment at St George's Road. The access was gained to the apartment by means of a set of keys recovered from the accused. In the apartment, the officers recovered 50 plastic packets of powdery substance. When asked what the substance was, the accused said they were 'Peh Hoon'. The substance was analysed and found to contain 147.68g of diamorphine. At his trial, the accused chose to remain silent after his defence was called.

Held, convicting the accused: (1) generally, a party whose case depends upon the existence or non-existence of any particular fact must prove that fact. A legal presumption obviates that need and infers the existence of one fact from the existence of some other fact founded upon a previous experience of their connection and provides that fact as proved leaving it to an adversary to marshall evidence on a balance of probabilities to negative that fact. Ordinarily, an inference of fact, no matter how clear, may not be sufficient. A legal presumption raising an inference was always sufficient because the law gives it this effect. It was much stronger than a mere inference. A presumed fact was also recognized as a type of circumstantial evidence and may be specially invoked to advance some social policy. In the case of the presumption under the new s 17 of the Misuse of Drugs Act ('the Act'), it was clearly made to more effectively control the menace of drug trafficking and drug abuse; (2) the presumption under s 17 obviated the necessity on the part of the prosecution to overtly prove the act or the state of affairs denoting the activity referred to in s 2 of the Act. The presumption, which was rebuttable, provided prima facie proof of the required criminal elements once possession with knowledge of the controlled drug above the stipulated amount (more than 2g in the case of diamorphine) was proved thereby escalating the act of illicit possession to one of trafficking. Where the amount involved was more than 15g of diamorphine, the offence became capital under the Act; (3) the accused had not shown, on a balance of probabilities, that he did not intend to part with possession of the controlled drug in his possession in any of the ways set out in s 2 of the Act or shown otherwise that he was not a trafficker. Once a fact was found according to a presumption and the presumption was not answered, it became conclusive; (4) when an ambiguous or obscure statutory provision needed to be construed or where the literal meaning led to absurdity, the court could look at the particular history of legislation or the Hansard. But in construing such material, the courts must act guardedly.

Public Prosecutor v Lee Ngin Kiat [1993] 2 SLR 181 High Court, Singapore (Amarjeet Singh JC).

[Annotation: Affirmed on appeal. See [1993] 2 SLR 511.]

The two accused, Gabriel and Paul, were charged with trafficking in not less than 538.5g of diamorphine. The prosecution's main evidence was given by one Plummer Wilbert, a special agent with the United States Drug Enforcement Administration. He gave evidence that he had come to Singapore to collect a quantity of diamorphine from a Nigerian by the name of Igbu. On 9 December 1990, he met Gabriel at the Strand Hotel. Gabriel identified himself as Igbu. They negotiated the delivery of the drugs. This conversation was observed by strategically located CNB officers. On 10 December 1990, Gabriel called Plummer and informed him that he (Gabriel) would meet Plummer at the Dai-ichi Hotel. The CNB officers maintained a surveillance of the hotel and Gabriel and Paul were seen entering the hotel at about 7.30pm. Both of them were each carrying a briefcase. They went upstairs to their room which was registered in both their names. Gabriel then met Plummer at the hotel's coffeehouse and brought him up to Gabriel's room. There, Gabriel showed Plummer two briefcases. Plummer opened the first briefcase and was shown a false bottom under which the drugs were hidden. Plummer took the first briefcase to his own room where he handed it over to CNB officers. Gabriel and Paul were then arrested in the hotel lobby and taken back up to their room. The second briefcase was seized and found to contain a false bottom under which more drugs were recovered. This second packet of drugs was analysed and found to contain not less than 538.3g of diamorphine. In his defence, Gabriel claimed that the briefcase belonged to a friend and he did not know of their contents. Paul also claimed that the bag belonged to Uche.

Held, convicting both accused: (1) the court was satisfied that Plummer was telling the truth and accepted his evidence; (2) the defence built around the character named Uche left much to be desired. Both accused did not even know where he was staying. They could not provide any data about him apart from the fact that he was Nigerian, often seen around the Strand Hotel and that he was a popular and humorous character known to all Nigerians in Singapore; (3) the key to the accused person's room in which the briefcase was found was seized from Gabriel immediately following his arrest at the hotel lobby. Therefore, although the briefcase was not in his physical possession at the time of his arrest, it was in the said room and the key to this room was in Gabriel's physical possession. By operation of s 18 of the Misuse of Drugs Act (Cap 185) ('the Act'), Gabriel was presumed to be in possession of the 538.5g of diamorphine; (4) Paul, by virtue of his being the registered occupant of the same room, was in law entitled to the keys of that room. Though the key to the room was in the physical possession of Gabriel, Paul could demand and obtain that key either from Gabriel or from the hotel as he was the registered occupant. Under s 18 of the Act, he was therefore presumed to be in possession of the drugs; (5) under s 17 of the Act, possession of more than 2g of diamorphine having been proved, both accused were presumed to be trafficking in that controlled drug. Both the accused had not rebutted that presumption.

Public Prosecutor v Okonkwo & Anor [1993] 3 SLR 610 High Court, Singapore (Rubin JC).

[Annotation: Affirmed on appeal. See [1994] 1 SLR 337.]

The appellant was charged in the High Court for trafficking in 106.8g of diamorphine. The prosecution's evidence revealed that the Central Narcotics Bureau had used an agent provocateur to negotiate a sale of one pound of heroin with the appellant. On 29 May 1989, the appellant contacted the agent and informed him that the drugs had arrived and arranged to meet at Woodlands Town Central. The CNB then deployed a team of officers to follow the appellant. The CNB officers observed the appellant driving a Malaysian registered car from Jalan Molek to Woodlands Town Central. The appellant was arrested at Woodlands. The appellant told the officers that he was a worker and that the drugs were in the spare tyre. Two packets of a white substance were found in the spare tyre which were analysed to contain not less that 106.8g of diamorphine. In his defence, the appellant denied knowledge of the drugs and said that they did not belong to him. He was convicted and sentenced to death. He appealed.

Held, dismissing the appeal: (1) the crucial evidence was that of the agent. The trial judge was satisfied and accepted his evidence as true, and his credibility had not been questioned. On the basis of the agent's testimony, the appellant must have known that the drugs were hidden in the spare tyre; (2) in any event, the appellant had not rebutted the presumptions under ss 17 and 18 of the Misuse of Drugs Act (Cap 185).

Gan Kok Cheng v Public Prosecutor Criminal Appeal No 30 of 1992 Court of Criminal Appeal Singapore (Yong Pung How CJ, LP Thean and Chao Hick Tin JJ).

Both accused were Hong Kong nationals. On 26 April 1989, the accused persons had disembarked at Changi Airport from a Thai Airways flight from Phuket. They were arrested at the transit lounge of Changi Airport and found to have bags of drugs strapped to their legs. The total amount found was 4,829.5g of diamorphine. They were charged with importing the said drugs into Singapore. At trial, the accused were called upon to enter their defence and they chose to remain silent. They submitted that they had not yet entered Singapore and therefore could not have imported the said drugs. They further submitted that they had no knowledge that they had entered Singapore nor had the prosecution proved that the importation of the drugs was 'without any authorization'.

Held, convicting the accused: (1) the burden of proving that there was authorization for importing or bringing in the drugs was on the accused and not on the prosecution; (2) the word 'import' must include the bringing in of any merchandise from a foreign country for sale or use in Singapore as well as for transhipment or distribution overseas. It followed therefore that bringing drugs from elsewhere into Singapore albeit into the transit lounge of the Singapore airport with a view only to proceeding to another destination would fall within the scope and ambit of s 7 of the Misuse of Drugs Act (Cap 185); (3) both accused knew that the importation or bringing in of diamorphine into Singapore was an offence. The deliberate concealment of those drugs under their trousers suggested that they wanted to avoid detection.

Public Prosecutor v Ng Kwok Chun [1992] 1 SLR 877 High Court, Singapore (Rajendran J and Rubin JC).

[Annotation: Affirmed on appeal. See [1993] 1 SLR 55.]

The respondent, a Hong Kong national, was tried with one Wong Wai Hung ('Wong') on a charge of having the common intention to export 4,594.65g of diamorphine. At the trial, the prosecution relied principally on the statement of the respondent which showed that the respondent had, in Hong Kong, conspired with one Say Ngan Chai to smuggle Du Pont pens and lighters into Switzerland via Singapore. The respondent was to be paid HK$20,000. No independent evidence was put forward to corroborate the account of the events in Hong Kong contained in the respondent's statement. The prosecution led evidence to show that the respondent arrived in Singapore on 3 November 1988. She contacted Wong who informed her that the pens and lighters were at the left luggage counter at the Changi International Airport. On 5 November 1988, the respondent was seen with Wong at the Changi International Airport. The respondent checked in on behalf of Wong; she had no check-in luggage of her own. She and Wong then proceeded to the boarding gate. The respondent carried three bags which she had with her when she arrived from Hong Kong, while Wong carried a grey bag. At the boarding gate, Wong left the respondent and went to the left luggage counter. He returned about 20 minutes later with a black Gucci bag, a brown plastic bag and a grey suit jacket. When the boarding gate was opened, the respondent went in ahead of Wong. She passed through the screening room and waited in the holding area. She was arrested when she was about to take her seat on the aircraft. Wong's Gucci bag was searched and the diamorphine forming the subject matter of the charge was found in a secret compartment at the bottom of the bag. A panty girdle was also found in the bag. The statement of Wong was also admitted into evidence. In it, Wong sought to lay the blame upon the respondent. He claimed that she was his wife or woman and that the Gucci bag was hers and he was only carrying it for her. At the close of the prosecution case, the respondent was acquitted without her defence being called. The prosecution appealed. On appeal, the prosecution submitted that the court should have accepted that evidence in the statement that there was a plan to smuggle contraband and ignored the exculpatory portion that the contraband was Du Pont pens and lighters.

Held, dismissing the appeal: (1) the respondent's statements as regards the plan to smuggle Du Pont pens and lighters could not be taken as inculpatory with reference to a charge to export controlled drugs. If the truth of her statement that the contraband was Du Pont pens and lighters could not be accepted at this stage, then, equally it could not be accepted at the close of the prosecution case that there was a plan to smuggle; (2) there was insufficient evidence to show joint custody or joint possession of the Gucci bag. While the respondent clearly knew that the Gucci bag was present, there was no evidence that she had any power over the bag; (3) a possessor of property must have the power of disposal over the property while a custodian has no such power. In order to show joint possession, it must be shown that an accused had knowledge of the drugs and that he had the right to say what should be done with the drugs; (4) in the instant case, there simply was no evidence that the respondent's role involved any control over or the care for the Gucci bag at all. Her failure to ask about the bag was of no assistance to the prosecution's case and in the absence of any admissible evidence that the panty girdle was hers or was meant for her, the presence of the panty girdle in the bag was of no relevance; (5) on a charge involving common intention, the prosecution has to show that there was a pre-arranged plan to commit a criminal act and the crime forming the subject of the charge was done in concert pursuant to that pre-arranged plan; (6) the existence of the plan to smuggle contraband into Switzerland via Singapore was known only from the statements. There was no logical basis for accepting the existence of the plan as being true while rejecting the assertion that the contraband was Du Pont pens and lighters. Even if it were assumed in favour of the prosecution that the plan to smuggle was true, no unity of criminal behaviour had been proved.

Public Prosecutor v Ho So Mui [1993] 2 SLR 59 Court of Criminal Appeal, Singapore (LP Thean, Rajendran and Karthigesu JJ).

The first respondent was charged for importing into Singapore 2,186.10g of cannabis on 7 March 1992, contrary to s 7 of the Misuse of Drugs Act (Cap 185) ('the Act'). The second respondent was jointly tried for conspiring with him to import the said cannabis contrary to s 7 read with s 12 of the Act. Both the respondents were acquitted at the trial and the public prosecutor appealed. The first respondent came to Singapore from Bangkok with three others, namely, Najeeb, Edros and Darus. They collected their luggage and proceeded towards the customs counter. Upon a search being conducted, one of the bags was found to contain the cannabis. All four of them were detained. The second respondent arrived at about the same time but on a different flight also from Bangkok. Acting on information, he was also detained. Initially the first respondent was charged with importing the cannabis into Singapore and the four others with abetting him. Subsequently, the charges against Najeeb, Edros and Darus were dropped and they gave evidence for the prosecution. The case against the first respondent was that he was in possession of the drugs and by virtue of the presumptions he had imported it into Singapore and the second respondent had assisted him by financing his trip.

Held, dismissing the appeal: (1) the trial judge had accepted the first respondent's evidence that he did not know that any of the bags contained cannabis. A court of appeal will not interfere with a trial judge's findings unless it can be shown that those findings of fact were clearly against the weight of the evidence and unsupportable; (2) in the instant appeal, although the first respondent had had physical custody of the bag containing the cannabis from the conveyor belt at Changi Airport to the customs point, he had on the facts rebutted the presumption that he knew it contained drugs; (3) although the first respondent appeared nervous and fidgety when the bag containing the cannabis was examined, the appellate court accepted the trial judge's finding that this was not conclusive evidence of knowledge and therefore of guilt, as he had been told that the second respondent might bring back 'ganja' from Bangkok and he believed that the bag belonged to the second respondent; (4) the trial judge had also correctly refused to accept that the evidence of the customs officer that the first respondent did not express surprise at the fact that drugs were found in the bag but only at the quantity of the drugs found, meant that he had knowledge of it. Although this conversation took place in the presence of two other customs officers, it was not supported by evidence. Moreover there was no reference of this conversation in the deposition evidence of this first customs officer; (5) the admission of a s 122(6) statement is not evidence per se of what is stated in it. The court must still evaluate the evidential value to be attributed to it in the light of all the evidence. Therefore although the first respondent in his statement had said that the drugs did not belong to him but belonged to the second respondent, the trial judge accepted his evidence that he only came to know that the bag contained drugs when it was examined by the customs officer; (6) furthermore the first respondent had only handled the bag upon its arrival in Singapore and that too at the behest of Darus. Prior to that, it had been handled by Darus. Therefore there was no actus reus on the part of the first respondent to import the drugs into Singapore; (7) the whole of the prosecution's case against the second respondent was based either on the 122(6) statement of the first respondent or the evidence of Najeeb, Edros or Darus. The trial judge took a poor view of the credibility of these three witnesses and for that reason, not all of the allegations against the second respondent can be said to have been proved beyond a reasonable doubt. Most importantly, the prosecution were unable to prove that the cannabis belonged to the second respondent as they had set out to do. It logically follows from the acquittal of the first respondent on the charge of importing cannabis that the charge against the second respondent of having conspired with him to do so must also fail.

Public Prosecutor v Sugianto bin Pardi & Anor [1994] 2 SLR 1 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The accused was a Hong Kong national. On 26 July 1992, she entered Singapore via a Thai Airlines flight from Bangkok. She was detained at the airport and her baggage searched. In one of the bags was found 22 packets of substance hidden in two winter jackets. The substance was analysed and found to be 4,103.7g of diamorphine. The accused had told the customs officer who arrested her that she was going to Australia to meet her boyfriend. In her cautioned statement, which was admitted in evidence, the accused stated that she did not know the jacket contained heroin and that the jacket was given to her by someone in Bangkok. In her defence the accused had stated that she was tricked into going to Bangkok by a friend in Hong Kong named Jim, who owed her HK$30,000. This Jim had informed her that he was due some money from a person in Bangkok who would pay her. When she reached Bangkok she was met by one Michael who asked her to take three packets of hashish to Europe. She claimed initially to have refused to do so but she was threatened by Michael and was informed that carrying hashish is not an offence. She therefore agreed to carry the hashish. She claimed that the bag in which the diamorphine was recovered was given to her by Michael.

Held, convicting the accused: (1) s 18(2) of the Misuse of Drugs Act (Cap 185) raises an operative presumption of knowledge of the nature of the drug on the part of the accused in respect of the diamorphine found in her possession. The foregoing presumption cast on the accused the burden of proving on a balance of probabilities that she was unaware of the nature of the controlled drug contained in the winter jackets; (2) the accused's story that she did not know that the jackets contained heroin sounded hollow to be credible. Her account that she was ordered to take the flight to Europe did not find support from her air-ticket which bore a return segment to Bangkok. Her lie to the customs officials that she was going to Australia further undermined her defence. Further her cautioned statement was significantly silent as to her being tricked or coerced into carrying the drugs.

Public Prosecutor v Tsang Kai Mong Elke Criminal Case No 61 of 1993 High Court, Singapore (Rubin JC).

The appellant was convicted in the High Court on a charge of importing not less than 4,320g of diamorphine. The prosecution's evidence was that the appellant arrived at Changi Airport on 27 September 1991 on a flight from Phuket, Thailand. It was not disputed that the appellant checked a suitcase with a combination lock into the plane direct to Athens via Swissair flight SR 183 from Singapore. It was also not disputed that the appellant came to Singapore to catch the same Swissair flight SR 183 to Athens which was scheduled to leave Singapore at 9.05pm that evening. The suitcase was retrieved by narcotics officers from the baggage area. The suitcase was found to have a false bottom under which a plastic bag containing whitish substance was found. The whitish substance was analysed and certified to contain a total of not less than 4,320g of diamorphine. The appellant's defence was that he did not know that diamorphine was concealed in the suitcase. He claimed that he was an innocent custodian of the suitcase and that he was carrying the bag from Bangkok to Athens as a favour for a Nigerian by the name of John Obiefuna who said that it contained children's clothes. The trial judge rejected this defence and convicted the appellant. On appeal the appellant argued, inter alia, that he was not in possession of the drugs as it was in the custody of the airport staff at the time of its seizure.

Held, dismissing the appeal: (1) the language used in s 18 of the Misuse of Drugs Act (Cap 185) clearly drew a distinction between 'possession' in s 18(1) and 'physical possession' in s 18(3). Whilst the appellant may not have had physical possession or physical control of the suitcase, such possession and control having been ceded to the airport authorities for the purposes of moving and checking the luggage, the appellant had possession of the suitcase. He had the baggage tag to the suitcase and could obtain access to it. The appellant was proved to have had in his possession the suitcase containing the controlled drug; (2) 'possession' and 'knowledge' were distinct and dealt with separately under s 18. The initial onus was on the prosecution to prove possession of anything containing a controlled drug, after which the appellant was presumed to have the drug in his possession and to know the nature of the controlled drug. The onus was then on the appellant to rebut the two presumptions on a balance of probabilities; (3) the appellant's story was incredible to say the least. He had testified that he had always declined to carry 'packets' for Nigerians, yet he was extremely willing on this occasion to do so. The ap-pellant had also testified that he received about US$4,300 from Obiefuna; (4) the appellant's conduct was suspect. He had not rebutted the presumption of trafficking.

Van Damme Johannes v Public Prosecutor [1994] 1 SLR 246 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The respondent was charged, together with one M, with the offence of importing into Singapore 3,860.92g of diamorphine in furtherance of their common intention, contrary to s 7 of the Misuse of Drugs Act (Cap 185) ('the Act') read with s 34 of the Penal Code (Cap 224). At the close of the prosecution case, the respondent was acquitted without the defence being called. The learned trial judge found that the presumption against the accused had been rebutted by the evidence in the prosecution case. Firstly, the trial judge relied on a statement made by the other accused, M, when charged that 'Virat (respondent) does not know what I am doing'. Secondly, he referred to the evidence of one investigating officer, T, to the effect that his investigations showed that it was M, the first accused, who was responsible for the offence. Thirdly, the learned judge referred to the inconsistent evidence regarding the respondent's behaviour on disembarking from the launch. The prosecution appealed against the acquittal. The question was whether, on the facts of this case, a submission of 'no case' could properly be accepted by the court.

Held, allowing the appeal: (1) the presumption in s 18(2) of the Act had not been rebutted and the respondent's defence should have been called; (2) the burden was on the respondent to prove on a balance of probabilities that he did not know that it was a controlled drug that he had in his possession; (3) as regards the unsworn statement made by M, under s 122(6) of the Criminal Procedure Code (Cap 68), the learned trial judge should not have taken it into account as tending to exonerate the respondent.

Public Prosecutor v Virat Kaewnern [1993] 2 SLR 9 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Chao Hick Tin and Warren LH Khoo JJ).

Public Prosecutor v Hla Win [1995] 2 SLR 424 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

See CRIMINAL LAW, Vol 4, para 564.

The appellant arrived in Singapore on 8 July 1993 on transit from Bangkok. He was kept under surveillance and when stopped by narcotics officers, produced his flight ticket, his boarding pass and a Republic of Niger passport in the name of 'Saleh Mustafa Mai'. The appellant was detained for further questioning and his person searched. From the appellant's inner jacket pocket, an envelope was found enclosing a Nigerian passport in the appellant's true name, Chris Chinenye Ubaka. This passport showed his arrival in Hong Kong on 25 June 1993 and departure from Hong Kong on 8 July 1993. Two bags were recovered from the in-flight spur area: they consisted of a brown sling bag and a black travelling bag with Bangkok International Airport security checked bands. The appellant confirmed that the two bags and the envelope referred to above were his. The brown sling bag had two compartments separated by a central divider. When the two compartments were filled with clothing, the central divider was hardly noticeable but once the clothing was removed, a bulge was seen in the divider. Upon making a slit at the bulge in the divider, a white powdery substance trickled out. When asked what the white powdery substance was, the appellant replied that a man had given him the two bags in Bangkok or words to that effect. The black travelling bag, when emptied, revealed bulges in the side linings. When asked what these bulges were, the appellant replied 'same thing'. Three packages were recovered from the two bags, later analysed to contain a total of 8,968g of diamorphine. The appellant was charged and convicted under s 7 of the Misuse of Drugs Act (Cap 185) with the offence of importing the said drugs into Singapore. The trial judge found a number of weaknesses in the appellant's defence claiming that he was an earnest man who had travelled from Nigeria to Thailand in search of employment and had been tricked into carrying the bags with the hidden diamorphine on his way home. Firstly, the appellant said that he had signed his Republic of Niger passport in June 1993, but there were endorsements in the passport dated between January and March 1993 which were unexplained. Secondly, the trial judge could not understand why the appellant signed the passport with a name that was not his own, which he claimed he used for signing invoices, nor why the appellant would sign invoices with a name that was not his. No explanation was given for such conduct. Thirdly, there were inconsistencies in the particulars in the two passports that were unresolved. Fourthly, the trial judge concluded that the endorsements in the appellant's passport must have been made to enable him to travel without revealing that he had visited Thailand and give the impression that he had left Hong Kong on 8 July 1993 rather than Bangkok. The appellant's travelling with this other passport in his possession contradicted the picture he sought to paint of being an innocent dupe. The appellant only raised one ground of appeal, namely, that the trial judge erred in fact in finding that the appellant had not, on a balance of probabilities, proved that he was not aware of the controlled drugs concealed in his bags.

Held, dismissing the appeal: the trial judge had to decide whether the appellant had successfully rebutted the presumptions of knowledge of the presence of the drugs and of their nature. He correctly found that there was no merit in the appellant's contention that he was the innocent custodian of the bags and was justified in finding that the appellant had not rebutted the statutory presumptions on a balance of probabilities.

Ubaka v Public Prosecutor [1995] 1 SLR 267 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellant was charged with importing 2,550.8g of cannabis into Singapore. The drugs were in a bag which the prosecution alleged was in the possession of the appellant on a railbus on 27 December 1992. The principle witness for the prosecution was one Rusmadi, a cleaner on board the railbus. Rusmadi testified that he observed the appellant enter the second coach of the railbus at Kulai. The appellant was carrying a blue and white sling bag which he placed in the overhead rack. The appellant appeared to be restless. Rusmadi told his friend Fathil about this. After the railbus entered Singapore the appellant took the bag and looked out the window. Rusmadi then approached the appellant and questioned him. The appellant denied ownership of the bag. Rusmadi signalled Fathil who alerted the police. The appellant was arrested and the bag seized. The drugs were discovered in the bag and the appellant was charged accordingly. In the course of the trial, Rusmadi was cross-examined on discrepancies between his preliminary inquiry deposition and his testimony in court. The appellant stated in his defence that the bag was not his and all he did after boarding the railbus in Kulai was to sit at his seat and recite words in praise of God. The trial judge accepted that there were discrepancies in Rusmadi's evidence but was satisfied that he was telling the truth and convicted the appellant.

Held, dismissing the appeal: (1) the discrepancies or omissions in evidence at the PI stage were explicable on the basis that, at the PI, prepared statements were put in and questioning, if at all, was rarely in detail, whereas at the trial, intense examination could easily jolt one's memory; (2) the trial judge was mindful of the discrepancies in Rusmadi's testimony but nevertheless found him to be a truthful witness. Further, the trial judge felt it safe to rely on Rusmadi's evidence as it was corroborated in part by the evidence of Fathil; (3) the trial judge's evaluation was entirely correct and the conclusion he reached could not be said to be against the weight of the evidence.

Hanafiah v Public Prosecutor [1994] 1 SLR 321 Court of Appeal, Singapore (Karthigesu JA, Goh Joon Seng and Chao Hick Tin JJ).

On 19 August 1991, one Ang Chin Heng ('Ang'), a drug addict, and an absconder from a Day Release Camp were arrested while smoking heroin in a public toilet in Sim Lim Tower. When interrogated Ang revealed that he had arranged for heroin to be delivered to him at the car park of Sim Lim Tower that evening by one Ah San driving vehicle WBN1143. Whilst Ang was being questioned, his pager beeped. Ang was given a handphone and told to page for the number. He did as instructed and his call was soon returned. Ang told the caller that he was on his way and that the caller should look for his car, with registration No SBD8785X, at the car park located behind Sim Lim Tower. The Central Narcotics Bureau ('the CNB') then mounted an operation at that car park. CNB officers DPC Daniel Li, NO Leong and Ang left the station in Ang's car for the car park. After waiting for about an hour at the parking Lot 84, DPC Daniel Lim paged for the same number as earlier Ang had paged for at the station. The call was returned. Ang told the caller where his car was parked and described his car. He also told the caller to come over. At about 9.25pm, the two appellants, each carrying a black sling bag, were seen approaching Ang's car from its rear. They were walking closely together, with one walking slightly ahead of the other. Ang said to them 'shang che', meaning 'get into the car'. The first appellant boarded through the rear door of the car and closed the door. The second appellant stood outside. DPC Daniel Lim got out of the car and asked the second appellant in Mandarin 'dong xi zai na li' ('where is the thing'). The second appellant answered 'tar nah' ('he is holding it or has taken it'), while at the same time gesturing towards the left rear door of Ang's car with his hand. The second appellant's reply was recorded in DPC Daniel Lim's pocket book. At about the same time, NO Leong, seated beside the first appellant, asked the first appellant in Mandarin where 'the thing' was. The first appellant gestured with his head in the direction of his black sling bag. Upon unzipping the bag, NO Leong saw a plastic bag inside. Both appellants were arrested. A small plastic packet of granular substance was recovered front the first appellant's right front trousers pocket. Four plastic packets of drugs were found in the bag carried by the first appellant. Upon analysis, the four packets were found to weigh 877.5g (approximately two pounds) and contain not less than 47.11g of diamorphine. As the four packets were not analysed separately, the scientific officer was unable to tell how much diamorphine was in each packet. A pager was found clipped onto the right waist band of the second appellant's jeans. A shirt and S$6,000 were found in his bag. Both appellants were tested negative for drugs. The appellants were charged with trafficking by transporting four packets of heroin containing not less than 47.11g of diamorphine from Block 245 Serangoon Ave 2, #03-101 to a car bearing registration No SBD8785X at Lot 84 of the car park along Sungei Road near Sim Lim Tower. The prosecution sought to rely on the long statements made by the appellants. At the voire dire, the first appellant contested the admissibility of his statement on the ground that it was made as a result of an inducement from an officer. The second appellant challenged the admissibility of his long statement on the ground that it was made under threats of assault. At the conclusion of the voire dire, the trial judge admitted the long statements of the appellants. At the close of the prosecution's case, the trial judge found that there was sufficient evidence of the physical act of transportation. The trial judge also ruled that by virtue of s 18(4) of the Misuse of Drugs Act (Cap 185) ('the Act'), the heroin was deemed to be in their possession with the second appellant's knowledge and consent. He also held there was 'unity of criminal behaviour'. The first appellant's defence was that he had only transported one pound of heroin and that an extra pound had been put into his bag by Ah San in his presence at Sim Lim Tower. The defence of the second appellant was essentially that of innocent association. The trial judge rejected all their defences.Accordingly, they were convicted and sentenced to death. The appellants appealed against conviction and sentence.

Held, dismissing the appeal: (1) s 135 of the Evidence Act (Cap 97) provides that an accomplice shall be a competent witness against an accused person and that it is not obligatory for the court to warn itself about convicting on the uncorroborated testimony of an accomplice. In any event, the trial judge had dealt with Ang's evidence with caution; (2) there was no merit in the submission that Ang's evidence had been shown to be unreliable on 'material particulars'. The trial judge was correct in holding that the differences enumerated by counsel were either unimportant or inconsequential, and the overall story had remained intact; (3) it did not matter that more heroin was carried than that intended to be delivered. The relevant factor was the larger purpose of the intended use of the drugs and in this case, that of drug distribution. It was clear that at least a portion of the total amount carried was to be delivered to Ang. It was clear from the facts that the appellants were Ah San's delivery boys; (4) the trial judge had correctly invoked the presumption under s 18(4) of the Act against the second appellant. The knowledge and consent of the second appellant were confirmed by his own long statement. There was no reason to disturb the trial judge's assessment of the evidential value of the second appellant's long statement. There was evidence to suggest that the second appellant's presence at the scene was not at all coincidental.

Wong Kok Men & Anor v Public Prosecutor [1995] 1 SLR 255 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Chao Hick Tin J).

The appellants, both Hong Kong nationals, were jointly tried on separate charges of importing not less than 1,674g and 1,466g of diamorphine into Singapore, contrary to s 7 of the Misuse of Drugs Act (Cap 185) ('the Act'). On 15 December 1988, a team of narcotics officers conducted a surprise search on passengers departing on SQ 34 for Brussels from Changi Airport. The first appellant was found to be wearing, under his clothes, a vest with numerous pouches into which rectangular blocks of diamorphine wrapped in plastic sheets had been sewn. The second appellant was also found to have in her possession a quantity of diamorphine in a similar fashion. They had both arrived in Singapore by flight SQ 57 from Hong Kong and were, at the time of arrest, on transit here to Brussels. In his defence, the first appellant said that he thought he was carrying tranquillizer, used by hospitals, for the purpose of evading taxes. Moreover, he was acting under the instructions of one Ah Keung who threatened to harm his family if he refused to act as a courier. In her defence, the second appellant said that she was going to Brussels on a holiday with the first appellant, who was her boyfriend. At the airport, the first appellant asked her to put on the vest and strap a slimming belt around the vest. She was assured that it was nothing 'dangerous'. Although she knew that what she was doing was illegal, she did not know that the substance she was carrying was drugs. The trial judge rejected the defence of both the appellants and convicted them. The appellants appealed.

Held, dismissing the appeal: (1) given the deliberate way in which the drugs were concealed on the first appellant's body, it was unlikely that the first appellant did not know he was carrying heroin; (2) the second appellant had effectively admitted to the actus reus of the offence. Her knowledge of the nature of the substance she carried was presumed from the proof of possession of the drugs under s 18(2) of the Misuse of Drugs Act (Cap 185). The trial judge was justified in finding that she had not rebutted the presumption on a balance of probabilities; (3) with the second appellant's background and experience, she would not have so readily donned a bulky vest with blocks of substance sewn into it under highly suspicious circumstances without wanting to know what that substance was.

Lam Cheuk Wang & Anor v Public Prosecutor [1994] 2 SLR 825 High Court, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

A1 and A2 were arrested at Changi Airport after having cleared customs. Each of them was found to be carrying more than 1kg of diamorphine. A1 made a statement that he agreed to smuggle goods from Bangkok to Holland for a person whom he owed money. He denied knowing the nature of the goods smuggled until after his arrest. A2 admitted that he knew he was carrying heroin. Both were charged with importing heroin into Singapore contrary to s 7 of the Misuse of Drugs Act (Cap 185). It was submitted on A2's behalf that he could not be convicted of importing the drugs into Singapore as they were not meant for distribution in Singapore but were to be carried onwards to Holland.

Held, convicting both accused: (1) the court did not believe that A1 was ignorant of the fact that he was carrying heroin. In any case, s 18(2) of the Misuse of Drugs Act (Cap 185) provides that a person who is in possession of a controlled drug is presumed to have known the nature of the drug. The onus of rebutting the presumption, on a balance of probabilities, lay on A1. He had not rebutted the statutory presumption of knowledge; (2) the word 'import' in s 7 should be given its ordinary and natural meaning of bringing something into a country, whatever the purpose may be and whether or not it is the ultimate destination. The submission that A2 did not import drugs into Singapore was accordingly rejected. Both accused were convicted as charged.

Public Prosecutor v Ko Mun Cheung & Anor [1990] 2 MLJ 337 High Court, Singapore (Chan Sek Keong and Yong Pung How JJ).

On 29 August 1991, the appellant arrived at Terminal One of Changi Airport from Bangkok. While awaiting to retrieve her luggage, the appellant was observed to be acting suspiciously by Customs Officers Suriarti and Rosli. They saw the appellant taking a duffle bag from the luggage belt. This further aroused their suspicion because there had been a drug case about a month earlier involving a similar bag. After collecting the duffle bag from the baggage belt the appellant pushed her trolley in the direction of the exit when she was directed by CO Suriarti to the customs inspection counter. The appellant was asked to open the duffle bag. Both officers suspected that the duffle bag contained a false bottom and escorted the appellant to the Customs Office where a more thorough examination of the bag was carried out. The bottom of the duffle bag was cut open in the appellant's presence and 20 blocks of a hard substance subsequently found to be 4,096g of diamorphine was found. The appellant's defence was that she did not pack any item into the duffle bag either on the morning of her departure or on the previous evening. She stated that she assumed that all her belongings had been packed into the duffle bag by one Ah Hung. She also claimed that Ah Hung had handled the duffle bag all the way to the airport and checked it in on her behalf. The trial judge disbelieved the appellant's evidence. On appeal, counsel contended that on the evidence, the appellant had rebutted the presumptions under s 18(1) and (2) of the Misuse of Drugs Act (Cap 185) ('the Act'). Counsel argued that the trial judge erred in accepting the evidence of CO Suriarti as her evidence was contradictory and unsatisfactory. Secondly, counsel argued that the charge had been wrongly interpreted to the appellant; that there was insufficient time given to the appellant to comprehend the charge that she faced, and that the s 122(6) statement did not contain the full content of her statement to the police.

Held, dismissing the appeal: (1) the trial judge was justified in accepting CO Suriarti's evidence. It is immaterial whether the appellant wheeled the trolley to the left or right of CO Suriarti. What was material was that the appellant was stopped when she was about to pass CO Suriarti and was directed by the latter to the customs inspection counter where CO Rosli was; (2) the trial judge had carefully weighed the evidence in respect of each of the objections raised in regard to the s 122(6) statement and found the objections to be without merit. There is no basis to say that the trial judge's assessment of the evidence was faulty or that he erred in refusing to allow any of these objections. The trial judge was fully entitled on the evidence to accept the evidence of the investigating officer and the interpreter that they had taken time to go through the full process of reading, explaining and interpreting the charge to the appellant, that in explaining the charge to the appellant, they had interpreted the word 'import' as 'bringing heroin into Singapore' without any reference to the word 'traffic', and that the evidence did not support the appellant's contention that her s 122(6) statement did not fully record all that she had said to the police; (3) in any event, even if this statement was excluded, on the basis of the evidence before the trial judge and his evaluation therefore, the appellant had not rebutted the presumptions under s 18(1) and (2) of the Act.

Mou Pui Peng v Public Prosecutor [1994] 3 SLR 508 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The accused were tried for attempting to export 4,594.65g of diamorphine. The prosecution led evidence to show that both the accused were seen arriving at the Changi Airport together. Surveillance was maintained on each accused. The first accused was seen collecting a black bag from the left luggage counter and going to the toilet. When he left, he rejoined the second accused and they proceeded to the departure room in order to board a flight to Switzerland. The first accused was detained at the departure gate and the black bag was searched. It was found to contain 4,594.65g of diamorphine. Both accused made statements to the Central Narcotics Bureau ('CNB'). In the statement, the first accused claimed that the bag belonged to the second accused and he was unaware of its contents. In her statement, the second accused claimed that the first accused had asked her to help him smuggle 'Dupont' pens and lighters to Switzerland, and she therefore thought the bag contained 'Dupont' pens and lighters. When his defence was called, the first accused maintained that the bag belonged to the second accused and he had no knowledge of its contents.

Held, convicting the first accused but acquitting the second accused without calling her defence: (1) the statement of an accused could not be taken into consideration against a co-accused unless it amounted to a confession by the accused; (2) the mere presence of a person at the time of the commission of the offence by his confederate is not in itself sufficient to bring a case within the purview of s 34 of the Penal Code (Cap 224) unless the community of design was proved against him. On the primary facts adduced by the prosecution, there was little to impute common intention on the part of the second accused to export or attempt to export drugs; (3) when the prosecution relied wholly on circumstantial evidence, the quantum of proof must be more than mere skeletons. The evidence must be such that when all the surrounding circumstances are looked at, one finds such a series of undesigned, unexpected coincidences that as a reasonable person one finds one's judgment is compelled to one conclusion. If the circumstantial evidence was such as to fall short of that standard, if it did not satisfy that test, if it left gaps, then it is of no use at all. The burden of proof on the prosecution was heavier when it depended on circumstantial evidence as opposed to direct evidence and to justify a conviction, the evidence must irresistibly point to one and only one conclusion, and that is the guilt of the accused. When the prosecution seeks to establish its case by a circumstantial net, that net must be such as not to permit any escape routes; (4) there had to be something palpable connecting the second accused with the drugs, more so when no presumption was invoked against her. The absence of any evidence of possession and of dealing by her with the bag that contained the drugs especially render the so called set of circumstances into a series of surmises and conjectures which a court of law could not reasonably advert to; (5) the evidence of the first accused was unmeritorious. There was no reason for him to carry the black bag by himself when that bag could have been easily checked in by the second accused. It was settled law that where a person is in possession of a bag which contained controlled drugs, it was presumed that he was in possession of and knew the nature of the controlled drug. The first accused had physical control of the bag which contained the drugs and the onus shifted to him to prove on a balance of probabilities that he was not in possession and did not know the nature of the drugs. This the first accused failed to do; (6) the first accused also suggested that certain statements made by him to the CNB were inadmissible for they were taken in connection with the charge he actually faced in court in contra-distinction to the charge set out in his s 122(6) statement. This argument had no legal validity as so long as a statement was given voluntarily without any vitiating factor, such a statement can be used by the prosecution against the maker in connection with any other charge the prosecution may deem fit to frame.

Public Prosecutor v Wong Wai Hung & Anor Criminal Case No 21 of 1991 High Court, Singapore (Rubin JC).

The accused, a Nigerian national, arrived in Singapore on flight SQ 159 at Changi Airport from Djakarta and the flight docked at a docking bay at Terminal 2 at about 7.10pm. Soon afterwards, Xavier Dawes, a Narcotics Officer ('NO') attached to the Airport Section of the Central Narcotics Bureau accosted the accused at a toy shop in the transit hall of Terminal 2 Changi Airport. He asked the accused if he had any checked-in luggage. The accused denied he had any. NO Xavier Dawes then seized an SIA Excess Baggage ticket with four baggage tags. The accused explained to NO Xavier Dawes that the excess luggage tag was in respect of the television sets. The luggage was recovered and found to be a big carton containing a 21" Toshiba TV set, a small carton containing a 14" Siera TV set, a rectangular carton containing a cassette recorder and a brown nylon garment bag all of which the accused identified as belonging to him and all of which luggage had the equivalent numbered identifications. The back cover of the Siera 14" TV was removed and some white powder was found in the TV tube area. The accused then exclaimed, 'I am the only son of my father'. When asked if the white powder was his, the accused said that somebody gave it to him in Djakarta. Thereafter on being asked by NO Xavier Dawes as to how the white powder could be taken out, the accused gestured with his head to a brown mark which looked different from the rest of the surface and asked NO Xavier Dawes to make a hole there. The accused further told NO Xavier Dawes that there was some more in the bigger TV set. The white powder removed from the TV picture tubes was analysed to be not less than 7,578g of diamorphine. The diamorphine was of a high grade. The accused gave evidence in his own defence. He testified that he was broke and attempted to borrow money from a person by the name of Ejike whom he had known for some two years at his church. He agreed to help the accused by paying him US$2,000 if the accused went on a trip for him to Indonesia to bring some building materials from there which had been paid for. But first he wanted the accused to go to Bangkok. Ejike arranged all the travel documents and paid the accused's expenses and financed his return trip from Lagos, Amsterdam, Bangkok and Djakarta, the return trip being through Singapore. He also issued the accused with two false passports which the accused would use on certain sectors of the journey. The accused was to return, however, on his real passport under his true name Sabinus Nkem Okpebie. Ejike told the accused that the reason for using false passports was to avoid Nigerian Customs in respect of payment of duties on the return journey and to keep away from them the accused's destination. The accused left for Bangkok on 11 July 1993 via Amsterdam where he stayed until 4 August 1993 and then left for Djakarta on that day arriving on the same day. Ejike met the accused in Bangkok where the accused stayed for some three weeks and Djakarta where he stayed for about seven weeks. The accused said his purpose of going to Bangkok was to obtain a visa for Indonesia and a visa was obtained there. In Djakarta, Ejike came to the accused's hotel room on or about 5 September 1993 and gave him a ticket for his return trip being Djakarta/Singapore/Zurich/Lagos and told him that the suppliers could not supply the building materials and so he had decided to buy electronics instead for the accused to carry back home. Ejike refused to disclose to the accused where he was staying. The accused claimed that he was not suspicious about Ejike over all these matters. The next day he gave the accused the 14" Siera TV and the 21" Toshiba TV in their cartons both of which the accused identified. The accused was also given a cassette recorder which was similarly identified. All these the accused identified in court. The accused stated that after the TV sets had been given to him, he found them to be very heavy and Ejike gave him a sum of US$3,600 for excess baggage charges. After landing in Singapore the accused claimed to the officers that the TV was given to him by someone. In cross-examination by the prosecution, the accused stated he did not contemplate what kind of building materials he would be asked to carry from Djakarta. The accused also could not explain why he needed to avoid Customs or Customs knowing the destination he was actually returning from except that he was following Ejike's instructions in using the fake passports.

Held, convicting the accused: (1) the accused failed to take the back cover off completely to examine the TV sets properly or at least plug the TV sets into an electrical socket to see if they worked. If he had done that, the TV sets would not have worked in view of the heroin concealed in the picture tubes. He had on the other hand been using the cassette recorder given by Ejike which worked. Having suspected that the TV sets might contain heroin, he had all the time and opportunity to carefully examine the contents of the TV sets as they were with him for almost two weeks before he left for Singapore; (2) the accused was unable to explain satisfactorily as to why he or Ejike would be carrying back building materials by air 'halfway round the world' which were not only heavy but in respect of which the outlay of expenses of US$7,000 or US$8,000 would be unrewarding. All the accused could say was that he was following Ejike's instructions. The accused's explanation that Ejike told him this to avoid paying custom duties on the building materials and for this end, to prevent the Customs from knowing the real destination he had travelled was unacceptable; (3) whilst the court accepted the accused's evidence that Ejike was a real person and not a fictional character and that he had arranged for the accused's return trip to Bangkok and Djakarta and paid for all the expenses, the court was, however, satisfied and found that the accused was recruited as a courier by Ejike for reward to carry and convey the drugs in question from Djakarta which he knew to be in the two television sets and not building materials. By knowingly bringing the drugs into Singapore albeit in transit the accused imported the said drugs. In so deciding, the court disbelieved the accused's evidence that he had no knowledge of the presence of the drugs in the two television sets in his admitted possession. The accused had failed to show absence of knowledge in this regard on a balance of probabilities.

Public Prosecutor v Sabinus Nkem Okpebie Criminal Case No 11 of 1994 High Court, Singapore (Amarjeet JC).

The appellant was convicted in the High Court of importing into Singapore 3,860.92g of diamorphine. He was originally charged with one Virat Kaewern ('Virat'). Virat was acquitted. The appellant was convicted and he appealed against the conviction. The prosecution's evidence was that the appellant and Virat were Thai sailors. On 3 November 1988, they boarded a launch from their ship and arrived at Clifford Pier. Virat was carrying a red polythene bag for the appellant. The bag was found to contain a square package wrapped tightly in newspaper. When unwrapped the contents were found to be heroin. The appellant made a cautioned statement where he stated that he did not know he was carrying heroin. The package was handed to him by a Chinese Thai. When called upon to give evidence, the appellant claimed that he did not know that the contents of the package was heroin. He was given the package in Thailand by a person named Phisit and asked to pass it on to a male Chinese in Singapore. The narcotics officer investigating the case had tried to trace this male Chinese person through a pager number given by the appellant without any success.

Held, dismissing the appeal: (1) the appellant admitted that it was the first time he was doing a favour for Phisit. Any reasonable man in such circumstances would have been careful about what it was that he carried, a fortiori an experienced seaman such as the appellant who knew the perils of bringing drugs into Singapore; (2) the trial judge disbelieved the appellant's explanations. He had the benefit of hearing and observing the appellant at trial before arriving at his conclusion. There was no reason to disturb his findings.

Manit Changthong v Public Prosecutor Criminal Appeal No 22 of 1992 Court of Criminal Appeal, Singapore (Yong Pung How CJ, LP Thean JA, Goh Joon Seng J).

The accused was a Hong Kong national. He was arrested on 20 November 1992 at Changi Airport in possession of 464g of diamorphine. The drugs were hidden in a special vest which the accused wore under his clothing. On the day in question, the accused had arrived in Singapore on a Thai Airways flight from Phuket. He disembarked from the aircraft after it had landed and walked around the transit lounge. He was observed by two customs officers who were suspicious of a bulge they saw at the accused's waist. They detained him and searched him and found the vest. When asked about the vest the accused told the customs officers that he had been promised HK$80,000 to take the vest to Toronto. The accused was charged with importing the said drugs and at his trial the prosecution sought to admit in evidence the cautioned statement made by the accused. After the voire dire, the trial judge found that the statement was made voluntarily but ruled that it could only be admitted in evidence if the accused gave evidence. The accused did give evidence in his own defence. He claimed that a friend named Law in Hong Kong had told him to travel to Bangkok and then to Toronto as a favour. He was told by Law that doctors abroad could cure his son's blindness. He stated that he travelled from Hong Kong to Bangkok to Phuket and then to Singapore. He said that, as the flight from Phuket was touching down in Singapore, he was approached by a stranger who stated his name. The stranger took him to the aircraft toilet and gave him the vest, telling him to wear it under his clothes. The accused did as the stranger asked as the stranger knew his name. Under cross-examination the accused stated that, while in Bangkok and Phuket, he did not inquire about doctors who could treat his son.

Held, convicting the accused: (1) the accused's account of events was incredible. His evidence that he thought there were doctors outside Hong Kong who could treat his son was inconsistent with his conduct in not consulting any doctors in Bangkok or Phuket; (2) the court did not believe that whoever handed the vest to the accused had done so without any instruction or explanation. This was a valuable item with its hidden contents; (3) the accused should have been suspicious of the contents of the vest. He must have realized that it could not be any ordinary vest. Furthermore, if that was what really happened it would have been the natural thing for him to tell the customs officers about it, but he said nothing of the alleged events to them and did not mention it in his cautioned statement; (4) a cautioned statement could not be admitted as part of the prosecution case before an accused made or indicated his defence. When an accused made a cautioned statement, he was doing so for the purpose of preventing any diminution of his defence on the ground that he had not disclosed his defence earlier when it was reasonable for him to have done that. Proceeding from that, his cautioned statement should not be relevant unless he made or disclosed his defence and its credibility had to be determined.

Public Prosecutor v Chan Chi Pun Criminal Case No 74 of 1992 High Court, Singapore (Kan Ting Chiu JC).

The accused were two teenage girls from Hong Kong. On 16 July 1991, both the accused arrived in Singapore on a Singapore Airlines flight. They were arrested at Changi International Airport, each of them carrying an identical Louis Vitton bag. They were taken to the customs office and searched. The arresting officers found several slabs of white substance in each of the Louis Vitton bags, concealed in false bottoms built into both bags. Both accused were arrested and the slabs of white substance seized and later sent for analysis. The slabs found in the first accused's bag were found to be not less than 3,060g of diamorphine. The slabs in the second accused's bag were found to be not less than 2,997g of diamorphine. Both accused were charged with importing the respective quantities of diamorphine. In the course of the trial the accused persons' cautioned statements, recorded on the day of their arrest, were admitted in evidence. In the statements, the accused merely stated that they did not know that there was heroin in their bags. Much later on 27 July 1991, both accused made further statements to the investigating officers where they claimed that the drugs must have been planted in their bags by a Chinese couple they met in Bangkok. When their defence was called, both accused gave a similar story. They claimed that they had gone to Bangkok on a holiday. There they had met a Chinese couple with whom they spent much time. They claimed that the Chinese couple had bought the Louis Vitton bags for them and had packed their belongings for them the night before their departure for Singapore. Both gave evidence that they intended to return to Hong Kong from Singapore but could not explain why they were both in possession of return tickets to Bangkok. In closing argument both accused attempted to cast doubt on the chain of evidence in respect of the drugs seized and made much of the failure of the prosecution to dust the bags and the packing of the drugs for fingerprints.

Held, convicting both accused, but only sentencing the first accused to death as the second accused was below the age of 18 on the date of arrest: (1) in certain circumstances, it is unnecessary to call evidence to ensure that there was no break in the chain of evidence. If the officer who picked up an object at the scene produced it and identified it as that very object, that was enough,and there was no need to call every other officer who handled it. The evidence of the arresting officers established that the drug exhibits were kept separate and distinct in relation to each of the accused persons and that utmost care was taken to guard and protect them until the arrival of the investigating officer. The investigating officer took meticulous care in regard to the custody and separation of the exhibits; (2) there was no primary or statutory obligation on the part of an investigating authority to undertake a fingerprint examination, particularly in a case such as this where the accused persons were apprehended with the offending substance. It was settled law that in order for the defence to succeed, the accused persons had to convince the court that they had no knowledge of the contents of their bags; (3) the first accused failed to mention the Chinese couple until her statement of 27 July 1991. In her statement of 20 July 1991, she had stated that she had purchased the two bags and that both she and the second accused had packed them. She had stated that she intended to return to Hong Kong from Singapore when she was in possession of a return ticket to Bangkok. Her evidence was therefore untrue; (4) the second accused was also curiously amnesic about the Chinese couple until her statement of 27 July 1991. The court found that she was not a truthful witness. She too could not explain why she was in possession of a return ticket to Bangkok when she intended to return to Hong Kong from Singapore.

Public Prosecutor v Poon Yuen Chung & Anor Criminal Case No 15 of 1993 High Court, Singapore (Rubin JC).

The accused was a Malaysian charged with trafficking 2,550g of cannabis. The drugs were found in a bag which the prosecution alleged was in the possession of the accused. At the trial the prosecution led the evidence of one Rusmadi who was a cleaner with the Malayan Railway. Rusmadi testified that on 27 December 1990, he was on the railbus from Kulai to Singapore. He observed the accused standing at the rear of the second coach. The accused appeared to be very restless. He continued to observe the accused. When the railbus entered Singapore he saw the accused take a bag from the overhead luggage rack and appear to want to throw it out of the window. The accused looked out of the window but then placed the bag on the floor. When the train arrived in Singapore, Rusmadi got one of his friends to call the police while he detained the accused. When the police arrived, the accused denied ownership of the bag. When the bag was found to contain cannabis, the accused was placed under arrest. In his defence the accused claimed that the bag belonged to Rusmadi who had forced the accused to take it. He also claimed that Rusmadi had harassed him on the train and asked him for his passport.

Held, convicting the accused and sentencing him to death: (1) the court found Rusmadi to be a truthful witness. There were discrepancies in his evidence and differences between his testimony in court and the preliminary depositions. However these discrepancies did not go to the heart of his evidence and were matters over which he could honestly be confused because of the passage of time; (2) by being in possession of the bag, an inference arose that the accused was also in possession of its contents; (3) s 18 of the Misuse of Drugs Act (Cap 185) ('the Act') also created a presumption that he was in possession of the cannabis inside the bag. By virtue of s 18(2) of the Act the accused was presumed to know the nature of the drug, although such knowledge may not be needed in cases in which physical possession was established.

Public Prosecutor v Hanafiah bin Bedullah Criminal Case No 35 of 1992 High Court, Singapore (Kan Ting Chiu JC).

Upon his arrival at the Changi Airport from Hatyai, Thailand, the respondent was arrested with 3,468g of diamorphine in his bag. In response to questions asked by a customs officer, he replied that he was carrying precious 'stones'. The respondent did not say anything in his s 122(6) statement, but provided a detailed defence in his long statement. At the trial, the respondent explained that he did not realize the importance of giving his defence when the s 122(6) statement was recorded because of some misunderstanding between the interpreter and himself. In his defence, the respondent said he had believed the bag contained gems and not drugs. He had been asked by one Maung Maung whom he met in Bangkok to smuggle gems from Bangkok to Cebu, Philipines. The respondent lived in Bangkok and came to know Maung Maung, a fellow Burmese Muslim, from his regular attendance at a mosque and from Maung Maung's patronage of his 'roti prata' stall. Maung Maung was a successful gem trader and money-changer in the vicinity of the mosque. About three months after he came to know Maung Maung, Maung Maung arranged to meet him at a McDonald's restaurant where he was asked to help Maung Maung smuggle some gems to Cebu for a reward. Maung Maung assured him by swearing on the Qur'an that he would only be carrying gems. The respondent then agreed to take up the assignment. He described how he travelled from Bangkok to Hatyai, stayed overnight in Hatyai and then continued his journey to Singapore. From the start of his journey in Bangkok to the time he checked in at the Hatyai airport for the flight to Singapore, he was always accompanied by one Yusoof. As for the bag, it was given by Maung Maung to the respondent and Yusoof at the Bangkok airport. Thereafter, the bag was mainly handled by Yusoof and the respondent only opened it for the first time in Singapore. The evidence of the respondent was largely consistent with the version already given in the long statement. There was evidence to corroborate and confirm the defence in many aspects, including the existence of Maung Maung, the mosque, the particular McDonald's restaurant, the existence of Yusoof, the flight to Hatyai, the stay in Hatyai and the flight to Singapore. The trial judge accepted the defence of the respondent that he did not know he was carrying drugs. On a balance of probabilities, the trial judge found that the respondent had rebutted the statutory presumptions of possession of the drugs and knowledge of their nature and acquitted the respondent. The prosecution appealed.

Held (by a majority), dismissing the appeal: (1) an appellate court would not interfere with a trial judge's findings of fact based on the credibility and veracity of the witnesses whom the trial judge had seen and observed when giving evidence, unless the findings were clearly against the weight of the evidence and unsupportable. The appellate court should generally defer to the conclusion which the trial judge had formed on findings of fact, including a finding of inferential fact of knowledge, based on the credibility of witnesses; (2) it was for the respondent to rebut the statutory presumptions of possession of the drugs and knowledge of the nature of the drugs. It was a difficult task in the circumstances because the respondent had the mens rea to smuggle gems and knew of the illicit nature of the content of the bag. Furthermore, the defence put forth by the respondent was one commonly used by drug couriers. However, it was not the law that by reason of the respondent's knowledge of the illicit nature of the contents of his bag, his evidence that he did not know that the contents were drugs could not and should never be believed. Such knowledge only rendered it more difficult for the court to believe his evidence. Very much depended on the circumstances of the case; (3) the trial judge had in his mind the suspicious circumstances when he came to his decision. After hearing and seeing the respondent give evidence, he accepted that the respondent had agreed to smuggle gems for Maung Maung and did not know that the bag contained drugs. There was no ground for saying that the trial judge was wrong in so finding; (4) (per Yong Pung How CJ (dissenting) the offence of importing drugs, not being a strict liability offence, required an accused person to know that he was carrying drugs. The concept of wilful blindness, however, qualified the requirement of knowledge in that a person who deliberately shut his eyes to the obvious because he did not want to know would be taken to have the necessary knowledge. Where the accused, who was not an innocent custodian (in the sense that the drugs were planted in his bag without his being aware of them) accepted the goods in circumstances which rendered the taking of the precaution of satisfying himself that the goods were what they purported to be and were not drugs an imperative, then, if he did not take the trouble to inspect them, but merely relied on another person's assurance, he would not rebut the statutory presumption of knowledge. In fact, he would be guilty of wilful blindness to the obvious truth of the matter; (5) (per Yong Pung How CJ) (dissenting) when dealing with the question of knowledge, the consistency of the respondent's evidence and the corroboration of his evidence must be viewed with caution. The matters so substantiated were features common to the operation of any smuggling outfit whether of drugs or of gems and were immaterial to the question of the respondent's knowledge of what he was smuggling. His truthfulness in these matters should not have been accorded undue weight. The respondent had agreed to smuggle gems knowing it was an unlawful act for a substantial reward. In itself, that was a strong reason for him to be suspicious of the contents of the bag. Moreover, the respondent's claim to have reposed such a high degree of trust in Maung Maung was incredible. Not being a naive or gullible person, he had little reason to trust a virtual stranger's words or oath. Also, from the questions asked by the respondent of Maung Maung and Yusoof about the contents of the bag, it was clear that he had doubts that the bag contained only gems. He must have been concerned about the smuggling of something which might have far more serious repercussions than the smuggling of gems. The irresistible inference must be that the respondent suspected that there might well be drugs in the bag. Thus, it was incumbent on the respondent to check the bag for its true contents. Although he had ample opportunity, he failed to do so. In the light of the above, the proper inference to be drawn was that the respondent had wilfully shut his eyes to the obvious truth of the matter. Quite apart from the statutory presumption of knowledge within s 18(2) of the Misuse of Drugs Act, such wilful blindness was tantamount to knowledge. The acceptance of the respondent's belief that he was carrying gems and the finding that the statutory presumptions had been rebutted were therefore wrong and could not be supported by the evidence.

Public Prosecutor v Hla Win [1995] 2 SLR 424 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellant arrived at Changi Airport on Cathay Pacific flight CX 713 from Bangkok on 12 August 1993. She was stopped by HCO Kessler ('Kessler') in the West Wing of the Arrival Hall of Changi Airport, Terminal 1, while she was walking towards the 'Exit' gate. Kessler, who was on duty at the customs counter at the Red Customs Channel, asked the appellant to approach his counter. At that time, the appellant was carrying a brown leather luggage bag and had a black sling handbag hung over her shoulder. Kessler indicated to the appellant to place the bag on the counter and told her in English to open it. The appellant was asked whether she had any cigarettes or liquor to declare and she answered in the negative. The appellant then opened the main zip, side zip, and the two side pockets of the bag. Kessler put both his hands into the bag and he felt bulges on both sides and at the base of the bag. He told the appellant to close the bag and requested for her passport. Kessler, together with Customs Officer Md Nasir bin Md Tahir, brought the appellant to the Customs Duty Office. At the Customs Duty Office, in the presence of the appellant and Superintendent of Customs, Chew Tee Mui ('Chew'), Kessler conducted a thorough examination of the leather bag. Having removed the contents from the bag, Kessler used a penknife and made a slit, of about an inch long, on the inside-lining of the bag. Some white substance spilled out. According to Kessler, the appellant appeared calm and said nothing at all. Kessler replaced the contents back into the bag. The appellant was then taken to the Customs General Office. In an adjacent room, a body search was conducted on her by Woman Customs Officer Chang Yeow Kum ('Chang'), in the presence of the Deputy Officer-in-Charge, Yap Kwee Hong, but nothing incriminating was found. The appellant was brought back to the General Office. A party of Central Narcotics Bureau ('CNB') officers led by Woman Inspector Chong Wee Kee ('Chong') arrived at the Customs General Office at about 6.10pm. Chong was briefed by Chang on the case and the appellant's belongings were handed over to Chong. Three packets of drugs were found concealed in the brown leather bag, one in each side and one at the base of the bag. US$1,900 in cash, a cancelled US$100 note and two Nigerian currency notes were among the contents in the appellant's bags. All the drug exhibits were sent to the Department of Scientific Services for analysis. They were found to contain not less than 1,164g, 1,177g and 844.2g of diamorphine respectively. The total weight of the diamorphine in the three exhibits was 3,185.2g. At CNB Headquarters, at 11.35pm, a statement was recorded from the appellant pursuant to s 122(6) of the Criminal Procedure Code, in which she claimed that she was given the bag by an African gentleman. At the trial, the appellant gave evidence in her defence. She testified that she had formal education up to the equivalent of Secondary Three but spoke little English. The appellant's defence was that she did not know that the leather bag which she carried had anything concealed in it. About 20 days before coming into Singapore, the appellant started working in a Bangkok guest house which was mostly patronised by Africans. At about the end of 1992, she met a male African known as 'Sunny' at the hotel. The appellant did not know Sunny's nationality but she believed he could be Nigerian. At that time, she considered Sunny as no more than a casual acquaintance. On 6 August 1993, she met him by chance at Pata Shopping Centre in Bangkok. Sunny invited her for coffee. She said that she spoke to Sunny in Thai and English and also communicated with some gesticulations. During the conversation, the appellant was asked by Sunny if she could deliver a bag containing some clothes to his friend in Singapore and whilst in Singapore, she was to buy several items for Sunny. Sunny also told her that he would pay all her expenses and this would come from the US$2,000 paid to her. The appellant agreed as she always dreamed of going to Singapore. Sunny, who was with another African man whom the appellant had not met before, gave the appellant a leather bag. The African man was carrying a paper bag of clothes. Sunny placed the leather bag on the floor and unzipped it. The appellant noticed that the bag was empty. She sat on the bed as Sunny packed the leather bag with the clothes from the paper bag. She did not notice whether the clothes were old or new. He then placed the appellant's clothing which was on a table into the leather bag. After putting the clothes into the bag, Sunny gave her US$2,000 in cash. Sunny told her that on her arrival in Singapore, she was to take a taxi to Orchard Road and to check into a hotel there which was not too expensive. The trial judge rejected the appellant's defence and convicted her. She appealed.

Held, dismissing the appeal: (1) the trial judge had carefully considered and weighed the cautioned statement in the course of reaching his decision. Having perused the record, the Court of Appeal also agreed with the learned trial judge that there were many aspects of her evidence which were incredible and had cast doubt upon the authenticity of her account of the events which led to her trip to Singapore; (2) no name was given nor was a description of the appearance or even the sex of the recipient provided. 'Sunny's friend' was to come to the appellant's hotel in Singapore and identify himself as 'Sunny's friend'. The appellant had testified that she would have given the bag to anyone who asked for it and had identified himself as such. There is also uncertainty in the evidence as to where the appellant was to stay in Singapore and whether Sunny knew this for a fact. It was her evidence that she wanted to stay at the Mandarin Hotel because she was familiar with the name. This was one of the two suggestions of Sunny who had instructed her to stay in an inexpensive hotel in Orchard Road; (3) much of the evidence of the appellant on the whole, was inexplicable. It was her evidence that Sunny was a mere casual acquaintance whom she first met at the end of 1992. She had intermittently met Sunny at the Intown Hotel until March 1993. The appellant did not meet him again until, by chance, she met him in a shopping centre some six days before coming into Singapore. It was the appellant's evidence that she did not suspect anything was amiss with respect to the proposal by Sunny to deliver a bag of clothing to someone in Singapore. In light of the learned trial judge's finding that she was not naive or ignorant, the circumstances of that meeting would have been suspicious as it was strange for a proposal to have been made to a mere acquaintance to deliver a bag of clothing to Singapore. It was also her evidence that she did not know Sunny's real name and that she did not know how to contact him in Bangkok but left it to him to contact her at the guest house. Sunny did not know where she lived. She did not know to whom the bag of clothing was to be delivered;there was evidence at the trial that the total weight of the leather bag when checked-in at Bangkok Airport was 11kg. This was ascertained from the baggage check tag. Even though the visible contents of the bag were only items of clothing, a pair of shoes and toiletries, the appellant maintained that she thought that the heavy weight was due to the fact that it was a leather bag. Although she saw Sunny packing in the clothes meant for his friend, she could not say whether they were old or new. In the circumstances, there were more than substantial grounds to reject the appellant's evidence as incredible.

Navarat Maykha v Public Prosecutor [1995] 1 SLR 228 Court of Appeal, Singapore (Karthigesu and LP Thean JJA, Goh Joon Seng J).

The accused was a Malaysian. On 9 October 1991, the accused had ridden his motor scooter into Singapore. At the Woodlands checkpoint, his scooter was inspected by customs officers. As the accused seemed to be nervous, the officers conducted a more thorough search. In his nervous state, the accused told the officers that there was a kilogramme of ganja in the petrol tank of the scooter. The petrol tank was checked and a plastic bag of vegetable matter suspected to be cannabis was found. The substance was analysed and found to contain 1,026g of cannabis. At the trial, the accused challenged the analysis of the cannabis. His counsel submitted that as the chemist had only tested 4% of the exhibit, the certification of the total amount was not accurate. Defence counsel also submitted that the chemist was not a botanist and could not tell that the exhibit was a plant of the genus cannabis. The accused's defence was called and he gave evidence that he had come to Singapore for treatment for a kidney condition. On the day in question, he had met his friend, Mi, at Johore Bahru and Mi had borrowed his scooter for about two hours. He did not know where Mi had gone. When Mi returned the scooter, they agreed to meet at Bukit Panjang in Singapore later that day before going to the hospital. The accused denied admitting to the customs officers that there was ganja in the petrol tank.

Held, convicting the accused: (1) the chemist had examined the exhibit and found that it was plant material. She also found that it consisted uniformly of characteristic features of the cannabis plant. There were no other plants with similar features. There was also an abundance of resin on the surface of the exhibit. All the tests were positive for cannabis. The defence had called no expert of their own, therefore, the government's chemist testimony was unchallenged; (2) it was absurd to suggest that the chemist should have tested the whole or a substantial portion of the exhibit. No chemist should be required to do so; (3) the court disbelieved the accused's testimony as he had been shown to be an untruthful witness. The court accepted the evidence of the customs officers.

Public Prosecutor v Mat bin Repin Criminal Case No 8 of 1993 High Court, Singapore (TS Sinnathuray J).

On 28 February 1989, the appellants, two Hong Kong nationals, arrived at Changi Airport from Phuket by Thai International Airways flight TG 405. After they landed, they went into the transit lounge. They did not go through the Immigration or Customs checks. They intended to remain in the transit lounge until their connecting flight, KL 838, which was scheduled to depart from Singapore to Amsterdam, left that same evening. As the appellants arrived at the transit lounge, they were closely watched by customs officers. They were arrested later that same day. A search was conducted and blocks of white substance were found strapped to the calves and thighs of the appellants. The white substance was sent for analysis and the scientific evidence revealed that the first appellant was carrying 2,178g of diamorphine and the second appellant 2,190.3g of diamorphine. They were convicted of importing the said quantities of drugs into Singapore and sentenced to death. They appealed. The appellants contended that as they had no intention of entering Singapore, no offence of importing had been committed. The second appellant also contended that she did not know that she was carrying drugs. The appellants also argued that they should not have been tried jointly and that the proceedings were therefore a nullity.

Held, dismissing the appeal: (1) the word 'import' in the Misuse of Drugs Act (Cap 185) should be given the meaning defined in s 2 of the Interpretation Act (Cap 1), namely to bring or cause to be brought into Singapore by land or sea or air. To construe the word otherwise or too strictly would mean that drug runners could use the Changi Airport transit lounge as a centre for international drug trafficking; (2) the trial judges found after careful consideration that the explanation given by the second appellant in her evidence that she thought the drugs were jewellery was not credible. There was no basis for disturbing the findings; (3) the real and substantial test for determining whether several offences are connected together so as to form the same transaction depended upon whether they were so related to one another in point of purpose, or cause and effect, or as principal and subsidiary acts as to constitute one continuous action. The act of each appellant was so closely connected with the act of the other that each could be said to have been done conjointly with the other. There was a common or identity of purpose in the separate acts of the appellants. The offences were committed in the same transaction.

Tse Poh Chung Nathan & Anor v Public Prosecutor [1993] 1 SLR 961 Court of Criminal Appeal, Singapore (Yong Pung How CJ, Chao Hick Tin and Warren LH Khoo JJ).

The appellant arrived at Changi Airport some time after midnight on 3 November 1993 on MAS flight MH 629 from KL. He was to board a connecting KLM flight to Amsterdam but had missed this. The appellant approached PW7, an immigration officer, at the immigration counter. He handed his passport to PW7 which she screened and no record was found. As the usual routine, PW7 then handed the passport with the embarkation form to PW11 for her endorsement. PW11 found some discrepancies in the passport. Suspecting the passport to be a forgery, she brought the appellant to see the duty officer. PW12 and PW13 (both Immigration Sub-Inspectors) conducted a search of the appellant's belongings. A Netherlands passport bearing the name 'John Baker Tony' and a rubber stamp were found. They then searched the appellant's shoes. They used a pair of scissors to cut open the insole and found some white substance. The appellant was asked three times by PW13 what that substance was, and after a pause the appellant replied in English that it was drugs. A similar substance was also found under the insole of another pair of shoes found in the appellant's haversack. In total, four packets of the substance were found; one packet in each shoe. The substance was analysed and found to contain not less than 576.2g of diamorphine. The appellant gave evidence that the shoes, the Netherlands passport and the rubber stamp were given to him by one Ibrahim in Kuala Lumpur. Ibrahim had asked him to hand these items to his brother Seth in Rome. The appellant then asked Ibrahim whether he could wear a pair of the shoes given to him as they were nice. Ibrahim agreed. The appellant maintained that he did not know that these shoes contained drugs. The appellant was convicted. In the appeal, counsel for the appellant argued that despite the inconsistencies and contradictions contained in the appellant's evidence, they did not go to the root of his defence and that the essence of the appellant's defence, that he had no knowledge of the contents in the shoes, remained intact and the appellant was not impeached or discredited on material points.

Held, dismissing the appeal: (1) the learned trial judge's findings should not be disturbed. There were indeed many inconsistencies and contradictions in the appellant's evidence, including the circumstances under which he was allegedly given the shoes and how he came to wear them. Even during the recording of his long statement, the appellant had changed his story substantially. It was left in no doubt that such inconsistencies and contradictions were material; (2) the appellant's evidence with respect to the assistance rendered to him by Ibrahim was incredible. The appellant had admitted that Ibrahim was only an acquaintance, yet Ibrahim went out of his way to purchase air-tickets for him and obtain the fake Ghanaian passport; (3) the learned trial judge was amply justified in rejecting the appellant's defence that he did not know there were drugs in the pair of shoes he was wearing and in the other pair of shoes in his haversack.

Sylvester Kwaku Forkuo v Public Prosecutor Criminal Appeal No 8 of 1994 Court of Appeal, Singapore (Yong Pung How CJ, Karthigesu and LP Thean JJA).

The appellant was charged with promoting a pyramid selling scheme contrary to s 3(1) of the Multi-Level Marketing And Pyramid Selling (Prohibition) Act (Cap 190) ('the Act'). In 1988, the appellant set up a company, later to be known as Success Motivation Institute (S) Pte Ltd ('SMI'), as a machinery to distribute personal development programmes through a scheme which involved three levels of sales personnel, namely, distributors, sales managers and sales associates. At each of these levels, commission would be earned by the various persons depending on the sales achieved. The amount which the distributor would receive depended on whether there was a sales manager in that particular chain. If there was a sales manager, part of what would otherwise have gone to the distributor then went to the sales manager. The prosecution evidence showed that the cost price of a programme was about S$285. The retail price would go up to as much as S$2,100. The appellant claimed trial and was convicted in the district court. The appellant was accordingly sentenced to six months' imprisonment. The appellant appealed.

Held, dismissing the appeal against conviction but allowing the appeal against sentence: (1) in order to prove the charge, it was not necessary for the prosecution to show that the appellant's scheme contained all the objectionable features referred to by the Minister in Parliament as reproduced in Hansard. Moreover, whether a scheme constitutes a pyramid selling scheme does not depend on the percentage of semblance the scheme bears to the prototype. The law cannot be reduced to a simple mathematical exercise. The question whether a scheme is, or is not, a pyramid selling scheme is unambiguously answered in s 2 of the Act; (2) in arguing for a purposive approach to interpretation, one must also bear in mind the policy considerations so clearly stated in s 9A(4) of the Interpretation Act (Cap 1), namely, the desirability of the public being able to rely on the ordinary meaning conveyed by the statutory provision and the need to avoid prolonged and wasteful litigation. Using the method of counting the number of objectionable features in order to decide whether there is in any particular case a pyramid selling scheme would only serve to usher in a state of uncertainty. The test must not therefore turn on numbers and percentages; (3) as a matter of law, it was wrong for the district court to say that it was imperative to interpret the Act just so that the scheme in question would fall foul of the Act. To do so was to put the cart before the horse. Statutory interpretation must never be reduced to an ex post facto exercise; (4) or (b) be paid a commission, etc for the sales made by any additional participants. The prosecution proceeded under (b). In the present context, therefore, the 'additional participant' was the sales associate. In general, a distributor received a commission, ranging from 28% to 38%, from a sale concluded by the sales associate. The third condition is that the benefits referred to in (a) or (b) must accrue to 'any other person' participating in the scheme. The 'any other person' must, of course, be a distinct entity from the 'person' in the first limb and the 'additional participant' in part (b) of the second limb. It was, in the present context, the sales manager, who received a 10% commission from the sale of a sales associate; (5) all the same, SMI's operation was unlawful only if and in so far as it promoted a scheme in which all three levels, namely, the distributor, the sales manager and the sales associate, would participate in a sale. The only issue in dispute was this: did any part of the benefit received by the distributor, as a result of a sale made by the sales associate, accrue to the sales manager? If the sales associate did not have a sales manager above him, the distributor would get a 38% commission. Otherwise the distributor would only get 28% commission. Looking at the substance of the arrangement, it appears to be an inescapable conclusion that the 10% commission received by the sales manager was the self-same 10% commission that the distributor would have had but which the latter had to surrender in a transaction where all three 'participated'. It is mere pedantry to say that the distributor did not share any of the 28% commission with anyone else. Such a contention does not in any way detract from the fact that, in cases where all three 'participated', part of the 38% commission the distributor would have received as a result of a sale by the sales associate accrued to a third person, namely, the sales manager. In other words, the fallacy of the argument lies in the fact that, after all, the respective sums received by SMI and the sales associate remained constant, whether or not there was a sales manager. The only variable was the amount payable to the distributor, which depended on whether there was a sales manager. Logically, therefore, what the sales manager received by way of commission must have accrued from the benefit which the distributor derived from the sale made by the sales associate; (6) there was doubt that s 2(1) envisages a pyramid scheme to involve at least three tiers. However, it is not necessary to show that all the features in the definition must be simultaneously presentat one single point of time. Of course, the burden lies, still, on the prosecution throughout to prove each and every essential element of the charge beyond reasonable doubt. The obstacle in the way of counsel's remarkable argument was the fact that the appellant was charged with 'promoting' a multi-level marketing scheme. And the word 'promote' is almost all-encompassing. 'Promote' not only means 'carry on', but includes also 'form' or 'otherwise to organize'. Moreover, under s 3 of the Act, it is also unlawful to 'hold out' that one is promoting a multi-level marketing scheme. In the premises, whether or not counsel's assertion that at no time were all the features in the definition present simultaneously was borne out by the evidence, it was clear from the prosecution witnesses' evidence that the appellant had held out himself, or SMI, to be promoting such a scheme; (7) as the legislature intended the Act to be prohibitory and not regulatory, it was inevitable that the net had to be so widely cast as to prevent such activities from even coming into existence. The blanket prohibition is, however, based not on moral culpability but on public policy. A person may be guilty of an offence under s 3 of the Act without any intention to defraud anyone. It is therefore important in sentencing to consider whether the evidence suggests any fraudulent intent on the part of the accused. And if a fine exceeding S$10,000 is thought to be appropriate in any particular case, prosecution may properly proceed in the High Court; (8) subject to what is meant by the word 'promote', three separate but conjunctive conditions have to be fulfilled before a scheme or arrangement can be labelled as 'pyramid selling'. First, there must be an arrangement whereby a person may, for valuable consideration, acquire either a commodity or a right to acquire the commodity for sale. In the present context, this person was the distributor, who had to 'invest' an initial sum, ranging from S$2,500 to S$10,000, from which S$550 would be deducted each time a programme was taken from SMI. Secondly, this self-same person must either: (a) receive a gratuity for the recruitment of additional participants;nevertheless, given the circumstances of the case, the sentence of imprisonment is to be set aside and substituted by a fine of S$10,000.

Tan Un Tian v Public Prosecutor [1994] 3 SLR 33 High Court, Singapore (Yong Pung How CJ).

Public Prosecutor v Phee Joo Teik [1962] MLJ 56 Court of Appeal, Kuala Lumpur (Thomson CJ, Good JA and Ong J).

See CRIMINAL LAW, Vol 4, para 817.

This was an appeal against the conviction of the appellant for failure to comply with a notice served under s 246(6) of the Municipal Ordinance (Cap 133). It appeared that the notice was issued by an officer of the Municipal Commissioners on his own initiative.

Held: the notice in such cases must be given by the Municipal Commissioners or at least by their direction, and cannot be given by an officer on his own initiative.

Chen Su Lan v R [1949] MLJ 290 High Court, Singapore (Murray-Aynsley CJ).

By a notice dated 21 June 1950, purporting to be issued under ss 169 and 246(1) of the Municipal Ordinance (Cap 133), the landlord of premises was required within one month to abate a nuisance 'being premises in a ruinous or dangerous state'. On his failure to comply with it, he was served with a summons under s 246. To this, he pleaded guilty and an abatement order was made. This abatement order was also disregarded and on 7 March 1951, the magistrate made a closing order under s 247(6) to be carried out within three months. Copies of this closing order were served on the occupiers of the premises.

Held: (1) s 169(2) is intended to cover only urgent situations such as would arise in an earthquake, tempest, fire, flood or some unusual occurrence or the sudden discovery of a hidden defect; (2) it relates only to the carrying out of remedial work. The notice of 21 June was therefore invalid; (3) although s 246(1) provides alternatives as to the persons on whom service of a nuisance notice is to be made, s 246(3) provides that in case of structural defects the owner should be served, and this cannot be taken to mean that the occupants must also be served. Nor is it necessary, at the hearing of an application for a closing order, for the court to give the occupants an opportunity to be heard; (4) for the purposes of s 256, a closing order is a criminal cause or matter, but the occupiers not being parties to it have no right of appeal unless such right is conferred by statute; (5) before a closing order is made, there must be strict proof of unfitness for human habitation caused by a nuisance, and in considering the fitness or otherwise of the premises, the magistrate must bear in mind the authorities on the point and, in particular, the observations of the House of Lords in Hall v Manchester Corp 113 LT 465; (6) s 246 does not cover the complete demolition of a building;(semble) if on the complaint that the owner had not complied with a nuisance notice the magistrate makes not a closing order but an abatement order, he has no jurisdiction to make a closing order on a further complaint for the same defect.

Re Chung Lit & Chung Ah Kam [1952] MLJ 123 High Court, Singapore (Spenser-Wilkinson J).

Held: s 211(1)(d) of the Municipal Ordinance (Cap 133) is intended to protect people from what the Legislature has considered to be a nuisance caused by the burning of earth or lime by their neighbours, whether the finished product is called a brick or a tile. If tiles are manufactured by a firing process by the burning of earth or lime, an offence has been committed under the section.

R v Cheong Kong Seng [1939] MLJ 49 High Court, Straits Settlements (McElwaine CJ).

Held: under s 226 of the Municipal Ordinance 1913, it is not open to a municipality to order the removal of the inhabitants of a dwelling house as a means of abating a nuisance, when such nuisance is due solely to a faulty construction of the house which is irremediable. When owing to structural defects a house, dependent upon and connected with other houses of a similarly faulty character, is regarded as unfit for human habitation, it is not open to the municipality to attempt to deal with it separately and individually under the provision of the Municipal Ordinance relating to the abatement of nuisances.

H Nunes v Song Kee Chuan [1935] MLJ 132 High Court, Straits Settlements (Bucknill CJ, Ebden and Sproule JJ).

The municipal commissioners served a nuisance notice upon the owner of certain attap premises alleged to have been 'of such a construction and in such a state of repair as to be injurious to health'. The notice called upon the owner within 30 days from the service thereof to abate the same 'and for that purpose to demolish the above hut and the insanitary plant and attap dwelling to the south of it'.

Held, on revision by the High Court: the notice was ultra vires inasmuch as by it the commissioners sought to obtain a result which can only be reached after an application to a police court under s 247 of the Municipal Ordinance (Cap 133) ('the Ordinance') and inasmuch as it purported to require demolition which can only be directed by a police court upon a second complaint under s 248 of the Ordinance when a closing order has not been complied with.

R v Tan Ah Yeo [1937] MLJ 198 High Court, Straits Settlements (Terrell Ag CJ).

Lim Kit Siang v Public Prosecutor [1980] 1 MLJ 293 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah CJ (Malaya).

See CRIMINAL LAW, Vol 4, para 636.

This was an appeal from the conviction of the appellant on five charges under the Official Secrets Act 1972 (Act 88), for (a) receiving secret official information having reason to believe at the time of the receipt of the information that it was unauthorized; (b) failing to disclose the source of the information; (c) failing to take reasonable care to prevent publication of the information; (d) communicating the information in a speech, and (e) divulging the said information in a letter to a news review. The information in question related to tenders in relation to the purchase of fast strike crafts for the Royal Malaysian Navy. The appellant was convicted and sentenced to RM5,000 or one year's imprisonment on the first charge; RM1,000 or two months' imprisonment on the second charge and RM3,000 or nine months' imprisonment on each of the third, fourth and fifth charges. (See [1979] 2 MLJ 37.) The Public Prosecutor cross-appealed on the sentences, contending that they were inadequate.

Held: (1) the function of the court is judicial not legislative, and the court ought not to legislate under the guise of exercising its judicial powers and functions. In particular, the court has no power to create a right for any person to ignore the provisions of the Official Secrets Act or any other law of the land; (2) the learned trial judge in this case was correct in holding that the information referred to in the charges was obtained in contravention of the Act; (3) the duty of the appellant as a Parliamentarian does not include the right to disclose or make available for disclosure secret information outside the walls of the House to the public at large, whatever his motives might be; (4) the offences in the charges have therefore clearly been committed. Although the offences were of a serious nature, the learned trial judge was right in not imposing a sentence of imprisonment; (5) no reasons were given by the learned trial judge for the amounts of the fines imposed. In view of the circumstances in this case, the fines should be reduced as follows: RM1,500 on the first charge; RM1,000 on the second charge; RM1,000 on the third charge; and RM1,500 each on the fourth and fifth charges.

Lim Kit Siang v Public Prosecutor [1980] 1 MLJ 293 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah CJ (Malaya).

In this case, the appellant had been convicted of the offence of receiving secret official information and a secret official document and communicating them. The allegation was that the appellant received the copy of a letter from the then Chief Minister of Sabah to the Minister for External Affairs which he knew to be an official secret document and that he had communicated the document to other persons. He stated he received the copy by post through the ordinary mail. The main point raised on the appeal was the question whether the information or document was secret. It was argued that the information and document were inseparable from each other and that the information was no longer secret because the matters pertaining to Philippines refugees in Sabah, with which the letter dealt, were already publicly known and therefore the document was no longer secret.

Held: (1) nor does it lose its secrecy just because the letter happens to contain information which is already known to the public; (2) if the originator or the owner of the document treats it and the information contained in it as secret and clearly marks it and keeps it as such, it is not open to anyone to regard it as otherwise. The law must give protection to such a document even though it contains information generally known to the public; (3) having regard to the evidence in this case, the appellant ought to be more appropriately convicted on the charges in respect of the document rather than of the information. The convictions on the principal charges should therefore be set aside and the convictions on the alternative charges confirmed; (4) the sentences would be reduced to a fine of RM1,000 on each of the first and fourth charges and a fine of RM1,500 on each of the second and third charges and in default of each fine to a term of three months' imprisonment; (5) a document does not lose its status as a secret document merely because some unauthorized person or persons stole it, reproduced a copy and sent the copy by post to the appellant anonymously;the practice of stealing secret documents and leaking the information contained in them to unauthorized persons is highly dangerous to the country and the court will not hesitate to impose proper and adequate sentences in future, where circumstances merit such punishment.

Datuk Haji Dzulkifli bin Datuk Abdul Hamid v Public Prosecutor [1981] 1 MLJ 112 Federal Court, Kota Kinabalu (Suffian LP, Lee Hun Hoe CJ (Borneo).

In this case, the accused was charged with five charges under the Official Secrets Act 1972 (Act 88), for (a) receiving secret official information having reason to believe at the time of the receipt of the information that it was unauthorized; (b) failing to give information of the source of the information; (c) failing to take reasonable care to prevent publication of the information; (d) communicating the information in a speech; and (e) divulging the said information in a letter to a news review. The information in question related to tenders in relation to the purchase of fast strike crafts for the Royal Malaysian Navy.

Held: (1) the crux of the offence under s 8(1) of the Official Secrets Act 1972 is the wrongful communication of official information. The wrongful communication of official information is an offence whatever the purpose of the communicator and however innocent the recipient of what he communicates. Communication is not wrongful if it is made to a person to whom he is duly authorized to communicate it or to a person to whom it is his duty to communicate it; (2) in this case, there can be no doubt that all the information contained in the documents relating to the tender exercise were classified and were clearly those documents which s 8 of the Act requires to be protected from disclosure to unauthorized persons; (3) as the tender documents and associated documents were official secrets, a government servant who communicates such information does so in contravention of the Act, and he commits an offence under s 8(1) if he communicates such information to a person other than a person to whom he is duly authorized to communicate it or to a person to whom it was his duty to communicate it; (4) there was abundance of evidence in this case to show that there was unauthorized communication. The nature of the information communicated to the accused clearly showed that the leakage must necessarily have originated from a government source, from someone who had access to the documents associated with the tender exercise; (5) in this case, the accused not only received the information but received it in accordance with his desire and not contrary to it. There were sufficient materials for the court to draw the inference that the accused had reasonable grounds to believe that the official information was communicated to him in contravention of the Act; (6) there is no provision or authority to the effect that a member of Parliament, by virtue of his status as such, is privileged to receive official information, otherwise unauthorized. There is no authority for a government servant to make such disclosure unless it is shown that it is the duty of the particular government servant to disclose to a particular person and that that person is the person to whom the officer has a duty to disclose, for instance a minister who is also a member of Parliament; (7) the privilege of a member of Parliament to raise any matter in Parliament can only be invoked in respect of proceedings in Parliament and not outside the House; (8) it could not be contended in this case that the confidentiality of the information had been broken and that authority to disclose could be implied; (9) the charges against the accused had been proved beyond reasonable doubt and he has not raised any defence sustainable in law and in fact.

Public Prosecutor v Lim Kit Siang [1979] 2 MLJ 37 High Court, Kuala Lumpur (Abdul Hamid J).

[Annotation: See also the decision of the Federal Court in [1980] 1 MLJ 293.]

These three appeals arose out of a joint trial of three charges, in respect of Frederick Tan Im Kian ('Tan'), under s 5(1)(e)(f) of the Official Secrets Act (Cap 233, 1970 Ed) ('the Act'), for communicating certain confidential documents to Phua Keng Tong ('Phua'), and, in respect of Phua, under s 5(2) of the Act, for receipt of certain confidential documents. Tan at all material times was the Director of Protocol and Consular Division, Ministry of Foreign Affairs. Phua, a close friend of Tan, was the financial manager of Philips (Singapore) Pte Ltd. The learned senior district judge convicted Tan on all the three charges and sentenced him to one day's imprisonment and to pay a fine of S$750 on each charge, the sentence of imprisonment to run concurrently. Phua was acquitted and discharged. The Public Prosecutor appealed against the acquittal of Phua and against the sentences on Tan, who in turn appealed against convictions and sentences.

Held: (1) s 5(1) of the Act falls within the ambit of art 14(2)(a) of the Constitution of Singapore and is therefore not ultra vires art 14(1) of the Constitution; (2) mens rea is a necessary ingredient of the offence which the prosecution must prove. The prosecution has proved the ingredients of the offences with which Tan was charged, and his convictions must stand. Considering all the relevant facts, the learned judge is not disposed to disturb the nominal terms of one day's imprisonment. The fine of S$750, however, is manifestly inadequate and is increased to S$1,500 for each of the charges and, in default, one month's imprisonment; (3) the ingredients of the charge have been proved against Phua. The acquittal is set aside, and Phua is convicted of the charge. He is fined S$1,500, and, in default, one month's imprisonment.

Public Prosecutor v Phua Keng Tong and other appeals [1986] 2 MLJ 279 High Court, Singapore (LP Thean J).

Bridges Christopher v Public Prosecutor [1997] 1 SLR 406 High Court, Singapore (Yong Pung How CJ).

Bridges Christopher v Public Prosecutor [1997] 1 SLR 406 High Court, Singapore (Yong Pung How CJ).

The appellant was a lawyer. He was charged with receiving information on the current addresses of persons from one Ganesan, who was a CID officer, contrary to s 5(2) of the Official Secrets Act (Cap 213) (`the Act'). The appellant then communicated the addresses and the dates of changes of addresses to PW1, another lawyer, who needed them to serve processes on these persons. He was also charged for this under s 5(1)(c)(i) of the Act. The prosecution's case was that these addresses came from the CID on-line system and that they were secret official information. Ganesan, who was tried jointly with the appellant on charges of communicating the addresses to the appellant or alternatively abetting the appellant to receive the addresses, called DW4 to give evidence. DW4 testified that the addresses came from one Sheila of Creditnet, a company which provided search services. The prosecution was allowed to call PW12, the managing director of Creditnet, to give rebuttal evidence that the addresses could not have come from Creditnet because Creditnet did not have them. The investigating officer, PW10, had interviewed Sheila and PW12. DW4 had also complained that PW10 did not record down his statements regarding Creditnet. The prosecution relied on a confession by Ganesan that the addresses came from the on-line system. The appellant's defence was that he did not know that the addresses came from the on-line system, that the addresses were not official secrets and that he had no reasonable ground to believe that they were communicated to him in contravention of the Act. The appellant was convicted and he appealed.

Held, allowing the appeal: (1) the Act did not draw any distinction between information `owned by the government or private persons. The ownership of information was irrelevant; (2) the mere fact that the information was already in the public domain did not mean that it ceased to be protected information. If the information reached the public domain as a result of unauthorised disclosure, that information did not cease to be secret official information; (3) addresses may or may not be secret official information, depending on the circumstances of the case; (4) where information was supplied to the government by private persons which the government may have a duty to protect from indiscriminate disclosure, the court was prepared to accept that whether it was in fact secret official information depended on how the government chose to treat it. This was subject to the provision that the private person may have an overriding right to disclose the same information to whomever he pleased, and thus a correlating right on the recipient to receive it; (5) where determination of the issue turned on how the government chose to treat a particular piece of information, the prosecution could not argue that the availability of the information from other government sources did not detract from its status as an official secret. If other government departments, organs or officers were authorised or required by law to publish, release or make available the same information to the public, then once this was done, such information had to, by definition, cease to be secret official information; (6) the mere fact that it was cumbersome to locate the information did not alter the fact that the information had been made available to the public through an authorised source; (7) the prosecution had not called any evidence to show that the addresses in question were not available from the registration officer under the Parliamentary Elections Act (Cap 218). There was therefore a real possibility that the information in this case was information that had been made available to the public by a person authorised to do so. In the circumstances, the court was not satisfied that the prosecution had even established a prima facie case that the information forming the subject matter of the charges was official information protected by the Act; (8) a person had reasonable ground to believe a thing if he had sufficient cause to believe that thing, but not otherwise. The words `reasonable ground to believe' in s 5(2) would be otiose if it meant the same thing as actual knowledge or belief; (9) where information of a particular class were generally made available to the public, the mere fact that information falling within this class, but was exceptionally not released to the public, was divulged by some person working in the government was not sufficient to establish a prima facie case under s 5(2) that there was ground for believing that the information was revealed in contravention of the Act; (10) difficulty of obtaining the information per se was not a sufficient basis in the present case to say that the appellant had reasonable ground of belief. There was no reason to suppose that it was difficult to obtain the latest addresses because these were information protected by the Act; (11) an offence under s 5(1) was not a strict liability offence. The mens rea required for an offence under s 5(1)(c)(i) was an intention to communicate the information, knowledge that the information was secret official information, knowledge that he did not have the authority to communicate the information to the person concerned or that it was not his duty to do so, and in the case of an offence under the second limb of para (c), the communicator had to know or have reasonable ground to believe that the information was obtained in contravention of the Act; (12) as the appellant did not know and had no reasonable ground for believing that the addresses were secret official information, the charges under s 5(1)(c)(i) had also not been proven; (13) on rebuttal evidence, the question was simply whether the prosecution was misled or taken by surprise, or that a matter had arisen quite unexpectedly in the trial which the prosecution could not reasonably have anticipated; (14) on the facts of this case, the prosecution ought reasonably to have realised that PW12's evidence was necessary. PW12's evidence was indeed called to bolster the prosecution's case that the information was obtained from the CID on-line system. It was the prosecution's burden to prove this. The prosecution could not call rebuttal evidence to merely confirm its case. While it was open to the defence to call evidence to poke holes in the prosecution's evidence, the prosecution could not be allowed to call rebuttal evidence merely because the defence appeared to have succeeded in doing so. It was unfair to the defence. The district judge therefore erred in allowing PW12 to be called. This defect did not appear to be curable as the district judge assessed DW4's credibility by relying on PW12's testimony. The court could not say that even without PW12's evidence, the district judge would inevitably have come to the conclusion that the information could not have come from; (15) Ganesan's confession was not admissible against the appellant in relation to the charges of communicating to PW1; (16) (per curiam) it was ludicrous to suggest that information such as `the sun rises in the east' was secret official information even if it was classified as `Top Secret' by a government department. Common sense dictated that a line had to be drawn somewhere. Information falling on the wrong side of the line could not be secret official information no matter how the government chose to treat it; (17) (per curiam) the fact that an innocuous piece of information was contained in a document or discussed in a meeting might be secret official information even though that particular piece of information itself was not; (18) (per curiam) where the information had not been physically published or communicated to the public, but was made available to any member of the public who wished to have access to it, it was arguable whether such information ceased to be protected by the Act; (19) in the case of information that had not been formally released to the public but was of so innocuous a nature that nobody thought it necessary to do so formally, whether the information was secret official information would depend on the manner the government chose to treat it. In the absence of any express instruction or directive, it would be safe to assume that it was not secret official information.

Bridges Christopher v Public Prosecutor [1997] 1 SLR 406 High Court, Singapore (Yong Pung How CJ).

Held: the prohibition of the sale of adulterated chandu dross is absolute, and knowledge of such adulteration by the person selling the dross is not necessary to constitute the offence.

Chong Kwong v Public Prosecutor [1935] MLJ 41; [1933-34] FMSLR 337 High Court, Federated Malay States (Thomas CJ).

[Annotation: Where the wording of the section indicates an absolute prohibition, it is unnecessary for the prosecution to prove mens rea in order to secure conviction under the section. See Ong Aik Phow v R [1937] MLJ 73.]

Held: there was no satisfactory proof that appellant was in possession of chandu but the presumption that he was in possession of chandu apparatus was sufficiently strong to warrant a conviction. Conviction under s 4(1) dismissed and conviction under s 4(2) allowed.

Tan Peng Guan v R [1957] SCR 28 Supreme Court, Sarawak, North Borneo and Brunei (Smith J).

Held: an accused person who is merely smoking chandu may not be charged with being in possession of the chandu which is actually smoking in his pipe.

Tang Seng v R [1952] SCR 22 Supreme Court, Sarawak, North Borneo and Brunei (Smith J).

The appellant, a prisoner, was charged jointly together with two other prisoners with the possession of chandu, contrary to s 4(2) of the Opium and Chandu Ordinance 1949. He was convicted on evidence that chandu was found in a tin behind the name-board above his bed in the communal cell.

Held: (1) the standard of proof of the appellant's guilt fell below that which is required in a criminal case and his conviction must be quashed; (2) the only authority for the joint trial of offenders is s 171 of the Criminal Procedure Code, which permits a joint trial when the offenders have committed the same offence. 'Same offence' means an offence in which all the persons to be tried jointly are concerned and does not mean merely an offence under the same section of the law.

Yee Chee v R [1953] SCR 64 Supreme Court, Sarawak, North Borneo and Brunei

Tang Seng v R [1952] SCR 22 Supreme Court, Sarawak, North Borneo and Brunei (Smith J).

See CRIMINAL LAW, Vol 4, para 642.

The petitioner in this revision was the owner of three motor lorries. On 26 October 1948, two of the petitioner's employees were convicted of having in their possession (hidden in a lorry belonging to the petitioner but in their charge) eight slabs of opium. At that trial, the petitioner's lorry was forfeited. On appeal, the conviction of the second defendant was quashed and the order regarding the forfeiture of the lorry was set aside and it was ordered that the owner (the present petitioner) be given an opportunity to appear before the district judge to show cause why the lorry should not be forfeited. In pursuance of this order, the petitioner appeared before the judge, who confirmed the forfeiture.

Held: in the case of a highly penal provision like that contained in para 17(1) of the Opium and Chandu Proclamation (No 49 of 1946), it is necessary to establish some degree of complicity on the part of the owner of a vehicle before the forfeiture of the vehicle can be ordered.

Public Prosecutor v Lim Geok Ching & Anor [1949] MLJ 154 High Court, Malacca (Pretheroe J).

Held: where a motor car, the property of a completely innocent person, is being used in connection with an offence of which no knowledge can be attributed to such person, then an order should not be made under s 17 of Opium and Chandu Proclamation (No 49 of 1946) confiscating such motor car.

Cheng Kee Huat & Anor v Public Prosecutor [1948] MLJ 53 High Court, Malayan Union (Russell J).

Lim Geok Ching & Anor v Public Prosecutor [1952] MLJ 113 High Court, Malacca (Callow J).

See CRIMINAL LAW, Vol 4, para 647.

The respondent was convicted on a charge of unlawful possession of chandu in contravention of s 3(1) of the Opium and Chandu Proclamation (No 49 of 1946). The learned President of the Sessions Court made an order that the respondent be 'bound over under s 18A'. The Deputy Public Prosecutor appealed against that order.

Held: (1) s 18A of the Opium and Chandu Proclamation is intended to cover the case of a man of good character who is found in possession of opium for his own consumption only and who has been driven to such possession by a pathological craving, and it is intended to secure that when such a man escapes punishment, he should only do so on condition that he subjects himself to a course of treatment prescribed by the court on adequate medical advice; (2) on the facts in this case, the respondent was in possession of the chandu for the purpose of trafficking and as the amount of chandu was comparatively large, the learned President should have imposed a term of imprisonment.

Public Prosecutor v Chew Jim [1950] MLJ 203 High Court, Ipoh (Thomson J).

This was an appeal against the conviction of the appellant for possession of chandu and against the order of forfeiture of the motor lorry, in which the chandu was found. It appeared that the first appellant was the lorry cleaner who had the general care and charge of the lorry and had the key of the locker in which the chandu was found. The second appellant was the lorry driver. At the trial, the owner of the lorry was not given an opportunity to show cause why the lorry should not be forfeited.

Held: (1) there was no evidence that the second appellant had possession, custody or control of the chandu and therefore his conviction must be set aside; (2) there was evidence as against the first appellant, from which the learned district judge could infer possession and, on the facts, his conviction was correct; (3) as the owner of the lorry had not been given an opportunity of showing cause why the order for forfeiture should not be made, the order for forfeiture must be set aside.

Lim Geok Ching & Anor v Public Prosecutor [1952] MLJ 113 High Court, Malacca (Callow J).

The appellant appealed from his conviction and sentence on a charge of possession of opium, an offence under the Opium and Chandu Proclamation 1946. The learned President of the Sessions Court had found that the appellant was in control of the opium, though he was not in actual physical possession of it.

Held: (1) where an accused is found in control but not in actual physical possession of opium, it is essential that inferences drawn from the evidence as establishing knowledge in the accused must be correctly construed and that the conclusions inferred must be capable of only one construction, viz, the guilty knowledge of the accused; (2) in this case, some of the evidence on which the inference, were drawn by the learned President of the Sessions Court was capable of a construction equally in favour of the appellant and the benefit of the doubt should have been given to him.

Phoon Liat Sum v Public Prosecutor [1950] MLJ 205 High Court, Ipoh (Hill J).

On 14 March 1951, the appellant was a passenger in a car which, on instruction by the police, was stopped at the first milestone road block Mersing-Jemaluang road and was taken to Mersing police station. The car was driven by one Teoh Geok Soo (first accused in the lower court) and the appellant (second accused in the lower court) was seated beside him. The car was searched and, concealed under zinc covers which were properly screwed to the floor board and covered over with rubber matting in the front of the car both under the places where the driver and the appellant, the passenger, would normally have their feet while in the car, and also in the rear of the car, the police found 11 packets of opium. Both accused were arrested and charged. The learned magistrate found both accused guilty and accordingly convicted them.

Held: the conviction could not be sustained because the prosecution failed to prove that (a) the appellant had knowledge that the opium was concealed in the containers under the floor boards, (b) such opium was in his custody, (c) he had any control over it, (d) he intended to exercise such control, or (e) he was in any way in possession of it.

Quek Bee Yam v Public Prosecutor [1952] MLJ 187 High Court, Johore Bahru (Storr J).

Public Prosecutor v Chew Jim [1950] MLJ 203 High Court, Ipoh (Thomson J).

See CRIMINAL LAW, Vol 4, para 660.

The appellants, together with one Kuah Thian Chye who absconded, were charged jointly with the possession of one pan containing some 19 tahils of chandu which was being prepared in a room at No 17 Hale Street, Ipoh, at about 4am on 17 May 1949. They were convicted and sentenced to various terms of sentences. The second appellant, who lived in the room, only appealed against his sentence. The main argument of the appellants' counsel was that the word 'occupier' in s 3(2) of the Opium and Chandu Proclamation (No 49 of 1946) meant a person who was in legal occupation or lived on the premises, or that part of the premises, and habitually resided there. Mr MG Neal who appeared for the Public Prosecutor supported the judgment of the learned President of the Sessions Court who, in his judgment, said: 'I consider that all persons who are found in a room at a time when a raid is made are ÒoccupiersÓ for the purpose of s 3(2), Opium and Chandu Proclamation No 49/46. The word ÒoccupierÓ is not defined. In s 5(i)(b), ÒoccupierÓ certainly appears to mean a person who has some right to remain on the premises for some length of time and would exclude a mere visitor. ÒOccupierÓ in s 3, however, I consider to be a term sufficiently wide to include not only a tenant but also a licensee or even a trespasser. To put the matter in a nutshell, the effect of s 3(2) is to place upon any person found in the immediate locality of any opium or chandu the duty of proving his innocence to the satisfaction of the court. See s 18(i).'

Held: as the appellants were discovered in a closed room in a closed house, out of which room the first appellant emerged on the entrance of the customs officials at 4am, they were rightly held by the learned President to be occupiers of that room, and therefore, as chandu was found in that room, the presumption under s 3(2) arose as against them all.

Ong Eng Soo & Ors v Public Prosecutor [1949] MLJ 231 High Court, Ipoh (Storr J).

[Annotation: Choo Ah Tee v Public Prosecutor [1915] 1 FMSLR distinguished.]

The appellant was convicted of possession of chandu in a house at Batu Lane, Kuala Lumpur. The appellant was found in a hall which was the only means of access to various rooms in the house occupied by different subtenants. One of the questions raised on appeal was whether the learned President who tried the case was right in finding that the appellant was the occupier of the hall and therefore that the presumption under s 3(2) of the Opium and Chandu Proclamation (No 49 of 1946) applied against him.

Held: (1) on the facts, the appellant was not in exclusive occupation of the hall and therefore he could not be held to be the occupier of the hall; (2) there was sufficient evidence aliunde to show that he was in possession of the chandu and therefore the conviction of the appellant must be upheld; (3) (obiter) the case of R v Carr-Briant 29 Cr App R 76, which decided that the burden placed upon an accused person where some matter is presumed against him 'unless the contrary is proved' may be discharged by evidence satisfying the court of the probability of that which the accused is called upon to establish, is applicable in cases under the Opium and Chandu Proclamation.

Lim Say Hun v Public Prosecutor [1950] MLJ 116 High Court, Kuala Lumpur (Spenser-Wilkinson J).

In this case, the appellant had been convicted of possession of chandu, which was found in a room where the appellant and three other persons were found when the premises were raided by customs officers. It appeared that the appellant, either as an individual or as a member of a partnership, paid the rent of the room in which the chandu was found, that he left a safe containing money in it and that he visited it from time to time for the purpose of transacting business.

Held: the appellant was rightly found to be the occupier of the room and therefore he was rightly convicted of possession of the chandu under s 3(2) of the Opium and Chandu Proclamation (No 49 of 1946).

Loo Beng v Public Prosecutor [1950] MLJ 119 High Court, Ipoh (Thomson J).

This was an appeal by the Crown against the acquittal of the respondent in that, at the conclusion of the case against him in the lower court, the learned President of the Sessions Court held that the Crown had failed to establish a prima facie case against the respondent.

Held: according to the circumstances of this case, the learned President of the Sessions Court was correct in holding that no prima facie evidence of possession was made out against the respondent.

Public Prosecutor v Ho Cheong Beng [1950] MLJ 235 High Court, Malacca (Abbott J).

Kn'g Chong Heng v Public Prosecutor [1946] MLJ 123 High Court, Malayan Union (Laville J).

See CRIMINAL LAW, Vol 4, para 655.

In this case, the accused appealed against a sentence of six months' rigorous imprisonment for importing chandu, an offence under s 7 of the Opium and Chandu Proclamation. At the trial, the accused admitted the offence and in his grounds of appeal, he stated that he was an addict and that the chandu was for his own consumption.

Held: (1) where there is evidence that the possession or importation or exportation was for self-consumption and the amount of chandu concerned bore this out, the court should in assessing punishment bear in mind the provision of s 4(5) of the proclamation where the consumption of chandu is made an offence punishable by imprisonment for as long a term as is likely to cure the addict; (2) in this case, the district judge had assessed a reasonable period for the cure of the addiction and the appeal should be dismissed.

Kn'g Chong Heng v Public Prosecutor [1946] MLJ 123 High Court, Malayan Union (Laville J).

The appellant had been convicted of being the owner of a vessel used for the exportion of opium, an offence punishable under s 9(1) of the Opium and Chandu Proclamation (No 49 of 1946). The facts were that the vessel proceeded down the Malacca river bound for a foreign port and on being stopped at the customs examination station at the mouth of the river was found to have on board a quantity of opium concealed under sacks. The owner was not on board the vessel.

Held: (1) the definition of the word 'export' in the Transfer of Powers and Interpretation Ordinance, s 15, as meaning 'to take or cause to be taken out of the Malay Peninsula by land, sea or air' is narrower than the ordinary meaning of the word so that in this case, the process of exportation had not been commenced when the vessel moved down the river towards the open sea; (2) consequently, an attempted exportation only had taken place and as the Opium and Chandu Proclamation does not provide that an owner shall be deemed to have committed an offence if the vessel is used by someone else for such an attempt, the conviction of the owner in this case must be quashed.

Public Prosecutor v Lee Tuah Suah [1948] MLJ 55 High Court, Malayan Union (Taylor J).

This was an appeal from the conviction of the appellant for importing opium. On appeal, it was argued that (a) there was no legal proof that the articles found in the car of the appellant was opium as the certificate was not proved and that r 15 of the Opium and Chandu Rules was not a good and valid rule in making the finding of the chemist as shown in his certificate conclusive; (b) there was no evidence to show that the appellant knew the opium was in the car.

Held: (1) so much of r 15 of the Opium and Chandu Rules made under the provisions of s 22 of the Opium and Chandu Proclamation (No 49 of 1946) as purports to make the finding of the chemist as shown in his certificate conclusive and to prohibit his cross-examination is ultra vires the rule-making power given by s 22; (2) the certificate was admissible by virtue of r 15 read with s 73 of the Evidence Enactment and the amendments made by Gazette Notification 6025 of 1947 to the Opium and Chandu Proclamation and the certificate proved itself under s 79(2) of the Evidence Enactment; (3) to impute possession there must be more than juxtaposition and it must be shown that the person to whom possession is imputed has a conscious and exclusive custody or control of the article; (4) in this case, there was a reasonable doubt as to whether the appellant had conscious possession of the opium found in his car and therefore the conviction must be set aside.

Cheng Ong San v Public Prosecutor [1949] MLJ 69 High Court, Johore Bahru (Laville J).

The prosecution put in a certificate to show that an article in question was chandu. The certificate did not show that the chemist who signed the certificate analysed the articles sent to him or any one of them; nor did it show that when he referred to the articles as chandu, he was aware of the technical definition of the word 'chandu' in the proclamation and was satisfied that it came within that definition.

Held: the certificate was an insufficient one and as it was the only evidence for the prosecution that the article found on the accused's premises was chandu, the result was that the prosecution had not proved its case and the conviction must be quashed.

Ho Kiat Swee v R [1947] MLJ 159 High Court, Singapore (Jobling J).

This was an appeal against sentence in a case of possession of chandu.

Held: severe punishment under the Opium and Chandu Proclamation should, generally speaking, be reserved for traffickers and others who make a living rather than for the actual smoker.

Teo Heo Huat v R [1949] MLJ 271 High Court, Singapore (Murray-Aynsley CJ).

The Motor Traders Finance Co Ltd, the petitioners in this case, entered into a hire-purchase agreement with one Tan Swee Loh, who lent the car to the accused. The accused was convicted on a charge of being in possession of opium contrary to the provisions of s 3 of the Opium and Chandu Proclamation (No 43), and the learned magistrate, exercising the discretion which is given to him by s 17(1), made an order for the forfeiture of the car. The petitioners were innocent of any complicity in the offence, but Tan Swee Loh was not. The learned magistrate found as a fact that Tan Swee Loh was aware of the use to which the car was going to be put.

Held: distinguishing the cases of Cheng Kee Huat v Public Prosecutor [1948] MLJ 53 and Public Prosecutor v Goh Ah Moi [1949] MLJ 155, under the circumstances and in view of the guilty knowledge of the hire purchaser, the learned magistrate had exercised his discretion properly.

Re Motor Traders Finance Co Ltd [1951] MLJ 123 High Court, Singapore (Brown Ag CJ).

Held: the words 'no person except the farmer shall make or prepare chandu' in s 19(1) of the Opium Ordinance 1894, do not prohibit any person preparing, for his own use or consumption, chandu from the dross of chandu which has been lawfully purchased from the farmer.

Opium Farmer v Li Khuan [1904] 9 SSLR 1 High Court, Straits Settlements (Cox CJ and Hyndman-Jones J).

[Annotation: This case is no longer law.]

Held: on a consideration of the provisions of the Opium Ordinance 1906, s 73, which renders the importation of chandu a penal offence by the master and owner of the importing ship, applies to cases where chandu is in fact imported, but the prosecution have not the means of proving by whose aid, assistance, or procurement, or with whose privity or consent, or in whose interest or for whose profit that was done. That being the case, the burden of exculpating themselves in the manner prescribed in the subsection is thrown on them. Accordingly, a conviction and fine thereunder of the appellant, master of the steamship 'Devawongsee', of importing chandu, where it was conceded that the owner, the appellant and his chief officer were ignorant thereof, and the magistrate was satisfied that every precaution had been taken, were sustained in the absence of evidence that no other officers or servants or crew or other persons employed on the ship had not been implicated in the use of the ship for that purpose.

Jacob Bruhn v R [1909] AC 317 Privy Council Appeal from the Straits Settlements (Lord MacNaghten, Lord Atkinson, Lord Collins and Sir Arthur Wilson).

[Annotation: See now s 20 of the Misuse of Drugs Act (Cap 185, 1985 Ed).]

In this case, the Public Prosecutor appealed against the acquittal of the accused in respect of three charges under s 12(1)(d) of the Passports Act 1966 (Act 150). That section provides that any person who, with intent to obtain for himself or any other person a passport or other travel document, knowingly makes any false statement which to his knowledge is false in any material particular shall be guilty of an offence punishable under that section. The charges were that the accused knowingly made false statements separately on the application forms of W, L and M respectively to the effect that he had known these applicants for a certain number of years and signed against those statements with the name 'Mohd Kassim bin Yatim, PJK'. The court was told that it had been the practice for the immigration officers to accept recommenders for applications for passports from amongst persons who are holders of PJKs. The applicants testified that their application forms were filled up by a certain Chinese petition writer who typed out the particulars in the forms and who also told them he could find a suitable recommender for them. The forms were returned to the applicants with the recommendation made and apppeared to have been signed by a person named 'Mohd Kassim bin Yatim, PJK'. The applicants paid the petition writer a sum of money for the recommendation. They testified that they never saw much less knew who the said 'Mohd Kassim bin Yatim' was and therefore, to that extent, the statements in the applications were false. As the Chinese petition writer could not be traced by the prosecution, there was an absence of a direct link between those signatures and the accused. The prosecution adduced evidence of other witnesses who were familiar with the accused's handwriting and signature and also the evidence of the handwriting expert. The learned President concluded that the handwriting expert was not absolutely certain that the signatures were made by one and the same person and on that ground alone acquitted and discharged the accused.

Held, dismissing the appeal: (1) the evidence of experts can never go beyond an opinion and can never therefore be of absolute certainty. It has always been accepted that expert evidence especially of handwriting can never be conclusive; (2) in this case, it could not be said that at the close of the prosecution evidence, the prosecution had established a prima facie case, which if unrebutted would warrant a conviction, and therefore the respondent was rightly acquitted and discharged.

Public Prosecutor v Mohamed Kassim bin Yatim [1977] 1 MLJ 64 High Court, Ipoh (Hashim Yeop A Sani J).

In this case, all the appellants were appealing against conviction and sentence on a charge of abetting two illegal immigrants to enter the state of Brunei contrary to the provisions of s 56 of the Immigration Enactment 1956 as amended by the Emergency Immigration Amendment Order 1984. Section 56(b) under which the appellants were charged states that any person who 'abets any person to enter or leave Brunei in contravention of the provisions of this enactment or of the regulations' shall be guilty of an offence. The prosecution stated that they had proceeded upon the basis that s 56(b) created an offence of strict liability. The appellants contended as a ground of appeal that they did not understand the nature of the charge and did not have it properly explained to them.

Held: (1) what concerns us is not whether the charge was explained to and understood by the appellants but what charge was explained to them. If the offence was put to them on the basis that it was an offence of strict liability and they pleaded to it upon that basis then, if it is not such an offence, ie if knowledge forms an ingredient thereof, the pleas of the appellants were not valid pleas to the charge; (2) the word 'abet' is defined in s 107, Chapter V of the Penal Code ('the Code'). It states that a person abets the doing of a thing who intentionally aids the doing of that thing. Section 5A of the Code applies that section 'to any written law now or hereunder in force and to any instrument made thereunder'. A person would therefore commit an offence under s 56(b) of the Immigration Enactment only if he intentionally aided any person to enter the state in contravention of the provisions of the Immigration Enactment. Proof of knowledge is therefore an ingredient of the offence and as such a charge was not put and explained to the appellants, they must be allowed to reverse their pleas.

Nili Anak Gumbang & Ors v Public Prosecutor [1985] 1 MLJ 464 High Court, Bandar Seri Begawan (Power J).

In this case, the accused were charged with, inter alia, the offence of criminal conspiracy. As preliminary points of law, counsel for the accused raised three main issues. They were: (a) whether the court has jurisdiction to entertain the charges of criminal conspiracy; (b) whether the charge of conspiracy to defraud is an offence in Brunei; c) whether it is unfair to the accused to have all the conspiracy charges tried together. Counsel for the accused argued that with regard to the first issue, so far as the offence of criminal conspiracy was concerned, the gist of the offence lies in the agreement between the conspirators, and once an agreement is made, the offence of criminal conspiracy is complete. It was submitted that it is the country where the conspiratorial agreement is entered into that determines the jurisdiction of the court and not the country in which acts pursuant to that conspiracy have taken place. Counsel contended that the prosecution cannot show that any offence of conspiracy was committed in Brunei.

Held: (1) the arguments of counsel and the authorities overlook the continuing nature of a conspiracy. They do not give weight to the possibility that although the parties may initially agree in country A to carry out offences in country B, the parties may be proved to be in agreement and agreeing in country B on appropriate evidence, and it may be shown that the offence was committed in country B; (2) it is open to the prosecution to seek to prove in relation to each of the accused, whatever he had done outside Brunei, that he was agreeing in Brunei with at least one other to do or to cause to be done an illegal act and that, therefore, he was committing the offence of criminal conspiracy in Brunei and this is so even if he had earlier agreed or was agreeing outside Brunei to do the act; (3) so far as the second category of criminal conspiracy is concerned, it will be necessary for the prosecution to prove both that the accused was agreeing within the jurisdiction and that the overt act was committed within the jurisdiction; (4) the niceties of the law of contract and commerce as to the making of agreements and the place of making the agreement is not always appropriate to be applied in the criminal law, for these agreements which are concerned in conspiracies are illegal acts and not agreements in relation to other branches of the law at all; (5) there is no doubt whatsoever that the allegation of defrauding is a matter which furnishes ground for a civil action and that this is an offence which, as alleged, comes within the Penal Code; (6) the charges cover different aspects of the prosecution case and allegations and they are properly joined and there is no injustice at present in their being joined.

Public Prosecutor v Khoo Ban Hock & Ors [1988] 2 MLJ 217 High Court, Bandar Seri Begawan (Mortimer J).

The appellants participated in a procession together with some three hundred other persons which carried a banner to the British Resident's office to submit a request that a banned society of which they were supporters should be made lawful. The crowd was subsequently ordered to disperse and on failing to do so, the appellants were arrested.

Held: (1) the evidence disclosed a common object to overawe, within the meaning of s 141(i) of the Penal Code; (2) a procession by an unlawful society entails a common object to commit an offence and becomes an unlawful assembly within the meaning of s 141(iii) of the Penal Code; (3) in arriving at sentence, the court may not take into consideration matters not properly before it.

Abdullah bin Jaffar & Ors v State of Brunei [1953] SCR 28 Supreme Court, Sarawak, North Borneo and Brunei (Lascelles J).

The accused was charged under ss 6(a) and 13 of the Prevention of Corruption Act ('the Act') and s 165 of the Penal Code ('the Code'). The accused was acquitted of all charges under the Act but convicted of four offences under s 165 of the Code. This was an appeal by the accused against his convictions under the Code and a cross-appeal by the public prosecutor against the accused's acquittal. The accused did not dispute that all the ingredients of s 165 of the Code were present but argued that because there was no corrupt motive, there had been no offence against s 165. The magistrate found that there was no corrupt motive on the part of the accused and that no favours were shown by the accused to the consultants from whom the accused received a valuable thing in the form of an air ticket and the payment of part of his hotel expenses in Singapore. The accused gave evidence that his trip to Singapore was known to and approved orally by his superior, the Director of Public Works and that both the accused and the representatives of the consultants who paid his bills assumed that these costs would be recovered from the government in due course. Based on this fact, the accused argued that there was consideration in this case and that would take the conduct of the accused in accepting the valuable thing outside s 165 of the Code. Another issue before the court was whether s 165 of the Code was in wider terms than s 161 of the Code or s 6 of the Act; in other words, whether an act of corruption which does not fall within s 161 or s 6 would come within s 165 of the Code.

Held, allowing the appeal and dismissing the cross-appeal: (1) it was proper for the magistrate to give weight to the fact that he found no corrupt intent on the part of the accused as this ingredient was necessary in a charge under s 6 of the Act. Therefore, it was not for this court to interfere with a finding of fact by the magistrate unless there was no reasonable ground on which he could have reached that conclusion. The charges under the Act against the accused must fail on the facts because there had been a sufficient discharge by the accused of the burden which lay upon him; (2) s 165 of the Code was so worded as to cover cases which do not come within s 161 of the Code or s 6 of the Act. The difference between the acceptance of a bribe, punishable under s 161 of the Code or s 6 of the Act and s 165 of the Code is that under the first two sections, the gratification is the motive or reward for abuse of office. Under s 165 of the Code, the question of motive for the acceptance is immaterial and the acceptance of a valuable thing without consideration, or for an inadequate consideration, from a person likely to have any official business to transact with the acceptance is forbidden; (3) and that the person from whom the accused accepted the valuable thing was known by the accused to be, or to be likely to be, concerned in the public servant's official business. It is, therefore, not necessary to show that any corrupt motive was at work; (4) in order to establish a charge under s 165 of the Code, the prosecution must prove that the accused was a public servant; that he accepted or obtained a valuable thing; that no consideration was given for it, or a consideration which he knew to be inadequate;s 165 of the Code forbids the acceptance of any valuable thing without consideration or for a consideration which the public servant knows to be inadequate. There is nothing in the section which requires the consideration to be provided by the public servant himself, so long as consideration is rendered by someone. The word 'consideration' should be interpreted as including not only the payment of a price by the public servant and his promise to repay a loan but also any detriment which he may have suffered as a result of the acceptance of the valuable thing and any value which he may have given for it. Consideration would also include payments, etc made on his behalf by another, including his employer. The accused's visit to Singapore and the right to claim expenses, which was assumed to exist by everybody including the appellant, could amount to consideration within s 165. His convictions under the Code therefore should be quashed.

Public Prosecutor v Haji Kazi Habibur Rahman Criminal Appeal No 16 of 1992 High Court, Brunei (Roberts CJ).

The appellant was convicted on a charge of possession for the purpose of hire of obscene video tapes contrary to s 292(a) of the Penal Code. Counsel for the defence had argued that the ejusdem generis rule applied in this case and that as the genus was publication of obscene books, pamphlets, paper, drawings, paintings, representations or figures, therefore the genus could include only articles of a printed nature showing something obscene on their faces and video tapes were not such articles. On appeal, he went further and submitted that the particular objects mentioned in s 292(a) were all objects which could be obscene to sight or upon reading and a video tape was not such an object. The prosecution relied on the mischief rule.

Held, allowing the appeal: the words of the section were so plain that no aid to construction was required. Under the section, for an object to be obscene it had to be so to the sight or upon reading.

Lim Hock Thai v Public Prosecutor [1981] 2 MLJ 212 High Court, Brunei (Zimmern J).

The appellant was sentenced to death by the High Court on charges of murder and possession of firearms. His appeal to the Court of Appeal was dismissed. The appellant then filed a notice of motion seeking the leave of the Court of Appeal to appeal to the Judicial Committee of the Privy Council.

Held: (1) the principle that the Judicial Committee is not a court of criminal appeal still pertains. Should their Lordships consider a criminal matter to be one fit for their consideration, then they reserve to themselves the giving of special leave after which the matter is directed to be heard at an appropriate date; (2) criminal matters emanating from Brunei can still be presented to Her Majesty in Council but it is not open to the court here to accede to the order sought in the notice of motion; (3) the application is misconceived and the court makes no order upon it.

Yator bin Bunta v Public Prosecutor [1988] 2 MLJ 434 Court of Appeal, Bandar Seri Begawan (Yang P, Silke and Godfrey JJ).

The two accused were charged with murder pursuant to a common intention under s 302 read with s 34 of the Penal Code. The victim was found with stab wounds and head injuries caused by a blow to the head with a blunt object. It was the head injuries that had caused death. The first accused (D1) had reported to the police that he had found a man lying near some traffic lights. The police did not find anyone there but D1 showed up at the scene and led them to the Hua Ho building nearby where the victim was found. After some questions were put to D1, the DCO became suspicious of him and on further questioning he gave information on which the second accused D2, his brother, was arrested at his house. D1 also led the police to a bridge where part of a broken baseball bat was recovered. Among other evidence gathered were a bloodstained T-shirt which D1 was wearing under a blue uniform shirt and a knife and screwdriver found in the car D1 had been driving. The car was borrowed from his fiancee. Blood was also found under D1's fingernails. A bloodstained pair of jeans, a shirt and some gloves were recovered at D2's house. There was also human blood on the cushion of the car that D2 had driven on the night the victim was discovered. The two accused had made several statements incriminating themselves which they alleged were not made or not made voluntarily. The statements were: (a) from D1 to a magistrate on 13 April 1992; (b) two statements from D1 to DSP Zainuddin (the DCO) on 13 April 1992 and 21 April 1992 respectively; (c) two statements from D2 to Inspector Zaidi made on 13 April 1992 and 21 April 1992 respectively. In the voire dire, the court ruled that the prosecution had failed to satisfy the court that the statements were made voluntarily as provided in a 117(2) of the Criminal Procedure Code. Also, no notice under s 117(3) of the CPC was issued to the defendants though this would not prevent the admission of other statements if they had been made voluntarily. The detention of the accused under the Criminal Law Preventive Detention Act (Cap 150) at the time when some of the statements had been made was ruled as illegal but this did not exclude the statements if they had been made voluntarily. The statements in (a) may not have been voluntary as it was possible that D1 had been promised that he would be released if he made a statement and D1 had in the voire dire given evidence that he was assaulted and frightened into making the statement. D1 alleged that the statements in (b), the first of which was made after D1 had been brought back from the magistrate contained statements he had not made and the second statement had not been made by him. The court ruled on the evidence that it was not satisfied that these statements were voluntary or accurate. The court was not satisfied that the statements in (c) were voluntary as there was doubt in the evidence given by Inspector Zaidi and due to the fact that there was no witness to the second statement, which the accused had denied making.

Held, acquitting the two accused: (1) with the exclusion of the defendants' statements, the forensic evidence gathered, although arousing strong suspicion regarding the two accused, was not sufficient to prove beyond a reasonable doubt that they had committed the offence. The blood from the scrapings under D1's fingernails was insufficient to be grouped by the scientific officer. There was no blood found on the knife and the screwdriver taken from the car driven by D1. The blood found on D1's T-shirt could be grouped but there it was insufficient to carry on further tests. The evidence therefore only established that blood was found on the T-shirt and not its origin. D1 himself had blood which was of the group tested. The fact that D1 led the police to the place where the victim was found established that he knew that the victim had been killed there and no more. It did not prove he took part in the killing. Although D1's leading the police to the location of the broken baseball bat, which could have been used to cause the blows that killed the victim was damaging evidence, the bat was broken and the top part was never found. There were blood stains on the handle but the officer had been unable to group the blood. D1's knowledge of the baseball bat suggested that he may have known how or when the victim had been killed but it did not establish that he had taken part in the killing; (2) forensic evidence established that the blood found on the jeans recovered from D2 was the victim's blood. Blood found on the other items could not be grouped. The blood found in D2's car was human blood but also could not be grouped. There was no other evidence against him. The evidence showed that D2 had come into contact with the victim after his death but could not establish that he delivered the blows that killed the victim as there was nothing to connect him to the baseball bat. The evidence was insufficient to sustain a conviction.

Public Prosecutor v Asnan bin Kali & Anor Criminal Trial No 1 of 1993 High Court, Brunei (Roberts CJ and Judge Kifrawi (Commissioner).

In a trial of two sisters for murder, the prosecution sought to admit as evidence against the first accused confessional statements made by the second accused to a gazetted police officer during a police investigation, which confessional statements implicated the first accused in whose presence they had not been made, and to which she had never assented.

Deputy Public Prosecutor v Balau & Anor [1959] SCR 56 Supreme Court, Sarawak, North Borneo and Brunei (Briggs J).

D was charged with culpable homicide not amounting to murder, an offence punishable under s 304 of the Penal Code (Cap 22). It was the prosecution's case that D had caused the death of the deceased when he hit the deceased on the head with a chair. The end of one of the metal legs of the chair went through the deceased's skull in the region of his left temple which proved fatal. The deceased had rushed towards D after the deceased's father had been struck on the ankle, apparently by D with a stone. D denied that he assaulted the deceased.

Held, finding D guilty as charged: (1) the court was satisfied beyond reasonable doubt that on the evidence, the prosecution had proved that D hit the deceased on the head with the chair in question which proved fatal. The court was also satisfied beyond reasonable doubt, having regard to the nature of the article used, the obvious deadly force of the blow inflicted, the area to which it was directed and all the other circumstances of the case, that D did such act with the knowledge that it was likely to cause death to the deceased. D was accordingly convicted of culpable homicide as punishable under the second limb of s 304 on the basis of knowledge rather than intention; (2) D was sentenced to eight years' imprisonment, the sentence to run from the date of his arrest.

Public Prosecutor v Jufri bin Hj Kifli Criminal Trial No 13 of 1989 High Court, Brunei (Bokhary, Commissioner).

In this case, the accused who was originally charged with murder subsequently decided to plead guilty to the lesser offence of culpable homicide not amounting to murder. The two issues before the court were: (a) whether the prosecution needs to amend the murder charge to one involving the lesser offence; (b) whether the first limb of s 304 of the Penal Code (Cap 22) imposes a mandatory sentence of life imprisonment.

Held: (1) in a case such as the present one, the correct procedure is for the charge of murder to be read to the accused for plea. If he wishes to plead guilty to the lesser offence, it is open to him to plead not guilty to murder, but guilty to culpable homicide not amounting to murder. The agreed facts should then be read to the accused. If he confirms that they are correct, it is then open to the prosecution to state whether it accepts that plea; (2) if the practice has been to substitute a charge of culpable homicide not amounting to murder for one of murder, where the prosecution is prepared to accept a plea from the accused to the lesser offence, then it is wrong and should cease; (3) s 304 imposes a mandatory sentence of life imprisonment.

Public Prosecutor v Francis Dang anak Nuya [1988] 1 MLJ 89 High Court, Bandar Seri Begawan (Macdougall J).

[Annotation: See the decision of the Court of Appeal at [1988] 2 MLJ 438.]

The appellant was convicted and sentenced to life imprisonment for committing culpable homicide not amounting to murder. (See [1988] 1 MLJ 89.) The appellant appealed against this sentence to the Court of Appeal, contending that the phrase 'shall be punished with imprisonment for life' contained in s 304 of the Penal Code is not a sentence fixed by law.

Held, dismissing the appeal: (1) the punishment of 'imprisonment for life' referred to in s 304 of the Penal Code is a sentence fixed by law; (2) s 39 of the Interpretation and General Clauses Act (Cap 4) does not affect the fixed nature of that sentence other than it would not permit any sentence greater than life imprisonment (ie death) being imposed.

Francis Dang Anak Nuya v Public Prosecutor [1988] 2 MLJ 438 Court of Appeal, Bandar Seri Begawan (Yang P, Silke and Godfrey JJ).

The evidence did not establish satisfactorily that the supervening cause of death pneumonia was a sufficiently probable result of the primary cause the assault to justify the finding that the assault was the effective cause of death. The proper verdict therefore should have been one of guilty of voluntarily causing grievous hurt.

Lim Pang Teng & Ors v State of Brunei [1954] SCR 72 Supreme Court, Sarawak, North Borneo and Brunei (Smith Ag CJ, Lascelles J and Bodley J).

See CRIMINAL LAW, Vol 4, para 442.

D, a senior teacher of the branch school in question, was entrusted with the collection of school fees which had to be remitted to the head office at Bandar Seri Begawan. D failed to do so and committed criminal breach of trust by converting or dishonestly using part of those fees for her own purposes. The accountant who checked the accounts at the head office found that many of the payments supposedly made by D from the branch school in question had no receipt to support them. D had subsequently wrote out an admission to the principal of the main school stating that she had used the school fees collected without the principal's knowledge and promised to make good the sum in question. The principal referred the matter to the police and D was charged under s 408 of the Penal Code (Cap 22) with criminal breach of trust in relation to the sum in question. D pleaded not guilty to the charges and maintained her innocence of them.

Held, finding D guilty: (1) in the instant case, the two charges brought against D had been properly proved by the prosecution. D, being a clerk or servant, was entrusted with the collection of the school fees on behalf of the school and did not forward to the school the amount which was alleged in the charges. By converting those fees to her own purposes, there was dishonest misappropriation on her part. For the above reasons, the court convicted D of both charges; (2) in the instant case, D had not repaid any part of the sum converted to her own use. Although D had a clean criminal record, in view of the serious criminal breaches of trust committed by her, a custodial sentence was appropriate. Taking into account the fact that the charges had been hanging over her for a very long period, that is, almost two years since the date of her arrest, the court imposed upon her a sentence of 18 months' imprisonment on each charge, the sentences to run concurrently, as from the date of the judgment.

Public Prosecutor v Rokiah Bte Suhaili [1991] 1 CLJ 193 High Court, Brunei (Roberts CJ).

D faced three charges of housebreaking by night with intent to commit theft, all of which were offences against s 457 of the Penal Code ('the Code'). D's defence was that he had not been to Brunei at all and that he could not have committed the offences with which he was charged. D had led the police to a house where several of the stolen items were recovered.

Held, finding D guilty on the first charge and acquitting D on the second and third charges: (1) the prosecution must prove each element of each individual charge beyond reasonable doubt. It must also establish each charge separately and evidence on one is, save in limited circumstances, not available as evidence of the other charges brought against the same defendant; (2) (d) that the offence intended was theft, if the term of imprisonment is to extend to 15 years instead of five years; (3) on the first charge, it was established by the prosecution that a footprint found on a table in the flat matched those of D. Moreover, property taken from the flat was found in a house to which D led the police. The learned judge was satisfied from the evidence that the prosecution had proved each element of the offence under s 457 of the Code. D was accordingly convicted on this charge; (4) D was, however, acquitted on both the second and third charges as there was nothing to connect him with the housebreakings stated in the two charges. The learned judge observed that none of the stolen property was found on the person of D nor was he in direct possession of any of them. Though some articles from the housebreaking were discovered in a house which he led the police to, this was held by the learned judge to be insufficient evidence to connect D with the housebreakings. Furthermore, none of the occupants of the premises where the housebreakings were committed were able to identify those who entered the premises. The learned judge was accordingly not satisfied that the prosecution had established that D was guilty of either the second or the third charges; (5) by s 457, the prosecution must establish in each case that: (a) there was a housebreaking; (b) that the offence took place at night; (c) that the housebreaking was 'in order to the committing of any offence punishable with imprisonment';D, aged 33, had eight previous convictions, one for a minor offence and seven for illegal entry into Brunei. D had already served four sentences of imprisonment. D was therefore a first offender in relation to offences other than those concerned with immigration. Having regard to the above and the period during which D had been in custody, the learned judge imposed on D a sentence of 18 months' imprisonment on the first charge, the sentence to run from the date on which D was brought from Labuan to Brunei in custody.

Public Prosecutor v Ibrahim bin Kadir Criminal Trial No 5 of 1988 High Court, Brunei (Roberts CJ).

The appellants pleaded guilty to a number of fraud offences under s 489B of the Penal Code. Their imprisonment sentences were as follows: the first appellant three years; the second and third appellants two years each. The appellants appealed against the sentences complaining that they were excessive

Held, dismissing the second and third appellants' appeal and allowing the first appellant's appeal: (1) since the maximum sentence for an offence against s 489B of the Penal Code has been fixed at 15 years, it appears that those responsible for the Penal Code must have taken a very serious view of these offences which the court must reflect in sentencing; (2) as there may be some substance in the first appellant's objections to the facts as stated by the trial order in sentencing them, the court will give the first appellant the benefit of the doubt. The first appellant's sentence is reduced to the same as that imposed on the other appellants, namely, two years; (3) the second appellant's complaint of the deterioration in the condition of his eyes is a medical matter which a court cannot go into on an appeal against sentence; (4) there is no reason to interfere with the sentences passed on the second and third appellants.

Evangelina E Santos & Ors v Public Prosecutor [1988] 2 MLJ 523 Court of Appeal, Bandar Seri Begawan (Yang P, Silke and Godfrey JJ).

The appellant pleaded guilty to a charge of criminal conspiracy to defraud under s 120B(2) of the Penal Code read with s 420. The appellant was the son of K, a prominent businessman and founder of NBB, a bank. Although the appellant was named as the chairman of NBB, K was the moving spirit behind the business. It transpired that NBB had made large unsecured loans to companies connected with K. The accounts of NBB were 'fiddled' to make it appear that there were profits. This was done to induce others, including the government, to deposit money with NBB. The trial court sentenced the appellant to four years' imprisonment. The appellant appealed against his sentence, contending that the trial court failed to give due weight to the exceptional mitigating circumstances generally and in particular to the appellant's previous good character and his lack of intention to make a personal financial gain. It was also submitted that as the legislation provided for a maximum term of seven years' imprisonment for the offence, there was a failure to give a sufficient discount to the appellant's plea of guilty.

Held, allowing the appeal: (1) in assessing whether the sentence given by the trial court was excessive, the discount for a plea of guilty should be substantial and the question to be asked is: if there were a conviction after trial, what would have been the appropriate sentence; (2) it was accepted that the appellant was not a policy maker in NBB. But he should have realized that he had a duty to the outside shareholders of NBB and towards depositors and overseas institutions which were being provided with false information to induce them to deposit money with NBB. He failed to perform those duties. When he knew that something was wrong he should have resigned. He did not do so. The offences to which the appellant pleaded were grave and there should rightfully be an element of deterrence in that a chairman of a would-be major bank must receive such punishment as will in the public eye be a reflection of the gravity of his offence; (3) however, the appellant did not, nor did he intend to, line his own pockets with public money. The evidence of any loss to the public is neutral and the benefit should be given to the appellant; (4) the case is an unusual one and the sentence did not sufficiently reflect this aspect. Bearing in mind also all the other mitigating factors, the appeal court's interference is warranted; (5) the proper sentence should be one of three years' imprisonment.

Khoo Ban Hock v Public Prosecutor [1988] 3 MLJ 22 Court of Appeal, Bandar Seri Begawan (Yang P, Silke and Godfrey JJ).

On the afternoon of 2 June 1985, the complainant, Leong Hai Len, and her husband, Sali, left home at about 4.15pm and walked to the Lion Restaurant where she was working. Outside the restaurant a blue car containing two policemen, one of whom was the defendant, stopped near them. After a conversation between the two men and Sali, both husband and wife were taken to the Central Police Station in Bandar Seri Begawan. The two officers took Hai Len and Sali upstairs to the main CID room where Sali was questioned. The defendant then took Hai Len to a smaller office where while they were alone, he assaulted and raped her. Later both husband and wife were released. On their way home, Hai Len told Sali that she was raped by one of the policemen. The defendant was charged under s 375 and s 354 of the Penal Code.

Held: (1) to amount to corroboration, the evidence must confirm, in some important respect, the girl's evidence that intercourse took place, that it took place without her consent and that it was the defendant who committed the offence. Evidence of the distress of the victim of a sexual offence soon after the offence can be regarded as corroboration. On the evidence, the defendant was accordingly convicted; (2) it is a serious aggravation of what is in itself a grave crime, that the defendant abused his position of trust as a guardian of the law, with a duty to uphold it. Such conduct must constitute a blow to public confidence in the Force and damage the fine reputation which it has worked so hard to earn. The defendant was sentenced to eight years' imprisonment on the first charge and one year on the second charge, the sentences to run concurrently.

Public Prosecutor v Emran bin Nasir [1987] 1 MLJ 166 High Court, Bandar Seri Begawan (Roberts CJ).

The respondents pleaded guilty to criminal charges of kidnapping and extortion. The trial court ordered the sentences for kidnapping and extortion to run concurrently. The Public Prosecutor appealed against the trial court's decision on the ground that the concurrent sentences were wrong in principle and should have been ordered to run consecutively. Reliance was placed on s 13(1) of the Criminal Procedure Code (Cap 7) for this contention. The Public Prosecutor also contended that kidnapping and extortion constituted not only two distinct offences but also two distinct incidents, and it was wrong for the trial court to view these two offences as forming one transaction.

Held, dismissing the appeal: (1) that the accused were charged with distinct offences does not mean the distinct offences must be necessarily considered to be distinct incidents; (2) s 13(1) simply provides the 'mechanics' of sentencing and gives no direction as to preference or priority between consecutive and concurrent sentences; (3) on the facts of the case, the trial court was perfectly entitled to come to the conclusion that the kidnapping and the extortion constituted one transaction. The trial court did not err in principle.

Public Prosecutor v Wong Kok Sein & Ors [1988] 2 MLJ 436 Court of Appeal, Bandar Seri Begawan (Yang P, Silke and Godfrey JJ).

A was convicted of the offence of rape by the High Court. The charge was that he had raped his Filipino maid contrary to ss 375(a) and 376 of the Penal Code (Cap 22). A appealed to the Court of Appeal against the conviction. A's defence was that the complainant had consented to having sexual intercourse with him on the day in question. Evidence was adduced to show lack of resistance on the part of the complainant. It was also contended that the trial judge should not have convicted A wholly on the evidence of the complainant.

Held, dismissing the appeal: (1) in the instant case, evidence of the laceration of the hymen amounted to corroboration and supported the complainant's account of lack of consent on her part. The laceration was consistent with recent intercourse; (2) the trial judge did not err when he convicted A wholly on the evidence of the complainant. The trial judge was perfectly aware of the risk of acting upon uncorroborated evidence, and was prepared to act and had in fact acted upon the complainant's evidence alone; (3) there is a fundamental difference between consent and submission. Consent always imports submission but submission does not necessarily import consent. In the instant case, the relationship between A and the complainant and the position of dominance he had established over her demonstrated the hold that he had over the complainant. From the evidence adduced, it could be seen that the complainant was afraid of doing anything which might prejudice her position and her employment. It could not accordingly be said that there was a consent on the part of the complainant.

Foong Boo Jang Augustine v Public Prosecutor [1990] 2 MLJ 225 Court of Appeal, Brunei (D Cons (Ag President).

The first charge in this criminal trial alleged that all the three defendants raped the complainant Miss X, a 23-year-old divorcee and mother of two children, at Meragang on 16 July 1984. The second charge alleged that D1 and D2 raped Miss X at Kampong Subok later on the same morning. In respect of the second charge, she testified that she was subsequently driven by D2 to Kampong Subok, where D1 and D2 had sexual intercourse with her in a house against her will. She made her police report on the following day, shortly after midnight. She was medically examined about 48 hours after the rape was alleged to have taken place. The prosecution case on the first charge was corroborated by two independent eye witnesses. On the second charge, it had to rely on the evidence of Miss X alone. In their defence, D1 gave evidence on oath and D2 and D3 made unsworn statements from the dock. They all maintained that they never had intercourse with Miss X.

Held: (1) on the first charge as in almost all sexual cases, the credibility of the victim is the most important single issue to be determined. Miss X was a credible witness; (2) it is dangerous to convict on the uncorroborated evidence of the complainant. PW5 and PW7 saw Miss X unclothed and each of the three defendants having intercourse with her on the front seat of the Mazda against her will. The medical evidence must be regarded as neutral; (3) D1 and D3 were convicted of rape, and D2 of attempted rape. Section 34 of the Penal Code is not applicable; (4) D1 was sentenced to seven years' imprisonment to begin at the end of sentence in case No 1512/84. D2 was sentenced to five and a half years' imprisonment, with effect from 20 July 1984. D3 was sentenced to four and a half years, with effect from 20 July 1984; (5) D1 and D2 were acquitted of the second charge, although it was open to the learned judge to convict them.

Public Prosecutor v Nasar bin Ahmad & Ors [1986] 2 MLJ 71 High Court, Bandar Seri Begawan (Roberts CJ).

The first three defendants (D1, D2 and D3) were charged with raping a 20 year-old girl, Miss X, an offence punishable under s 376 of the Penal Code. The fourth defendant (D4) was charged with attempting to rape her. The girl was the principal prosecution witness. The gist of her evidence is that during the early hours of 26 September 1985, she was taken in a car by the four defendants to Meragang Beach, Muara. These defendants had identified themselves as members of the Religious Department CID. When the car arrived at the beach, D1 pulled her out of the car, holding both her hands, and took her to a sandy place, where he pushed her to the ground, held her crossed arms against her chest with one hand and pulled down her trousers and pants with his other hand. He removed his own trousers and pushed his penis into her. She said she was forced to submit. Then D3 raped her in the same way as D1. When D3 had finished, D2 came and raped her, followed by D4 who also raped her. She said she did not tell her family what had happened when she first got back, because she was afraid of her father. She made a report at the Berakas Police Station at about 10 pm on 26 September 1985, where it was alleged in the report that Miss X was raped by three of the four men. She made a further report at Muara Police Station stating that she was raped by three of the four men. When Miss X was examined by Dr Lamplugh, a specialist gynaecologist, at about 10.30 pm on 27 September 1985, Miss X had changed her clothes and had washed her private parts since the time she alleged that she had been raped. The doctor found no bruises on the girl and no recent laceration of the hymen. She found no spermatozoa and no positive evidence of recent intercourse or injury. The only significance of the fact that the vagina admitted two fingers was that intercourse could have taken place at some time. Swabs from Miss X showed no motile spermatozoa or gonococci. One specimen was submitted to an acid phosphatase test, which showed a level of 140 iu. Statements made by each of the four defendants were admitted in evidence. D1's statement was wholly exculpatory. D2 admitted in his statement that he had sexual intercourse with the girl. D3 in his statement said he had sexual intercourse with Miss X once. D4 in his statement said while he was having sexual intercourse with her he did not have an erection. In his defence, D1 said he got on top of Miss X but did not penetrate her at any time. In his defence, D2 saw D3 having sexual intercourse with her. D2 got on top of her and penetrated. D3 in his defence said he penetrated her for two or three minutes and ejaculated outside her private parts. He thought she was willing to have intercourse because she did not struggle. In his defence, D4 said he did not see her crying or struggling when any of the other defendants was on top of her, nor was she crying when he approached her or when he got on top of her. D4 was, however, unable to get an erection and did not take off his trousers. The principal issues for decision are: (a) did she consent to what was done to her by the defendants, and (b) her credibility.

Held: (1) the court could find nothing which amounted, in law, to corroboration of the evidence of Miss X in relation to the issue of consent. The court was left in relation to that with nothing but her testimony; (2) on some important features of the incidents which she described, such as how many people raped her and how many people penetrated her, her stories have varied. The learned judge could not be sure of the accuracy of her stories; (3) it would be unsafe to convict the defendants on the charges. Accordingly, they were found not guilty and discharged.

Public Prosecutor v Zainal Abidin bin Ismail & Ors [1987] 2 MLJ 741 High Court, Bandar Seri Begawan (Roberts CJ).

The respondent was charged with entry upon property in the possession of another and with intent to commit an offence of theft, an offence punishable under ss 379 and 447 of the Penal Code. He was also charged for having in his possession without lawful excuse housebreaking implements, viz one garden scoop, one Sonca torchlight, one set of multi-purpose lunch set and one bottle-opener fitted with knife and spike, under s 24(e) of the Minor Offences Enactment (Cap 30). The evidence against the respondent was that a witness first saw him walking back and forth, hanging around in the compound of a flat and at that time, he was shining a torch at all the cars in the garage. The witness became suspicious after seeing this and so he approached the respondent. He found out the respondent's name and noticed that the respondent was carrying a knapsack on his back. He asked the respondent what he was doing there and the reply he received was that he was searching for a wedding ring which he had dropped the previous day whilst jogging in that area. The witness looked into the knapsack and found one baseball hat, one curtain, one garden scoop, a bicycle pump, a green cap, two pocket knives, one of which was a bottle-opener fitted with a knife and spike, and when he asked the respondent what he was doing with those articles at that time, the respondent gave no reply whatsoever. The learned magistrate considered that the items mentioned in the charge could not be used for the purpose of housebreaking and held that 'a garden scoop, a multi-purpose lunch set, a bottle-opener fitted with knife and spike... would not be able to do the job of opening a window or door and would not come under the ambit of housebreaking implements'. He held that 'a person would not attempt to commit theft at 5.15am in an open space. The accused used a torchlight. He could easily be detected by people around as he was by the Inspector. If he had the intention of committing theft from the car, the torchlight he should have used would have been a pencil torchlight not like the torchlight produced in court'. The Public Prosecutor appealed against the above decision.

Held, allowing the appeal: a prima facie case has been made out against the respondent in respect of the first and second charges and accordingly, he should have been asked by the magistrate to answer the two charges.

Public Prosecutor v Chong Ing Chu [1984] 1 MLJ 391 High Court, Bandar Seri Begawan (Garcia J).

The appellants pleaded guilty to various charges of gang robbery, voluntarily causing hurt using a variety of deadly weapons and housebreaking by night. Their sentences were as follows: first and second appellant 12 years' imprisonment for gang robbery and voluntarily causing hurt using deadly weapons; third appellant 14 years' imprisonment for gang robbery and four years' imprisonment on each of the housebreaking charges, the sentences to run concurrently. They appealed against their sentences to the Court of Appeal.

Held, dismissing the appeal: the sentences imposed upon the appellants are entirely correct. If the appellants had pleaded not guilty, a sentence of 15 years' would have been appropriate for a gang robbery of this nature.

Basir bin Badonggo & Ors v Public Prosecutor [1988] 2 MLJ 442 Court of Appeal, Bandar Seri Begawan (Yang P, Silke and Godfrey JJ).

The appellant, a paymaster in Tutong Camp of the Royal Brunei Malay Regiment, was charged with three offences of criminal breach of trust under s 405 of the Penal Code and punishable under s 406 thereof, and three alternative charges of dishonest misappropriation under s 403 of the Penal Code. He was found not guilty on the second charge and its alternative. He was convicted on the first and third charges and was sentenced respectively to one month's imprisonment and five months' imprisonment. The appellant appeals only against conviction on the first and third charges. The evidence shows that as paymaster, he was entrusted in 1978 and 1979 with substantial sums of public money in relation to which he was the accounting officer. As a result of indents signed by the appellant, the Treasury issued cheques to him to be encashed by him for payment of serving soldiers, and it was his duty to balance payments shown in the Acquittance Rolls, and the amount of unpaid money returned to him against the amount of the cheques which had been drawn by the Treasury and cashed by him at the bank. It was discovered that there were total cash deficiencies for 1978 of RM6,761.75, the amount in the first charge and of RM49,030.05, the amount in the third charge, under which the magistrate was satisfied that the amount should be reduced by RM7,071.71. In his defence, the appellant sought to throw the blame on other members of his staff. He said on a number of occasions, cheques had been cashed by members of his staff and not by himself. He also raised the issue of joinder of charges.

Held, dismissing the appeal: (1) the evidence shows a design by the appellant to cheat the Treasury by converting to his own use various sums of money returned to him by way of unpaid balances. Each of the occasions on which he converted money was in furtherance of a general purpose which falls within the same transaction, ie a series of misappropriations springing from a single design to convert public money to his own use; (2) to establish the offence of criminal breach of trust, it is not sufficient merely to show a dishonest misappropriation of funds entrusted to the defendant. If that is all that can be established, there may be an offence under s 403 of the code, but not under s 405. To satisfy the requirements of s 405, the prosecution must also show that the misappropriation was in violation of a direction of law as to the manner in which the trust is to be discharged or of an express or implied legal contract which he has made concerning the discharge of the trust; (3) although the defendant could not be said to have appropriated the money entrusted to him in violation of any direction of law, he was violating a term of his contract of employment as a public servant which obliged him to follow the State Financial Regulations which had been administratively introduced throughout the service; (4) the decision of the magistrate was correct and the appeal against conviction must be dismissed; (5) (obiter) '...[the accused] was well advised not to appeal against the sentences imposed upon him. In my view, these were far too low. I consider that about six months on the first charge and 12 months on the third, the sentences to run consecutively, would have been appropriate.'

Murni bin Hj Mohamed Taha v Public Prosecutor [1986] 1 MLJ 260 High Court, Bandar Seri Begawan (Roberts CJ).

Khoo Ban Hock v Public Prosecutor [1988] 3 MLJ 22 Court of Appeal, Bandar Seri Begawan (Yang P, Silke and Godfrey JJ).

See CRIMINAL LAW, Vol 4, para 661.

Public Prosecutor v Chong Ing Chu [1984] 1 MLJ 391 High Court, Bandar Seri Begawan (Garcia J).

See CRIMINAL LAW, Vol 4, para 685.

D were charged with offences relating to receiving, possessing and using forged Brunei currency notes contrary to ss 489B and 489C of the Penal Code (Cap 22). D1, who was not represented, pleaded guilty to the charge brought against him under s 489B of receiving the forged currency notes. The Deputy Public Prosecutor offered no further evidence on the offence contrary to s 489C with which D1 was also charged. D1, who was 23 years old at the time of the offence, had no previous convictions and had co-operated with the police on the matter. As for D3, he had also pleaded guilty to the charge brought against him under s 489C of possessing the forged notes and had co-operated with the police in recovering the rest of the forged notes in his possession. D3, who was 35 years old at the time of the offence, also had no previous convictions. Both D1 and D3 had shown a genuine remorse for the offences charged against them. In regard to D2, he was charged with the offence of using the forged notes under s 489B and in the alternative, a charge of possessing them under s 489B.

Held, discharging D2 on both charges); (1) in order to establish the offences under ss 389B and 389C with which D2 was charged, the prosecution must show in each case that D2 knew or had reason to believe the notes to be forged. Suspicion or doubt is not enough to attach liability under either sections and that neither of these is the same as knowing or having reason to believe. In the instant case, there was no evidence to show that D2, when he was in possession of the notes, knew them to be forged or had reason to do so. The learned judge accordingly ruled that D2 had no case to answer on either of the two charges and discharged him accordingly; (2) in regard to the appropriate sentence to be imposed on D1, the learned judge considered that the part played by D1 in the offence was a lesser one compared to that of D3. D1 was accordingly sentenced to 2 [1/2] years' imprisonment, the sentence to run from the date of his arrest; (3) as for D3, the learned judge took into consideration the role played by D3 in arranging for the exchange of the forged notes with genuine ones and also that D3 was in possession of a very large amount of forged currency notes which he had brought into Brunei from abroad with the object of profiting from it. The learned judge considered that the proper sentence was one of 4 [1/2] years' imprisonment to run from the date of D3's arrest.

Public Prosecutor v Sayidina Ali bin Ibie & Ors [1989] 2 MLJ 137 High Court, Brunei (Roberts CJ).

The respondent, Allen Ellington Reid, who was at all material times domiciled and resident in Ceylon, married Edna Margaret de Witt according to Christian rites at St Mary's Church, Badulla, Ceylon, on 18 September 1933. Both were Christians at the time and they lived together as man and wife until 1957. There were eight children from the marriage. On 13 June 1959, the respondent and a divorced lady by the name of Fatima Pansy were converted to the Muslim faith. A month later, on 16 July 1959, they were duly married in the district of Colombo by the Registrar of Muslim Marriages under the provisions of the Muslim Marriage and Divorce Act 1951, notwithstanding that the respondent's earlier marriage was subsisting. On 28 October 1961, the respondent was prosecuted in the district court of Colombo for the offence of bigamy under s 362B of the Ceylon Penal Code which so far as relevant is in these terms: 'Whoever having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.' He was duly convicted and sentenced to three months' imprisonment. The respondent's appeal to the Supreme Court of Ceylon was allowed and his conviction quashed. The Attorney General of Ceylon appealed to the Privy Council. Before the Judicial Committee of the Privy Council, the sole question was whether the second marriage was void by reason of its taking place during the life of the respondent's first wife. For the Attorney General, it was argued that the respondent had entered into a monogamous marriage and was incapable of remarrying until it had been legally dissolved or declared void. It was suggested that a person who enters into a monogamous Christian marriage not only enters into a contract but acquires as a result, a status recognized throughout Christendom, that it must be the voluntary union for life of one man and one woman to the exclusion of all others, and that status cannot be changed and no new marriage of any sort can be contracted by either spouse until the marriage is dissolved by a procedure recognized as applicable to monogamous marriages, even if both parties change to the Muslim religion. For the respondent, it was argued that the status arising out of a contract of marriage is one to which each country is entitled to attach its own conditions both as to its creation and duration. It was submitted that there was nothing in any statute in Ceylon which rendered the second marriage invalid and nothing in the general law of that country which precluded the husband from altering his personal law by changing his religion and subsequently marrying in accordance with that law, if it recognized polygamy notwithstanding an earlier subsisting monogamous marriage.

Held: Ceylon is a country of many races and creeds and has a number of marriage ordinances and Acts. In matrimonial matters, there is no one law which applies to all locally domiciled persons; they are governed by their personal laws. A Christian monogamous marriage does not prohibit for all time during the subsistence of that marriage a change of faith and personal law on the part of a husband resident and domiciled there. In such countries, there is an inherent right in the inhabitants domiciled to change their religion and personal law and so to contract a valid polygamous marriage if recognized by the laws of the country notwithstanding an earlier marriage. If such inherent right is to be abrogated it must be done by statute; but there was none in the case of Ceylon and therefore the appeal must fail.

Attorney General of Ceylon v Reid [1965] 2 MLJ 34 Privy Council Appeal from Ceylon (Viscount Dilhorne, Lord Hodson, Lord Guest and Lord Upjohn).

[Annotation: In view of this decision, the cases of R v Davendra (1920) 1 MC 51 and Public Prosecutor v White [1940] MLJ 214 seem to have been impliedly overruled.]

The appellant was tried, together with two others, with conspiracy to murder and with murdering the deceased by running her over with a motor car. At the close of the case for the prosecution, the indictment against one accused was withdrawn and both the appellant and the other accused were found not guilty on the conspiracy charge, while on the other charge of murder, the appellant was found guilty but the other accused not guilty. The appellant gave no evidence and called no witnesses.

Held: there was no inconsistency in the verdict of the jury in finding both accused not guilty on the charge of conspiracy and the second accused not guilty and the appellant guilty on the charge of murder. The jury could consistently with the verdict of not guilty on the charge of conspiracy find the appellant guilty of murder. If they thought the second accused was not implicated in the conspiracy they had no alternative but to find both accused not guilty on that charge.

Anandagoda v The Queen [1962] MLJ 289 Privy Council Appeal from Ceylon (Lord Tucker, Lord Hodson, Lord Guest, Lord Devlin and the Rt Hon LMD de Silva).

Wong Lai Fatt v Public Prosecutor [1973] 2 MLJ 31 Federal Court, Kuala Lumpur (Ong CJ, Ali and Ong Hock Sim FJJ).

See CRIMINAL LAW, Vol 4, para 789.

The accused in this case was charged for having committed culpable homicide not amounting to murder by causing the death of one Lee Peak on 28 January 1970 at 8.30pm with the knowledge that the act committed by him was likely to cause the death of the deceased. At the end of the prosecution case, defence counsel submitted that there was no case for the accused to meet. It was clear from the prosecution evidence that the deceased and the accused had prior to the incident some money dealings and that the deceased had lent some money to the accused and had demanded its repayment. This was when he found the accused in a coffee shop, the deceased demanded repayment of the loan in a very aggressive manner and on seeing the accused remaining calm and passive, went to pick up a knife when the accused was possibly going out of the shop through its rear door. After having picked up the knife, the deceased rushed towards the accused who had no way to escape. Finding himself in that desperate situation, the accused turned back, picked up a wooden ladle and with it hit the knife which was held by the deceased. As a result of this, the knife fell on the ground and both the accused and the deceased started to grapple with each other and fell down rolling on the ground, endeavouring to pick up the knife which had fallen from the hand of the deceased. This struggle lasted for a short while after which a witness saw an object in the hand of the accused. This object looked like a knife. The accused remained pinned under the deceased most of the time except on one occasion. According to the evidence, the deceased was a man of better build and strength than the accusd. There was no doubt that it was the act of the accused which caused the death of the deceased. The questions which had to be decided were whether the defence had established the right of self-defence, and whether there was continuing danger and a reasonable apprehension of such danger.

Held: (1) there was a reasonable apprehension of danger to the life of the accused when the deceased rushed at him with the knife in his hand, and at that stage he had the right of private defence which extended even to the killing of the deceased; (2) in the light of the evidence produced by the prosecution, there was a reasonable possibility, nay probability, that if the deceased had himself managed to get hold of the knife, he would have struck some blows with the knife on the accused. In the circumstances and in the situation in which the accused found himself, there was bound to be in his mind a reasonable apprehension of death or grievous hurt being caused to him by the deceased unless he got out of the reach of the deceased; (3) the defence has through the prosecution witnesses proved that the accused was acting in his right of private defence. It is reasonable to suppose that the accused thought in the critical situation in which he was that the deceased might wrestle the knife from his hand and use it against him. The reasonable apprehension of death at the hands of the deceased could not thus be said to have left the mind of the accused. In the circumstances, there was no case to meet.

Public Prosecutor v Yeo Kim Bok [1971] 1 MLJ 204 High Court, Muar (Sharma J).

D was charged with two counts of abetting X in committing offences under s 4(c) of the Prevention of Corruption Act 1961. D, who was Y's employee, was alleged to have issued two false 'transportation and labour charges' invoices to X so as to enable X to claim from Y. The sessions court acquitted and discharged D without calling for his defence in respect of the two charges on the ground that D did not know the false invoices were intended to mislead Y. The sessions court accordingly held that the circumstances of the case against D did not come within the definition of abetment under s 107 of the Penal Code (FMS Cap 6). The prosecution appealed to the High Court.

Held, allowing the appeal: (1) the purpose of the invoices must have provided D with sufficient knowledge of what they were meant for. D accordingly must have known the purpose of his act in issuing the two invoices. It was therefore sufficient that by D's act, D must have intended to aid or facilitate Y's commission of the offences; (2) in this case, there was evidence against D which if unrebutted would go towards his conviction. The fact that D prepared the two invoices, had them typed out and issued them using Y's name, was sufficient reason to call for his defence on both charges.

Public Prosecutor v Kong Fui Pen [1992] 2 CLJ 1061 High Court, Kota Kinabalu (Syed Ahmad Idid JC).

R v Salim bin Ja'amat [1938] MLJ 210 High Court, Malacca (Horne J).

See CRIMINAL LAW, Vol 4, para 1164.

Public Prosecutor v Datuk Tan Cheng Swee & Ors [1979] 1 MLJ 166 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah Ag CJ (Malaya).

See CRIMINAL LAW, Vol 4, para 1856.

The first two appellants were convicted of offences in contravention of the Customs Enactment 1936 in that they knowingly harboured uncustomed goods consisting of 11 bales of leaf tobacco and 54 bales of leaf tobacco respectively on which import duty leviable by law had not been paid. The third appellant was charged and convicted of abetting these offences.

Held: 'the third appellant was charged with abetment of the offences against the first and second appellants in contravention of s 119 of the Customs Enactment. It does not follow, however, as was submitted by his counsel, that if the convictions of the first two appellants cannot stand, his conviction must necessarily fall to the ground. Section 119 makes it clear that abetment of a customs offence is abetment within the meaning of the Penal Code. It is therefore to be considered in the light of s 108 of the code, the relevant portions of which read as follows: Òa person abets an offence who abets...the commission of an act which would be an offence, if committed...with the same intention or knowledge as that of the abettor. Explanation 3: It is not necessary that the person abetted...should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.Ó There is no question, indeed it is admitted, that the third appellant instigated the other two appellants to harbour the tobacco, nor can there be any doubt that the tobacco was uncustomed. If, however, the third appellant knew that it was uncustomed, that is to say, if he knew that it was brought from outside Malaya and that duty had not been paid upon it, then it clearly follows from the provision of the Penal Code which has been quoted that he was guilty of the offence of abetment even although it has been held that the first two appellants were not guilty of the substantive offences charged against them by reason of want of guilty knowledge.'

Kee Kim Chooi v Public Prosecutor [1952] MLJ 180 High Court, Ipoh (Thomson J).

This was an appeal against the decision of the learned magistrate, Kampar (Perak). A 'C' carrier's licence in respect of a goods vehicle was issued to the first appellant by the Road Transport Licensing Board, which licence was issued subject to the provisions of the Road Traffic Ordinance 1958 (Ord 49/1958) and the rules made thereunder, and to the conditions attached to the carrier's licence. Condition No 6 of the licence reads as follows: '6. An attendant shall be carried in the rear of the vehicle, so placed that he can signal to overtaking traffic, and to the driver of the vehicle the approach of such traffic.' The first appellant was charged for failing to comply with condition No 6, punishable under s 120(2) of the Road Traffic Ordinance, while the second appellant, the driver of the vehicle, was charged with abetting the offence of failing to carry an attendant at the rear of the vehicle, punishable under s 120(2) of the Road Traffic Ordinance, read with s 109 of the Penal Code. The only evidence led by the prosecution was that on 18 February 1970, the second appellant was stopped by a police officer, who did not find any attendant in the lorry.

Held, allowing the appeal: (1) in order to constitute an offence of abetment by omission, the omission must be an illegal one. In the present case, there is nothing in the Road Traffic Ordinance which casts a duty on the driver of a goods vehicle not to drive the said vehicle without an attendant. The learned magistrate failed to consider what was required of the prosecution to prove a charge under s 109 of the Penal Code; (2) in the absence of any legislation or rules prescribing the duties of attendants, condition No 6, in the context in which it appears in the licence, can in no way be said to promote or ensure public interest for the safety and convenience of those who try to overtake the goods vehicles; (3) there would be an order of acquittal and discharge in favour of both appellants. Per Sharma J: 'The ability to do a thing is indicative only of the potential and the capability. It does not dictate a duty to transform that capability into the actual performance or action.'

Chuan Keat Chan Ltd & Anor v Public Prosecutor [1972] 2 MLJ 57 High Court, Ipoh (Sharma J).

In this case, the accused persons were charged in the sessions court in Penang with being concerned in importing pianos which being the products of South Africa were by law prohibited goods. They were convicted and they appealed to the High Court. In the High Court, Arunalandom J held that on the facts of the case the accused had no guilty mind and he therefore quashed the convictions ([1978] 1 MLJ 141). The Public Prosecutor then applied for a certificate to refer to the Federal Court certain questions of law that were of public interest. The questions were: (a) In a prosecution against the accused under 135(1)(a) of the Customs Act 1967 (Act 235), of being concerned in importing prohibited goods contrary to a prohibition, does a denial by the accused of knowledge of the relevant prohibition order entitle him to an acquittal? (b) Is not the denial of knowledge under s 135(2) of the Customs Act 1967 limited only to denial of knowledge as to the facts and not as to the law concerning prohibited goods? (c) Is it not sufficient for the prosecution to prove that the goods imported were of the description mentioned in the prohibition order in order to show that such importation was contrary to the prohibition? (d) In a proceeding against the accused under s 135(1)(a) of the Customs Act 1967, of being concerned in importing prohibited goods contrary to a prohibition, if all the circumstances of the case point to an innocent mind of the accused, is the court entitled to take cognisance of this fact before giving the verdict?

Held, by a majority (Suffian LP dissenting): (1) a denial by the accused of knowledge of the relevant prohibition under s 135(1)(a) of the Customs Act 1967, does not entitle him simpliciter to an acquittal. Even if he proves to the satisfaction of the court that he in fact does not know the existence of the prohibition, he is still not entitled to be acquitted unless he proves on a balance of probabilities that he could not have reasonably known of the prohibition; (2) proof of lack or absence of knowledge, again on a balance of probabilities, that the goods in question are prohibited from importation (eg as in this case that the pianos originated from South Africa) may be ground for an acquittal as a mistake of fact, but a denial of the knowledge of the ban, as a matter of law may not be, even if backed by sufficient proof except in the circumstances set out, that is unless he proves on a balance of probabilities that he could not have reasonably known of the prohibition; (3) it is sufficient for the prosecution to prove that the goods were of the description mentioned in the prohibition in order to show that the importation was contrary to the prohibition. The burden then shifts to the accused to establish on a balance of probabilities that he did not know of the prohibition and could not have reasonably known of the prohibition; (4) the exception to the rule against ignorance of law as a defence should not be extended beyond the cases where the accused could not possibly have known of the existence of the law he had offended against.

Public Prosecutor v Koo Cheh Yew & Anor [1980] 2 MLJ 235 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah CJ (Malaya).

Francis & Ors v Public Prosecutor [1960] MLJ 40 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Good JJA).

See CRIMINAL LAW, Vol 4, para 734.

Public Prosecutor v Ismail bin Ishak & Ors [1976] 1 MLJ 183 High Court, Kuala Lumpur (Harun J).

See CRIMINAL LAW, Vol 4, para 803.

Sixty accused persons were charged before the magistrate's court for the following offence: 'That you on 3 December 1974 at about 10.50am in the compound of Masjid Negara, Jalan Hishamuddin, in the Federal Territory of Kuala Lumpur, did take part in an unlawful assembly for which no licence has been issued and thereby committed an offence under sub-s (5)(a) of s 27 of the Police Act 1967 (Act 41 of 1967) and punishable under sub-s (8) of the same section.' The learned magistrate in making a finding of no case to answer at the close of the case for the prosecution held that the prosecution had to prove three ingredients to the charge, viz: '(i) there was an assembly on the date and time in question; (ii) no licence was issued to hold the assembly; and (iii) the 60 accused persons did take part in the assembly.' The learned magistrate found that there was an assembly at the material time but held that the prosecution had failed to prove that no licence was issued to hold the assembly and also that the prosecution had failed to prove beyond reasonable doubt that the 60 respondents did take part in the assembly. The Public Prosecutor appealed to the court against the aforesaid decision.

Held: (1) the learned magistrate erred in holding that it was the duty of the prosecution to prove that no licence was issued. It was for the accused to show that they had such a licence if called upon for their defence, and this would have been a complete answer to the charge; (2) there is a distinction between 'taking part' under the Police Act and 'being a member of or is found at an unlawful assembly' under the Penal Code. 'Taking part' calls for a more active part than mere presence; (3) it was not the intention of the Legislature that all persons who were merely found at an assembly for which no licence had been issued under s 27 of the Police Act should be guilty of an offence; (4) the learned magistrate was right in finding that the prosecution had failed to prove beyond reasonable doubt that the 60 respondents did take part in the assembly and the appeal must therefore be dismissed.

Public Prosecutor v Ismail bin Ishak & Ors [1976] 1 MLJ 183 High Court, Kuala Lumpur (Harun J).

Francis & Ors v Public Prosecutor [1960] MLJ 40 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Good JJA).

See CRIMINAL LAW, Vol 4, para 734.

Where the accused were charged with committing affray under s 160 of the Penal Code and with disorderly behaviour in public places under s 25 of the Minor Offences Enactment in the alternative, but, upon an objection being raised at the hearing as to the propriety of the joinder of the charges, the magistrate charged the accused with an offence under which they had been charged in the alternative.

Held: any irregularities that might have occurred in the events that had happened came within and were curable by s 422 of the Criminal Procedure Code (Cap 6).

Supramaniam & Ors v Public Prosecutor [1939] MLJ 229 High Court, Federated Malay States (Murray-Aynsley J).

Held: the rule that it is unsafe to convict on the uncorroborated evidence of an accomplice is not inflexible, and the same degree of moral turpitude does not attach to a person who gives a bribe on the demand of or on a threat by a police officer as to a person who seeks out the police officer and offers him a bribe to avert a legitimate prosecution. A magistrate should first decide whether a witness is an accomplice, then determine on the evidence whether he is corroborated in any material particular, and then, if he is not corroborated, subject the accomplice's evidence to a close scrutiny to satisfy himself that, without corroboration, there is nevertheless evidence which is credible and sufficient to establish the guilt of the accused.

Public Prosecutor v Haji Ismail & Anor [1940] MLJ 76 High Court, Federated Malay States (Cussen J).

Held: the deliberate provoking of an offence by the police merely because it is suspected that the person provoked has previously committed a similar offence cannot be too strongly condemned, and the remarks of Lord Goddard CJ in Brannan v Peek [1947] 2 All ER 572 should be brought to the notice of the police authorities for such action as they may think necessary.

Chin Ban Keat v R [1949] MLJ 297 High Court, Penang (Jobling J).

In this case, the appellant appealed against his conviction for offences of taking illegal gratifications as a public servant in contravention of s 161 of the Penal Code. It was alleged that the appellant had obtained the sums of money from persons (RM100 from one person and RM200 from another person) who had been appointed under 'provision contracts' to supply goods on credit to special constables, and it was alleged that the moneys were paid as illegal gratifications. At the trial, evidence was given of the supply of goods and payments of other sums of money to the appellant by the persons concerned at the time when they were enjoying the benefit of the 'provision contract'. The appellant in his defence admitted the receipt of the money and the goods but said that as to the sums of money they were loans which he intended to repay and as to the goods that he had always intended to pay for them.

Held: (1) the evidence of the receipt of the goods and of the other sums of moneys, other than the two sums contained in the charges, were admissible as tending to show that the two payments were corrupt and as tending to rebut the defence open to the appellant; (2) the learned trial judge realized the danger of convicting on the uncorroborated evidence of accomplices and on a review of the evidence, there was nothing to show that his decision to convict was unreasonable and one that cannot be supported from the evidence, and therefore the appeal must be dismissed.

Rauf v Public Prosecutor [1950] MLJ 190 High Court, Perak (Thomson J).

The appellant was originally charged on three charges of taking gratification as a public servant in contravention of s 161 of the Penal Code. The first of these charges was dismissed and the case proceeded on the remaining two charges. At the end of the prosecution case, the learned President of the Sessions Court found that the appellant had no case to answer on the second charge and the appellant was acquitted on this charge. He also ordered that there was a case to answer on the third charge. The appellant thereupon proceeded with his defence and he was convicted and sentenced upon that charge. In his grounds of judgment, the learned President stated, inter alia, that he found as a fact that Lee Koi, that is the person concerned in the second charge, did give money to the appellant and this was one of the grounds on which he refused to accept the appellant's explanation in his defence.

Held: as the appellant had been acquitted on the second charge, the learned President should have accepted this as establishing the innocence of the appellant on that charge and he had misdirected himself in taking into consideration the evidence on the second charge and in relying on it in coming to his decision.

Murugiah v Public Prosecutor [1950] MLJ 282 High Court, Ipoh (Thomson J).

[Annotation: See Public Prosecutor v Loh Swee Kon [1951] MLJ 159, where the Court of Appeal overruled the above decision in so far as it purports to be authority for excluding any evidence which tends to show that the accused was guilty of a charge of which he has been acquitted in considering his guilt under another charge.]

Perumal v Public Prosecutor [1970] 2 MLJ 265 Federal Court, Kuala Lumpur (Azmi LP, Suffian and Gill FJJ).

See CRIMINAL LAW, Vol 4, para 1944.

The appellant had accepted a sum of $30 in cash from one Cheah Koon Hwee, whom he knew to be concerned in a proceeding which had connection with his official position as Senior Health Inspector, Segamat. In his defence to a charge under s 165 of the Penal Code, he stated in evidence that he had taken the money as a Chinese New Year gift, intending to return it the following day. The magistrate ruled that the onus of proving such intention was cast upon the appellant by s 107 of the Evidence Ordinance. He accepted the evidence of the appellant in regard to other disputed facts, but held that as the appellant had failed to adduce any evidence though within his power to do so to corroborate the evidence he had given himself, he had failed to discharge the onus which lay upon him.

Held: where an accused person has by his own evidence succeeded in raising a doubt, he must be deemed to have tilted the scale of probability in his own favour and should be acquitted.

Thurairajah v Public Prosecutor [1940] MLJ 58 Court of Appeal, Johore (McElwaine CJ (SS).