Abdul Salam bin Musthafa v Public Prosecutor

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court):

[1] The appellant in the present appeal, Abdul Salam bin Musthafa (“the Appellant”), claimed trial to five charges of conspiracy to traffic in controlled drugs, an offence under s 5(1)(a) read with s 12 of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed). He was found guilty and convicted of all five charges (see Public Prosecutor v Abdul Salam bin Musthafa [2010] SGHC 81). The Appellant was sentenced to a total of 30 years’ imprisonment with effect from 2 January 2008 and 24 strokes of the cane. The Appellant appealed against both his conviction and his sentence.

[2] Of the five charges which the Appellant faced at his trial, two charges (“the Main Charges”) concerned offences alleged to have been committed on 31 December 2007, while the remaining three charges (“the Remaining Charges”) concerned offences alleged to have been committed on 27 December 2007. The Main Charges were that, on or about 31 December 2007, the Appellant engaged in a conspiracy with Khairul Anwar bin Zaini (“Khairul”), Jamaliah binti Yacab (“Jamaliah”), Maryati binte Sipon (“Maryati”) and one “Boy Cino” to traffic in two different types of controlled drugs, namely, not less than 14.99g of diamorphine and 0.42g of methamphetamine (the charges relating to these two quantities of drugs will be referred to hereafter as, respectively, “the First Charge” and “the Second Charge”). The Remaining Charges were that, on or about 27 December 2007, the Appellant engaged in a conspiracy with Khairul, Jamaliah and Boy Cino to traffic in three different types of controlled drugs, namely, 8.76g of methamphetamine, not less than 6.43g of diamorphine and 0.01g of morphine (the charges relating to these three quantities of drugs will be referred to hereafter as, respectively, “the Third Charge”, “the Fourth Charge” and “the Fifth Charge”).

[3] The trial judge (“the Judge”) found the Appellant guilty of all five charges and convicted him on 21 January 2010. On 15 March 2010, the Appellant was sentenced to 25 years’ imprisonment and 15 strokes of the cane in respect of the First Charge, five years’ imprisonment and nine strokes of the cane in respect of the Second Charge, and, in respect of the Third Charge, the Fourth Charge and the Fifth Charge, five years’ imprisonment and five strokes of the cane for each of those charges. The terms of imprisonment in relation to the First Charge and the Second Charge were to run consecutively, while the terms of imprisonment in relation to the Third Charge, the Fourth Charge and the Fifth Charge were to run concurrently with the term of imprisonment in respect of the First Charge. The Appellant was therefore sentenced to a total of 30 years’ imprisonment with effect from 2 January 2008 and 24 strokes of the cane.

[4] Subsequent to the trial, the sentence of caning was remitted by the Judge on 28 September 2010. This was due to a letter from a medical officer of the Singapore Prison Service, dated 6 September 2010, stating that the Appellant was confirmed as being HIV (positive) and was therefore permanently unfit for caning.

[5] The Appellant appealed against his conviction and his sentence for all five charges. After hearing submissions from the parties, we allowed the appeal against conviction in part, in so far as we found that the Remaining Charges, viz, the charges relating to the offences alleged to have been committed on 27 December 2007 (ie, the Third Charge, the Fourth Charge and the Fifth Charge), were not proved beyond a reasonable doubt. We thus set aside the Appellant’s conviction in respect of those charges. With respect to the Main Charges (ie, the First Charge and the Second Charge), however, we agreed with the Judge that those charges were proved beyond a reasonable doubt, and dismissed the appeal against conviction in so far as those charges were concerned.

[6] In respect of the appeal against sentence, we allowed the appeal in so far as we reduced the term of imprisonment for the Main Charges from a total of 30 years’ imprisonment to a total of 25 years’ imprisonment with effect from 2 January 2008.

[7] We now give the detailed grounds for our decision. As we fully agree with the reasoning and the findings of the Judge with respect to the Main Charges, we shall address only the Remaining Charges.

[8] The Prosecution’s evidence against the Appellant in respect of the Remaining Charges consisted of:

(a) Maryati’s testimony and plea in mitigation;

(b) Khairul’s statement of 26 August 2008; and

(c) the telephone call-cum-SMS records.

We shall address these in turn.

[9] The relevant portions of Maryati’s testimony which appeared to implicate the Appellant with respect to the Remaining Charges are as follows. First, Maryati testified that she had previously delivered money for the Appellant prior to 31 December 2007, although (and this is a significant point which we shall return to below (at [11]–[12])) she was unable to recall exactly when she had done so:

The following testimony is also relevant:

[10] On cross-examination by counsel for the Appellant at the trial, Mr S S Dhillon, Maryati disagreed with counsel’s contention that, since the Appellant’s telephone line had not been in use in the week prior to 27 December 2007, the Appellant could not have been involved in the drug transaction of 27 December 2007. Maryati’s evidence on this point was as follows:

[11] On re-examination by Deputy Public Prosecutor Mr Ng Cheng Thiam, Maryati was unable to confirm if she had gone to Johor Bahru on 27 December 2007 to send money as part of a drug transaction or to attend to personal matters:

[12] Although Maryati’s testimony (as reproduced above) alludes generally to some previous involvement by the Appellant in drug transactions, it is far from compelling with respect to the Appellant’s alleged involvement in the drug transaction of 27 December 2007. Indeed, Maryati was unable to confirm specifically that the Appellant was involved in a drug transaction on 27 December 2007 itself.

[13] Maryati’s plea in mitigation is not much more helpful to the Prosecution’s case. The relevant extracts are as follows:

[14] Notably, Maryati’s plea in mitigation refers to “that fateful day”, which, presumably, means 31 December 2007 since Maryati could not say for sure that she brought money into Malaysia as part of a drug transaction on 27 December 2007. Maryati’s plea in mitigation therefore does not address the events that transpired on 27 December 2007; neither does it address the Appellant’s alleged involvement in the drug transaction of 27 December 2007.

[15] Having regard to the evidence of Maryati as a whole, therefore, neither her testimony nor her plea in mitigation implicates the Appellant specifically with respect to the Remaining Charges. In particular, her testimony and her plea in mitigation do not implicate the Appellant specifically with respect to the drug transaction of 27 December 2007, and thus do not assist the Prosecution’s case in so far as the Remaining Charges are concerned. Nevertheless, in our estimation, the portions of Maryati’s testimony extracted above (at [9] and [11]) certainly do not undermine Maryati’s testimony with respect to the offences allegedly committed on 31 December 2007. In fact, had Maryati been intent on implicating the Appellant, rather than being uncertain about the events that transpired on 27 December 2007, it would have made more sense for her to have emphatically testified that the Appellant had been involved in the drug transaction of 27 December 2007. This, therefore, does not undermine the credibility of Maryati as a witness and her testimony with respect to the Main Charges.

[16] The next piece of evidence in the Prosecution’s case against the Appellant with respect to the Remaining Charges was Khairul’s statement of 26 August 2008, which we shall hereafter refer to as “P142” for short. The material parts of P142 which appear to implicate the Appellant are as follows:

The italicised portion of the above extract from P142 appears to refer to acts that are directly connected with the Remaining Charges, while the rest of the extract refers to the Appellant’s role in drug transactions generally.

[17] However, the italicised portion of the aforesaid extract fails, in our view, to disclose sufficiently whether the “previous consignment” refers to the drugs which were the subject matter of the drug transaction of 27 December 2007, or to drugs which were the subject matter of some other drug transaction. Khairul’s testimony was of little help to the Prosecution as, in court, Khairul sought to distance himself from P142 and alleged that he had made the statement due to coercion (notwithstanding this allegation by Khairul, the Appellant’s counsel subsequently consented to Khairul’s statements, P142 included, being admitted). Although (as we have seen) Maryati alluded in her testimony to the Appellant’s involvement in other drug transactions, P142 does not indicate if the Appellant was involved in the drug transaction of 27 December 2007 specifically, as opposed to some other previous drug transaction. P142 therefore does not add much – if any – weight to the Prosecution’s case against the Appellant vis-à-vis the Remaining Charges.

[18] The last piece of evidence which the Prosecution relied on for its case against the Appellant with respect to the Remaining Charges consisted of the telephone call-cum-SMS records. The Prosecution argued that the flurry of communications between the Appellant and the conspirators on 27 December 2007 led one to the conclusion that the conspirators were making arrangements for the drug transaction which was to take place that day. This was so especially since the conspirators, who had all pleaded guilty to various drug trafficking offences, were also calling each other to make the necessary arrangements vis-à-vis their particular roles. This (so the argument ran) therefore meant that the Appellant must have been communicating with the conspirators on drug transactions (including the transaction which was alleged to have occurred on 27 December 2007).

[19] However, in our view, the above corroborative evidence against the Appellant is precisely that: merely corroborative evidence. It is insufficient to establish the Prosecution’s case against the Appellant vis-à-vis the Remaining Charges beyond a reasonable doubt when the other evidence against the Appellant with respect to those charges is so weak.

[20] Taking into account the totality of the evidence against the Appellant in respect of the Remaining Charges, we were of the view that the Prosecution’s case against the Appellant on these charges was not established beyond a reasonable doubt. Maryati was unable to confirm if the Appellant had been involved in a drug transaction on 27 December 2007. P142, while suggesting that the Appellant had been involved in the trafficking of a previous consignment of drugs, shed little light on whether that consignment was the one which was the subject matter of the drug transaction of 27 December 2007, or whether it was the subject matter of a drug transaction on some other date. The telephone call-cum-SMS records were insufficient (in and of themselves) to establish the Prosecution’s case beyond a reasonable doubt, and had to be considered together with the other evidence, which evidence (as we have seen) was in fact rather weak.

[21] We therefore allowed the appeal against conviction in respect of the Remaining Charges.

[22] Given that the only charges proved beyond a reasonable doubt against the Appellant were the Main Charges, we were of the view that the Appellant’s terms of imprisonment in respect of the First Charge and the Second Charge ought to run concurrently rather than consecutively. This would reflect the gravity of the offences proved against the Appellant, and, at the same time, take into account the fact that the Remaining Charges were not made out against him. This would also be an appropriate sentence for the Appellant, having regard to the relative sentences of his conspirators. We therefore ordered the total length of the Appellant’s imprisonment in respect of the Main Charges to be reduced from 30 years’ imprisonment to 25 years’ imprisonment with effect from 2 January 2008.