Chan Heng Kong and another v Public Prosecutor

V K Rajah JA (delivering the judgment of the court):

[1] This is an appeal by two persons, Chan Heng Kong (“Chan”) and Sng Chun Heng (“Sng”), who were convicted and sentenced to the mandatory punishment of death in Criminal Case No 3 of 2009 for committing the following offences:

(a) vis-à-vis Chan, the offence of drug trafficking under s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“the MDA”); and

(b) vis-à-vis Sng, the offence under s 5(1)(a) read with s 5(2) and s 12 of the MDA of abetting his younger brother, Sng Choong Peng (“Choong Peng”), to traffic in drugs by instigating the latter to be in possession of drugs for the purpose of trafficking.

[2] The respective offences which Chan and Sng were convicted of both related to the same events that occurred on 23 January 2008, and the drugs involved consisted of not less than 17.70g of diamorphine.

[3] There were a total of four persons involved in the events that occurred on 23 January 2008, namely, Chan, Sng, Choong Peng and one Ang Cheng Wan (“Ang”). All four are Singaporeans. As mentioned earlier, Choong Peng is Sng’s younger brother.

[4] Choong Peng was separately charged and convicted in Criminal Case No 1 of 2009 (“CC 1/2009”) for his involvement in the events of 23 January 2008. However, unlike Sng, he was charged with trafficking in only “not less than 14.99 grams of diamorphine” [emphasis in original omitted], and was eventually sentenced to 22 years of imprisonment and 15 strokes of the cane. Ang, on the other hand, was initially charged with trafficking in 243.90g of granular substance believed to contain diamorphine. This charge was, however, subsequently withdrawn by the Public Prosecutor during the second pre-trial conference on 30 September 2008. Thereafter, a new charge of drug consumption was preferred against Ang in the Subordinate Courts.

[5] On the morning of 23 January 2008, two teams of Central Narcotics Bureau (“CNB”) officers conducted surveillance at Block 12 Kampong Arang Road (“Block 12”), where Sng and Choong Peng resided, as well as at Woodlands Checkpoint. At the time, the CNB officers were acting on intelligence received that three Chinese men would, later that day, be receiving illegal drugs from a courier from Malaysia travelling in a silver car with a vehicle registration number containing the digits “702”.

[6] At about 1.20pm on the same day, Sng and Choong Peng were seen at the void deck of Block 12. At about 1.45pm, Ang appeared and joined Sng at the void deck of Block 12 while Choong Peng headed in the direction of a nearby circular pavilion located between Block 12 and Block 14 Kampong Arang Road (“Block 14”). Shortly thereafter, Chan was seen driving a silver Toyota Corolla bearing vehicle registration number EP 702P (“EP 702P”) into the car park of Block 12. Chan stopped EP 702P next to the pavilion between Block 12 and Block 14 (“the Pavilion”), alighted and placed a red plastic bag near a rubbish bin at the Pavilion. Chan then returned to EP 702P and parked the car near the lift landing of Block 14.

[7] A short while later, Choong Peng was seen approaching EP 702P. He entered the front passenger door of EP 702P and was observed engaging in a short conversation with Chan in the car. Choong Peng then alighted from EP 702P and moved towards the Pavilion to retrieve the red plastic bag that had been placed there earlier by Chan. After picking up the red plastic bag, Choong Peng joined Sng and Ang at the car park entrance near Block 12. From there, Sng, Ang and Choong Peng together took a taxi to a public housing estate at Chai Chee Avenue. The CNB officers trailed the trio and arrested them when the taxi stopped at Chai Chee Avenue.

[8] After the arrest of Sng, Ang and Choong Peng, the red plastic bag which Choong Peng had earlier retrieved from the Pavilion was seized and was found to contain a pack of “Mamee Monster” snacks. Inside this “Mamee Monster” snack pack were smaller packs of “Mamee Monster” snacks containing a total of 30 sachets of white granular substance. The white granular substance was analysed by the Health Sciences Authority (“the HSA”) and was found to contain not less than 17.70g of diamorphine.

[9] Chan was arrested separately in Geylang on the same day after his encounter with Choong Peng at Block 12. After his arrest, EP 702P was searched by the CNB officers. During the search, a black sling bag containing $7,500 worth of cash in Singapore currency was retrieved from the front passenger seat. Four packs of “Mamee Monster” snacks, each containing smaller “Mamee Monster” snack packs with drug items in them, were also found in a white paper bag bearing the label “Estebel 1833” (“the ‘Estebel 1833’ bag”) on the rear passenger seat. These drug items were analysed by the HSA and were found to contain not less than 71.57g of diamorphine.

[10] Subsequent to the arrest of Sng, Choong Peng, Chan and Ang, a search was also conducted at Sng’s bedroom in his residence at unit #04-11 of Block 12 (“the Flat”), in the course of which more drugs were found. These drugs were analysed by the HSA and were found to contain not less than 11.97g of diamorphine.

[11] Multiple charges were initially preferred against Sng and Chan. However, all those charges, save for the ones which Sng and Chan were convicted of in the court below (see [1] above), were eventually stood down when the trial commenced. The charges proceeded with read as follows:

[12] The case put forth by Sng at the trial was as follows:

(a) Sng claimed that he had ordered 20 and not 30 sachets of heroin to be delivered on 23 January 2008;

(b) Sng revealed that he was a consumer of heroin, and that half of the 20 sachets which he had allegedly ordered were for his own consumption while the other half were for sale;

(c) Sng alleged that there was a mix-up and contamination of the drug exhibits at the CNB’s premises, which rendered it unsafe for the court to convict him of a capital charge;

(d) Sng challenged the admissibility of and the weight (if any) to be attached to the statements which he gave to the CNB officers after his arrest; and

(e) Sng claimed that he did not instigate Choong Peng to be in possession of the drugs for the purpose of trafficking.

[13] As for the case advanced by Chan at the trial, it was as follows:

(a) Chan did not dispute that he had possession of the five packs of “Mamee Monster” snacks which he brought from Malaysia to Singapore in EP 702P on 23 January 2008 (viz, the pack found in the red plastic bag which Choong Peng retrieved from the Pavilion (see [8] above) and the four packs found in the “Estebel 1833” bag in EP 702P (see [9] above)), one of which (viz, the pack mentioned at [8] above) he placed near a rubbish bin at the Pavilion on 23 January 2008. However, he denied having knowledge that these “Mamee Monster” snack packs contained illegal drugs. In particular, Chan raised the following points during the trial to establish his lack of mens rea for the offence charged:

(i) he thought he was only engaged in an illegal moneylending transaction on 23 January 2008;

(ii) he had no reason to think that the “Mamee Monster” snack packs contained illegal drugs because “the manee [sic] noodles also probably could be kind of ‘code’ ‘signal’ used by those involved in illegal money transactions”;

(iii) he had taken steps to satisfy himself that the “Mamee Monster” snack packs did not contain illegal drugs by feeling the contents of one of the snack packs with his fingers, and had found nothing suspicious about that pack (on appeal, however, Chan stated that the checking had been done in respect of “Mamee Monster” snack packs which he had delivered on a previous occasion, and not in respect of the “Mamee Monster” snack packs which he brought from Malaysia to Singapore in EP 702P on 23 January 2008 (see [19] below));

(iv) if he really had knowledge that the “Mamee Monster” snack packs contained illegal drugs, he would not have left them in a visible position on the rear passenger seat of EP 702P when he was passing Woodlands Checkpoint on 23 January 2008; and

(v) the fact that he did not put up a struggle when he was arrested also suggested that he had no knowledge that the “Mamee Monster” snack packs contained illegal drugs.

(b) Apart from the lack of mens rea, Chan also alleged that his statements to the CNB officers were inaccurately recorded.

(c) In addition, like Sng, Chan alleged that there was a mix-up and contamination of the drug exhibits at the CNB’s premises, which rendered it unsafe for the court to convict him of a capital charge.

[14] The above arguments of Chan and Sng were rejected by the trial judge (“the Judge”), who convicted the two men of the respective capital charges brought against them (see Public Prosecutor v Sng Chun Heng and another [2011] 3 SLR 437 (“the GD”)). Both Chan and Sng appealed. The appeal was heard on 16 March 2011, at the end of which we reserved judgment. On 7 April 2011, counsel for Sng, Mr Wong Siew Hong (“Mr Wong”), obtained leave to file further written submissions, which submissions were subsequently filed on 20 April 2011. The Prosecution’s reply to Sng’s further written submissions was filed on 3 May 2011. As one of the central arguments made by Mr Wong – viz, that relating to the exercise of the Attorney-General’s prosecutorial discretion (see [16] below at sub-para (c) as well as [40] below) – had also been raised in Criminal Motion No 60 of 2011 (“CM 60/2011”), we deferred the determination of this appeal until we had decided the outcome of CM 60/2011 (see Ramalingam Ravinthran v Attorney-General [2012] SGCA 2 (“Ramalingam Ravinthran v AG”) for our decision on that matter).

[15] Having regard to the arguments raised by counsel for Chan, Mr Cheong Aik Chye (“Mr Cheong”), and the Prosecution, the key issues to be determined in this appeal in so far as Chan is concerned are as follows:

(a) whether Chan had the requisite mens rea for the offence which he was charged with; and

(b) whether there was a mix-up and/or contamination of the drug exhibits at the CNB’s premises such that it would be unsafe for Chan’s conviction to be upheld.

[16] As for the issues to be determined in respect of Sng, they are as follows:

(a) whether the Judge was correct in holding that the defence of consumption raised by Sng at the trial was irrelevant to the offence which Sng was charged with;

(b) whether the Judge was correct to accept that there was abetment by instigation on Sng’s part;

(c) whether the Prosecution could choose between prosecuting Sng for abetting the trafficking of a quantity of heroin which carried the capital punishment on conviction and prosecuting him for abetting the trafficking of a (smaller) quantity of heroin which did not carry such punishment on conviction; and

(d) whether there was a mix-up and/or contamination of the drug exhibits at the CNB’s premises such that it would be unsafe for Sng’s conviction to be upheld.

[17] We will deal with the issues in the order stated above, beginning with the issues relating to Chan’s conviction.

[18] As mentioned earlier, Chan denied having knowledge of the true contents of the “Mamee Monster” snack pack (ie, the big “Mamee Monster” snack pack containing the smaller “Mamee Monster” snack packs) which he delivered to Choong Peng at the Pavilion on 23 January 2008. His counsel, Mr Cheong, argued that “[t]he learned trial judge erred by failing to consider or give sufficient weight to the fact and evidence that half the content[s] of the ‘mamee’ packet in question actually contained dried noodles”.

[19] In particular, Mr Cheong pointed out that prior to the delivery on 23 January 2008, Chan had on 19 January 2008 been similarly involved in another delivery of some “Mamee Monster” snack packs in exchange for $8,500 in cash. On that earlier occasion, it was claimed, Chan had checked the contents of one of the “Mamee Monster” snack packs by touching and feeling the snack pack with his fingers, and had been satisfied that it contained noodles and seasoning. This, Mr Cheong contended, caused Chan to believe that the “Mamee Monster” snack packs which he subsequently brought from Malaysia to Singapore in EP 702P on 23 January 2008 were what they purported to be. Chan maintained that he honestly believed that he was engaging in money collection, with the “Mamee Monster” snack packs being nothing more than some kind of “‘code’ ‘signal’” that was required in order for the transaction to be consummated.

[20] This argument was dealt with quite extensively by the Judge and we see no reason to disturb his decision to reject it. At [75]–[77] of the GD, the Judge explained his reasons for dismissing this argument as follows:

[21] Most of the above findings by the Judge were based on Chan’s long statements recorded on 25, 27 and 29 January 2008, the admissibility of which was not challenged at the trial (only the accuracy of these statements were challenged by Chan at the trial (see [13] above at sub-para (b) as well as [23] below)). We should also add that Chan repeatedly admitted to having suspected that the delivery which he was tasked to carry out at the material time involved the smuggling of illegal drugs. In his contemporaneous statement recorded on 23 January 2008, Chan replied to the question posed to him as follows:

In his cautioned statement recorded on 24 January 2008, Chan stated:

Finally, in his long statements recorded on 25, 27 and 29 January 2008, Chan stated:

[22] It is clear from the aforesaid statements given by Chan that Chan knew “[i]n [his] heart” [emphasis added] that he was dealing with illegal drugs when he brought the “Mamee Monster” snack packs from Malaysia to Singapore in EP 702P on 23 January 2008. Needless to say, Chan’s refusal to “want to go and think about it” in spite of such suspicion (see [21] above) clearly attracted the application of the doctrine of wilful blindness. We should mention that since this appeal was heard, this court has in Nagaenthran a/l K Dharmalingam v Public Prosecutor [2011] 4 SLR 1156 (“Nagaenthran”) clarified the position on wilfulness. In Nagaenthran, we stated (at [23]) vis-à-vis the presumption of knowledge set out in s 18(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed):

[23] We should also add that all the statements mentioned at [21] above were alleged by Chan at the trial to have been inaccurately recorded. In his petition of appeal, Chan similarly alleged that “several sentences were either twisted, misrepresented, recorded out of context or lacking in particulars”. However, counsel for Chan, Mr Cheong, was not able to substantiate these allegations in either his written or his oral submissions for this appeal. We therefore reject this ground of appeal.

[24] We now turn to the issue of whether there was a mix-up and/or contamination of the drug exhibits at the CNB’s premises such that it would be unsafe for this court to uphold Chan’s conviction of the capital charge brought against him. In the closing submissions for Chan at the trial, it was submitted:

It should be noted that Sng likewise complained that there was a mix-up and contamination of the drug exhibits at the CNB’s premises. Like Chan, Sng alluded to the possibility of contamination of the drugs found inside the red plastic bag which Chan delivered to Choong Peng at the Pavilion on 23 January 2008. Sng alleged that during the weighing process at the CNB’s premises, “some peh hoon dropped onto the floor around the weighing scale” and “[the] peh hoon … that dropped was collected and put back onto the weighing scale”. Sng also claimed that there was a possibility of a mix-up between the three batches of drugs seized on 23 January 2008 because there was a break in the chain of custody of: (a) the drugs seized from Chan (ie, the drugs found in the “Estebel 1833” bag in EP 702P (see [9] above)); (b) the drugs seized from the taxi which Sng, Ang and Choong Peng took to Chai Chee Avenue (ie, the drugs found in the red plastic bag which Chan delivered to Choong Peng at the Pavilion (see [8] above)); and (c) the drugs seized from Sng’s bedroom in the Flat (see [10] above).

[25] However, it was revealed during Sng’s cross-examination that the alleged spillage was not a spillage which involved the drugs spilling out of the sachets in which they were contained:

The implication of this evidence is that, assuming the alleged drug spillage did indeed occur, it was not material to the quantity of heroin in the sachets that was later determined to be present by the HSA. We also agree with the Judge’s finding that there was no mix-up between the drug exhibits seized from the different locations on 23 January 2008. As pointed out by the Prosecution in its closing submissions for the trial, the three batches of drug exhibits seized on 23 January 2008 were all different in form and packaging. Further, it is evident from the photographs tendered at the trial that the drug exhibits were methodically unpacked, photographed and weighed (see the GD at [13]). Lastly, we note that Sng and Chan declined to call Choong Peng and Ang (who were present when the photographs of the drug exhibits were taken) as witnesses to corroborate their allegations even though the Prosecution invited them to do so.

[26] In the circumstances, Sng’s and Chan’s allegations regarding the possible contamination and mix-up of the drug exhibits were, in our view, without substance.

[27] We turn now to the issues pertaining to Sng’s conviction. In respect of the defence of consumption raised by Sng at the trial, the question which we have to decide is whether this defence is relevant to the offence which Sng was charged with. The Judge rejected this defence, holding (at [71] of the GD):

[28] We agree with the Judge’s decision on this point. We also agree with the Judge that Sng’s defence of consumption was not factually tenable. The Judge carefully evaluated Sng’s purported heroin consumption pattern against the other evidence to test the veracity of Sng’s assertion (viz, that he consumed some five straws of heroin daily) before concluding that this assertion was not true. The Judge’s reasoning was as follows (see the GD at [71]):

[29] Before us, counsel for Sng, Mr Wong, sought to modify the argument made at the trial vis-à-vis consumption, claiming that at least 2.71g of the 17.70g of heroin found in the red plastic bag delivered by Chan to Choong Peng on 23 January 2008 was intended for Sng’s own consumption:

[30] We are not persuaded by this argument because it relies on the very same estimate of Sng’s drug consumption pattern (ie, consumption at the rate of four to five straws of heroin per day) which the Judge rightly found to be incredible.

[31] We now turn to the issue of whether there was abetment by instigation on Sng’s part on 23 January 2008. In this regard, Mr Wong initially argued that Sng’s statements were taken irregularly and also recorded inaccurately. For example, it was argued that Sng never said the words, “It was me to ask him [ie, Choong Peng] to collect from someone” and “I will ask my brother [ie, Choong Peng] collect for me” as recorded in a statement taken from Sng on 23 January 2008 – words which Mr Wong accepted were material to whether the offence of abetment by instigation was made out. Instead, it was argued, Sng used the words, “He [ie, Choong Peng] went down to collect on his own” and “He [ie, Choong Peng] went down on his own” respectively. However, these complaints were abandoned in Mr Wong’s further written submissions filed on 20 April 2011, where it was stated:

[32] The offence of abetment under the MDA is provided for in s 12 of the same Act as follows:

[33] In Iwuchukwu Amara Tochi and another v Public Prosecutor [2006] 2 SLR(R) 503 at [8], this court held that the word “abet” in s 12 of the MDA had the same meaning as that word in s 107 of the Penal Code (Cap 224, 1985 Rev Ed) (“the Penal Code (1985 Rev Ed)”):

[34] To make good the offence of abetment by instigation, there has to be “active suggestion, support, stimulation or encouragement” of the primary offence (see, eg, Public Prosecutor v Lim Tee Hian [1991] 2 SLR(R) 393 at [51] and Balakrishnan S and another v Public Prosecutor [2005] 4 SLR(R) 249 at [66]). In Public Prosecutor v Ng Ai Tiong [2000] 1 SLR(R) 1, it was stated at [23] (quoting from the Indian case of Baby John v State [1953] Cri LJ 1273 at 1274) that instigation could come in the form of “express solicitation or … hints, insinuations or encouragement”.

[35] In several local cases, the courts have held that the circumstances showed that no form of instigation was made out. For instance, in Jimina Jacee d/o C D Athananasius v Public Prosecutor [1999] 3 SLR(R) 826 (“Jimina Jacee”), the High Court found that the charge against the appellant of abetment by instigation of cheating was not made out because the principal offenders had prior knowledge of the appellant’s elaborate scam to get certain Sri Lankans on board a Sydney-bound aircraft without the requisite entry visas. At [32] of Jimina Jacee, Yong Pung How CJ held:

[36] Similarly, in the case of Whang Sung Lin v Public Prosecutor [2010] 2 SLR 958 (“Whang Sung Lin”), where the appellant was charged with abetting by instigation the sale of a kidney, Tay Yong Kwang J held at [37]:

In both Jimina Jacee and Whang Sung Lin, the High Court amended the charges against the respective appellants to that of abetment by aiding and convicted them of the amended charges.

[37] Returning to the present appeal, at the hearing before us, Mr Wong argued that Sng should not have been charged with the offence of abetment by instigation. We agree with this submission for the following reasons. First, there was no need for Sng to goad or encourage Choong Peng into collecting the heroin that was delivered by Chan on 23 January 2008. Based on Sng’s long statement recorded on 28 January 2008, Choong Peng had already previously collected heroin for Sng on two to three occasions prior to 23 January 2008:

This statement confirms that Choong Peng was already in the habit of collecting heroin for Sng by 23 January 2008, and, as such, would not have needed any goading or encouragement to collect the heroin delivered by Chan on 23 January 2008.

[38] Second, Choong Peng had prior knowledge of the contents of the red plastic bag which he collected from Chan on 23 January 2008. Although Sng initially claimed in his cautioned statement recorded on 24 January 2008 that Choong Peng “did not know about the heroin”, this was plainly contradicted by Sng’s subsequent long statement recorded on 28 January 2008 where Sng stated:

In any case, the statement of facts which Choong Peng accepted without qualification in CC 1/2009 clearly indicated that Choong Peng was well aware that he was collecting heroin on behalf of Sng on 23 January 2008. Paragraph 7 of that statement of facts reads as follows:

[39] On this evidence, it would be difficult for the court to agree that there was abetment by instigation on Sng’s part. Mr Wong argued that based on the evidence, the charge against Sng should be amended to one of drug trafficking in furtherance of a common intention between Sng and Choong Peng to traffic. However, we are of the view that the proven facts show, more appropriately, abetment by aiding on Sng’s part as Sng gave Choong Peng the $5,500 in cash which had to be paid to Chan in order to take delivery of the drugs from Chan on 23 January 2008. Accordingly, just as the court did in Jimina Jacee and Whang Sung Lin (see [36] above), we order that the charge against Sng be amended from that of abetment by instigation to that of abetment by aiding, and convict Sng of the amended charge.

[40] Another ground based on which Mr Wong sought to challenge Sng’s conviction was that the Prosecution violated Art 12 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”) in charging Sng with a capital offence and Choong Peng with a non-capital offence when the charges arose from the same events that led to both men (among others) being arrested on 23 January 2008. This argument was recently rejected by this court in Ramalingam Ravinthran v AG, and we do not propose to repeat what this court stated at [70]–[72] of that judgment. As Mr Wong was unable to substantiate his case that the Attorney-General, in his capacity as the Public Prosecutor, had exercised his prosecutorial discretion based on irrelevant considerations, we dismiss this argument.

[41] Mr Wong also raised a separate argument on which Art 12 of the Constitution has a bearing. This argument concerns the interpretation of the words “that offence” in s 12 of the MDA (reproduced at [32] above), the full text of which is set out again below for ease of reference:

[42] The expression “that offence” appears twice in s 12 of the MDA. From a textual reading of the section, “that offence” refers to “any offence under this Act”. On this premise, Mr Wong contended that the words “that offence” in s 12 (and by extension, the words “any offence under this Act” as well) referred to the offence which Choong Peng committed. This, on Mr Wong’s reading of s 12 of the MDA, meant that the quantity of diamorphine in respect of which Sng was charged as an abettor in the present case must be the same as the quantity of diamorphine which Choong Peng was convicted of trafficking in CC 1/2009 (ie, “not less than 14.99 grams of diamorphine” [emphasis in original omitted]).

[43] We are unable to agree with this submission. In our view, the words “that offence” in s 12 of the MDA refer to the offence which the Prosecution is able to prove against an accused on the admissible evidence. In the present case, the offence that could have been proved against Choong Peng is that of trafficking in 30 packets of substance containing not less than 17.70g of diamorphine, and, accordingly, he too could have been charged with a capital offence. However, the commission of an offence by an offender does not necessarily result in his being charged for that particular offence. As fully explained by this court in Ramalingam Ravinthran v AG, the Attorney-General, as the Public Prosecutor, may exercise his prosecutorial discretion to charge two or more offenders engaged in the same criminal enterprise with different offences punishable with different punishments according to (inter alia) their culpability in the carrying out of that criminal enterprise. He is not required by law to charge all offenders involved in a criminal enterprise with the same offence, be it a capital offence or a non-capital offence, provided that his decision is neither biased nor made as a result of taking into consideration irrelevant matters (see Ramalingam Ravinthran v AG at [51]–[53]).

[44] As for the alleged mix-up and/or contamination of the drug exhibits at the CNB’s premises, which Sng (like Chan) also raised as a ground of appeal (see sub-para (d) of [16] above), we discussed this earlier in respect of Chan’s case and, as stated at [25]–[26] above, we are of the view that Sng’s complaint in this regard likewise has no merit.