Norasharee bin Gous v Public Prosecutor and another appeal and another matter [2017] SGCA 17

Three accused persons, Mohamad Yazid bin Md Yusof (“Yazid”) aged 36 at the material time in October 2013, Norasharee Bin Gous (“Norasharee”) then aged 39 and Kalwant Singh a/l Jogindar Singh (“Kalwant”) then aged 23, were convicted in the High Court after a joint trial involving various charges under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). The trial judge (“the Judge”) sentenced Yazid to life imprisonment and to receive 15 strokes of the cane. The Judge imposed the mandatory death penalty on Norasharee and Kalwant as neither received a certificate of substantive assistance under s 33B of the MDA. Further, Norasharee’s role in the drug transaction did not qualify him as a courier within the meaning of s 33B. The High Court’s judgment is published in Public Prosecutor v Mohamad Yazid bin Md Yusof and others [2016] SGHC 102 (the “Judgment”).

The present appeals before us were lodged by only Norasharee and Kalwant. Yazid did not appeal against the Judge’s decision. On the eve of the hearing of these appeals, Kalwant filed Criminal Motion No. 22 of 2016 (“the CM”) seeking to adduce further evidence. This application was granted by us at the start of the appeals. It will be discussed later in this judgment. In essence, Kalwant’s appeal concerns the operation of the presumption of knowledge under s 18(2) of the MDA while Norasharee’s appeal involves the issue of the Prosecution’s reliance on the confessions or statements of a co-accused person to prove its case against another co-accused person.

Background facts

At about 7am on 24 October 2013, Yazid met Kalwant at a multi-storey car park in Woodlands. Yazid was standing in front of his motorcycle when Kalwant arrived on another motorcycle and parked it next to Yazid’s motorcycle. Kalwant alighted and the two men interacted for a few minutes before officers from the Central Narcotics Bureau (“CNB”), who had been waiting in ambush, arrested them. The officers recovered a total of nine bundles wrapped with black tape with each containing two packets of brown substance. Out of the nine bundles, three (which contained not less than 60.15g of diamorphine in total) were found in the haversack that Kalwant was carrying. The other six bundles (which contained not less than 120.90g of diamorphine in total) had been placed by Kalwant in the container box of Yazid’s motorcycle. Yazid had slit one of these six bundles open at one end using a paper cutter to confirm its contents, which he expected to be diamorphine.

Yazid claimed that he had been instructed to traffic in drugs by one “Boy Ayie”, whose phone number he had saved in his own mobile phone under the name “Eye”. Either Boy Ayie or his partner (one “Bujang Hawk”) would place orders for diamorphine from Kalwant’s boss in Malaysia. Boy Ayie would then instruct Yazid to receive the drugs from the sender from Malaysia and to hold them until he was told who the specific recipients were. Yazid would then deliver the drugs as instructed and would subsequently be paid by Boy Ayie for the service. Yazid said that he met Boy Ayie in the vicinity of VivoCity shopping centre (“VivoCity”) in the afternoon on 23 October 2013 (ie, the day before Yazid was arrested). There, Boy Ayie told Yazid that there would be a delivery of drugs from Malaysia the next day and instructed him to collect some bundles from a Malaysian courier (who turned out to be Kalwant). On 1 July 2015 (some 20 months after the drug transaction), Norasharee was arrested at his home. This was the man Yazid identified as Boy Ayie.

The proceedings below

The charges

The charges against Yazid, Kalwant and Norasharee were as follows.

(a) Yazid faced one charge under s 5(1)(a) read with s 5(2) of the MDA for possessing not less than 120.90g of diamorphine for the purpose of trafficking;

(b) Kalwant faced one charge under s 5(1)(a) read with s 5(2) of the MDA for possessing not less than 60.15g of diamorphine for the purpose of trafficking (in respect of the three bundles in his haversack) and another charge under s 5(1)(a) of the MDA for trafficking in not less than 120.90g of diamorphine (in respect of the six bundles delivered to Yazid); and

(c) Norasharee faced one charge under s 5(1)(a) read with s 12 of the MDA for abetting, by instigation, Yazid to traffic in not less than 120.90g of diamorphine.

The parties’ cases

At the trial, Yazid practically admitted the offence but asserted that he was a mere courier. He accepted that he received the six bundles from Kalwant. He also admitted that he knew they contained diamorphine and that he had them for the purpose of trafficking. A large part of the Prosecution’s case against Kalwant and Norasharee was based on Yazid’s statements. As regards Kalwant, Yazid made a statement on 29 October 2013 recounting a conversation he claimed he had with Kalwant when they were remanded in the same cell at the Cantonment Police Complex after their arrest. According to Yazid, these were the matters that Kalwant mentioned:

(a) Kalwant delivered “obat” within Singapore only as he had stopped delivering drugs from Malaysia to Singapore after he saw his friend arrested at the Woodlands Checkpoint for what he thought could be a capital case. Kalwant’s boss loved him and therefore allowed him to pick up drugs only within Singapore for delivery within Singapore;

(b) Yazid was to tell the investigating officer that the bundles contained only tobacco and panparak;

(c) Kalwant picked up the drugs from a friend in Singapore and packed four out of the nine bundles, without wearing gloves while his friend packed the remainder;

(d) after his arrest, Kalwant was allowed to answer a call from his boss (whom Kalwant had told the CNB was called “Anna” – probably should have been spelt as “Anneh”, meaning elder brother in Tamil) and he spoke to his boss in Tamil; and

(e) Kalwant led the CNB to the Toh Guan area but that did not result in any arrests.

Kalwant accused Yazid of falsely implicating him to save himself from the death penalty. Kalwant also claimed to have believed Anna’s instruction that he was being made to carry panparak, a kind of Indian betel nut mixed with tobacco. Panparak, according to Kalwant, usually comprised small, broken, light brown or whitish-brown pieces with a powdery texture. Kalwant said that he assumed that the substance he was caught with, which comprised large, dark brown pieces, was panparak in which the betel nuts or leaves had not yet been broken and to which white lime powder had not yet been added. For convenience, we will call this “unprocessed panparak”.

Norasharee’s defence was also that Yazid was trying to implicate him falsely. Two reasons were cited. First, Yazid wanted to save himself from the death penalty and second, they were members from rival gangs and Yazid wanted to rid himself of an enemy. It was undisputed that Yazid belonged to the “Omega” gang (at least in the past) while Norasharee belonged to the “369” gang. In support of this, Norasharee claimed that he had won a fight with an Omega headman at Telok Blangah House in 1998 (“the 1998 Fight”) at which Yazid was present and Yazid bore a grudge against him because of that. Omega members took revenge by stabbing Norasharee the following year at Northpoint (“the 1999 Stabbing”) and by causing trouble for him while he was working as a bouncer at Club 7 (a nightclub at Concorde Shopping Centre) between 2011 and 2013.

The Judge’s decision

Yazid

Yazid was found guilty and convicted on the charge against him (Judgment at [6] and [35]). The Judge sentenced Yazid to life imprisonment and to receive 15 strokes of the cane as he was found to be a courier (Judgment at [8]) and was given the certificate of substantive assistance by the Public Prosecutor.

Kalwant

The Judge found that Kalwant had actual knowledge that the bundles contained diamorphine (Judgment at [16]). Based on Yazid’s statement dated 29 October 2013, Kalwant knew he was carrying “obat” which was the street name for diamorphine and which Kalwant knew meant “narcotic drugs” (Judgment at [13]). The Judge found that Yazid was truthful in his evidence despite having an incentive to frame Kalwant to save himself. This was because:

(a) First, the DNA recovered from the bundles corroborated Yazid’s claim that Kalwant had packed four bundles without gloves. Kalwant’s contrary claim that he had packed only three bundles and that he merely touched the fourth bundle (ie, exhibit B1A) at one spot, was rejected as Kalwant could not explain why his DNA was found on the interior of the fourth bundle.

(b) Second, on 30 October 2013, Yazid retracted a portion of his contemporaneous statement made on 24 October 2013 involving Kalwant, on the basis that he had made a mistake because he was nervous at the earlier time. Yazid had stated that Kalwant told him at the car park before their arrest that he was passing Yazid six bundles of “beh hoon” (meaning white powder in Hokkien) but he later clarified that Kalwant did not mention the words “beh hoon”, “drugs”, “obat” or “heroin” on that particular occasion. Instead, Kalwant mentioned “chocolate colour from pandan”.

(c) Third, unless Kalwant had told him, Yazid could not have known that Kalwant received a call from his boss “Anna” and that Kalwant led the CNB to the Toh Guan area in the failed attempt to arrest the intended recipient of the rest of the bundles because that person did not show up (Judgment at [15]).

In any event, Kalwant could not rebut the presumption of knowledge. His suspicions would have been aroused by virtue of the significant visual differences between panparak (which he said he thought he was given) and the dark brown granular/cubed substance found in the bundles. The Judge rejected Kalwant’s claim that he thought the substance was panparak for which the betel leaves had not yet been broken as the substance did not even resemble unbroken betel leaves. Kalwant’s counsel’s suggestion that Kalwant might not have been able to see the colour differences clearly as it was early in the morning was rejected by the Judge because Kalwant did not raise this in evidence (Judgment at [21]–[22]). The Judge found that Kalwant, despite his suspicions, failed to confront Anna when he should have done so. The Judge further found his claim that he trusted Anna to be “not credible” because, according to Kalwant, Anna was a gangster who was involved in various illegal businesses and had threatened previously to beat Kalwant up when he could not pay his debts. Kalwant also said that Anna had lied to him on a previous occasion that he was carrying tobacco when he was actually carrying panparak (Judgment at [22]).

Accordingly, Kalwant was found guilty and convicted on both charges against him. Although he was found to be a courier within the meaning of s 33B of the MDA, he was sentenced to death as he did not receive a certificate of substantive assistance.

Norasharee

The Judge found that the actus reus of abetment by instigation was satisfied when Norasharee told Yazid when they met on 23 October 2013 in the vicinity of VivoCity that there was going to be a delivery of drugs from Malaysia the next day and instructed Yazid to collect the bundles from the Malaysian courier.

The Judge found Yazid to be truthful despite having an incentive to frame Norasharee to save himself. First, his testimony was corroborated by VivoCity’s car park records which showed a car registered in Norasharee’s name entering at 1.07pm and leaving at 1.40pm on 23 October 2013. Norasharee claimed that he went to VivoCity because he met a colleague called “Lolo” for lunch there but did not call that colleague to testify in court. Norasharee denied meeting Yazid at VivoCity but could not explain how Yazid would have known that Norasharee was present if they had not met there. Second, “Ayie” and “Eye” (a name which Yazid called his boss) and “Ayi” (a name by which Norasharee said he was known to family and friends) sounded similar (Judgment at [30]).

Similarly, Norasharee failed to prove that Yazid would lie and frame him by reason of a personal vendetta against him. Yazid denied being present during the 1998 Fight which, in any event, took place some 18 years before the trial. Although Yazid admitted that he was a gang member of Omega, he claimed that he had left the gang since 2008. Norasharee accepted that Yazid was not involved in the 1999 Stabbing or in any altercation between Omega and Norasharee and that Yazid had not talked to, argued with or fought with Norasharee while at Club 7 (Judgment at [27]–[29]).

Although Yazid did not mention the meeting at VivoCity until June 2015 (ie, almost two years after he was arrested but before Norasharee was arrested), he had in his statement on 29 October 2013 (ie, 5 days after his arrest) stated that his boss was “Boy Ayie” and given a physical description of him that largely matched Norasharee. In contrast, Norasharee changed his position frequently regarding Yazid. For instance, he denied that he knew Yazid when he was shown Yazid’s photograph repeatedly soon after his arrest on 1 July 2015. However, at the trial, Norasharee claimed that from the moment of his arrest when he was shown Yazid’s photograph, he recognised Yazid immediately as his enemy and knew that he was being framed by Yazid (Judgment at [31]–[32]).

The Judge found that the mens rea of abetment was satisfied because Norasharee, having placed the order from Kalwant’s boss, would have actual knowledge of the quantity of diamorphine that Yazid was to traffic in. It was not necessary for Norasharee to know the exact time at which Yazid was to meet the Malaysian courier (Judgment at [33]).

Accordingly, Norasharee was found guilty and convicted on the charge against him. Norasharee was also sentenced to death as he was found not to be a courier but to be an instigator and one who had control in drug trafficking operations (Judgment at [34]). Further, he did not receive the certificate of substantive assistance.

The submissions on appeal

Kalwant’s appeal and criminal motion

Kalwant disputed having actual knowledge that the substance in the bundles was diamorphine. First, he said it was unclear from Yazid’s statement whether Kalwant knew that “obat” meant narcotic drugs (because he could have learnt it from his conversation with Yazid) and, even if Kalwant knew that “obat” meant narcotic drugs, it did not follow that the narcotic drugs referred to was necessarily heroin. Next, he disagreed with all three reasons given by the Judge to say that Yazid was truthful when making his statement:

(a) On the fact that Kalwant’s DNA was found on the interior of Exhibit B1A, ie, the exhibit he said he touched but did not pack, Kalwant said it merely corroborated itself (ie, the fact that he packed four bundles without gloves) but not anything else in Yazid’s statement. The Judge ignored the fact that Kalwant accepted that he did part of the packing.

(b) As regards the fact that Yazid later retracted part of his statement which was adverse to Kalwant, Kalwant said that the Judge failed to consider that Yazid lied in the first place and that Yazid could have retracted his statement because he was tailoring what Kalwant told him to suit his own story.

(c) In respect of the fact that Yazid knew the details of what Kalwant did post-arrest, Kalwant said that Yazid’s knowledge of the phone call from “Anna” did not prove that Kalwant knew the contents of the bundles to contain diamorphine. Yazid, who made his statement five days after that call, could have learnt about it from one of the many others who were present when the call was taken.

Kalwant also argued that the presumption of knowledge was rebutted. To this end, he submitted that:

(a) The Judge erred in law and in fact in saying that he was “not convinced” by Kalwant’s account because Kalwant only needed to raise a reasonable doubt.

(b) The Judge gave insufficient weight to the evidence that showed that Kalwant was satisfied that he was carrying tobacco or unprocessed panparak. Kalwant was not a drug consumer and had experience with panparak only and not with diamorphine.

(c) The Judge erred in saying that Kalwant did not trust Anna. The fact that Anna had come clean after initially lying could be a factor that restored the trust between them.

Kalwant, in support of his claim that he thought he was carrying unprocessed panparak, filed a criminal motion on the eve of the hearing of the appeals seeking to adduce further evidence in the form of photographs of a packet of unbroken betel nuts and a receipt for its purchase in Singapore. We will say more about this later.

Norasharee’s appeal

Norasharee, essentially, attempted to make good his argument that Yazid was trying to frame him.

Norasharee argued that the Judge was wrong to find that Yazid had no personal vendetta against him or no reason to frame him despite the alleged gang rivalry, whereas the Prosecution argued that Norasharee was not able to prove that there was a personal vendetta. Norasharee raised the following matters:

(a) First, Yazid was not forthcoming about his gang activities. Yazid lied about having left Omega in 2008 as Kalwant, who was a disinterested party, testified that Yazid was “boasting” about his gang “leader” even in 2013. Yazid’s evidence that he knew “Sum Chartered” (a prominent member of Omega) only recently and in prison was incredible, given that he should have known the headmen in his gang and that he knew another headman called “Babat”. Yazid also denied meeting or having an altercation with Norasharee at Club 7, even though he acknowledged having gone to that pub. The Prosecution’s reply was that the evidence showed that Yazid left the gang in 2008.

(b) Next, the Judge failed to give weight to the contention that there was long-term gang rivalry and in any event, ex-gang members would not work together.

(c) The Judge was wrong to find that his claim (ie, that Yazid was trying to frame him) was an afterthought; Norasharee only realised that Yazid was an enemy later and it was conceivable that Norasharee did not want to mention anything about the gang rivalry until he had access to counsel even though this case concerned a capital charge. In response, the Prosecution submitted that Norasharee failed to contend clearly that he was being framed (or at least that he and Yazid were enemies) in clear terms, when doing so would have been in his self-interest.

(d) Yazid mentioned the meeting at VivoCity very belatedly—it was only in June 2015 that he stated this. Such a personal meeting was also a departure from Norasharee’s purported modus operandi.

Norasharee then argued that the Judge was wrong in finding that he was the person whom Yazid identified as his boss and whom Yazid met at VivoCity on 23 October 2013.

(a) Norasharee said that the Judge erred in finding that he was “Boy Ayie” or “Eye” based on an aural similarity to “Ayi” as there was no legal basis for attaching evidential weight to such.

(b) The Judge was wrong to say that Norasharee must have met Yazid just because Norasharee’s car was parked at VivoCity that day. The Prosecution argued that this aspect of the evidence objectively corroborated Yazid’s account and that it would be fanciful to think that Yazid was either there by coincidence or had tracked the location of Norasharee’s car to frame him.

(c) Yazid’s description of Norasharee’s physique could have come from his observations of Norasharee in gang rivalry situations (as Norasharee was a prominent member of a rival gang) or at Club 7 as Yazid patronised it while Norasharee was working as a bouncer there.

Kalwant’s appeal and criminal motion

The test for rebutting the presumptions in s 18 of the MDA

In our recent decision in Obeng Comfort v PP [2017] SGCA 12 (at [34] to [41], we said the following about s 18 of the MDA:

We will now apply these legal principles to the facts of the present case.

Whether Kalwant had actual knowledge that the bundles contained diamorphine

For easy reference, we set out the salient portion of Yazid’s statement dated 29 October 2013 (at [16]) where Yazid was recounting “small talk” between him and Kalwant in the same cell in Cantonment Police Complex sometime in the afternoon of 28 October 2013 (“Burn” refers to Kalwant while “Steven” refers to Kalwant’s boss):

Kalwant’s arguments were made at two levels. First, he contended that the Judge was wrong to find that Yazid was truthful in saying that Kalwant had referred to “obat”. Second, he contended that even if Yazid’s statement was true, it did not clearly show that he knew that “obat” meant narcotic drugs (because he could have learnt it, for example, from conversation with Yazid while they were in remand in the same cell). It did not show at all that “obat” meant diamorphine.

We are not persuaded by Kalwant’s arguments. We begin by addressing the Judge’s three reasons for finding that Yazid was truthful.

In respect of the first reason (ie, the fact that the DNA evidence corroborated Yazid’s claim that Kalwant had packed four bundles), Kalwant argued in his petition of appeal that the Judge ignored the fact that Kalwant accepted that he did part of the packing — he said that an Indian man had given him six bundles (each containing two packets) and a further six packets of brown granular substance (which he packed into three bundles).

Kalwant abandoned this argument in his written and oral submissions. In any event, we would not be moved by this argument. Kalwant’s DNA was found on four bundles. On three of these, Kalwant’s DNA was found on the exterior surface of the packets, the surface of the newspaper and the non-sticky side of the tape. On the fourth bundle, the only surface where Kalwant’s DNA had a positive match was the interior surface of the packet. Given that it was never suggested that there was a mistake or contamination in the analysis, we conclude that Kalwant must have been involved in packing the fourth bundle. The fact that Kalwant accepted that he packed three bundles does not lead to the conclusion that he was more truthful than Yazid.

As for the Judge’s second reason (ie, the fact that on 30 October 2013, Yazid retracted a portion of his contemporaneous statement of 24 October 2013 by clarifying that, just before their arrest, Kalwant said he was carrying “chocolate colour from pandan” instead of “beh hoon”, “drugs”, “obat” or “heroin”), Kalwant contended that the Judge was wrong to characterise it as an act that evidenced truthfulness. He submitted that the Judge should have given weight to the fact that Yazid lied while giving a statement and should have found that he was motivated by a desire to tailor what Kalwant said to suit his own account of events, namely, that he was merely a courier for “Boy Ayie”. This, he argued, would explain why Yazid suddenly claimed that Kalwant mentioned one “Abang Besar” at the time they met in Woodlands. Also, the fact that “Jang” (ie, Bujang Hawk, “Boy Ayie’s” partner) had asked Yazid, during a call that took place in the CNB vehicle just after arrest, whether the bundles were “chocolate colour from pandan” would explain why Yazid said that “chocolate colour from pandan” originated from Kalwant. His point, it seems, was that Yazid wanted to appear as if he did not know what it meant.

Ultimately, we are not moved by this argument. First, Yazid gave a plausible explanation of why he had said “beh hoon” instead of “chocolate colour from pandan” on 24 October 2013. He has consistently maintained, since his statement dated 30 October 2013, that he used the words “beh hoon” because he was nervous and because he was speaking with a Chinese officer. Thus, we do not think that Yazid was deliberately telling an untruth. Second, Yazid would not have achieved anything in terms of tailoring his statement to suit his case by clarifying what Kalwant had told him. In either case, Yazid would have had no difficulty showing that he was a mere courier. Third, we take the view that Yazid was truthful when he said that “chocolate colour from pandan” originated from Kalwant. Based on what counsel put to Yazid, Kalwant’s position must have been that he did not talk to Yazid before they were arrested. Kalwant then admitted in examination-in-chief that he did speak with Yazid before they were arrested, albeit not in connection with the bundles of drugs. In cross-examination, Kalwant admitted to having described to Yazid the contents of the bundles as being “chocolate in colour” but claimed that this was said in the lock-up and in response to Yazid’s question as to what panparak was . However, we find Kalwant’s explanation hard to believe because chocolate colour was neither an intuitive nor a precise way to describe panparak and also because it was not put to Yazid that he had asked Kalwant while in the lock-up what panparak was.

As for the Judge’s third reason (ie, the fact that Yazid knew the details of what Kalwant did after they were arrested), Kalwant argued that Yazid could have learnt of the phone call made by “Anna” to Kalwant from someone else since there were many persons present when the phone call was taken. Further, Yazid made his statement five days after the call.

In our judgment, it is highly unlikely that any of the police officers could have given Yazid all these details. Our inference, therefore, is that Yazid learnt of the events from no one other than Kalwant.

On the basis that Yazid’s statement was true, Kalwant also submitted that the first and third reasons did not prove that Kalwant had actual knowledge that the bundles contained heroin. In our view, this is too myopic a view of the evidence. The point is that these facts, taken collectively, show generally that Yazid was truthful while Kalwant was not and this increased the likelihood that Yazid was truthful specifically in relation to what Kalwant had told him about the contents of the bundles.

It is clear to us that Kalwant knew that “obat” referred to narcotic drugs. Kalwant said in his statement dated 27 October 2013 (at [26]):

We are also satisfied that Kalwant knew that “obat” meant diamorphine in particular. In our view, the Judge was entitled to find that “obat” is the street name for diamorphine in Malay, just as heroin is its English equivalent. In any event, there was further support for such a finding. First, Kalwant claimed in his statement dated 27 October 2013 that after Yazid told him that the substance in the bundles was “obat”, he said that “our lives are finished”. Kalwant must have realised that being caught with “obat” could lead to serious consequences which follow the possession of certain drugs only. Second, Yazid claimed that Kalwant told him sometime in the afternoon of 28 October 2013 that he (Kalwant) was hopeful that he would be sentenced to five years’ imprisonment and he hoped that “the grade of the heroin will be low”. Although Kalwant denied having said this during examination-in-chief (he was not cross-examined on this further), he admitted in his statement dated 30 October 2013 that he had said it. His reference to the “grade of the heroin” betrayed his knowledge about the drug trade, ie, that the drug he was carrying was heroin and that it had varying grades of purity.

In our view, the Judge was fully justified in finding that Yazid was truthful and that the contents of Yazid’s statements showed that Kalwant had actual knowledge that the bundles contained diamorphine. There is therefore no basis for appellate intervention.

Whether Kalwant rebutted the presumption of knowledge

As we agree with the Judge on the issue of actual knowledge, the issue of whether Kalwant has rebutted the presumption of knowledge, strictly speaking, becomes moot. However, we now explain why we also agree with the Judge that Kalwant has failed to rebut the presumption of knowledge which the Prosecution invoked below.

To recapitulate, Kalwant claimed that he believed that he was carrying duty-unpaid, unprocessed panparak and was helping his boss to evade tax in doing so. To this end, Kalwant filed Criminal Motion No. 22 of 2016 seeking to adduce further evidence about panparak on appeal. This comprised two photographs of a packet of unbroken betel nuts together with a receipt for its purchase showing that the packet was bought for S$6.40 on 13 October 2016 from a shop in Buffalo Road, Singapore. We allowed this further evidence to be adduced at the start of the appeal as it has some relevance and could be easily dealt with by way of submissions.

In our judgment, the evidence during the trial did not support Kalwant’s contention and the further evidence on appeal served to confirm our view. We agree with the Judge’s assessment that Kalwant did not genuinely think that he was carrying panparak on 24 October 2013 as his suspicions would have been aroused by the fact that the substance in the bundles looked different from the panparak that he had encountered previously.

First, despite the significant visual differences between panparak and the substance that Kalwant was carrying, Kalwant was happy to assume that he was carrying panparak for which the betel leaves had not been broken and to which lime powder had not been added. However, he did not testify that he had ever encountered panparak in such a form. Kalwant’s first encounter with panparak was around 2005–2006 when he took “a few small brownish rice grains” from his grandmother’s friend. His second encounter was during his third delivery for “Anna” when he claimed that he saw “brown grainy substance … about the size of rice grains” that “looked more like grains of sand but in whitish brown”. These quite accurately described the pictures of panparak (as commercially produced and marketed) which were placed before the Judge but not the brown cubes of substance in the packets that Kalwant was carrying. While the unbroken betel nuts look a little more similar to the substance that Kalwant was carrying, there were still noticeable differences even at a cursory glance. The substance that Kalwant was carrying was shaped like regular cubes with a grainy appearance while the betel nuts were flatter and had a woody appearance with a distinct radial pattern.

Second and more importantly, it would have made no sense at all to pay a Malaysian courier RM100 per bundle to transport panparak from one location in Singapore to another location in Singapore (we elaborate on this at [46] – [48] below). According to Kalwant in his cautioned statement under s 23 of the Criminal Procedure Code (“CPC”) (Cap 68, 2012 Rev Ed), after he starting questioning Anna about what he was really being asked to deliver, Anna “raised my salary” from RM50 to RM100 for each bundle delivered. In his statement of 26 October 2013, he elaborated on this. He said that after the third or fourth deliveries, he told Anna that he had opened a packet to look at its contents and they did not look like tobacco. Anna then told him that he was actually delivering panparak as tobacco was not in demand and panparak was more in demand. Anna said that he had forgotten to inform Kalwant about the change in the type of goods for delivery, that panparak was “more expensive” and “so he will increase my pay to RM100 for each packet that I deliver”. Kalwant was happy with the increase in pay because he would be able to clear his debts earlier.

Following from this, we instructed the registry to arrange with Kalwant’s solicitors, Norasharee’s solicitors and the Public Prosecutor’s office for a lawyer from each of their offices to go with an Assistant Registrar of the Supreme Court to the shop in Buffalo Road, where Kalwant’s sister had purchased the panparak, to buy $6.40 worth of the same item stated in the receipt dated 13 October 2016 exhibited in the CM. This was done in the afternoon of 6 March 2017, as reported to this court by Assistant Registrar Paul Chan (“the AR”). A group of seven persons went together to the shop in three cars. Mr Bajwa and Mr Satwant Singh represented Kalwant, Mr Amarick Gill represented Norasharee and DPP Chan Yi Cheng represented the Public Prosecutor. The AR and two registry staff members also went to the shop. The AR showed a copy of the receipt exhibited in the CM to the sales staff in the shop, highlighting the product’s serial number and description. The shop sold panparak in unpacked form by weight at S$12 for one kilogram. It was stored in a blue plastic tub or pail. The group then asked for S$6.40 worth of panparak. The sales staff took some panparak and put it in a red plastic bag. He then weighed the panparak together with the red plastic bag on an electronic weighing scale. At S$6.40 worth, the panparak weighed 535g. After everyone in the group had verified the weight, Mr Satwant Singh, Mr Amarick Gill and DPP Chan Yi Cheng signed on a document prepared by the registry earlier confirming that they had witnessed the purchase of $6.40 worth of panparak as shown in the shop’s receipt and that it weighed 535g, with the weight handwritten by the AR. Mr Satwant Singh paid for the packet of panparak. The said packet, the shop’s receipt and the signed document were handed over to the AR and the group then left the shop. These items have been forwarded by the AR to the court.

Finally, we also do not believe Kalwant’s claim that he thought he was helping his boss evade tax. He was obviously not carrying the goods across borders but was merely carrying them from one place to another within Singapore.

In our opinion, the Judge was correct to say that Kalwant could not have trusted Anna or believed Anna’s earlier instructions or assurances because he must have suspected that he could have been carrying something other than panparak. Anna was engaged in a spectrum of illegal activities and he had threatened to beat Kalwant up when he could not repay the money he owed Anna from illegal betting. Anna had also shown himself to be untrustworthy. Based on Kalwant’s version of events, Anna had told him “not to worry” when Kalwant confronted him after his third delivery. However, he later admitted that the substance was panparak only when Kalwant confronted him again after having examined the contents of a bundle. In our judgment, it was unbelievable that the trust between them was restored by the fact that Anna supposedly came clean about the contents of the bundles in the manner described. Kalwant certainly did not appear to be a naïve and easily manipulated man despite his relative youth at the material time.

Finally, we find no merit in the contention that the Judge erred in law in saying that he was “not convinced” by Kalwant’s account (see Judgment at [22]) when Kalwant only had to raise a reasonable doubt. Once the presumption in s 18(2) of the MDA applies, the burden falls on Kalwant to rebut the presumption of knowledge of the nature of the drug by adducing evidence to persuade the Judge on a balance of probabilities. The onus is not merely to raise a reasonable doubt. The Judge’s use of the words “not convinced” therefore clearly meant he was not convinced on a balance of probabilities.

In the premises, the Judge was correct in finding that the presumption of knowledge was not rebutted. We therefore find no basis for disagreeing with the Judge in convicting Kalwant on his charges.

Norasharee’s appeal

We now turn to Norasharee’s appeal. As the Judge noted, the case against Norasharee rested almost entirely on Yazid’s statement. In Norasharee’s case, the Prosecution must prove the charge against him beyond reasonable doubt without the assistance of the twin presumptions in s 18 of the MDA as Norasharee had no ostensible link with the drugs in question where possession was concerned and was not even present during the drug transaction.

The court’s approach in convicting an accused person solely on the basis of a co-accused’s statement

Here, the Prosecution was seeking to prove Norasharee’s guilt on the basis of a co-accused person’s statement. In the following discussion, we will use X to denote the accused and Y to denote the co-accused (in the present context, Norasharee and Yazid respectively). It is clear that the Court may consider Y’s confession against both X and Y, if they are being tried jointly for the same offence (s 258(5) of the CPC). The Court may convict X solely on Y’s confession. Thus, the court in Chin Seow Noi and others v Public Prosecutor [1993] 3 SLR(R) 566 (“Chin Seow Noi”) held that s 30 of the Evidence Act (Cap 97, 1990 Rev Ed) (“EA 1990”), which is the predecessor of s 258(5) of the CPC, permitted the Court to convict X solely on the basis of Y’s confession, provided that the evidence emanating from Y’s confession satisfied the court beyond reasonable doubt of X’s guilt (at [84] per Yong Pung How CJ). We think this is correct as s 30 of the EA 1990 does not impose any further limits on the use of a co-accused’s statement and, as Yong CJ pointed out, any narrower construction would emasculate the provision.

The decision in Chin Seow Noi was given somewhat negative treatment by the Court of Appeal in Lee Chez Kee v Public Prosecutor [2008] 3 SLR(R) 447 (CA) (“Lee Chez Kee (CA)”). In the High Court (Public Prosecutor v Lee Chez Kee [2007] 1 SLR(R) 1142 (HC) (“Lee Chez Kee (HC)”)), when X was tried for murder, Y, an accomplice who had alleged in his statement that X strangled the deceased, had been convicted and executed by the time of X’s trial.

The High Court held that s 30 of the Evidence Act (Cap 97, 1997 Rev Ed) (“EA”) could not apply to admit Y’s statement but that the exception to hearsay in s 378(1)(b)(i) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC 1985”) applied to admit Y’s statement. That section allowed a statement to be admitted if its maker was dead “subject to [ss 378–379 of the CPC 1985] and to the rules of law governing the admissibility of confessions”. The High Court held that a blanket exclusion would lead to manifest absurdity as exculpatory statements would be admissible whereas inculpatory statements (which were generally more reliable as they were made against the maker’s interest) would not (at [44]). The High Court cautioned against placing too much weight on Y’s statement given Y’s interest in incriminating X to exculpate himself and given Y’s unavailability for cross-examination (at [68]). Ultimately, the High Court used the statements merely to “reinforce the already compelling inference” that X was inextricably involved in the murder. In the event, the statements were not strictly necessary to convict X because both X and Y were charged for committing murder with common intention and it was not necessary to prove that X was involved in strangling or stabbing the deceased or even that X was physically present at the scene of crime (Lee Chez Kee (HC) at [60]; Lee Chez Kee (CA) at [253(b)]).

On appeal, Rajah JA held that the High Court was wrong to have admitted the statement, since s 378(1)(b)(i) of CPC 1985 was expressed to be subject to the law governing admissibility of confessions, which would include s 30 of the EA. Outside the context of a joint trial, the law would place considerable emphasis on the danger of the unreliability of Y’s confessions. The fact that Y was dead did not make the statements more reliable since they could have been made in circumstances conducive to fabrication (at [103]–[117]). He also cautioned that a confession by Y relating to X’s guilt was inherently less reliable than one relating to Y’s own guilt because the statement was made not against but in the interest of its maker (at [102]). The danger was potentially compounded by the fact that X may not have the chance to cross-examine Y since Y may elect not to testify (although this concern did not arise in our case). Rajah JA even suggested obiter that Chin Seow Noi should be reconsidered, on the basis that the law was concerned with the unreliability of Y’s statement and that it would therefore be odd for Y’s confession to be given so much weight such that it could on its own secure a conviction of X (at [113]). The other two Judges in the Court of Appeal, Choo Han Teck J and Woo Bih Li J, delivered separate judgments in Lee Chez Kee (CA). It appeared that they agreed broadly with Rajah JA’s dictum. Choo J agreed with the “grounds and reasoning … in respect of the legal issues concerning s 378(1)(b) of the [CPC 1985]”. His disagreement related to the final order (at [270]). Woo J disagreed with Rajah JA’s analysis of s 378(1)(b)(i) CPC 1985 and instead held that Y’s statement was admissible but that no weight should be given to it because it was self-serving and untested by cross-examination (at [274]–[276]).

In the context of sexual offences, the courts often face a similar problem. The line of cases concerning the conviction of an accused person solely on the basis of a complainant’s testimony was most recently revisited in Haliffie bin Mamat v Public Prosecutor & other appeals [2016] 5 SLR 636 at [27]–[32]. This Court held that a complainant’s testimony could constitute proof beyond reasonable doubt if it was so “‘unusually convincing’ as to overcome any doubts that might arise from the lack of corroboration” — meaning that the testimony, “when weighed against the overall backdrop of the available facts and circumstances, contains that ring of truth which leaves the court satisfied that no reasonable doubt exists in favour of the accused”. In this regard, the relevant considerations would be his or her demeanour and the internal and external consistency of his or her testimony (AOF v Public Prosecutor [2012] 3 SLR 34 at [111] and [115]; Public Prosecutor v Mohammed Liton Mohammed Syeed Mallik [2008] 1 SLR(R) 601 at [38]).

In our view, Chin Seow Noi is correct in so far as it stands for the principle that X may be convicted solely on Y’s testimony. However, the foregoing discussion shows that Y’s confession has to be very compelling such that it can on its own satisfy the court of X’s guilt beyond a reasonable doubt. In this regard, it would be relevant to consider the state of mind and the incentive that Y might have in giving evidence against X. If X alleges that Y has a motive to frame him, then this must be proved as a fact (see Judgment at [28], citing Khoo Kwoon Hain v Public Prosecutor [1995] 2 SLR(R) 591). Of course, Y may well be truthful despite having an incentive to lie or could be untruthful despite not having such an incentive.

With these principles in mind, we turn to the facts in Norasharee’s appeal. In this case, the maker of the statement against Norasharee was Yazid, a co-accused being tried at the same trial and who was available for cross-examination.

Analysis of the facts

After assessing the evidence, we were led to the inescapable conclusion that Yazid was truthful when he claimed to have taken instructions from Norasharee at VivoCity on 23 October 2013 regarding the drug transaction that was to take place the next day. Yazid’s evidence was clear and consistent. On the other hand, the alternatives presented in Norasharee’s defence are too fanciful to raise any reasonable doubt in Yazid’s testimony. Norasharee’s evidence failed in three critical aspects—his failure to explain why Yazid would want to frame him, how Yazid knew he was at VivoCity on 23 October 2013 and why he denied previously that he knew Yazid.

The factual starting point

It is clear that Yazid was instructed in the drug transaction by a person whose phone number was saved in Yazid’s mobile phone under the name “Eye”. The phone records show that “Eye” had called Yazid’s mobile phone several times on 24 October 2013, both before and after Yazid’s arrest. After Yazid’s arrest, a CNB officer (WSSgt Norizan binte Merabzul) allowed Yazid to return a missed call from Eye at 11.33am and to answer two incoming calls from Eye at 12.28pm and 2.06pm. According to Yazid, Eye had told him to “relax” as there were no “orders” for the day.

It is also clear to us that Yazid had Norasharee in mind when he said that he was instructed by Boy Ayie. This was borne out by his statements:

(a) In Yazid’s contemporaneous statement, taken on 24 October 2013 from 7.33am (ie, about half an hour after arrest) to 8.15am, Yazid said that he was instructed by Boy Ayie, a Singaporean Malay male.

(b) In Yazid’s cautioned statement, taken in the evening on the same day, Yazid reiterated that he was instructed by Boy Ayie to collect drugs from a person who turned out to be Kalwant. He said that he did not know Boy Ayie’s real name.

(c) Yazid’s next statement was taken on 29 October 2013 (ie, five days after arrest). In it, he gave a detailed account of how he entered the drug trade and the circumstances under which he came to work for Boy Ayie. According to him, Boy Ayie was a 40-odd-year old Malay who was tall, big (with a tummy), muscular and dark-skinned. He had tattoos on his arms and chest but no facial hair. He liked to wear caps but did not wear glasses. He drove a black Honda Civic with the registration number 5471. Yazid said he could not remember the prefix and the suffix of the registration number. Yazid also said that Boy Ayie was rumoured to stay in Lengkok Bahru. The Judge observed that Norasharee matched the physical description of Boy Ayie. Norasharee turned 40 years old in 2013. Most tellingly, Norasharee drove a black Honda Civic with the registration number SGF5471B . The fact that Norasharee was actually staying in Yishun did not affect Yazid’s credibility materially because Yazid had stated that he was unsure about Norasharee’s address.

(d) In Yazid’s long statement taken on 30 October 2013, Yazid said that Boy Ayie told him in the afternoon on 23 October 2013 that “Burn” would call Yazid to ask Yazid to take the thing from him.

(e) Yazid gave three more statements, one in mid-2014 and two in mid-2015. The statement taken in 2014 is of little relevance because it mostly concerned Bujang Hawk. On 10 June 2015, Yazid identified Boy Ayie from a set of nine photographs. He reiterated that he did not know Boy Ayie’s real name and that he did not know how to contact Boy Ayie other than by telephone. Finally, on 22 June 2015, he added that Boy Ayie had met him in person at VivoCity on 23 October 2013 to say that there would be work for him the next day. Yazid understood this to mean that he was to stand by to collect heroin from a Malaysian courier. Yazid did not say that Norasharee drove to VivoCity. He had mentioned earlier the numerals in the registration plate of Boy Ayie’s car and that helped link Boy Ayie to Norasharee. Yazid probably did not know whether Norasharee did or did not drive to the meeting at VivoCity because all he said in the later statement was that he met Norasharee there on the day in question. It was the investigators who then went to check the car park records at VivoCity and that was when they found out that Norasharee’s car entered VivoCity’s car park at 1.07pm and left at 1.40pm that day. In addition to this fact, the record of the phone calls showed no calls between Yazid and Norasharee in the window of time that Norasharee’s car was there, save for a missed call from “Eye” to Yazid’s phone at 1.38pm. This could not be sheer coincidence. We discuss this issue further at [94] – [97] below.

It is apparent that Yazid’s accounts of who Boy Ayie was and of his encounter with Boy Ayie were internally and externally consistent. Given also the proximity of the statements to the date of arrest, Yazid did not appear to have manufactured a character out of thin air.

Two matters appeared to cast a shadow on Yazid’s testimony. One was the fact that Yazid mentioned the meeting with Norasharee in VivoCity only close to two years after the event. The other was that Yazid did not speak about his gangland experience in his statements. However, for reasons which we will explain below, these do not change our views on Yazid’s credibility and ultimately on Norasharee’s guilt.

At this juncture, it is important for the evidence to show that Eye, Boy Ayie and Norasharee were one and the same person. However, the crucial fact that the evidence must show was that Yazid was truthful in saying that Norasharee was the person from whom he had been taking instructions on drug transactions.

The parties’ statements and state of mind when giving evidence

Here we set out our views on Yazid’s failure to mention his gangland links in his statements and Norasharee’s denial that he knew Yazid in his statements. It will be helpful to first outline the parties’ mentality and motivations when their statements were being recorded or when they were conducting their defence. This will set the context against which their credibility can be assessed.

At the investigation stage, Yazid clearly had an incentive in making claims which might secure him a certificate of substantive assistance under s 33B of the MDA, possibly including falsehoods about Kalwant or Norasharee. Yazid could possibly also have an interest in framing Norasharee out of a personal vendetta or because of general gang rivalry. It was undisputed that Yazid belonged to the Omega gang while Norasharee belonged to the “369” gang. In this regard, Yazid might also have an incentive to suppress any gangland history if he truly wanted to frame Norasharee. It would probably have made it easier for the CNB to identify and arrest Norasharee if Yazid had said that Boy Ayie was a senior member of “369”.

However, we do not take an adverse view of Yazid’s failure to mention his gangland history. Yazid said he left the Omega gang since about 2008. That was about five years before his arrest in this case. He started working for Boy Ayie through one “Juna” because of his financial difficulty although he had legitimate employment as a UV light technician. In response to a question by Kalwant’s counsel that Yazid mentioned various names in his statements because he wished to secure a certificate of substantive assistance under the MDA, Yazid replied that, “All this information that I informed the CNB were what was informed by me by [Juna]. Those are the gang members of Boy Ayie. ” That showed that he was not averse to talking about gang matters when asked. Further, Yazid and Kalwant were arrested together while Norasharee was only arrested some two years later. It was therefore natural that Yazid’s statements focused more on his dealings with Kalwant. It was also highly probable that Yazid did not talk about gangland matters because of fear of repercussions to his family. In Yazid’s long statement of 30 October 2013, when asked whether he was willing to testify against Kalwant in court, he said, “I will try my best because I will tell the truth and nothing more than what I know. Nevertheless, I am also worried about the safety and future of my family members if I were to openly confront [Kalwant] in court.” This suggests that Yazid would have been even more concerned if he were asked to testify in court against Norasharee, a senior member of a past rival gang. He claimed in court, just as he was about to leave the witness box, that Norasharee’s gang members in prison had threatened him in prison for the cooperation he had given by identifying Norasharee and that he had to be moved to another prison for his protection.

On the other hand, Kalwant and Norasharee would have a common incentive to discredit Yazid. Norasharee, in particular, would have a specific incentive to exaggerate his and Yazid’s gangland involvement. First, both Kalwant and Norasharee must have found Yazid’s statements highly adverse to them because if the claims in those statements were accepted as true, then both Kalwant’s mens rea (ie, actual knowledge of the nature of the drugs) and the entirety of Norasharee’s offence would be proved. Second, their prospect of facing the death sentence was very real. Kalwant would have been concerned about not receiving the certificate of substantive assistance because the Prosecution had made serious allegations during the trial that he had obstructed the course of justice by tipping off the suspects that the CNB had planned to arrest at the Toh Guan area. Norasharee would have similar concerns because he appeared to have given practically no information to the CNB in his statements and because his role would have been more than a mere courier as he was the one giving instructions to Yazid.

Norasharee’s denial that he knew Yazid and his failure to allege in his statements that Yazid was framing him were even more telling. Norasharee gave three statements in total. The first was a contemporaneous statement recorded at 12.50pm on 1 July 2015. Norasharee was shown a picture of Yazid but he denied knowing Yazid or being involved in any drug trafficking with him. The second was a cautioned statement recorded at 5.00pm on the same day. All that Norasharee said was, “I do not know anything. I will hand over to my lawyer. I do not plead guilty.” The third was a long statement taken the next day, where Norasharee, upon being shown Yazid’s photograph, once again denied knowing Yazid by claiming that, “I do not know the person that is shown to me and I have never seen him before and I am not involved in any drug activities.” However, Norasharee kept vacillating on his position at trial. He first said that, even when his contemporaneous statement was being recorded in his bedroom, he recognised Yazid as an enemy who was framing him. When the inconsistency between his oral testimony and his two statements was pointed out to him, he said that he was “shocked” and “blur” and that he recalled that Yazid was his enemy only after meeting his lawyer on 3 July 2015. Indeed, on appeal, Norasharee’s counsel conceded that Norasharee lied on this point when giving his statement. The following is the trial transcript:

In our judgment, Norasharee’s failure to mention anything about the alleged gang rivalry in his statements suggested strongly that this was an afterthought. It would have been in Norasharee’s interest to say that Yazid was a member of a rival gang since it would have supplied a motive on Yazid’s part to frame him. However, as shown above, he denied even knowing Yazid. We therefore agree with the Judge that Norasharee denied knowing Yazid because he knew that Yazid had been caught for drug trafficking and he did not want to be associated with Yazid in any way (Judgment at [32]).

Whether Yazid had any motive to frame Norasharee

After reviewing the evidence on Yazid’s and Norasharee’s gangland history, we conclude that Yazid had no reason to frame Norasharee.

(1) The duration and extent of Yazid’s involvement in Omega generally

The possibility that Yazid was involved in gang activities until close to the time of his arrest was only a weak one. When cross-examined by Norasharee’s counsel, Yazid claimed that he had been an Omega member “previously” but could not recall when he joined. Later, when cross-examined by the Prosecution, he said he left Omega since 2008. These two claims are consistent with each other.

Some portions of the evidence were relied on to suggest that Yazid’s involvement with gangs had been a continuing one. First, Yazid stored Boy Ayie’s number as “Eye” because he knew Boy Ayie was a “recognised gangster member”. If this was true, it suggested that Yazid had something to hide from the people who were close to him in 2013 and the people most likely to recognise “Boy Ayie” as a gang-linked name would be those who were themselves involved in gang activities, ie, his fellow Omega members. However, this alone was insufficient to prove that Yazid was involved in gang activities even up to 2013.

Second, Yazid tried to downplay his gang involvement to that of everyday social activities, twice denying that he was designated as a fighter in Marsiling:

Third, Yazid admitted to knowing that “Yan Bai” was a “big man” in Omega and that he was probably a headman. Counsel for Kalwant, in further cross-examination, put to Yazid that, on one occasion before the date of their arrest, Yazid showed Kalwant (upon Kalwant’s inquiry) a tattoo on his wrist and an article in the Berita Harian newspaper dated 12 October 2013 featuring Yan Bai and said that “this is my boss and we all have this tattoo somewhere in the region [of our wrist]”. Kalwant testified both in examination-in-chief and in cross-examination by Norasharee’s counsel that Yazid said that Yan Bai was “the gang leader” but the testimony on this point was not the most precise. Yazid said he could not recall that occasion, that the tattoo on his wrist had “nothing to do with Omega” and that Kalwant probably saw it because he normally wore short-sleeved shirts. The exchange went like this:

In our judgment, it is an exaggeration for Norasharee to contend that Yazid was “boasting” about Yan Bai and that this alone proved that Yazid was an active gang member even in 2013. Assuming that the conversation did take place, such casual conversation should not be scrutinised as if it were an important pronouncement. After all, again assuming that the conversation took place, Yazid could simply have recognised the face in the newspapers from the period during which he was involved in gang activities.

Finally, Norasharee’s counsel put to Yazid that Yazid knew one “Abang Besar” who was supposedly an Omega headman operating in the Marsiling area. Yazid denied this. The said Abang Besar, first mentioned in Yazid’s 29 October 2013 statement, was said to be a drug boss. According to Yazid, Abang Besar had ousted Boy Ayie’s predecessor (Upu) because one of Upu’s men had run away with money meant for the drug supplier (Steven). Kalwant purportedly told Yazid that the six bundles that Kalwant handed to Yazid on 24 October 2013 were ordered by Abang Besar from Steven. Norasharee argued that Yazid had manufactured this Abang Besar figure to create the story that he was a courier for Kalwant and the other people in the drug syndicate. On the evidence, we do not think that Yazid did that. If he had wanted to lie that he was a mere courier, all he needed to say was that he was instructed by someone through mobile phone on the where, when and what of each drug delivery and give some particulars about that someone. It would not serve his purpose to spin a complicated story with many fictitious characters because he would be easily caught out if questioned further. In our opinion, Yazid was merely trying to cooperate with the CNB and was providing whatever information he had or could recall.

In conclusion, we are not satisfied that the evidence showed that Yazid was involved in gang activities up to the time of his arrest or that he was consciously trying to hide his past gangland involvement.

(2) The possibility of any gang-related animosity between Yazid and Norasharee before late 2013

We are also of the view that it was highly unlikely that Yazid had any gang-related animosity against Norasharee. According to Norasharee, Yazid bore a grudge against him arising out of the 1998 Fight. Subsequent to this fight, “Sum Chartered and his boys” took revenge on Norasharee at the 1999 Stabbing and Norasharee retaliated by picking fights with “the Omega boys” at “Clarke Quay, Boat Quay, Jams 2000” in 2000 until he was arrested and detained under the Criminal Law (Temporary Provisions) Act for four years. Norasharee also claimed that, between 2011 and 2013, when he was working for Club 7 (at Concorde Shopping Centre) as a bouncer, Yazid visited Club 7 with Omega members to cause trouble for him. Norasharee conceded that the only two instances when he had face-to-face contact with Yazid were the 1998 Fight and when Yazid patronised Club 7 around 2012.

Yazid’s story was very different. He testified about his relationship with Norasharee thrice in his statements and twice in oral evidence in court. On 29 October 2013, he stated that it was in late September 2013 that he became acquainted with Boy Ayie, after having complained directly to Boy Ayie that he was unhappy with the arrangements he had with “Juna” (who had introduced him to the drug trade). Boy Ayie had stepped into the shoes of one “Upu”, a middle-level drug boss who had been excluded from drug dealings because one of his subordinates had absconded with money meant for the drug syndicate. In his statement dated 10 June 2015, he stated that he “had been working for ‘Boy Ayie’ for the past one month before [he] was arrested”. In his statement dated 22 June 2015, he stated that he “had known Boy Ayie for about a month before [he] was arrested”. In cross-examination, Yazid told Norasharee’s counsel that he learnt from Juna that Norasharee was from “369”. He later told the Prosecution that he knew Norasharee through Juna only sometime after July 2013.

In our judgment, the likelihood of Yazid having formed a grudge against Norasharee arising out of the 1998 Fight was virtually non-existent. His evidence was as follows:

Yazid’s counsel did not re-examine Yazid and what he wished to clarify remains unknown. Even so, the 1998 Fight could hardly prove any vendetta between Yazid and Norasharee. Yazid denied being present at the 1998 Fight or at subsequent altercations between Omega and “369” arising from that incident and there was nothing to show that he could be lying. In any event, Yazid and Norasharee were not involved in any direct altercation. Further, those events took place about 14–15 years before Yazid’s arrest and when Yazid was about 21 years old and there was no evidence to show that Yazid continued to bear a long-standing grudge against Norasharee to the extent that he would accuse him falsely of being his boss in the drug transaction here.

It is also highly improbable that Yazid formed or fuelled a grudge against Norasharee arising out of any incident that may have taken place at Club 7. On these matters, Yazid’s evidence was as follows:

We believe Yazid’s account. It is possible that Norasharee saw Yazid at the pubs whereas Yazid did not see Norasharee. After all, as mentioned earlier, no altercation or confrontation took place between Yazid and Norasharee. Yazid also never denied that he had been to Club 7 but explained that he went with his colleagues.

In contrast, Norasharee position was internally inconsistent or implausible for several reasons. His counsel was instructed to put to Yazid that Yazid would frequent Club 7 and Pegasus with Omega members to cause trouble for Norasharee and that Norasharee would direct them to the basement car park at level B3 where the gang fights eventually took place and at which Yazid was present. However, Norasharee admitted in cross-examination by the Prosecution that Yazid was not involved at all in the many fights that supposedly took place at the basement of Concorde Shopping Centre. He even testified in evidence-in-chief that Yazid went to Club 7 and not Pegasus and that they did not speak or fight because they refrained from doing so. In our view, it was most likely that Yazid did not go to Club 7 with Omega members. It was strange too that Yazid would nurse such a deep grudge about a fight that happened some 15 years ago which did not involve him personally. If Yazid’s animosity with Norasharee was so intense that Yazid would unhesitatingly frame him for a capital offence, it was strange that Norasharee and Yazid could refrain from fighting or even confronting each other at Club 7 or elsewhere all those years. Further, if Yazid had indeed borne a grudge all those years since 1998, it was strange that Yazid did not even know what Norasharee’s real name was. If he did, surely he would have informed the CNB about it so that the CNB could identify and arrest Norasharee.

Beyond those two alleged incidents, Yazid and Norasharee had little opportunity to interact or to form grudges against each other anyway. Norasharee had been largely out of circulation. He was imprisoned in 1997 for drug consumption and imprisoned again in 1999 for absconding from urine tests. He was detained for four years in 2000 for gang activities and released with one year’s police supervision thereafter. In 2006, he was imprisoned for five years for drug consumption. He held gainful employment after he was released in 2004 from detention and in 2011 from prison.

At the very highest, the evidence suggested that while Yazid could have known who Norasharee was in the 1990s, they had no interaction at all between 2000 and 2011. Even between 2011 and 2013, the most that could be said was that Yazid possibly saw Norasharee at Club 7 but the two men did not interact at all at Club 7 or elsewhere and Yazid certainly did not fight in the alleged gang fights in the basement car park of Concorde Shopping Centre. The fact remained that Yazid had no reason at all to frame Norasharee.

Whether “Boy Ayie” was “Eye”

The next line of evidence concerned Yazid’s claim that he was working for “Boy Ayie”. In our judgment, the evidence showed that “Eye” was Boy Ayie or Norasharee. Both “Eye” and “Ayie” sounded the same phonetically and also with “Ayi”, the name by which Norasharee was known to his family and friends. Yazid first mentioned “Boy Ayie” in his contemporaneous statement taken about half an hour after arrest and in his first cautioned statement taken in the evening on that same day. Norasharee first mentioned “Ayi” during his s 22 CPC statement taken on 2 Jul 2015 (ie, a day after his arrest).

“Ayie” and “Ayi” may be spelt differently but the spelling for “Ayie” in Yazid’s statement did not come from Yazid. It was a transliteration by SI Kua Boon San, the officer who recorded the contemporaneous statement from Yazid. There is nothing sinister about using short forms and nicknames in one’s mobile phone. For example, “Bujang Hawk” was stored as “Jang”, “Kalwant” was stored as “Burn” and there were many references to “Abg”, which means “abang” or brother.

Norasharee contended that he was widely known was “Budak Jahat”, not “Boy Ayie” or “Eye”, having been given this bad-boy nickname from the staff at the drug rehabilitation centre in 1994 for climbing the fence and quarrelling with the staff. However, this made no material difference to the case here. Norasharee was known to family and friends as “Ayi”. Next, as the Prosecution pointed out, if Norasharee was really known as Budak Jahat, Yazid could have easily pointed fingers at Budak Jahat instead of Boy Ayie if he truly wanted to frame Norasharee. Yazid said he was introduced to Boy Ayie by Juna. Even if Norasharee retained the nickname Budak Jahat, it was still possible that he was introduced as “Ayie” because that nickname was not said to be his only name.

In summary, we are of the view that Boy Ayie was introduced as such to Yazid and not by another name. We are also satisfied that Boy Ayie, Eye and Ayi all referred to Norasharee.

Norasharee’s presence at VivoCity

The final matter concerns Norasharee’s presence at VivoCity, which was the most compelling piece of evidence that Yazid was truthful in his statements (ie, that the two of them met there in the afternoon of 23 October 2013). We also discuss this issue at [63(e)] above.

The phone records showed that there was communication or attempted communication between Yazid and “Eye” before and after but not during their alleged meeting. Before the meeting, the last connected call was placed by Yazid at 9.35am, after which there were three missed calls from Eye at 11.37am, 12.07pm and 12.36pm. The next two records were a missed call from Eye at 1.38pm and a call placed by Yazid (that was connected but immediately aborted) at 3.08pm. These records are not inconsistent with the hypothesis that Norasharee and Yazid met sometime between 1.07pm and 1.38pm on 23 October 2013.

Norasharee claimed that he was at VivoCity with a colleague “Lolo” on 23 October 2013 and that he did not meet Yazid at VivoCity or in its vicinity that day. He identified “Lolo” as Mohamed Faizal Bin Zainab, a 30-year-old or so male. It was possible that Norasharee had lunch at VivoCity with Lolo as they were colleagues at Marina Keppel Bay, which was a ten-minute drive from VivoCity. However, the remaining gaps were fatal to Norasharee’s story. His testimony was that he would also go to VivoCity with other colleagues and that he could not recall how frequently he went to VivoCity. However, he could not explain why he was sure that he was there with Lolo since it would have been an uneventful day almost two years before his arrest and about two and a half years before the trial. Further, Norasharee did not call Lolo as his witness and did not explain his failure to do so, despite having conferred with his counsel on this matter when preparing for trial and once more after re-examination.

There was also no explanation why Yazid knew of Norasharee’s presence at VivoCity that day. In examination-in-chief , Norasharee made a feeble allusion to the possibility that Yazid could have seen his car in the car park because “Everybody knows me. I drive a car and they know what type of car I drive. They know my plate number. That was how they can describe me and also my car.” However, we think it would be entirely fanciful to believe that Yazid was at VivoCity coincidentally at about the same time one day before the drug transaction, that he spotted Norasharee’s car in the car park and recalled this fact almost two years later in his statement. There could be no doubt that Yazid was truthful when he stated that they met at VivoCity one day before the drug transaction and that he received instructions from Norasharee to be prepared to receive drugs the next day. Yazid recalled this meeting because it did occur and the objective evidence backed up his statement and his testimony.

We now address two matters which were said to raise doubts about the veracity of Yazid’s evidence. One of them is the fact that Boy Ayie departed from his usual practice by meeting Yazid in person on 23 October 2013. According to Yazid, Boy Ayie would usually call, and would never send SMS to, Yazid to tell him to whom he was to deliver the drugs. The only times they met in person were at night after each delivery for Boy Ayie to pay Yazid for his services. We do not see why meeting the courier before the drug transaction on that occasion should be regarded as being so exceptional when Norasharee and Yazid had been meeting after such transactions anyway for Norasharee to pay Yazid for his delivery work. The meeting at VivoCity was in the day rather than at night but it was a short meeting where words, not drugs or money, were exchanged.

The other matter is the fact that Yazid did not mention the meeting in VivoCity until 22 June 2015, especially since the Investigating Officer testified that Yazid was cooperative and volunteered information freely during the recording of his statements in October 2013. In our judgment, Yazid’s statements focused on the events involving Kalwant as he was not questioned further about Boy Ayie. It was a fact that Yazid and Kalwant were arrested together while Boy Ayie remained free. As early as 30 October 2013, Yazid mentioned that he was expecting Kalwant to call him because Boy Ayie had told him in the afternoon of 23 October 2013 that Kalwant might call him the next morning to take the drugs from him. There was therefore an allusion to the 23 October 2013 meeting already. Following that, there appeared to be a period of about nineteen months in the investigations in which no further clarification was sought from Yazid and he therefore did not have an earlier opportunity to elaborate on the said meeting.

If Yazid did not take instructions from Norasharee in person that day in VivoCity, then there were only a few hypotheses that could possibly explain how Yazid knew that Norasharee was at VivoCity:

(a) Yazid met Norasharee at VivoCity but they did not talk about drugs. We reject this hypothesis because Norasharee did not take the position that there was a meeting.

(b) Yazid saw Norasharee at VivoCity fortuitously. If so, why did Yazid not volunteer information about Norasharee’s presence at VivoCity earlier to help the CNB track Norasharee down, especially if his alleged intent was to frame an enemy from a rival gang?

(c) Yazid learnt subsequently that Norasharee had gone to VivoCity in the afternoon of 23 October 2013. This raised the question as to how Yazid came across this information despite being in remand and although Norasharee was in VivoCity for only 33 minutes. There was also the issue of how he could state very early during the investigations that he had taken instructions from Boy Ayie in the afternoon of 23 October 2013.

(d) Yazid was telling lies that turned out to be consistent with objective facts.

We find that all the above hypotheses contain no merit and create no doubt as to the truthfulness of Yazid’s evidence. Further, all these hypotheses rest on the premise that Yazid lied about meeting Norasharee on 23 October 2013. However, in our judgment, Yazid had virtually no reason to do so:

(a) We reject the theory that Yazid nursed a long-standing grudge against Norasharee because it was highly improbable that such a grudge arose from the 1998 Fight or any meeting at Club 7 and because Yazid’s conduct was inconsistent with having held such a grudge.

(b) We also reject the theory that Yazid found Norasharee to be a convenient scapegoat. Yazid would have been extremely foolish to try to frame a self-proclaimed senior member of a rival gang because that would probably result in retribution for him and/or his family.

(c) It would be astounding if Yazid could formulate such a consistent plan to frame Norasharee almost immediately after being arrested in a drug transaction.

In the overall analysis, we find that the only conclusion is that Yazid was truthful in respect of the 23 October 2013 meeting and of what was discussed with Norasharee. We therefore agree with the Judge that the Prosecution’s case against Norasharee, similarly with its case against Kalwant, was proved beyond reasonable doubt.

Conclusion

As mentioned earlier, we allowed Kalwant’s criminal motion to adduce further evidence about the panparak during the hearing. For the reasons set out above, we now dismiss Kalwant’s and Norasharee’s appeals.