Public Prosecutor v Dominic Martin Fernandez and another [2017] SGHC 226

Introduction

There are two accused persons in this trial, namely Dominic Martin Fernandez (“Dominic”) and Nazeri Bin Lajim (“Nazeri”). They were arrested by officers of the Central Narcotics Bureau (“CNB”) in one operation in respect of the same subject matter. The charge against Dominic was that he:

and the charge against Nazeri was that he:

(“Grams” was used by the prosecution although the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) uses “grammes”. It is preferable to use “grammes” or “g” for short).

The basic facts relating to the arrest of Dominic and Nazeri were not controverted. In the early morning of 13 April 2012, Dominic rode a motorcycle and parked it along Anguilla Park near its junction with Orchard Road. At the same time Nazeri arrived at Anguilla Park in a taxi, alighted and went to Dominic who was by the motorcycle.

Nazeri had a sling bag with him, and Dominic had a backpack when they met. Nazeri opened his sling bag, took out two envelopes containing $10,450 and placed them in Dominic’s backpack and Dominic in turn took two bundles wrapped in black tape and placed them in Nazeri’s sling bag.

Immediately following the exchange, the Central Narcotics Bureau (“CNB”) officers who were keeping surveillance on them moved in and arrested them, and recovered the backpack, sling bag, the two bundles and the envelopes.

Of the two bundles recovered, one bundle contained 453g of granular/powdery substance which was analysed and found to contain not less than 18.3g of diamorphine, and the other bundle contained 453.4g of the same substance which contained not less than 17.11g of diamorphine.

At the time of arrest and in the course of investigations, contemporaneous statements, cautioned statements and investigation statements were recorded from both accused persons which were admitted in evidence without objection.

The contemporaneous statements

A contemporaneous statement was recorded from Dominic soon after his arrest by Senior Station Inspector David Ng (“SSI David Ng”). The statement was in the form of 15 questions and answers -

Two contemporaneous statements were recorded from Nazeri by Station Inspector Larry Tay Chok Chwee (“SI Larry Tay”) after he was arrested. The first statement was recorded in his pocket diary at 5.10am which read:

The second statement was recorded at about 5.15am by SI Larry Tay consisting of 9 questions and answers:

The cautioned statements

After the contemporaneous statements were recorded, the investigations proceeded with the recording of cautioned statements and investigation statements under ss 22 and 23, Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”).

In Dominic’s case, he was charged with trafficking the two bundles of diamorphine on 13 April 2012 and his cautioned statement was:

Nazeri was initially charged with being in possession of the diamorphine in the two bundles and his cautioned statement was:

(The charge was subsequently replaced by one for trafficking the two bundles of diamorphine.)

The investigation statements

Dominic’s investigations statement

Dominic made two investigation statements with the paragraphs numbered continuously through them. His first investigation statement was recorded on 21 April 2012 in which he narrated on his family, education and employment background. In his second investigation statement recorded on 23 April 2012 , he narrated the events of his arrest:

and he elaborated on the events at paragraphs 19 to 22:

Nazeri’s investigation statements

Nazeri made four investigation statements with the paragraphs numbered continuously through the first three of them. His first statement recorded on the morning of 18 April 2012 covered his family, education and work background, and he admitted to consuming cannabis, heroin (diamorphine), “ice” (methamphetamine) and Erimin-5. He then went on to narrate the events of 13 April:

In his second investigation statement recorded on the afternoon of 18 April 2012, Nazeri went into greater detail on his drug dealings:

The accused persons’ admissions

Dominic and Nazeri admitted that they were in possession of the two bundles Dominic delivered to Nazeri. Nazeri had admitted he was taking delivery of heroin from Dominic for selling. Dominic was presumed to have knowledge that the bundles were diamorphine under s 18(2) of the MDA, which provides that:

and he had admitted to delivering the bundles to Nazeri. Consequently the prosecution had proved a sufficient case for them to be called to enter their defence.

The accused persons’ defences

Both of them kept largely to their statements when they made their defences, which raised issues of facts.

Dominic’s defence

Dominic’s defence is summed up in the closing submissions:

When an accused person like Dominic is presumed to have knowledge, he can seek to rebut the presumption. He can inter alia plead ignorance, that he did not know what the bundles were, or he can plead mistake, that he believed them to be something else. These are discrete pleas, and Dominic pleaded mistake.

Nazeri’s defence

Nazeri’s defence was set out clearly in the closing submissions, that:

He was not disputing that he was trafficking, but was seeking to assert that the death penalty did not apply to him because he did not traffic in more than 15g of diamorphine (the minimum weight for the application of the death penalty).

Examination of Dominic’s defence

By virtue of s 18(2) MDA, the burden is on Dominic prove on a balance of probabilities that he did not know that the bundles contained diamorphine.

Dominic said that he was not suspicious about the two bundles wrapped in black tape because when he pressed them and heard crunching sounds he thought they were keropok. However he admitted that he had not carried packages of his own wrapped in black tape, and that such packing is unusual, and keropok is not normally sold wrapped like that .

His evidence that he really believed the bundles to be keropok was not credible because he knew keropok was not normally packed that way, and Kumar who handled the bundles to him told him he was not sure what they contained . In addition to that, his evidence was inconsistent with his earlier statements. When he was questioned in his contemporaneous statement about the contents of the two bundles, his answered “I don’t know” and he also said in his cautioned statement and his investigation statement that he did not know what was inside the bundles. Those pleas of ignorance were at odds with his professed belief that the bundles were keropok.

Something else he said had a more damaging effect on his credibility – he had admitted that he knew the bundles were drugs (and not keropok). He said that to Jean Tan, Senior Clinical Psychologist, Institute of Mental Health, who saw him on 19 and 21 August 2013. She had presented a psychological report dated 27 August 2013 to Dr Tejpal Singh, Consultant Psychiatrist of the Institute of Mental Health and Woodbridge Hospital, who in turn produced a report to the Subordinate Courts dated 5 September 2013 in which he stated:

Jean Tan gave evidence on Dominic’s admission to her. She testified that she saw him on 19 and 21 August 2013 . When she was referred to Dr Tejpal Singh’s statement that Dominic had informed her that he knew on the occasion that he was arrested that the bundles contained drugs, she said that Dominic had requested her to inform Dr Tejpal Singh that he knew he was bringing drugs into Singapore .

She initially said that it was likely that Dominic made the admission to her on 21 August 2013 . However she said she made notes during the interview on 19 August 2013 . It was recorded at page 3 of the notes:

In cross-examination by Dominic’s counsel, she clarified the information she received from Dominic on 19 August and 21 August :

and she went further to say :

She clarified that when she saw Dominic on 21 August, it was not to interview him, but to complete the psychological tests she was conducting . She was definite it was the 19th because her notes were made on the first time she met Dominic . In summary, her evidence was that Dominic admitted to her on 19 August that he knew the bundles were drugs, and he asked her on 21 August to convey the information to Dr Tejpal Singh.

The date of the admission is significant because Dominic acknowledged that he made the statement, but asserted that he was lying when he made it.

This was elaborated on in the closing submissions:

Dominic clarified that his father and sisters visited him on 21 August before Jean Tan saw him .

Inexplicably, his counsel put to Jean Tan that Dominic was unable to remember if he made the admission on 19 August:

and that

If Dominic made the false admission after the family visit on 21 August , he should have no difficulty in remembering that he did not make it on 19 August. If Dominic told Jean Tan about the contents of the bundles on 19 August, before the family visit (as I find he did – see [32] and [33]) he should have mentioned keropok, not drugs, if he believed them to be keropok.

I reviewed the evidence relating to the date of the admission. Jean Tan initially stated that the admission was likely to have been made on 21 August, but when she checked her notes she was sure after seeing them that his admission was made on 19 August because she conducted a clinical interview with Dominic on 19 August in which he admitted to carrying drugs and she did not conduct any clinical interview on 21 August, and only completed psychological tests . She was giving evidence on the performance of her duties. Her evidence was corroborated by her contemporaneous notes, and her impartiality was not questioned.

I accepted her evidence that Dominic made his admission on 19 August and reject Dominic’s explanation that he made the untruthful incriminatory statement after the visit of the family members on 21 August. I found that his evidence (a) that he believed the bundles to be keropok, and (b) that he was lying when he made the admission of knowledge to Jean Tan was not worthy of belief. While the admission that he knew they were drugs falls short of proof of knowledge of diamorphine, he was presumed to have the knowledge under s 18(2), and he failed to present credible evidence to rebut the presumption on a balance of probabilities.

Consequently, I found him guilty and convicted him on the charge he faced.

Examination of Nazeri’s defence

Nazeri’s defence was that he had ordered one bundle of diamorphine from Kumar, not the two bundles which Dominic delivered to him.

Paragraph 58 of the closing submissions stated:

This was in conformity with paragraph 11 of his investigation statement:

Nazeri’s counsel did not bring this up with Dominic when he cross-examined him . Instead of doing that he asked:

The last two answers were consistent with Dominic’s account of the events described in paragraph 13 of his investigation statement, and counsel appeared satisfied with them and went no further even though they contradicted Nazeri’s account that he asked Dominic why there were two bundles.

Counsel also did not cross-examine Dominic on his recollection in paragraph 11 of his investigation statement that Nazeri told him before they met that he would be taking two bundles from him.

Counsel’s passivity extended to his examination of Nazeri. He did not tell him about what Dominic had stated and seek his response to it. One would expect that to be brought up if Nazeri did not agree with it.

In Nazeri’s favour, his first contemporaneous statement was consistent with his defence. He told SI Larry Tay in that statement that there was 400g of heroin in his sling bag when he was arrested and he reaffirmed that in his evidence-in-chief that “I ordered only one bundle which contained 400g on that particular day ”.

When he gave his defence he explained to his counsel :

The defence must be examined against the other evidence on this question. Nazeri’s evidence was that the drugs can be purchased in bundles of 400g or 450g at different prices. The price for the former was $5000 , whereas the price for the latter was about 447g was about $5300–$5400 , or $5400 for a bundle of 450–453g . In simple terms, the bundles were transacted in different quantities at different prices.

If Nazeri had ordered one 400-g bundle, his supplier would have made two mistakes in delivering to him (i) two bundles, (ii) of the wrong weight (of 453g and 453.4g). It challenges belief that the supplier could make mistakes on the number and weight of the bundles in the same transaction, drug suppliers cannot be so careless in their dealings. Furthermore Dominic’s evidence that Nazeri told him that he was meeting him to collect two bundles was not challenged.

I found that Nazeri had placed orders for the two bundles delivered to him.

Nazeri’s defence went on that if he had received 400g of diamorphine he would have been re-packed them into 50 small packets, and 12 of those small packets would have been reserved for his own consumption, such that only 13.318g of diamorphine would have been for re-sale, below the 15-g cut-off level at which the death penalty applies .

I rejected his claim that he had ordered a 400-g bundle. However there was another difficulty with his defence. He had in his investigation statement at paragraph 15 stated that he would repack bundles of heroin into packets of 8g and:

He said in examination-in-chief that it was not correct that he smoked 4g of diamorphine a day, and that he actually smoked 12g of it. However, he added that his statement was correctly recorded, but he had made it incorrectly, because:

He explained that:

but those allegations were not put to the recording officer, interpreter or any other CNB officer during the trial. Nazeri also did not address the discrepancy between the claims of 10 packets and 12 packets.

I did not accept Nazeri’s defence that he intended to purchase a 400-g bundle of heroin and had intended to sell about 13.318g of it, and I find that Nazeri had ordered the two bundles of diamorphine that he received.

However as some of that diamorphine would be kept for his own consumption, a reduction should be made for that. The prosecution did not do that though it accepted that Nazeri consumed diamorphine. I am prepared to accept Nazeri’s admission in his investigation statement that he will keep 5 packets for his consumption, but I do not accept that he would keep 10 packets or 12 packets as he claimed in court.

Nazeri had stated in paragraph 15 of his investigation statement (set out in para 15 thereof) that a bundle of about 447g can yield 58 packets. The two bundles recovered were heavier, weighing 453g and 453.4g, with an aggregate diamorphine content of 35.41g.

Even if the additional weight were disregarded (in Nazeri’s favour), the two bundles would yield 116 (58 x 2) packets. On that basis, 111 (116 – 5) packets would have been meant for trafficking, and they would have a diamorphine content of 33.89g (35.41 x 111 ÷ 116) which was misstated as 33.39g when the figure was first arrived at. For the purpose of completeness, even if Nazeri were to keep 12 packets for consumption, with the remaining 104 packets to be sold, that would work out to 31.75g (35.41 x 104 ÷ 116), within the range of application of the capital sentence.

I found Nazeri guilty of trafficking 33.39g of diamorphine by having them in his possession for the purpose of trafficking. The use of the incorrect lower weight did not prejudice him.

Sentence

After the accused persons were convicted, their sentences were to be determined with reference to s 33B MDA.

Under the section, the mandatory death sentence could be substituted with a sentence of life imprisonment and not less than 15 strokes of the cane if (i) their dealings with the drugs were restricted to being couriers, and (ii) they had rendered substantive assistance to the CNB, or (iii) they suffered from an abnormality of mind.

I found, after hearing counsel, that Dominic came within criteria (i) and (ii), but Nazeri did not come within either, and criteria (iii) had no application to either of them.

In the circumstances I sentenced Dominic to life imprisonment and 15

strokes of the cane, with the custodial sentence to run from the date of his arrest, 13 April 2012, and I imposed the death sentence on Nazeri.