Public Prosecutor v Mohamad Fadzli b in Ahmad and another [2017] SGHC 233

The accused persons and the charges

There are two accused persons in this case, Mohamad Fadzli Bin Ahmad (“Fadzli”), and Mohamed Affandi Bin Rosli (“Affandi”). Fadzli faced four charges (charges A to D) and Affandi faced three charges (charges E to G).

The charges are

for Fadzli, that he:

and for Affandi, that he:

Four of the charges are related in that charges A and D against Fadzli are for abetting Affandi in charges E and F.

Fadzli claimed trial on charges A, B and D and Affandi claimed trial on charges E, F and G. The only uncontested charge is charge C, to which Fadzli pleaded guilty.

The trial proceeded on all the charges. However, after I convicted the accused persons on charges A, B, C, E and F, the prosecution elected to not to carry on with charges B, C and F: see [122] and [123] below.

I will refer to the trial of all the charges for completeness and to give the basis on which the accused persons were convicted and discharged on five charges on the application of the prosecution.

The agreed facts

The parties presented a Statement of Agreed Facts (“SAF”). The parts of the statement which describe the arrest and recovery of the drugs merit setting out in full:

The seized substances

The parties also agreed that the seized substances were sent for analysis by the Health Sciences Authority (“HSA”), which found and certified that:

(i) The eight exhibits marked B1A, B2A1, B3A, B4A, B5A, B6A, B7A and B8A taken from the eight packets wrapped in black tape recovered from under the last row of seats in Affandi’s vehicle SJW 9386 M contained a total of not less than 132.82 grams of diamorphine (the subject-matter of charges A and E).

(ii) The plastic packets marked A1A1 and A1B recovered from the middle row of seats of SJW 9386 M contained not less than 8.14 grams of methamphetamine (the subject-matter of charges D and F).

(iii) The four plastic packets of crystalline substance marked C1, D1A1 and D1A2A recovered from Fadzli’s vehicle SGW 4282Y contained a total of not less than 38.84 grams of methamphetamine (the subject-matter of charges B and G).

(iv) The two packets of tablets recovered from Fadzli at Block [xxx] Tampines Street 45, unit [xxx] contained 560 tablets (“the Erimin-5 tablets”) which contained nimetazepam (the subject-matter of charge C).

DNA

Examination of a plastic bag recovered from Fadzli’s car which held three packets of methamphetamine yielded DNA which matched the DNA profile of Affandi.

Packing

The packaging of the drugs recovered from the vehicles of Fadzli and Affandi were examined by the Forensic Chemistry and Physics Laboratory, HSA. One bag recovered from Fadzli’s car, and one bag , recovered from Affandi’s vehicle, were found to have been manufactured by the same machine.

I find the evidence on the DNA and the manufacture of the bags containing methamphetamine do not really assist the prosecution or the defence, and I will not refer to that evidence further.

The accused persons’ statements

In the course of investigations, one contemporaneous statement (in two parts), four cautioned statements, and four investigation statements were recorded from Fadzli, and one contemporaneous statement, four cautioned statements and eight investigation statements were recorded from Affandi. The statements were admitted in evidence without objection.

The Prosecution’s case

The six contested charges against Fadzli and Affandi (excluding charge C) will be dealt with by the drugs involved, i.e. the charges relating to diamorphine, charges A and E and the charges relating to methamphetamine, charges B, D, F and G. For latter four charges, the 49.68 grams of methamphetamine recovered from Fadzli’s vehicle (charges B and G) will be dealt with separately from the 8.14 grams of methamphetamine recovered from Affandi’s vehicle (charges D and F).

The prosecution relied substantially on admissions in two statements made by Affandi. The first statement was his contemporaneous statement recorded by SSI David Ng on 12 July 2013 in a series of questions and answers:

The second statement was his cautioned statement recorded by Woman Inspector Ng Pei Xin (“W/Insp Ng”) under s 23 Criminal Procedure Code on 13 July 2013 in answer to a charge of trafficking eight bundles of diamorphine recovered from his vehicle:

Even before these two statements were recorded, Affandi had spoken to Staff Sergeant Sanusir Bin Othman (“SSgt Sanusir”) when his locker at his place of work was being searched. Affandi revealed that “dalam kereta ade something”, which meant there is something in the vehicle. Then he went on to say “if I tell you A to Z, what will happen to me as I wanted to know the real picture” but SSgt Sanusir only told him that he had to seek instructions from his superior officers.

When Affandi was brought to his vehicle, and before the vehicle was searched, SSgt Sanusir had the following exchange with him (with English translation inserted in parenthesis below the Malay words):

This exchange was recorded in a field book kept for the operation.

The prosecution also relied on the findings of the HSA on the DNA on the plastic bag holding the methamphetamine recovered from Fadzli’s vehicle which matched Affandi’s DNA profile, and the finding that the one bag containing methamphetamine recovered from Fadzli’s vehicle and another bag containing methamphetamine recovered from Affandi’s vehicle were manufactured by same machine. These findings were presented to show the connection of Fadzli and Affandi to the methamphetamine that were recovered from the two vehicles.

The Misuse of Drugs Act (“MDA”) also assisted the prosecution by raising rebuttable presumptions against Fadzli and Affandi. As Fadzli admitted that he was in charge of SGW 4282 Y, and Affandi admitted that he was the owner of SJW 9386 M, they were presumed under s 21 read with s 18(2) of the MDA, to know of the nature of the drugs recovered from their respective vehicles. The provisions read:

Section 17 MDA creates another presumption, that a person who is proved to have in his possession more than 2 grams of diamorphine or 25 grams of methamphetamine shall be presumed to have that drug for the purpose of trafficking.

Review of the Prosecution’s evidence

To facilitate easier understanding, the review will be carried out according to the subject matter rather than the alphabetical order of the charges.

(i) Charge E

The evidence is that Affandi informed the CNB officers about the eight bundles in his vehicle. He had in his contemporaneous and cautioned statements admitted that he knew them to be “panas” and that “Abut” (who is Fadzli) had instructed him to collect and store them for him to come and take them when he wanted to. By this evidence, Affandi either knew that the eight bundles were diamorphine (if he knew “panas” was diamorphine), or if he did not know that, he was presumed under s 18(2) to know that they were diamorphine. By storing them for Fadzli’s collection, he had them for the purpose of trafficking.

(ii) Charge A

On the basis of Affandi’s admissions, Fadzli had abetted Affandi to have possession of the diamorphine for the purpose of trafficking. It is noted that in his cautioned statement Affandi stated that from his point of view, Abut/Fadzli did not know that he (Affandi) had collected eight bundles because the other transaction involved one or two bundles. However Affandi’s surmise was unfounded because he did not know the arrangement Fadzli had with the supplier for that transaction.

(iii) Charge F

Affandi agreed in the SAF that the four packets of white crystalline substance recovered from his vehicle contained not less than 8.14 grams of methamphetamine. There was no agreement or presumption that Affandi had possession of the methamphetamine for the purpose of trafficking.

(iv) Charge D

There was no evidence when Fadzli instigated Affandi to be in possession of the methamphetamine. The date in the charge, 12 July 2013, is the date of arrest and recovery of the methamphetamine, not the date of the purported instigation.

(v) Charge G

Affandi admitted in his contemporaneous statement that he had passed “a lot” of methamphetamine to Fadzli, but he did not clarify what he meant by that, and he made no mention of the weight of the methamphetamine.

While Fadzli agreed in the SAF that 38.84 grams of methamphetamine were recovered from his vehicle, he denied that they were passed to him by Affandi.

(vi) Charge B

By his admission to possession of the 38.84 grams of methamphetamine, Fadzli was presumed to have possession of the drugs for the purpose of trafficking.

Chain of possession

Mr Michael Chia, counsel for Affandi, contended in the closing submissions that:

Mr Chia expended a lot of time and effort questioning of every officer who had any dealing with the recovered exhibits starting from SSI David Ng to W/Insp Ng who had eventual custody of them before they were sent to the HSA for analysis. Questions were raised over the time at which the exhibits were handed from one officer to another, the bags in which the exhibits were put into between the time of recovery and the time they were brought back to the CNB offices for marking, photographing and weighing, and manner in which they were stored by W/Insp Ng when they were in her custody.

It transpired that the officers did not record their involvement with the exhibits when that took place, and were largely relying on memory when they gave their evidence. There were inconsistencies in their evidence on the time when the exhibits changed hands and the colour of the bags in which the exhibits were held.

However it was not established that there was any break in the chain of custody in the sense that the exhibits had left the control of CNB officers and went in the control of unknown parties, or were otherwise unaccounted for. Counsel contended that there was a real possibility of there being a break in the chain of custody without going further, with no indication as to when and how the chain of custody may have been broken.

While counsel was seeking to get from the officers a single clear and consistent account of the handing of the exhibits, it must be remembered that the drugs were recovered and retained when the officers were actively carrying out investigations, and took custody of the exhibits as a team.

It would take more than to allude to a real possibility of a break of custody by pointing to inconsistencies which do not add up to a break. In this case CNB officers had seized and taken custody of the exhibits, and the same exhibits were sent by them to the HSA for analysis. To support the contention there must something put forward to show that the exhibits have left the custody of the officers, or that unauthorised parties had access to them at some time during that period, or that the exhibits have been interfered with.

As the Court of Appeal in Lai Kam Loy v PP [1993] 3 SLR(R) 143 held at [38] (and reaffirmed in Satli bin Masot v PP [1999] 1 SLR(R) 931 at [15]):

it is not sufficient to contend that there is a break in the chain of possession without pointing to when, where and how the break may have occurred.

There was another issue raised with regard to the marked exhibits. This was that while they were in custody of W/Insp Ng, she did not keep them in her office safe because there was no room for them. She kept them overnight on the floor of her office which she would lock. It was not put to W/Insp Ng that the exhibits should not have been stored in that way, or that any person could have gained access to the exhibits without her knowledge or consent. There was no basis for this complaint.

Surveillance at the MBS carpark

Mr John Abraham, counsel for Fadzli, was critical over the manner in which the CNB officers kept observation of Fadzli, Affandi and their vehicles in the MBS carpark. The officers’ evidence on the positions of the vehicles and the interaction of Fadzli and Affandi when they met and parted was sketchy, particularly in respect of Fadzli’s actions as he returned to his vehicle.

However they were not prejudiced by that because one officer in the operation, Station Inspector Lim Chin Tat, testified that he observed that after meeting with Affandi, Fadzli returned to his vehicle with his arms by his side and appeared to be carrying something. This was consistent with and corroborated the evidence of Affandi and Fadzli that Fadzli was collecting from Affandi groceries to be donated to an orphanage and had carried two large bottles of cooking oil to his vehicle.

Affandi’s defence

Affandi retracted his contemporaneous statement and cautioned statement. He did that in the course of the investigations when investigations statements were recorded. In all, he made three cautioned statements and twelve investigation statements , and all of them were tendered in evidence without objection.

Affandi’s defence kept to the narrative in those subsequent statements. However his counsel did not go through each of them with him and have him confirm them although he was referred to parts of them when he was giving his evidence.

He started with his account on the eight bundles. In his examination-in-chief on 11 July 2013, he said one Malaysian by the name “Mamak” had asked him to do him a favour as his (Mamak’s) car had been broken down, and to meet Mamak’s friend at a heavy vehicle carpark at Kranji near the Ten Mile Junction (“the Kranji carpark”). Affandi thought that he was to collect money from Mamak’s friend to deliver it to Mamak, as he had done on previous occasions.

Affandi’s evidence was that he did not go directly to the carpark. He first drove to Johor Bahru sometime before midnight and when he returned to Singapore at almost 3 a.m. on 12 July, he went to the Kranji carpark.

He entered the carpark, drove one round, and as he was about to exit, a person knocked on the passenger side window of his vehicle, and when he wound down the window the person put a plastic bag into the car. When Affandi asked what were in the bag, the person told him to wait for Mamak’s call, and walked away.

Affandi then left the carpark and drove to MBS as he wanted to have his pre-dawn meal there before he started work as he was observing the Muslim fasting month. When he reached MBS, he took out eight bundles from the plastic bag but he was not sure what they were and he hid them under the third row of seats in his vehicle. He tried to call Mamak but Mamak’s number was not in use.

He then realised that he had left his work pass at home, and went back to get it. He had his pre-dawn meal at home and took a lift from a colleague to work at about 8 a.m.

Subsequently Mamak called him. However, he was busy working at that time. He told Mamak he was busy, and terminated the call without asking about the bundles.

At about 3 p.m., Fadzli telephoned him. Fadzli had asked him two days previously to donate groceries to an orphanage, and called him at that time to check if the groceries were ready for collection, and they agreed to meet. When they met, and Affandi delivered groceries from his vehicle to Fadzli.

This was corroborated by evidence of the CNB officers in the operation that groceries consisting of two bottles cooking oil, two packets coffee powder, a few packets of instant noodles and two packets detergent powder were recovered from Fadzli’s vehicle after his arrest.

After the CNB officers arrested Affandi they searched his locker but recovered nothing. When they brought him down to his vehicle, and he showed them the eight bundles. He did that because he felt that they were the reason for his arrest by the CNB. He told SSgt Sanusir that there were eight bundles in his vehicle. Affandi saw the bundles for the second time when they were recovered from his vehicle and he saw these eight bundles being photographed in the CNB exhibit management room, but he was not sure if they were the bundles recovered from his vehicle.

Mr Chia then referred him to an investigation statement he made on 18 July 2013. During the recording of the statement he was shown a photograph of the eight bundles recovered from his vehicle and he confirmed that these were eight bundles he hid in his vehicle. Affandi said that he was not sure whether the eight bundles in the photograph were the eight bundles recovered but:

Counsel then referred to his contemporaneous statement , where he said that the eight bundles belonged to his friend Abut. He told counsel that he had said that because:

but this was not put to SSI David Ng by his counsel.

This explanation was at variance with his previous explanations recorded 15 July 2013:

and on the following day:

with no allegation that he was told to name Abut.

In that statement, Affandi had also disclosed that the bundles were “panas” because he heard SSgt Sanusir using the word while talking to his colleagues, and thought the bundles were panas although he did not know what panas was. He was specific that he did not know panas was the street name for heroin.

With regard to the four packets of 8.14 grams of methamphetamine recovered from a jacket in his vehicle, Affandi stated in his investigation statement of 18 July 2013 that he had bought the drugs from a Chinese man in a coffeeshop in Geylang, and he had bought them for his own consumption. This was not disputed by the prosecution in cross-examination.

Affandi denied that he had passed four other packets to Fadzli and stated that he had met Fadzli in the carpark and had passed groceries to him.

Review of Affandi’s defence

Affandi’s admissions were not confined to the contemporaneous statement he made to SSI David. In his cautioned statement recorded on 13 July 2013, by W/Insp Ng (who was not alleged to have pressurised him or asked him to implicate Abut), he expanded on his dealings was Abut:

Quite surprisingly, Mr Chia did not seek any explanation from Affandi on this statement, but the prosecutor did. She had Affandi affirm that his statement was given by him voluntarily, without inducement, threat or promise. Affandi explained that he said in that statement that Abut would come and collect the “black thing” stored in his vehicle when Abut wants it and he will pass them to Abut because:

When the prosecutor pointed it to him that the parts of this statement, such as his storing drugs for Fadzli for about a month, and that it was the first time so much panas was passed to him went beyond his contemporaneous statement, his reply was that:

When he was cross-examined further he said:

and he confirmed that he had no complaints against W/Insp Ng.

Instead of further implicating himself, he could have told W/Insp Ng that his contemporaneous statement was untrue, and tell her the truth, but he did the opposite. Affandi’s reasons for renouncing the admissions in his contemporaneous statement and cautioned statement did not stand up to reason.

Other aspects of his defence were also unsatisfactory. Even as he gave his account of his dealings with Mamak, he was changing his evidence. In the first investigation statement of 15 July 2013 he did not have Mamak’s contact number. In his statement of 18 July 2013 he admitted that he had Mamak’s numbers stored in his handphone.

Next his changed his account on his trip to the Kranji carpark where he claimed to have received the eight bundles. In his statement of 15 July 2013 he stated that:

He corrected that in his statement of 26 July 2013 and said that he went to Johor Bahru at about 12 a.m. and spent about two hours there before he returned to Singapore at about 3 a.m. (Immigration & Checkpoints Authority records showed that his vehicle re-entered Woodlands checkpoint on 12 July 2013 at 3.30 a.m. )

He added that on returning to Singapore:

but the described route was contradicted by independent evidence. CCTV coverage on the junction of Woodlands Road and Bukit Panjang Road where the U-turn was did not capture his vehicle over the period 3.30 a.m. to 5.00 a.m. , and Affandi had no explanation for that.

That raised doubts in his defence whether he drove to the Kranji carpark and received the eight bundles there, or had received them in Johor Bahru before returning to Singapore and proceeding to MBS.

Affandi then gave different accounts of what he did with the bundles after he received them. In his statement of 15 July 2013, he stated:

When he gave his evidence, Affandi said in answer to his counsel:

When the prosecutor asked Affandi to confirm that he checked the contents of the bag along the way to Marina Bay Sands, he equivocated wildly in his answers:

Affandi did not disclose in his investigation statements and in his defence the telephone communications between himself, Mamak and Fadzli on the early hours of 12 July 2013 after he had re-entered Singapore from Johor Bahru. There were records of six communications between Affandi and Mamak between 4.14 a.m. and 4.35.50 a.m. consisting two outgoing calls from Affandi, two SMS messages from Affandi and two SMS messages from Mamak. There were also four calls between Affandi and Fadzli that morning at 3.38.55 a.m., 5.37.19 a.m., 6.21.17 a.m. and 6.23.52 a.m. consisting of two outgoing and two incoming calls.

These messages and calls revealed a high level of communication between Affandi and Mamak and between Affandi and Fadzli after Affandi returned from Johor Bahru. That showed that something was going on between them which required them to stay up in the early hours of the morning and communicate with one another.

I find that Affandi’s contemporaneous statement and cautioned statement were voluntary and true statements, untainted by pressure or suggestion as he alleged. These statements should be viewed together with his conversations with SSgt Sanusir . Affandi was at the time of arrest and not long before making of the statements in a co-operative frame of mind, telling the officers searching his locker that there was something in his vehicle, and offering to tell them “A to Z”.

I find that Affandi had gone to Johor Bahru in the early hours of 12 July 2013 and returned to Singapore at 3.30 a.m., but he did not drive to the Kranji carpark. Instead, he went to the MBS carpark directly, hid the eight bundles between a row of seats, left the vehicle there, and went home. He returned to MBS later in the morning when he met Fadzli at his vehicle, and Fadzli collected something from him and drove off.

Did Affandi know that the bundles were diamorphine? There was no direct evidence that he knew the eight bundles stored in his vehicle were diamorphine. He knew them to be “panas” but did not know what panas was, and that was not contradicted by any evidence. He may have not known that the bundles were diamorphine.

Nevertheless, he was presumed to have knowledge of the diamorphine. The question was whether he had rebutted the presumption. To rebut the presumption, Affandi had to show positively that he did not know that the bundles were diamorphine, but Affandi could only say that he thought the bundles were panas, which he suspected to be something illegal, but he did not enquire about them or examine them. The confusion, equivocation and falsehood in his evidence undermined his creditability and his effort to rebut the presumption.

We can now examine his position on each of the charges he faced. With reference to charge E, Affandi’s Closing Submissions states that:

on the basis that there was a break in the chain of possession of the eight bundles recovered from Affandi’s vehicle. I have dealt with this submission and had rejected it.

The undisputed fact is that Affandi was in possession of the eight bundles. He was presumed under s 18(2) to know that they contained diamorphine, and by his admission that he had collected the bundles and was keeping them for Fadzli, he had them for the purpose of trafficking.

The onus was on him to rebut the presumption by presenting credible evidence and showing on a balance probabilities that he did not have the knowledge, and he failed to do that. In the circumstances he is guilty on this charge.

With regard to charge F, it was undisputed that Affandi had the four packets of methamphetamine in his possession. He knew that the packets were “ice” which is the street name for methamphetamine, and said he had it for his own consumption.

In this case, Affandi’s possession of the 8.14 grams of methamphetamine did not raise the presumption under s 17 that he had them for the purpose of trafficking, and the prosecution did not present any evidence of such a purpose. To the contrary, when a cautioned statement was recorded from Affandi in relation to this charge, he stated:

and he expanded on that in his investigation statement of 18 July 2013 that:

and that was not refuted by the prosecution. In the circumstances the offence of trafficking was not proved.

However by being in possession of the drugs, Affandi had committed an offence under s 8 MDA punishable under s 33 MDA, and I find him guilty of possession.

With regard to charge G, Affandi admitted in his contemporaneous statement that he had passed “a lot” of ice to Fadzli, but he was not explain what he meant by that, and there was no evidence of the amount of methamphetamine involved.

The prosecution had not proved beyond a reasonable doubt that Affandi had passed the four packets containing 38.84 grams of methamphetamine to Fadzli, and I acquit Affandi on this charge.

Fadzli’s defence

Fadzli’s defence was that he did not abet Affandi to traffic the eight bundles of diamorphine or the four packets of methamphetamine in Affandi’s vehicle. He had driven to the MBS carpark and met Affandi to collect from Affandi groceries which were to be donated to the Darul Ma’wa orphanage at Still Road.

Except for admitting charge C for the possession of 560 tablets, Fadzli denied the other charges against him.

Unlike Affandi, Fadzli did not make any admissions on the three disputed charges throughout the investigations. His defence to charge A was a total denial of any knowledge or involvement with the eight bundles of diamorphine recovered from Affandi’s vehicle with Mamak who Affandi had dealt with.

On charge B for trafficking the four packets of methamphetamine recovered from his vehicle, Fadzli admitted to possession of the drugs, but claimed that he had obtained them together with the Erimin-5 tablets from one “Man Topak” in lieu of $2,500 that Man Topak owed him after losing a bet with him. He paid Man Topak a $320 top-up for the drugs and had intended them for his own consumption.

Fadzli absolutely denied any involvement with the methamphetamine recovered from Affandi’s vehicle referred to in charge D.

Review of Fadzli’s defences

The first matter for consideration is the effect of Affandi’s contemporaneous statement and cautioned statement on Fadzli. Affandi had tried to retract both statements. If he had succeeded to show that he was not speaking the truth when he made them, then he and Fadzli would not to be troubled by them. However I have found that Affandi was not confused, scared or pressurized and was not lying when he made the admissions.

Affandi’s admissions may be used against Fadzli under s 258(5) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”):

This provision was in our laws as s 30 of the Evidence Act (Cap 97, 1997 Rev Ed) before it was re-enacted as s 258(5) CPC on 2 January 2011. Its effect has been explained in two seminal decisions. In Chin Seow Noi and others v PP [1993] 3 SLR (R) 566 the Court of Criminal Appeal held at [84]:

In Goh Joon Tong and another v PP [1995] 3 SLR (R) 90, the Court of Appeal reviewed the effect of the Explanation to s 30. It referred to the Indian Evidence Act which has an identical s 30 and Explanation as s 30 of our Evidence Act (before it became s 258(5) CPC) and held at [41]:

The Court than went on to find at [43] that s 30 applied in that case in which the first accused was charged with abetting murder and the second and third accused were charged with murder, because:

The law applicable to the present case, as established in these two cases is that:

(i) when two or more persons are tried jointly for the same offence, the confession of one accused may be substantive evidence against his co-accused, and

(ii) when the accused persons are charged with:

(i) an offence (“the principal offence”), and

(ii) the abetment or attempt of the principal offence (“the associated offence”),

the principal offence and the associated offence are treated as the same offence.

Accordingly, Affandi’s confessions are admissible evidence against Fadzli, and that leads to two questions:

(i) Are the admissions in Affandi’s contemporaneous statement and cautioned statement confessions? and if they are,

(ii) What weight is to be placed on them?

Affandi’s statements set out in [9] and [10] are confessions. He admitted that he had possession of the eight bundles and that he was keeping them for Fadzli. Although he claimed that he did not know they contained diamorphine, he was presumed to have known that, and he failed to rebut the presumption (see [75] and [76] above).

It hardly needs reminding that admissibility does not imply weight. As Professor Jeffrey Pinsler cautioned in Evidence and the Litigation Process (4th Ed, LexisNexis 2013) at para 5.076:

As to the weight of the confessions, I have found that they are Affandi’s voluntary and true statements (see [70] above). When he made his defence Affandi did not explain why he made the contemporaneous statement, beyond an oblique reference that the recording officer told him that he was facing the death sentence (see [56] above). He did not say the effect that had on him, or that he had falsely incriminated Fadzli to preserve his chance of acquittal or to minimise the significance of his role in the crime. There was no reason for Affandi to falsely incriminate his friend Fadzli when he could have said that he had collected and held the bundles for Mamak, if that were true.

With regard to his cautioned statement, his explanation was that it was made to accord with his contemporaneous statement, and that he was making up more lies to save himself although he could not say why he needed to do that (see [58] and [59] above). I found Affandi’s reasons for retracting the confessions in the contemporaneous statement and the cautioned statement unworthy of belief.

But these statements did not stand alone. There were other facts:

(i) Fadzli and Affandi made two calls each to the other in the morning of 12 July 2013 when the eight bundles were delivered to Affandi (see [68] and [69]),

(ii) Fadzli’s failure to recognise Affandi by his photograph, and

(iii) his denial that he was “Abut”, the name by which Affandi knew him (see [107] and [108] below)

which indicated that there was something going on between him and Affandi in connection to their arrests which he was trying to conceal (see [108]).

Great care should be exercised before deciding to use the confession of an accused person against his co-accused. I reviewed the matters referred in the foregoing paragraphs before concluding that Affandi’s confessions should stand as substantive evidence against Fadzli as I found that Affandi was telling the truth on how he came into possession of the eight bundles and who they belonged to when he made the confessions.

Did Fadzli commit the offence in Charge A by issuing the instructions to Affandi? This brings on the question of his (Fadzli’s) knowledge of the contents of the bundles. This calls for an examination of the facts. Fadzli wanted Affandi to collect the bundles in the darkness of night, shrouded in stealth. Fadzli arranged for the bundles to be delivered and kept by Affandi, because he (Fadzli) was the owner of the bundles.

Fadzli must know what was to be collected and kept for him – he cannot possibly be ignorant of or indifferent to that. There was also no likelihood that he had intended for something else other than diamorphine to be collected and kept. Bulk transactions of drugs are serious and risky undertakings carried out with care and planning. When diamorphine is intended, diamorphine will be delivered; it is inconceivable for diamorphine to be delivered by mistake. The irresistible inference is that Fadzli knew the bundles were diamorphine.

Fadzli’s defence, however, should not be disregarded. His defence as that he had nothing to do with the eight bundles, and he denied that he had instructed Affandi to collect and store the bundles which belonged to him.

Fadzli’s denial of any involvement with Affandi and the eight bundle must be viewed against his conduct after his arrest. Following Fadzli’s arrest, Staff Sergeant Muhammad Fardlie bin Ramlie (“SSgt Fardlie”) recorded a contemporaneous statement from him. The statement read:

Fadzli disputed the accuracy of the statement. Mr Abraham put to SSgt Fardlie:

although Fadzli had in his investigation statement of 17 July 2013 confirmed that:

Mr Abraham also put to SSgt Fardlie that a Chinese officer who Fadzli did not identity had shown Fadzli two photographs outside the car, and Fadzli could not recognise the person in the photographs because of the glare, and his response was communicated by the Chinese officer to SSgt Fardlie. SSgt Fardlie reiterated that he showed the photographs to Fadzli himself and Fadzli professed not to recognise them.

Fadzli’s explanation for his failure to identify Affandi from the photograph was unsatisfactory. There was no reason for SSgt Fardlie not to show the photographs to Fadzli as he had the photographs on his telephone, and did not have to rely on anyone to do that and to report the response to him. Secondly, it was clear in the form of the contemporaneous statement that the photographs were shown to him by SSgt Fardlie when he was questioned and gave his answer. I find that SSgt Fardlie had shown Fadzli the photographs of Affandi and Mansor, and Fadzli had replied that he did not know them.

Fadzli also lied in his investigation statement on 16 July 2013 that:

During the trial Fadzli admitted that it was wrong and that his pet name to his family members is Abut and Affandi knew him by that name.

Fadzli’s denial that he had identified Affandi from his photograph and the lie that he was not known as Abut show that he sought to distance himself from Affandi. He had no reason to do that if he had nothing to hide, but he would do that if he was involved with some activities with Affandi for which they were arrested. Those lies acted against him. While they were not evidence of guilt, they damaged his credibility and his defence.

I reject Fadzli’s defence and find him guilty on charge A.

With regard to charge B, as Fadzli admitted that he was in possession of the 38.84 grams of methamphetamine, he was presumed to have them in his possession for the purpose of trafficking.

His defence was that the methamphetamine was for his own consumption although he did not set out to acquire them. The methamphetamine was supplied to him by Man Topak who had supplied him with drugs on previous occasions . They had been betting against one another on horses. They had a wager which Man Topak lost, and owed him $2,500 which he was unable to pay. Instead he offered to supply Fadzli with drugs, with a top-up of $320 to Man Topak. In his investigation statement of 18 July 2013 Fadzli said:

It is noteworthy that in his statement, the value, quantity and type of drugs were not mentioned. When he was questioned about that by the court he said:

which did not explain the top-up or refer to the quantity and type of drugs.

On Man Topak’s request for the $320 top-up, his explanation that:

indicating that he was not informed and had not asked about it. It went against common sense for Fadzli to forego repayment of $2,500 without knowing how much and what drugs he was getting or why he had to pay the additional $320.

There is another point of interest. By Fadzli’s account, he received the methamphetamine together with the Erimin-5 tablets, and he kept the Erimin-5 tablets which were to be consumed by him in his bedroom wardrobe.

The methamphetamine, however, was kept separately from the Erimin-5 tablets. The methamphetamine was in three packets. Two packets were kept in Fadzli’s sling bag in the front passenger seat of his vehicle and one packet was kept in the side compartment of the driver’s door of the vehicle.

Although Fadzli has a history of methamphetamine consumption, it was not his case that he carried his methamphetamine with him as he went about. His evidence was that he was not a constant or heavy consumer, and consumed two packets of methamphetamine a week . He did not consume methamphetamine daily and scheduled his methamphetamine consumption to avoid detection when he had to undergo urine tests on Fridays. He would start consuming methamphetamine on Friday night after the urine test, and continue consuming till Monday morning, and then stop to clear his urine of the drugs for the urine test on Friday . In other words, he did not consume methamphetamine between Monday morning and Friday night. As 12 July 2013 (the day of arrest) fell on a Friday, Fadzli would not need any methamphetamine before the night. There was no reason for him to take the risk of having all the methamphetamine with him rather than carrying just what he needed. This cast serious doubts whether the methamphetamine was for his own consumption.

Another point of note was Fadzli’s non-disclosure of Man Topak’s telephone number. Fadzli said that Man Topak had given him his handphone number, and he had entered and saved the number in his handphone without Man Topak’s name. He had called Man Topak on the number in March 2013 after he won the bet, but subsequently Man Topak’s handphone was switched off and he did not have contact with Man Topak until he ran into him by chance in July 2013, when the repayment with drugs proposal was made . However he did not give the investigators the telephone number although it was in his interest to do that so that Man Topak’s existence can be verified.

Fadzli’s account of how he came by the methamphetamine, his keeping the methamphetamine separately from the Erimin-5 tablets and his failure to provide Man Topak’s telephone number damaged the credibility of his claim that the methamphetamine was intended for his own consumption. I find that he had not rebutted the presumption that he had them for the purpose of trafficking, and was guilty on charge B.

That leaves charge D. There are difficulties with this charge:

(i) It was not clear where the methamphetamine had come from. Affandi’s contemporaneous statement indicated that Fadzli had left some methamphetamine with him, but it did not state that the 8.14 grams of methamphetamine was from Fadzli,

(ii) Affandi’s statement that he had bought methamphetamine from a Chinese man in Geylang was not seriously challenged by the prosecution, leaving a reasonable doubt whether the methamphetamine recovered from Affandi originated from Fadzli, and

(iii) Even if the methamphetamine had originated from Fadzli, there was no evidence that he had instigated Affandi to have possession of it for the purpose of trafficking.

The case against Fadzli on charge D was not proved, and he was acquitted.

Findings on the charges

To sum up, I found

for Fadzli –

Charge A – guilty and convicted.

Charge B – guilty and convicted.

Charge C – guilty and convicted.

Charge D – not guilty, acquitted.

for Affandi –

Charge E – guilty and convicted.

Charge F – guilty and convicted on the reduced charge of possession of the methamphetamine.

Charge G – not guilty, acquitted.

Post-conviction developments

When I informed the parties on my findings and convicted the accused persons on the respective charges, a development I had not anticipated took place. The prosecution invoked s 232(1)(b) of the CPC to take no further action on the non-capital charges and applied that orders of discharge not amounting to acquittal.

I acceded to that and made the orders in respect of charges B, C and F (as amended).

The sentences

Under s 33B, MDA, there is a discretion not to impose the death sentence in charges A and E on the accused persons if (i) their involvement was restricted to being couriers, (ii) the Public Prosecutor certifies that they had given substitutive assistance to the CNB in disrupting drug trafficking activities within or outside Singapore and (iii) they suffered from abnormality of mind.

On the facts, neither of them satisfied criteria (i). Fadzli was the owner of the eight bundles of diamorphine and he instigated Affandi to take possession of them and to hold them for him. He was not a courier. Affandi took possession of the eight bundles and stored them for Fadzli, and was more than a courier. They also did not come within criteria (ii) as the Public Prosecutor reported they had not offered substantive assistance, and criteria (iii) did not apply to them.

In the circumstances there was no discretion not to impose the death sentence, and the sentence was imposed on them.