Public Prosecutor v Pandian a/l Subramaniam

[1] The accused, Pandian A/L Subramaniam, a 38-year-old Malaysian male, was convicted on 1 March 2017 of unauthorised importation of not less than 40.53 grams of diamorphine (“the drug”), contrary s 7 of the Misuse of Drugs Act (Cap. 185, 2008 Rev. Ed.) (“MDA”). As the accused satisfied the requirements of s 33B(2) of the MDA, I sentenced the accused, pursuant to s 33B(1)(a) of the MDA, to the mandatory minimum sentence of life imprisonment and 15 strokes of the cane instead of imposing the death penalty. On 9 March 2017, the accused filed an appeal against the sentence.

[2] The charge against the accused read (“the Charge”):

[3] After the Charge was read and explained to the accused, he pleaded guilty. As s 227(3) of the Criminal Procedure Code (Cap. 68, 2012 Rev. Ed.) (“CPC”) prohibits the High Court from recording a plea of guilty to an offence punishable with death unless evidence is led by the prosecution to prove its case at the trial, I rejected the guilty plea. The prosecution then proceeded to prove its case by:

(a) reading out an agreed statement of facts filed pursuant to s 267 of the CPC on behalf of both the prosecution and the defence;

(b) admitting conditioned statements from 25 witnesses pursuant to s 264 of the CPC; and

(c) tendering a total of 136 documentary and physical exhibits.

None of the evidence was challenged by the defence.

[4] Having found that there was some evidence, not inherently incredible, which satisfied each and every element of the Charge, I called on the accused to give his defence. The accused chose to remain silent while the defence counsel indicated that no other witnesses would be called. In light of the foregoing, I found that the prosecution had proven its case beyond a reasonable doubt and convicted the accused of the Charge.

[5] The relevant portions of s 33B of the MDA provide:

[6] According to paragraph 17 of the agreed statement of facts, the drug was handed over to the accused already packed and bundled, and his involvement was limited to placing the bundles into different parts of the motorcycle which he rode into Singapore on. I therefore found it proven, on the balance of probabilities, that the accused’s involvement was restricted to transporting, sending or delivering the drug. The prosecution then tendered a certificate of substantial assistance pursuant to s 33(B)(2)(b) of the MDA. In light of the foregoing, I found that the requirements of s 33B(2) of the MDA have been satisfied. This triggered the discretion under s 33B(1) of the MDA not to impose the death penalty. Pursuant to s 33B(1)(a) of the MDA, the court may, instead of imposing the death penalty, sentence the accused to imprisonment for life and to caning of not less than 15 strokes.

[7] The prosecution indicated that it would leave the sentence to the court. In mitigation, the defence counsel urged the court to be as lenient as possible, having regard to the following factors:

(a) the accused had been forthright and cooperative with the authorities from the very beginning;

(b) his cooperation led to the apprehension of 4 others during the follow-up operation;

(c) when he realised through a telephone conversation during the follow-up operation that there might be another bundle of the drug in the motorcycle which was not accounted for, he informed the Central Narcotics Bureau officers who then conducted a further search and recovered another bundle from the air filter compartment of the motorcycle; and

(d) the accused is very contrite, as demonstrated by the following remarks he made during the committal hearing:

[8] I accepted the defence counsel’s submission on sentence and, in exercise of the discretion conferred by s 33B(1) of the MDA, sentenced the accused to imprisonment for life, backdated to 23 January 2015 (the date of his arrest), and also to 15 strokes of the cane. In the circumstances, this was the lowest sentence I could legally impose.