Public Prosecutor v Suhaimi Bin Said [2017] SGHC 86

The accused – Suhaimi Bin Said – a Singaporean male, claimed trial to the following charge:

On 19 June 2014, at or about 10.40am, the accused was arrested by Central Narcotics Bureau (“CNB”) officers outside Block 26 Sector A, Sin Ming Industrial Estate #09-138 (“the Sin Ming Unit”). At the time of his arrest, the accused was 41 years old and was an odd job worker. A search of the Sin Ming Unit yielded several drug exhibits, including 83 packets containing not less than 1747.04g of granular/powdery substance (“83 Packets”) as follows:

The 83 Packets found in the accused’s possession formed the subject matter of the charge. After being seized, they were analysed by the Health Sciences Authority (“HSA”) and were found to contain not less than 45.58g of diamorphine in total. The HSA analysis revealed that:

(j) D1A2A1 contained not less than 6.51g of diamorphine; and

(k) D1B1A1 contained not less than 13.29g of diamorphine.

Sometime around May or June 2014, the accused was at a coffee shop located at “Blk 22 Sin Ming” when an Indian man approached him. The Indian man identified himself as either “Siva” or “Selvam” (hereinafter “Siva”), and offered the accused a part-time job. The accused asked Siva what the part-time job entailed, and Siva explained that the accused would be a “packer” of heroin (a street name for diamorphine). The accused was told that he “would need to receive the heroin and repack it into smaller packets and [Siva] would inform [him] [whom] to deliver the heroin to”. In return, the accused would receive $200 for every batu (meaning “bundle”) of diamorphine that he packed and delivered. Incentivised by the monetary rewards, the accused accepted the job offer. Siva then gave the accused a SIM card, which would subsequently be used by drug suppliers and customers to contact the accused.

On the morning of 19 June 2014, at about 6.30am, the accused met two unknown males at a bus stop opposite “Blk 26 Sin Ming”. The accused boarded their car and was asked to retrieve a cloth bag containing four batus of diamorphine from beneath the car seat (referred to as the “Third Batch” for the reason stated at [10]). The unknown males told the accused that he would earn $300 for each batu, which was $100 more than what Siva had promised him. The accused was initially reluctant to take the cloth bag because it contained four batus of diamorphine, which he thought were “too many”, but he eventually agreed to do so.

At this juncture, it ought to be noted that the Defence did not allege duress. But the accused claimed at trial that he was afraid that “something would happen to [him]” if he had refused to take the four batus. After considering the evidence in its entirety, I found that there was no duress and that his allegations could not be believed. First, this fear was not mentioned in the accused’s statements, wherein he stated that he agreed to help out because it would be his “last assignment”. Second, while under cross-examination, he insisted that he would not have counted the sale proceeds from the four batus. Third, he claimed that he did not care whether or not he could repack a batu into the instructed number of small packets. A person who operated under fear amounting to duress would not have been so nonchalant about complying with the instructions given to him. I thus agreed with the Prosecution’s submissions that there was no duress made out on the facts.

Upon returning to the Sin Ming Unit with the cloth bag, the accused received a call from an unknown caller who apologised for passing four batus of diamorphine to the accused. The accused “scolded the caller and told him that [the accused] will be sentenced to death if [the accused] was arrested”. But the caller assured him that there were already customers waiting for the four batus and that it was possible to finish delivering all the diamorphine on the same day. Upon hearing this, the accused agreed to “help” but told the caller that he “[did] not want to work anymore for them after [the] job”.

Within the cloth bag, the accused found a box containing small plastic packets and a piece of paper instructing the accused to repack the four batus. The instructions were as follows:

The accused proceeded to repack two of the batus into 90 small packets and half a batu. Thereafter, hours before his arrest, the accused passed ten of these small packets to an unknown Eurasian lady and received $850. Since the accused had already parted with possession of the ten small packets, they did not form part of the present charge. To be sure, the remaining 83 Packets (comprising 80 small packets, two batus and half of a batu) found in the Sin Ming Unit were from the Third Batch, and these 83 Packets formed the subject matter of the charge.

At this point, it ought to be noted that evidence pertaining to the accused’s prior drug dealings, which were not part of the present charge, was adduced by the Prosecution (“Collateral Evidence”). Without specifying the details, the Collateral Evidence showed that the accused, prior to the Third Batch, had inter alia repacked a number of batus from two separate batches of diamorphine into smaller packets and had delivered diamorphine to various people and collected money. For completeness, it should be added that the Collateral Evidence also included the evidence concerning the ten small packets that were delivered to the unknown Eurasian lady hours before the accused’s arrest.

The Defence did not object to the admission of the Collateral Evidence, which it initially sought to rely on for the purposes of showing that the accused was a mere courier under s 33B(2)(a) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) (“mere courier”) (see [20] below). Nevertheless, given the “thorny difficulties” that could arise out of the Collateral Evidence (see Rosman bin Abdullah v Public Prosecutor [2017] 1 SLR 10 (“Rosman”) at [32]), the Prosecution and the Defence were invited to evaluate the relevant and potential issues. Both parties then made a considered decision to confine their submissions only to evidence relating to the 83 Packets (from the Third Batch). Given that all parties had decided not to rely on the Collateral Evidence, I directed my mind solely to the evidence in relation to the 83 Packets and disregarded the Collateral Evidence and its “possible effect(s)”: see Rosman at [33]. So much for the evidence and the parties’ position relating to the issue of whether the accused was a mere courier. As for the evidence to be utilised for the purpose of the conviction, it was common ground that the evidence was to be restricted to the evidence relating to the 83 Packets.

The conviction

With regard to the 83 Packets, I was satisfied that the Prosecution had established the following elements of the offence under s 5(1)(a) read with s 5(2) of the MDA: (a) possession of a controlled drug; (b) knowledge of the nature of the drug; and (c) possession of the drug for the purpose of trafficking which was not authorised: see Muhammad Ridzuan bin Md Ali v Public Prosecutor and other matters [2014] 3 SLR 721 at [59].

First, the element of possession was established beyond contest. The 83 Packets were recovered from the Sin Ming Unit which the accused had rented, and the accused admitted that he had possession of the 83 Packets. He also did not challenge the HSA’s analysis that the 83 Packets collectively contained not less than 45.58g of diamorphine.

Second, it was also clear that the accused had known that the 83 Packets contained diamorphine. On the stand, the accused admitted to knowing that the substance which he had repacked into the 83 Packets was heroin because the people who passed him the batus told him so. Although the accused was unaware that heroin was a street name for diamorphine, I agreed with the Prosecution that this was not an obstacle to a finding of knowledge on the accused’s part: see Nagaenthran a/l K Dharmalingam v Public Prosecutor [2011] 4 SLR 1156 at [23]–[24].

Third, the accused had undoubtedly possessed the 83 Packets for the purpose of trafficking without authorisation. The lack of authorisation was not (and could not be) challenged by the Defence. As for purpose, under s 2 of the MDA:

The accused admitted that he was given instructions to deliver the diamorphine to various people and that the diamorphine was for “selling”. He said in his contemporaneous statement as follows:

It was therefore patent that the accused had intended to traffic in the 83 Packets and would have delivered the drugs as instructed. In any event, the accused’s possession of not less than 45.58g of diamorphine also triggered the presumption under s 17(c) of the MDA, which read:

The onus was thus on the accused to rebut the presumption on a balance of probabilities. However, apart from his assertions, he did not adduce any evidence to do so. While the accused agreed with the Prosecution that he was in possession of the 83 Packets, he disagreed that he had possessed them for the purposes of trafficking or that he was a distributor of diamorphine for Siva. Such baseless denials were insufficient to rebut the presumption under s 17(c) of the MDA, given the overwhelming objective evidence and the accused’s own admissions that he was only a mere courier helping to “send” the 83 Packets.

I therefore found that the Prosecution had proved beyond a reasonable doubt the elements of the offence under s 5(1)(a) read with s 5(2) of the MDA. Accordingly, I convicted the accused on the charge.

The sentence

Pursuant to s 33(1) and the Second Schedule of the MDA, the accused faced the death sentence for trafficking in excess of 15g of diamorphine. The Defence did not contest that the elements of the offence were made out. Instead, the main issue on which the Defence sought the court’s determination was whether the accused had met the conditions of s 33B(2)(a) of the MDA (“Courier Exception”). In other words, the principal finding sought by the Defence was whether the accused’s role was that of a mere courier.

Under s 33B of the MDA, an accused who had been convicted of an offence under s 5(1) and who faced the death sentence may instead be sentenced to life imprisonment and caning of not less than 15 strokes if the requirements of s 33B(2) were met. The requirements were as follows:

In short, there were two requirements that had to be satisfied before the accused could avoid the death sentence. First, the accused had to show on a balance of probabilities that he fell within the Courier Exception because his involvement was restricted to the acts set out under s 33B(2)(a). Second, the Public Prosecutor must certify under s 33B(2)(b) that he had substantively assisted the CNB in disrupting drug trafficking activities (“Certificate of Substantive Assistance”). Both requirements must be satisfied, and the issue of whether an offender was a mere courier under s 33B(2)(a) was distinct from whether he had rendered substantive assistance to the CNB: see Public Prosecutor v Christeen d/o Jayamany and another [2015] SGHC 126 (“Christeen”) at [46].

I begin by first setting out the law on the Courier Exception. In Public Prosecutor v Chum Tat Suan and another [2015] 1 SLR 834 (“Chum Tat Suan”) at [63]–[66], the Court of Appeal noted that Parliament intended for the Courier Exception to apply only in very narrow circumstances where the offender’s involvement was limited to “transporting, sending or delivering the drugs”. Hence, acts such as packing of drugs would bring the offender out of the Courier Exception. The Court of Appeal explained as follows at [68]:

Ultimately, however, “whether an offender [was] a courier necessarily involve[d] a highly fact-specific inquiry”: see Public Prosecutor v Ranjit Singh Gill Menjeet Singh and another [2017] 3 SLR 66 (“Ranjit Singh”) at [58].

In this regard, I was referred to Christeen, which provided invaluable guidance at [68]–[73] on the key factors to consider when determining whether an offender was a mere courier. These non-exhaustive factors could be distilled as follows:

(a) Was the role a common and ordinary incident of transporting, sending or delivering a drug? To qualify as a mere courier, an offender must not have been involved in “any other type of activity associated with drug supply and distribution”: see Singapore Parliamentary Debates, Official Report (9 July 2012) vol 89 (Teo Chee Hean, Deputy Prime Minister and Minister for Home Affairs). Thus, acts of storage or safekeeping did not bring an offender out of the Courier Exception if such acts were merely incidental to the transporting of the drugs: see Christeen at [68(a)] and [69].

(b) Were such acts necessary to deliver the drugs? This would involve considering the degree to which the drugs were altered and the extent to which an offender’s involvement looked beyond his immediate recipient of the drugs. Hence, an offender would not be a mere courier if his acts of packing were not necessary to move the drugs from point A to point B: see Christeen at [68(b)] and [70].

(c) What was the extent in scope and time of the functions which the offender performed? An offender who had numerous functions going beyond transportation over an extensive period of time was less likely to be a mere courier than an offender who performed such functions on a one-off basis: see Christeen at [68(c)] and [71].

(d) What was the degree of executive decision-making powers given to the offender? An offender who intended to sell drugs for profit and who had the ability to make executive decisions was not a mere courier. In contrast, an offender who could exercise no discretion and could only carry out instructions given to him was more likely to be within the Courier Exception: see Christeen at [68(d)] and [72].

(e) Did the offender receive a distinct form of benefit for performing his extra functions? An offender who regularly performed extra functions and was rewarded for such functions was more likely to fall outside the Courier Exception: see Christeen at [68(e)] and [73].

With the above considerations in mind, I examined the accused’s “involvement in the offence” (see s 33B(2)(a) of the MDA) of trafficking in the 83 Packets.

The Defence urged me to find that the accused was a mere courier within the meaning of s 33B(2)(a) because the accused only had the intention to deliver (as opposed to sell) the 83 Packets. Presumably, the Defence was attempting to overcome the holding in Chum Tat Suan at [62] that an offender was not merely a courier if he had the intent to sell controlled drugs. To this end, the Defence challenged the accuracy of the recording done by CNB officer Nicholas Quah Chee Fook (“Quah”) with the aid of an interpreter, Mr Mohammad Farhan Bin Sani (“Farhan”). In view of the parties’ decision to confine their submissions only to evidence relating to the 83 Packets, my analysis is similarly restricted to references in the statements with regard to the 83 Packets. There were multiple instances of the word “sell” in P70 suggesting that the accused had intended to sell the 83 Packets. P70 also recorded the accused as having stated that “[a]ll the heroin recovered from [the] black sling bag belongs to [him] and is meant for selling” [emphasis added]. Levelling two main arguments, the Defence challenged the accuracy of the instances where the word “sell” or its different forms appeared.

First, the Defence submitted that the accused did not tell Quah or Farhan that he had intended to sell the drugs, and that “[t]he words ‘sell’ [and] ‘sold’ were misunderstood and/or misconstrued by [Farhan]”. It was alleged that Farhan had incorrectly interpreted the Malay words “menghantar” (which means “deliver”) and “menjual” (which means “sell”). The accused also gave evidence that he did not use the words “sell” or “sold”. Instead, according to the accused, he only said that he would send the diamorphine and collect money.

Second, relying on the “Interpreter’s Notes” taken by Farhan during and after the recording of P70, the Defence averred that the accused was prevented from clarifying in his statements that he did not intend to sell the diamorphine. The notes indicated that the accused had informed Farhan that “he did not have the intention to sell and was only helping to send the drugs” (“the Exculpatory Statement”). The Exculpatory Statement was made after the recording of P70, and it was the Defence’s position that Quah had deprived the accused of a chance to clarify by failing to take an additional statement immediately.

In my judgment, the accused had intended to use the word “sell” (or its different forms) where it had been so recorded. I found that the contention that the accused’s words were incorrectly interpreted and recorded was incredible and self-serving. To begin with, the Defence could not show that Quah or Farhan had any reason to incriminate the accused, and the accused also admitted that he did not know Quah or Farhan prior to his arrest. On the contrary, the fact that Farhan recorded the Exculpatory Statement in the Interpreter’s Notes showed that he had no motive to incriminate the accused and that he was dutifully carrying out his role as an interpreter. I also disagreed with the Defence’s submission that the accused was prevented from clarifying what he had said. Both Quah and Farhan testified that the accused was informed that he could make the necessary clarifications in his further statements. This fact was also recorded in Farhan’s Interpreter’s Notes. Accordingly, the Defence’s contentions were far-fetched, and it was always open to the accused to make any necessary clarifications in his later statements.

Putting aside deliberate acts, I also considered whether there could have been mistakes. Having heard and seen Farhan giving his testimony, I did not believe that he could have been mistaken about the two Malay words “menghantar” and “menjual”. These were common words that anyone familiar with the Malay language would have readily known and understood. Indeed, Farhan was unequivocal in his position that he understood both words, and that they did not have any other possible meanings. I did not doubt his competence or veracity on this point.

In the light of the foregoing, including considering the Exculpatory Statement, I found that the accused had deliberately used the word “sell” (or its other forms) as recorded, indicating how he had perceived his role. I should add that even if I had taken into account references in the statements with regard to the Collateral Evidence, my conclusions on this issue would have remained unchanged. In any case, the accused’s choice of words in his statements was not determinative of the issue of whether he was a mere courier on our facts. Ultimately, the court still had to decide, on a holistic assessment of the facts, whether the accused’s involvement in the offence was restricted to the acts set out under s 33B(2)(a) of the MDA.

Certainly, while the Defence harped on the question of whether the accused had intended to “sell” the 83 Packets or whether he would have merely delivered them and collected money (see Christeen at [72] and [77]), this issue was overshadowed by the fact that he had repacked the 83 Packets. The accused’s act of repacking turned out to be the decisive point on the question of whether he met the conditions of the Courier Exception.

In this regard, recalling the considerations in Chum Tat Suan and Christeen as canvassed above at [23]–[24], alongside the principle that an offender’s act must be assessed cumulatively (see Christeen at [87]), I noted that the accused had been arrested with a digital weighing scale and numerous empty plastic packets. These were paraphernalia used by the accused to weigh and repack the two batus, and his statement set out in detail how he had actually repacked them:

In submitting that the accused was a mere courier, the Defence argued that not all instances of repacking would preclude an offender from falling within the Courier Exception. However, in my view it was clear from the case authorities that acts of repacking had to be necessary for or incidental to the delivery (and other statutory acts) if the accused were to be a mere courier: see Chum Tat Suan at [68]; Ranjit Singh at [64]; and Christeen at [68]. In this regard, Ranjit Singh was especially instructive given its close similarities with the present case. Therein, the second accused (“Farid”) was charged for possessing 35.21g of diamorphine for the purpose of trafficking. Weighing scales and empty plastic bags were found in Farid’s rented apartment, which Farid had intended to use to repackage the diamorphine into smaller packets each containing 7.7–7.9g of the drug. In rejecting Farid’s submission that such acts of repacking were that of a mere courier, the High Court found that Farid’s role of weighing and repacking the drugs “was essentially a matter of convenience for facilitating distribution or sale; it was not necessary for or incidental to enabling the drugs to be transported” [emphasis added] (at [64]). The High Court therefore imposed the mandatory death sentence on Farid.

The facts of Ranjit Singh were much like those in the present case, and in the circumstances, I agreed with the Prosecution that the accused fell outside the Courier Exception. It was apparent from the above facts that one of his core functions was to weigh and repack the batus into small packets after he had collected them from the drug suppliers. As the Prosecution highlighted, the accused’s act of repacking had substantially altered the form of the drugs. Such repacking was neither necessary for nor incidental to the acts listed under s 33B(2)(a) of the MDA. Instead, one could fairly describe what the accused did as “breaking bulk” for his suppliers. Certainly, the two batus were broken down into small packets of retail size, and this act of repacking was done “essentially [as] a matter of convenience for facilitating distribution or sale” [emphasis added]: see Ranjit Singh at [64]. In my view, this formulation in Ranjit Singh was most apposite for the present case. It applied a fortiori to the present case given that the accused had already repacked the diamorphine unlike Farid in Ranjit Singh who had not actually repacked the diamorphine at the time of his arrest.

With regard to the contention that the accused was merely carrying out Siva’s and the drug suppliers’ instructions and had no executive decision-making powers (see Christeen at [68(d)] and [72]), I was of the view that this was insufficient to show that the accused was a mere courier. While I accepted that the lack of executive discretion was a relevant indicator (see [24(d)] above), this was only one of the many factors which the court had to consider. As was the case in Ranjit Singh, even if an offender was acting on instructions, “the fact that his role with regard to the offence charged would have included non-incidental repacking was sufficient to show that he was not a mere courier” (at [65]). Therefore, given my finding that the accused’s repacking of the diamorphine was not necessary for or incidental to the transporting, sending, delivery, or the other acts under s 33B(2)(a) of the MDA, the fact that the accused was executing instructions did not change the conclusion that he was not a mere courier: see Ranjit Singh at [65].

In conclusion, based on a common sense reading of the MDA and the guidance of the relevant precedents, the facts led me inescapably to the finding that the accused was not a mere courier. This was a fortiori when the MDA placed the burden on the Defence to prove on a balance of probabilities that the accused was a mere courier. In this connection, it ought to be mentioned that even if the Collateral Evidence had been considered, it would not have made a difference to my finding bearing in mind that the accused had already repacked the drugs in our case.

Finally, the Defence also sought to impugn the Prosecution’s decision not to issue a Certificate of Substantive Assistance under s 33B(2)(b) of the MDA. However, aside from assertions that the Prosecution had not been transparent in its refusal to issue a Certificate of Substantive Assistance, the Defence did not adduce any evidence to suggest that the Prosecution had acted without propriety. I therefore dismissed the Defence’s challenge for want of merit. In any event, this issue was ultimately immaterial to the sentence, as acknowledged by the Defence, in the light of my finding that the accused fell outside the Courier Exception.

In the premises, I imposed the mandatory sentence of death.

Foo Chee Hock Judicial Commissioner