Public Prosecutor v Muhammad Hakam bin Suliman [2022] SGHC 160

The accused pleaded guilty to and was convicted of a charge of having not less than 499.99g of cannabis in his possession for the purpose of trafficking under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). The charge read as follows:

A second charge of possession of a controlled drug under s 8(a) of the MDA was taken into consideration for the purposes of sentencing. For completeness, I should add that the accused originally faced a third charge of having not less than 6,639.15g of cannabis mixture in his possession for the purpose of trafficking under s 5(1)(a) read with s 5(2) of the MDA. However, the Prosecution applied for a discharge amounting to an acquittal in respect of the third charge, and I ordered the discharge accordingly.

I sentenced the accused, 25 years of age at the time of sentencing, to 24 years’ imprisonment and 15 strokes of the cane. The accused has appealed against his sentence. I now set out the detailed grounds of my decision.

Facts

The accused was 21 years old at the time of the offence. He and two other involved persons were arrested on 27 September 2018 at about 8.25pm in the vicinity of a coffeeshop located at 21 Kian Teck Road, Singapore. The three of them had been in a green car bearing licence plate number SGU 3327U (the “Green Car”). When officers from the Central Narcotics Bureau (“CNB”) searched the Green Car, they found, amongst other things, 23 blocks and 5 packets of vegetable matter. These were subsequently analysed by the Health Sciences Authority (“HSA”) and found to contain, inter alia, not less than 499.99g of cannabis.

A total of five individuals were involved in the transactions that led to the accused’s arrest. These individuals were the accused, one Thomas Henrix Mathewson (“Thomas”), one Dean Fadriel Mohamed Rizal (“Dean”), one Muhammad Zulhusni bin Abdul Ghani (“Zulhusni”) and one Kumaran s/o Kannan (“Kumaran”) (collectively, the “involved persons”).

The Tampines transaction

Sometime in the morning on 27 September 2018, the accused met up with Thomas and Dean at Veerasamy Road, Singapore. At around the same time, arrangements were made for Zulhusni to drive the group around in a rented car. Zulhusni agreed to the arrangement in exchange for being allowed to use the rented car for the weekend. Subsequently, Kumaran met Zulhusni and brought the latter to rent the Green Car in Zulhusni’s name. Kumaran paid the rental fee.

At about 4.00pm that same day, the accused, Thomas and Dean took a Grab taxi to Bedok Mall. Zulhusni drove the Green Car, with Kumaran accompanying him, to Bedok Mall. There, all five involved persons met and boarded the Green Car.

Later that day, at about 6.30pm, the involved persons drove to Block 299B, Tampines Street 22, Singapore (the “Tampines Block”). At about 6.33pm, Kumaran went up the Tampines Block via the staircase. Five minutes later, at about 6.38pm, the accused went up the Tampines Block via the staircase. There, the accused collected a large blue recycling bag. The large blue recycling bag contained two blue cooler bags. The accused placed the large blue recycling bag in the boot of the Green Car with Dean’s assistance. Shortly after that, Kumaran returned from the Tampines Block to the Green Car. All five involved persons then entered the Green Car and left the vicinity of the Tampines Block. Kumaran and Dean alighted somewhere in the vicinity of Tampines.

The Lok Yang Road transaction and arrest

After Kumaran and Dean had been dropped off, Zulhusni drove the accused and Thomas to Lok Yang Road in the Green Car. While in that vicinity, at about 8.20pm, the accused received an off-white plastic bag from an unknown rider of a motorcycle bearing a Malaysian licence place. The off-white plastic bag contained, inter alia, nine blocks of vegetable matter, later ascertained to be cannabis. The accused placed the off-white plastic bag containing the nine blocks of cannabis in the boot of the Green Car.

Zulhusni then drove the Green Car to a coffeeshop at 21 Kian Teck Road. Upon arrival, the accused, Thomas and Zulhusni alighted from the Green Car. Shortly thereafter, they were arrested by CNB officers.

Drug analysis

A search of the Green Car was conducted by CNB officers. The following items, among others, were seized from the boot of the Green Car:

Analysis of the blocks and packets of vegetable matter listed above (the “Drugs”) revealed that they contained the following quantities of cannabis:

The Drugs collectively contained 3,463.22g of cannabis.

The parties’ cases

The sentencing framework

Under s 33(1) of the MDA read with the Second Schedule to the MDA, the prescribed punishment for the offence in the charge was a minimum of 20 years’ imprisonment and 15 strokes of the cane and a maximum of 30 years’ imprisonment or imprisonment for life and 15 strokes of the cane. As may be observed, the charge attracted a mandatory 15 strokes of the cane.

It was not disputed that the applicable sentencing framework for drug trafficking and importation offences was set out in Vasentha d/o Joseph v Public Prosecutor [2015] 5 SLR 122 (“Vasentha”), which was endorsed by the Court of Appeal in Suventher Shanmugam v Public Prosecutor [2017] 2 SLR 115 (“Suventher”). The sentencing framework requires the court to first consider the quantity of drugs trafficked and arrive at an indicative starting point based on that. Then, upward or downward adjustments are to be made to the starting point based on the offender’s culpability, and any aggravating or mitigating factors: Vasentha at [44]; Suventher at [28]–[30].

At the first stage, the gravity of the offence is considered by having regard to the quantity of the controlled drugs. This is because the drug quantity reflects the degree of harm to society. The Court of Appeal in Suventher laid down (at [29]) the applicable sentencing guidelines for the unauthorised import or trafficking of cannabis as follows:

At the second stage, the offender’s culpability and any aggravating or mitigating factors are taken into account to adjust the indicative starting sentence upward or downward. The High Court in Vasentha set out a non-exhaustive list of indicia (at [51]) for assessing an offender’s culpability as follows:

Finally, the court may, where appropriate, take into account the time that the offender had spent in remand prior to the conviction, either by backdating the sentence or discounting the intended sentence: Vasentha at [44(c)].

The Prosecution’s submissions

Regarding the first stage, the Prosecution took the view that the appropriate indicative starting point should be 29 years’ imprisonment. This was because the quantity of cannabis in this case, namely, 499.99g, was at the furthest end of the weight bracket (see [13] above). This, in turn, according to the Prosecution, warranted an indicative starting point at the far end of the corresponding sentencing range.

Moving to the second stage, the Prosecution submitted that the accused’s culpability was moderate because there was nothing to suggest that the accused had committed the offence as a result of pressure, coercion, intimidation, naivety or exploitation. The Prosecution accepted that mitigating weight ought to be placed on the accused’s plea of guilt, as well as his agreement to cooperate with the authorities and provide information on the other individuals involved in drug dealings after pleading guilty. In respect of the accused’s early plea of guilt, the Prosecution clarified at the hearing that this meant that the accused had pleaded guilty once he was offered a non-capital charge. However, the Prosecution also pointed out that an uplift in sentence was warranted given the second charge which was to be taken into consideration for the purposes of sentencing. Having taken into account these factors, the Prosecution submitted that a downward adjustment from the indicative starting point to a sentence of about 26 years’ imprisonment was appropriate.

The Prosecution also submitted that a sentence of 26 years’ imprisonment would be in line with sentencing precedents. This was because, according to the Prosecution, after the sentencing guidelines had been laid down in Suventher, sentences in the range of 25 to 28 years’ imprisonment had been imposed on offenders convicted of charges involving the trafficking of not less than 499.99g of cannabis. I address the cases cited by the Prosecution in more detail at [36]–[38] below.

Finally, the Prosecution had no objection to the sentence being backdated to the date of the accused’s arrest, which was 27 September 2018.

The Defence’s submissions

The Defence made no specific submission as to the appropriate indicative starting point, but instead focussed on the mitigating factors and sentencing precedents in their submissions that a sentence of 23 years’ imprisonment would be appropriate.

The Defence submitted that the accused had committed the offence out of a “sense of misplaced friendship/loyalty” because Dean and Kumaran, whom the Defence said were very close friends of the accused, had requested the accused to help to collect the cannabis. The Prosecution, in oral submissions, stated that it did not challenge this. The Defence also emphasised the accused’s relatively young age of 21 at the time of the offence.

In terms of mitigating factors, the Defence stressed that the accused was remorseful, and this was evidenced by his early plea of guilt. Another mitigating factor was the accused’s cooperation with the authorities. These mitigating factors were, as already mentioned (at [20] above), accepted by the Prosecution. As for the accused’s culpability, the Defence submitted that bearing in mind the indicia set out in Vasentha (see [17] above), the accused’s culpability was on the lowest end. This was because he had only performed a very limited function on the instructions of Dean and Kumaran. He did not organise the drug transaction, he was not part of a drug syndicate, he did not involve anyone else, he was not motivated by financial gain and he also took no steps to avoid detection.

In terms of antecedents, the accused had a clean record except for having been placed on drug supervision once in 2017. The Defence emphasised the difference between being placed on drug supervision as opposed to drug rehabilitation, the latter being a programme for high-risk abusers. The Defence submitted that the accused was placed under supervision following a one-off incident where he consumed drugs, but that in truth, he was never a drug addict. The Defence also pointed out that the accused had since been going for his supervised urine tests and had been testing negative. The Prosecution confirmed that, at the time of his arrest, the accused’s urine tested negative for drugs.

The Defence also raised two cases in which the accused persons were charged with having trafficked quantities of drugs at the high end of the non-capital limit of Class A controlled drugs and received sentences of around 23 years’ imprisonment. I deal with these cases in more detail at [39]–[40] below.

Finally, the Defence also urged the court to backdate the sentence to the accused’s date of arrest to which, as earlier mentioned (at [22] above), the Prosecution had no objections.

Decision

Deterrence is the primary sentencing consideration when dealing with the offence of drug trafficking. At the same time, there must be proportionality in relation to the severity of the offence committed and the culpability of the offender in each case: Vasentha at [35].

I first considered the indicative starting point for the charge. The sentencing framework in Suventher (set out at [15] above) provided a sentence of 26 to 29 years’ imprisonment for trafficking of 431g to 500g of cannabis. Applying the sentencing framework to the present facts, I agreed with the Prosecution that the indicative starting point was 29 years’ imprisonment. The quantity of cannabis in this case warranted an indicative starting point at the upper limit of the sentencing band. This was consistent with the approach taken by the Court of Appeal in Murugesan a/l Arumugam v Public Prosecutor [2021] SGCA 32 (at [8]):

I turned next to an assessment of the accused’s culpability. It appeared that his role involved the tasks of transferring the cannabis from the Tampines Block, and from the rider of the Malaysian motorcycle, to the Green Car. However, beyond these acts, there was no suggestion that the accused was further involved in the drug transaction or the trafficking. He did not direct or organise the drug transaction that day. There was no suggestion that he was operating on a commercial scale or that he was motivated by financial gain. There was also no suggestion that the accused was part of any drug syndicate. He also did not take any active steps to avoid detection.

The Defence submitted that the accused was acting on the instructions of Kumaran and Dean, his two good friends, to assist them in relation to the drugs collected. I noted that this was not challenged by the Prosecution (see [24] above). While I accepted the Prosecution’s submission that the accused was not acting under any pressure, coercion or intimidation, one could say that he acted out of naivety arising from a misplaced sense of friendship and loyalty. Applying the indicia set out in Vasentha (see [17] above), I found that the accused’s role in the present case was quite limited. As such, I found his culpability to be on the lower end of the scale.

Next, I considered the offender-specific aggravating and mitigating factors. There was one charge of drug possession being taken into consideration for the purposes of sentencing. In terms of antecedents, I noted that the only blemish on the accused’s record was that he had previously been placed on drug supervision in 2017. However, the Defence emphasised that the accused was not a drug abuser, and that he was not consuming drugs at the time of his arrest in respect of the charge in this case. As already mentioned, it was common ground that the accused tested negative for drugs upon his arrest (see [26] above). The Defence argued that the accused was not a drug addict and that was why he was only placed on drug supervision in 2017, and not sent to the Drug Rehabilitation Centre. Since then, as the Defence pointed out, the accused had been passing his drug tests without any issues. These assertions that the accused had not been consuming drugs since 2017, and was not a drug addict at the time of the offence, were not challenged by the Prosecution. In these circumstances, I gave limited weight to the fact that the accused was previously placed on drug supervision.

I found that the aggravating factors in this case were outweighed by two key mitigating factors. First, the accused pleaded guilty at an early stage once the offer of a non-capital charge was made to him. Secondly, the accused agreed to cooperate with the authorities. Indeed, the Prosecution accepted that mitigating weight had to be placed on the early plea of guilt as well as the fact that the accused had agreed to cooperate with the authorities and provide information on the other persons involved in drug dealings after pleading guilty. These factors demonstrated the accused’s remorse.

Before arriving at an appropriate adjustment from the indicative starting point, I considered the sentencing precedents cited by the Prosecution and the Defence. As earlier mentioned (at [21]), the Prosecution submitted that the range of 25 to 28 years’ imprisonment had been imposed on offenders convicted of charges involving the trafficking of not less than 499.99g of cannabis. I found that the case at hand was distinguishable from those cases cited by the Prosecution and warranted a lower sentence.

On the highest end of the range, the accused in Public Prosecutor v Poopathi Chinaiyah s/o Paliandi [2020] 5 SLR 734 (“Poopathi Chinaiyah”) was sentenced to 28 years’ imprisonment in respect of a charge for possession of not less than 499.99g of cannabis for the purpose of trafficking. There, it was a significant aggravating factor that the accused had a previous conviction for trafficking in cannabis and re-offended about three years after his release: Poopathi Chinaiyah at [22(c)] and [27]. Further, the accused in Poopathi Chinaiyah had a more involved role compared to the accused’s role in the present case, and he was motivated by financial reward. He received, stored and delivered consignments of drugs under the instructions of one “Mala” on multiple occasions in exchange for money: Poopathi Chinaiyah at [11] and [22(b)]. The relevant considerations in Poopathi Chinaiyah were clearly different from those in the present case.

In Public Prosecutor v Muhammad Nur Azam bin Mohamad Indra and another [2020] 4 SLR 1255 (“Muhammad Nur Azam”), the accused was sentenced to 26 years’ imprisonment in respect of a charge for importation of not less than 499.99g of cannabis. There, the fact that the accused was paid for bringing cannabis into Singapore pointed towards a higher sentence: Muhammad Nur Azam at [35]. Further, there were two charges taken into consideration for the purposes of sentencing, one of which was for importation of methamphetamine. That increased the culpability of the accused compared to someone who faced a single charge: Muhammad Nur Azam at [34]. In the present case, the accused did not profit financially and only had one charge for unauthorised possession of a controlled drug taken into consideration. That charge was less serious as compared to a charge for importation of methamphetamine.

Finally, in Kannan s/o Birasenggam v Public Prosecutor [2021] SGCA 15 (“Kannan s/o Birasenggam”), the accused was sentenced to 25 years and 7 months’ imprisonment in respect of a charge for trafficking in not less than 499.99g of cannabis. The accused’s plea of guilt, the limited role he played in the transaction and the fact that he did not receive any monetary reward were taken into account as mitigating factors. However, it was an aggravating factor that the accused had committed the offence while on bail. This resulted in the reduction of his sentence from the indicative starting point of 29 years’ imprisonment to 26 years’ imprisonment: Kannan s/o Birasenggam at [7]. The sentence was further reduced from 26 years’ imprisonment to 25 years and 7 months’ imprisonment to take into account the accused’s earlier period of remand: Kannan s/o Birasenggam at [7]. The present case is distinguishable in that there is the absence of the aggravating factor of offending while on bail.

The Defence, on the other hand, drew my attention to cases in which accused persons charged with trafficking quantities of drugs at the high end of the non-capital limit of Class A controlled drugs were sentenced to around 23 years’ imprisonment. In Public Prosecutor v Muhammad Nor Haiqal bin Shaman [2017] SGHC 292 (“Muhammad Nor Haiqal”), the accused was sentenced to 23 years’ imprisonment in respect of a charge for having not less than 249.99g of methamphetamine in his possession for the purpose of trafficking. The accused was 20 years old at the time of offending and was a drug addict. His role was limited to acting solely on one Jivan’s instructions, which involved receiving parcels of drugs sent to Jivan, and repacking and delivering them. The accused did this in part to feed his own addiction and in part to secure a roof over his head: Muhammad Nor Haiqal at [5]–[6].

In Parthiban a/l Kanapathy v Public Prosecutor [2021] 2 SLR 847 (“Parthiban Kanapathy”), the accused’s sentence of 23 years and 9 months’ imprisonment in respect of a charge for importation of not less than 14.99g of diamorphine was upheld by the Court of Appeal. The accused was 20 years old at the time of offending. He was motivated by financial advantage and took steps to conceal the drugs in his motorcycle, which were both indicia of higher culpability: Parthiban Kanapathy at [24].

The Prosecution highlighted that Muhammad Nor Haiqal and Parthiban Kanapathy were distinguishable from the present case as the offenders in those cases were below the age of 21 at the time of offending. In this case, the accused was 21 years of age at the time of the offence. While the accused was an adult at the time of offending, his relatively young age as an adult could be taken into consideration in sentencing (see eg, Public Prosecutor v Pham Duyen Quyen [2016] 5 SLR 1289 at [58] and Soh Qiu Xia Katty v Public Prosecutor [2019] 3 SLR 568 at [69]), as was rightly accepted by the Prosecution. Accordingly, I took this factor into account when considering the appropriate sentence.

It appeared, from the sentencing precedents cited by the Prosecution and the Defence in their submissions, that sentences ranging from 23 to 28 years’ imprisonment were meted out for offenders convicted of charges involving the trafficking of quantities of drugs at the high end of the non-capital limit of Class A controlled drugs. For the reasons stated above, the case at hand was distinguishable from the cited cases. The present case did not involve certain aggravating factors and indicia of higher culpability that were present in the cases cited by the Prosecution, but, unlike the cases cited by the Defence, the accused was an adult at the time of offending (albeit a relatively young one). Having regard to all the aggravating and mitigating factors, on a holistic assessment of the facts of this case, I found that a discount of 5 years was fair. This brought the sentence down from the indicative starting point (of 29 years’ imprisonment) to 24 years’ imprisonment.

As for the sentence of caning, as earlier mentioned (at [14] above), the charge attracted the mandatory 15 strokes of the cane.

Conclusion

For these reasons, I sentenced the accused to 24 years’ imprisonment and 15 strokes of the cane. The Defence had asked, and the Prosecution did not object, that the sentence was to be backdated to the date of arrest. I ordered the sentence to be backdated to the date of the accused’s arrest, which was 27 September 2018.