Public Prosecutor v Lee Zheng Da Eddie and another [2022] SGHC 199

The first accused in this matter is Eddie Lee Zheng Da (“Lee”), who was tried before me on the following charge of being in possession of three packets containing not less than 24.21g of diamorphine (“the Three Bundles”) for the purpose of trafficking, which is an offence under s 5(1)(a) read with s 5(2) and punishable under s 33(1) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”):

The second accused is Yap Peng Keong, Darren (“Yap”), who was jointly tried with Lee on the following charge of trafficking by delivering the Three Bundles to Lee, which is an offence under s 5(1)(a) and punishable under s 33(1) of the MDA:

The undisputed facts leading to the arrest and charges

Lee is a male Singaporean who was 24 years-old at the time of the alleged offence. It is common ground in this case that Lee was a drug trafficker. He purchased drugs, such as heroin, methamphetamine and cannabis, from his suppliers who were located in Malaysia. He then sold these drugs to his customers in Singapore. Yap was one such customer of Lee’s. Yap, who was 30 years-old at the material time, held a job as a private hire driver and thus had the use of a car. It is not in dispute that Lee later recruited Yap to transport drugs for him.

In the afternoon of 4 July 2018, Lee checked into the Pan Pacific Singapore, a hotel which is located along Raffles Boulevard (“the Hotel”). He was given room 2613 (“the Room”). Lee was accompanied by his girlfriend, one Nomsutham Passara (“Passara”).

Lee had arranged with Yap for the latter to be on standby to collect drugs that evening. At around 5.21pm, Lee sent Yap a Telegram message, which was a screenshot of a WhatsApp conversation Lee had with one “Kelvin Mama Ws”. It is not in dispute that “Kelvin Mama Ws” is the name recorded in Lee’s handphone for his drug supplier in Malaysia, whom I shall refer to as “Kelvin” in this judgment. The screenshot sent by Lee to Yap showed a photo of a signboard stating “METALL-TREAT INDUSTRIES PTE LTD 28/30 Gul Avenue”.

By this Telegram message to Yap, Lee was instructing him to proceed to 28/30 Gul Avenue to collect drugs. There were further messages exchanged between Lee and Yap over Telegram, with Lee telling Yap to collect the drugs at 8.30pm that night at that stated location.

Before heading to 28/30 Gul Avenue, it was arranged between Yap and Lee that they would first meet at the Hotel. This was for Yap to collect from Lee moneys amounting to $16,000 (“the Cash”), which Yap had been instructed by Lee to hand over to the person who would pass him the drugs at 28/30 Gul Avenue. Yap arrived at the Hotel and at about 7.22pm, Lee met Yap at the lift lobby of the Hotel. They then proceeded to the Room where Lee gave Yap the Cash (which had been placed in a heat-sealed bag) as well as a green bag (later marked as exhibit B7) which Yap was to use to store the drugs that he was to collect later that night. Yap then left the Hotel.

Yap drove his car to 28/30 Gul Avenue. There, he waited in his car for about 30 minutes, while it was parked at the side of the road. Then, an unidentified male motorcyclist arrived and stopped his bike next to Yap’s car. Yap passed the motorcyclist the Cash. In exchange, the motorcyclist threw three bundles of heroin (later marked as exhibits A1, A2 and A3 respectively), each wrapped in newspaper, and two blocks of cannabis (later marked as exhibits B1A1 and K1A respectively), each wrapped in transparent packaging, onto the front passenger seat of Yap’s car. Yap then placed these drugs inside the green bag, and proceeded to drive back to the Hotel. The three heroin bundles are the Three Bundles which form the subject matter of the charges against Lee and Yap.

Yap arrived at the Hotel at around 9.51pm. It was at that time that Yap sent a message to Lee over Telegram, saying “I am down”. After parking his car at the carpark of the Hotel, Yap placed one block of cannabis (exhibit K1A) under the front passenger seat. He then headed up to the Room with the remaining drugs in the green bag. Lee and Passara were present in the Room at that time.

In the Room, Yap took out the Three Bundles and the remaining block of cannabis (exhibit B1A1) from the green bag. Yap removed the newspaper wrapping around each of the Three Bundles, and placed the Three Bundles, together with the block of cannabis, on a table. Lee then weighed the Three Bundles (as well as the block of cannabis) using a weighing scale on the table.

Lee then handed Yap a black trash bag, which Yap placed on the floor of the Room. Yap then placed the block of cannabis on top of the black trash bag together with a knife.

At around this time, officers from the Central Narcotics Bureau (“CNB”) forcibly entered the Room, and arrested Lee, Yap and Passara. Lee was the only one of the three who resisted arrest.

The CNB officers seized the Three Bundles and the block of cannabis (exhibit B1A1). A search of the Room yielded a host of other drug-related paraphernalia such as digital weighing scales, numerous empty plastic sachets, rubber gloves, several improvised glass apparatus and tubes, two fire starters, heat sealers, a glue gun, a money counter, and spoons. The subsequent forensic analysis showed, inter alia, that three spoons found in the Room (later marked collectively as exhibit B3B) were stained with diamorphine and methamphetamine, and three weighing scales (later marked as exhibits B4A, C1A and C1B respectively) were stained with diamorphine. There were also small packets of methamphetamine, diamorphine, and cannabis, and nimetazepam tablets that were found.

Yap’s car, which was parked in the carpark of the Hotel, was also searched. The other block of cannabis (exhibit K1A), which Yap had placed underneath the front passenger seat (see [9] above), was discovered and seized by the CNB officers. A zippered pouch was also found in the car, which contained small packets of methamphetamine, cannabis and an ecstasy tablet. The CNB officers also found a white envelope labelled “$5,000”, which contained cash in the amount of $800.

I should also add that five handphones (marked as exhibits A9, A10, A11, H5, F2 respectively), a “Samsung” tablet and a SIM card were seized from Lee. Three handphones and a SIM card were seized from Yap.

The subject of the charges (see [1]-[2] above), which both accused were jointly tried before the court, are the Three Bundles which Yap had collected from 28/30 Gul Avenue and had delivered to Lee at the Room in the Hotel. There is no dispute that the Three Bundles were forensically analysed by the Health Sciences Authority and found to contain in aggregate not less than 24.21g of diamorphine.

The Prosecution’s case

The Prosecution presents its case against the two accused persons as a straightforward one involving the trafficking of heroin.

As against Yap, the Prosecution’s case is that he had delivered the Three Bundles to Lee at the Room in the Hotel. The Prosecution relies on the presumption in s 18(1)(a) of the MDA that Yap had knowing possession of the drugs, as well as the presumption in s 18(2) of the MDA that Yap had knowledge of the nature of what was contained in the Three Bundles. They argue that Yap is unable to rebut both these presumptions on a balance of probabilities.

As against Lee, the Prosecution’s case is that he was in possession of the Three Bundles for the purpose of trafficking. As set out in the Statement of Agreed Facts, Lee had ordered heroin from his drug supplier, and the Three Bundles that had been collected by Yap and delivered to Lee was his order of heroin. The Prosecution relies on the presumption under s 17(c) of the MDA, which states that “[a]ny person who is proved to have had in his possession more than — (c) 2 grammes of diamorphine; … shall be presumed to have had that drug in possession for the purpose of trafficking unless it is proved that his possession of that drug was not for that purpose”. Relying on s 17(c), the Prosecution’s case is that Lee was in possession of the Three Bundles (which contained not less than 24.21g of diamorphine) for the purpose of trafficking and it takes the position that Lee is not able to rebut this presumption.

The Defence’s case

Lee’s case

Lee elected to give evidence in his own defence. He does not deny that the drugs he had ordered from Kelvin, and which he had instructed Yap to collect from 28/30 Gul Avenue and deliver to him at the Room in the Hotel, consisted of heroin and cannabis. He also does not deny that he had ordered those drugs so that he could sell them to his own customers. In other words, he accepts that he intended to “traffic” in (per s 2(1) of the MDA: see [32] below) the drugs that were collected by Yap and delivered to him on the night of 4 July 2018.

Lee’s case is that he only ordered three half-pound packets of heroin, but because of a mistake on the part of the drug supplier, he was given three one-pound packets instead. In other words, the Three Bundles that had been passed to Yap at 28/30 Gul Avenue, which were each one-pound packets, was not what Lee had ordered. Therefore, Lee’s case is that he only intended to traffic in the following amounts of diamorphine, as extrapolated mathematically from half of the weights of each of the Three Bundles that Yap had collected:

(a) Half of exhibit A1: 8.13g/2 = 4.065g of diamorphine

(b) Half of exhibit A2: 8.27g/2 = 4.135g of diamorphine

(c) Half of exhibit A3: 7.81g/2 = 3.905g of diamorphine

This would add up to an aggregate amount of 12.105g of diamorphine, which is below the threshold amount for capital punishment, ie, 15g (see the Second Schedule to the MDA).

Lee claims that he was not only oversupplied with heroin but also with cannabis. He testified that he had only ordered one block of cannabis. When Yap called him after the drugs had been collected at 28/30 Gul Avenue, he discovered that he had been given an extra block of cannabis. This was when Yap described to Lee over the phone that he had received three bundles wrapped in newspaper and two cannabis blocks from the motorcyclist. Lee’s evidence is that he then told Yap to leave one block of cannabis in his car, which would be returned to the supplier at some later time. Lee also testified that he called Kelvin immediately after Yap spoke to him to inform Kelvin about the extra block of cannabis. Kelvin then informed him that he will arrange for the additional block of cannabis to be returned at Bendemeer or Kallang later.

Lee testified that he first discovered that he had been oversupplied with heroin when Yap placed the Three Bundles on the table in the Room and unwrapped them. Lee said that he recognised from the size of the bundles that they were not half-pound packets which he ordered, but one-pound packets. Lee then weighed each of the packets, and this confirmed that he had been given one-pound packets of heroin. Lee’s evidence is that he then immediately called his drug supplier, Kelvin, and told him that he had also been given more heroin than what he actually ordered. He wanted to return the excess drugs to Kelvin. According to Lee, Kelvin’s response was that he would make arrangements for an “exchange”, either from a location in Bendemeer or Kallang, with the exact place and time to be confirmed later. All this happened just before the CNB officers forcibly entered the Room, and arrested Lee and Yap. I should add that it is not in dispute that this call, as well as some of Lee’s earlier calls to Kelvin on 4 July 2018, were made by Lee using his handphone that was later marked as exhibit A9 (“Phone A9”).

In sum, Lee’s defence is that he is not guilty of the charge of possessing not less than 24.21g of diamorphine for the purpose of trafficking. It appears to follow from Lee’s defence that, if his evidence is accepted, the charge ought to be amended and he should be convicted for possessing not less than 12.105g of diamorphine for the purpose of trafficking.

Yap’s case

Yap also elected to give evidence in his own defence. His evidence is that Lee was his drug supplier. He does not dispute the Prosecution’s case that he had agreed, on Lee’s instructions, to pass the Cash to the unidentified male motorcyclist at 28/30 Gul Avenue, collect drugs from the said motorcyclist at the same location, and deliver the drugs to Lee at the Room in the Hotel. However, his evidence is that he neither knew what kind of drugs he was collecting at 28/30 Gul Avenue nor the quantity of those drugs, and he did not ask Lee any questions. Yap also testified that he did not know why Lee had instructed him to pass the Cash to the male motorcyclist, and that he did not ask Lee any questions about the same. According to Yap, Lee offered to pay him $1,000 for performing the delivery, in connection with which he also asked no questions.

At 28/30 Gul Avenue, after he handed over the Cash to the unidentified male motorcyclist, the motorcyclist threw five bundles of drugs into his car through the front window. Yap claims that he only knew and recognised the two blocks of cannabis as they were wrapped in transparent packaging. He testified that he did not know the contents of the other three bundles that were wrapped in newspaper (which turned out to be the Three Bundles). He discovered that these bundles were heroin only later when they were unwrapped in the Room.

It is undisputed that after Yap had collected the drugs at 28/30 Gul Avenue as instructed, Lee called Yap on three occasions between 9.16pm and 9.20pm. It is also undisputed that Lee had made these calls using the handphone that was later marked as exhibit A11. In his evidence-in-chief, Yap testified that, in the call made to him at 9.20pm, Lee told him to leave one block of cannabis in the car as one of those two blocks of cannabis that had been delivered was an oversupply because of a mistake, and that the excess block of cannabis was to be “return[ed]” later to someone at either Bendemeer or Kallang.

During cross-examination, Yap initially testified that these instructions were given by Lee over a call exchanged after he had arrived at the carpark of the Hotel, but later said that these instructions would have been given by Lee before he arrived at the Hotel. Putting aside the timing at which those instructions were given, the gist of Yap’s testimony during cross-examination was consistent with his evidence-in-chief, which is that Lee had informed him that one of the cannabis blocks had been mistakenly delivered and that Lee wanted him to “return” the block of cannabis later by delivering it to someone at either Bendemeer or Kallang.

For completeness, I note that in Yap’s investigation statement recorded on 11 July 2018, he had mentioned that Lee had told him to leave one block of cannabis in the car because it was to be “deliver[ed]” to “another person”, whose “location was either at Bendemeer or Kallang area”. In his investigation statement, Yap makes no mention of the fact that Lee had informed him about a mistaken delivery of an additional block of cannabis. When pressed on why he had used the word “deliver” rather than “return” in his investigation statement, Yap could not explain why he had used the former but explained that he meant to say in the investigation statement that the cannabis be “return[ed]” to this other person.

While in the Room, after Lee had weighed the Three Bundles, Yap recalled that Lee was talking to someone on the phone. Yap testified that he did not know who Lee was speaking with and did not hear the conversation that Lee was having over the phone. Soon thereafter, the CNB officers forcibly entered the Room.

The law on trafficking

Section 5 of the MDA provides as follows:

“Traffic” is defined in s 2(1) of the MDA as:

In order to make out the charge of trafficking under s 5(1)(a) of the MDA, it is well established that the Prosecution must prove that the accused (see Muhammad Ridzuan bin Md Ali v Public Prosecutor and other matters [2014] 3 SLR 721 at [59]):

(a) was in possession of a controlled drug, which may be proved or presumed pursuant to s 18(1) of the MDA, or deemed pursuant to s 18(4) of the MDA;

(b) had knowledge of the nature of the controlled drug, which may be proved or presumed pursuant to s 18(2) of the MDA; and

(c) possessed the controlled drug for the purpose of trafficking which was not authorised, which may either be proved or presumed pursuant to s 17 of the MDA.

The issues

From my review of the evidence and the closing submissions, both written and oral, the issues that I have to decide are quite narrowly defined.

In the case of Lee, although his contention is to the effect that the quantity of drugs which he received was more than what he had expected, he does not dispute that he knew that each of the Three Bundles found in the Room were one-pound and not half-pound packets of heroin. This is because his evidence is that he knew, from the appearance of those bundles after they had been unwrapped, that they were one-pound packets, which was confirmed after he weighed them (see [23] above). Therefore, while Lee appears to take issue with the quantity of the transacted drugs, his defence is not about his knowledge of the quantity of transacted drugs, which is otherwise an issue going to the question of possession (see Muhammad Abdul Hadi bin Haron v Public Prosecutor and another appeal [2021] 1 SLR 537 at [28]). In fact, given Lee’s knowledge that the Three Bundles were each one-pound packets of heroin, there can be no dispute that Lee was in “knowing possession” of the entire quantity of heroin contained in the Three Bundles, given that he knew that he had physical possession, custody or control of those three one-pound packets (see Adili Chibuike Ejike v Public Prosecutor [2019] 2 SLR 254 (“Adili”) at [31], [34] and [40]). Instead, Lee’s defence concerns what he intended to do with the excess quantity of drugs which he says had been mistakenly delivered, and specifically, that he intended that they be returned to Kelvin. In other words, his defence is that he only intended to possess half the amount of diamorphine found in his possession for the purpose of trafficking because he intended that the excess amount be returned to Kelvin.

I should also add that there is no dispute that Lee knew that the Three Bundles contained heroin. This follows from his evidence that the drugs which he had ordered from Kelvin, and which he had instructed Yap to collect at 28/30 Gul Avenue and deliver to the Room in the Hotel, consisted of heroin and cannabis (see [20] above).

Given that Lee does not dispute possession of or knowledge of the nature of the Three Bundles, I find that both these elements of the trafficking charge under s 5(1)(a) read with s 5(2) of the MDA have been proven as against Lee. As such, the Prosecution can rely on (as they seek to) the presumption of trafficking in s 17(c) of the MDA (see Zainal bin Hamad v Public Prosecutor and another appeal [2018] 2 SLR 1119 at [49]). The only issue before the court in relation to the charge against Lee, therefore, is whether he has rebutted the presumption that he intended to traffic in not less than 24.21g of diamorphine. Given Lee’s defence that he had been oversupplied by mistake amounts of heroin equivalent to that found in three half-pound packets, the question before the court is whether Lee has shown, on a balance of probabilities, that he only intended to traffic in not less than 12.105g of the amount of diamorphine in his possession at the time of his arrest. This, in turn, depends on whether Lee can show that he intended to order only three half-pound packets of heroin from his supplier, but was instead supplied with three one-pound packets.

As for Yap, it is undisputed, and it is also his evidence at the trial that he had agreed to collect drugs from 28/30 Gul Avenue at Lee’s instructions and deliver them to Lee at the Room in the Hotel, and that the Three Bundles were part of these drugs (see [6] and [25] above). There is therefore no question that Yap had “knowing possession” of the Three Bundles, in that Yap knew that he had physical possession, custody or control of “the thing that later turned out to be a drug” by virtue of him collecting those drugs from the unidentified male motorcyclist at 28/30 Gul Avenue (see Adili at [40]). It is therefore unnecessary for the Prosecution to rely on the presumption of possession in s 18(1)(a) of the MDA, as it has otherwise done (see [18] above). Since Yap is proven to have had the Three Bundles in his possession, he is presumed by s 18(2) of the MDA to have known the nature of what was contained in the Three Bundles.

In his evidence, Yap claimed that he did not know that the Three Bundles which he had collected from 28/30 Gul Avenue actually contained heroin, until they were unwrapped in the Room (see [26] above). However, a review of Yap’s closing submissions shows that he does not actually contend that he has successfully rebutted the presumption under s 18(2) of the MDA that he knew the nature of the drugs in the Three Bundles. Instead, the main point raised by Yap in those submissions is that his role was confined to that of a courier in respect of the Three Bundles, which is a point that does not appear to be challenged by the Prosecution. This is an issue that I will return to in the course of this judgment. I turn first to consider the case against Lee.

Whether Lee ordered half-pound packets of heroin

Lee argues that he has rebutted the presumption under s 17(c) of the MDA that he intended to traffic in the Three Bundles that had been proven to be in his possession. This is because of his evidence that he only ordered three half-pound packets of heroin, and not three one-pound packets. The gist of his evidence in this regard is as follows.

Lee’s evidence

Lee gave evidence that he had ordered from Kelvin one “buku” of “ganja”, which is a reference to cannabis. A “buku” is the term Lee used to refer to one kilogram of cannabis. Lee also ordered three “halves” of heroin. According to him, three “halves” meant three half-pound packets of heroin. He testified that he had not ordered three “batus”, which would be three one-pound packets of heroin.

Lee explained that he was not planning to “take” so much drugs for sale to his customers because he was going to plead guilty in the State Courts on 10 July 2018 to charges of consuming controlled drugs, whereupon he would be sentenced to imprisonment for at least five years. The date of his plead guilty mention was about a week away from when he made this order of drugs, which was on 4 July 2018. Lee testified that this was going to be his “last order”.

As mentioned earlier, it is undisputed that Lee had given the Cash (amounting to $16,000) to Yap, which Yap was to hand over to the unidentified male motorcyclist at 28/30 Gul Avenue in exchange for the drugs (see [7]-[8] above). In his evidence-in-chief, Lee explained that half of that amount, ie, $8,000, was to pay what he owed his drug supplier, Kelvin, for a previous delivery of drugs (which he described as the “previous order”), while the remaining $8,000 was to pay Kelvin for the present order of one “buku” of cannabis and three “halves” of heroin.

According to Lee, after Yap had collected the drugs, Yap called (while still at 28/30 Gul Avenue) to tell him that there were three bundles wrapped in newspaper and two “bukus” of “ganja”. Lee said that he then called Kelvin to ask why he had been given two “bukus” of cannabis, when he only ordered one “buku”. Kelvin told him that he would make arrangements to pick up the one extra cannabis block at the Bendemeer or Kallang area later. In the meantime, Lee asked Yap to bring all the drugs back to the Hotel. As mentioned earlier, it is not in dispute that this call to Kelvin was made by Lee using Phone A9 (see [23] above).

When Yap arrived at the Room, Lee claims that, once he saw the Three Bundles after they had been unwrapped, he recognised immediately that they were one-pound packets, and not half-pound packets. This was based on his experience. Lee then weighed each of the bundles, which confirmed that they were one-pound packets. He testified that he called Kelvin again, and told him that he had been given three “batus” instead of three “halves”. Kelvin told him that arrangements would be made for “the change”, namely the exchange of the three one-pound packets for three half-pound packets. Lee’s evidence is that this call was made using Phone A9 (see [23] above). Lee’s evidence is that, in the period of time after he was placed under arrest by the CNB officers (who forcibly entered the Room shortly after his call with Kelvin), he was waiting for Kelvin’s phone call back with details of the arrangements for the exchange (and also for the return of the additional block of cannabis). In his evidence-in-chief, Lee points to a photo taken by the officers from the CNB Forensic Response Team (“FORT”) of one of his handphones, that was later marked as exhibit F2 (“Phone F2”). This photo showed that there was a missed call on Phone F2. For context, Phone F2 had been seized when Lee was arrested, and the said photo was taken at 2.56pm on 5 July 2018 (the time on Phone F2 was displayed as 14:56h in the photo). Lee’s evidence is that he thinks that the missed call on Phone F2 “might be” from Kelvin who was calling about the arrangements for the exchange.

The Prosecution submits that Lee has failed to discharge his evidential burden of showing that he intended to traffic in only half the quantity of heroin in his possession (ie, half of the heroin contained in the Three Bundles amounting to not less than 12.105g). It argues that the court should reject Lee’s evidence about the wrong amount of heroin being delivered to him as “nothing more than a self-serving fiction that rests entirely on [Lee’s] bare assertion”. It contends that Lee has failed to provide a consistent account of this claim that he had received an oversupply of heroin, and also that his evidence in this regard lacks credibility.

Assessment of Lee’s evidence

I had several difficulties with Lee’s claim that he had been mistakenly oversupplied with drugs.

Lee’s lack of credibility

The first and main difficulty is that this version of events was raised late in the day. It is not in dispute that Lee never mentioned anything about being oversupplied with drugs in any of his statements, whether his cautioned statement or his investigation statements given to the CNB officers. Instead, the position that Lee had initially taken was quite dramatically different. His case then was that the Three Bundles did not belong to him. Instead, he claimed that they belonged to Yap, whom he alleged was his heroin supplier. In other words, he pushed all the blame to Yap.

(a) In his cautioned statement recorded on 5 July 2018, Lee said, “I only lend my hotel room to [Yap] to pack the drugs only. The main thing is I lend the hotel room to [Yap] only”.

(b) In his investigation statements recorded on 15 July 2018 and 24 August 2018, Lee’s position was as follows: (i) he was a heroin addict who consumed about 7.5g of heroin a day (and about 75 to 100g of heroin a week); (ii) Yap was his supplier of heroin and every week he purchases about 10 to 15 packets of heroin from Yap, who will also deliver the heroin to him; (iii) the heroin purchased from Yap was part for consumption and part for sale; (iv) on 4 July 2018, Yap was making a delivery of heroin to him and Yap had requested to use the Room to pack the heroin; and (v) the Three Bundles and one cannabis block found in the Room all belonged to Yap.

At trial, Lee testified that these allegations in his investigation statements about Yap being his heroin supplier were actually false. He tried to explain that, when he was arrested, his “first instinct” was not to admit to guilt, and that is why he lied in his statements. He also explained that he decided to “push everything” (ie, all of the blame) to Yap because he thought that, since the CNB already knew of Yap’s involvement (which explained why they followed Yap to the Room), Yap would be in trouble even if he admitted to having bought three half-pound packets of heroin for sale to his customers.

Before a cautioned statement is recorded under s 23 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”), the accused person is served with a notice informing him that if he holds back any fact that he intends to rely on in his defence till he goes to court, his evidence may be less likely to be believed (see s 23(1) of the CPC). Section 261(1) of the CPC allows the court to draw adverse inferences from the accused person’s failure to mention such material facts when he has been subject to this caution (see also Kwek Seow Hock v Public Prosecutor [2011] 3 SLR 157 (“Kwek Seow Hock”) at [13]). Thus, while the accused person is not required to minutely detail his defence, a material fact relied on at trial must be stated in the cautioned statement or else it is less likely to be believed if it is raised at trial for the first time (see Roshdi v Public Prosecutor [1994] 3 SLR(R) 1 at [21]).

Lee’s claim that he had been oversupplied heroin by mistake was only raised for the first time in his Case for Defence (“the CFD”) filed on 14 June 2021. In Lee’s cautioned statement, not only did Lee omit to mention this exculpatory claim, namely, that he had been oversupplied heroin by mistake, he lied that Yap was his supplier of drugs and that the Three Bundles belonged to Yap (see [48] above). Lee kept up with this lie in his investigation statements, which were recorded after his cautioned statement was taken. Lee’s evidence is that he had lied in these statements to push all the blame to Yap (see [49] above). The import of this is that Lee believed that the CNB did not yet know of his involvement in connection with the Three Bundles, and so he lied to distance himself from the Three Bundles. Surely, these lies must have been told out of Lee’s realisation that, if he had told the truth to the CNB officers, that would link him to the charge relating to the Three Bundles (see Ilechukwu Uchechukwu Chukwudi v Public Prosecutor [2021] 1 SLR 67 at [152]-[156]). However, for present purposes, I put aside the issue of whether Lee’s lies are corroborative of other evidence of his guilt because the inquiry before the court is whether Lee has discharged his legal burden to rebut the presumption of trafficking in s 17(c). In other words, the court is assessing the sufficiency of Lee’s own evidence, not the evidence against Lee (in respect of which corroborative evidence would be relevant). In that regard, it is established law that a lie that is not corroborative of guilt can still be relied upon by the court to make a finding that an accused person is not creditworthy, even if the accused person had a valid explanation for lying (see Public Prosecutor v Ilechukwu Uchechukwu Chukwudi [2015] SGCA 33 at [62]). In my judgment, Lee’s failure to mention his exculpatory claim when his cautioned statement came to be recorded, and the lie which he made in that statement and kept up with in his investigation statements, detrimentally affect his credibility and allows the court to draw an adverse inference that the version of events which he testified on is not the truth.

Putting that aside, another difficulty I find with Lee’s exculpatory claim about having been oversupplied heroin by mistake is his inability to maintain a consistent account of this claim. In the CFD, Lee admitted at paragraph 2 that it was he who instructed Yap to collect drugs that he (Lee) had ordered from his Malaysian drug supplier, Kelvin. At paragraph 5 of the CFD, it was stated that Lee “in fact ordered” from his Malaysian supplier “3 bundles of heroin of half-a-pound each and one packet of one kilogram of cannabis”. Then at paragraph 7 of the CFD, it was stated that:

Paragraph 7 of the CFD was subsequently amended by way of Case for Defence (Amendment No 1) (“the ACFD”) filed on 6 July 2021. The amended paragraph 7 read:

As would be clear, paragraph 7 of the ACFD was substantially different from paragraph 7 of the CFD. In the CFD, Lee’s case was that, as far as the Three Bundles were concerned, he did not even have a chance to determine their weight before the CNB officers entered the Room, and thus the natural inference to be drawn is that he did not even know, at the time when he was arrested, that there had been an oversupply of heroin. However, in paragraph 7 of the ACFD, Lee’s case is that he actually weighed the Three Bundles and discovered that they were in excess of the quantities that he had ordered from Kelvin, before the CNB officers entered the Room. In other words, he knew, at the time when he was arrested, that there had been an oversupply of heroin.

When confronted with this inconsistency under cross-examination, Lee tried to explain that either his counsel had made a mistake when the CFD was prepared and filed, or he had made a mistake when giving instructions to his counsel in the preparation of the CFD. In re-examination, Lee further elaborated that, when the CFD was prepared and filed, the facts of the case were “not very fresh” in his mind. Under further cross-examination by the Deputy Public Prosecutor (“DPP”), Lee’s evidence is that he “might” have given incorrect instructions to his counsel, but it also “might” be that his counsel had misheard him. After taking advice from his counsel, Lee declined to waive legal privilege over the attendance notes that had been prepared by his counsel when taking Lee’s instructions for the preparation of the CFD and the ACFD.

From my analysis of this part of the evidence, I was quite unconvinced by Lee’s explanation for the varying accounts in the CFD and the ACFD concerning whether he had weighed the Three Bundles before the CNB officers entered the Room and arrested him. I am unable to understand how the facts of the case could have been more “fresh” in his mind at the time the ACFD came to be prepared, as compared to when the CFD was prepared. As for Lee’s other explanation that he might have given incorrect instructions to his counsel, or that his counsel might have misheard his instructions, this has not been substantiated by any evidence other than Lee’s own assertion. Since Lee had declined to waive privilege over the attendance notes prepared by his counsel when taking his instructions for the preparation of the CFD and the ACFD, there is no way for the court to ascertain whether there is any factual basis for his explanation that there might have been some mistake by either him or his counsel when the CFD was being prepared.

There is a further problem with the consistency of Lee’s account of being oversupplied with heroin. In the ACFD, as I have highlighted earlier, Lee claimed that he had discovered that he had been given too much heroin upon weighing the Three Bundles in the Room (see [53] above). However, in his oral evidence, Lee stated more than once that, once the newspaper wrapping of the Three Bundles were removed, he knew straight away - in other words, even before any weighing of the Three Bundles took place - that he had been given more heroin than what he had ordered. He recognised immediately that each of the Three Bundles were one-pound packets of heroin based on his “experience” (see [45] above). As would be clear, this is again quite different from what was stated in the ACFD.

Lee’s shifting accounts about his exculpatory claim (from the time of the CFD, then the ACFD, and finally during his oral testimony) undermines his credibility as a witness. In my view, Lee had provided the additional information in the ACFD and in his oral evidence - namely, that he had weighed the Three Bundles and phoned Kelvin, and that he also recognised upon sighting the Three Bundles unwrapped that they were one-pound packets of heroin - in order to make his defence about having been oversupplied with heroin appear more believable. In my judgment, Lee’s shifting account, the fact that he had raised this exculpatory claim only late in the day, and the lie which he made in his cautioned statement and kept up with in his investigation statements, substantially affect the court’s assessment of the credibility of his evidence about having been oversupplied by Kelvin with heroin.

Lee’s evidence that he had called Kelvin to inform him about the oversupply of heroin

I come now to Lee’s evidence that he had called his drug supplier, Kelvin, and the evidence of a missed call on Phone F2, which Lee relies on in support of his defence (see [23] and [45] above). To recap, Lee’s evidence is that, after he had weighed the Three Bundles and confirmed what he already knew, ie, that he had been wrongly supplied with three one-pound packets of heroin, he made a phone call to Kelvin just before the CNB officers forcibly entered the Room. The Call Trace Report for Phone A9 indeed shows a phone call being made to a Malaysian number (which, as it is undisputed, is Kelvin’s number) at 9.59pm, and which lasted 3 minutes and 41 seconds. Lee’s evidence is that this 9.59pm call was the phone call that he made to Kelvin. Lee gave evidence that, after this call at 9.59pm was made, he was expecting a call back from Kelvin about the arrangements for the exchange of the Three Bundles (and the return of the additional block of cannabis), but he was arrested before he received any call (see [45] above). Lee also points to evidence of a missed call shown on Phone F2 (see also [45] above). He refers to the photo of Phone F2 that was taken by CNB FORT officers on 5 July 2018 at 2.56pm that was entered into evidence, which shows a missed call on this phone (see [45] above). Lee believes that the missed call on Phone F2 was from Kelvin who was calling him about the arrangements in relation to the exchange of the Three Bundles.

The Prosecution does not dispute that Lee made the 9.59pm call to Kelvin. Instead, it only submits that Lee’s version of events - namely, that the Three Bundles had been unwrapped and weighed before Lee called Kelvin at 9.59pm - is improbable because Lee could not have done all of that in the short period of time after Yap entered the Room and before the call to Kelvin was made. As I explain later in this judgment, I have some difficulties with that submission and do not accept it (see [79] below). For now, it suffices for me to state that, after reviewing the relevant evidence in relation to Lee’s 9.59pm phone call to Kelvin and the missed call on Phone F2 that Lee refers to, I am unable to agree with Lee that these support his claim that he had been oversupplied with heroin on 4 July 2018.

First, in relation to Lee’s call to Kelvin at 9.59pm on Phone A9, save for Lee’s bare assertion, there is no other evidence that the call was about Lee informing Kelvin that he had been oversupplied with heroin. As mentioned earlier, it is not in dispute that Lee used Phone A9 to communicate with Kelvin on the day of his arrest (see [23] above). Lee also gave evidence that he would use messaging applications like Telegram and WhatsApp to send messages to Kelvin about the arrangements to collect drugs, including the location and the time, although he testified that he could not remember whether he used those messaging applications on Phone A9 or Phone F2. Whichever is the case, an examination of the contents of Phone A9 is likely to have shed light on the veracity or otherwise of Lee’s claim that he had been oversupplied with drugs and that he had been communicating with Kelvin about that issue. After all, according to Lee, immediately after he learnt from Yap (who called him after collecting the drugs at 28/30 Gul Avenue) that there had been an extra “buku” of cannabis, he called Kelvin straight away to ask him about the oversupply of cannabis. As such, there was a period of at least 30 minutes before Yap arrived at the Room when Lee and Kelvin presumably would have been in some form of communication about the oversupply of cannabis. Further, according to Lee, after Yap arrived at the Room and unwrapped the Three Bundles, upon which he discovered that he had also been oversupplied with heroin, he called Kelvin again (this was the call at 9.59pm). Similarly, if Lee’s claim about having been oversupplied with heroin and cannabis were true, one can expect that messages concerning the alleged exchange of the Three Bundles and the return of the additional block of cannabis would have been sent by Kelvin to Lee after the call at 9.59pm. In my view, the contents of Phone A9 would likely be able to shed some light as to the truth or falsity of Lee’s claim that he had been oversupplied with drugs.

What is significant, however, is Lee’s attempts to downplay the importance and relevance of Phone A9 to this case. When Lee was questioned by the Investigating Officer Deputy Superintendent Taufiq Abdul Azim (“DSP Taufiq”) about Phone A9 during the recording of his investigation statement, Lee said: “I cannot remember the telephone number for this handphone. I seldom use this handphone. The handphone is my old phone” [emphasis added]. In light of how Phone A9 had been used by Lee to call Kelvin on 4 July 2018, what Lee had said in his statement is clearly untrue. During cross-examination, Lee accepted that he downplayed the significance of Phone A9 in his statements recorded by DSP Taufiq. Also, when asked by DSP Taufiq for the password to unlock Phone A9, Lee’s answer was “elzd”. It is not in dispute that this was an incorrect password that could not be used to unlock Phone A9. Lee’s evidence is that he thought that he had provided the correct password to DSP Taufiq, and he did not know that “elzd” could not be used to unlock Phone A9 until the time of the trial. In the course of the trial, the Prosecution facilitated a request by counsel for Lee to attempt to unlock Phone A9 using the various passwords provided by Lee. However, none of those passwords provided by Lee could unlock Phone A9 and counsel informed the court that Lee’s instructions is that he could not remember any other password for Phone A9. Lee thus never gave the correct password to allow the CNB officers to unlock Phone A9, and the CNB officers have never been able to examine the contents of the messages sent and received on Phone A9.

While I accept that Lee may no longer remember the password to Phone A9 at the time of the trial, I am unable to accept that he would have forgotten the correct password to Phone A9 by the time his first investigation statement was given on 11 July 2018, about a week after his arrest. I cannot accept that Lee would not have remembered the password on Phone A9 just a week after using that device. In my judgment, Lee’s failure to give the correct password for Phone A9 to DSP Taufiq had been deliberate. Perhaps the reason for Lee’s reluctance to reveal the correct password to DSP Taufiq at that time was because a review of his communications with Kelvin would likely show his exact dealings with Kelvin and that it was Kelvin who was his supplier of drugs and not Yap. That would have punctured his claim then that Yap was his supplier of heroin.

Lee’s evidence is that he might also have used Phone F2 to communicate with Kelvin. That is why he believes that the missed call received on Phone F2 was the call from Kelvin about the arrangements for the “exchange” of the Three Bundles. I should add that the contents of Phone F2 are also relevant because Lee gave evidence that he communicated with Yap about the collection of drugs using mainly Phone F2.

DSP Taufiq testified that, on 5 July 2018, whilst he and Lee were both in the CNB Exhibit Management Room where the case exhibits were being photographed, he had asked Lee for the password to unlock Phone F2. DSP Taufiq recalled Lee as saying that he could not remember the password to Phone F2. DSP Taufiq testified that he asked Lee again during the recording of one of his investigation statements for the password for F2, but Lee maintained that he could not remember the password. In any event, the CNB FORT officers could not extract any data from Phone F2 because it could not be unlocked. They switched off Phone F2 and handed it back to DSP Taufiq. DSP Taufiq testified that he switched on the phone again on 25 July 2018 in an attempt to see if the passwords provided by Lee for his other phones could unlock Phone F2. He was shocked to see that, immediately after Phone F2 was switched on, it was displayed on the screen that the data on Phone F2 was being automatically erased. This went on for a while before the phone then restarted itself in the “factory settings” mode. A report prepared by the CNB FORT officers pursuant to a forensic examination of Phone F2 conducted on 14 February 2019 records that Phone F2 has been restored to factory settings and no information could be extracted from it. In other words, there no longer remains any data on Phone F2 at all.

There were two SIM cards which Lee used for Phone F2. One SIM card had the number 85817178, and the other had the number 98940344. The Call Trace Reports for these two SIM cards used on Phone F2 show that there were no incoming calls received on 4 July 2018. It is common ground that the Call Trace Reports do not show records of missed calls. As such, it is not possible to determine from which number the missed call on Phone F2 had been made.

Given the state of the evidence, I cannot agree with the submission by the Defence that Lee has been able to show that the missed call received on Phone F2 is likely to be from Kelvin, who was calling about the arrangements for the exchange of the three one-pound packets of heroin. There is simply not enough evidence for the court to come to such a finding. Aside from Lee’s asserted belief, there is no evidence that the missed call on Phone F2 had been made by Kelvin. The contents of Phone F2 are also unknown because Lee never provided the password to unlock it and it has since been reset to “factory settings”. I also reiterate that there is nothing other than Lee’s own bare assertion that his call to Kelvin on Phone A9 at 9.59pm was about the oversupply of heroin. The record of the 9.59pm call on Phone A9 in and of itself does not provide support to Lee’s claim and its evidential value is only as good as Lee’s own bare assertion. The contents of Phone A9, which in my view would likely have been able to shed some light on the truth or falsity of Lee’s claim, are unknown as the phone remains locked. For reasons best known to himself, Lee did not provide the correct password to unlock Phone A9 during the investigation process.

Yap’s evidence does not support Lee’s defence

Counsel for Lee also points to the evidence of Yap as being supportive of the case that Lee had been oversupplied with drugs. To be clear, Yap’s evidence in this regard was limited to the alleged oversupply of cannabis. Yap had given evidence that he was told by Lee to leave one “buku” of cannabis in the car because this had been mistakenly delivered and had to be later sent to somewhere in Bendemeer or Kallang. Lee argues that this corroborates his claim that he had been given an extra “buku” of cannabis by mistake.

As for the alleged oversupply of heroin, Yap could not shed very much light on this claim. This is because Yap’s evidence is that, after he returned to the Room with the drugs and unwrapped the Three Bundles before they were weighed, he does not recall Lee saying anything to the effect that the heroin bundles looked too big or expressing any shock or surprise that the heroin bundles were bigger than what he had ordered. Yap also does not recall Lee mentioning anything in the Room about having been given more heroin than what he ordered, after Lee had weighed each of the Three Bundles. While Yap testified that he saw Lee on the phone with someone after the latter had weighed the Three Bundles, Yap’s evidence is that he did not know who Lee was talking to and also did not hear the conversation that Lee was having over the phone (see [30] above). He was thus not able to say that Lee was speaking on the phone with his drug supplier about being oversupplied with heroin.

Nonetheless, Lee submits that the oversupply of cannabis, which Yap can corroborate, is consistent with his case that Kelvin had got his order for drugs wrong, and had given him double the amount of drugs that he had ordered. Hence, Lee had not only gotten twice the amount of cannabis but also twice the amount of heroin that he ordered.

In my judgment, Lee’s submission does not get off the ground at all. This is because, when pressed by the DPP during cross-examination, Yap conceded, quite unequivocally, that his earlier oral evidence that the “buku” of cannabis that he had left in the car was to be returned to someone in Bendemeer or Kallang later was a lie. He accepted that the “buku” of cannabis was his (Yap’s), and that Lee had told him to leave it in the car for that reason. This concession completely contradicts Yap’s earlier assertion that Lee had told him that there had been an oversupply of cannabis and that one “buku” of cannabis was to be returned to the supplier. In my judgment, it is quite clear that Yap had tailored his oral evidence about leaving one “buku” of cannabis in the car to be redelivered to the supplier in a misguided attempt to help Lee in his defence. For completeness, I should add that Yap also conceded during cross-examination that he had lied in his investigation statement about Lee instructing him to leave one block of cannabis in his car for delivery to someone in Bendemeer to Kallang (see [29] above). Yap accepted that he made up that lie then in order to distance himself from that block of cannabis (which was actually his) and push the blame to Lee.

Lee argues that Yap’s evidence nonetheless supports his case that he had been oversupplied with heroin because Yap testified that Lee had weighed the Three Bundles and then proceeded to make a phone call. I do not see how this evidence is of much assistance to Lee’s defence. As mentioned earlier, Yap’s evidence is that he did not hear Lee say anything in the Room to the effect that the Three Bundles looked too big. Yap is also unable to recall whether Lee expressed any surprise about the Three Bundles being bigger than what he had ordered when they were were unwrapped (see [69] above). Not only that, Yap could not give any evidence as to who Lee had phoned and what that phone conversation was about (see [69] above). It is also Yap’s evidence that Lee never told him that there had been an oversupply of heroin or anything about exchanging the three one-pound packets of heroin. I have already pointed out earlier that the Prosecution does not dispute that Lee had spoken for over three minutes on the phone with his drug supplier, Kelvin, before the CNB officers forcibly entered the Room (see [60] above). However, that conversation could have been about anything. There is simply insufficient evidence to show that Lee was speaking to Kelvin about an oversupply of heroin during that call.

Price of the drugs

The Prosecution also submits that the Cash (amounting to $16,000) that Lee had handed over to Yap for payment for the drugs is consistent with its case that Lee had in fact ordered three one-pound packets or “batus” of heroin, and two “bukus” of cannabis. In this regard, the Prosecution relies on the evidence of Inspector Tan Keng Chuan (“Insp Tan”), who is with the CNB’s Intelligence Division.

Under cross-examination, Insp Tan agreed that it was possible that, in 2018, Malaysia-based drug suppliers might have charged more than $3,600 for one pound of heroin, and more than $2,600 for one kilogram of cannabis. He also explained that his opinion about the prices of heroin and cannabis charged by Malaysia-based suppliers is based on information gathered by the CNB from arrest cases, accused persons and informants.

At trial, it initially appeared to me that counsel for Lee might be challenging the validity and bases of Insp Tan’s opinions about the prices charged by Malaysia-based suppliers for heroin and cannabis. It seemed that Lee might be taking the position that the prices charged by Kelvin for heroin and cannabis were far higher than Insp Tan’s estimates. However, when Lee took the stand and gave evidence, he sought to justify the $16,000 he paid by explaining that he paid $8,000 for his order of three “halves” of heroin and one “buku” of cannabis. The other $8,000 was to pay Kelvin for his previous delivery of drugs (see [43] above). In other words, Lee was not contesting Insp Tan’s estimates for the prices charged by Malaysia-based suppliers for heroin and cannabis. A review of Lee’s closing submissions confirmed that Lee was taking the point that he paid only $8,000 for his order of drugs, and the other $8,000 was for a previous supply of drugs which was unpaid as of 4 July 2018.

The Prosecution attacks this part of Lee’s evidence as being inconsistent. This is because, under cross-examination by the DPP, Lee’s explanation for the $16,000 he paid changed. He claimed that $8,000 was for the current order, but the remaining $8,000 was not just for a previous order he made, but also for repaying Kelvin for earlier orders that remained unpaid. Lee’s evidence is that what he owed Kelvin from those earlier orders were rolled over and so the remaining $8,000 was used to repay what he had owed Kelvin. In light of his changing evidence, my view is that it is incumbent on Lee to provide some other evidence, whether in the form of messages exchanged with Kelvin or something else, to substantiate his bare assertion that the full $16,000 was not for payment of the delivery of drugs that were received on 4 July 2018. After all, as I mentioned, Lee does not take issue with Insp Tan’s estimates of the prices charged by Malaysia-based suppliers for heroin and cannabis, and the amount of $16,000 is within the range of prices for the delivered quantity of three one-pound packets of heroin and two one-kilogram blocks of cannabis. However, Lee provided no evidence whatsoever to support his bare assertion about the amount of $8,000 of the Cash being for an earlier order or earlier orders of drugs that remained unpaid.

The same difficulty afflicts Lee’s evidence as to why he claimed to have ordered three “halves” instead of three “batus” of heroin. This issue had arisen because of Insp Tan’s evidence that Malaysia-based drug suppliers typically transact in one-pound packets of heroin rather than half-pound packets. Under cross-examination, Lee explained that he had ordered three “halves” at $2,000 each because he had three customers who each wanted half-pound packets. He therefore asked his Malaysia-based supplier to pre-pack three half-pound packets of heroin which he could then sell directly to his customers. Lee said that these three customers were “King”, “Low” and “Heng”. Lee says that he saved King’s contact on the handphone marked exhibit A11, and that he had also contacted King on 4 July 2018 using that phone. However, when it was pointed to him that the Call Trace Report of the number linked to that phone shows that no calls had been exchanged between him and King on 4 July 2018, Lee then said that these records “might be in my another [sic] handphone”. Quite conveniently, Lee then said that the contact details for these three customers could be found in Phone A9, which is one of the two phones that could not be unlocked during the investigation process. In any case, there was no evidence before the court of calls or messages that Lee exchanged with any of these three customers on 4 July 2018 on Lee’s other phones. As mentioned earlier, it is my view that the onus is on Lee to provide some supporting evidence that his claim that he had ordered three “halves” of heroin instead of three “batus” is credible. The best way to do this is by reference to messages that he might have exchanged with his three customers about their orders for half-pound packets of heroin. Given that Lee has not provided the correct password to allow Phone A9 to be unlocked, there was an absence of any such supporting evidence of the messages that Lee might have exchanged with these customers, King, Low and Heng.

Lee has not rebutted the presumption of trafficking in s 17(c) of the MDA

Before concluding this part of the judgment, I ought to deal with one other submission raised by the Prosecution. It argues that it is highly improbable that Lee would have weighed the drugs on two different weighing scales (which Lee claims he did during cross-examination) because there was insufficient time between the point when Yap entered the Room to the time when Lee phoned Kelvin at 9.59pm for Lee to have done so. The Prosecution argues that, on the evidence, it has established a “tight timeline” from the time Yap reached the Room to the time Lee phoned Kelvin and started their over three-minute call. That showed that Lee only had a minute or so to weigh the Three Bundles and the cannabis block. As such, the Prosecution argues that the court should find that Lee did not weigh the drugs in the manner he says he did, and thus Lee’s call to Kelvin at 9.59pm could not have been about him being oversupplied with heroin.

First of all, I do not find that it is open for the Prosecution to make any submission about Lee not having weighed the drugs. It is an agreed fact that Lee did weigh the three bundles of heroin and one block of cannabis on a weighing scale in the Room before the CNB officers forcibly entered the Room (see [10] above). Further, it was the Prosecution’s own case against Lee that he had weighed the drugs on two different weighing scales because he wanted to make sure that the weight of the drugs he received were accurate. During cross-examination, Lee initially said that he only weighed the drugs once, but later agreed with the DPP that he would have weighed the drugs twice using two weighing scales.

In any event, I do not find this submission by the Prosecution to be persuasive. If it were true, as Lee claimed, that he recognised straight away that the Three Bundles were one-pound packets and not half-pound packets, I do not think that it would have taken him very long at all to confirm his suspicions by placing the Three Bundles on the electronic weighing scales one after the other, even if he weighed all the packets twice. After all, he was simply confirming that they were not half-pound packets, and he was not recording down their precise weights. Also, as Lee explained, he might have already phoned Kelvin while the weighing was in progress.

In order for Lee to rebut the presumption of trafficking under s 17(c) of the MDA, the legal burden is on him to prove, on a balance of probabilities, the existence of facts which show that he was not in possession of the Three Bundles for the purpose of trafficking, namely, that he had only ordered three half-pound packets of heroin, instead of three one-pound packets, and that the Three Bundles came to be delivered to him only by mistake and were to be exchanged with Kelvin for three half-pound packets (see Roshdi bin Abdullah Altway v Public Prosecutor and another matter [2022] 1 SLR 535 at [73]). On the evidence as a whole, I am not satisfied that Lee has done so. Lee’s claim of being oversupplied with drugs was only raised late in the day, and he has not been able to maintain a consistent account of how he learnt that he was oversupplied with drugs. It is also externally inconsistent with Yap’s evidence which, quite clearly, does not support Lee’s claim about what had happened. It is also a claim that rests entirely on Lee’s bare assertion, and is not supported by any evidence, such as messages which Lee might have exchanged either with his customers who allegedly ordered half-pound packets of heroin, or with Kelvin who allegedly had gotten Lee’s order wrong. In short, I do not find Lee’s evidence that he only intended to traffic in three “halves” of heroin to be credible. In my judgment, on the evidence before me, Lee has failed to rebut the presumption in s 17(c) of the MDA that he was in possession of the Three Bundles, which contained not less than 24.21g of diamorphine, for the purpose of trafficking. Accordingly, I find that the elements of the trafficking charge under s 5(1)(a) read with s 5(2) of the MDA against Lee have been proven beyond reasonable doubt, and I convict him accordingly.

Yap’s role in the transaction

As mentioned earlier, Yap’s evidence at trial is that he had agreed to collect drugs for Lee, but he did not know what type of drugs he would be collecting from 28/30 Gul Avenue, nor the quantity of those drugs. Yap testified that, when the drugs were thrown into the car by the unidentified male motorcyclist, he knew from sight that there were two “bukus” of cannabis. After all, those two blocks of cannabis were wrapped in transparent packaging. However, Yap insisted that he did not know that the Three Bundles (each of which had been wrapped with newspaper) that had been thrown into the car were heroin, until they were unwrapped in the Room. Yap accepted that, while he was still in the car at 28/30 Gul Avenue, he physically handled the Three Bundles when he placed them in the green bag that Lee had given him to store the drugs collected. Yap also agreed that he had felt that the Three Bundles had a lumpy, cuboid texture when he handled them. However, Yap denied that he knew from the lumpy, cuboid texture of the Three Bundles that they contained heroin.

To rebut the presumption of knowledge under s 18(2) of the MDA, the burden is on an accused person to establish on a balance of probabilities that he did not know the nature of the drugs found in his possession (see Gobi a/l Avedian v Public Prosecutor [2021] 1 SLR 180 (“Gobi”) at [57] and [65]). The applicable principles were distilled by the Court of Appeal in Gobi as follows (at [57]-[61] and [64]-[65]):

(a) The starting point is for the accused person to give an account of what he thought or believed the thing in his possession was. Whether the presumption of knowledge has been rebutted involves a subjective inquiry into the accused person’s state of mind or knowledge. The court will assess the veracity of the accused person’s assertion as to his subjective state of mind against the objective facts and examine his actions and conduct relating to the item in question in coming to a conclusion on the credibility of his assertion.

(b) It is incumbent on the accused person to adduce sufficient evidence disclosing the basis upon which he claims to have arrived at that subjective state of mind. It is, however, not necessary for the accused person to establish that he held a firm belief as to, or actually knew, what the thing in his possession specifically was; the inquiry is whether the accused person did not in fact know that the thing in question was the specific drug in his possession.

(c) The presumption of knowledge will be rebutted where the court accepts that the accused person formed a positive belief that was incompatible with the knowledge that the thing which he was carrying was the specific drug in his possession. However, the accused person need not establish a positive state of knowledge as to the contents of the items found in his possession. Instead, he is only required to establish a negative, namely, that he did not believe that the items in his possession were drugs of the particular nature.

(d) It will not suffice for the accused person to simply claim that he did not know what he was carrying, or if he had been “indifferent” about what the thing in his possession was (namely, where he was in a position to verify or ascertain the nature of what he was carrying but chose not to do so). In those circumstances, the accused person cannot rebut the presumption of knowledge because he cannot be said to have formed any view as to what the thing in his possession is or is not.

As mentioned earlier, Yap’s evidence is that he neither knew what drugs he was collecting at 28/30 Gul Avenue nor the quantity of those drugs that were to be collected, and he also did not ask Lee any questions (see [25] above). During cross-examination, Yap accepted that he did not care how much drugs he was told by Lee to collect and deliver. He says that his job was simply to hand over the Cash to the unidentified male motorcyclist and collect whatever drugs were given to him. During cross-examination, when asked by the DPP what he would have done if the unidentified male motorcyclist at 28/30 Gul Avenue had given him 50 pounds of heroin, Yap testified that he would have still collected it and delivered it to Lee at the Room in the Hotel. Yap’s evidence, therefore, is that he did not care how much drugs he was asked to collect from 28/30 Gul Avenue by Lee, and that he was also not concerned to find out what drugs he was collecting.

Yap also took no steps to ascertain what was in the Three Bundles, despite having had the opportunity to do so. According to Yap, the drugs were thrown by the unidentified male motorcyclist into his car about 30 minutes after he reached 28/30 Gul Avenue at 8.47pm. Shortly after, Lee phoned him and asked him to check on the drugs that he received, and he did so. He began driving back to the Hotel shortly thereafter. Yap eventually reached the Hotel at 9.51pm (see [9] above). Yap therefore had ample time before returning to the Hotel to ascertain the nature of the Three Bundles by unwrapping them in the car but he never did so.

In Yap’s written closing submissions, his counsel did not take the position that he had successfully rebutted the presumption under s 18(2) of the MDA that he knew the nature of the drug in the Three Bundles. In any event, that would have been a hopeless position to take. As the Court of Appeal emphasised in Gobi, a mere assertion by an accused person that he is ignorant as to the nature of the drug found in his possession cannot suffice to rebut the presumption in s 18(2) of the MDA (at [65]). More importantly, Yap’s evidence is to the effect that he was simply “wholly indifferent” to the nature of what was contained in the Three Bundles, in that he did not know what was contained in the Three Bundles and never bothered to find out about the same. On his evidence, he could not have had any positive belief as to what was contained in the Three Bundles that he had collected. That being the case, Yap cannot rebut the presumption under s 18(2) that he knew the nature of the drug in the Three Bundles.

Yap’s closing submissions was devoted almost entirely to showing that his role in the transaction involving the Three Bundles was limited to delivering the drugs from 28/30 Gul Avenue to Lee at the Room in the Hotel. In short, it was to establish that Yap acted only as a courier and thus his actions vis-à-vis the Three Bundles fall within s 33B(2)(a) of the MDA. From the position taken by the Prosecution, I do not think that Yap’s role in this regard is in dispute. For the avoidance of doubt, I do find that Yap’s involvement in the trafficking charge under s 5(1)(a) of the MDA was restricted to that of “transporting” (per s 33B(2)(a)(i) of the MDA) the Three Bundles from 28/30 Gul Avenue to Lee at the Room in the Hotel.

That, however, is not relevant to the question of whether Yap is guilty of the offence with which he has been charged, ie, whether he has committed the offence under s 5(1)(a) of the MDA of trafficking in heroin. Section 33B(2) is relevant only to the question of the sentence to be imposed by Yap if he is convicted of the offence under s 5(1) of the MDA: see 33B(1) of the MDA.

Given the evidence before the court, in particular, Yap’s own evidence as to his role in the transaction, I find that the elements of the trafficking charge under s 5(1)(a) of the MDA against Yap have been proven beyond reasonable doubt, and I convict him accordingly.

Conclusion

For the above reasons, I convict Lee and Yap of their respective charges accordingly. I will now hear the parties on the question of sentencing.