Public Prosecutor v Iswan bin Ali [2024] SGHC 284

The accused, Iswan bin Ali (“Iswan”), faced one charge of having in his possession for the purpose of trafficking not less than 61.19g of diamorphine under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). On 17 September 2024, I found that 51.41g of diamorphine, in Exhibits A1A1A, A1A2A, A1A3A and B1A1 (collectively, the “Drug Exhibits”), was in Iswan’s possession for the purpose of trafficking. However, as Iswan had raised sufficient doubt as to whether Exhibits C1A and C1B were in his possession for the purpose of trafficking, I exercised my power pursuant to s 128(1) of the Criminal Procedure Code 2010 (2020 Rev Ed) (the “CPC”) to alter the charge against him (Public Prosecutor v Iswan bin Ali [2024] SGHC 239 (“Iswan bin Ali”) at [96]–[97]).

The altered charge states as follows:

Both the Defence and the Prosecution did not wish to call any additional witnesses or recall any witness with regards to the altered charge.

I adjourned the matter for Iswan to consider his plea with respect to the altered charge, and for further submissions from both the Defence and the Prosecution as to whether Iswan would be a “courier” under s 33B of the MDA.

Iswan pleaded guilty to the altered charge. Under s 227(3) of the CPC, the General Division of the High Court must not record a plea of guilty in a case where the accused pleads guilty to an offence punishable with death unless evidence is led by the prosecution to prove its case at the trial. Based on the evidence led at the trial and my findings in Iswan bin Ali, I find that the Prosecution has proved the altered charge against Iswan beyond a reasonable doubt. I therefore convict Iswan of the altered charge.

Decision on Sentence

The prescribed punishment for an offence of trafficking more than 15g of diamorphine under s 5(1)(a) of the MDA, pursuant to s 33 of the MDA read with the Second Schedule, is the mandatory death penalty.

A person convicted of an offence under s 5(1) that is punishable with death may nonetheless bring himself within the scope of s 33B(1), which either: (a) allows for the imposition of a sentence of life imprisonment with 15 strokes of the cane if the requirements under s 33B(2) are satisfied; or (b) a sentence of imprisonment if the requirements under s 33B(3) are satisfied. Section 33B(3) requires an offender to prove, amongst other requirements, that he was suffering from an abnormality of mind that substantively impaired his mental responsibility for his acts and omissions in relation to the offence. The Defence does not allege any abnormality of mind on Iswan’s part. Thus, the only potentially relevant provision is s 33B(2).

Section 33B(2) imposes two requirements. First, the accused bears the burden of proving, on a balance of probabilities, that his involvement in the offence under s 5(1) or s 7 was restricted to:

If this requirement is satisfied, the accused will be a “mere courier” (Zainudin bin Mohamed v Public Prosecutor [2018] 1 SLR 449 (“Zainudin”) at [28] and [34]). The second requirement is that the Prosecution must issue a Certificate of Substantive Assistance (“CSA”) to the accused.

Whether Iswan is a courier

I turn to consider the issue of whether Iswan is a courier. The definition of a courier is intended to be “tightly-defined” and interpreted narrowly (Public Prosecutor v Chum Tat Suan and another [2015] 1 SLR 834 (“Chum Tat Suan”) at [63]; Zainudin at [54]–[55]). As categorically stated by the Court of Appeal in Chum Tat Suan (at [66]):

Therefore, an accused person must prove that his role in the offence was restricted only to the transporting, sending or delivering of a controlled drug, or acts incidental or necessary thereto, in order to fall within the definition of a courier (see Zainudin at [2] and [29]). The only caveat is that a mere incidental act of storage or safekeeping by the accused person in the course of transporting, sending or delivering the drugs will not take him outside the definition of a courier (Chum Tat Suan at [67], referring to Public Prosecutor v Abdul Haleem bin Abdul Karim and another [2013] 3 SLR 734 at [55]).

The Defence submits that Iswan is a courier. According to the Defence, the Drug Exhibits belonged to Zahari bin Samat (“Zahari”, also known as “Bob”), who had instructed Iswan to keep the Drug Exhibits for delivery to third parties. Iswan’s role was therefore limited to that of delivering the Drug Exhibits and incidental safekeeping for the purposes of delivery. The Defence further contends that Iswan “did not do anything more than he was asked to” and did not engage in acts such as dividing or packing the Drug Exhibits.

The Prosecution submits that Iswan is not a courier. The Prosecution argues that Iswan has failed to prove, on a balance of probabilities, that his acts were limited to those incidental to the transporting, sending or delivering of the Drug Exhibits. This is because Iswan’s evidence as to the ownership of the Drug Exhibits and the purpose for which he had possessed the Drug Exhibits shifted substantially over the course of investigations and at trial. Even if Iswan’s final version of events (ie, that he had held all the Drug Exhibits for Zahari) is accepted, Iswan is not a mere courier for the following reasons: (a) he had sourced for the supplier of the Drug Exhibits for Zahari; and (b) he had the ability to set the price which Zahari had to pay for the drugs.

In my view, Iswan is not a courier within the meaning of s 33B(2). There is clear evidence that Iswan had sourced for the Drug Exhibits from his supplier, Joe Cartel. In Iswan’s 5th and 6th investigation statements, he gave evidence that Zahari had asked him if he had a contact for the purchase of “panas”, and Iswan had informed Zahari that he had a supplier who only sold a minimum of five “batus” of “panas”. Iswan’s 5th investigation statement reads as follows:

Iswan’s 6th investigation statement reads as follows:

The sourcing of drugs will, on its own, take one out of the definition of a courier. In Zainudin (at [86]), the Court of Appeal observed that the sourcing for the supply of drugs is “plainly very far removed from the nature and objective of conveying drugs to a designated recipient” and instead concerns the expansion of the drug distribution network and the growth of the volume of drug sales. In initiating contact with the drug supplier, Iswan cannot be said to have been performing acts which were merely facilitative or incidental to the transporting, sending or delivery of the drugs. This is supported by the decision of the Court of Appeal in Rosman bin Abdullah v Public Prosecutor [2017] 1 SLR 10 (“Rosman bin Abdullah”), where the Court of Appeal agreed with the High Court’s finding that the appellant was not a courier as he had not only actively sourced for the drugs in question but also actively participated in negotiations as a middleman or go-between regarding the price for the drugs and the terms of the delivery (Rosman bin Abdullah at [35]).

Additionally, even if Iswan did not act a middleman in the negotiations for the price of the Drug Exhibits (unlike the offender in Rosman bin Abdullah (at [34]–[35])), Iswan had the ability to determine the price which Zahari paid for the Drug Exhibits:

This would go towards showing that Iswan had some degree of decision-making power. It has been accepted that “a courier simply carries out instructions given to him and has practically no room for his own exercise of discretion or decision-making”, and thus, “if the acts carried out by the offender indicate that he possesses some executive decision-making power … then it is highly unlikely that he can be considered a mere courier” (Zainudin at [87]).

Given that Iswan’s acts had gone beyond that of merely “transporting, selling or delivering” the Drug Exhibits, I find that Iswan was not a courier. I therefore pass the mandatory death sentence on him.