Dinesh Pillai a/l K Raja Retnam v Public Prosecutor

Chan Sek Keong CJ (delivering the grounds of decision of the court):

[1] This is an application by one Dinesh Pillai a/l K Raja Retnam (“the applicant”) to set aside his conviction and sentence in Dinesh Pillai a/l K Raja Retnam v Public Prosecutor [2012] 2 SLR 903 (“Dinesh Pillai CA”). In Dinesh Pillai CA, this Court upheld his conviction by the High Court for the offence of importing into Singapore not less than 19.35 grammes of diamorphine without any authorisation under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”), an offence punishable with death under s 33 read with the Second Schedule to the MDA.

[2] We dismissed this application at the conclusion of the hearing before us. We now give our reasons for dismissing it.

[3] The detailed facts of the offence are set out in this Court’s written judgment in Dinesh Pillai CA. For the purposes of the present application, the pertinent facts are as follows. The applicant is a 29-year-old Malaysian male who lived in Skudai, Malaysia. Sometime in November/December 2009, the applicant was introduced to a person called “Raja” who offered to pay the applicant to deliver food to a person called “Ah Boy” in Singapore. The applicant was not told what kind of food he would have to deliver and was told never to open the package of food to be delivered. Unemployed and in financial difficulty, the applicant agreed, despite suspecting that he would be delivering something other than food.

[4] On 10 December 2009 and 14 December 2009, the applicant made two such deliveries of “food”, without any mishap. The applicant was asked by Raja to make a third delivery to Ah Boy on 19 December 2009. This time, the applicant was arrested at Woodlands Immigration Checkpoint. He was found to have kept in his motorcycle a red plastic bag (“the Red Plastic Bag”) inside which were a brown paper-wrapped packet (“the Brown Packet”), a packet of curry and a packet of freshly cut chilli. The Brown Packet in the Red Plastic Bag was later found, on analysis by the Health Sciences Authority of Singapore, to contain not less than 19.35 grammes of diamorphine.

[5] After his arrest, the applicant gave various statements to the Central Narcotics Bureau (“CNB”) officers in which he was recorded as having (a) replied to a question by the investigator that the Brown Packet contained controlled drugs, and (b) admitted that he did not ask Raja what the Red Plastic Bag contained.

[6] At the trial before the High Court, the trial judge (“the Judge”) found on the evidence that the applicant had actual knowledge that he was carrying a controlled drug, but that he did not know what kind of controlled drug it was (see Public Prosecutor v Dinesh Pillai a/l K Raja Retnam [2011] SGHC 95 (“Dinesh Pillai HC”) at [44]). The Judge further found that the presumption in s 18(2) of the MDA applied to the applicant’s knowledge of the nature of the controlled drug. Section 18 of the MDA provides as follows:

[7] In finding that the applicant had failed to rebut the presumption in s 18(2) of the MDA, the Judge stated (see Dinesh Pillai HC at [46]–[47]):

[8] On appeal to this Court, we affirmed the Judge’s finding that the applicant had not rebutted the presumption that he knew the nature of the controlled drug which he was carrying. In Dinesh Pillai CA, we held at [20]–[21] as follows:

[9] Before us, the applicant relied on the following grounds in support of his application:

(a) this Court erred in law in affirming the finding of the High Court in Dinesh Pillai HC that the applicant had not rebutted the presumption in s 18(2) of the MDA on a balance of probabilities;

(b) section 33 of the MDA is unconstitutional “as it allows for the prosecution to select the exact punishment to be inflicted upon an individual member of a class of offenders with the same legal guilt”; and

(c) the Public Prosecutor acted in bad faith in bringing a capital charge against the applicant based on irrelevant considerations.

[10] With respect to ground (a), the applicant’s counsel argued that the issue was whether the applicant had knowledge or did not have knowledge of the nature of the controlled drug in the Brown Packet, but this Court had affirmed the Judge’s finding of knowledge on the ground that the applicant was careless, negligent or reckless in not checking the Brown Packet to find out what was in it. Counsel argued that this was a fundamental error as carelessness, negligence or recklessness is not knowledge and knowledge cannot be inferred from any one or all of these forms of conduct. Thus, when the applicant denied knowledge of what was in the Brown Packet, there was no reason for the Judge or this Court not to believe his testimony.

[11] In our view, this argument was entirely misplaced. The material issue was not what he actually knew or did not know was in the Brown Packet. Since the Judge had found that the Red Plastic Bag was in the applicant’s physical possession, and that it was subsequently found to contain a controlled drug (ie, diamorphine), s 18(2) of the MDA applied to presume that he knew the nature of the controlled drug – a presumption which he had to prove, on a balance of probabilities, to the contrary. Thus, the material issue was whether on the facts of the case, the applicant had proved the contrary of the presumption on a balance of probabilities. The Judge found, on the totality of the evidence, that the applicant had not proved the contrary of the presumption. We agreed and explained the basis of our decision in Dinesh Pillai CA at [20]–[21] (reproduced at [8] above). In our view, the presumption in s 18(2) of the MDA could not be rebutted if the accused made no effort to find out what he was bringing into Singapore in circumstances which would have alerted a reasonable person that he was being asked to do something illegal. In the circumstances of this case, the conveyance of food from Malaysia to Singapore to unknown persons for a disproportionate reward (here it was RM200 per trip) made no common sense except that what was being conveyed was something valuable and illegal, like controlled drugs.

[12] Before us, counsel also argued that the Judge was wrong to have found that the applicant had actual knowledge that the Brown Packet contained a controlled drug because that finding was based on an affirmative statement allegedly made by the applicant in response to a question from the investigator that the Brown Packet contained “controlled drugs”. In particular, the investigator had suggested to the applicant that the Brown Packet contained “controlled drugs” and recorded the applicant’s reply as confirming the suggestion. In our view, this argument has no merit because the Judge, having heard the testimonies of both the applicant and the investigator, had found that the applicant did make such a statement voluntarily. In any event, this argument, even if it had some substance, would not have been sufficient to rebut the presumption in s 18(2) of the MDA. At the trial, the applicant testified that he was told that the Brown Packet contained “things” but that he did not ask what the “things” were. In our view, this would not have been sufficient to prove the contrary of the presumption when he was paid a large sum of money just to convey unknown “things” to an unknown recipient.

[13] With respect to ground (b), counsel for the applicant argued that s 33 read with the Second Schedule to the MDA was unconstitutional, having regard to s 53 of the MDA. To understand this argument, it is necessary to consider the terms of these provisions. Section 33 of the MDA provides the punishments for offences as follows:

For present purposes, the Second Schedule provides that the punishments for unauthorised trafficking in more than 15 grammes of diamorphine is death, and in not less than 10 grammes and not more than 15 grammes, a maximum 30 years’ imprisonment or imprisonment for life and 15 strokes of the cane, and a minimum 20 years’ imprisonment and 15 strokes of the cane. Section 53 of the MDA provides as follows:

[14] Counsel’s argument was as follows. Since s 53 of the MDA conferred jurisdiction on the Subordinate Courts to try drug trafficking offences, it had the effect of empowering the Public Prosecutor to select the punishment that the court would impose on an offender. This is because if the Public Prosecutor brought a capital charge in the Subordinate Courts, he would be determining that the accused would not be sentenced to death should the accused be found guilty, but if the Public Prosecutor had brought a capital charge in the High Court, he would be determining that the accused be sentenced to death if found guilty. Such a power conferred on the Public Prosecutor (as part of the Executive) would intrude into the judicial power and infringe the principle of separation of powers implicit in the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). Counsel relied on the decision in Mohammed Muktar Ali v The Queen [1992] 2 AC 93 (“Mohammed Muktar Ali”) where the Privy Council held that certain provisions of the Dangerous Drugs Act 1986 in Mauritius (“the MDDA”) had violated the constitutional principle of separation of powers between the legislature, executive and judiciary by effectively allowing the executive branch to select the sentence of each individual offender, a function which was vested exclusively in the judiciary.

[15] In Mohammed Muktar Ali, the appellants were charged with importing heroin into Mauritius contrary to s 28(1)(c) of the MDDA, and were alleged to be drug traffickers. On the direction of the Director of Public Prosecutions of Mauritius (“the MDPP”) the appellants were each tried in the Supreme Court before a judge sitting without a jury. The Court convicted them of the offence under s 28(1)(c) of the MDDA, found them to be traffickers, and sentenced them to suffer mandatory death pursuant to s 38(4) of the MDDA.

[16] The relevant provisions of the MDDA are as follows:

[17] On appeal to the Privy Council, the appellants argued that these provisions of the MDDA violated the separation of the powers doctrine under the Constitution of Mauritius as it enabled the MDPP at his discretion to select the court before whom a person is to be tried for an offence under s 28(1)(c) of the MDDA, and effectively determine the punishment to be inflicted on the offender if he were convicted. The Privy Council accepted this argument. In Mohammed Muktar Ali at 101–104, the Privy Council said (per Lord Keith of Kinkel):

[18] The Privy Council then went on to hold that the convictions themselves were not vulnerable to any attack on constitutional or other grounds but that the sentences of death, having been imposed under an invalid enactment (viz, s 38(4) of the MDDA), must be set aside since the judge sitting without a jury in the Supreme Court before which the appellants in Mohammed Muktar Ali were tried and convicted with a finding of trafficking had no power to impose the death penalty. The Privy Council then remitted the cases to the Mauritian Supreme Court to substitute such a sentence under other provisions of the MDDA (see Mohammed Muktar Ali at 105).

[19] Before we deal with counsel’s argument on the applicability of the observations in Mohammed Muktar Ali, it should be noted that counsel for the applicant had raised the same argument before us in Dinesh Pillai CA but had withdrawn it. In Dinesh Pillai CA at [14], we said:

[20] We rejected counsel’s argument that the reasoning in Mohammed Muktar Ali had any bearing on s 53 of the MDA as neither counsel’s reasoning nor rationale in trying to impugn the constitutionality of the provision made any sense to us. A discretion in the prosecuting authority to prosecute for a more serious offence rather than for a less serious one is not open to any constitutional objection (see Lord Diplock in Teh Cheng Poh alias Char Meh v Public Prosecutor, Malaysia [1980] AC 458 at 474–475) unless it is in breach of Article 12 of the Constitution (which has not been alleged in this case). Even if s 53 of the MDA were declared unconstitutional, it would only have meant that the District Court could not impose punishments beyond its ordinary sentencing jurisdiction under s 303(2)(a) of the Criminal Procedure Code 2010 (Act 15 of 2010) (“the CPC 2010”) (which is up to 10 years’ imprisonment). Since the applicant was not charged in the District Court, the argument had no relevance to his conviction in the High Court.

[21] Consequent upon this conclusion, counsel’s argument that the Second Schedule in the MDA was also unconstitutional had no merit. The Second Schedule merely calibrates the punishments applicable to the quantity of controlled drugs for which an offender has been convicted for offences under the MDA.

[22] There are other features in the MDA which distinguish the legislative scheme from that enacted in the MDDA, such as that the MDDA did not differentiate the quantity of drugs that were being trafficked, and that, perhaps, a capital charge under the MDDA was tried before a jury. However, we should like to comment on two aspects of s 53 of the MDA in order to clarify its scope. First, s 53 of the MDA provides that “a District Court shall have power to impose the full penalty or punishment in respect of any offence provided by this Act except the punishment of death”. So drafted, s 53 of the MDA appears to suggest that the Public Prosecutor may bring a drug trafficking charge in the District Court that is punishable with death. In Nguyen Tuong Van v Public Prosecutor [2005] 1 SLR(R) 103, this Court appeared to have adopted such a construction at [51] and [53] of the judgment:

[23] In our view – and this is our second comment – the purpose of s 53 of the MDA was not to enable the Public Prosecutor to bring a trafficking charge for a capital offence in the District Court so as to effectively reduce it to a non-capital charge. That would explain why there has been no such prosecutions in the Subordinate Courts. Indeed, if the Public Prosecutor were to do so, it would raise an issue as to whether the Public Prosecutor’s decision might have been arbitrary or might not have been made in good faith. In our view, the purpose of s 53 of the MDA was to vest in the Subordinate Courts sentencing powers with respect to non-capital drug offences beyond their normal sentencing powers under the CPC 2010 (previously the Criminal Procedure Code (Cap 68, 1985 Rev Ed)).

[24] With respect to ground (c), counsel argued that the Public Prosecutor had acted in bad faith in “targeting” the applicant for capital punishment. In substance, his argument was that the evidence showed that the applicant did not know (or at least there was a reasonable doubt that he knew) that he was carrying a controlled drug or that he did not know the nature of the controlled drug, and therefore the Public Prosecutor in bringing the capital charge against the applicant had acted in bad faith. This argument was a non-starter as the Public Prosecutor is the sole decider as to the merits of a prosecution. In any event, the fact that the Judge found the applicant guilty on the evidence confirmed the propriety as well as the validity of the Public Prosecutor’s prosecutorial decision. Furthermore, counsel’s submission was, in effect, that the applicant was wrongly convicted on the evidence, and that this Court was wrong to have affirmed the conviction. There was no basis for us to reopen our previous decision.

[25] For the reasons given above, we therefore dismissed the application.