Kwek Seow Hock v Public Prosecutor

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

[1] The appellant in this appeal, Kwek Seow Hock (“the Appellant”), appealed against the judgment of the High Court judge (“the Judge”) in Criminal Case No 8 of 2008. The Judge convicted the Appellant on a charge of trafficking in not less than 25.91g of diamorphine (more commonly known as heroin) without any authorisation – a capital offence that is punishable pursuant to s 5(1)(a) read with s 33 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the Act”) (see Public Prosecutor v Kwek Seow Hock [2009] SGHC 202 (“the GD”)).

[2] After hearing the submissions of the Appellant and the Prosecution, we dismissed this appeal. We now give our reasons.

[3] The Appellant had worked for one “Ah Long”, an unauthorised supplier of controlled drugs, in making drug deliveries to persons as instructed by Ah Long. On 20 July 2007, the Appellant was instructed to receive drugs from one “Ah Seng”. After meeting Ah Seng, he was on his way to hand over S$6,650.00 in cash to one “Jackie” when, at around 11.15pm, he was arrested by officers from the Central Narcotic Bureau (“the CNB”) at the vicinity of the car park of Block 23 Hougang Avenue 3. When he was arrested, the Appellant had in his possession a black “Hugo Boss” paper bag. An “Ever Rich” paper bag was found inside the “Hugo Boss” paper bag. The paper bags contained, inter alia, S$6,650 in cash, one red packet that contained one sachet and one straw of white granular substance, one red packet that contained 6½ dormicum tablets, and 46 packets of white granular substance (“the Packets”), which were subsequently established by scientific analysis to contain 25.91g of diamorphine. The Appellant was also found to have S$2,409.15 in cash in his wallet and pockets.

[4] Pursuant to s 17 of the Act, there was a presumption that the Appellant had the Packets (which contained 25.91g of diamorphine) in his possession for the purposes of trafficking. On 25 July 2007, a long statement (ie, a statement recorded pursuant to s 121 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“the CPC”)) was recorded, in which the Appellant made the following admission:

The Appellant, in addition, did not dispute the fact that he knew that the Packets contained diamorphine.

[5] However, during the trial, the Appellant claimed that he had intended to retain 23 of the Packets (ie, half of the Packets) for his own consumption (this will be referred to as “the defence of consumption” where appropriate). If the Judge had accepted the defence of consumption, the Appellant would have, inter alia, successfully established that the quantity of diamorphine that he had trafficked in was not above the 15g threshold for his offence to attract capital punishment.

[6] At the conclusion of the trial, the Judge rejected the defence of consumption and held that the Appellant had failed, on a balance of probabilities, to rebut the presumption under s 17 of the Act. Accordingly, the Prosecution was held to have established its case beyond reasonable doubt (see [78] of the GD). The main reasons for rejecting the defence of consumption could be said to be as follows:

(a) The Appellant did not have the financial means to purchase half of the Packets, and there was no arrangement to pay Ah Long in instalments (see [35]–[46] and [73] of the GD).

(b) As the Appellant admitted that he had a ready supply or access to heroin, it was unlikely that he would have needed to stockpile 23 of the Packets for himself (see [47] and [73] of the GD).

(c) An adverse inference could justifiably be drawn against the Appellant, as he had failed to mention the defence of consumption in his long statements (see [65]–[70] and [74] of the GD).

(d) The Appellant had stated in his long statement dated 25 July 2007 that all of the drugs that were seized, save for the drugs in the two red packets, were for sale (see [65] and [74] of the GD).

(e) If the Appellant had really intended to keep 23 of the Packets for himself, it would have been reasonable to expect him to separate out those that he had intended to keep before he met Jackie to pass the rest to him (see [76] of the GD).

In relation to (c) above, the Judge did not draw an adverse inference from the Appellant’s failure to mention the defence of consumption in his cautioned statement (ie, a statement recorded pursuant to s 122(6) of the CPC), after having regard to the fact that the statement was recorded early in the morning and the probable poor state of the Appellant at that point in time (see [60]–[64] of the GD).

[7] The Appellant’s case, in essence, was that the Judge had made the wrong findings of fact on the evidence in coming to the conclusion that the presumption under s 17 of the Act had not been rebutted. It was, in particular, submitted that:

(a) The Appellant intended to hand over only the money to Jackie, and that was why he did not separate the half of the Packets which he had intended to keep for his own use.

(b) The Appellant had the financial means to pay for half of the Packets. He had S$2,409.15 in cash (which was found on him) and S$1,200 in his bank account, and expected to receive S$650 from Jackie. Also, he could pay Ah Long in instalments.

(c) The Appellant did not have ready access to heroin as he received an average of one consignment of drugs from Ah Long every two months, and given that the Appellant was a heavy user of heroin, it was reasonable for him to stockpile a sufficient quantity of heroin to satisfy his needs until the next consignment.

[8] The Appellant also contended that the Judge had erred in law in drawing an adverse inference against him for his failure to disclose the defence of consumption in his long statements. Counsel for the Appellant pointed out that when those statements were recorded, the Appellant was under the impression that he would face a charge of trafficking 335g of heroin (which would be substantially above the capital offence threshold of 15g), and, therefore, he did not think that it would have mattered whether or not he stated that 23 of the Packets were intended for his own consumption.

[9] The Prosecution’s case, in essence, was that the Judge had made the correct findings and that the defence of consumption was an afterthought. The Prosecution contended that:

(a) The fact that the Appellant was a heavy user of heroin did not necessarily mean that he had intended to keep 23 of the Packets for his own consumption.

(b) The Judge’s finding that the Appellant had intended to deliver both the drugs and the money to Jackie was supported by the Appellant’s long statement dated 22 July 2007 where he stated that Ah Long had instructed him to pass the drugs to someone at Block 23 Hougang Avenue 3 (where he was arrested).

(c) The Appellant had no reason to stockpile two to three months’ supply of heroin since he admitted that he had ready access to Ah Long, and, furthermore, it was risky for him to keep so many packets of heroin in his possession.

(d) The Appellant did not have the financial resources to purchase 23 of the Packets, as he did not have sufficient cash or a real source of income, and, further, there was no evidence to support his claim that he could pay Ah Long in instalments.

[10] The Prosecution also submitted that the Judge was not wrong to have drawn an adverse inference against the Appellant due to his failure to disclose the defence of consumption in his long statements. In this regard, reference was made to the decision of this court in Lim Lye Huat Benny v Public Prosecution [1995] 3 SLR(R) 689 (“Lim Lye Huat Benny”). In that case, this court upheld the decision of the trial court to draw an adverse inference against the appellant due to his failure to mention his defence or the material aspects of it in his long statement.

[11] Based on the evidence before the Judge, it was our view that the Judge had not erred in his findings of fact. The Appellant had, to begin with, admitted in his long statement dated 25 July 2007 that the Packets were meant for “selling” (see [4] above). That aside, the Judge was justified in finding on the evidence that the Appellant had no reason to stockpile 23 of the Packets when he had ready access to a supply from Ah Long, and also that he would not have been able to finance the purchase of 23 of the Packets. In his long statement dated 22 July 2007, the Appellant also stated that he had been instructed to deliver both the drugs and the money to Jackie. He said:

On the evidence, the only person whom the Appellant intended to meet at Block 23 Hougang Avenue 3 was Jackie. Therefore, the Judge was well entitled to conclude that the “someone at [Block] 23 Hougang Ave 3” was in fact Jackie. Counsel for the Appellant argued that the evidence indicated that the Appellant had only admitted that he would pass money to Jackie, but not drugs. The Judge did not accept this argument as it contradicted the Appellant’s own words. We agreed with the Judge.

[12] These reasons alone would be sufficient to explain our dismissal of the appeal. However, for completeness, we will touch on the question of whether the Judge was correct to draw an adverse inference against the Appellant for failing to state the defence of consumption in his long statements.

[13] Under s 122(6) of the CPC, a person, when charged with an offence or officially informed that he may be prosecuted for an offence, has to be 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. The basis for a court to draw adverse inferences from a failure to mention material facts when subjected to this caution can be found in s 123(1) of the CPC, which states:

[14] In the present case, the Appellant omitted to mention the defence of consumption in his cautioned statement. However, the Judge declined to draw an adverse inference for this omission. In this regard, he stated ([61]–[62] of the GD):

The case that the Judge referred to, viz, Lim Lye Huat Benny, was a case where this court accepted the appellant’s contention that no adverse inference should be drawn against him with respect to his cautioned statement as it had been recorded at an unearthly time when he had been too tired and hungry to think of his defence.

[15] The Judge, in contrast, drew an adverse inference against the Appellant for failing to state the defence of consumption in his long statements. The Judge explained as follows ([68]–[70] of the GD):

[16] This approach is consistent with the approach taken in Lim Lye Huat Benny, where this court stated (at [25]):

[17] It is necessary to add that the court is not always entitled to draw an adverse inference for failure to disclose a material fact in long statements. The reason is that s 121 of the CPC allows an accused to withhold mentioning any fact or circumstance that, if disclosed, may incriminate him. Section 121 provides as follows:

[18] Section 121 of the CPC is a straightforward provision. The person under investigation is “bound to state truly the facts and circumstances with which he is acquainted concerning the case”, except that he may decline to state any fact or circumstance which would incriminate him in any way. He is entitled to remain silent in so far as self-incrimination is concerned. In our view, because an accused has such a right against self-incrimination when he makes a long statement under s 121, no adverse inference, in general, may be drawn against him for failing to state any fact or circumstance which may incriminate him in any way.

[19] If, however, the fact or circumstance that is withheld will exculpate the accused from an offence, a court may justifiably infer that it is an afterthought and untrue, unless the court is persuaded that there are good reasons for the omission to mention that exculpatory fact or circumstance. This accords with common sense – if an accused believes he is not guilty of an offence that he might be charged with, he would be expected to disclose why he has such a belief. For a self-confessed trafficker like the Appellant, consumption would be an exculpatory fact. Furthermore, an exculpatory fact or circumstance has more credibility if disclosed to an investigating officer at the earliest opportunity after arrest. Thus, in Chou Kooi Pang and another v Public Prosecutor [1998] 3 SLR(R) 205, this court (without referring to Lim Lye Huat Benny) held, in regard to one of the appellants, that his “failure to mention a material part of his defence at an earlier stage meant that it was less likely to be believed” (at [30]).

[20] In the present case, the fact of an intention to retain 23 of the Packets for self-consumption (if proved) would effectively have exculpated the Appellant from an offence of trafficking that carries the death penalty. Accordingly, it would have been in his own interest to have mentioned it at the first opportunity to the investigating officer. He did not. Instead, he gave an explanation as to why he did not do so – this being that he thought that it would be of no use. The Judge, in our view, rightly rejected this explanation. That said, it was not necessary for the Judge to draw an adverse inference against the Appellant in order to reject the defence of consumption as being not credible in the circumstances. A court is entitled to disbelieve the evidence of a witness without having to draw an adverse inference against him for omitting to earlier mention some material fact which, if disclosed, would be in his favour.

[21] For the above reasons, we agreed with the Judge’s decision, and dismissed this appeal.