Public Prosecutor v Kester Ng Wei Ren

Chan Seng Onn J:

[1] The accused is Kester Ng Wei Ren, now 49 years old. Of the seven charges against the accused, the prosecution stood down six charges and proceeded only with the second charge which reads as follows:

[2] On 12 August 2008 at about 3 pm, officers from the Central Narcotics Bureau (“CNB”) were deployed near a coffee shop at Lorong 40 of Geylang, Singapore, to look out for a Malaysian Chinese, one Tan Kim Looi (“Tan”). CNB intelligence received information that Tan would be making a delivery of drugs to an unidentified man in that area. At about 4.35 pm, the CNB officers identified Tan at the coffee shop. The accused was then seen entering the coffee shop and sitting down at the same table as Tan. The accused and Tan subsequently left the coffee shop and they were spotted walking towards Tan’s motorcycle bearing license number JLC 3645. A while later at about 5.00 pm, the accused was seen carrying a while plastic bag along Lorong 40 Geylang. Instructions were given to arrest the accused. The accused was eventually arrested near the rear gate of Aston Mansion, which is a residential property located between Lorong 40 and Lorong 42 of Geylang.

[3] The accused put up a violent struggle and he threw the white plastic bag into the air causing two black bundles and one brown envelope to fall out of the plastic bag. After the accused was subdued, the CNB officers retrieved the white plastic bag and its contents, viz the two black bundles and one brown envelope. The two black bundles and the brown envelope contained controlled drugs that formed the subject matter of the first and fifth charges. Although these charges have been stood down, I will for the sake of completeness as well as to provide a clearer context to the present charge (viz the second charge), set out the drugs uncovered in the white plastic bag in the following table:

[4] When the accused was escorted back to the CNB, the accused revealed that his place of residence was at Summer View # 03-01, No. 5 Lorong 12 Geylang (“the Summer View apartment”). The police searched the Summer View apartment but nothing incriminating was found. Thereafter, the accused was brought back to the CNB. An instant urine test was performed on him. His urine was tested positive for amphetamine, benzodiazepines and opiates. A further two samples of the accused’s urine were also sealed and deposited into a metal box in the accused’s presence, for the purposes of further testing and analysis. Further analysis of the accused’s urine confirmed that the accused had consumed morphine and methamphetamine.

[5] A body search of the accused was also performed at the CNB, and the police found a bunch of three keys in the back pocket of the accused. It was then discovered that the accused had another two residential addresses at room 188 of No. 8 Lorong 42 Geylang (“the room 188 apartment”) as well as at # 09-48 of Block 16, Marine Terrace (“the marine terrace apartment”). A search of the room 188 apartment uncovered some drugs, two weighing scales and cash (amounting to $6,539.20) whereas a search of the marine terrace apartment did not turn up anything.

[6] The drugs found in the room 188 apartment made up the second, third and fourth charges. The drugs uncovered for the third and fourth charges are as follows:

[7] As for the second charge before this court, the drugs found are as follows:

[8] Further investigations revealed another actor named ‘Ah Man’, who was a middle aged Singaporean man who had connections with Tan and who would also facilitate drug deliveries between Tan and several drug traffickers in Singapore. Statements recorded from the accused also revealed that there were six other consignments of drugs received by the accused and facilitated by Ah Man prior to the one leading to the accused’s arrest on 12 August 2008. At the outset, I should point out that the accused did not challenge the voluntariness of all his statements. There were in total, five statements recorded from the accused under s 121 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”), set out as follows:

[9] Before elaborating on the various drug consignments, some background on the accused’s initiation into the drug business would be useful. The accused was originally in charge of a few prostitutes in Geylang and he provided these prostitutes with lodging as well as ensured that their clients would pay them for their services. The prostitutes would charge the client about $80 for half an hour of service and the accused would take a commission of about $10. Sometime in June 2008, the accused’s business in providing lodging to prostitutes deteriorated and a Chinese friend offered to introduce the accused to some contacts who could provide him with drugs for sale. The accused was introduced to ‘Ah Man’ and arrangements were made for the first consignment of heroin.

[10] The first consignment of drugs arrived sometime in June 2008 and in the first consignment, the accused was given 30 packets of heroin for sale. Of the 30 packets of heroin, the accused passed 15 packets back to ‘Ah Man’; he sold 12 packets and consumed the remaining 3 packets himself. One week after the first consignment, the accused informed ‘Ah Man’ that he needed more heroin and one day after this conversation, ‘Ah Man’ informed the accused that someone would deliver the second consignment of heroin to him.

[11] In the second consignment, the accused received 30 packets worth of heroin. He again passed 15 packets of heroin back to ‘Ah Man’. Of the 15 remaining packets, the accused sold 12 packets, and kept 3 packets for self-consumption. When the accused finished selling the second consignment of drugs, he ordered a third consignment of drugs, which consisted of the same amount of heroin as per the first and second consignments.

[12] The third consignment arrived in July 2008. However, the heroin came in 2 large bundles which required the accused to repack them into smaller packets for sale. The accused then purchased small plastic packets for this purpose as well as an electronic weighing scale to weigh the heroin. The accused repacked the heroin received into about 30 packets of about 8 g each. For the third consignment, ‘Ah Man’ only took 10 packets of heroin from the accused. Of the remaining 20 packets, the accused sold about 15 to 16 packets and he consumed the rest of them. In mid July 2008, ‘Ah Man’ contacted the accused asking him if he needed to replenish his supply of heroin. The accused then ordered more heroin as well as some ‘Ice’ (street name for crystal methamphetamine) for his own consumption.

[13] The fourth consignment arrived sometime towards the end of July 2008 and consisted of two big bundles of heroin, one bundle being white in colour and another bundle being brown in colour. The accused repacked the two big bundles of heroin into about 30 small packets, of which 10 packets were passed to ‘Ah Man’. After setting aside about 4 to 5 packets for consumption, the accused tried to sell the remaining 15 to 16 packets. However, he managed to sell only 6 to 7 packets of heroin leaving a balance of about 9 packets unsold. In the fourth consignment, the accused also purchased for the first time, 25 grams of ‘Ice’ from ‘Ah Man’.

[14] Sometime in early August 2008, ‘Ah Man’ called the accused and asked the accused if he wanted to replenish his supply of heroin. The accused ordered more heroin and on about 5 or 6 August 2008, the accused received the fifth consignment of heroin. The fifth consignment consisted of two black taped bundles and the accused then repacked the drugs into 30 smaller packets of about 8 g each. ‘Ah Man’ did not take any packets of heroin from the accused for this consignment and the accused consumed about 2 packets, while intending to sell the rest. The accused sold about 9 packets of heroin with about 19 packets remaining. Before the accused could sell off all the packets of heroin, ‘Ah Man’ called again on about 8 or 9 August 2008 and asked if the accused wanted to order more heroin. Although the accused still had unsold packets of heroin, he agreed to take the sixth consignment of heroin first and see how many packets he could repack them into.

[15] After speaking to ‘Ah Man’, the sixth consignment arrived on the same day in the evening of 8 or 9 August 2008. The sixth consignment consisted of 3 bundles, and like the fifth consignment, they were sealed with black tape. These were the 3 bundles marked A4A1, A4B1 and A4C1 (see table at [7] above). Like the 5 consignment, the accused did not pass any packets of heroin to ‘Ah Man’. On 12 August 2008, ‘Ah Man’ called again and the accused ordered more ‘Ice’. The accused was informed that the seventh consignment would arrive on the same day and that he would be notified of its arrival.

[16] Although the accused only ordered ‘Ice’, he agreed nonetheless to take another 30 packets of heroin as well when the seventh consignment arrived. After taking the drugs, the accused was subsequently arrested by CNB officers (see “Events leading up to the arrest” at [2] to [7] above).

[17] It was the prosecution’s case that unless otherwise rebutted, s 17(c) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed)(“MDA”) presumes that the 28 packets (containing 9.92 grams of diamorphine) together with the 3 bundles of heroin (containing 13.46 grams of diamorphine) found in the room 188 apartment were in the possession of the accused for the purpose of trafficking. The defence tried to rebut the presumption by claiming that the 3 bundles of heroin were for his own consumption, thereby bringing the quantity of drugs for trafficking below the 15 g threshold. Essentially, the accused’s defence was that the accused was only trafficking in the 28 packets containing 9.92 grams of diamorphine and the prosecution should not have included the 3 bundles of heroin containing 13.46 grams of diamorphine into the amount trafficked by the accused as these were for his own consumption. The prosecution argued that the presumption was not rebutted for two main reasons. First, the prosecution relied on the accused’s statements to prove that the accused had always intended to sell the heroin in his possession i.e. both the 28 packets and the 3 bundles of heroin. Second, the prosecution also argued that it was not believable that the accused would set aside or purchase such a large quantity of drugs (i.e. containing 13.46 grams of diamorphine) for his consumption. Not only did the accused not have the financial means of doing so, but his account of self-consumption was also unbelievable.

[18] I will set out the first argument before turning to the second argument.

[19] The prosecution’s first argument was straightforward. The prosecution argued that it was apparent from the second statement that the accused had always intended to sell the 28 packets and 3 bundles of heroin:

[20] The 4 plastic bags (blue, white, black and red) referred to in Q11 of the second statement were with reference to the drugs found in the room 188 apartment and they included exhibits A4A1, A4B1 and A4C1, viz, the 3 bundles of granular substance alleged by the accused to be for his own consumption. During cross-examination, the accused’s explanation for his answer to Q13 was that despite having told the recorder of the second statement (i.e. Staff Sergeant Wong Kum San Malvern (“Staff Sergeant Wong”) that the drugs found in the room 188 apartment were partly for sale and partly for consumption, this was not accurately recorded down. In reply, the prosecution argued that had this been true, “given the materiality of this… [argument to]…the accused’s defence, one would expect that this would have been put to SSgt Malvern…when he took the stand”. Since no such allegations were put to SSgt Wong on cross-examination, this must therefore mean that such allegations were merely a defence created as an afterthought by the accused. The prosecution further asserted that one could arrive at the same conclusion by looking at the fifth statement – recorded by Assistant Superintendent Gary Chan (“ASP Chan”) – which clearly stated that the three bundles of granular substance (A4A1, A4B1 and A4C1) found under the bed were meant for sale:

[21] I will now turn to the prosecution’s second argument.

[24] The prosecution asserted that this change in position strongly suggested that the accused’s defence – that the 3 bundles of heroin were for self-consumption – was “nothing more than an afterthought and cannot [therefore] be believed”.

[25] Further, the prosecution also argued that the accused’s account of having consumed the heroin from A4A1 was unconvincing and unpersuasive. A4A1 was one of 3 black bundles found in a red plastic bag in the room 188 apartment. The black bundle was held together with black tape and newspaper wrapping and to consume heroin from the black bundle, the accused had to undo the tape and wrapping before removing a Ziploc bag and then use a straw to scoop the desired amount that he wished to consume. The accused would go through this process of “accessing and rewrapping A4A1” (emphasis added) whenever he needed to consume the drugs. The prosecution argued that the accused’s account defied logic because it did not seem physically possible for the accused to reuse the newspaper and black tape repeatedly and it was more likely that both the black tape and newspaper would not have been usable for the purposes of rewrapping, once they have been undone. A more logical process suggested by the prosecution was for the accused to ensure that the Ziploc bag in A4A1 was zipped up properly after use rather than going through the cumbersome process of rewrapping.

[26] The case for the defence was also a straightforward one. As I have already alluded to earlier, the defence’s case was that the 3 bundles of heroin (marked A4A, A4B and A4C) were meant for self-consumption i.e. the accused was only guilty of trafficking 9.92 grams of diamorphine, and hence, the mandatory death penalty for trafficking in amounts above 15 grams was inapplicable. I will now set out in extenso the material arguments for the defence of consumption.

(a) The 3 bundles of heroin were not packed for sale in smaller packets and the fact that the bundles were “opened and restored in a rough and ready” paper and black tape manner suggested that the bundles were not meant for trafficking. It was the “modus operandi” of the accused to “reduce the bundles into sachets whenever he received them from Ah Man”.

(b) Unlike previous consignments, where the accused would pass a certain quantity of heroin back to ‘Ah Man’ for the latter’s use, there was no such agreement for the 6 consignment. This “lack of a record of any agreement” reflected that the 6 consignment was made in a “cavalier” fashion “for the simple reason that [the accused] had not intended to traffic the 3 bundles…but rather [had intended] to consume it”.

(c) Neither the accused nor ‘Ah Man’ was aware of the actual weight of the heroin in the three bundles. This suggested that the drugs were indeed intended for self-consumption. Further, the police did not find any empty packets in the room 188 apartment and the absence of packing materials further supported the defence of consumption.

(d) There were packets of heroin found on the white tray of the dressing table in the room 188 apartment. Since the accused had quantities of heroin left unsold, there was therefore no need for the accused to purchase additionally the 3 bundles of heroin for the purpose of trafficking. The fact that the accused only went to see Tan on 12 August 2008 for the purpose of obtaining ‘Ice’ was further reflective of the accused’s intention to stop trafficking in heroin.

(e) The accused was also a heavy addict and took 4 g of heroin a day and he would suffer from withdrawal symptoms whenever he did not consume heroin. It was therefore believable that the 3 bundles of heroin were purchased for the sole purpose of consumption.

(f) There were consumption utensils, which were not recovered by the CNB officers from the room 188 apartment during their search and seizure of the flat. Had the consumption utensils been recovered, they would have provided credible support to the accused’s claim that he was a heavy addict and that the 3 bundles were intended for his own consumption.

(g) As for the prosecution’s case that the accused was in financial distress and had therefore no means to afford the 3 bundles of heroin, this was equally characteristic of a “haphazard [drug] user” who would accept delivery of the drugs without “considering the financial implication[s]”. In any case, the prosecution did not take into account any revenue that was made by the accused in selling ‘Ice’, which could have otherwise financed the accused’s own consumption. Further, the accused had more than $6,500 in his possession and was therefore not in real financial desperation.

[27] Trafficking in controlled drugs is an offence under s 5 of the MDA and a person commits the offence of trafficking in a controlled drug if he has in his possession that drug for the purpose of trafficking:

[28] Section 17(c) of the MDA (“the s 17 presumption”) further presumes that any person who has in his possession more than 2 grams of diamorphine is presumed to have had that drug in his possession for the purpose of trafficking:

[29] After considering the submissions of the prosecution and the defence, I find that the accused has not, on a balance of probabilities, rebutted the s 17 presumption. In rejecting the defence of consumption, I have taken into account the following considerations, viz, (i) the financial means of the accused; (ii) the accused’s account of self-consumption; (iii) the accused’s failure to raise the defence of consumption in his statements to CNB; (iv) the accused’s ready access to heroin; and (v) the accused’s change of position during the trial.

[30] First, I did not think that the accused had sufficient financial resources to purchase such a large amount of heroin contained in the 3 bundles for his self-consumption. In ascertaining his financial means, I looked at (i) the amount of money the accused owed ‘Ah Man’; (ii) the accused’s savings and assets; and (iii) the accused’s earnings and expenses.

[33] Apart from the table (Exhibit P198) produced above, the prosecution also adduced another table (Exhibit P197), which clearly demonstrated that the accused was having a poor cash position. The accused had purchased about $24,000 (see column ‘B’ below) of heroin from ‘Ah Man’ of which the accused had managed to sell only $14,000 worth of heroin (see column ‘C’ below). This meant that the accused was operating at a cash deficit of $10,000 (see column ‘E’ below), despite him having some $7,000 worth of unsold heroin at the point of arrest (see column ‘G below).The contents of Exhibit P 197 were also accepted by the accused:

[34] While the accused might have had earnings from selling ‘Ice’, I placed less weight on this considering the fact that there was only one consignment (i.e. the fourth consignment) where the accused had purchased ‘Ice’. Although the accused also purchased ‘Ice’ in the seventh consignment, this did not factor into my assessment because the drugs for the seventh consignment were seized when the accused was arrested on the 12 August 2008. While the accused claimed to have had made profits from selling ‘Ice’ and he agreed that the profits could amount to some $2,000 to $2,200, he was somewhat reticent and evasive in replying to the prosecution’s queries on these profits. In particular, the accused was unable to answer why if selling ‘Ice’ was so profitable, he had failed to mention this to the CNB officer who had seized the $6,539.20 from the room 188 apartment:

[35] Moreover, the financial means of the accused must be measured in a holistic manner, taking into account his savings, expenses and assets. Even if I were to give the benefit of the doubt to the accused (see [26 (g)] above), and accept that he had made some profit from selling ‘Ice’, I would still have to consider the other items which would affect his entire financial situation.

[36] Of the $6,539.20 found in the room 188 apartment, the accused testified that this sum of money was intended to be used as working capital for his prostitution business, as well as to pay for his rental and meals. This sum was therefore not intended to be used for drug related purchases or repayments. The accused also clarified that of this sum, only about $2,000 came from sources of income unrelated to drug sales. Apart from this, the accused had little savings. He essentially did not have much money:

[37] Apart from the selling of drugs, the accused also worked as a part-time coffee shop assistant earning a salary of about $600 to $800 per month. However, his income as a coffee shop assistant was not fixed and it depended on the number of days he worked. Similarly, his business dealings with prostitutes did not generate a regular stream of income:

[39] Taking into account the large sum of money the accused owed ‘Ah Man’, the accused’s minimal savings, as well as his high expenses and irregular earnings, I concluded that the accused did not have the financial resources to purchase the 3 bundles of heroin for his own consumption. The accused intended to repack the heroin in the 3 bundles into smaller satchets and thereafter sell them. It did not appear logical for someone, as heavily in debt as the accused, to incur greater debt by purchasing 3 additional bundles of heroin for his self-consumption when he already had other unsold sachets of heroin that he could have easily taken for his own use. Therefore, despite the purported earnings from the accused’s sale of ‘Ice’, I believed that the accused’s overall financial situation made it very unlikely for him to buy the 3 bundles of heroin for his own consumption.

[40] Second, I accepted the prosecution’s submission that the accused’s account of his consumption was not believable. Of the 3 bundles, the accused claimed that he only consumed from the bundle marked A4A and he would re-tape the bundle each time after removing a desired quantity of heroin from the bundle with a straw. As I have earlier already described, the heroin was packed in a Ziploc bag, wrapped in newspaper and held together by black tape. In explaining his process of consuming heroin from A4A, the accused said he would not use fresh black tape or newspaper, but old tape and old newspaper from the original packaging of the bundle. I found this explanation hard to accept. The accused gave evidence that in the two days prior to him being arrested, he had opened and repacked A4A about eight times. If the accused’s account was to be believed, it was not possible for A4A to be repacked and reopened that many times without using new tapes or fresh newspapers because each time the bundle was opened, the packaging would be ruined as the newspaper stuck to the tape would have to be torn apart. The accused was unable to provide a satisfactory answer to this:

[41] When the accused was pressed for a reason as to why he did not simply remove a small quantity of heroin from the 3 bundles for self-consumption and minimise the trouble of re-opening and re-packing every time he needed to consume heroin, the accused was equally unable to provide a logical explanation:

[42] In essence, the accused’s account of how he went about consuming heroin from one of the 3 bundles did not appear to me to be a sensible or genuine one. If the accused truly wanted to consume the heroin from A4A, it would not be practical nor convenient for him to reseal the heroin every time. It would be much easier to take from the other packed heroin satchets he had with him. For the above reasons, I rejected the accused’s account that the heroin in the 3 bundles were meant exclusively for his own consumption.

[43] Third, the accused never once raised the defence of consumption (i.e. the 3 bundles of heroin A4A1, A4B1 and A4C1 were for his own consumption) in his five s 121 statements to CNB. Similarly, the accused had nothing to say or add in his s 122(6) cautioned statement. The defence of consumption was only mentioned during the cross-examination of ASP Chan. It was raised by counsel for the accused, on the latter’s instructions:

[44] Under s 123(1) of the CPC, I may draw an adverse inference from the accused’s failure to mention his defence in his s 122(6) statement. The purpose of s 123 is really to compel the accused to outline his defence immediately upon being charged to guard against defences raised at trial as afterthoughts (see Yap Giau Beng Terrence v Public Prosecutor [1998] 2 SLR(R) 855 (“Yap Giau Beng Terrence”)). Similarly, adverse inferences may also be drawn for s 121 statements (see Lim Lye Huat Benny v Public Prosecutor [1995] 3 SLR(R) 689) (“Lim Lye Huat Benny”).

[45] Whether an adverse inference should be drawn depends on the totality of the evidence and it really is a matter of judgment for the trial judge (see Lau Lee Peng v Public Prosecutor [2000] 1 SLR(R) 448). However, as was noted by Yong CJ in Yap Giau Beng Terrence, it is not in every case that an adverse inference should be drawn. Be that as it may, there would be legitimate explanations which would be so evident to even lay persons facing a criminal charge that the omission to mention such defences would warrant the drawing of an adverse inference (at [38]):

[46] Whether it is reasonable for an accused person to omit his defence would therefore ultimately depend on the facts of the case. In Lim Lye Huat Benny, the Court of Appeal placed little weight on the accused’s omission to mention his defence in his s 122(6) statement because the s 122(6) statement was recorded “at the unearthly time between 4.25 am and 4.55 am and the [accused had] said that at that time he was too tired and hungry to think of his defence” (at [24]; emphasis added). In this case, while the s 122 (6) statement was recorded at 5.06 am on 13 August 2008, there were otherwise no recorded complaints made by the accused along the lines that he was unwell or that he was suffering from any withdrawal symptoms which might affect his ability to mention his defence.

[47] In fact, the medical examination conducted by Dr Gavin Ong (“Dr Ong”) at 2.42 am on 13 August 2008 – as part of pre-statement examination – recorded nothing apart from minor abrasions over the accused’s right elbow, which the accused explained was sustained during a recent fall. The accused did not complain to Dr Ong that he was sick or unwell. The post-statement examination conducted also by Dr Ong at about 5.22 am on 13 August 2008 was similarly unremarkable, and once again the accused did not complain of any physical illness.

[48] While I might add that the accused was referred to a doctor for withdrawal symptoms, this only took place in the afternoon of 13 August 2008 at 5.46 pm. The s 122(6) statement was therefore recorded before this at 5.06 am in the morning of 13 August 2008. The accused was admitted into the Complex Medical Centre at Changi Prison for medical treatment and only discharged on 17 August 2008. On his discharge, he was seen by Dr Choo Shiao Hoe, and it was noted that the accused “had no more medical complaints” and that there was also “no [further] signs of drug withdrawal”.

[49] As for the s 121 statements, they were recorded on 12 August 2008, 18 August 2008 and 19 August 2008. These statements, like the s 122 (6) cautioned statement, were therefore also not tainted by the accused’s withdrawal symptoms in any way.

[50] The accused was well aware that he was being charged for trafficking and it was evident to me that any reasonable lay person would be able to ascertain that a defence of consumption would be relevant information to such a charge. Even if I were to give the accused the benefit of a doubt for the s 122(6) cautioned statement because it was recorded in the early hours of the morning, the absence of any reference to the defence of consumption in all his s 121 statements was rather puzzling. Unlike the case of Lim Lye Huat Benny, the s 121 statements were all recorded in the afternoon and since the accused was in a healthy state of mind on these occasions, I drew an adverse inference against the accused for failing to mention the defence of consumption in any of these statements.

[51] While the accused did explain in court that his s 121 statements were not recorded accurately by the CNB, I rejected this argument and I would now turn to analyse this allegation.

[52] Fourth, the accused was inconsistent in the evidence given in both his recorded statements and in court. When SSgt Ng from the CNB asked the accused about the 3 bundles of heroin under his bed, the accused said in his second statement that he intended to sell the heroin to his customers:

[53] However, in court, the accused changed his position and claimed that the 3 bundles of heroin were for self-consumption. In so doing, the accused alleged that SSgt Ng had deliberately misrecorded his statement:

[54] This was despite the accused having given the same answer – that the 3 bundles of heroin were for sale – to ASP Chan in the fifth statement. The relevant excerpts to the fifth statement are reproduced below:

[55] On cross-examination, the accused similarly claimed that the fifth statement was recorded erroneously by the CNB:

[56] I did not accept the accused’s version that the CNB officers had misrecorded the accused’s statements deliberately or otherwise. Given the fact that the CNB recording officers would not have known the exact quantity of diamorphine in the 3 bundles under the bed at the time of the recording, there was therefore no basis or logic for me to accept the accused’s version of events, which tended to suggest that the CNB officers had an incentive to amalgamate the heroin exhibits meant for sale so that the total quantity of diamorphine for trafficking would exceed 15 grams and the accused would then face a capital charge. The defence did not adduce anything during the course of the trial, which could remotely even suggest or explain the presence of such alleged misbehaviour.

[57] Indeed, the allegations of misbehaviour by the accused was an incredible one not against one, but two separate CNB officers, committed in the course of recording the second and fifth statements. In the case of the fifth statement, I would further note that there was also an interpreter – Mr Wu Nan Yong – who acted as a translator. To allege that the fifth statement was wrongly recorded was to allege that not only the CNB officer – ASP Chan – was guilty of misbehaviour, but that the interpreter was similarly guilty of such collusion. In the absence of any credible evidence, I rejected this argument completely. In coming to my conclusion, I was supported by the fact that counsel for the accused did not challenge the accuracy of the records or put such misbehaviour to both SSgt Ng and ASP Chan when they took the stand. This was despite the accused’s admission that he had known of these “errors” when he came to court. The irresistible conclusion must be that the statements were accurately recorded and interpreted to the accused. In my opinion, they reflected the truth, viz, the accused had intended to sell the 3 bundles of heroin found under his bed:

[58] Fifth, the accused also testified that ‘Ah Man’ was a quick and ready source of heroin, and that he was always able to obtain any heroin he ordered from ‘Ah Man’ within a matter of days and sometimes on the same day of ordering:

[59] If ‘Ah Man’ was a ready source of heroin, I found it curious that the accused would feel the need to stockpile about two month’s worth of heroin for his own consumption. The accused was unable to provide any credible reason as to why he had to stockpile such a large quantify of drugs and in the absence of a persuasive explanation, this was a further pointer that the accused’s defence of consumption was false. Indeed, I should also note that the accused admitted that he had never informed ‘Ah Man’ or Tan that he was not selling the 3 bundles of heroin, but was keeping them instead for his own consumption.

[60] Sixth, as submitted by the prosecution, the accused’s change of position during the trial strongly suggested that his defence of consumption was an afterthought. Prior to being cross-examined, the accused’s position, as expressed through his counsel, was that he was able to afford the 3 bundles of heroin because he had already made some money from selling previous consignments of drugs. On cross-examination, the accused said that he was unable to afford the drugs but was nonetheless allowed to take the drugs on credit, and if the need arose, he could pawn his valuables for repayment as well. In explaining the discrepancy, the accused suggested that his counsel could have misheard his instructions:

[61] I found this explanation a strained and unconvincing one; and I therefore agreed with the prosecution that the accused’s sudden change of position was an indication that his version of events was untrue.

[62] For all the above five reasons (see [30] to [61]), I did not accept the accused’s defence of consumption. These five areas aside, counsel for the accused also raised several other arguments, which I rejected as well. The arguments have been set out above (see [26] above) and I will now give my reasons.

[63] First, I did not think that there was anything remarkable with the unpacked state that the 3 bundles of heroin were found in. I did not agree with the defence (see [26(a)] above) that this necessarily suggested that the accused had intended to consume the 3 bundles of heroin by himself. While it might be the accused’s usual practice to reduce heroin into smaller packets, there were still unsold packets of heroin found in the accused’s apartment, and one could equally infer that there was no pressing need for him to repack the 3 bundles of heroin for sale, unless a large purchase order for heroin had been received by the accused.

[64] Second, I would also not read too much into the fact that ‘Ah Man’ did not arrange for the accused to pass him heroin from the sixth consignment. The lack of an arrangement, the defence suggested, meant that the 3 bundles of heroin were purchased in a “cavalier fashion” for the accused’s own consumption (see [26(b)] above). In my view, this is mere speculation and I need only refer to the fifth consignment to show that the absence of such an arrangement is neither peculiar nor unique (see [14] above). In the fifth consignment, ‘Ah Man’ may not have asked the accused to pass him heroin, but it is not disputed that the accused had intended to sell away all the drugs from the fifth consignment.

[65] Third, even if the accused was unaware of how heavy the 3 bundles of heroin weighed, this did not necessarily mean that they were not for sale (see [26(c)] above). In fact, only the first consignment of heroin was delivered in ready packed portions that were sellable (see [10] above). The third, fourth and fifth consignments were all delivered in rough amounts, after which the accused would try to repack them into smaller quantities of 8 g each (see [12] to [14] above). The accused was therefore accustomed to the taking of a rough amount of heroin without knowing its weight and then repacking them into smaller packets subsequently. While the CNB officers might not have found empty packets in the room, I did not agree with the defence that this implied that there were no packing materials, and that the 3 bundles were therefore for the accused’s consumption. To the contrary, I need only point to the two weighing scales that were found in the room 188 apartment, the only discernible purpose of which I could see was for the accused to weigh the amount of heroin for repacking into smaller packets for sale.

[66] Fourth, just because the accused had unsold packets of heroin did not necessarily preclude him from obtaining more heroin for sale (see [26(d)] above). I would not agree with the defence that the accused must wait until he had depleted his supply of heroin before procuring more from ‘Ah Man’. On at least two occasions, the accused had procured more drugs when he had yet to sell off his existing supply of heroin. In the first instance, the accused was unable to sell off the fifth consignment but had agreed nonetheless to take on the sixth consignment. In the second instance, the accused was also unable to sell off his fifth and sixth consignments but had nonetheless agreed to take on the 30 extra packets of heroin in the seventh consignment. Looking at the evidence collectively, the accused was not adverse to the taking on of more drugs for sale even if he had an outstanding supply of heroin unsold. For the same reasons, just because the accused went to see Tan on 12 August 2008 for the sole purpose of obtaining ‘Ice’, I did not think that this was necessarily reflective of his intention to stop trafficking in heroin (see [26(d)] above).

[67] Fifth, I did not agree with the suggestion that the accused’s heavy usage of heroin would necessarily make the defence of consumption a more believable one (see [26(e)] above). While the accused had suffered from withdrawal symptoms, the defence did not call on any expert witness to establish any possible correlation between the quantity of heroin consumed and the severity of withdrawal symptoms. Even if one assumed that there was indeed a correlation, I would note that a physical examination conducted on 13 August 2008 (one day after the accused’s arrest) clearly showed that he only suffered from mild withdrawal symptoms. In the absence of any expert evidence to the contrary, I was not persuaded that the accused was so severe a drug addict that he would have ordered 3 entire bundles of heroin for the sole purpose of consumption. The relevant excerpts to the medical report dated 13 October 2008 by Dr Norkhalim Dalil is reproduced below:

[68] In any case, it was noted by Yong CJ in Fung Choon Kay v PP [1997] 2 SLR(R) 547, that just because an accused was an addict was not in itself conclusive of the defence of consumption and much still depended on the totality of the evidence (at [17]):

Having considered the totality of the evidence (see [30] to [61]), I was not satisfied on a balance of probabilities that the defence of consumption was a genuine one.

[69] Sixth, the defence’s suggestion that there could be consumption utensils not recovered by the CNB officers was an incredible one (see [26(f)] above). There was absolutely nothing to suggest that the CNB officers were negligent in processing the crime scene or that they had acted in bad faith. I placed no weight at all on this line of argument and rejected it completely.

[70] For all the above reasons, I found that the accused had not rebutted the s 17 presumption on a balance of probabilities. I found that the accused was in financial distress and did not have the financial means to afford 3 bundles of heroin for his consumption. Moreover, the accused’s account of consumption was an illogical and baffling one. His failure to mention the defence of consumption in all his statements to the CNB strongly suggested that the defence was an afterthought. Moreover, the accused’s ready access to heroin from ‘Ah Man’ meant that there was simply no reason for him to stockpile on the drug. In fact, what was most damning to the accused were his voluntary statements to the CNB officers which indicated that the 3 bundles of heroin were for sale.

[71] I also found that the accused’s change of position during the trial and his replies in court did not lend themselves to establishing an impression that he was a credible witness. He was often evasive in his answers and was often not forthright to even some very straightforward questions. In all, the prosecution has therefore proven its case beyond a reasonable doubt that the accused had in his possession not less than 23.38 grams of diamorphine for the purpose of trafficking, thus committing an offence under s 5(1)(a) read with s 5(2) of the MDA. I therefore convict the accused and sentence him according to the law as stated in s 33 of the MDA.