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Grounds publishedDecided 29 Apr 2011
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High Court

Public Prosecutor v Mas Swan bin Adnan and another

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[2011] SGHC 107Case no. Criminal Case No 22 of 2010

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  1. Steven Chong J:

  2. Introduction

  3. [1] The two accused persons are Malaysians from the state of Johor, Malaysia. The first accused is Mas Swan Bin Adnan (“Mas Swan”), 27 years old and unemployed at the time of his arrest; the second accused is Roshamima Binti Roslan (“Roshamima”), nicknamed “Wawa”, a 24-year-old recovery officer for a bank in Malaysia at the time of her arrest. The two were in a romantic relationship and were due to be engaged on 6 June 2009 and get married the following day. Their marriage plans came to an abrupt halt, however, after they were arrested on 6 May 2009 when entering Singapore in a Malaysian-registered motor car bearing registration number JHA 7781 (“JHA 7781”). Three bundles comprising 123 packets containing a total of 21.48 grams of diamorphine were found in the car.

  4. [2] As a result, they were committed to stand trial on one joint charge under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) for importing not less than 21.48 grams of diamorphine read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed”) (“Penal Code”) (“the Charge”):

  5. [3] In their respective defences, both accused persons adopted different and sometimes conflicting positions. Essentially, Mas Swan admitted to importing bundles which he believed contained “ecstasy” pills and implicated Roshamima as well, whereas Roshamima denied having any knowledge of the existence or presence of the bundles in the car altogether.

  6. Background facts

  7. The events leading up to the arrests

  8. [4] On 6 May 2009, at about 9.56 pm, Mas Swan and Roshamima arrived at the Woodlands Immigration Checkpoint (“Woodlands Checkpoint”) from Malaysia in JHA 7781. When Corporal Muhammad Ilhan Bin Rahmat, the Immigration and Checkpoints Authority (“ICA”) officer who was on duty at Counter 28, screened Mas Swan’s passport for clearance, he was immediately alerted that Mas Swan had been blacklisted. The ICA Quick Response Team (“QRT”) was notified and they dispatched two officers to Counter 28. After they arrived, the QRT officers gave instructions to Mas Swan to drive to the ICA Arrival Car Secondary Team Office (“ST Office”) and to park JHA 7781 at one of the parking lots, with which instructions Mas Swan complied.

  9. [5] Mas Swan and Roshamima were later directed to drive JHA 7781 to the Inspection Pit with an ICA officer in the rear seat. At the Inspection Pit, a manual search of the interior and undercarriage of JHA 7781 was carried out but nothing incriminating was found. Mas Swan was then instructed to drive JHA 7781 to the Scanning Area where a backscatter scan (ie, an X-ray scan using a Backscatter Van) was conducted on the car. The scan detected three dark spots in the front left door panel of JHA 7781. One of the ICA officers shone his torchlight into the door panel and spotted a green bundle inside.

  10. [6] The Police K-9 unit was mobilised but the dogs did not detect the presence of any drugs. JHA 7781 was then driven to the Detention Yard for a more thorough inspection, and Mas Swan and Roshamima were escorted there on foot. At the Detention Yard, the front left door panel was opened partially and three bundles were retrieved from within the door panel: two were wrapped in green tape (the “green bundle” or “green bundles”, as the case may be) and one was wrapped in black tape (the “black bundle”). One of the green bundles was cut open by Sergeant Muhammad Jasman Bin Sinwan (“Sgt Jasman”) using a pen knife in the presence of Mas Swan and Roshamima and it was found to contain brown granular substances. Sgt Jasman could not recall, however, whether he had shown the brown substance to Mas Swan or Roshamima. Both Mas Swan and Roshamima were immediately placed under arrest and officers from the Central Narcotics Bureau (“CNB”) were notified accordingly.

  11. [7] One green bundle consisted of 61 smaller packets which subsequent analysis by the Health Science Authority (“HSA”) showed to contain 6.81 grams of diamorphine. The other green bundle comprised 61 smaller packets which were found to contain 6.55 grams of diamorphine. The black bundle comprised just one packet and was found to contain 8.12 grams of diamorphine. The diamorphine found in all three bundles formed the subject of the Charge against both Mas Swan and Roshamima (see [2] above). Mas Swan and Roshamima did not challenge the analysis by the HSA of the nature or of the weight of the granular substances contained in the bundles seized from JHA 7781.

  12. [8] Mas Swan and Roshamima were then taken to the CNB B3 Office at Woodlands Checkpoint at about 12.40 am on 7 May 2009.

  13. The statements recorded from Mas Swan

  14. [9] After they were brought to the CNB B3 Office at Woodlands Checkpoint, Sergeant Azhar Bin Abdul Aziz (“Sgt Azhar”) recorded a contemporaneous statement (“P31”) from Mas Swan between 1.43 am and 1.55 am. A total of four questions were posed in Malay to Mas Swan who also gave his answers in Malay. Sgt Azhar recorded the entire statement in English:

  15. After recording the statement, Sgt Azhar interpreted it back to Mas Swan in Malay and he duly signed it.

  16. [10] At 3.21 am, a police report was lodged at Woodlands Checkpoint Police Station and the three bundles found in JHA 7781 were seized. Both Mas Swan and Roshamima were sent to the CNB headquarters at the Police Cantonment Complex (“PCC”), where Assistant Superintendent of Police Chan Gin Choong (“ASP Gary Chan”) recorded a cautioned statement from Mas Swan (“P32”) under s 122(6) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”) with the assistance of a Malay interpreter, Ms Sofia Bte Sufri (“Ms Sofia”). ASP Gary Chan, who had earlier been appointed the investigating officer at around 12.30 am, spoke in English and recorded the following confession in P32 from Mas Swan between 8.02 am and 8.34 am of 7 May 2009 in his office (room B0310B):

  17. During the trial, Mas Swan challenged the admissibility of P32 which, accordingly, became the subject of a voir dire. I will be addressing the admissibility of P32 in a later section of my judgment (see [21]–[31] below).

  18. [11] Another six long statements were recorded from Mas Swan under s 121(1) of the CPC:

  19. [12] Initially, the admissibility of P35 was also contested but counsel for Mas Swan, Mr Kanagavijayan, confirmed during the voir dire that he was withdrawing that challenge after it became apparent that Mas Swan’s position regarding P35 was not that the statement was involuntarily made but that he had not mentioned some words ascribed to him in the statement.

  20. The statements recorded from Roshamima

  21. [13] While at the CNB B3 Office at Woodlands Checkpoint, Corporal Mohammad Nasran Bin Mohd Janbari (“Cpl Nasran”) (now a Sergeant) recorded a contemporaneous statement (“P30”) from Roshamima between 2.05 am and 2.20 am on 7 May 2009. Woman Sergeant Palan Hemmamalani was present throughout the recording. Cpl Nasran posed a total of six questions in Malay to Roshamima, who answered all the questions in Malay. Cpl Nasran recorded P30 in English:

  22. After recording the statement, Cpl Nasran interpreted it back to Roshamima in Malay which she duly signed.

  23. [14] Roshamima was taken to CNB headquarters at PCC (see [10] above), where, from 8.40 am to 9.07 am on the same day, in CNB office room B0310B, ASP Gary Chan recorded a cautioned statement (“P33”) from her with the help of Ms Sofia (the same interpreter who assisted in the recording of Mas Swan’s statements). P33 reads as follows:

  24. [15] Four long statements were later recorded from Roshamima:

  25. All six statements recorded from Roshamima were admitted as evidence without challenge.

  26. Items found in their possession

  27. Money

  28. [16] Upon their arrest, a total of RM1,579.90 was found on Mas Swan whereas Roshamima was found to be in possession of money in Malaysia and Singapore currencies totalling RM76.40 and $74.00.

  29. Mobile phones and SIM cards

  30. [17] Mas Swan was found to be in possession of a Nokia N73 model mobile phone with a Malaysian SIM card while Roshamima was found to be in possession of a Nokia 6300 model mobile phone with a Malaysian SIM card. Both phones were forensically examined on 4 August 2009 and on 12 September 2009 respectively. The contact lists, recent call records and SMS text messages stored on both phones were extracted as part of the forensic examinations and were tendered by the Prosecution as evidence in court.

  31. Global Positioning System (“GPS”) device

  32. [18] A GPS device was also seized from JHA 7781. At the start of the trial, counsel for Roshamima, Mr Muzammil, sought to discover the last known location that was programmed into the GPS device. However, the GPS device was inoperable because no one could supply the Personal Identification Number that was required to unlock the device.

  33. ICA travel movement records of Mas Swan and Roshamima

  34. [19] The Prosecution also adduced the ICA travel movement records in and out of Singapore for Mas Swan (“P101”), Roshamima (“P102”), and a Malaysian man called “Murie” (real name Mohd Yazrizamurry Bin Md Yasir) (“P103”) who had entered Singapore through Woodlands Checkpoint in another car around the same time on 6 May 2009. According to the testimony of Anmbalagi d/o Ayah, a data entry supervisor with the ICA, these automatically-generated records were retrieved from ICA’s computer system and showed information such as entry and exit dates and times, point of entry or exit (Woodlands or Tuas) and mode of transport (eg, car).

  35. The voir dire

  36. [20] As mentioned at [10] above, Mas Swan challenged the admissibility of P32 and P35. The challenge against P35 was subsequently withdrawn, and rightly so, given that Mas Swan’s position vis-à-vis P35 was that some words therein were not mentioned by him. In Seeraj Ajodha and others v The State [1982] AC 204 (an appeal to the Judicial Committee of the Privy Council from the decision of the Court of Appeal of Trinidad and Tobago) at 222, Lord Bridge of Harwich stated that if the Prosecution relied upon certain oral statements and the Defence’s case was simply that the interview never took place or that the incriminating answers were never given by him, no issue as to voluntariness and hence no question of admissibility arose. What was left for the trial judge to determine was a question of fact, ie, whether those words were stated by the accused or not. Accordingly, a voir dire was not necessary in relation to P35 and was, as such, conducted only in respect of the admissibility of P32.

  37. The law on the admissibility of confessions

  38. [21] Section 24 of the Evidence Act (Cap 97, 1997 Rev Ed) ( “EA”) governs the admissibility of a confession made by an accused person:

  39. [22] It must be noted that s 24 of the EA was recently repealed by the Criminal Procedure Code 2010 (No 15 of 2010) (“CPC 2010”). However, as P32 was recorded on 7 May 2009, before the CPC 2010 came into effect on 2 January 2011, the admissibility of P32 remained to be determined under s 24 of the EA.

  40. The parties’ respective cases on the admissibility of P32

  41. [23] Mas Swan’s case on the inadmissibility of P32 was simple and straightforward. He claimed that after the nature of the Charge and the prescribed death penalty were interpreted to him by Ms Sofia, the interpreter, she added the following words (in Malay) “Kalau mengaku nanti hukuman rendahkan” which translates to “If you admit, later the sentence will be reduced” (the “alleged inducement”). Mas Swan claimed that, as a direct result of what Ms Sofia had told him, he admitted to the Charge against him because he was fearful for his life.

  42. [24] The Prosecution’s case was that P32 was made voluntarily by Mas Swan and that the alleged inducement was simply a desperate attempt to deny its admissibility.

  43. The circumstances surrounding the recording of P32

  44. [25] Only three persons, Mas Swan, ASP Gary Chan and Ms Sofia, were present in ASP Gary Chan’s office during the recording of P32, and all three testified before me during the voir dire: ASP Gary Chan and Ms Sofia for the Prosecution and Mas Swan for himself.

  45. [26] During his cross-examination of ASP Gary Chan and Ms Sofia, Mr Kanagavijayan advanced two positions in the alternative: first, that the alleged inducement had come from ASP Gary Chan and Ms Sofia had merely interpreted the alleged inducement to Mas Swan; and second, that Ms Sofia had, of her own volition, made the alleged inducement to Mas Swan.

  46. [27] Ms Sofia testified that she had not been briefed about the case prior to the recording of P32 and that she had not conversed with ASP Gary Chan during the few minutes when she was with him in his office before Mas Swan was escorted there. ASP Gary Chan’s evidence was that he had not issued any threat, inducement or promise to Mas Swan during the recording of P32. He also refuted the suggestion by Mr Kanagavijayan that he had asked Ms Sofia to relay the alleged inducement to Mas Swan. Similarly, Ms Sofia testified that ASP Gary Chan did not instruct her to offer the alleged inducement to Mas Swan and that she did not make the alleged inducement of her own accord. She also gave evidence that she had used the words “diamorphine atau heroin”, which translates to “diamorphine or heroin”, when she explained the Charge to Mas Swan.

  47. [28] Although it was put or suggested to both ASP Gary Chan and Ms Sofia that the alleged inducement came from ASP Gary Chan or Ms Sofia, when it came to Mas Swan’s turn to testify, he was adamant that the alleged inducement was made by Ms Sofia and not ASP Gary Chan. According to Mas Swan (who claimed that he could understand a bit of what ASP Gary Chan had said in English), ASP Gary Chan did not say anything immediately before Ms Sofia made the alleged inducement. Mas Swan also testified that Ms Sofia did not say the words “or heroin” when she explained the Charge to him. Accordingly, the only issue that arose for determination in the voir dire was whether Ms Sofia had made the alleged inducement and had done so of her own accord.

  48. Conclusion on the admissibility of P32

  49. [29] I accepted Ms Sofia’s evidence that she did not make the alleged inducement to Mas Swan for the following reasons:

  50. (a) First, there was no conceivable reason for Ms Sofia, who was merely acting as an interpreter, to offer any inducement to Mas Swan of her own volition. I rejected Mr Kanagavijayan’s suggestion that Ms Sofia had made the alleged inducement in order to make her task easier by getting Mas Swan to admit to the Charge. In my judgment, there was simply no factual or logical basis for Ms Sofia, who was an interpreter of considerable experience (a total of 14 years when P32 was recorded), to believe that her task would be made easier once Mas Swan admitted to the Charge. In fact, what happened was that after P32 was recorded, she was subsequently involved in the recording of six other statements from Mas Swan. Clearly, her task was not made any easier by Mas Swan’s “confession” in P32.

  51. (b) Second, Mas Swan’s conduct was entirely inconsistent with his own case. Although Mas Swan claimed that he became fearful after being told of the death penalty, incredulously, he admitted that he did not ask for further details regarding the reduction of his sentence or seek independent assurance from ASP Gary Chan, whom Mas Swan knew full well was the investigator in charge of the interview.

  52. [30] In the result, I found that P32 was voluntarily made by Mas Swan without inducement and admitted it as evidence in the main trial. Accordingly, all the statements recorded from Mas Swan were admitted as evidence.

  53. [31] I remarked at the conclusion of the voir dire that Mas Swan’s challenge against the admissibility of P32 was wholly unnecessary. Notably, the Prosecution’s put to Mas Swan during the voir dire was that there could not have been any inducement as there was no mention of “diamorphine”, which was the subject matter of the charge, in P32. Further, the Prosecution readily accepted that Mas Swan did not admit to knowing that the bundles contained “diamorphine” in any of his statements. In other words, there was nothing in P32 which was materially different from what had already been disclosed in Mas Swan’s other statements which he did not challenge.

  54. The Prosecution’s case

  55. The statutory provisions

  56. [32] The following provisions of the MDA were relied upon by the Prosecution:

  57. The actus reus of the offence under s 7 MDA

  58. [33] The word “import” in s 7 of the MDA has the meaning found in s 2(1) of the Interpretation Act (Cap 1, 2002 Rev Ed) (see Ko Mun Cheung and another v Public Prosecutor [1992] 1 SLR(R) 887 (“Ko Mun Cheung”) at [20]):

  59. [34] There is obviously some overlap between “possession” and “importation”. Subject to proof of possession (which was admitted in the case of Mas Swan but denied by Roshamima), an act of importation would be made out since neither Mas Swan nor Roshamima had the requisite authorisation under s 7 of the MDA to do so. The remaining issue therefore goes towards the mens rea of the two accused persons.

  60. The mens rea of the offence under s 7 MDA

  61. [35] There is no doubt that the importation of drugs is not a strict liability offence and that proof of mens rea is required (see Ng Kwok Chun and another v Public Prosecutor [1992] 3 SLR(R) 256 (“Ng Kwok Chun”) at [37]). Similarly, the Court of Appeal in Abdul Ra’uf bin Abdul Rahman v Public Prosecutor [1999] 3 SLR(R) 533 (“Abdul Ra’uf”) at [26] cited the cases of Ko Mun Cheung, Ng Kwok Chun and Tse Po Chung Nathan and another v Public Prosecutor [1993] 1 SLR(R) 308 in support of the proposition that since importation of controlled drugs is not a strict liability offence, it is incumbent on the Prosecution to show that the appellant knew or intended to bring diamorphine into Singapore.

  62. [36] The appellant in Abdul Ra’uf was charged under s 7 of the MDA for importing into Singapore without authorization four packets containing not less than 21.45g of diamorphine. He was apprehended at the Woodlands Checkpoint. When he was questioned by one Ssgt Lai, the appellant said that “the thing” in his car was “behind the boot” and that there were “four packets” (see Abdul Ra’uf at [3]). The Court of Appeal in Abdul Ra’uf held that whether the appellant knew that the drugs were in the boot of his car was essentially a question of fact and having reviewed the evidence, it agreed with the trial judge that the appellant had failed to rebut the Prosecution’s prima facie case against him. The trial judge in Public Prosecutor v Abdul Ra’uf bin Abdul Rahman [1999] SGHC 187 at [10] held at the close of the Prosecution’s case that:

  63. What is worth noting is that the Court of Appeal in Abdul Ra’uf made no comment on the operation of the twin presumptions, ie, ss 18(2) and 21 of the MDA, relied on by the Prosecution at the trial below.

  64. [37] It appears that, for an offence under s 7 of the MDA, the Prosecution can seek to prove mens rea on the part of the accused persons in two ways:

  65. In a factual scenario such as the present case where Mas Swan and Roshamima were apprehended with the bundles of controlled drugs being found in JHA 7781, which in turn means that the bundles of controlled drugs were in their physical possession, the Prosecution may rely on the presumption under s 18(2) of the MDA.

  66. [38] It should be highlighted that the relationship between “import” (under s 7 of the MDA and s 2(1) of the Interpretation Act) and “possession” (under s 18(2) of the MDA) has not been expressly dealt with by the courts. In most cases involving s 7 of the MDA, the Prosecution has customarily relied on the s 18(2) presumption in order to establish mens rea on the accused person’s part as in such cases, the accused persons who were charged with importation were, at the time of their respective arrests, in possession (actual or presumed) of the controlled drugs. For instance, where the accused persons were apprehended with the controlled drugs being contained in a sling bag carried by them (see Iwuchukwu Amara Tochi and another v Public Prosecutor [2006] 2 SLR(R) 503 (“Iwuchukwu Amara Tochi”)), with the controlled drugs stitched to the vest that they were wearing (see Public Prosecutor v Ko Mun Cheong and another [1990] 1 SLR(R) 226) or where the controlled drugs were found in the well for the spare tyre in the boot of the car driven by the accused (see Yeoh Aik Wei v Public Prosecutor [2003] SGCA 4).

  67. [39] Mas Swan admitted that he was aware of the three bundles of controlled drugs concealed in the door panel of JHA 7781. Roshamima, however, claimed complete ignorance of the existence or presence of the bundles in the door panel of the said vehicle. Therefore, the issue of legal possession of the bundles and their contents arises for determination in the case of Roshamima but not in the case of Mas Swan.

  68. Whether the requisite knowledge pertains to the fact that the bundles contained controlled drugs or diamorphine

  69. [40] To establish that Mas Swan had the knowledge that the bundles contained diamorphine, the Prosecution relied on the doctrine of wilful blindness in Tan Kiam Peng v Public Prosecutor [2008] 1 SLR(R) 1 (“Tan Kiam Peng”) as well as the presumption under s 18(2) of the MDA (see [37] above).

  70. [41] In discussing s 18(2) of the MDA, the Court of Appeal in Tan Kiam Peng (at [78]–[81]) suggested two possible interpretations of that section’s reference to “knowledge”:

  71. Without conclusively deciding the issue, the Court of Appeal at [93] expressed a preference for the second or “narrow” interpretation, ie, that s 18(2) presumes that the accused knows the nature of the specific drug in his possession, which effectively means that the mens rea requirement for the offence of drug importation under s 7 of the MDA is knowledge of the precise or specific drug concerned and not mere knowledge that the drug concerned was a controlled drug (the latter state of mind being the first or “broad” interpretation) (Tan Kiam Peng at [94]–[95]):

  72. [42] I had occasion to consider this issue in Public Prosecutor v Lim Boon Hiong and another [2010] 4 SLR(R) 696 (“Lim Boon Hiong”) at [62], where I adopted the view (without deciding the point) that, since (i) the Prosecution had submitted that it was content to conduct its case on the basis of the “narrow” interpretation; (ii) there had been a lack of detailed argument on the point; and (iii) any ambiguity in the MDA should be construed in favour of the accused, the “narrow” interpretation ought to be applied. I should also add that in Lim Boon Hiong (at [63]–[75]), I suggested, in obiter remarks, that it may not have made a great deal of difference which interpretation I adopted because, based on the language used in some of the passages of the Court of Appeal’s judgment in Tan Kiam Peng, there was a possibility that the “broad” interpretation would collapse into the “narrow” interpretation if some of the reasoning in Tan Kiam Peng was taken to its extremes. Lest my observations in Lim Boon Hiong be misunderstood, I should say at once that I was not implying that that was how I thought Tan Kiam Peng ought to be interpreted. Indeed, given the tenor of Tan Kiam Peng, the Court of Appeal evidently intended for there to be a clear distinction between the “broad” and “narrow” interpretations, and for the latter to be preferred out of fairness to the accused.

  73. [43] As it did in Lim Boon Hiong, in the present case, the Prosecution made it clear that it was content to give any benefit of the doubt to both Mas Swan and Roshamima and was bringing its case against both accused persons based on the “narrow” interpretation.In other words, the Prosecution accepted that it had to satisfy this Court that Mas Swan and Roshamima had knowledge of the nature of the specific drug which they had brought into Singapore, ie, diamorphine.

  74. [44] For the statutory presumption under s 18(2) of the MDA to arise and be operative, the Prosecution accepted that it must first prove two points:

  75. Whether the accused persons knew that the bundles contained diamorphine

  76. [45] In the case of Mas Swan, the presumption arose because Mas Swan conceded that he knew that the bundles, which he believed to contain “ecstasy” pills, were concealed within the car door panel. In other words, there was effectively an admission on his part that he had in his possession the bundles containing controlled drugs. Section 18(2) of the MDA was therefore triggered and operated in such a fashion that Mas Swan was presumed to have known the nature of the drug, ie, that it was diamorphine. It was therefore incumbent on Mas Swan to rebut the presumption by proving, on a balance of probabilities, that he was not aware of the specific nature of the drug, ie, diamorphine.

  77. [46] In the case against Roshamima, however, the position was quite different. As she had maintained that she had no knowledge of the existence of the bundles containing the controlled drugs, the presumption under s 18(2) of the MDA would only become operative against her if the Prosecution was able to first prove and persuade me that she was in fact aware of the existence of the concealed bundles containing controlled drugs in JHA 7781.

  78. The interplay between the presumption of knowledge under s 18(2) of the MDA and the doctrine of wilful blindness

  79. [47] Wilful blindness is relevant in two respects:

  80. (a) The Prosecution can seek to prove actual knowledge via the doctrine of wilful blindness if it is not relying on the statutory presumption under s 18(2) of the MDA.

  81. (b) Further or in the alternative, should the Prosecution rely on the statutory presumption, it may invoke the doctrine of wilful blindness to demonstrate that the accused has failed to rebut the presumption under s 18(2) of the MDA.

  82. [48] In the present case, the Prosecution sought to rely on wilful blindness on both fronts in the alternative. During oral closing submissions, in the context of s 18(2) of the MDA, the Prosecution submitted that, on the authority of Tan Kiam Peng, an accused person has to rebut the presumption at two cumulative levels: first, that he or she did not have actual knowledge simpliciter of the nature of the controlled drugs in his or her possession;and then second, that he or she was not wilfully blind as to the nature of the controlled drugs in his or her possession. The Prosecution accepted that Mas Swan’s long statements and oral evidence in court did not ipso facto prove that he knew the bundles contained diamorphine. This much is clear from paragraph 94 of the Prosecution’s submissions:

  83. Therefore, the Prosecution submitted that, in order for Mas Swan to successfully rebut the presumption under s 18(2) of the MDA, the legal burden was on him to show the court that he was not wilfully blind that the three bundles he was delivering into Singapore contained diamorphine.

  84. [49] I accept that this is the case; nonetheless, the Prosecution may still have an evidential burden to discharge. After all, if the accused is able to prove that he or she does not have actual knowledge of the specific nature of the drugs and no issue of wilful blindness is raised by the Prosecution, the presumption under s 18(2) of the MDA would have been rebutted, as was observed in dicta in Tan Kiam Peng (at [140]):

  85. [50] Typically, the issue of wilful blindness is introduced into the equation by the Prosecution. Having invoked the doctrine of wilful blindness, it seems to me that it is only right and eminently fair that the evidential burden should be on the Prosecution to raise sufficient evidence of wilful blindness on the part of the accused to ensure that the accused is unable to rebut the presumption on a balance of probabilities. If that can be established, it must follow that the presumption would remain unrebutted. However, if the Prosecution concedes that the accused did not have actual knowledge and fails on its case of wilful blindness or fails to challenge his evidence as regards his belief, it must follow that the presumption is rebutted.

  86. [51] Just to be clear, I am not at all suggesting that the presumption can be rebutted simply by the accused claiming that he was ignorant of the precise nature of the controlled drugs. Instead, I am referring to a specific situation where it has been established either by way of the evidence or the Prosecution’s case that the accused in fact truly did not know the specific nature of the drugs because he truly believed that it contained drugs of a different nature than that stated in the charge. Further, I should add, for the avoidance of any doubt, that if the Prosecution seeks to prove actual knowledge via the doctrine of wilful blindness without relying on the presumption under s 18(2) of the MDA, the Prosecution must prove it beyond any reasonable doubt.

  87. The test for suspicion in the doctrine of wilful blindness

  88. [52] As already mentioned in [47] above, to demonstrate that the accused has failed to rebut the presumption under s 18(2) of the MDA, the Prosecution can seek to establish that the accused was wilfully blind as to the specific nature of the controlled drug in his possession. It is common ground that suspicion based on firm grounds and targeted on specific facts is a central feature of the doctrine of wilful blindness (Tan Kiam Peng at [125]):

  89. [53] However, it was the Prosecution’s submission that wilful blindness is made out if the accused person ought to have been suspicious that the bundles contained the specific drug which he was found to be in possession of. In support of this proposition, the Prosecution relied on a passage in Tan Kiam Peng (at [126]):

  90. When asked whether this in effect meant that the test for suspicion under the doctrine of wilful blindness was an objective one, Deputy Public Prosecutor Ms Sripathy-Shanaz submitted that the test was partially objective and partially subjective.

  91. [54] I am unable to agree with the Prosecution’s submission that the Court of Appeal in Tan Kiam Peng had intended the test for suspicion to be anything other than a subjective one. Certainly, in my judgment, the sentence that the Prosecution cited from Tan Kiam Peng above does not bear that out. What the Court of Appeal in Tan Kiam Peng was saying was that if the objective facts show that a reasonable person would have been suspicious, this would lead to the Court’s examination into the reasons given by the accused for not making inquiries and then drawing the appropriate inferences in determining whether the accused was in fact suspicious. This is supported by the Court of Appeal’s explanation that a finding of wilful blindness could arise if an accused “was virtually certain that, if further inquires were made, his or her suspicions would be confirmed” [emphasis added] (see [53] above).

  92. [55] Wilful blindness may be the legal equivalent of actual knowledge, but it is not the same as actual knowledge (see Public Prosecutor v Koo Pui Fong [1996] 1 SLR(R) 734 at [15]). Actual knowledge is the subjective mental state where one is certain of the existence of a set of facts. Short of a confession from the accused, the Prosecution would have to rely on objective or circumstantial evidence to infer such a subjective mental element. One of these objective means is by relying on the doctrine of wilful blindness, which is an evidential tool towards establishing actual knowledge.

  93. [56] It is instructive to quote, at this juncture, the Court of Appeal’s pronouncement in Iwuchukwu Amara Tochi at [6]:

  94. [57] In other words, wilful blindness is not a legal fiction. Instead it is purely a fact-finding inquiry for the trial judge to decide whether, on the evidence before him, the Prosecution has proven that the accused was in fact suspicious that the contents contained the drugs for which he is being charged and of which he was wilfully blind. To import the objective test, ie, constructive knowledge, into a question of criminal liability when the offence is punishable by death is, in my view, to impose a heavier burden on the accused person than the law permits. Indeed, the Court of Appeal in Tan Kiam Peng went some distance to draw a distinction between actual knowledge (which encompasses the doctrine of wilful blindness) and constructive knowledge, and took the view that the latter does not fall within the ambit of s 18(2) of the MDA (see Tan Kiam Peng at [133]–[135]). It is perhaps apposite to cite the observation by Devlin J in Roper v Taylor's Central Garages (Exeter), Limited [1951] 2 TLR 284 at 289, which was cited with approval in Tan Kiam Peng at [116]:

  95. Mas Swan’s defence

  96. [58] Mas Swan elected to give evidence in court. Essentially, Mas Swan admitted that he knew the three bundles found in JHA 7781 on 6 May 2009 contained controlled drugs and that he was delivering them on behalf of a Malay Singaporean man whom he knew as “Mickey” (real name Shahiran Bin Osman). According to Mas Swan, Mickey was a friend of “Murie”, who was in turn a friend of Roshamima. Mas Swan also admitted to making a total of four successful drug deliveries for Mickey before being arrested. He claimed, however, to have believed that the bundles he was delivering contained “ecstasy” pills and not heroin. Therefore, it was submitted by Mr Kanagavijayan that the Charge against Mas Swan has not been made out.

  97. Whether Mas Swan has rebutted the statutory presumption that he knew that the bundles contained diamorphine

  98. Mas Swan’s evidence was consistent that he believed the bundles contained “ecstasy” pills

  99. [59] It was Mas Swan’s consistent evidence throughout his statements and oral testimony in court that he believed the bundles he was delivering for Mickey contained “ecstasy” pills. As early as the recording of his first long statement, P34 (barely two days after he was arrested), Mas Swan admitted that he had knowingly imported “ecstasy” pills or “biji”. In all of his subsequent statements (see [11] above), only “drugs” or “ecstasy”, as opposed to diamorphine or heroin, was mentioned. Even in his cautioned statement, P32, only “drugs” was mentioned.

  100. [60] According to Mas Swan, whenever there was a delivery for Mickey, Roshamima would inform Mas Swan on the day of the delivery that there would be a “segmen” and give him the location where he was supposed to drive JHA 7781 to. He testified that the word “segmen” referred to the job of bringing “ecstasy” into Singapore by Roshamima, Murie and himself. Mas Swan also claimed that he discovered the bundles they were delivering contained “ecstasy” pills only after one or two visits to Singapore with Roshamima. Mas Swan admitted that he had never seen the contents of the bundles and believed that the bundles contained “ecstasy” pills because Roshamima had told him so. He confirmed, however, that if he had opened the bundles and saw the “assam”-like substance, he would have known that the contents were not “ecstasy” pills or “ice”.

  101. [61] Mas Swan’s entire examination-in-chief was thus conducted by Mr Kanagavijayan on the basis that Mas Swan believed the bundles contained “ecstasy” pills:

  102. Objective evidence that Mas Swan believed the bundles contained “ecstasy” pills

  103. [62] Having heard all the witnesses, in my judgment, there is sufficient evidence before me to show that Mas Swan had reason to believe and in fact believed that the bundles contained “ecstasy” pills. I now provide my findings based on my assessment of the evidence.

  104. [63] As Roshamima’s defence was that she did not know there were bundles concealed in JHA 7781, the evidence of Mas Swan and Roshamima conflicted wherever Mas Swan’s evidence implicated Roshamima. However, after reviewing the evidence in its totality, I preferred Mas Swan’s evidence over Roshamima’s for the following reasons:

  105. (a) First, Mas Swan’s evidence in his statements and oral testimony was much more consistent throughout when compared to Roshamima’s evidence. Further, his evidence was also corroborated by most of the objective evidence. Although there were slight shifts in Mas Swan’s evidence, those differences were, in my view, mostly immaterial or could be explained away as lapses in memory due to the passage of time. In comparison, while on the stand, Roshamima contrived all sorts of explanations when confronted with her previous statements and when her testimony at the stand was contradicted by objective evidence such as SMS text messages (see [117] and [119] below).

  106. (b) Secondly, Mas Swan’s evidence was self-incriminating whereas Roshamima’s evidence was entirely self-serving. There was, in my view, utterly no reason for Mas Swan to incriminate Roshamima along with himself and significantly none was suggested by Mr Muzammil, counsel for Roshamima. After all, he certainly derived no benefit from implicating Roshamima. In fact, there was probably even more reason for him to exculpate her as they were in a romantic relationship and were about to be engaged to be married when they were arrested.

  107. (1) How Mas Swan got inducted into importing controlled drugs into Singapore

  108. [64] Although Mas Swan vacillated in his evidence as to how he actually became acquainted with Mickey, the evidence showed that Mas Swan became involved in delivering drugs for Mickey through Roshamima, who was already delivering drugs into Singapore using JHA 7781 and who had suggested to Mas Swan to deliver drugs for Mickey if he wanted to make “fast money”. Roshamima herself admitted in her statement to introducing Mickey to Mas Swan. Mas Swan also claimed that it was Roshamima who had told him that the bundles they were delivering for Mickey contained “ecstasy” pills and that they would be paid RM1,000 to be shared between the two of them. During investigations, Mas Swan was unable to identify Mickey from a collection of photographs shown to him whereas Roshamima managed to identify Mickey’s photograph from the same collection that was shown to Mas Swan.

  109. [65] After agreeing to help Mickey, Mas Swan applied for his very first passport on 20 April 2009 so that he could bring drugs into Singapore; and he was issued an international passport bearing number “A20132600” on the same day. Mas Swan testified in court that he had applied for his passport at Roshamima’s request so that they could both visit places in Singapore. Roshamima challenged, however, Mas Swan’s allegation that she had persuaded him to apply for a passport to enter Singapore, claiming that he had applied for a passport voluntarily on his own accord. In my judgment, it was immaterial whether it was Mas Swan or Roshamima who had initiated Mas Swan’s passport application. What was more significant, and I so find, was that Mas Swan was introduced to Mickey by Roshamima and that he had applied for a passport so that he could deliver drugs into Singapore for Mickey.

  110. (2) The modus operandi in importing controlled drugs into Singapore

  111. [66] Together with Roshamima, Mas Swan made a total of four successful drug deliveries for Mickey before their arrest: the first two occurred sometime between 21 April 2009 and 30 April 2009; the third was on 1 May 2009; and the fourth was on 3 May 2009. Whenever there was a delivery, Roshamima would, on the day of the delivery, inform Mas Swan that there would be a “segmen” and give him the location where Mas Swan was supposed to drive JHA 7781 to. After being instructed by Roshamima, Mas Swan would drive JHA 7781 to the specified location for an exchange of cars with one of Mickey’s men, who would drive JHA 7781 away. Mas Swan and Roshamima would then await a call telling them that JHA 7781 was ready for collection. After collecting JHA 7781, they would proceed to enter Singapore with the drugs concealed in the car.

  112. [67] I pause here to note that, during the trial, Mr Muzammil objected to the admissibility of evidence that Roshamima was involved in deliveries for Mickey prior to 6 May 2009, on the ground that it was similar fact evidence. Although I have separately determined at [126] below that the similar fact evidence was admissible for the purpose of showing that Roshamima’s defence was unbelievable, the evidence that Roshamima was involved in delivering bundles for Mickey some time before she “recruited” Mas Swan was, in my view, also relevant here to show that Mas Swan had reason to believe what she had told him regarding the nature of the drugs they were delivering.

  113. (3) The events leading up to the arrest of Mas Swan and Roshamima

  114. [68] In the afternoon of 6 May 2009, Mas Swan drove a car bearing license plate number JKG 4956 (the “Myvi”) to Hotel Seri Malaysia to meet Murie. From the hotel, they then drove separately in two cars to a shop that sold car-accessories: Mas Swan drove the Myvi while Murie drove JHA 7781. At the shop, Murie told Mas Swan that he and Roshamima intended to deliver “ecstasy” pills into Singapore that day and asked Mas Swan whether he (Mas Swan) was joining him, to which Mas Swan confirmed that he was. Roshamima also called Mas Swan sometime in the afternoon to inform him that there would be a “segmen” later that day, a term Mas Swan understood as referring to their task of bringing drugs into Singapore. Murie then asked Mas Swan for some “ice 0.5” or “sejuk”, which Mas Swan knew was a prohibited drug. Mas Swan obligingly went to collect some “ice” from a friend called “Cek Han” while Murie fetched Roshamima from her work place. Roshamima claimed to have fallen asleep in the car because she was tired, having consumed “ice” for the past three days in succession.

  115. [69] After obtaining RM300 worth (half a gram) of “ice” from Cek Han, Mas Swan went home to collect his passport so that he could enter Singapore with Murie and Roshamima. The three of them met at a Shell petrol station at Taman Tasek around 6 pm with Murie and Roshamima arriving in JHA 7781. Subsequently, Mas Swan took over the wheel of JHA 7781 and Murie ended up driving the Myvi. Roshamima remained asleep, in JHA 7781. They then travelled to an Esso petrol station at Taman Tun Aminah and Mas Swan handed JHA 7781 over to one of Mickey’s men. Mas Swan knew that the exchange of cars at the Esso petrol station was to facilitate the placing of the “ecstasy” pills in JHA 7781. On the witness stand, Roshamima claimed, however, that she did not know the reason for going to the Esso petrol station and sought to retract the part of her statement P38 where she stated that she had followed Mas Swan to the Esso petrol station to exchange cars with a man who worked for Mickey. In her attempt to explain why she had made the statement in P38 to ASP Gary Chan in the first place, Roshamima alleged that when P38 was recorded, she had simply assumed ex post facto that the bundles found in JHA 7781 on 6 May 2009 must have been placed there by one of Mickey’s men because their packaging was similar to bundles she had previously delivered for Mickey.

  116. [70] I find that there was evidence to show that Mas Swan had agreed, on the afternoon of 6 May 2009, with Murie to deliver drugs into Singapore on the same day and that Mas Swan knew that there would be an exchange of cars at the Esso petrol station so that the drugs could be concealed in JHA 7781. This finding is supported not only by Mas Swan’s evidence implicating himself, but also by an exchange of SMS text messages between Mas Swan and Murie that same evening: first, a message was sent from Mas Swan to Murie at 5.39 pm: “Ko gi amik wawa, aku gi amik brg 05. Kita jumpa kat shell tasik.”, which was initially translated as “You go fetch wawa [which was Roshamima’s nickname], I go and take ‘brg’ 05. We meet at shell lake”. It was later clarified that the words “shell tasik” referred to a Shell petrol station at Taman Tasek and that “brg 05” meant “ice 0.5”. Tellingly, the reply from Murie to Mas Swan was: “K.cpt taw..kul 6.15 kete nk pas kat die org.”, which translates as “K be fast...at 6.15 need to pass the car to them [emphasis added]”. It was clear that Murie was referring to handing over JHA 7781 to Mickey’s men so that the drugs could be concealed in the car.

  117. [71] At the Esso petrol station, a man arrived in a Singapore-registered car and drove off in JHA 7781. Murie then drove off in the Singapore-registered car while Mas Swan ended up driving the Myvi with Roshamima alongside him again. Subsequently, the three of them went to a car workshop called “K K Auto” in Taman Seri Pulai and ended up at an eatery in Skudai as they waited for JHA 7781 to be re-delivered to them. Mas Swan claimed that, while they were eating there, Murie or Roshamima received a phone call to inform that the “barang” or “items” had been placed in JHA 7781. Mas Swan understood the term “barang” to refer to “ecstasy” pills. Roshamima denied receiving any call.

  118. [72] After the call, Murie drove off in the Singapore-registered car and returned to the eatery in JHA 7781. The three of them then journeyed to Singapore in two cars: Mas Swan and Roshamima were in JHA 7781 with Roshamima driving; and Murie was alone in the Myvi. There was some dispute whether Mas Swan or Roshamima was the driver when JHA 7781 entered Singapore, but nothing turns on this. Mas Swan claimed that, while on the way to Singapore, Roshamima informed Mas Swan that there were three bundles of “barang” in the front passenger door. Contrary to Mas Swan’s allegation, Roshamima denied telling him that there were three bundles of “ecstasy” pills in JHA 7781 while they were on their way to Singapore. Before arriving at the Johor Immigration Checkpoint in Malaysia, they made a stop by the side of the road so that Murie could programme the destination on the GPS device that had been placed in JHA 7781.

  119. (4) Phone calls and text messages to Roshamima’s phone after their arrest

  120. [73] Mas Swan and Roshamima were subsequently detained while attempting to pass through Woodlands Checkpoint. Roshamima testified that while she and Mas Swan were at the ST Office, she saw the Myvi (which Murie was driving) parked in one of the lots beside JHA 7781. A series of phone calls was then made to Roshamima’s mobile phone. Roshamima answered two calls from Murie: the first was received at 10.15 pm and lasted 56 seconds while the second call was received at 10.27 pm and lasted 54 seconds. She later answered two phone calls from Mickey: the first was received at 10.34 pm and lasted 11 seconds whereas the second call was received at 10.39 pm but was immediately disconnected. Thereafter, Roshamima was unable to answer the subsequent phone calls and, accordingly, the incoming calls were registered as missed calls. Six missed calls originated from Murie’s Malaysia and Singapore numbers at the following times and dates:

  121. Another three missed calls came from Mickey’s number:

  122. At the time of the trial, no evidence was adduced as to the whereabouts of Mickey and Murie.

  123. [74] It was clear to me that these phone calls were frantic attempts by both Mickey and Murie, who the evidence before me established as being part of a drug importing syndicate, to communicate with Roshamima because they were anxious to ascertain the situation at the Woodlands Checkpoint and the whereabouts of the drugs. If Roshamima was in fact ignorant of the presence of the controlled drugs in the car as she claimed, there would be every reason for her to speak to Murie and Mickey for either or both of them to come over to the ST Office to assist her to establish her alleged innocence or to alert the police of Murie’s presence so that he could be questioned about the bundles concealed in the car. The flurry of phone calls from Mickey and Murie to Roshamima’s mobile phone immediately after she and Mas Swan were detained at the Woodlands Checkpoint ineluctably showed not only that Roshamima was working for Mickey on that day and that she knew that there were bundles of drugs concealed in JHA 7781, but also that Roshamima was the person of contact and played a larger role in the delivery of drugs for Mickey, which corroborated Mas Swan’s claim that he was merely following Roshamima after she had recently recruited him into the syndicate.

  124. [75] It is notable that Mas Swan did not receive any calls from either Murie or Mickey after he and Roshamima were detained and that all calls were made to Roshamima instead. Therefore, I believed Mas Swan’s evidence that Roshamima was fully aware of the fact that they were delivering drugs for Mickey on 6 May 2009 and did in fact tell him, on that same day, that they were delivering “ecstasy” pills into Singapore.

  125. (5) Mas Swan’s evidence that he had never seen diamorphine prior to the arrest

  126. [76] As a result of the search, the three bundles of drugs were retrieved from the front left door panel of JHA 7781 (see [6] above). Mas Swan recalled that, after one of the bundles was cut open in front of him, he saw a small packet inside which contained a substance having the shape of “assam” or preserved prune. He could not recall seeing the colour of the substance. Mas Swan claimed that he had seen “ecstasy” pills before but openly admitted that the shape of the substance shown to him did not have the shape of “ecstasy” pills at all. Mas Swan also claimed to have heard of heroin but had never seen any before.

  127. (6) The dynamics of personalities between Mas Swan and Roshamima

  128. [77] In summary, having assessed the evidence, I find, on a balance of probabilities, that Mas Swan believed Roshamima when she told him that they were delivering “ecstasy” pills on 6 May 2009 for the following reasons:

  129. (a) Roshamima started delivering the bundles into Singapore some time before Mas Swan and it was Roshamima who brought Mas Swan into the delivery racket.

  130. (b) As such, Mas Swan was fully aware that Roshamima had knowledge and details of the drug deliveries. During the trial, Roshamima came across as someone with an assertive and dominant personality. In contrast, from my own observation of Mas Swan during his testimony in court, I found him to be mild-mannered and somewhat timid. He came across as someone who was following instructions from Roshamima as regards the deliveries. Mas Swan was not told of the destination for each of the deliveries. He was not involved in the packing of the bundles. He was also not the one who retrieved the bundles from the door panel of JHA 7781 on 6 May 2009 or the previous occasions. His role was simply to accompany Roshamima to make the deliveries in Singapore. Even when they were detained at the Woodlands checkpoint, all calls from Murie and Mickey went to Roshamima’s mobile and not Mas Swan’s. This is another clear indication of the limited role and knowledge of Mas Swan.

  131. (c) Consistent with the above assessment, on each occasion when delivery of the bundles was to take place, it was usually Roshamima who would inform Mas Swan of the “segmen”, ie, the delivery of “ecstasy” pills into Singapore.

  132. (d) Further, they were to be engaged and it was Roshamima who recruited Mas Swan to assist in the drug deliveries. Under these circumstances and given the dynamics of their personalities, I can accept that Mas Swan would have no reason to disbelieve what Roshamima had told him, ie, that the bundles contained “ecstasy” pills.

  133. The Prosecution did not challenge Mas Swan’s evidence regarding his belief that the bundles contained “ecstasy” pills

  134. [78] During the cross-examination of Mas Swan, the Prosecution did not at any point in time challenge Mas Swan’s statements or oral evidence that he believed the bundles he was delivering contained “ecstasy” pills. This position is consistent with my findings that Mas Swan believed Roshamima when she told him that the bundles contained “ecstasy” pills. The Prosecution evidently shared the same view which might well explain why they did not challenge Mas Swan’s belief. Under the rule in Browne v Dunn (1893) 6 R 67, unchallenged testimony may be considered by the court to be undisputed by the opposing party and therefore accepted by the court (Ong Pang Siew v Public Prosecutor [2011] 1 SLR 606 at [81]).

  135. [79] The recent case of Khor Soon Lee v Public Prosecutor [2011] SGCA 17 (“Khor Soon Lee”) involved an appellant who had made previous deliveries of controlled drugs for one “Tony”. The appellant was sometimes told that the bundles contained “5” (Erimin) and “K” (ketamine), but was not told of the contents at other times. The appellant’s evidence at trial was that he had asked Tony in July 2008 (the appellant was arrested at Woodland’s Checkpoint on 9 August 2008) whether heroin (diamorphine) would be involved in the deliveries as he was afraid of the death penalty. Tony’s response was that he had never placed heroin inside the packages that the appellant was told to carry. Notably, the Prosecution did not challenge the appellant’s evidence on Tony’s response (see [6] of Khor Soon Lee). The Court of Appeal remarked at [23] of Khor Soon Lee:

  136. [80] In fact, based on the questions posed to Mas Swan, the Prosecution appeared to have gone so far as to accept that Mas Swan had in fact believed that the bundles contained “ecstasy” pills:

  137. [81] Further all the relevant questions which were put by the Prosecution to Mas Swan were on the premise that the bundles contained drugs and not diamorphine.

  138. [82] Subsequently, without challenging Mas Swan’s evidence that he believed the bundles contained “ecstasy” pills, the Prosecution then proceeded to focus their cross-examination on Mas Swan’s failure to check the contents of the bundles despite having had the opportunity to do so.

  139. [83] It became apparent to me that from the way it conducted its case, the Prosecution was not seeking to challenge Mas Swan’s actual belief, but rather, was attempting to persuade me that the presumption had not been successfully rebutted, by way of the doctrine of wilful blindness which I will separately cover below.

  140. Whether the Prosecution was able to prove via the doctrine of wilful blindness that Mas Swan had failed to rebut the presumption

  141. [84] Although the Prosecution relied on the doctrine of wilful blindness in attempting to prove the Charge against Mas Swan and/or to demonstrate that the presumption had not been successfully rebutted by him, it was, however, not the Prosecution’s case that Mas Swan’s suspicions were in fact aroused. The Prosecution submitted that wilful blindness was made out in Mas Swan’s case on the basis that his suspicions that the bundles contained heroin ought to have been aroused, and any reasonable person with his characteristics would not have believed Roshamima’s claims that the bundles contained “ecstasy” pills,ie, the test of wilful blindness, as the Prosecution understood it, was a subjective-objective test. During closing submissions, Prosecution submitted that given the manner in which the bundles were concealed behind the door panel of JHA 7781 and the covert nature of the delivery in Singapore, Mas Swan ought to have suspected that the bundles contained diamorphine.

  142. [85] The Prosecution also relied on the fact that Mas Swan did not check the contents of the bundles because he did not care what he was delivering for Mickey. The Prosecution highlighted Mas Swan’s statement in P35 that because he needed money, it did not matter to him what type of drugs he was bringing into Singapore. Notably, however, Mas Swan stated in P36: “I do know that bringing in ecstasy into Singapore is illegal but I have to do it because I need the money. Actually it does not matter what Mickey put in my car. I will still do it as long as he pays the reward after that.” Therefore, while it is true that Mas Swan conceded that, ultimately, it did not matter what drugs he was bringing into Singapore, he had consistently maintained the position that he honestly believed the bundles contained “ecstasy” pills.

  143. [86] However, none of the above goes to show that Mas Swan was in fact suspicious that the bundles contained diamorphine. The manner in which they were concealed and the covert nature of the intended delivery all point towards the illicit nature of the bundles, which is entirely consistent with Mas Swan’s belief that he was delivering other controlled drugs such as “ecstasy” pills. The fact that Mas Swan had several or even ample opportunities to inspect the bundles likewise does not prove that he was wilfully blind to the true contents of the bundles. In fact, once it is accepted that Mas Swan believed that he was delivering bundles containing “ecstasy” pills (see my finding at [77] above), then, logically, it must follow that there would be no reason for him to be suspicious that the bundles contained anything but “ecstasy” pills. The considerations raised by the Prosecution would only be relevant in the present case if the test was purely objective or objective-subjective in nature, which, for the reasons already stated at [54]–[57] above, was a position I cannot agree with. As the Court of Appeal in Khor Soon Lee emphasized at [24]:

  144. [87] In conclusion, I find that Mas Swan has successfully rebutted the presumption under s 18(2) of the MDA for the following reasons:

  145. (a) Based on my assessment of the evidence before me, I accept that Mas Swan did in fact believe Roshamima that the bundles contained “ecstasy” pills.

  146. (b) The Prosecution has also failed to adduce sufficient evidence that Mas Swan was in fact suspicious that the bundles contained diamorphine. As such the Prosecution fails in its case of wilful blindness against Mas Swan as well.

  147. (c) My finding is entirely consistent with the fact that Mas Swan’s evidence as regards his belief was unchallenged by the Prosecution.

  148. It is imperative to stress, lest it be misinterpreted, that my finding that the presumption against Mas Swan has been rebutted was not due to Mas Swan’s mere assertion that he believed the bundles contained ecstasy pills. Instead, my decision on this point was based on my own assessment of the available evidence before me that Mas Swan did believe Roshamima that the bundles contained “ecstasy” pills as well as the manner in which the Prosecution conducted its case against Mas Swan.

  149. Roshamima’s defence

  150. [88] Roshamima also elected to enter her defence, which was that she did not know that three bundles had been concealed in the front passenger door panel of JHA 7781 when both she and Mas Swan entered Singapore on 6 May 2009. The essence of her evidence (taking into account her differing versions of the exact person they were supposed to meet in Singapore) was that they had entered Singapore on that day not to deliver drugs but to obtain items for their planned engagement/wedding.

  151. [89] As mentioned at [67] above, Mr Muzammil challenged the admissibility of the parts of Mas Swan’s evidence and Roshamima’s statements that refer to her prior involvement in delivering bundles for Mickey on the ground that they contain similar fact evidence that was highly prejudicial to her defence.

  152. Whether the charge of importation is made out once the Prosecution proves possession of controlled drugs

  153. [90] Roshamima’s defence, as mentioned above, was that she had no knowledge whatsoever that the bundles were concealed or existed in the door panel. If, however, the Prosecution was able to persuade me that Roshamima was aware of the concealed bundles and knew that they contained controlled drugs, the statutory presumption under s 18(2) of the MDA would, accordingly, become operative and it would then be for Roshamima to rebut it, failing which the Charge against her would be made out.

  154. [91] In this connection, it is pertinent to highlight that Roshamima did not lead any positive evidence to prove that she was not aware of the true nature of the controlled drugs. This must be so since she chose to defend the Charge at the threshold level that she had no knowledge of the existence of the bundles that were concealed in the door panel of JHA 7781 and was accordingly not in legal possession of the controlled drugs. It therefore follows that if the Prosecution was able to prove that Roshamima was aware that bundles containing controlled drugs were concealed in the car door panel, the presumption under s 18(2) of the MDA would operate against her, and because she has not adduced any evidence to rebut that presumption, the Charge against her would, without more, indubitably be made out. This logical sequence and its inevitable outcome were eventually conceded by Mr Muzammil during oral submissions, though I would like to add that I am relying on what I understand to be the legal position, and not on his concession, in making such a finding.

  155. Whether Roshamima knew the bundles were concealed in JHA 7781 and that they contained controlled drugs

  156. [92] As I preferred Mas Swan’s evidence over Roshamima’s evidence and have already found at [77] above that Roshamima knew there were bundles containing controlled drugs in JHA 7781 when they both entered Singapore on 6 May 2009, it would follow that the Charge against Roshamima has thus been made out. For completeness, I nevertheless consider here the arguments that were raised by Mr Muzammil that have not been expressly dealt with above.

  157. Roshamima’s account of their purpose of visiting Singapore on 6 May 2009

  158. [93] The central argument raised by Roshamima in her defence was that they had entered Singapore on that day not to deliver drugs but to obtain items for their planned engagement/wedding (see [88] above).

  159. (1) The differing identities of the person whom they were supposed to meet in Singapore on 6 May 2009

  160. [94] In her contemporaneous statement, P30, Roshamima claimed that their purpose for entering Singapore on 6 May 2009 was to meet her aunt somewhere in the Rochor area (see [13] above). However, in her subsequent long statement P37, Roshamima changed her evidence by stating that they were supposed to meet Murie’s foster brother’s wife because Roshamima intended to order “decorative gifts” from her. During examination-in-chief, she then mentioned, for the first time, that they wanted to borrow (and not buy) decorative items from two different persons: Murie’s adopted elder sister named “Ann” (who allegedly resides in Woodlands), and one “makcik” whom Roshamima claimed was Murie’s aunt.In addition, Roshamimi also claimed that she addressed “Ann” as “makcik”. Neither was called by Roshamima to corroborate her claims.

  161. [95] When asked to explain why she had described Ann as Murie’s adopted elder brother’s wife in P37 and then later as Murie’s adopted elder sister, Roshamima astonishingly replied that they both meant the same thing to her:

  162. (2) The alleged corroborative evidence of their purpose of visiting Singapore on 6 May 2009

  163. [96] In an attempt to lend credence to her account, Roshamima also referred to an SMS text message which was addressed to Murie and saved in the “Draft” folder of her phone at 2.28 pm on 6 May 2009: “Aku ckp aku jmpe mkck kat rodc”, which was translated to “I said I met/meet makcik at/near ‘rodc’”. She claimed that the word “rodc” meant “Rochor” and she had drafted the message to Murie so that he could inform Mas Swan that both she and Mas Swan would be meeting Murie’s aunt at Rochor Centre.

  164. [97] When asked whether she had communicated to Mas Swan the purpose of entering Singapore to visit Murie’s aunt, she initially claimed that she told him sometime after lunch on 6 May 2009. She later testified to have already informed him the day before, on 5 May 2009. When asked to explain the different dates, she finally settled on the account that she first informed Mas Swan on 5 May 2009 and subsequently called him again on 6 May 2009 to confirm the visit.

  165. (3) Mas Swan’s conflicting account of their purpose for visiting Singapore on 6 May 2009

  166. [98] Although Mas Swan initially claimed in his first few statements that the purpose of entering Singapore on 6 May 2009 was to meet Roshamima’s aunt to collect “marriage gifts” or “wedding decoration gifts”, he later retracted those parts of his statements and admitted they were untrue. He then stated that while he and Roshamima were in the ST Office, just before JHA 7781 was searched, Roshamima had directed him to say that, if anyone were to ask him about their purpose for entering Singapore, he should say that they were going to visit her aunt to collect wedding gifts. Predictably, she denied doing so.

  167. [99] At the trial, Roshamima gave conflicting and different explanations as to who she was supposed to meet during her visit to Singapore. Her evidence underwent several changes and she failed to give any satisfactory explanation for her wavering testimony. Ultimately, I accepted Mas Swan’s evidence that Roshamima had fabricated another purpose for visiting Singapore in order to conceal the true purpose of their visit, ie, to deliver controlled drugs into Singapore. The fact that she attempted to concoct such a story, in my view, reinforces my finding that she in fact knew that the purpose of the visit to Singapore was to deliver the bundles of controlled drugs which were concealed in JHA 7781. In my judgment, even if Roshamima had visited Singapore on 6 May 2009 to collect or buy wedding gifts (which I have found not to be true), it did not exclude the fact that she knew she was delivering controlled drugs into Singapore.

  168. Whether parts of Mas Swan’s and Roshamima’s evidence were inadmissible against Roshamima by virtue of the similar fact rule

  169. [100] As there was sufficient evidence before me, without referring to the similar fact evidence, to make a finding that Roshamima knew that the bundles retrieved from JHA 7781 on 6 May 2009 contained controlled drugs (see [77] above), it is not strictly necessary for me to consider whether the similar fact evidence was admissible. However, for completeness, I have made a finding on this issue.

  170. The law on similar fact evidence

  171. [101] The relevant provisions that govern the admissibility of similar fact evidence are ss 14 and 15 of the EA which, inter alia, provide as follows:

  172. [102] Both ss 14 and 15 of the EA were the subject of detailed discussion in Tan Meng Jee v Public Prosecutor [1996] 2 SLR(R) 178 (“Tan Meng Jee”), in which Yong Pung How CJ, who delivered the judgment of the Court of Appeal, explained that similar fact evidence was generally excluded because (at [41]):

  173. After reviewing the Singapore authorities on the matter, the Court of Appeal observed that the decisions could be classified into two categories: first, those in which the admissibility of similar fact evidence was determined by applying a test of balancing the probative value of the similar fact evidence against its prejudicial effect, a test which later found expression in the House of Lords decision in Director of Public Prosecutions v Boardman [1975] AC 421 (“Boardman”), and second, those in which the admissibility of the similar fact evidence was determined according to the categories of relevance under ss 14 and 15 without reference to any probative value/prejudicial effect balancing test (see Tan Meng Jee at [44]–[47]). It then went on to approve the Boardman test and superimposed it onto ss 14 and 15 of the EA (see Tan Meng Jee at [48]).

  174. [103] The Court of Appeal saw no controversy in adopting the Boardman test because it was of the view that a probative value/prejudicial effect balancing test was already inherent within ss 14 and 15 of the EA (Tan Meng Jee at [49]–[50]):

  175. [104] The Court of Appeal’s approval of the Boardman test was also influenced by two other factors: first, the it accepted that the courts had a general discretion to exclude any kind of evidence (not just similar fact evidence) prejudicial to the accused if it would be unjust to do so (“the fairness exception”), even if the evidence was deemed relevant and admissible under the EA; and second, it took the view that the Boardman test was, in substance, simply another form of the fairness exception (at [51] and [52]):

  176. [105] However, the authority of Tan Meng Jee (and the subsequent cases that have relied on it) on the application of the Boardman test has, for all practical purposes, been superseded by the recent decision of the court of three judges in Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239 (“Phyllis Tan”). Although, under the doctrine of stare decisis, Tan Meng Jee, a Court of Appeal decision, is technically of greater authority than Phyllis Tan, Professor Jeffrey Pinsler SC has commented, persuasively, that the latter must now be regarded as the leading authority for the following reasons (Evidence and the Litigation Process (LexisNexis, 3rd Ed, 2010) (“Pinsler”) at para 10.19):

  177. [106] In Phyllis Tan, Chan Sek Keong CJ, who delivered the judgment, concluded, after a comprehensive review of the authorities, that the fairness exception as expressed in the House of Lords decision R v Sang [1980] AC 402 was inapplicable in Singapore because it was inconsistent with the overarching principle in the EA that “all relevant evidence is admissible unless specifically expressed to be inadmissible” (although Chan CJ did acknowledge that in so far as cases involving entrapment evidence were concerned, an application of the common law fairness exception should result in the same outcome because, by definition, the probative effect of entrapment evidence would always outweigh its prejudicial effect on the accused) (see Phyllis Tan at [126]). Commenting on Phyllis Tan, the Court of Appeal in Lee Chez Kee v Public Prosecutor [2008] 3 SLR(R) 447 (“Lee Chez Kee”) further observed that the courts have no residual discretion to exclude evidence deemed legally relevant under the EA (at [106]):

  178. [107] Based on these observations in Phyllis Tan and Lee Chez Kee, it is clear that the admissibility of similar fact evidence has to be determined according to the categories of relevance under ss 14 and 15 and Tan Meng Jee is inconsistent with the EA in so far as it allows for the exclusion of similar fact evidence that is otherwise deemed relevant under those provisions. This does not necessarily mean, however, that all previous cases where the probative value/prejudicial effect balancing test had been applied, eg, Tan Meng Jee, were therefore wrongly decided. As mentioned by the Court of Appeal in Tan Meng Jee at [49]–[50], both the requirement in Explanation 1 to s 14 (see [101] above) and the term “similar occurrence” in s 15 appear to correspond with the “striking similarity” test extensively referred to in Boardman, which is an application of the probative value/prejudicial effect balancing test: the more “similar” the evidence, the more probative it is (see Tan Meng Jee at [50]; Hin Hup Bus Service (a firm) v Tay Chwee Hiang [2006] 4 SLR(R) 723 at [39]). Accordingly, in my view, decisions that have applied the “striking similarity” test are therefore entirely consistent with ss 14 and 15 of the EA.

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