Public Prosecutor v Muhammad bin Abdullah and another

Kan Ting Chiu SJ:

[1] This is a joint trial of two accused persons (“the Accused Persons”), Muhammad bin Abdullah (“the 1st Accused”) and Yu Ching Thai (“the 2nd Accused”), for the offence of drug trafficking under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). The charge against the 1st Accused was that he

[2] The Accused Persons were arrested by officers of the Central Narcotics Bureau (“the CNB”) who were conducting an operation with respect to a suspected drug transaction. The officers observed a car bearing registration number SGQ 9129 K (“the car”) in the carpark between Blocks 316 and 317 Woodlands Street 31 (“the carpark”) with the 1st Accused in the driver’s seat. A motorcycle bearing registration number JNP 3997 (“the motorcycle”) subsequently arrived at the carpark and stopped near the car. The 2nd Accused dismounted from the motorcycle and entered the car. The 1st Accused then drove the car out of the carpark. A few minutes later, the 1st Accused drove the car back to the carpark. The 2nd Accused came out of the car and returned to the motorcycle, while the 1st Accused drove the car out of the carpark again. The 2nd Accused was arrested by the CNB officers before he could leave the carpark. A stack of cash amounting to S$9,800 was seized from him.

[3] Other officers in the operation gave chase to the car, but lost sight of it. Subsequently, the car was found abandoned at the junction of Woodlands Avenue 4 and Avenue 7 where it had collided with a taxi. Although he ran off from the car, the 1st Accused did not evade arrest for long. He was spotted by CNB officers at the third floor common corridor of Block 707 Woodlands Avenue 4. The officers saw him throw a white plastic bag over the parapet wall of the corridor when they moved in to arrest him. The 1st Accused was arrested and a white plastic bag was recovered from the ground floor of the block as well as a red and black sling bag which was in a drain.

[4] The white plastic bag held a purple plastic bag. The purple bag in turn held four packets each wrapped in newspaper (these packets were at times referred to as bundles). After the four packets were unwrapped, each packet was found to contain granular/powdery substance wrapped in clear plastic. The four packets were sent to the Health Sciences Authority (“HSA”) where the granular/powdery substance contained in each packet was weighed and underwent qualitative and quantitative analysis. The results of the analysis were as follows:

In total, the four packets contained 915.60 grams of granular/powdery substance which were found to contain not less than 19.84 grams of diamorphine.

[5] The red and black sling bag (which was also referred to as a pouch) was found to contain, inter alia, a red foil packet which in turn held three small packets of granular/powdery substance which were also sent to HSA where they were weighed and analysed. The weight of the granular/powdery substance was 22.91 grams, and the diamorphine content weighed 0.70 grams.

[6] The drugs in the sling bag were not included in the charges against the Accused Persons. The 1st Accused admitted that the sling bag and its contents belonged to him, and that he had thrown it down the block together with the white plastic bag.

[7] Following his arrest, and the recovery of the white plastic bag and the sling bag, the 1st Accused was questioned by Senior Station Inspector Tony Ng Tze Chiang (“SSI Ng”) at about 7.30pm while they were still at Block 707 Woodlands Avenue 4. SSI Ng showed him the white plastic bag, questioned him and recorded the questions and answers in his pocketbook:

[8] Later on in the evening, SSI Ng recorded a signed statement from the 1st Accused:

[9] On 28 May 2012, four days after his arrest, a cautioned statement was recorded from the 1st Accused in answer to a charge of trafficking in 914.78 grams of diamorphine (the gross weight before analysis). His statement was:

[10] The cautioned statement was followed up by a series of investigation statements which began on 29 May 2012, the day after the recording of the cautioned statement. I shall set out the parts of the statements which presented the background to the 1st Accused’s involvement in drug trafficking and consumption, and the circumstances in which he was arrested. In his statement recorded on 29 May 2012 at 2.45pm, he revealed that:

On 30 May he added that:

[11] The 1st Accused’s use of the terms ‘packets’ and ‘pounds’ needs to be clarified. He referred to the four half-pound packets wrapped in newspaper recovered from the white plastic bag as ‘packets’. These four half-pound packets made up the two pounds of heroin that he had ordered. He would divide a half-pound packet into smaller packets for the purpose of consumption and sale. His use of the the terms “packets” and “pounds” were not references to measurements of weight, but were the units by which the heroin was ordered and sold. The 1st Accused confirmed that a small packet weighed about 7.5 grams and his counsel and the prosecution put the weight of a small packet at 7.5 grams in their submissions as well. For the avoidance of confusion, the half-pound newspaper-wrapped packets will be referred to as ‘packets’ and the smaller 7.5 grams packets will be referred to as ‘small packets’.

[12] The 1st Accused admitted that he had been buying heroin from a Malaysian Indian known to him as ‘Makel’ who resided in Johore, and that the heroin would be delivered to him in Singapore by the 2nd Accused. He agreed with the prosecution that between 9 May 2012 and 24 May 2012, the 2nd Accused had made four deliveries of heroin to him and that the deliveries were for two, three, four and four packets successively.

[13] He admitted that he had trafficked diamorphine, but not in the amount stated in the charge. This was because one of the four packets he received was meant for his personal consumption. On that basis, his defence was that the 5.73 grams weight of the heaviest packet (ie, packet 4) should be deducted from the total weight of 19.84 grams of the four packets, leaving 14.11 grams. The effect of the reduction was that he would not face the death penalty on conviction.

[14] Unfortunately, the 1st Accused was inconsistent about the amount of heroin he consumed. In his investigation statement of 31 May 2012, he said “I smoke about one packet of Heroin each day” and when he was interviewed by psychiatrist Dr Winslow Rasaiah Munidasa on 3 February 2014, he told Dr Winslow the same thing. However, when he was interviewed by psychiatrist Dr Ung Eng Khean on 20 January 2015 and 5 March 2015 in the presence of his counsel, he stated that he consumed “between three quarters to two packet [sic] of heroin daily (average of one packet a day)”. During the trial, he said 30 small packets would last him for “1 week plus to 2 weeks”. That worked out to 4.3 packets a day for a one-week period and 2.1 packets a day for a two-week period.

[15] Similarly, the 1st Accused’s account as to the amount of heroin that he would keep for his own consumption was inconsistent. In his investigation statement of 31 May 2012, he stated that:

The 1st Accused confirmed during the trial that half a pound of heroin could be divided into 30 small packets. The 1st Accused also clarified that that was the first time he had intended to keep 30 small packets for his own consumption, although he had kept 20 small packets previously.

[16] However, in the psychiatric report prepared by Dr Winslow, it was recorded that 1st Accused had “always kept about ~5 packets as a reserve for his own consumption which he carried with him all the time”. This was not denied by the 1st Accused.

[17] The prosecution did not dispute that the 1st Accused consumed heroin, and accepted that he would have kept some of it for his own consumption, but it disputed his claim that he would have kept one of the four packets for his own consumption. It argued that he had not proved that he had the financial means to keep 30 small packets for himself, that he had the physical means to store 30 small packets, that it was his practice to keep 30 small packets for himself, or that there was a need for him to keep 30 small packets. It took the position that he would have kept no more than ten small packets, or one-third of a packet, for his own consumption. By its calculation, ten small packets would contain 1.91 grams of diamorphine (on the basis that a packet contained 5.73 grams of diamorphine), and deducting that from the total of 19.84 grams, he was trafficking 17.93 grams of diamorphine. In those circumstances, the prosecution ought to amend the charge to reflect that, but that was not done.

[18] The essential question before the court was how much of the 19.84 grams of diamorphine which the 1st Accused collected from the 2nd Accused was intended to be kept for his own consumption?

[19] It is evident that the 1st Accused was unable to maintain a consistent position (see above at [14]–[16]). He told Dr Winslow that he had always kept about five small packets for his own consumption. He stated in his investigation statement that he normally kept ten small packets for his consumption, but with the four packets he was arrested for, he would have re-packed and kept 30 small packets for himself, something he had not done before. It should be borne in mind that he was referring to heroin to be kept for his personal consumption. There was no suggestion that his heroin appetite was given to sharp fluctuations. If his practice was to always keep five packets for that purpose (as he told Dr Winslow) or that he normally kept 10 packets (based on his investigation statement of 31 May), there would be no cause for him to keep 30 small packets out of the four packets he was arrested for unless he intended to go on an unbridled binge. By his own admission, his sole source of income was from the re-sale of the heroin. Why would he disappoint his customers and deprive himself of the profits by holding on to so much stock? It is also pertinent that the 2nd Accused had given evidence that in the third delivery, about one week before 24 May 2012, he had delivered four packets to the 1st Accused. This was not disputed by the 1st Accused. However, on 24 May 2012, the 1st Accused only had three small packets left in his sling bag where he stored his heroin reserve. There was no reason for him to keep so much more from the fourth delivery as compared to the third delivery. His professed anxiety over getting supplies was unfounded – the evidence was that he had regular and liberal supplies from Makel from whom he received four deliveries of a total of 13 packets between 9 or 10 May 2012 and 24 May 2012. I found his claim that he intended to keep 30 small packets unworthy of belief, and that he was more likely to keep five or ten small packets. I was prepared to give him the benefit and accept the higher figure of ten small packets.

[20] I found that the prosecution and the 1st Accused were incorrect in the way they worked out the amount of diamorphine that was intended for trafficking (ie, after deducting the diamorphine reserved for his own use). Both of them used a packet as a unit for the calculation, and they took the weight of a packet to be 5.73 grams – the weight of the heaviest packet. However, there was no basis for that as the 1st Accused had not seen the four packets when he was arrested, and was never in a position to choose the one to keep. Since no selection had been made, there was no reason to use the weight of the heaviest packet in the computation. There was another basis to work out the figure without resorting to arbitrariness. There was agreement on the weight of one small packet, and the total weight of the four packets was known. The question was simply whether ten or 30 small packets were intended to be kept for personal use. Since that had been determined to be ten small packets, the amount of diamorphine he was trafficking could be derived by deducting the diamorphine content of ten small packets (which can be worked out) from the diamorphine content of the four packages (which is known).

[21] I amended the charge to take out the ten small packets intended for self-consumption. The quantity of diamorphine which he trafficked was calculated as follows –

(c) ÷ (a) x (d), or

The amended charge read:

I note that there was a typographical error in the amended charge – “Woodlands Drive 40” should read “Woodlands Drive 4”.

[22] The 1st Accused claimed trial to the amended charged. The 1st Accused, the prosecutor and the 2nd Accused declined to recall any witness for further examination.

[23] After calling for written submissions and giving them careful consideration, I found the 1st Accused guilty on the amended charge and convicted him. The prosecutor submitted that he was not a courier whose involvement was restricted to the activities set out in s 33B(2)(a) of the MDA, and when his counsel accepted that, I imposed the death penalty on the 1st Accused.

[24] The 2nd Accused made a cautioned statement on 28 May 2012 in response to a charge of trafficking in 914.78 grams of diamorphine on 24 May 2012. The statement read:

[25] He also made investigation statements, the first of which was recorded on 29 May 2012. In that statement he revealed that he resided in Johor Bahru and commuted to Singapore daily on his motorcycle for work in installing aluminium window grills, and that he consumed heroin. I set out the relevant extracts from his statement:

In a further statement recorded on 30 May 2012 he added:

In his statement of 31 May 2012, he explained how the drugs were kept and transported:

[26] The 2nd Accused did not deny that he was trafficking diamorphine. His defence to the charge against him was that he did not know that the quantity of diamorphine he trafficked would attract the death penalty, and he did not intend to traffic that quantity of diamorphine.

[27] When he made his defence during the trial, he admitted that he had not been truthful about the manner in which he delivered heroin to the 1st Accused. He admitted that the practice was that he would receive the packets of heroin in Johore and conceal them in his motorcycle. He would then bring the heroin packets into Singapore and deliver them to the 1st Accused. He had lied that the packets were delivered to him in Woodlands because after he was arrested, he was told that he could face the death penalty. He added that sometime in late April 2012, two weeks before his arrest, he had asked ‘Ah Zhor’ about bringing drugs into Singapore. Subsequently they met, and Ah Zhor handed to him two bundles and told him that he would be paid RM$500 for delivering each packet. Ah Zhor also told him that the penalty for delivering them would not be the death penalty, but eight to ten years imprisonment. He trusted Ah Zhor and made the first delivery of two packets on 9 or 10 May 2012. He did not know at that time whether trafficking was punishable by death in Singapore (he only came to know about it on 28 May 2012 when his cautioned statement was recorded).

[28] The second delivery involved three packets which were handed to him by Ah Zhor’s runner. The second delivery took place four to five days after the first delivery. Four packets were delivered on the third delivery about a week before the fourth delivery on 24 May 2012 when he was arrested. All the deliveries were made to the 1st Accused. The packets delivered in the first three deliveries were similar to the packets seized from the fourth delivery. He did not examine or weigh any of the packets he delivered. Under cross-examination he agreed with the prosecutor that there was no real agreement between him and Ah Zhor that he would only be required to deliver amounts of heroin which did not attract the death penalty. With respect to the fourth delivery, Ah Zhor called him on 23 May 2012 and told him that the delivery was to be made to the recipient of the third delivery. The four packets were handed to him in the purple plastic bag and he provided the white plastic bag that was seized.

[29] During his examination-in-chief, his counsel referred him to para 10 of his investigation statement of 30 May 2012 where it stated that Ah Zhor told him that at most he would go to prison for six or seven years if he was caught, rather than the eight to ten years he had mentioned in court. He explained that there was this discrepancy because he had given the wrong information during the recording of the statement. However, when it was pointed out that it had been put to the recording officer ASP Eugene Tan that the 2nd Accused had actually said eight to ten years imprisonment, the 2nd Accused admitted that he could not recall whether he had given the wrong information or he was misunderstood.

[30] The 2nd Accused’s twofold defence was detailed in his closing submissions at para 10:

[31] The 2nd Accused had made it very clear that he did not know about the death penalty when he delivered the heroin to the 1st Accused. His counsel had asked him:

Counsel appeared to be taken by surprise and asked again:

Counsel then asked a third time:

The prosecutor also went through this with him in cross-examination:

[32] He made his position clear beyond doubt that he did not know about the death penalty until he was informed about it on 28 May 2012 when his cautioned statement was recorded. Ah Zhor’s assurance, that if he was caught he would not face the death penalty but would be imprisoned, must be taken in the context that it was made in relation to the first delivery of two packets on 9 or 10 May 2012. The 2nd Accused did not ask Ah Zhor if the assurance applied to deliveries of greater numbers of packets.

[33] The conclusion to be drawn was that when he delivered the four packets on 24 May 2012, he simply did not know that drug trafficking is punishable with death. He was not mistaken or misled into thinking that the death penalty did not apply – he simply did not know about the death penalty. Since he did not know about the death penalty, the quantity of diamorphine would be of no significance to him because he believed that he would not be punished with death regardless of the amount of diamorphine he delivered. That disposed of the first limb of his defence.

[34] The alternate line of defence was raised against the contingency that the court found that the 2nd Accused knew about the death penalty. On the evidence referred to at [31] above, there was no basis for finding that he only intended to traffic a non-capital amount of diamorphine. The simple truth was that he did not say that he knew about the death penalty and thought that it would not apply. In all his evidence, he had not said that he was told by Ah Zhor that delivering four packets would not set off the death penalty. He had not done anything to ensure that he was ‘safe’ with four packets. This militated against his argument that his intention was to only traffic an amount of drugs which fell below the critical threshold.

[35] In the circumstances, I found the 2nd Accused guilty on the charge he faced and convicted him thereon. On the issue of sentencing, the prosecution accepted that he was a courier, but the Public Prosecutor was not issuing a certificate under s 33B(2)(b) of the MDA because he had not rendered substantive assistance to the CNB. His counsel accepted that decision. In the circumstances, I imposed the death penalty on the 2nd Accused.