Public Prosecutor v Phuthita Somchit and another

Lee Seiu Kin J:

[1] The first accused (“Somchit”) and second accused (“Quek”) were jointly charged with an offence under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the Act”). The charge (“First Charge”) read as follows:

[2] At the commencement of the trial, the prosecution applied to stand down a second charge against Quek under the same provisions of the Act, which I allowed. The prosecution and both counsel for Somchit and Quek tendered a statement of agreed facts (“SAF”) pursuant to s 376(1) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”). The effect of this was that the facts stated in the SAF were conclusively proved in this trial. I set out below the SAF in its entirety (incorporating amendments made at the end of the first day of the trial):

[3] The prosecution called a total of 45 witnesses to give evidence on its behalf. At the end of the prosecution’s case, I found that a prima facie case had been made against Somchit and Quek and called upon them to give evidence in their defence. Somchit elected to give evidence as well as call witnesses to give evidence in her defence. Quek elected to remain silent. Before going further, it should be clarified that Somchit also refers to Quek as “Wan” and Winai Phutthaphan (“Winai”) as “Od”.

[4] The following were the evidence against Somchit. 124 packets of white granular substance comprising not less than 62.14 grams of diamorphine (“the seized drugs”) were found at Block 21 Bedok Reservoir View #01-02 Aquarius by the Park (“Bedok Condominium”), where Somchit resided. Somchit admitted to being in possession of the seized drugs, and in any event, that was clear from the evidence. Not only did Somchit know of the existence of the seized drugs, she was also the one who handed the Nokia Speaker Box (A1) to Winai and the one who kept the white bag (B1). By operation of s 18(2) of the Act, Somchit was “presumed to have known the nature” of the seized drugs. As far as trafficking was concerned, Somchit readily admitted her involvement with Quek’s drug dealings. She was involved in the packing process, took orders from customers, instructed Winai to deliver packets of drugs to customers, and kept records of the sales. However Somchit denied knowledge that the seized drugs were diamorphine. The sole issue, as far as Somchit was concerned, was whether she had rebutted the presumption in s 18(2) of the Act.

[5] Somchit made a number of statements to the CNB officers from the time she was arrested. On the night of the arrest (3 October 2008), W/ASP Tan Siew Fong (“W/ASP Tan”) questioned her on various items in the Bedok Condominium. A Thai interpreter, Orawan Triteeyaprasert (PW40), interpreted from English to Thai and vice versa. The following is an extract from the question and answer record, which was given within three hours of her apprehension:

[6] At 6.31am on 4 October 2008, at the CNB headquarters, after she was charged, Somchit said as follows in answer to it:

[7] Somchit subsequently gave a number of long statements to the CNB, all of which she agreed to admit in evidence. In relation to the issue of her knowledge of the nature of the seized drugs, the following are relevant:

[8] Somchit related her background. She was born in 1975 and had only completed primary school after which she went out to work. She first worked as a masseuse and then turned to prostitution. She had married a man but subsequently divorced him. She has two sons, presently aged 19 and 17. This meant that she became a mother at the age of 15 or 16 years. She had at some stage visited London for a short period, where she worked as a prostitute. Around 2004, she came to Singapore, also to work as a prostitute. She would remain here for two weeks to a month each time, until her social visit pass expired. She plied the alleys of Geylang, earning about $2,500 to $3,000 per month. This was her source of income out of which she supported her mother, two sons, a niece and nephew. Her family members were not aware that she was working as a prostitute. Quek was one of her clients; she had first met him around June 2007. Shortly thereafter, they took a liking to each other and Somchit stopped working as a prostitute when Quek offered to take care of her. Since then, Somchit would travel back and forth from Thailand and live with Quek whenever she was in Singapore. Quek was supportive both of Somchit and her family in Thailand – he gave her an average of $2,000 a month and even conversed over the telephone with the members of her family. Their relationship progressed to the point where they discussed marriage. Sometime in the middle of August 2008, Somchit arranged for her nephew, Winai, to come to Singapore to work for Quek. Quek agreed to pay him 25,000 baht (equivalent to S$1,000) a month. Winai came to Singapore on 24 August 2008 (Somchit was not in Singapore at that time).

[9] Somchit recounted her first encounters with Quek’s drug dealings. She returned to Singapore on 28 August 2008. The first time she saw the drugs Quek dealt with (which turned out to be diamorphine) was a few days after moving into the Bedok Condominium on 6 September 2008. Quek asked her to close the door and windows. They then went into the study room and Quek took a black bundle out of a plastic bag. Quek walked to the kitchen, and cut open the black bundle which contained a white substance which he then poured into a bowl and started repacking into other packets. Due to the surreptitious circumstances, Somchit suspected that the white substance was illegal and asked Quek if it was a drug and he admitted that it was. Somchit then contacted Winai and informed him that Quek was dealing with “yaaseptit” (which she understood to mean narcotic or illegal drug). Somchit told Winai that they should go back to Thailand after their visa expired. Subsequently, on a second occasion, Somchit again questioned Quek if the white substance was a drug and Quek again admitted that it was. Somchit asked Quek what type of drug it was. Quek did not tell her the name of the drug, but told her it was a “not serious drug” and that if anything were to happen, she would be sent back to Thailand. Upon hearing Quek’s assurance, Somchit volunteered her help with the packing of the drugs.

[10] When asked by counsel why she believed Quek’s representations, Somchit stated the following:

Somchit also answered to the following when asked by counsel:

Finally, Somchit testified that while she had heard of other drugs which in Thai she referred to as “Yaba” and “Ganja”, she had no knowledge of “Phong Khaou”, which the Thai interpreter explained was the Thai term for heroin.

[11] The third person to the alleged conspiracy, Winai, gave evidence for the prosecution. Having heard his evidence which was also tested during cross-examination, I found it to be inconsistent in parts. For example, Winai initially testified that Somchit never told him that the drugs were yaaseptit (the Thai interpreter explained that this was a general term for narcotic or illegal drug). However, subsequently, he claimed that he could not remember if she did. Another example related to whether Winai made any drug deliveries for Quek between 26-28 August 2008, ie the two days during which Winai was alone in Singapore with Quek. Winai stated in his statement to the CNB (dated 8 October 2008) that because he could not understand Quek’s instructions, he refused to make any deliveries. At trial, Winai testified that in fact, he did make deliveries when he understood Quek’s instructions or when Somchit translated Quek’s instructions to him by phone. When cross-examined on the apparent inconsistency, Winai explained that when his statement was being recorded, he informed the interpreter and recording officer that he did make deliveries. Nevertheless, even taking Winai’s statement at its highest, two points may be noted. The first was that at no time did Winai allege that Somchit knew that the drugs they dealt with were heroin. The second was that Winai consistently stated that he was asked to make drug deliveries by Quek. These points will be further discussed below.

[12] The prosecution submitted that Somchit had failed to rebut the presumption under s 18(2) of the Act. Firstly, the prosecution submitted that the relevant authorities supported the first interpretation of Tan Kiam Peng v Public Prosecutor [2008] 1 SLR(R) 1 (“Tan Kiam Peng”) ie that the prosecution need only to prove that the accused knew that he or she was in possession of a controlled drug (see below at [19]). Since Somchit admitted that she knew the seized drugs were illegal, on this interpretation, the prosecution would have proven the charge beyond reasonable doubt.

[13] Secondly, in any case, Somchit had actual knowledge that she was dealing in diamorphine:

(a) Somchit knew and referred to the seized drugs as the “white substance” or “white one”, which were common parlance for diamorphine.

(b) When Somchit informed Winai that they were dealing with drugs, he asked her if she was scared and she said that she was; this suggested that Somchit knew that the drugs she was dealing in attracted severe penalties under the law.

(c) Somchit was intimately involved with the trafficking process. Not only did she pack the drugs into 8-gram packets, as was the market practice for selling diamorphine, she also dealt directly with customers. Furthermore, she knew that the drugs were sold at a high price (between S$240 to S$320 per packet) and she was remunerated lucratively for her work.

(d) Somchit was not a stranger to controlled drugs. She consumed methamphetamine (“Ice”) and was introduced to nimetazepam (“Erimin 5”) by Quek. It would have been odd that when it came to diamorphine, Quek did not even mention its name to her. She had also witnessed firsthand the way by which it was consumed by Quek and the effects it had on him. Given the intimacy of their relationship, as Somchit had claimed, there was no reason why Quek would refrain from referring to the drugs as “peh hoon” or withhold from her the fact that it was diamorphine.

(e) It was inconceivable that during the period in which she assisted Quek, which lasted almost one month, Somchit had never heard Quek refer to the drugs as “peh hoon”.

From the above, the prosecution submitted that Somchit was not an innocent courier in a one-off transaction. Instead, she was intimately involved in the entire transaction and her behaviour suggested that she must have known the nature of the seized drugs. Furthermore, the prosecution submitted that Somchit’s claim that Quek had told her that the drugs he dealt with were “not serious” drugs was an after-thought, which she did not mention in any of her nine statements to the CNB officers (comprising of contemporaneous statements, cautioned statement and long statements). Likewise, it was not apparent from Winai’s evidence that Somchit thought that the drugs were “not serious”.

[14] Thirdly, even if she did not have actual knowledge that the seized drugs were diamorphine, she was at least wilfully blind as to its nature. In particular, the circumstances surrounding the drug dealings were suspicious. For example, Quek had asked her to lock the doors, close the windows and draw the curtains when he packed drugs in the Bedok Condominium. Furthermore, Somchit was not a stranger to drugs, and knew that it was illegal to deal in controlled drugs. In fact, she was worried when she first learnt that Quek dealt with controlled drugs. Against this backdrop, although she had opportunities to probe further eg by asking Quek or the customers, she chose to turn a blind eye and was content to rely on Quek’s answers without attempting further to ascertain the true nature of the drugs.

[15] The defence submitted that Somchit had rebutted the presumption under s 18(2) of the Act. Firstly, the defence submitted that Somchit did not have actual knowledge of the nature of the seized drugs. In her statements to the CNB officers and her testimony in court subsequently, Somchit freely and readily admitted to her involvement in the trafficking process, but did not at any point concede that she knew that the drugs she dealt with was diamorphine. In fact, Somchit’s statements to the CNB were consistent with her defence at trial. Furthermore, neither Winai’s evidence nor Quek’s statements to the CNB suggested that Somchit was aware of the nature of the seized drugs. Secondly, the defence submitted that Somchit was not “wilfully blind” but “rendered blind” by her trust in Quek and her belief in the representations made by Quek. Somchit had no reason to disbelieve Quek as he treated her well, and did not conceal the fact that the drugs he dealt with were a controlled drug.

[16] Subsections (1) and (2) of s 18 of the Act provide as follows:

These provisions establish two presumptions in the law. The first is the presumption of possession in s 18(1) of the Act. Any person who is proved to have in his possession, custody or control anything containing a controlled drug or the keys to anything, place or premises which contain a controlled drug, shall be presumed to have had that drug in his possession. This presumption extends to possession of any document intended for delivery of a controlled drug. The second is the presumption of knowledge – once possession is proved or presumed under s 18(1), s 18(2) of the Act operates to presume that the person knew the nature of that drug. The effect of this is to place on the accused the burden of proving, on a balance of probability, that he did not know the “nature of the drug”.

[17] I first considered Warner v Metropolitan Police Commissioner [1969] 2 AC 256 (“Warner”), the English authority that had spawned the precedents in Singapore on s 18 of the Act. The appellant in Warner had picked up two parcels from a cafe which he believed had contained scent. However one parcel contained amphetamine sulphate tablets, a substance specified in the Schedule to the Drugs (Prevention of Misuse) Act 1964 (c 64) (“the 1964 Drugs Act”) and possession of which would, without lawful authority, be an offence under s 1(1). The point of law that was stated by the English Court of Appeal to the House of Lords was:

The House ruled, by a majority, that s 1 of the 1964 Drugs Act was an absolute offence and a person in possession of any of the scheduled drugs without lawful authority commits an offence even if he had no knowledge that it was a scheduled drug. In his judgment, Lord Pearce said (at 304–306) that parliamentary intention in the 1964 Drugs Act was to prevent or curtail the drug traffic and the term “possession” must not be construed so narrowly “as to stultify the practical efficacy of the Act or so broad that its creates absurdity or injustice.” He reasoned that it could not have been intended to be a defence for an unauthorised person to show that he possessed the drugs for a laudable purpose but on the other hand, it could not have been the intention that a person would be guilty if he did not know he had the thing at all. Lord Pearce concluded that “possession” would exclude the situation where the thing had been planted on him without his knowledge, but it would cover one in which the person had knowledge of the existence of the thing itself but not its qualities. In relation to things in containers, Lord Pearce said as follows at 305-306:

[18] In Tan Ah Tee and another v Public Prosecutor [1979-1980] SLR(R) 311 (“Tan Ah Tee”), the second appellant claimed that she did not know that the contents of the plastic bag she was carrying were diamorphine. Her contention before the Court of Appeal (“CA”) was that she had proved, on a balance of probabilities, that “she did not have possession under the Act of the contents of the plastic bag and did not know the nature of its contents” (at [18]). A major issue before the CA was the presumption of possession in s 16(1) of the Act (now s 18(1)). The court referred to the speech of Lord Pearce in Warner and concluded as follows at [25]-[26]:

[19] It should be noted that the CA in Tan Ah Tee dealt only with the presumption of possession in s 18(1) of the Act. There was no discussion on the nature of the presumption in s 18(2) and Tan Ah Tee is not authority on this presumption. In Tan Kiam Peng, the CA discussed the interpretation of s 18(2). The court set out, at [80] and [81] of the grounds of decision, the two possibilities as to the nature of the knowledge that the accused is presumed to have, viz:

(a) the accused is presumed to have known that the drug concerned was a controlled drug (“the first interpretation”); or

(b) the accused is presumed to have known that the drug concerned was not only a controlled drug, but was the specific drug for which he was charged (“the second interpretation”).

[20] The CA noted that the decided cases supported the first interpretation, and made the following observations at [85]-[87] of the grounds of decision:

[21] However, the CA in Tan Kiam Peng also observed (at [84]) that simply looking at the ordinary meaning of the words “the nature of that drug” in s 18(2) of the Act, the second interpretation must prevail. Although the CA did not make a conclusive finding on the interpretation of s 18(2), it made clear that it preferred the second interpretation, ie that the accused must have knowledge of the nature of the drug. The CA said as follows at [90]-[93] and [95]:

[22] As is clear from the foregoing, the CA in Tan Kiam Peng declined to rule definitively on the interpretation of s 18(2) of the Act because counsel had not made detailed submissions on that issue. The CA proceeded on the basis that the second interpretation (ie that knowledge that the drug was the specific drug the subject matter of the charge) was the correct one and dismissed the appeal on the ground that the appellant had actual knowledge of the nature of the drug he was in possession of.

[23] I observe that the CA in Tan Kiam Peng had held at [84], and reiterated at [90], that the ordinary meaning of the words in s 18(2) of the Act pointed to the second interpretation. In my opinion, this alone ought to have determined the issue. However the CA felt constrained by earlier decisions and by the view that the first interpretation is consistent with the general policy of the Act whereas the second would undermine it (see [85], [88] and [90] of Tan Kiam Peng). Unfortunately the CA did not proceed to consider what the underlying policy of the Act is in order to test this proposition. I will attempt to do so now.

[24] The long title to the Act states that it is “for the control of dangerous or otherwise harmful drugs and substances and for purposes connected therewith”. Part II of the Act establishes offences of trafficking, manufacture, import and export, possession and consumption of controlled drugs specified in the First Schedule. Part III contains rules of evidence pertaining to prosecutions under the Act, provisions pertaining to enforcement and forfeiture and sets out the punishments for various offences. There are several sections setting up presumptions, including s 18. Part IV deals with treatment and rehabilitation of drug addicts. Part V contains provisions empowering the taking of photographs of and body samples from persons under supervision. Part VI deals with the establishment of committees of inquiry for matters connected with discipline and other functions of any approved institution for rehabilitation of drug addicts. Considering the Act as a whole, and the parliamentary debates dealing with its enactment in 1973, it is clear that the Act was enacted to deal with the problem of narcotic drug abuse and addiction. It punishes persons not only for trafficking, but also for consumption of controlled drugs. It provides for incarceration for the purposes of rehabilitation of drug addicts. It would not be inaccurate to state that the general policy underlying the Act is that of reducing and even eradicating narcotic drug abuse in Singapore. The next question is whether taking the first interpretation or the second would further the policy or undermine it. There is no doubt that adopting the first interpretation would make it much easier for the prosecution to secure a conviction in cases where the presumption in s 18(2) of the Act is required to be invoked. But it is quite a different thing to say that making it easier for the prosecution to secure a conviction would promote the general policy of the Act whereas making it more difficult to do so would undermine it. Our system of criminal justice requires the prosecution to prove an accused person’s guilt beyond reasonable doubt in order to secure a conviction. The presumption in s 18(2) of the Act shifts the burden of proof of knowledge to the accused person once the conditions therein are met. The legislature had decided where the line should be drawn in relation to that burden. If, as the CA in Tan Kiam Peng held, the ordinary meaning of the words in s 18(2) point to the second interpretation, then it is my respectful opinion that there cannot be room for any consideration as to whether this meaning “undermines the general policy” of the Act as Parliament had decided on this line as the appropriate balance between burden on the prosecution and on the accused.

[25] Even if there is an ambiguity in s 18(2) of the Act, it should be noted that this is a criminal provision. The CA in Tan Kiam Peng stated at [91] that, as the punishments for offences under the Act are harsh and even encompass the death penalty, any ambiguity in the statutory language ought to be resolved in favour of the accused. I would point out that this is a principle of statutory interpretation of great antiquity in the common law. In Francis Bennion, Bennion on Statutory Interpretation (LexisNexis, 5 Edition, 2008), the writer put it in the following manner at s 271, p 825:

[26] In Tuck & Sons v Priester (1887) 19 QBD 629, the plaintiffs entered into a contract with the defendant to make copies of a drawing which belonged to the plaintiffs. The plaintiffs subsequently registered their copyright. Without the consent of the plaintiffs, the defendant made additional copies in a foreign country with the intention of selling them for his own profit. An issue before the court was whether under the Fine Arts Copyright Act 1862 (25 & 26 Vict. c. 68) (“the Victorian Act”) the defendant made copies of the work unlawfully and was therefore subjected to additional penalties pursuant to s 6 of the Victorian Act. Lord Esher MR held that (at 638):

[27] This decision was followed in Teng Lang Khin v Public Prosecutor [1994] 3 SLR(R) 1040, an appeal to the High Court from the Magistrate’s Court. The appellant there was convicted under s 101(2) of the Road Traffic Act (Cap 276, 1985 Rev Ed) (“RTA”) for causing a vehicle registered for private use to be used as a public service vehicle without there being in force a public service licence in respect of the vehicle. She had rented to customers cars registered for private use. At issue was what constituted a “public service vehicle” under the RTA. Section 2 of the RTA stated:

Yong Pung How CJ (“Yong CJ”) held, albeit “not without some reluctance”, that the literal construction of s 2 of the RTA was that the cars hired out by the appellant did not constitute “public service vehicles” since they were hired out as self-drive cars and there was no evidence that they had been used for carriage of passengers for hire or reward. Yong CJ cited with approval the passage from Tuck & Sons v Priester reproduced above at [26] and also made the following statement (at [18]):

[28] This rule has been attenuated in recent times and the courts adopt a more pragmatic purposive approach to statutory interpretation especially after the enactment of s 9A of the Interpretation Act (Cap 1, 2002 Rev Ed). In Public Prosecutor v Low Kok Heng [2007] 4 SLR(R) 183, V K Rajah JA opined at [38]:

The general position in Singapore with respect to the construction of written law should be the same whether the provision is a penal or civil one. Purposive interpretation in accordance with s 9A(1) of the Interpretation Act is the paramount principle of interpretation even with respect to penal statutes; it is only in cases where penal provisions remain ambiguous notwithstanding all attempts at purposive interpretation that the strict construction rule applies.

[29] However this rule is nevertheless germane in capital cases. In Forward Food Management Pte Ltd and another v Public Prosecutor [2002] 1 SLR(R) 443, Yong CJ said at [21]:

[30] Therefore, if there is an ambiguity in s 18(2) of the Act, as the CA in Tan Kiam Peng put in at [91], “the benefit of the doubt ought to be given to the accused”. There is a further reason for doing so. Under s 18(1), an accused is presumed to have possession of the controlled drug if it is proved that he had possession of the keys to a place or premises or even a document intended for delivery. Under s 18(2), once this presumption of possession is operative, the presumption of knowledge is invoked. Section 18(2) therefore involves a presumption upon a presumption, a further reversal of the burden of proof from the prosecution to the accused. In my opinion, “the second interpretation” of s 18(2) that the CA in Tan Kiam Peng had considered (at [95] of their judgment) to be “the more persuasive” one must be the correct one in law.

[31] From both her demeanour in the witness box and the consistency of her evidence, I found Somchit to be a witness of truth. Somchit gave evidence over almost three days. She came across as a person of average intelligence and displayed a level of street smart savvy that can be expected from her background. I had noted that throughout her testimony, she answered questions without hesitation and in a forthright manner. She admitted to every question put to her save on the issue of her knowledge that the drugs she was dealing with were heroin. Somchit had maintained this position right from the time of her arrest in the Bedok Condominium. There, W/ASP Tan had asked, through an interpreter, what Quek’s customers bought from him. She said that it was the “white colour”. To the follow-up question, she had said: “I do not know what is the white colour. ‘Wan’ only engage me to help him pack into smaller packets and he will pay me for the work.” Somchit was then taken to CNB headquarters and questioned through the night. In the morning, at around 6.30am on 4 October 2008, Somchit was charged with trafficking heroin and that was when it was brought to her attention that she was facing a capital offence in relation to that drug. In her statement in response to the charge, she said that she knew that it was a controlled drug, but she did not know its effect nor the severity of the punishment. She said that Quek told her that if anything happened, she would not get into serious trouble; and at worst, she would be deported. It can be seen that her reactions in the hours after the shock of arrest, and when faced with a capital charge, are consistent with what she maintained in her defence. Over several months she gave a number of statements to the CNB. There were no significant inconsistencies there with her defence. Finally, the evidence given at the trial by Winai and Somchit herself were also consistent with her defence. I took into consideration Somchit’s background. She had only completed primary school in Thailand and thereafter had gone to work, first as a masseuse before resorting to prostitution. Her life had been a constant struggle, and she stooped to the lowliest occupation a woman could take to support her sons and an extended family. Therefore when Quek rescued her from this life and not only placed her in comfortable surroundings, treated her well and provided for her family, but also professed his love for her and intention to marry her, it is not surprising that she trusted him and took his words literally. Having had the opportunity to observe her demeanour in the witness box, I found her evidence to be truthful.

[32] For completeness, I will now deal with what the prosecution has submitted are the weaknesses in Somchit’s defence.

[33] The first point highlighted by the prosecution was that the circumstantial evidence, ie the money she received, the packing, Quek’s method for consuming the drug etc points to the conclusion that Somchit knew that the seized drugs were diamorphine. However, given the nature of their relationship, I accepted Somchit’s evidence that Quek would have given her money whether or not she helped him in his drug dealings. More importantly, Somchit had admitted that she knew that the substance was some kind of illegal drugs, and therefore it would not be surprising to her that there would be money in the operation.

[34] The second point was that Somchit did not mention in her statements to the CNB that Quek told her the drug he dealt with was a “not serious drug”; on the contrary, she stated then that Quek told her she did not need to know what the drug was. When cross-examined on this apparent omission from her statements to the CNB, Somchit stated that:

In my view, Somchit’s evidence to this court was consistent with her statements to the CNB. Firstly it must be emphasised that s 122(6) of the CPC does not require the accused person to minutely detail the defence he will be relying on at the trial: see Roshdi v Public Prosecutor [1994] 3 SLR(R) 1 at [21]. More importantly, I found that although Somchit did not state specifically that Quek told her the drugs were “not serious”, her statements had in fact alluded to it. As noted above, from the moment she was arrested, Somchit had denied knowledge of the nature of the seized drugs. In her cautioned statement, she stated that she did not know the effect of the drug or the severity of the penalty. I noted that Somchit’s statement to the CNB was slightly different from her evidence in trial, ie in her cautioned statement, she denied knowledge of the severity of the penalty, and not the drug itself. However in the context, I was of the view that the two are connected. Taking into account Somchit’s background, I found that it was reasonable that when laying out the material aspect of her defences in her statement, she did not appreciate the difference. I therefore found her cautioned statement to be consistent with her evidence at trial, and that by stating that Quek told her that the worst that would happen would be for her to be sent back to Thailand, Somchit alluded to the fact that Quek told her that the drugs he dealt with were “not serious”. The prosecution submitted that the reason why Somchit thought that the worst that would happen to her was being sent back to Thailand was because Quek told her that he would admit that all the drugs belonged to him. While that is a plausible interpretation, in my view, it was necessary to consider her evidence in its totality. Again, here I noted the consistency of her statements and her defence at trial.

[35] The third point raised was that when Somchit learnt that Quek was dealing with drugs, and Winai asked her if she was scared, she said she was. In Somchit’s statements to the CNB, she stated the following:

As for what would happen to her, Somchit agreed with the prosecution that she thought she may be imprisoned. Thus, she wanted to go back to Thailand when her visa expired. The prosecution submitted that these suggested that she knew the seriousness of the drugs Quek dealt with. Somchit testified that she had two conversations with Winai. The first conversation took place after she first found out that Quek dealt with drugs when he brought the drugs to the Bedok Condominium. Somchit called Winai to inform him that Quek dealt with drugs and that Winai and her should return to Thailand after their visa ended. It was during this conversation with Winai where Somchit expressed that she was “scared”. The second conversation with Winai, where Somchit told Winai that at the very most, they would be sent back to Thailand, took place subsequently after she began to help Quek with the packing ie after Quek had told her that the drugs were not serious. Thus, the defence submitted that although Somchit was initially “scared”, her fears were removed when Quek represented to her that the drugs were “not serious”, and she therefore decided to help him as well as extend her visa. I accepted Somchit’s explanation as to the apparent inconsistency in her evidence. In my view, it was consistent with her explanation as to why she chose to extend her visa although she initially stated that she wanted to return to Thailand with Winai after their visas were expired. I also noted that para 44 of Somchit’s statement (see above at [35]) related to the events which took place after the first time she saw Quek bringing the drugs back to the Bedok Condominium.

[36] The fourth point was that even if Somchit did not have actual knowledge as to the nature of the drugs, she was at least wilfully blind as to its nature. As for what amounted to “wilful blindness”, the prosecution relied on the CA’s decision in Tan Kiam Peng, which states the following:

[37] It should also be observed that the CA distinguished between wilful blindness and constructive knowledge in the following manner:

The above observations - quoted at length because, as we shall see below, of their signal importance - are instructive. Although the learned judge spoke of “three degrees of knowledge”, there are, in point of fact, only two distinct categories, viz, actual knowledge and constructive knowledge, respectively. The former, however, comprises two sub-categories - first, actual knowledge in (for want of a better way of putting it) an actual sense and, secondly, actual knowledge in the form of wilful blindness. And, as Devlin J aptly put it, the other main category of knowledge, viz, constructive knowledge “has no place in the criminal law”. However, as we shall see below at [38] (especially at [133] of Tan Kiam Peng), the line between actual and constructive knowledge is not always that clear, owing to the very factual nature of the inquiry.

[38] The CA went on to state the general principles relating to the concept of wilful blindness:

[39] It is clear that the CA considered wilful blindness to be the legal but not actual equivalent to actual knowledge. In any case, I was of the view that Somchit was not wilfully blind as to the nature of the drug. I noted that Somchit had asked Quek what the drug was, to which he replied that it was a “not serious” drug. I further noted that Somchit had testified that, had Quek told her that the drugs were medicinal, or not illegal, she would not have believed him. This showed that Somchit was not blindly willing to accept anything Quek said – she had considered his representations, and given the nature of their relationship, I found that Somchit had a genuine belief that the drugs she dealt with were “not serious”. This was therefore different from a situation where there was “suspicion coupled with a deliberate decision not to make further inquiries” (see [127] of Tan Kiam Peng). I found that although Somchit was initially suspicious of the nature of the drugs Quek dealt with, her suspicions were allayed when Quek told her that the drugs were “not serious”. The decision not to make further inquiries was therefore a result of her trust in Quek (along with her reasonable belief that Quek had no reason to lie to her since he had already readily admitted to her that the white substance was an illegal drug), and not a refusal to investigate further to avoid her suspicions being confirmed.

[40] In view of the foregoing, I believed Somchit’s defence that she believed that the drug was a “not serious drug” and therefore found that Somchit had succeeded in proving, on a balance of probability, that she did not know the nature of the drug the subject of the charge against her. I therefore acquitted her of the charge.

[41] However, as Somchit had intended to traffic in a “not serious drug”, and the evidence supported it, I exercised my power under s 175(2) of the CPC and convicted Somchit of the following charge:

[42] In my view, although Somchit admitted to an intention to traffic a “not serious drug”, it could not be proven beyond a reasonable doubt that the “not serious drug” she intended to traffic was a Class A or Class B drug. However, since Somchit admitted to her intentions and her knowledge that the white substance was an illegal drug, I found that she must have intended, at the very least, to traffic a Class C drug.

[43] After hearing counsel’s submissions on sentencing, I sentenced Somchit to 9 years’ imprisonment, for the reason that Somchit had participated in the offence over a period of a month and was actively involved in packing the drugs, taking orders and had not only recruited Winai for the operation but had also directed him in conducting it.

[44] I now turn to the evidence against Quek. Quek was arrested on 3 October 2008 at about 7.45pm. At about 8.45pm, CNB officers raided the Bedok Condominium using keys that had been found on Quek’s person. As noted above, the seized drugs were found in the Bedok Condominium (also see SAF above at [2]).

[45] Quek made the following statements to the CNB, which were admitted into evidence:

(a) Contemporaneous statement taken on the 3 October 2008 at 2140h:

(b) Cautioned statement taken on 4 October 2008 at 0646h:

(c) Statement recorded on 8 October 2008 at 1450h:

[46] The Bedok Condominium was tenanted to one “Lim Chay Yong”, who was in fact Quek (Quek also stated in his statement recorded on 7 October 2008 that at the time of his arrest, he was staying at a Bedok Condominium which he rented). By virtue of s 18(1)(c) of the Act, Quek was presumed to have the seized drugs in possession. In any case, it was not necessary to rely on the presumption under s 18(1)(c). Quek admitted in his statements that the drugs belonged to him. By virtue of s 18(2), Quek would be presumed to have known the nature of the drugs. However, again it was unnecessary to rely on this presumption. It was clear from his statements that Quek knew that the drugs were heroin. Likewise, from his statements, Quek’s intention to traffic the drugs was apparent.

[47] The evidence against Quek was corroborated by both Somchit and Winai. Somchit testified that she resided in the Bedok Condominium with Quek. Somchit also testified that it was Quek who procured the seized drugs and that she had packed the drugs found in the Nokia Box for Quek’s customers. Likewise, Winai testified that Quek had instructed him to deliver white substances to customers.

[48] Quek elected to remain silent upon his defence being called and did not call any witness to give evidence on his behalf. Evidence of possession and knowledge by prosecution witnesses and Somchit were not disputed by Quek’s counsel in cross-examination. From the evidence of the events from the time of Quek’s arrest to the search in the Bedok Condominium, I found that there was sufficient evidence to prove beyond reasonable doubt that Quek had possession and knowledge. Counsel for Quek submitted that there was no evidence before the court that showed that Quek had possession of the drugs the subject of the charge for the purpose of trafficking. Counsel argued that while there was evidence that Quek had sold drugs in earlier transactions, those drugs were not the subject of the charge. I did not agree with this submission for two reasons. Firstly, the presumption of trafficking in s 17 of the Act was available to the prosecution as the amount in question, 62.14 grams of diamorphine, was more than the threshold of 2 grams under that provision. Secondly and more importantly, Quek had packed the drugs in question for the purpose of selling them. The drugs in question were his stocks in his continuing narcotic drug retailing operation. There was therefore ample basis for finding that Quek had intended to traffic the drugs the subject of the charge.

[49] However, in view of my finding that Somchit did not have knowledge, I exercised my power under s 163(1) of the CPC to amend the charge against Quek to the following:

[50] Pursuant to s 163(2) of the CPC, this altered charge was read and explained to Quek. Pursuant to s 164(1), Quek was called upon to plead thereto and to state whether he was ready to be tried on the altered charge. He claimed trial and stated that he was ready to be tried on the altered charge. Pursuant to s 167 of the CPC, I invited Quek and the prosecution to state whether they wished to recall or re-summon and examine with reference to the altered charge any witness who may have been examined. Both responded that they did not require to recall any witness. I asked Quek if he wished to call any new witnesses and whether he wished to give evidence in relation to the altered charge and he replied to both in the negative. I was of the view that, as there was no material difference between the altered charge and the original charge that would require recalling any witness or calling any new witness, the trial on the altered charge could proceed without any prejudice to Quek.

[51] I proceeded to examine the evidence against Quek on the altered charge and upon evaluating all the evidence in the trial and submissions of counsel, I found that the evidence was sufficient to prove beyond reasonable doubt his guilt in relation to the altered charge, convicted him and sentenced him to death, which is the mandatory punishment under the charge.