Public Prosecutor v Vanmaichelvan s/o Barsathi and Another

Kan Ting Chiu J:

[1] The accused, Vanmaichelvan s/o Barsathi is appealing against the sentence I imposed on him for trafficking 499.99g of cannabis.

[2] The accused, who is 35 years old and was a supervisor in a cleaning company, appeared before me with another person, S Manogaran (“Manogaran”).

[3] At the outset, each of them faced two charges. The accused faced a capital charge of trafficking 749.17g of cannabis and a non-capital charge of trafficking 458.91g of cannabis mixture. Both offences were alleged to have been committed on 2 April 2004 at the cleaner’s store in the National Dental Centre (“NDC”) to which the accused had access in the course of his work. Manogaran was charged with abetting the accused in the commission of the two offences.

[4] The accused and Manogaran claimed trial to the charges they faced and were tried together.

[5] However, on the fourth day of the joint trial, the Prosecutor amended the charge of trafficking cannabis against the accused. The amendment was to reduce the quantity of cannabis stated in the charge from the original 749.17g to 499.99g. The effect of the amendment was that the accused would not face the mandatory death sentence if he was convicted, but was liable to a maximum sentence of 30 years’ imprisonment or imprisonment for life and 15 strokes of the cane and a minimum sentence of 20 years’ imprisonment and 15 strokes.

[6] The accused pleaded guilty to the amended charge and admitted the Statement of Facts[1] prepared by the Prosecution, the relevant portions of which are:

The accused was then convicted on the amended charge.

[7] The Prosecutor applied for the charge for trafficking in the cannabis mixture to be taken into consideration for the purpose of sentencing. The accused consented to the application and admitted to that charge.

[8] The Prosecutor then produced a record of the accused’s antecedents[2] which he admitted to. The record revealed a history of drug offences. He had been convicted on one charge of drug trafficking, two charges of possession of drugs and one charge of consumption of a drug on 19 October 1990 and had been sentenced to a total of 62 months’ imprisonment and five strokes of the cane. On 29 November 1995, he had been placed under drug supervision for 24 months for consuming a controlled drug. The accused informed me that the drug involved in those cases was heroin.[3]

[9] Then his counsel, Mr Subhas Anandan, made the plea in mitigation on his behalf. Mr Anandan told me:

and

[10] After hearing Mr Anandan, the Prosecutor did not address me on sentence. I reviewed the facts of the case, the accused’s antecedents and the plea in mitigation. When I passed sentence, I told the accused:

I sentenced him to 26 years’ imprisonment with 15 strokes of the cane.

[11] I do not regard this to be a crushing sentence, as the maximum term is life imprisonment or 30 years and the minimum sentence is 20 years, and taking into account his drug antecedents and the second trafficking charge that was taken into account for the purpose of sentencing. To me, it was a fair and appropriate sentence on the facts then before me.

[12] I would, in a normal case, have ended here and would not have gone further, but this turned out to be a most unusual case where the accused went on to say on oath that some of the facts he had admitted to in court and significant parts of the mitigation plea made on his behalf were untrue.

[13] What happened was that after the charges against the accused were disposed of, the case against Manogaran went on. In accordance with the understanding that was alluded to, the accused was called to give evidence as a witness for the Prosecution.

[14] The prosecutor asked him questions on Manogaran’s involvement with the drugs, and received surprising replies. I set out some of the questions and answers:

[15] I have set out the questions and answers at length to show the extent of and reasons for the accused’s change of position.

[16] He disavowed without apology significant parts of the mitigation plea that his counsel had made on his instructions.

[17] When Manogaran’s connection with the drugs was brought up by Mr Anandan in the mitigation plea, I took it into account in deciding on the sentence I imposed.

[18] If that had not been brought up, there was little that mitigated the offence and sentence except that the accused had pleaded guilty. Even as regards that, however, there was already a trade-off. In exchange for admitting his guilt, the weight of the cannabis stated in the charge was reduced to 499.99g from the true weight of 749.17g to enable him to avoid the death sentence. When he pleaded guilty to the amended charge in such circumstances, he had already obtained the benefit of his plea from the reduction of the charge. His plea would not have had the same impact on sentence as a plea of guilt made without a trade-off.

[19] If he had instructed Mr Anandan honestly, Mr Anandan would not have said most of what was said in mitigation on his behalf, including the assertion that he was only storing the drugs for Manogaran at the latter’s request, and I would probably have imposed a heavier sentence.

[20] Nevertheless, the accused still feels that the sentence imposed is too harsh on him, and that he deserves a lower sentence.

[1]Exhibit G.

[2]Exhibit H.

[3]Notes of Evidence, pp 338–339.

[4]Notes of Evidence, pp 341–342.

[5]Notes of Evidence, p 342.

[6]Notes of Evidence, p 343.

[7]Notes of Evidence, p 344.

[8]Notes of Evidence, p 510.

[9]Notes of Evidence, p 511.

[10]Notes of Evidence, pp 512–513.

[11]Notes of Evidence, p 513.

[12]Notes of Evidence, p 518.

[13]Notes of Evidence, p 522.

[14]Notes of Evidence, pp 531–532.