Public Prosecutor v Yogaras Poongavanam

Tay Yong Kwang J:

[1] The accused, born on 23 May 1989, was tried and convicted on the following charge:

[2] At the start of the trial, the accused said he wanted to plead guilty to the charge. As is the practice, I rejected his plea as the offence is punishable with death. The Prosecution then proceeded to prove its case.

[3] Nevertheless, the Prosecution and the Defence had already agreed on all the material facts. The Prosecution tendered a statement of agreed facts (“SOAF”) which was to be read in conjunction with an agreed bundle. The agreed bundle, which included the accused’s statements and the forensic analysis reports, was thus admitted as evidence by consent.

[4] The accused confirmed that he fully understood the SOAF and had no objection to anything in it.

[5] The entire SOAF is reproduced as follows:

[6] The Prosecution relied on the evidence in the agreed bundle, including the accused’s inculpatory statements and the results of the forensic analyses. Besides the four long statements referred to at [25] of the SOAF, the accused made two contemporaneous statements at the scene of the incident on 17 April 2012 at about 5.09 pm and 6.14 pm. He also made a cautioned statement – pursuant to s 23 of the Criminal Procedure Code 2010 (Act No 15 of 2010) – on 18 April 2012, after the drug importation charge was explained to him.

[7] The accused was originally from Penang. He said that he was recruited by his “boss” to deliver drugs from Johor. The runners, like himself, were all from remote villages in Malaysia. Based on a roster system, the runners delivered different types of drugs (eg, heroin and ice) each day. The amount of the drugs would also vary. The payment received depended on the amount of drugs delivered. He claimed that about 600 or more runners – all of whom had work permits – were working for the “boss”.

[8] When he first met the “boss” in Johor in March 2012, he was taken to a “very nice” place with “many rooms and a lot of money, in different currencies”. He was given drinks and told that he could also have the money to buy cars and motorcycles. With the drug delivery job, he thought that he could lead a comfortable lifestyle, support his mother and pay for her medical expenses. He had to perform three drug deliveries over a period of time before he could become a permanent runner who worked on a daily basis. He was arrested on his third drug delivery to Singapore. At that time, he was a cleaner at the Esplanade Theatres. He had worked there for less than a week before he was arrested.

[9] The accused was arrested on 17 April 2012. Earlier that day, he had followed a group of Chinese, including a female, to a godown. At the warehouse, he was taught and told to pack the drugs into two black bundles by using cut pieces from a black garbage bag and black tape. In one of his long statements, he said that he was told that the drugs were “ubat”:

[10] The accused’s admission of his involvement in the wrapping was supported by forensic DNA analysis on the two “plastic bags” that were made from the cut pieces of the black garbage bag and black tape. The DNA profile obtained from the exterior, the tapes and the plastic sheet of one bag and the exterior and interior of the other bag, was found to be a mixed DNA profile. The accused’s DNA profile could be included as a contributor to the mixed profile.

[11] The accused was told that the drug prices were high. He was told to collect $4,900 for the biggest packet (contained in one bundle) and $2,900 and $2,800 for each of the two smaller ones (contained in the second bundle). This was the first time he was collecting such a big sum for a delivery. He kept the two black bundles in the front fender area of his motorcycle after using his screwdriver to remove the screws from the fender cover. He was then told to return home and wait for a call.

[12] The accused made multiple other admissions that he knew that the drugs were “ubat”. In his statement on 20 April 2012, he said: “I know the drugs in the photographs are “ubat” as that was what the female Chinese told me and I was the one who wrapped the “ubat” in the cut pieces of black garbage bag and placed them in the fender of my motorbike.”

[13] In his statement on 22 April 2012, he said that he told an officer that the drugs were “ubat” when asked if they were “ganja” (ie, cannabis). Elsewhere in the same statement, where the accused recounted being taken by CNB officers to witness the weighing of the drugs, he said: “I know that the drugs were ‘ubat’”.

[14] In his statement on 23 April 2012, he said that he started to feel afraid when he was told that the drugs were “ubat”:

[15] While portions of the accused’s contemporaneous statements and cautioned statement (referred to at [6] above) appeared to be exculpatory, he later retracted those statements. In his contemporaneous statement on 17 April 2012 at about 5.09pm (“the first contemporaneous statement”), it was recorded:

However, he said that he knew the bundles were “ubat” in his subsequent long statement on 21 April 2012:

[16] In his statement of 21 April 2012, the accused also clarified that he had lied about his lack of knowledge in his cautioned statement of 18 April 2012. He explained that he lied because he had hoped that his “boss” would bail him out. In the said cautioned statement, he said:

In his statement of 21 April 2012, he explained:

[17] After returning home from the warehouse, the accused said that he received a call from his “boss” at about 2pm or 3pm to deliver the drugs. As directed, he rode his motorcycle to the Woodlands Checkpoint. After he showed his passport at the motorcycle arrival hall, an officer told him to push his motorcycle to the parking lot. Officers checked his motorcycle and found the two bundles of drugs after unscrewing the cover of the front fender. He was then arrested.

[18] In his first contemporaneous statement, the accused claimed that he was supposed to pass the black bundles to a male Chinese:

However, he subsequently clarified that this was a lie. In fact, he would not know the identity of the buyers until after he had cleared the immigration checks. In his statement of 22 April 2012, he said:

[19] To summarise the Prosecution’s case, the accused had actual knowledge of the heroin that he imported into Singapore on his motorcycle. His four long statements (referred to at [25] of the SOAF) contained explicit admissions that he knew the contents of the bundles to be drugs and that he knew they were “ubat”, the street name for heroin in Malay. He was aware that the amount of drugs he was importing was greater than on previous occasions and that the prices were higher than usual. He also admitted to packing the three packets of drugs into two black bundles and hiding the bundles in the front fender area of the motorcycle before entering Singapore. Further, his DNA profile was found on parts of the two black bundles, which substantiated his account that he had assisted to pack the drugs with black plastic sheets and black tape.

[20] Alternatively, the Prosecution submitted that the accused failed to rebut the presumption of knowledge in s 18(2) of the Misuse of Drugs Act (Cap 185, Rev Ed 2008) (“the MDA”) on a balance of probabilities. Section 18(2) provides that any person who is proved or presumed to have had a controlled drug in his possession shall, until the contrary is proved, be presumed to have known the nature of that drug. The accused was in actual physical possession of the drugs. Accordingly, he was presumed to be in possession of the drugs under s 18(1), which triggers the operation of s 18(2). As he was the owner and in charge of the motorcycle, s 21 (which concerns the presumption of possession relating to drugs found in a vehicle) would also trigger the operation of s 18(2). On the facts, the accused failed to prove on a balance of probabilities that he did not know or could not reasonably have known that the bundles in his possession contained heroin.

[21] The Prosecution’s evidence was clearly not inherently incredible and satisfied every element of the charge. I therefore called on the accused to give his defence by administering the standard allocution in s 230(1)(m) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed). Having agreed with the entire Prosecution’s case as set out in the SOAF and the agreed bundle, he confirmed that he would not testify and would not call any witnesses.

[22] The defence counsel made no submissions in relation to guilt. Based on the evidence admitted by consent, I was satisfied that the Prosecution had proved its case beyond reasonable doubt. I therefore convicted the accused on the charge.

[23] The punishment for drug importation in s 7 of the MDA is provided for in s 33 of the MDA, which refers to the Second Schedule. Under the Second Schedule, the punishment for importing more than 15g of diamorphine is death.

[24] However the court has the discretion not to impose the death penalty under s 33B. Under s 33B(1)(a), the court may order life imprisonment and caning of at least 15 strokes if the twin requirements in s 33B(2) are met. First, the person convicted must prove on a balance of probabilities that his involvement in the offence was as a mere courier: see s 33B(2)(a)(i)-(iv). Second, the Public Prosecutor must certify that the person convicted had substantively assisted the CNB in disrupting Drug Trafficking activities: see s 33B(2)(b).

[25] The Prosecution tendered the certificate of substantive assistance. It agreed that the evidence showed that the accused’s role was that of a courier in the drug delivery.

[26] I agree, on a balance of probabilities, that the accused’s role was that of a courier. His involvement in the offence was restricted to transporting and delivering the drugs. Based on the evidence, his involvement was limited to conveying drugs from point A to point B: see Public Prosecutor v Abdul Haleem bin Abdul Karim and another [2013] 3 SLR 734 (“Abdul Haleem”) at [51] and Public Prosecutor v Chum Tat Suan and another [2015] 1 SLR 834 at [63] (“Chum Tat Suan”).

[27] In Chum Tat Suan, the Court of Appeal held at [68] that acts “necessary for transporting, sending or delivering the drugs cannot include packing, for instance, as packing is not a necessary element of moving an object from one point to another”. Nevertheless, I was satisfied that the accused’s participation in packing the bundles did not disentitle him from claiming to be only a courier. On his first two drug deliveries, the consignments had been packed for him. For the third drug delivery that is the subject of the present case, he could, at the highest, only be said to have assisted in the wrapping of the drugs. His statement on 23 April 2012 made this clear:

[28] In my opinion, the “packing” done by the accused on the above facts was incidental to his delivery job as he had to ensure that the bundles were compact enough to fit into the space behind the front fender of his motorcycle. The fact that the wrapping material was also supposed to help him evade scanning at the checkpoint was not really different from a courier trying to camouflage bundles of drugs by wrapping them in some food packaging. Similarly, a courier might decide to “pack” the bundles in some clothing in his bag in order to avoid detection. The “packing” contemplated by the Court of Appeal in Chum Tat Suan which would enlarge the role of the deliverer to that beyond a mere courier would be in the nature of someone who packs drugs into bundles as a routine after ensuring that the right type and quantity of drugs go into the right packaging. It does not encompass the wrapping and camouflaging work that I have mentioned.

[29] As the accused satisfied both requirements in s 33B(2), he could either be sentenced to death or to life imprisonment and caning under s 33B(1)(a) of the MDA. In mitigation, defence counsel asked that the accused be sentenced to life imprisonment with 15 strokes of the cane, the minimum punishment prescribed under s 33B(1)(a).

[30] The amount of drugs involved (36.27g of heroin) was fairly substantial. The weight was more than twice the 15g threshold that attracts the death penalty. By the accused’s own admission, the present offence was his third drug delivery, although the quantities and types of drugs involved in the previous two deliveries were unclear. However, he was relatively young, at 22 years of age, when he committed the offence. He also acknowledged his wrong doing (although he told a few inconsequential lies initially) and cooperated fully with the authorities. Through defence counsel, he informed the prosecution as early as 17 April 2015 that he did not intend to challenge the evidence against him at trial. I was told that he has appeared as a prosecution witness at other trials and continues to provide the authorities with more details about the drug syndicate whenever he managed to obtain information from other inmates.

[31] In the light of all these circumstances, I saw neither the necessity to impose the death penalty on the accused nor any reason to punish him beyond the minimum prescribed by law. Accordingly, I sentenced the accused under s 33B(1)(a) of the MDA to life imprisonment and 15 strokes of the cane. The imprisonment sentence was backdated to 17 April 2012, the date of his arrest.