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296 SINGAPORE LAW REPORTS (REISSUE) [1995] 1 SLR(R)

Chan Hock Wai

v
Public Prosecutor
[1995] SGCA 17

Court of Appeal — Criminal Appeal No 20 of 1994

Yong Pung How CJ, M Karthigesu JA and L P Thean JA
24 January; 17 February 1995
Criminal Law — Statutory offences — Misuse of Drugs Act (Cap 185, 1985 Rev Ed)
— Appellant convicted of trafficking in controlled drugs — Appellant claiming that
drugs belonged to third party — Whether knowledge of nature of substance relevant
to charge of trafficking — Whether proof of ownership relevant to charge of trafficking
Criminal Law — Statutory offences — Misuse of Drugs Act (Cap 185, 1985 Rev Ed)
— Statutory presumption of trafficking in controlled drugs under s 17 Misuse of
Drugs Act (Cap 185, 1985 Rev Ed) — Drug trafficking paraphernalia seized together
with drugs — Whether appellant knew substance in his possession was drugs —
Whether presumption of trafficking proved — Section 17 Misuse of Drugs Act
(Cap 185, 1985 Rev Ed)

Facts
The appellant was arrested and found in possession of 149.84g of diamorphine
contained in a plastic bag. A search was later performed on the premises on
which the appellant lived, pursuant to which the police found additional packets
of drugs, a sum of $10,150 in cash and various items such as electronic weighing
scales, empty sachets and a box of candles (“the paraphernalia”).
In his defence, the accused alleged that he had believed the substance in his
possession was medicine. The accused further claimed that one Ah Leong had
paid him to pack and seal the medicine which was to be supplied to prostitutes.
The trial judge held that the appellant’s story was not credible, as he had failed to
satisfactorily explain the sum of $10,150 in his possession. The trial judge also
did not believe the appellant’s defence that he did not know that he had been
handling diamorphine. He thus convicted the appellant on a charge of
trafficking.
The appellant appealed, and contended that the trial judge had erred in:
(a) accepting the Central Narcotics Bureau (“CNB”) officers’ version of the
exchange between the appellant and one of the CNB officers; (b) rejecting the
appellant’s defence that he did not know that the substance was drugs;
(c) rejecting the claim that Ah Leong was the true owner of the drugs; and
(d) allowing the evidence of the quantity of drugs, the cash and the
paraphernalia usually associated with drugs which were found in the cupboard
to be admitted.
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[1995] 1 SLR(R) Chan Hock Wai v PP 297

Held, dismissing the appeal:

(1) The first ground of appeal was not made out. The appellant’s answers that
there were two pounds of drugs in the plastic bag had been given in the presence
of four CNB officers. On the evidence, the trial judge was therefore justified in
accepting the CNB officers’ version of the exchange between the appellant and
one of the CNB officers: at [18].
(2) There was no merit in the third ground of appeal. The question whether
the drugs belonged to Ah Leong was wholly immaterial as the ownership of the
drugs was not a prerequisite to the act of trafficking. The crucial question was
whether, regardless of the ownership of the drugs, the appellant had knowledge
that the substance which he had at the time was drugs: at [19].
(3) The evidence of the paraphernalia and cash was relevant and had been
correctly admitted by the trial judge. The trial judge had not erred in taking into
account the fact that the appellant had not explained satisfactorily how he came
by the sum of $10,150 when he considered the appellant’s credibility. Where the
additional amount of drugs was concerned, the trial judge was correct in
disregarding such evidence. Since the appellant’s defence was that he thought all
the substance in his possession was medicine, the evidence as to the additional
amount of drugs was not relevant to the charge: at [20] and [21].
(4) The appellant’s defence that he was packing and sealing medicine for Ah
Leong was incredible. The appellant had intimate contact with drugs and must
have known that the substance in the plastic bag was heroin. The trial judge’s
finding that the appellant knew that the content of the plastic bag was drugs was
unimpeachable. Further, the appellant’s possession of a large amount of
unexplained cash and the paraphernalia usually associated with drugs was a
further piece of evidence giving rise to the inference that he was trafficking in the
drugs. The Prosecution had proven beyond reasonable doubt that the appellant
was in possession of the drugs found in the plastic bag, and the appellant had
failed to rebut the statutory presumption of trafficking. The charge of trafficking
was therefore proved: at [22].

Case(s) referred to
Lim Hong Yap v PP [1977–1978] SLR(R) 262; [1978–1979] SLR 30 (refd)
Low Kok Wai v PP [1994] 1 SLR(R) 64; [1994] 1 SLR 676 (refd)
PP v Lee Lum Sheun [1994] SGHC 27 (refd)
Seow Choon Meng v PP [1994] 2 SLR(R) 338; [1994] 2 SLR 853 (refd)

Legislation referred to
Misuse of Drugs Act (Cap 185, 1985 Rev Ed) s 17 (consd);
ss 5(a), 33

Peter Low and Amolat Singh (Peter Low Seong Tang & Partners) for the appellant;
Ong Hian Sun (Deputy Public Prosecutor) for the respondent.
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17 February 1995
L P Thean JA (delivering the grounds of judgment of the court):
1 The appellant was convicted and sentenced to death on a charge of
trafficking by transporting not less than 149.84g of diamorphine, an offence
under s 5(a) and punishable under s 33 of the Misuse of Drugs Act (“the
Act”). Against his conviction, he appealed. We dismissed the appeal and
now give our reasons.

The prosecution case

2 The prosecution case was as follows. On 23 September 1993, Corporal
Mohd Rusdi (“Cpl Rusdi”), an officer from the Central Narcotics Bureau
(“CNB”), was instructed to keep watch on a flat, #06-180 Block 330
Clementi Avenue 2, Singapore (“the flat”). At about 6.42am, the appellant
was observed entering the flat. Cpl Rusdi alerted his fellow CNB officers
who swiftly arrived at the scene. When the appellant left the flat at about
6.57am carrying a light brown plastic bag, he was arrested by the CNB
officers in the car park at the foot of Block 330. The appellant resisted the
arrest and fell in the course of the struggle.
3 After he was arrested, there was a short exchange between
Inspector Sivakumaran (“Insp Sivakumaran”) speaking in English and the
appellant speaking in the Hokkien dialect, with Sergeant Ang Oon Tho
(“Sgt Ang”) acting as the interpreter. The contents of the answers given by
the appellant were disputed by the Defence. As a result, the trial judge had
to consider whether a voir dire was required to resolve the dispute.
According to counsel for the defence, although the Defence maintained that
the appellant was punched and kicked at the car park, it was not the
Defence’s stand that the oral statements were made as a result of “any
inducement, threat or promise”. The objection was that the appellant did
not give the answers as alleged but said something different. In the
premises, having paid heed to the observations of this court in Seow Choon
Meng v PP [1994] 2 SLR(R) 338, the trial judge decided that a voir dire was
not necessary, because the dispute was one of fact based on the allegation of
fabrication. As a result, he admitted the evidence adduced by the
Prosecution as to what the appellant said immediately after his arrest
without conducting a voir dire.
4 The brief exchange consisted of two questions and answers. When
asked about the content in the plastic bag, the appellant replied that it was
“peh hoon”, which is a common term in the Hokkien dialect used to refer to
heroin. To the second question as to the amount of the substance in the
plastic bag, the appellant’s reply as interpreted was “two pounds”. Besides
Insp Sivakumaran and Sgt Ang, two other officers, namely, Corporal Ong
Lu Hieow (“Cpl Ong”) and Corporal Sea Hoon Cheng (“Cpl Sea”) heard
the exchange and gave evidence on the matter as well.
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5 It was denied by all the four officers that Sgt Ang showed the
appellant a vulgar sign and muttered an obscenity in the Hokkien dialect
during the material time. When it was put to them that the appellant had
replied that the plastic bag contained “eok” meaning medicine in the
Hokkien dialect and not “peh hoon”, they disagreed. Cpl Ong and Cpl Sea
confirmed that in reply to the second question, the appellant said “nerng
liap” which literally means “two lots” but was understood by them to mean
“two pounds”. The answer was also interpreted by Sgt Ang to
Insp Sivakumaran as “two pounds”. Insp Sivakumaran, Sgt Ang and
Cpl Ong claimed that they recorded the exchange in a statement and in
their pocket diaries respectively afterwards.
6 The plastic bag which the appellant was carrying contained a
handphone and a package wrapped in newspaper comprising two packets
of granular substance. The substance was subsequently analysed and found
to contain not less than 149.84g of diamorphine, which formed the subject
matter of the charge.
7 Shortly after the arrest, the appellant was brought back to the flat. The
flat was rented by the appellant’s sister, one Chan Mei Fah who lived there
with her boyfriend, her young son and a maid. A search was conducted of
the front room, which the appellant used, when he visited the flat. Inside the
room was a cupboard which was locked. The cupboard was opened with a
key found on the appellant and according to the other occupants of the flat,
he was the person with the only key to the cupboard. According to
Insp Sivakumaran, the appellant had earlier denied that the cupboard was
his. It was Chan Mei Fah’s young son who identified that the cupboard was
used by the appellant. The contents of the cupboard were a paper bag with
two packets of diamorphine, a plastic bag with 56 sachets of diamorphine,
an envelope holding ten sachets of diamorphine and two newspaper-
wrapped packets holding five sachets of diamorphine each, and four other
sachets of diamorphine. Besides the drugs, the officers also recovered from
the cupboard $10,150 in notes and $4.30 in coins, a watch, three electronic
weighing scales, two stacks of new empty sachets and a box of candles. The
drugs recovered from the cupboards formed the subject matter of the
second charge which was stood down at the commencement of the trial.
8 The trial judge considered whether the evidence of the contents of the
cupboard was admissible. Upon a consideration of the cases of Lim Hong
Yap v PP [1977–1978] SLR(R) 262, Low Kok Wai v PP [1994] 1 SLR(R) 64
and the first instance decision in PP v Lee Lum Sheun [1994] SGHC 27 to
which the Prosecution referred, the trial judge admitted the evidence to be
led by the Prosecution.

The defence
9 The appellant gave evidence in his defence, and his evidence was this.
He did not know that the substance was heroin; he thought it was medicine.
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At the time of the arrest, the appellant was detained at the Seletar Drug
Rehabilitation Centre for heroin consumption. He had consumed heroin by
using the “chasing-the-dragon” method. He was placed on a Day Release
Scheme and was permitted to leave the Centre from 6.00am to 8.45pm
every day. The appellant worked for a subcontractor and earned $14 per
day.

10 A fellow detainee, Ah Teng, told the appellant about his childhood

friend Ah Leong who needed someone to seal sachets of medicine used to
enhance one’s “sexual ability” and asked if the appellant was interested to
help out. Later, the appellant was introduced to Ah Leong who told the
appellant that the medicine was to be supplied to prostitutes. The appellant
had to find his own place to do the work of weighing the medicine, filling
the sachets with the right quantities of medicine and sealing them.
Ah Leong offered to pay the appellant $1 for filling and sealing each sachet.
The appellant asked to be paid $500 for the first month and Ah Leong
agreed. They exchanged contact numbers and parted.

11 The appellant approached his sister Chan Mei Fah and asked for
permission to go to the flat to change and rest. He also asked for a cupboard
for his own use. She acceded to his requests. Following that, Ah Leong
taught him how to fill and seal the sachets. When he received the supply of
medicine and the equipment, the appellant began to pack the medicine.

12 On 23 September 1993, at about 6.05am, the appellant checked his

pager and discovered that Ah Leong had paged for him. When he spoke to
Ah Leong, he was asked to meet Ah Leong at the Clementi MRT Station
with two packets of the medicine. The appellant went to the flat to collect
the two packets and was on his way to the meeting place when he was
arrested. He put up a struggle when the CNB officers tried to arrest him. He
was punched on the head and kicked by the officers. When Sgt Ang asked
him what was in the plastic bag, he replied “eok” meaning medicine in
Hokkien. Sgt Ang made a vulgar sign, uttered an obscenity and told the
appellant that there were two pounds of heroin in the plastic bag. Later, he
showed the CNB officers his room in the flat and gave them the key to the
cupboard which he used. After his arrest, he told Sgt Ang as well as the
investigating officer, Staff Sgt Kanasalingam, that all the medicine belonged
to Ah Leong.

13 In cross-examination, the appellant was asked about the $10,150

found in the cupboard. He said that he borrowed the money from his
sisters, Chan Mei Fah, Chan Toh Fah and Chan Kuei Fah, and that the first
two of his sisters lent him $5,000 each and the last sister lent him $3,000.
Although his three sisters admitted giving him sums of a few hundred
dollars at a time, they denied lending or giving him sums of a few thousand
dollars as stated by the appellant. Their evidence was unchallenged.
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14 It also transpired at the trial that Ah Leong was arrested a day before
the appellant and the two arrests were connected. Ah Leong was brought to
court and was identified as one Yeo Wui Ban. However, he did not give
evidence for the defence.

The trial judge’s findings

15 The trial judge found that the appellant’s story was not credible,
especially because of the unsatisfactory explanation of the $10,150 in his
possession. The trial judge did not believe his defence. The version of the
short exchange between Insp Sivakumaran and the appellant as stated by
the CNB officers was accepted. The trial judge in his grounds of decision
said this:
Even without the admission, I would have found that he knew that he
was handling diamorphine. He consumed diamorphine himself, and
must have recognised it by sight and smell when he sealed it in sachets.
In any event, by being in possession of the drugs, he was presumed
pursuant to s 18(2) of the Misuse of Drugs Act to know of its nature. I
found that he had not rebutted the presumption.
16 The trial judge did not accept that the drugs belonged to Ah Leong.
However, even if the drugs belonged to Ah Leong as claimed, the trial judge
pointed out that ownership is not a prerequisite to trafficking. Accordingly,
the appellant was convicted.

The appeal
17 On appeal, counsel for the appellant raised four grounds of appeal.
Firstly, he submitted that the trial judge should not have accepted the
version given by the CNB officers of the exchange between
Insp Sivakumaran and the appellant. Secondly, based on all the evidence in
the case, counsel submitted that the appellant did not know that the
substance he was found with was drugs. Thirdly, the trial judge should have
accepted that Yeo Wui Ban or Ah Leong was the true owner of the drugs.
Lastly, the trial judge should not have allowed the evidence of the quantity
of drugs, the cash, and the paraphernalia usually associated with drugs
which were found in the cupboard to be admitted. Such evidence was
irrelevant and prejudicial. We shall leave the second ground of appeal
which formed the crux of this entire appeal to the last.
18 On the first ground, counsel for the appellant reminded us that the
undisputed evidence was that at the time of the appellant’s arrest, the
appellant put up a struggle and that in these circumstances it was unlikely
that the appellant would have spontaneously admitted or confessed to the
arresting officers that there were two pounds of “peh hoon” in the plastic
bag. It was more likely that he said that there was “eok” in the plastic bag,
which he had consistently maintained. In the event, the trial judge should
have believed the appellant. We accepted that there was a struggle, that the
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302 SINGAPORE LAW REPORTS (REISSUE) [1995] 1 SLR(R)

appellant resisted the arrest, and that the answers were made as a result of
the questions from Insp Sivakumaran. But the answers were given in the
presence of four officers, and the trial judge on the evidence before him
accepted the evidence of Insp Sivakumaran and the other three officers and
found that the appellant did say (a) “peh hoon” when questioned about the
content of plastic bag; and (b) “two pounds” in reply to the question as to
the amount of the substance in the bag. On the evidence, the trial judge was
justified in making this finding, and we could find no reason to reverse his
finding.
19 The third argument advanced on behalf of the appellant was that
Ah Leong is not a fictional character. Indeed, he was produced and
identified in court. The consistent assertion by the appellant that the drugs
belonged to Ah Leong should have been accepted by the trial judge. In our
opinion, there was no merit in this argument. The question whether the
drugs belonged to Ah Leong is wholly immaterial; the ownership of the
drugs was not a prerequisite to the act of trafficking. The crucial question is
whether, regardless of the ownership of the drugs, the appellant had
knowledge that the substance which he had at the time was drugs.
20 Next, counsel contended that the evidence of the contents in the
cupboard was irrelevant or prejudicial. The contents of the cupboard
consisted principally of the additional quantity of drugs, the paraphernalia
and a large amount of cash. It is necessary to consider the evidence of the
paraphernalia and the cash separately from the evidence of the additional
quantity of drugs. In our opinion, the evidence of the paraphernalia and
cash was relevant and was correctly admitted. The trial judge only took into
account the fact that the appellant had not explained satisfactorily how he
came by the sum of $10,150 in the cupboard when he considered the
appellant’s credibility. In our view, the trial judge had not erred.
21 Turning to the additional amount of drugs, the trial judge in the
course of the trial admitted the evidence subject to its relevance. As it
subsequently transpired, the defence of the appellant was that all the
substance in his possession and all the substance he had been handling was
medicine handed to him by Ah Leong. In the light of the defence, we agreed
with counsel for the appellant that the evidence of the additional quantity of
drugs in the cupboard was not relevant to the charge. Be that as it may, the
trial judge did not rely on this evidence; in fact he disregarded it entirely.
22 We now turn to the submission that the trial judge should have
accepted the defence that the appellant believed that what he was carrying
at the time was “eok”. We were unable to accept this submission. We are in
entire agreement with the trial judge that the appellant’s evidence of
packing and sealing medicine for Ah Leong was incredible. He had intimate
contact with drugs and must have known that the substance in the plastic
bag was heroin. The trial judge’s finding that the appellant knew that the
content of the plastic bag was drugs was unimpeachable. Further, his
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possession of a large amount of unexplained cash and the paraphernalia

usually associated with drugs was a further piece of evidence giving rise to
an inference that he was trafficking in the drugs. In the event, in our
judgment, the Prosecution had proved beyond reasonable doubt that the
appellant was in possession of the drugs found in the plastic bag, which
then triggered off the presumption of trafficking under s 17 of the Act. The
appellant had not successfully rebutted the presumption on a balance of
probabilities. Accordingly, the charge had been proved beyond reasonable
doubt.

Headnoted by Charlene Tay Mei Woon.