Close | Public Prosecutor v Harun Bin Matsot [2009] SGDC 494 |
| DAC 37861/2008, MA 197/2009 | |
| 17 Dec 2009 | |
| District Court | |
| James Leong Kiu Yiu | |
| APP Eugene Kwang for the prosecution, Abdul Aziz for the accused |
Judgment
17 December 2009 District Judge James Leong Background 1. The accused claimed trial to a single charge (“CIA”) of trafficking in a controlled drug under S. 5(1) (a) punishable under S. 33 of the Misuse of Drugs Act, Cap 185 (“MDA”). The charge averred that on 21 August 2008, at or about 8.15 pm, the accused sold two straws analysed to contain 0.04 grams of diamorphine to one Musa Bin A Manaf (“Musa”), along Woodlands Street 31, Singapore. 2. At the conclusion of the trial, the accused was acquitted and discharged of the charge. The prosecution has appealed against the acquittal and discharge. Prosecution’s Witnesses 3. At trial, the prosecution first called the following witnesses: a. ASP Ng Khai Song (PW1) of the Central Narcotics Bureau (CNB) who led the team of CNB officers that first observed Musa and the accused interacting that evening and later arrested Musa followed by the accused separately. b. SSGT Chin Chee Hua (PW2) of the CNB who personally observed the interaction between the accused and Musa, and subsequently arrested and recovered the drugs i.e. two straws of heroin that are the subject matter of the charge from Musa. c. Ms Wendy Lim (PW3) of the Health Sciences Authority who analysed the two straws of heroin seized from Musa and found them to contain 0.04 grams of diamorphine. d. Mr Musa Bin A Manaf (PW4) who was arrested in the same operation as the accused. Musa cooperated with the CNB after his arrest and had admitted to his offences of consumption and possession, and identified the accused as the supplier who sold him the drugs in question. Musa had pleaded guilty to possession and consumption of drugs charges arising from his arrest that day and the notes of evidence of his proceedings were admitted in evidence as P3. 4. The prosecution thereafter offered the remaining witnesses on their list to the defence who opted to cross-examine the arresting officers. These were: a. SGT Mathew Chin (PW5) of the CNB who, together with other colleagues, arrested the accused at a “teh tarik” shop, searched the accused within the premises and in the CNB vehicle, and later conducted a search of the home of the accused. b. SSSGT Seah Wee Kwang Richard (PW6) of the CNB, who was involved in arresting the accused at the “teh tarik” shop but not the subsequent searches of his person and home. c. SSSGT Lim Teck Heng (PW7) of the CNB, who was involved in arresting the accused at the “teh tarik” shop and was aware of the search of his person within the premises but not the vehicle, and later participated in the search of the home. d. SSGT Thomas Tan (PW8) of the CNB, who arrested and handcuffed the accused at the “teh tarik” shop and saw PW5 search the accused within the premises. He was unaware of the search in the vehicle and did not participate in the search of the home. e. CPL Tan Zhang Sheng (PW9) of the CNB, who was involved in the operation that day as the driver. Back at the CNB office, he inventorised the Receipt of Articles (P4) seized from the accused which included a sum of $ 953.70. f. SGT Muhammad Aliff Bin Abdul Rahim (PW10) of the CNB, who was involved in arresting the accused at the “teh tarik” shop. He asked the accused if the accused had any drugs or weapons on him to which the accused replied no. He was not involved in the search in the vehicle or the home search of the accused. g. SGT Ritzalee Abdul Rahim (PW11) of the CNB, who was the investigating officer. He confirmed that the $60 consideration for the transaction was not seized as no marked notes were involved. He also confirmed that the urine tests of the accused were negative and except for the drugs recovered from Musa, no drugs were recovered from the accused and the search of the home uncovered nothing incriminating. Close of the Prosecution’s Case 5. At the close of the prosecution’s case, a prima facie case that was not inherently incredible had clearly been established and the defence quite rightly did not make any submission. The defence was called, the standard allocution administered and the accused elected to give evidence. Defence’s Witness 6. The accused’s defence was one of bare denial. The case for the defence is as set out at [4] of the written submissions of the defence DS3 as follows: “The case for the Defence is that on 21 August 2008 at about 5.40 p.m. the Accused visited a barber shop at Blk 305 Woodlands. The Accused had just finished work and had (before going to the barber shop) taken a meal at a coffeeshop at Blk 302 Woodlands. This was something which the Accused usually did whenever the Accused was called up for work at Woodlands. Further, the Accused was previously living at Blk 160 Woodlands which was in the vicinity of the barer shop, described by the Accused as his “former home ground”. The Accused had also befriended an employee of the barber ship by the name of “Jamal”. At about 8.05 pm while the Accused was outside the barber shop PW4 wanted to “talk” to the Accused. The duo (led by PW4) then made their way to Blk 303 Woodlands which was about 50 metres from the barber shop. En route, PW4 asked the Accused whether he could consume drugs at the barber shop. The Accused turned down PW4’s request and after about “10 to 12 minutes” the Accused and PW4 parted ways. The Accused then made his way back to the barber shop. Later the same night, while the Accused was having a drink with a friend at the “Teh Tarik” coffeeshop at Blk 306 Woodlands, 5 CNB officers approached and arrested the Accused. In the subsequent searches conducted by the CNB officers on the Accused’s person and at his residence, no drugs or cash was recovered. ” Impeachment & Trail Within a Trial 7. In the course of the accused’s testimony, after the accused maintained that he never signed any statement notwithstanding the CNB officers attempts to make him sign a prepared statement that he had sold drugs to Musa, the prosecution applied to impeach his credit. This was based on a statement P5, the material portion of which at [3] provided thus: “3. At Jurong Police Division HQ, CNB office, I was shown a photograph. (Recorder’s Note: Accused was then shown a photograph of one Musa Bin A Manaf, Nric: S1399909-J). I positively identify that the person shown to me in the photograph is “Mus”. Prior to my arrest, ‘Mus’ met up with me at the post office at Blk 303 Woodlands St 31. He showed me 2 straws of heroin and asked me to help him find ‘customers’ for him as he wanted to sell the 2 straws. I then asked him to wait for me while I go around the area to look for potential ‘customers’. Almost everyday, ‘Mus’ will look for me at the said location and asked me to help him look for customers for him to sell the heroin. He told me he is selling the ‘heroin’ for $30 a straw. Usually I managed to find him about five ‘customers’. But today, I could not find any ‘customers’ for him. I also could not find ‘Mus’ again after that. I help ‘Mus’ as he is my friend. I did not take any money or gain any profit from helping him to look for heroin buyers.” 8. As the accused disputed the voluntariness of this statement, a trial within a
Continuation of Trial & Impeachment
9. Returning to the trial, the accused sought to explain the inconsistency in his oral evidence (that Musa had met the accused on 21 August 2008 to ask the accused whether Musa could consume drugs at the barber shop and P5 which states that Musa had met up with the accused to ask the accused to look for customers for Musa to sell heroin to. In essence, the explanation of the accused for fabricating P5 was that he was angry with Musa for falsely implicating the accused and it was a tit for tat response.
Closing Submissions
10. After the completion of the recording of the evidence of the witnesses, directions were given for the exchange of written closing submissions to cover, in addition to closing arguments, the issue of impeachment and also the applicable legal principles in cases such as this. The prosecution (PS2) and the defence (DS3) duly tendered their final submissions and authorities in compliance with the direction.
11. The case for the prosecution rested primarily on the evidence of Musa, who was an accomplice. As noted by the prosecution in PS2, the court can convict the accused based solely on the evidence of an accomplice. The combined effect of S 135 of the Evidence Act (Cap 97) and illustration (b) to S 116 was that the court may convict an accused based on the uncorroborated evidence of an accomplice but should still treat such evidence with caution as the accomplice may be presumed to be unworthy of credit (See Kwang Boon Keong Peter v Public Prosecutor [1998] 2SLR 592). This presumption that the accomplice may be unworthy of credit was framed as “… may, not must…” and “All that the court was required to do was to scrutinise such evidence carefully. However, accomplice evidence should be given the same weight as any other evidence so long as it is shown that the evidence is reliable from all the circumstances of the case (See Chua Poh Kiat Anthony v Public Prosecutor
12. In DS3, the defence highlighted the approach to sole witness cases adopted by the High Court in PP v Jagatheesan s/o Krishnasamy
“44 There is no absolute prohibition or legal impediment in convicting an accused on the evidence of a single witness: see Yeo Eng Siang v PP
45 The court must nevertheless be mindful of the inherent dangers of such a conviction and subject the evidence at hand to close scrutiny: see Low Lin Lin v PP
13. In Mohamed Liton’s case, the Court of Appeal noted at [39] that:
“39 Given that the standard of proof required in a criminal case is already that of “beyond a reasonable doubt” (see [34]–[35] above), the expression “unusually compelling” must mean something more than a mere restatement of the requisite standard of proof. Indeed, Prof Michael Hor notes, in “Corroboration: Rules and Discretion in the Search for Truth”
14. The Court of Appeal in Took Leng How v PP [2006] 2 SLR 70 at [28] adopted the following passage by Denning J in Miller v Minister of Pensions [1947] 2 ALL ER 372 at 373 that:
“Proof beyond a reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable,” the case is proved beyond a reasonable doubt, but nothing short of that will suffice.”
15. In urging the court to convict the accused, the prosecution concluded at [72] of PS2 that:
The Prosecution has adduced overwhelming evidence against the accused in respect of the drug trafficking charge. All the elements of the offences have been proven by clear, cogent and unambiguous evidence.
16. In moving for the court to acquit and discharge the accused, the defence concluded at [30] of DS3 that:
The Accused has provided an entirely rational explanation of the inconsistency between P5 and his oral evidence in Court thereby saving his credibility as a witness. As an accomplice, PW4 had every reason to exaggerate the culpability of or implicate the accused, while reducing the magnitude or importance of his own involvement in the matter so as to avoid the more serious charge of trafficking being preferred against him. In the circumstances, PW4’s evidence is unreliable and should be disregarded. As a sole ‘direct evidence’ witness, PW4’s testimony has to be carefully scrutinised and a conviction can only be upheld if the testimony is so compelling to the extent that a conviction can be founded entirely and exclusively on it. By reason of the matters stated at Paragraph 29(1) to (6) above, it is submitted that the Prosecution has failed to discharge the burden of proving the case against the Accused beyond a reasonable doubt. The Prosecution has failed to dispel the reasonable doubts inherent in its case. Further, the sufficiency of the Prosecution’s evidence is lacking. The totality of the evidence before the Court requires the Court to acquit the Accused. Looked at from another angle, the totality of the evidence before the Court makes it very unsafe and dangerous to convict the Accused of such a serious criminal charge.
17. In final oral arguments, the defence argued that Musa was an interested party with a motive to exaggerate the role of the accused and downplaying his own. The prosecution on the other hand argued that Musa was merely a drug abuser who had no motive or reason to falsely implicate the accused.
Analysis & Findings
18. On the totality of the evidence and having due regard to the submissions of both sides, on the question of impeachment, I was satisfied that the accused credit has been successfully impeached. His explanations for the material discrepancies between his testimony and statement were lame and not credible.
19. I found that the accused’s credibility has been successfully impeached, and that he was prone to saying anything and everything to save himself. Nonetheless, the burden of proof beyond reasonable doubt remained with the prosecution, particularly in the absence of any of the presumptions under the MDA.
20. Assessing the prosecution’s case as a whole, PW2 did not see the actual transaction take place. While this was absolutely understandable in the circumstances since he was moving around while observing the transaction in order to avoid arousing the suspicion of the accused and Musa, the fact remained that he did not see the drugs or the money changing hands.
21. There was also no independent corroborative evidence such as positive statements from the accused or phone records to support the prosecution’s case that the sale was arranged via telephone and the meeting was hence not a coincidence as submitted by the defence. With regard to statements, it is pertinent to note that P5 which was used to successfully impeach the accused’s credit, did not support the instant charge.
22. Neither was there any finger print or DNA evidence linking the accused to the drugs found on Musa or Musa to the monetary consideration found on the accused. While I accept that this was not a sale to an undercover officer involving marked notes, this does not detract from the fact that no forensic link has been established between the accused and both the drugs as well as the purchase money in question. I was also of the view that the sum of $953.70 found on the accused at the time of his arrest was a neutral factor. After all, how much an individual chooses to carry on his person is a matter of choice and a function of many variables such as one’s financial resources and spending needs.
23. In the final analysis, the sole direct evidence linking the accused to the offence came from the accomplice Musa. While I accept that having pleaded guilty and serving sentence, he had less incentive to lie and implicate the accused falsely, I was not convinced that his uncorroborated testimony by itself was sufficiently compelling to found the charge. Given that Musa was found in possession of the drugs, it seemed to me that he would have some incentive to minimise his own role.
24. Furthermore, while I agreed that the accused’s failure to call the barber Jamal to testify further brought into question his defence, the probative value of Jamal’s evidence, even if he was called, would be small. This is because both the accused and Musa confirmed that during their meeting, the question of Musa asking for permission from the accused to smoke drugs in the barber shop did take place. In any event, the burden rested with the prosecution to prove its case and it was not for the accused to prove his innocence.
Conclusion
25. Having regard to all of the above, applying the principles in the cases of Jagatheesan and Mohamed Liton cited by the defence, I was unable to conclude that the accomplice Musa’s evidence was so compelling as to found a conviction entirely and exclusively on it. In the premises, I proceeded to acquit and discharge the accused on the charge that he faced.
