Close | Public Prosecutor v Lim Boon Keong [2009] SGDC 511 |
| DAC 13706/2008, MA 354/2009 | |
| 30 Dec 2009 | |
| District Court | |
| Jeffrey Sim Mong Heng | |
| Natalie Morris (Deputy Public Prosecutor) for the prosecution, S K Kumar (S K Kumar & Associates) for the accused |
Judgment
30 December 2009 Judgment reserved. District Judge Jeffrey Sim: 1 This case brings into scrutiny the practice and procedure adopted by the Health Sciences Authority of Singapore (“HSA”) in relation to the testing of urine specimens for the presence of controlled drugs under the Misuse of Drugs Act (Cap 185) (“MDA”). 2 The accused, Lim Boon Keong, claimed trial to the following charge: DAC 13706/2008 You, … are charged that you, on or about the 4th day of February 2008, in Singapore, did consume a Specified Drug listed in the Fourth Schedule to the Misuse of Drugs Act, Chapter 185, to wit, norketamine, without authorization under the said Act or the Regulations made thereunder and you have thereby committed an offence under Section 8(b)(ii) of the Misuse of Drugs Act, Chapter 185. And further, That you, before the commission of the said offence, had been convicted on 27 May 2004 in Subordinate Court 7, Singapore, vide DAC 13924/2004, and were sentenced to 18 months’ imprisonment, for an offence of consumption of a controlled drug, ketamine, under Section 8(b)(i) of the Misuse of Drugs Act, Chapter 185, which conviction has not been set aside, and you are therefore now liable for enhanced punishment under Section 33(4) of the Misuse of Drugs Act, Chapter 185. 3 At the end of the trial, I convicted the accused of the charge and sentenced him to the mandatory minimum of three years’ imprisonment. The accused has appealed against the conviction and is on bail pending appeal. Agreed facts 4 The Amended Statement of Agreed Facts (PS1A) tendered by the parties stated as follows: STATEMENT OF AGREED FACTS (AMENDED) The Prosecution and the Defence hereby agree that: 1. The Accused is one Lim Boon Keong, a 25-year-old male Singapore citizen (NRIC No. S8330833H). 2. The complainant is one Senior Staff Sergeant Leong Shee Chun, currently attached to the Gambling Suppression Branch (“GSB”), Criminal Investigations Department (“CID”), Singapore Police Force. 3. On 4 February 2008, at about 11.50 a.m., the accused was arrested at No. 4 Lorong 22 Geylang pursuant to a raid by the complainant and a group of GSB, CID officers. 4. The accused was brought to the Police Cantonment Complex for further investigations. 5. At about 5.30 p.m., Staff Sergeant Mohammad Abdillah escorted the accused to procure a specimen of the accused’s urine. 6. The accused was then escorted to the Instant Urine Test machine operator, Corporal Hoe Yee Seng. 7. Corporal Hoe instructed the accused to open one of the three urine bottles, and the accused did as he was instructed. 8. Corporal Hoe siphoned some of the urine from the opened bottle and put it into a test tube. The remainder of the opened bottle of urine was discarded. Later, Corporal Hoe placed the said test tube into the Instant Urine Test machine. 9. In the presence of the accused, the remaining two bottles were sealed “CENTRAL NARCOTICS BUREAU” and marked “C-SA-08-00199-1 LIM BOON KEONG S8330833H” and “C-SA-08-00199-2 LIM BOON KEONG S8330833H”. The bottles had not less than 15 ml of urine in each of them. 10. On 5 February 2008, at about 8.30 a.m., Mohammad Ismail bin Hameed sent the remaining two bottles to the Health Sciences Authority for analysis. 11. After delivery to the Health Sciences Authority, Thilaga d/o Krishnan, who had custody of the key to the security boxes, unlocked the boxes and emptied their contents in the presence of Mohammad Ismail bin Hameed who delivered them. 12. The empty security boxes were re-locked and handed back to Mohammad Ismail bin Hameed. The prosecution’s evidence Procurement of urine specimen 5 The prosecution called the following witnesses to establish what it called the “unbroken chain of evidence” with regard to the procurement of the accused’s urine specimen on 4 February 2008, which was to be in compliance with the procedure prescribed in the First Schedule of the Misuse of Drugs (Urine Specimens and Urine Tests) Regulations. PW2 6 Staff Sergeant Mohammad Abdillah bin Rahman (PW2) was the officer who escorted the accused at the Police Cantonment Complex to procure a specimen of the accused’s urine. It is not in dispute that, including the accused, there were about 20 suspects there at that time who were each asked to provide their urine specimen. 7 PW2 testified that he instructed the accused to collect three empty urine bottles from a container containing not less than 20 new urine bottles. After the accused had collected the three urine bottles, PW2 escorted the accused to the toilet, where he invited the accused to wash the three urine bottles. PW2 could not remember if the accused did or did not wash the bottles. PW2 witnessed the accused provide his urine by urinating into the three urine bottles. PW2 instructed the accused to cap all the three bottles and then escorted him to Corporal Hoe Yee Seng (PW4) who was about 10 metres away from the toilet. 8 PW2 testified that from the time the accused collected the three urine bottles to the time the accused was escorted to PW4, the urine bottles were with the accused all the time, and there was no one else with them. PW4 9 PW4 testified that when the accused was escorted to him, he checked that his name and identity card number were the same as the ones he had printed out earlier on urine bar code labels. Once this was confirmed, PW4 stuck one of the labels onto a test tube, and instructed the accused to open one of his three urine bottles. PW4 then siphoned some of the urine from the opened bottle into the test tube. This test tube was to be placed into the Instant Urine Test (“IUT”) machine later. 10 PW4 testified that after the remainder of the opened bottle of urine was discarded, in front of the accused, he sealed the remaining two bottles of the accused’s urine specimen with masking tape and put them inside a small plastic bag. He then showed the accused again the urine bar code label with his name and identity card number on it to “double confirm” that they were correct. Once this was confirmed, he put the bar code label into the plastic bag together with the two urine bottles, sealed the plastic bag with a “heat-sealer”, then passed it back to the accused and instructed him to carry it with him all the way. 11 Later, PW4 printed out a pair of HSA urine labels for each suspect. Each HSA label stated the suspect’s name, identity card number, the date the urine specimen was taken and the drugs to be tested for. PW4 then brought from the Central Narcotics Bureau (“CNB”) ‘A’ Division office which was within the Police Cantonment Complex, all the suspects’ IUT result slips, a metal box and the HSA urine labels to the GSB office which was also within the Police Cantonment Complex. The metal box was for the CNB officer who was in charge of sealing the bottles of urine specimens. After all the bottles of urine specimens were deposited into the metal box, PW4 brought it back to the CNB ‘A’ Division office. PW5 12 Staff Sergeant Syed Mohd Fadzlin bin Abdul Rafah (PW5) testified that he assisted with the sealing of the accused’s bottles of urine specimen. The accused was referred to him with two bottles of his urine specimen inside a sealed plastic bag with a bar code label containing his name and identity card number. PW5 testified that he tore the sealed plastic bag open and took the two bottles out of the plastic bag. After checking that there was no leakage in the two bottles, he asked the accused to tell him the accused’s name and identity card number. PW5 then gave the accused his two HSA urine labels bearing his name and identity card number, which particulars corresponded with those on the bar code label that was in the sealed plastic bag. 13 After confirming the particulars, PW5 asked the accused to sign on both HSA labels. Thereafter, PW5 used the same HSA labels to seal the accused’s two bottles containing his urine specimen, in the presence of the accused who was standing in front of him. PW5 then asked the accused to put the two bottles inside the metal box. PW5 testified that the metal box was secured by a padlock which could only be opened by the HSA with a key. The subsequent chain of evidence 14 As set out in PS1A at paragraphs 10 to 12, it is not in dispute that the next day on 5 February 2008, at about 8.30am, Mohammad Ismail bin Hameed sent the accused’s two bottles to the HSA for analysis. After delivery to the HSA, Thilaga d/o Krishnan, who had custody of the key to the security boxes, unlocked the boxes and emptied their contents in the presence of Mohammad Ismail bin Hameed who delivered them. The empty security boxes were re-locked and handed back to Mohammad Ismail bin Hameed. PW6 15 Kamisah binte Amat (PW6), a clerical support officer with the HSA whose duties included receiving the urine specimens sent to the HSA by the CNB officers, testified that the urine bottles received on 5 February 2008 were in locked containers. She checked the samples submitted against the particulars on record, and put identification numbers on the bottles and a form. The samples were then passed to the duty officer. At no time were the seals and labels on the bottles tampered with. PW1 16 Tan Joo Chin (PW1), an HSA analyst, testified that she was the duty officer at the HSA on 5 February 2008. She checked the urine bottles received from the CNB officer and verified every detail on the urine bottles and the submission forms that came with the bottles. She checked that the seals on the bottles were intact, and that whatever particulars that were written on the labels on the bottles matched those in the submission forms. This checking and verification did not reveal any inaccuracies. PW1 testified that thereafter, she handed the urine specimens to the laboratory officers at the HSA to carry out tests on the specimens. 17 PW1 testified that the testing of urine specimens was carried out by a group of laboratory officers pre-assigned according to a duty roster, and following strictly a set of protocol laid down by the laboratory. As each suspect would have 2 urine bottles, each bottle would be analysed by a different laboratory officer. The laboratory officers are supervised by the HSA analysts or the senior laboratory officer. In the accused’s case, the analysis of his urine specimen was carried out over a period from 5 February to 20 February 2008. PW1 had supervised the analysis on 12 February 2008. On the other days, the supervision was carried out by other analysts and the senior laboratory officer. After the analysis is completed, an analyst would review the results of the analysis of one urine sample, including the testing procedures and the related documents in relation to that sample. A different analyst would conduct the review for the other urine sample. Each analyst would then issue a certificate in relation to the analysis of the urine sample that he or she had reviewed. In the accused’s case, PW1 had reviewed the analysis of one of the accused’s two urine samples. The two HSA certificates 18 After the tests and reviews were completed, the HSA issued two certificates in relation to the accused’s urine specimen. (a) The first certificate is dated 25 February 2008 (P6), signed by one Kuan Soo Yan (“Ms Kuan”), an HSA analyst. In P6, Ms Kuan certified that the accused’s urine sample, on analysis, was found to contain “Norketamine 7640 ng/ml”. (b) The other certificate is dated 27 February 2008 (P1), signed by PW1. In P1, PW1 certified that the accused’s urine sample, on analysis, was found to contain “Norketamine 6630 ng/ml”. PW1 testified that both Ms Kuan and herself had been involved in the supervision of the testing of both the accused’s urine samples. The accused’s cautioned statement 19 The prosecution also sought to rely on the accused’s cautioned statement (PS2) recorded under s 122(6) of the Criminal Procedure Code (Cap 68) (“CPC”) on 20 March 2008, in which the accused stated: “I admit to my guilt and hope for a lighter sentence. I am married with 3 kids and I hope that I can be given a chance. I also have aged parents whom I visit often because my mother has difficulty walking.” 20 The accused challenged the admissibility of the statement. After a voir dire was conducted to determine the admissibility of the statement, I ruled that the statement was admissible. Close of prosecution’s case 21 At the end of the prosecution’s case, I called upon the accused to enter his defence. The accused elected to remain silent, and did not call any witnesses in his defence. 22 In the closing submissions for the accused, his counsel raised the following defences: (a) the accused did not consume the drug in question, namely norketamine; (b) alternatively, if that drug was indeed found in his urine specimen, it could have been due to the drink that he had consumed on that day while he was at No. 4 Lorong 22 Geylang (which was a place used for gaming), without knowing that it was laced with the drug; (c) the accused’s confession in PS2 was of no weight given that moments before its recording, the accused had denied the offence and given an explanation for his urine testing positive for the drug; (d) the two HSA certificates, P1 and P6 were unreliable as the two HSA analysts, PW1 and Ms Kuan, had not only not done the analysis of the accused’s urine specimen themselves but had also interchangeably supervised the analysis of the two urine samples, in contravention of s 31(4)(b) of the MDA; (e) the prosecution’s failure to call Ms Kuan as a witness was not satisfactorily explained by the prosecution and an adverse inference should be drawn against the prosecution. The statutory presumption 23 It is trite that in criminal cases, the burden is on the prosecution to prove the charge against an accused person beyond a reasonable doubt. In the present case, however, s 22 of the MDA creates a statutory presumption, if the conditions therein are satisfied, as follows: Presumption relating to urine test If any controlled drug is found in the urine of a person as a result of both urine tests conducted under section 31(4)(b), he shall be presumed, until the contrary is proved, to have consumed that controlled drug in contravention of section 8(b). [Emphasis added] 24 This presumption triggers both the actus reus and mens rea required for the offence. As stated by Yong Pung How CJ in Cheng Siah Johnson v PP I had previously in Vadugaiah Mahendran v PP Were the urine tests conducted in accordance with s 31 of the MDA? 25 The relevant part of s 31 of the MDA is s 31(4), which states: A specimen of urine provided under this section shall be divided into 3 parts and dealt with, in such manner and in accordance with such procedure as may be prescribed, as follows: (a) a preliminary urine test shall be conducted on one part of the urine specimen; and (b) each of the remaining 2 parts of the urine specimen shall be marked and sealed and a urine test shall be conducted on each part by a different person, being either an analyst employed by the Health Sciences Authority or any person as the Minister may, by notification in the Gazette, appoint for such purpose. [Emphasis added] 26 It is not in dispute that the laboratory officers who carried out the tests on the accused’s urine specimen were not “analysts” or persons appointed by the Minister under s 31(4)(b) of the MDA. It is the case for the defence that s 31(4)(b) required that the test on each urine sample be carried out by a different HSA analyst, and that this was not done in the present case, since: (a) the urine tests were carried out by laboratory officers as opposed to HSA analysts; and (b) the same HSA analysts were involved in the supervision of the tests for both urine samples. 27 The prosecution’s case, on the other hand, was that: (a) the testing of the urine specimen involved a process, and the involvement of the laboratory officers in the routine urine testing was a permissible delegation of the authority of the HSA analysts; (b) there was nothing which prohibited HSA analysts from supervising the laboratory officers in the manner that they did; (c) the review of the test results and processes of each of the urine samples was done by a different HSA analyst who would each certify the result of the tests reviewed by him or her, and this review was independent of the supervision carried out; (d) the involvement of the HSA analysts in the urine testing and certification did constitute “conduct” of the urine test within the meaning of s 31(4)(b) of the MDA. 28 In support of its case, the prosecution called the Division Director of the Illicit Drugs and Toxicology Division, HSA, Dr Lui Chi Pang (PW3) to give evidence. PW3’s evidence 29 PW3 testified that he had been working at the HSA since April 1994. It was then known as the Department of Scientific Services. He holds a Bachelor of Science degree in Biochemistry, as well as a Master of Philosophy in Biochemistry and Doctor of Philosophy in Biochemistry. During the material time in February 2008, he was the Head, Narcotics II Laboratory which conducted the urine testing, now renamed Illicit Drugs and Toxicology Division. Both HSA analysts PW1 and Ms Kuan came under his supervision at the material time in February 2008. 30 PW3 gave an overview of the urine test procedures that HSA adopts, which was also applicable at the relevant time in February 2008. Essentially, the test involves a screening process for a particular drug, and if the result was positive as in the present case, both urine samples are subject to confirmatory tests. 31 The confirmatory test involves, firstly, the extraction of the drugs in the urine specimen by a method called solid phase extraction. After this, the extracted samples are injected into an equipment called gas chromapography/massspectrometry (“GCMS”), which analyses and quantifies the amount of drugs in the specimen. The GCMS process itself comprises two parts. Firstly, the gas chromapography separates the components in the specimen. Secondly, after the separation, each component is analysed in the massspectrometre, which fragments the drugs, identifies and quantifies the drug. The results are generated by a computer. The GCMS results in the present case were admitted and marked P5A and P5B. 32 The screening and confirmatory tests as described above are routine casework which are carried out by the laboratory officers employed by the HSA, in compliance with strict laboratory protocols. Each of the two urine samples of a subject would be tested by different laboratory officers. These laboratory officers are qualified to perform the routine testing, and they have gone through a training process in the laboratories in compliance with the HSA laboratory accreditation scheme under the American Society of Crime Laboratory Directors/Laboratory Accreditation Board, which HSA has been accredited by since 1996. 33 The routine testing carried out by the laboratory officers is supervised by the HSA analysts and senior laboratory officers. The supervision is carried out at various points along the process, such as in the screening process, the extraction process, and the analysis of the drug itself. The supervision is to ensure that the testing procedures are properly carried out and the quality controls are in place. 34 After the test results are obtained, the entire process and the results are reviewed by an HSA analyst who eventually issues a certificate on the result of the analysis of the urine sample. A different analyst would review the results of the other urine sample and issue another certificate. In other words, the results of each of the two urine samples are reviewed by different analysts who each issues a certificate. The purpose of the review is to ensure that the correct procedures were followed, using the correct methods and quality controls, and that the final result of the analysis is correct. The analyst who issues a certificate is responsible for the entire review process, including the final result. 35 The full extract from the HSA Quality Manual, setting out, inter alia, the urine testing protocol, supervision of routine casework, analytical methodology, documentation of case examinations, case review and reporting of analytical results was admitted in evidence and marked P4. Were the urine tests on the accused’s two urine samples each “conducted” by a different analyst within s 31(4)(b) of the MDA? 36 It is the prosecution’s evidence from PW1 and PW3 that: (a) PW1 reviewed the results pertaining to the accused’s urine sample marked C-SA-08-00199-1 and issued P1, which was based solely on the test results of this urine sample; (b) Ms Kuan reviewed the results pertaining to the accused’s other urine sample marked C-SA-08-00199-2 and issued P6, which was based solely on the test results of this other urine sample. 37 The word “conduct” is not defined in the MDA. In its closing submissions, the prosecution referred to the definition of “conduct” in the following publications: (a) The Shorter Oxford English Dictionary (6th Ed.)’s definition of “conduct” (verb) as: direct, be the commander of (an army, siege, etc.), … manage, carry on (a business, transaction, process, etc.); preside over (a meeting etc.), … act as conductor of (an orchestra, choir, musical performance, etc.). (b) The Webster’s Third, New International Dictionary of the English Language (Unabridged)’s definition of “conduct” (verb) as: to bring by or as if by leading, … to lead as a commander <~ a siege>, … to have the direction of: run, manage, direct <~ a scientific experiment>. (c) The Longman Dictionary of the English Language (New Edition)’s definition of “conduct” (verb) as: to carry on or out, usu from a position of command or control … <~ a siege> <~ an experiment>. 38 The prosecution submitted that from these definitions, one is said to have “conduct” of a process if one presides, directs or manages it, or when a process is carried out under one’s responsible guidance. There is no need for one to be physically doing or carrying out every aspect of a process to be considered to be “conducting” it. 39 Applying that to the present case, the prosecution submitted that the HSA analysts, in their review of the testing processes and certification of the urine test results, “conduct” the urine tests within the meaning of s 31(4)(b) of the MDA. As testified by PW3 and confirmed in P4, each analyst is personally responsible for his or her result. Since it is the HSA analyst who certifies the urine test result and is responsible for presiding over the urine testing process, it is the HSA analyst who “conducts” the urine test on the sample under his or her charge. 40 The prosecution also relied on Regulation 5 of the Misuse of Drugs (Urine Specimens and Urine Tests) Regulations (“the MDA Regulations”), which provides as follows: Urine test 5. –(1) Urine tests shall be carried out in accordance with paragraph (2). (2) The Chief Executive of the Health Sciences Authority shall arrange for each of the 2 urine specimens to be tested by a different officer and the results of the 2 urine tests shall be sent to the enforcement officer in charge of the case. [Emphasis added] 41 The word “officer” is not defined in the MDA Regulations. The prosecution submitted that as the MDA Regulations do not specify that the urine specimens have to be tested by a different HSA analyst, the MDA Regulations therefore permit “officers”, as opposed to HSA analysts, to test the urine specimens. 42 The defence submitted, on the other hand, that s 31(4)(b) of the MDA required a different HSA analyst to carry out each urine test, and the MDA Regulations, being subsidiary legislation, had to be read in harmony with the MDA. The defence also submitted that as the consequences of the accused’s urine test results were serious and would result in him losing his liberty, strict compliance with the requirement of the MDA should be insisted upon. The decision on s 31(4)(b) of the MDA 43 I am generally in agreement with the prosecution’s submissions on this issue. Section 31(4)(b) of the MDA requires that a “urine test” be “conducted” on each part of a urine specimen by a different HSA analyst. According to the Reader’s Digest’s Publication of Use The Right Word: Modern Guide To Synonyms And Related Words (1979) at page 428, the word “conduct” “stresses direction, leadership or supervision: to conduct an experiment; to conduct a survey. In a specific sense, with reference to music, it is used of a single person and means to direct the performance of a work: to conduct an opera.” 44 In other words, to have conduct over something does not necessarily mean that one has to physically and personally do it. The person having conduct must, however, be involved in the management, direction, supervision or leadership of it. 45 In the present case, a “urine test” under s 31(4)(b) of the MDA involves a process as described by PW3 in [30] to [34] above. In my view, the wording of s 31(4)(b) does not require that the entire process of the urine test has to be carried out by an HSA analyst physically and personally. As long as a different HSA analyst has “conduct” of the test of each part of a urine specimen, the section is complied with. 46 I agree with the prosecution that this is satisfied in the present case, as PW1 and Ms Kuan, both HSA analysts at the material time, had independently reviewed and certified the results of the tests of the respective urine samples. Both of them were personally responsible for their respective certificates, and can be said to have had “conduct” of the test of the respective urine samples. 47 Regulation 5(2) of the MDA Regulation is also satisfied in the present case, as both PW1 and PW3 had testified that the accused’s two urine samples were tested by different laboratory officers. 48 As for the supervision by the HSA analysts and senior staff of the laboratory of the routine casework carried out by the laboratory officers, I agree with the prosecution that this is not contrary or inconsistent with s 31(4)(b) of the MDA. The supervision is distinct from and independent of the review carried out by the HSA analyst leading to the issue of the HSA certificate of which the analyst takes personal responsibility. Hence, while PW1 and Ms Kuan had supervised the laboratory officers in the testing of both urine samples, this did not compromise the review process which was independent of the supervision. What s 31(4)(b) of the MDA required, and which was complied with in the present case, was that PW1 and Ms Kuan separately and independently review the test results of the respective urine samples under their charge, and certify the final result of the test of the urine samples. 49 For the above reasons, I find that the practice and procedure adopted by the HSA in general and which was adopted in the present case did comply with s 31(4)(b) of the MDA and Regulation 5(2) of the MDA Regulations. Should an adverse inference be drawn against the prosecution for not producing Ms Kuan as a witness? 50 Ms Kuan was not called by the prosecution as a witness. According to her supervisor at the material time, PW3 and the investigating officer Yap Hon Chian (PW7), Ms Kuan was employed with the HSA from 16 June 1997 to 30 September 2008. She left Singapore and migrated to the United Kingdom on 16 October 2008, where she currently works as a forensic scientist. As Ms Kuan was overseas, the prosecution was not able to procure her attendance in court as a witness. The prosecution sought to admit P6 in evidence under s 16 of the MDA, which states: Certificate of analyst, etc. A certificate purporting – (a) to be signed by – (i) an analyst employed by the Health Sciences Authority; or (ii) such other person as the Minister may, by notification in the Gazette, appoint; and (b) to relate to a controlled drug or controlled substance, shall be admitted in evidence, in any proceedings for an offence under this Act, on its production by the prosecution without proof of signature and, until the contrary is proved, shall be proof of all matters contained therein. 51 The defence raised two issues in relation to the admission of P6, namely: (a) that the prosecution’s efforts to have Ms Kuan called as a witness were “far from satisfactory” and an adverse inference showed be drawn against the prosecution under s 116 illustration (g) of the Evidence Act (Cap 97) for failing to produce her as a witness; and (b) that the testing of the accused’s two urine samples did not comply with s 31(4(b) of the MDA. 52 I have already dealt with the second issue raised by the defence. With regard to the first issue, PW7 testified that attempts were made through PW3 to contact Ms Kuan to procure her as a witness for the trial but her attendance could not be secured. As she was resident overseas, she could not be compelled to be a witness for the trial. 53 The prosecution submitted that no adverse inference could or should be drawn from the fact that Ms Kuan had migrated to work in the United Kingdom. There was no ulterior motive on the part of the prosecution to withhold evidence from the court. It was because of the difficulties in procuring Ms Kuan as a witness that the prosecution called PW3 as a witness. 54 Section 116 illustration (g) of the Evidence Act provides as follows: The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. Illustrations The court may presume: … (g) that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it; … 55 In Khua Kian Keong and Another v PP 34 Clearly this is a discretionary and not a mandatory inference: Chua Keem Long v PP (a) the witness not offered was a material one: Chua Keem Long, Lau Song Seng v PP (b) the Prosecution was withholding evidence which it possessed and which was available: Ang Jwee Herng v PP and Amir Hamzah bin Berang Kuty v PP (c) this was done with an ulterior motive to hinder or hamper the Defence: Ang Jwee Herng, Wong Leong Chin v PP … 36 Various guidelines have been formulated to decide what constitutes a “material witness”, such as whether the absence of the witness(es) would lead to the demolition of the Prosecution’s case: Ang Jwee Herng, and whether the witnesses called sufficiently established the Prosecution’s case so that any other witnesses were not essential: Chia Sze Chang, R Yoganathan v PP 56 Based on the above guidelines, I do not think that an adverse inference should be drawn against the prosecution for not producing Ms Kuan as a witness for the trial. It is not disputed that Ms Kuan had on 16 October 2008, two months before the first tranche of the trial started on 17 December 2008, migrated to the United Kingdom. There is no evidence or anything to suggest that her migration to the United Kingdom had anything to do with this case. As she is resident overseas, there is no procedure for the prosecution to compel her attendance as a witness for the trial. The prosecution took steps to call PW3 instead, who was able to answer the questions which the defence would have otherwise put to Ms Kuan. There was nothing to suggest that the prosecution was withholding any evidence or had any ulterior motive to hinder or hamper the defence by not producing Ms Kuan as a witness. 57 PW3 confirmed in his evidence that P6 was a certificate signed by Ms Kuan, who was under his supervision at that time. As the defence could not prove anything to the contrary, I admitted P6 in evidence under s 16 of the MDA as proof of its contents. 58 Under s 22 of the MDA, the burden now fell on the accused to rebut the presumption that he had illegally consumed the controlled drug. However, as he had elected to remain silent after his defence was called and did not call any witnesses in his defence, the presumption remained unrebutted. 59 During the cross-examination of the prosecution witnesses called to establish the chain of events in relation to the procurement of the accused’s urine specimen, the accused had through his counsel suggested that his urine specimen was mis-labelled or mixed up with the urine specimens of the other suspects. However, the evidence of the prosecution witnesses clearly showed that the accused’s suggestions were unfounded. Furthermore, as the accused did not give evidence by himself or through any other witnesses, there was no evidence whatsoever to support his allegations. The accused’s confession 60 Quite apart from the statutory presumption triggered under s 22 of the MDA, there was also the accused’s confession contained in his cautioned statement (PS2) as set out in [19] above. 61 As mentioned earlier, the accused challenged the admissibility of the statement, on the ground that it was not made voluntarily. Before I explain why I held the statement to be admissible, it would be useful to summarise the approach in assessing the admissibility of statements recorded by narcotics officers, as set out by the Court of Appeal in Chai Chien Wei Kelvin v PP As s 122 CPC is not applicable to narcotics officers (see, eg Sim Ah Cheoh v PP The voir dire PW7’s evidence 62 The prosecutor’s sole witness during the voir dire to determine the admissibility of PS2 was PW7. 63 PW7 testified that he recorded PS2 on 20 March 2008 from 8.05pm to 8.25pm at the CNB General Investigations Team Office. The accused was then on bail. The accused chose to speak in Mandarin and PW7 acted as the interpreter. PW7 read and interpreted the charge and the notice of warning to the accused in Mandarin. At each stage of the interpretation, both PW7 and the accused appended their signatures on PS2. 64 PW7 testified that he then asked the accused what he wanted to say with regard to the charge that he was facing. At this stage, PW7 also explained to the accused, as he did with all his accused persons, that “if he [the accused] had genuinely consumed controlled drugs, it would be better for him to admit it because the court is usually more lenient towards those who plead guilty to their offences” (hereinafter returned to as “PW7’s statement to the accused”). PW7 then recorded everything that the accused said in PS2. Thereafter, PW7 read the statement back to the accused in Mandarin, before asking him if he wished to make any amendments to the statement. The accused replied in the negative, and signed the statement accordingly. 65 PW7 testified that a copy of the statement, together with the charge and notice of warning, were then furnished to the accused who acknowledged receipt thereof. There was no threat, inducement or promise made to the accused before or during the recording of the statement, and the accused made the statement voluntarily. The accused’s evidence 66 The accused testified that PW7 had pressured him into making the confession in PS2 by raising his voice, using abusive words, telling the accused that his urine had tested positive, that he had records and it would be useless for him to say anything, that he had better admit to the charge and not waste time, and telling the accused that it would be fine for him to admit to the charge and PW7 would plead on his behalf when the matter was brought to court. The accused testified that he felt very confused and told PW7 that it was his fault to have taken the drink that was on the table. The accused’s “long” statement 67 It is not in dispute that prior to the recording of PS2, PW7 had recorded a “long” statement from the accused under s 121 of the CPC on the same day from about 4.30pm to about 8pm. It is also not in dispute that in this “long” statement, the accused did not admit that he had consumed the drug, and stated that his mistake was to have taken some sips of drink from a glass placed on the table at the premises at 4 Lorong 22 Geylang. Did PW7’s statement to the accused vitiate the voluntariness of PS2? 68 The defence submitted that PW7’s statement to the accused that “if he had genuinely consumed controlled drugs, it would be better for him to admit it because the court is usually more lenient towards those who plead guilty to their offences” vitiated the voluntariness of the accused’s statement in PS2. In my view, however, on both the objective and subjective limbs of the voluntariness test, this defence is not made out. 69 On the objective limb, it is clear that PW7’s statement to the accused did not amount to a threat, inducement or promise. PW7’s statement to the accused was prefaced with the proviso that “if [the accused] had genuinely consumed controlled drugs”. This in effect amounted to an exhortation to the accused to tell the truth which, in the present case, cannot, objectively or immediately, be taken as an inducement, threat or promise: Ismail bin Abdul Rahman v PP 70 On the subjective limb, it is clear from the accused’s own evidence that PW7’s statement to the accused did not operate on the mind of the accused when he made the confession in PS2. When questioned repeatedly by the prosecution as to why he made the confession in PS2, the accused did not mention or make any reference whatsoever to PW7’s statement to the accused. In re-examination, when his counsel read to him PW7’s statement to the accused, the accused agreed that PW7 did make that statement. When asked what was his reaction, the accused replied that he “just listened”. The accused testified that he went on to tell PW7 that he did not dabble in drugs. It is clear that PW7’s statement to the accused did not have the effect of a threat, inducement or promise on the accused. Admissibility of PS2 71 At the end of the voir dire, I was left with no doubt that the accused made the confession in PS2 voluntarily. 72 I did not find the accused to be a truthful and reliable witness. His evidence in the voir dire was fraught with contradictions and inconsistencies. For example, during his examination-in-chief, he denied that he had made the confession in PS2, and alleged that all he had told PW7 was that he had three children. In cross-examination, however, he agreed that he did make the confession. During cross-examination, he also alleged that PW7 had informed him that if he admitted to the offence, he would face only six months’ imprisonment, otherwise it would be more than three years. When confronted with his own evidence earlier that he understood PW7’s explanation to him that the minimum prescribed punishment for the offence was three years’ imprisonment, the accused changed his evidence and conceded that PW7 never told him that he would only face six months’ imprisonment if he admitted to the charge. 73 During cross-examination, the accused also alleged that PW7 had asked an Indian officer to pressurise him when recording the statement, by scolding him in vulgarities. The involvement of this unidentified Indian officer was however never put to PW7 by the defence and was also not raised by the accused during his examination-in-chief. 74 PW7 had denied all the accused’s allegations made against him during the voir dire. While he agreed that the accused told him during the recording of the “long” statement that it was his mistake to have consumed a drink from a glass placed on the table at the premises, PW7 categorically denied that the accused told him this during the recording of PS2. PW7’s evidence remained unshaken during cross-examination. My impression of PW7 was that he was a straightforward and truthful witness. He readily admitted to having made PW7’s statement to the accused before recording the accused’s cautioned statement. I believed PW7’s denials of the accused’s allegations against him. The accused had admitted that he understood the notice of warning that PW7 read and interpreted to him before he made the confession. I had no doubt that the accused made the confession in PS2 voluntarily and accordingly admitted it in evidence under s 24 of the Evidence Act. The accused’s election to remain silent 75 Under s 196(2) of the CPC, the court is entitled to “draw such inferences from the [accused’s] refusal [to give evidence] as appear proper.” As was held in Chai Chien Wei Kelvin v PP … if aspects of the evidence taken alone or in combination with other facts clearly call for an explanation which the accused ought to be in a position to give, if an explanation exists, then a failure to give any explanation may as a matter of common sense allow the drawing of an inference that there is no explanation and that the accused is guilty. 76 In the present case, the prosecution’s evidence including the accused’s confession in PS2 clearly called for an explanation from the accused which the accused ought to be in a position to give, if an explanation existed. The accused however chose to remain silent when his defence was called. It is well established that an accused person can be convicted on his own confession, even when it is subsequently retracted, if the court is satisfied that the retracted confession is true and reliable: PP v Huang Rong Tai and Another 77 With regard to the accused’s allegation in his “long” statement that his mistake was to have taken some sips of drink from a glass placed on the table at the premises at 4 Lorong 22 Geylang, firstly, such defences of unknowingly consuming the drinks of others may have to be viewed with greater caution and circumspection than usual in the absence of any other credible evidence as they are allegations that are extremely easy to make but almost impossible to debunk (Cheng Siah Johnson v PP 78 Only the accused could explain in his defence why he gave the confession in PS2, in particular when he did not admit the offence in his “long” statement recorded earlier. As he elected to remain silent, I drew an adverse inference against him that the confession was true and reliable and that he was guilty of the offence charged. Independently of this, he had also failed to rebut the statutory presumption in s 22 of the MDA. In the circumstances, I convicted the accused of the offence charged.
