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Singapore Court of Appeal clarifies certain aspects of personal consumption defence to abetment of drug trafficking

by Guo Rendi

On 5th March 2018 (Monday), a three-judge Court of Appeal – comprising Chief Justice Sundaresh Menon, Judge of Appeal Andrew Phang and Judge of Appeal Judith Prakash – dismissed the appeals of three men – Ali bin Mohamad Bahashwan, Selamat bin Paki and Ragunath Nair A/L Janartanan – against their convictions and sentences for drug trafficking, arising from the same drug transaction more than five years ago.

As Ali and Selamat had been given the mandatory death penalty following their convictions, this means that they were one step closer to the gallows.

On 23rd October 2012, Ali instructed his flatmate Selamat to collect a bundle containing not less than 27.12g of pure diamorphine from Ragunath. Selamat did so and was arrested before he could complete the delivery. Ali and Ragunath were arrested later as well.

Selamat claimed that he was only transporting the drugs for Ali, and he could not have been found to have trafficked drugs since they were for his personal consumption. Ali claimed that he did not intend to traffic above a capitol amount of diamorphine since a portion of the drugs seized were for his and Selamat’s personal consumption. Ragunath claimed that he was not aware that the bundle he had delivered contained diamorphine but had thought that it contained Chinese medicine.

The three were convicted in on their respective charges of trafficking drugs under section 5(1)(a) of the Misuse of Drugs Act after a long and protracted trial that spanned 1.5 years. Ragunath, who was found to be a mere courier and given a Certificate of Substantive Assistance, was sentenced to life imprisonment and 15 strokes of the cane. Ali and Selamat, however, did not receive the Certificate of Substantive Assistance, and were accordingly sentenced to death; this was despite Selamat being found to be a mere courier as well.

The Certificate of Substance Assistance refers to a discretionary certificate issued by the Public Prosecutor which certifies that an accused person, who is deemed to have been a mere courier, had substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities within or outside of Singapore. Where the Certificate of Substantive Assistance is issued, the Court has a discretion under section 33B of the Misuse of Drugs Act to sentence the accused person to life imprisonment instead of the mandatory death penalty.

During their appeals, Ali and Selamat had raised the defence of personal consumption, claiming that since they had intended to consume a portion of the drugs in question, they should only have been found to have trafficked a quantum that excluded the portion meant for personal consumption.

Accordingly, the Court of Appeal found it relevant to address the High Court case of Liew Zheng Yang v Public Prosecutor [2017] 5 SLR 611 (“Liew Zheng Yang”) where Justice of Appeal Steven Chong had recently held that the personal consumption defence is a valid defence to a charge of abetting another to traffic in drugs. Further, in Liew Zheng Yang, the Court held that a drug offender cannot be convicted for abetment by conspiracy to traffic drugs if the drugs which he intended to obtain are meant for his own consumption.

The Court of Appeal examined the correctness of Liew Zheng Yang and affirmed the validity of the personal consumption defence. The Court of Appeal further found that the personal consumption defence cannot be applied in a joint fashion such that two co-accused would only be liable for intending to traffic the amount of drugs stated in each of their charges less the total amount of drugs which they together intended to consume out of that amount. On the facts, the Court of Appeal found that Ali and Selamat had failed to prove on a balance of probabilities that less than the capitol amount of diamorphine in the bundle in question was for sale as their evidence as to their rate of drug consumption was deemed unreliable.

After hearing various submissions regarding the correctness of Liew Zheng Yang v Public Prosecutor by Chief Prosecutor Kow Keng Siong, Ali’s lawyer Mr S. H. Almenoar, and Selamat’s lawyer Mr Eugene Thuraisingam, the Court of Appeal also affirmed that a person incurs no criminal liability for abetting another to traffic drugs to himself if the drugs were intended for his own consumption, that is, if he was a consuming-recipient. He will only be so liable if the Prosecution is able to prove beyond a reasonable doubt that he intended the offending drugs to be passed on from himself to someone else, that ism that he himself intended to traffic in the offending drugs. In other words, the Prosecution must show that he was not a consuming-recipient. The corollary is that a person will escape a charge of abetting another to traffic in drugs if the court finds that there is a reasonable doubt arising from the possibility that he was the intended recipient of the offending drugs and that he did intend to consume them himself.

As for Ragunath, the Court of Appeal held that the burden of proof was on him to rebut the presumption under section 18 of the Misuse of Drugs Act that he knew the nature of the seized bundle’s contents. In this regard, Ragunath’s testimony was found to be lacking in credibility and consistency, and the Court of Appeal found that he had been willfully blind to the bundle’s contents.

“[I]t would have been clear to him, given the circumstances in which he received the [b]undle as well as the compensation of $100 he was promised for the delivery, that he was handling illicit substances,” wrote Justice Phang, who delivered the judgment of the court.