Returning drugs to original owner does not amount to drug trafficking: Apex court

Can a person who returns drugs to its original owner be considered to have trafficked in those drugs by ‘delivering’ to its owner?

The Court of Appeal answered the above question in the negative, as it reduced the drug trafficking charge for 40-year-old Ramesh a/l Perumal, to a drug possession charge simpliciter on Friday (15 March).

In so doing, the Court of Appeal departed from its earlier ruling 25 years ago, which held that the returning of drugs to its owner can constitute drug trafficking by delivery.

As a result, Ramesh, who initially faced a jail term for life and 15 strokes of the cane, will only need to serve a jail term of 10 years for the reduced charge.

However, his co-accused at trial, 41-year-old Chander Kumar a/l Jayagaran, will still be jailed for life and caned 24 strokes, as the apex court dismissed his appeal on Friday morning as well.

Ramesh and Chander, both Malaysian drivers, entered Singapore in a lorry driven by Chander on 26 June 2013.

After they parted ways, Chander was spotted, by Central Narcotics Bureau (CNB) officers, handing a plastic bag containing bundles to one Harun.

Chander, Ramesh and Harun were subsequently arrested and found to be in possession of two, four and three bundles, containing not less than 14.79g, 29.96g and 19.27g of diamorphine (heroin) respectively.

Chander faced a total of three drug trafficking charges – two capital and one non-capital – for all the nine bundles of heroin seized from Ramesh, Harun and himself, as the bundles all came from him. Ramesh faced a capital drug trafficking charge for the four bundles of heroin passed to him by Chander.

At the joint trial, Ramesh and Chander’s respective defences were that, they thought the contents of the bundles were office documents and betel nuts.

In November 2017, Justice Chan Seng Onn found both men guilty of the charges they faced. As both men were mere couriers and were given certificates of substantive assistance, they were given life imprisonment and caning, instead of the death penalty.

In August last year, Ramesh and Chander argued the appeals on their own without a lawyer before Chief Justice Sundaresh Menon, Judge of Appeal Andrew Phang and Judge of Appeal Tay Yong Kwang. The Court of Appeal reserved judgment then.

While the written judgment was penned by CJ Menon, he was absent from open court on Friday morning due to other official matters, and the oral judgment was read out on his behalf by Justice Phang, who was present alongside Justice Tay.

Agreeing with the High Court, the apex court held that Ramesh and Chander had failed to rebut the presumption of knowledge of the nature of the drugs in all nine bundles.

However, in respect of Ramesh, who had run a different case on appeal, there was no clear evidence as to whom he was to deliver the four bundles of heroin to, the reward he was offered for delivering them, or that he had agreed to deliver the bundles to anyone else.

The Prosecution could not rely on the presumption of trafficking, having relied on the presumption of knowledge against Ramesh. Given Ramesh’s consistent evidence in his statements, there was a reasonable possibility that Ramesh was safekeeping the drugs with the intention of returning them to Chander, Justice Phang said.

The Prosecution team, led by Deputy Chief Prosecutor cum Senior Counsel Francis Ng, also sought to uphold Ramesh’s conviction on the alternative basis that even if he was safekeeping the drugs with the intention of returning them to Chander, he would nevertheless be guilty of drug trafficking.

The court disagreed, noting that when the Misuse of Drugs Act was enacted, Parliament’s intention was to target the distribution of drugs in a supply chain towards the end-users, and not all movement of drugs per se.

As such, the nature of holding onto drugs with the intention of returning it to its original owner is different from that of possession of drugs with the intention of distributing it, such that it does not fall within the intended meaning of “trafficking”.