A hangman's noose

Court reserves judgment in death-row inmate’s appeal against attempted drug trafficking charge

Can the contents of a cautioned statement, made in response to an initial charge, be relied on to discredit an accused’s defence against a subsequent and different amended charge?

Where an accused person is to be found guilty of a “general offence of attempt”, what is the legal approach to be taken in determining that the accused had “taken steps to embark on the crime proper”?

Can an accused person be guilty of an attempted drug possession offence, when there is no possibility of the actual offence being committed?

These interesting legal questions, amongst other issues, troubled the Court of Appeal for close to three hours in the afternoon of Wednesday (10th July), during the hearing of an appeal by 59-year-old Han Fang Guan, who was sentenced to death for “attempting to possess 18.62g of diamorphine for the purposes of trafficking”.

On 1st March 2016, Han placed an order for drugs with a supplier based in Malaysia, known to him as “Ah Tiong”. One Khor Chong Seng, who was arrested at Woodlands Checkpoint at about 12.10am the next day (2nd March 2016) and found to have seven bundles of drugs in possession, was to have been the person delivering the drugs to Han, amongst other recipients.

While Khor was in the custody of Central Narcotics Bureau (CNB), he received instructions from his boss “Lao Ban” two hours later, amongst which, that one “T” (Han) would be calling Khor for the delivery of the drugs. Han then called Khor and asked him to come to his flat in Toa Payoh.

As a result, officers from the CNB arrested Han near his flat at about 4.35am. His flat was raided and 6.77g of diamorphine (heroin) was found, which Han claimed was for consumption and was not the subject of any charge brought against him.

Han was initially charged for abetment of drug importation, by conspiracy with Khor and an unknown person in Malaysia to import 57.05g of diamorphine into Singapore. When cautioned by CNB officers that he may face the death penalty, he made a cautioned statement implying that he ordered drugs from someone in Malaysia, but denied knowing who Khor was or that he would enter Singapore.

A few days after his arrest, Han made a long statement to CNB, stating that he had ordered 100g of ketamine and 25g of methamphetamine (Ice) from “Ah Tiong” for consumption and sale, but denied ordering any diamorphine from him.

Han maintained this as part of his defence during his joint trial with Khor, where he had been charged with “attempting to possess 18.62g of diamorphine for the purpose of trafficking”, it being the least heavy bundle among two others which Khor was instructed to deliver to Han and others.

Justice Hoo Sheau Peng found Han guilty of this charge in July last year, and sentenced him to death as he was not a mere courier, neither did he have a certificate of substantive assistance.

Mr Low Cheong Yeow, representing Han on appeal, maintained that Han had only ordered Ketamine and Ice, and never ordered any heroin.

He pointed to the fact that the instructions given by “Lao Ban” to Khor, which were recorded by CNB officers, expressly stated that Khor was to have delivered “a yellow bundle” to “T”, even though all three bundles containing diamorphine were black in colour. This highly suggested that there was a mix-up in the orders.

Mr Low also tried to explain away a bundle of $3,600 found on Han during his arrest, which was separated from his other personal belongings and cash, and which was coincidentally the market price for one pound of heroin. Han had given differing accounts as to the purpose of this sum, from claiming that it was solely for gambling, to subsequently stating that it was to pay for the Ketamine and Ice that he had ordered, with another $400 to pay off a debt he owed to “Ah Tiong”.

When Judge of Appeal Steven Chong queried Mr Low as to whether Han’s failure to state his defence of having ordered Ketamine and Ice in his cautioned statement made it less credible, Mr Low pointed out that the purpose of a cautioned statement was for the accused person to state his defence against a particular charge, and was never meant for self-incrimination in any other potential offences, or defences against charges not yet drawn up by the Prosecution.

The court, which also included Chief Justice Sundaresh Menon and Judge of Appeal Andrew Phang, having reviewed the initial charge against which the cautioned statement was made and after hearing Deputy Public Prosecutor (DPP) Lau Wing Yum for the Prosecution, formed the preliminary view that the trial judge might have wrongly drawn an adverse inference against Han for not stating his defence in the cautioned statement.

Mr Low further argued that, in the event that the court disbelieved Han’s defence that he ordered only Ketamine and Ice, the offence of attempted drug possession was nevertheless not made out.

To that extent, he invited the Court of Appeal to depart from the principles laid down in a High Court decision 20 years ago, in relation to the physical act (actus reus) element of the “general offence of attempt”. This issue was left open by the Court of Appeal 7 years ago in another case of attempted drug importation.

In particular, Mr Low submitted that the “substantial step” test, where the accused person must have progressed a substantial way towards the commission of the actual offence, should be the approach in determining whether the accused person had “embarked on the crime proper” for the purposes of a “general offence of attempt”.

Mr Low further took issue with what he described as a “weight trap”, in that even though the presumption of trafficking could not be invoked against Han, the trial judge went ahead to draw an inference of trafficking against Han based on the weight of diamorphine in one bundle alone, even when the Prosecution had not proved its case “beyond a reasonable doubt”.

At one point, Mr Low explained to the court that the offence of attempted drug possession had not been made out in Han’s case, simply because there was no delivery of the drugs by Khor for Han to take receipt before his arrest.

This prompted CJ Menon to ask DPP Lau as to whether Han could be convicted of attempted drug possession, when there is no possibility of him being in receipt of drugs due to Khor’s arrest and CNB’s knowledge of such.

The Court of Appeal has reserved judgment and given leave to both parties to tender further written submissions on the aforementioned point by 15th August 2019.