Three appeals had arose from a single decision of the High Court, following a joint trial of two accused persons, which sees one of them being sent to the gallows for drug trafficking and the other spending 10 years behind bars for abetment of drug possession.
In a first, five lawyers had also been assigned to represent 40-year-old warehouse assistant Moad Fadzir bin Mustaffa in his appeal against his conviction and death sentence.
The Court of Appeal – comprising Chief Justice Sundaresh Menon, Judge of Appeal Judith Prakash and Judge of Appeal Tay Yong Kwang – heard the three appeals together in succession on Friday (20th September) for nearly three hours, and reserved judgment on two – Moad’s appeal as well as the Prosecution’s appeal, seeking to have 50-year-old Zuraimy bin Musa convicted of the original capital charge and sent to the gallows as well.
The offence in question took place on the night of 11th April 2016, when Moad and Zuraimy went to Toa Payoh in a car. There, an Indian man threw a white plastic bag through the front window onto Moad’s lap. In return, Moad handed the Indian man a bundle of cash, while Zuraimy tied the plastic bag and placed it in Moad’s sling bag.
Both men were subsequently arrested separately by officers from the Central Narcotics Bureau. The officers retrieved the white plastic bag from Moad’s sling bag, which was analysed and found to contain not less than 36.93g of diamorphine.
After a trial lasting 8 days, Justice Choo Han Teck delivered his judgment in February this year, finding Moad guilty of drug trafficking and sentenced him to death. In respect of Zuraimy, Justice Choo reduced his charge to one of abetment of drug possession and handed him the maximum sentence of 10 years’ imprisonment.
Moad, whose defence team was led by Mr Peter Fernando, made the argument that his contemporaneous statement recorded after his arrest, should not have been admitted as it was involuntary made. The contemporaneous statements formed a key plank of the Prosecution’s case against both Moad and Zuraimy.
Mr Fernando pointed that the investigating officer (“IO”) recording the statement had told Moad that he would call up Moad’s mother for an interview. In Moad’s mind, this appeared to be a “threat” to him that his mother would be arrested.
CJ Menon and Justice Prakash thought that, given that drug apparatus had been found in Moad’s flat where his mother was also residing in at that point, it would have been reasonable for the IO to take that course of action so as to identify who might have been involved in the drug transactions.
Mr Fernando further argued that the statements could not be relied on to find that Moad had actual knowledge that the white plastic bag contained diamorphine, as Moad was under the effects of cough mixture and sleeping pills when the statements were recorded. There were claims at certain points that Moad had instead consumed diamorphine or methamphetamine which led to his state of dopiness.
In this connection, Moad was diagnosed with mild oploid drug withdrawal a few days after his arrest. There were also several factors which, as Mr Fernando suggested, pointed to improprieties in the recording of the statement, such as the IO taking 1 hour to record 20 simple answers from Moad in response to his 20 questions, the fact that Moad was left in the car alone for 25 minutes after the first statement was recorded, and that the IO had made a note at the end of the statement that Moad was in a normal state of condition.
The last factor aroused CJ Menon’s concern as it was not a usual practice for any investigating officer to include such observations when recording statements from arrested suspects.
Mr Fernando also raised the point that, in the event that the statements were admissible and accepted as facts, Moad was merely keeping the drugs for Zuraimy and intended to return it to him, and therefore should have been guilty of drug possession simpliciter.
In this regard, Moad had claimed that one “Abang” told him to pick up one “Lan” and go to Toa Payoh to collect the drugs. Moad claimed that Zuraimy was “Lan”, but he eventually claimed that “Abang” was Zuraimy when faced with the phone records at trial. Justice Choo had concluded that this was an attempt by Moad to shield Zuraimy.
Both the Prosecution and Moad had attempted to rely on this fact to bolster their respective cases, but CJ Menon thought that it did not make sense, given that Moad had already implicated Zuraimy in his contemporaneous statement but maintained that “Abang” was a different person then.
The Prosecution made very brief oral arguments in their appeal for Zuraimy to be convicted of the original capital charge, that Zuraimy actually knew the nature and quantity of the drugs which Moad was found in possession of, which made it sufficient for there to be a common intention between them.
In their written submissions, the Prosecution had also raised a point of law that the presumption of trafficking could be relied on against Zuraimy, given that he was deemed to be in possession of the drugs by virtue of his consent under section 18(4) of the Misuse of Drugs Act which, according to the Prosecution, was not a presumption unlike the presumptions of possession and knowledge under sections 18(1) and 18(2) of the MDA respectively.
In response, Mr Eugene Thuraisingam argued that there was no finding that Zuraimy actually knew the nature and quantity of the drugs. All that Justice Choo had said was that Zuraimy “may have known the quantity and the nature of the drugs”, and even if so, there was no evidence that Zuraimy knew that Moad obtained the drugs for the purposes of trafficking.
Zuraimy’s appeal focused only on the maximum sentence of 10 years’ imprisonment, which was argued by Mr Chooi Jing Yen. Justice Choo had imposed the maximum sentence in view of Zuraimy’s antecedents (the present offence was committed a year after his release from prison for drug offences) and the huge amount of drugs involved.
CJ Menon pointed out that in the context of drug possession, it may not be entirely apposite to rely on the principle that the maximum punishment should be reserved for the worst type of cases; given that the drugs involved has crossed the threshold of capital punishment for drug trafficking.