Apex court throws out cross-appeals between Prosecution and drug trafficker who escaped gallows

55-year-old Mohd Soberi bin Pakari will not be hanged after all, as the Court of Appeal threw out the Prosecution’s appeal against his reduced charge of “trafficking in not less than 14.99g of diamorphine” on Tuesday (24th September).

On that same morning, his appeal for a lighter sentence than the 26 years’ imprisonment term imposed by Justice Choo Han Teck was also rejected, as “it was well within his discretion to impose”, in the words of Chief Justice Sundaresh Menon.

Soberi was arrested on 6th July 2016 together with his friends Satari bin Satimin and Mohamad Yazid bin Minhat, during a diamorphine party at Satari’s flat. 59 sachets of drugs were found at various places in the flat, which were analysed and found to contain not less than 21.38g of diamorphine. Of these, it was not disputed that 1.37g was in possession of Satari and Yazid for their personal consumption.

In January this year, Justice Choo convicted Soberi of drug trafficking, but reduced his charge to a non-capital one. The judge found that it was reasonable for Soberi to have set aside, on average, 8 straws of diamorphine each day for his personal consumption over a 30-day period, which would have reduced the amount of diamorphine he intended to traffic in to a non-capital threshold.

Deputy Public Prosecutor (DPP) Lim Jian Yi, appearing for the Prosecution, argued that the consumption defence was not made out as Soberi had given inconsistent accounts as to his consumption rate. Soberi had told the doctors examining him that he consumed 2 to 3 straws of diamorphine, but he testified at trial that he smoked 10 straws; even his lawyer, Mr Hassan Almenoar, had submitted that Soberi could consume 12 to 15 straws of diamorphine a day.

CJ Menon noted, however, that Soberi had been consistent in his statements and testimony at trial, in maintaining that a portion of the diamorphine recovered was for his personal consumption.

He also expressed his hesitation in relying heavily on Soberi’s account given to the doctors, as they (doctors) are “not in the same position as investigating officers”; the doctors are there to conduct their medical examination and not to elicit any account of events from accused persons.

In response to DPP Lim’s point that Soberi should have included the details of his consumption rate in his statements to the investigating officers, CJ Menon pointed out that there’s no evidence as to what questions were asked by the officers when Soberi’s statements were recorded, during which Soberi’s counsel was not present.

“If he (Soberi) was not asked the question (as to his consumption rate) in his statements, it seems unfair to suggest that he has withheld some information.”

Judge of Appeal Andrew Phang also remarked that one should look at such inconsistencies from an accused person’s perspective; without the benefit of counsel’s advice, they would not have generally known when would the appropriate occasion be to volunteer information in support of their defence.

The court, which also included Senior Judge Chao Hick Tin, took 20 minutes behind closed doors to deliberate, before returning to announce their decision to dismiss both appeals.

In doing so, CJ Menon made it clear that it is the duty of investigating officers to pursue its line of enquiry, such as in cases where accused persons claimed that a portion of the drugs were for their consumption.