Mr Chooi Jing Yen and Mr Eugene Thuraisingam, counsel for Zuraimy

Apex court throws out remaining cross-appeals between Prosecution and two drug traffickers

The Court of Appeal has thrown out two remaining cross-appeals arising out of a joint drug trafficking trial on Monday (25th November) morning, thereby upholding the death sentence and 10 years’ imprisonment imposed by Justice Choo Han Teck, on 40-year-old Moad Fadzir bin Mustaffa and 50-year-old Zuraimy bin Musa respectively.

This follows from an earlier hearing in September this year, where Zuraimy’s appeal against his sentence for the reduced charge was dismissed and judgment on the other two appeals – Moad’s appeal against his drug trafficking conviction and death sentence, as well as the Prosecution’s appeal seeking to have Zuraimy convicted on the original charge and sent to the gallows – were reserved.

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 containing 36.93g of diamorphine, 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.

The written judgment penned by Judge of Appeal Tay Yong Kwang on behalf of the apex court, which also included Chief Justice Sundaresh Menon and Judge of Appeal Judith Prakash, explained the reasons for dismissing all three appeals.

In relation to arguments by Moad’s lawyer Mr Peter Fernando that Moad’s contemporaneous statements were not admissible as evidence, the court found that Moad was clear-headed throughout the recording of the statements. There was also no evidence that Moad had consumed Ipam tablets and cough syrup just before he was arrested, as none of these items were found in Moad’s flat.

As for the second reason given by Moad for his contention that the statements were involuntarily made, i.e. that the investigating officer had allegedly threatened him that his aged mother would be brought in for questioning, the court held that such a threat, even if made, could not have “sapped the free will” of Moad such that his statements were inadmissible.

The court also agreed with Justice Choo that Moad had actual knowledge that the white plastic bag contained diamorphine, and had failed to rebut the presumption of trafficking under section 17(c) of the Misuse of Drugs Act. They rejected Moad’s claim that he was safekeeping the drugs for Zuraimy, based on Moad’s various untruths and the surrounding objective evidence, such as Zuraimy’s lack of funds at the time of arrest and the absence of drug apparatus in either of the flats he resided in. These suggested that Moad was the more probable person who dealt with the drugs.

As for the appeals concerning Zuraimy, who was represented by Mr Eugene Thuraisingam and Mr Chooi Jing Yen, the court agreed with Justice Choo that Zuraimy’s role as a middleman, in giving Moad instructions to collect the diamorphine in Toa Payoh, does not amount to “consent” required for there to be joint possession of the drugs. As such, the presumption of trafficking could not be applied against Zuraimy.

The judges also agreed that there was no common intention between Moad and Zuraimy, as it has not been proved that Zuraimy knew Moad was purchasing the drugs for trafficking.

Zuraimy had also contended that his 10 years’ imprisonment was manifestly excessive and should be reduced to 7 years. However, the court noted that his drug antecedents dated back to 2001 and that he committed the present offence barely a year after his previous release from prison. The quantity of drugs involved was also high enough to attract a capital charge, such that the imprisonment term of 10 years could not be said to be manifestly excessive.

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