When the Prosecution exercises its sole discretion to reduce the pure quantity of a controlled drug in the charge against one accused, which was for drug trafficking with common intention with another accused, does it have any impact on the common intention element such that the other accused can only be likewise convicted of trafficking in the same reduced quantity of drugs?

This interesting question of law, intertwined with issues of equality and logic, has led to a five-judge Court of Appeal being convened on Monday (17th February) to hear the appeals concerning the fates of three accused drug traffickers, 27-year-old Mohammad Azli bin Mohammad Salleh (“Azli”), 48-year-old Roszaidi bin Osman (“Roszaidi”) and 35-year-old Aishamudin bin Jamaludin (“Aishamudin”).

On the evening of 6th October 2015, Aishamudin and one Suhaizam handed two bundles of drugs weighing 921.50g to Roszaidi, who went to Bulim Avenue with Azli and one Mirwazy in Azli’s car. Officers from Central Narcotics Bureau, acting on a tip-off, then proceeded to trail the vehicles and arrested the three accused persons, as well as others, one after another.

Following a joint trial, Azli was convicted by Justice Choo Han Teck of abetment of drug trafficking, by driving Roszaidi to Bulim Avenue to collect the drugs. Roszaidi and Aishamudin were likewise convicted of drug trafficking. While Azli and Roszaidi were sentenced to death as Justice Choo found them not to be couriers, Aishamudin escaped the death penalty over a technicality in the charge preferred against him, and was sentenced to 25 years’ imprisonment and 15 strokes of the cane.

Azli and Roszaidi appealed against their convictions and sentences, while the Prosecution appealed against Justice Choo’s decision to reduce Aishamudin’s charge to a non-capital one.

Roszaidi, who was represented by lawyers Mr Eugene Thuraisingam, Mr Suang Wijaya and Mr Johannes Hadi of Eugene Thuraisingam LLP (assisted by Mr Abdul Rahman Mohd Hanipah and Ms Shobna Chandran), argued two points in support of reducing his charge to a non-capital one. First, it was argued that Roszaidi’s act of handing the drugs to his wife Azidah was done with the intention of safekeeping them, such that he should be convicted of drug possession simpliciter instead. Second, Roszaidi argued that he did not have the intention to traffic in a capital amount of diamorphine based on his previous drug transactions.

Roszaidi‘s alternative submission on sentence for the capital charge, was that Justice Choo had erred in finding that he was not a mere courier by “repacking the diamorphine in Azli’s car”. In fact, Roszaidi transferred the two bundles, which was handed to him in a torn plastic bag and “weighed like two dictionaries”, into another plastic bag and then into a paper bag altogether to “secure the consignment”.

As Roszaidi was diagnosed with substance use disorder and depression (which the Prosecution did not dispute), should he be found to be a mere courier, he might be sentenced to life imprisonment instead. The Prosecution, while noting that Roszaidi had raised this ground of appeal in his submissions, did not rebut this point in their written submissions.

Azli, through his counsel Mr Mervyn Cheong (assisted by Mr Lau Kah Hee and Mr Melvin Loh), maintained on appeal that he knew nothing of Roszaidi’s drug trafficking activities. He also aligned himself with one of Roszaidi’s arguments, that he (Roszaidi) did not intend to traffic in a capital amount of drugs, and also raised the point that he should have likewise been convicted on a non-capital charge since Aishamudin’s charge, which concerned the same set of drugs, was reduced.

In Aishamudin’s case, he was charged with having a common intention with Suhaizam to traffic in “not less than 32.54g” of diamorphine, while Suhaizam was charged with having a common intention with Aishamudin to traffic in “not less than 14.99g” of diamorphine, even though the bundle of granular substances mentioned in both charges have the same net weight, i.e. 921.50 grams. Suhaizam had pleaded guilty before another judge and received the same sentence as Aishamudin.

Mr Hassan Almenoar, on behalf of Aishamudin, had therefore argued at trial that there was no common intention between the two men as the Prosecution had exercised its discretion to reduce Suhaizam’s charge. Justice Choo agreed, and exercised his discretion to reduce Aishamudin’s charge as “it is out of the question to have Suhaizam retried”.

The Prosecution, led by Deputy Chief Prosecutor Hay Hung Chun, argued that Justice Choo erred in reducing Aishamudin’s charge to a non-capital one, as the focus of common intention should be on the bundles themselves, and not the post-analysis weight of pure diamorphine. They also said that Justice Choo was “essentially disagreeing with the exercise of prosecutorial discretion in bringing different charges against Suhaizam and Aishamudin on the same facts”.

The Court of Appeal – comprising Chief Justice Sundaresh Menon and Judges of Appeal Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong – has reserved judgment.

 

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