60-year-old Han Fang Guan escaped the death sentence on Friday (28 February) morning, after the Court of Appeal allowed his appeal against a charge of “attempting to possess 18.62g of diamorphine for the purposes of trafficking”.
The apex court held that the Prosecution had failed to prove beyond reasonable doubt that Han had ordered diamorphine from his supplier, or intended to receive diamorphine from one Khor Chong Seng, who was arrested on 2 March 2016 and whose cooperation with officers from the Central Narcotics Bureau led to Han’s arrest.
The appeal was heard in July last year before Chief Justice Sundaresh Menon, Judge of Appeal Andrew Phang and Judge of Appeal Steven Chong, where judgment was reserved.
In reserving judgment, the court had also asked for further submissions from Han’s lawyer Mr Low Cheong Yeow and Deputy Public Prosecutor Lau Wing Yum, as to whether Han could be convicted of “attempted drug possession” given that it was impossible for Han to receive the drugs as Khor had already been arrested beforehand.
Delivering the judgment of the court, CJ Menon explained that in the phone conversation between Khor and Han’s supplier “Lao Ban”, the latter had repeatedly referred to a “yellow bundle” as the one which he intended Han to receive. The bundle referred to in the charge against Han (containing 18.62g of diamorphine, the least amount of diamorphine amongst two others), however, was black in colour.
The Prosecution had also failed to call the intended recipient of the two other diamorphine bundles to testify at trial on whether the bundles were intended to contain diamorphine, despite this intended recipient being in CNB’s custody, which further adds to the reasonable doubt the court is faced with in Han’s case.
In addition, Han had consistently stated that he had not ordered diamorphine, but had instead ordered 100g of ketamine and 25g of ice, even before he was aware of the recorded conversation between Khor and Lao Ban indicating a mix-up in the drug orders.
Given Han’s defence that he had ordered ketamine and ice, the court adjourned the matter and requested for further submissions from Mr Low and DPP Lau as to the appropriate amended charge to be preferred against Han, whether Han intends to contest the charge and/or the sentence to be imposed for the amended charge.
The apex court also laid down a two-stage framework for cases of “impossible attempts” i.e. attempts to commit offences that could not possibly have been consummated in the circumstances, having considered the further submissions filed by the parties and also in view of the fact that Khor did not have any ketamine and/or ice to deliver to Han had the former not been arrested.
The first stage of the framework is to determine whether the accused person had the specific intention to commit a criminal act, with the focus being on whether the intended act was criminal either on its face or based on mistaken belief.
If the answer to the first stage is in the affirmative, the second stage of the framework would be to determine the sufficiency of the acts by the accused person, to corroborate the presence of the criminal intention and demonstrate substantial movement towards the commission of that criminal act.