A seemingly simple case of a group of men handing drugs over to another group has raised several questions of law and practice, as a result of how the Prosecution and Defence conducted their cases at the joint trial of three accused persons involved – 27-year-old Mohammad Azli bin Mohammad Salleh (“Azli”), 48-year-old Roszaidi bin Osman (“Roszaidi”) and 35-year-old Aishamudin bin Jamaludin (“Aishamudin”), who were charged for trafficking in 32.54g of diamorphine.
These questions came before a five-judge Court of Appeal in February this year, where the court dismissed Roszaidi’s appeal against his conviction but sent his case back to Justice Choo Han Teck on the issue of his mental state and sentence, and reserved judgment on the fates of Azli and Aishamudin.
Yesterday, the Court of Appeal led by Chief Justice Sundaresh Menon issued a 58-page written judgment following a hearing via video conference, explaining their decision on Azli’s and Roszaidi’s appeals.
In brief, the court found that Roszaidi’s defences of intending to return the drugs to the person who arranged the transaction between him and Aishamudin’s group, as well as his lack of intention to traffic in a capital quantity of drugs, were mere afterthoughts as it was never raised at the earliest opportunity in his statements.
Turning to Roszaidi’s sentence, the court found that Roszaidi was a mere courier by collecting the drugs (in the red plastic bag) from Aishamudin, placing them into another plastic bag, and handing them to his wife Azidah in a yellow paper bag, contrary to what the trial judge had (apparently) found otherwise when he described such acts as “repacking”.
Roszaidi had also made a belated application to rely on diminished responsiblity as a basis for his death sentence to be reduced to life imprisonment, relying on a 2015 report conducted by the government’s psychiatrist.
The court noted that the lawyers and the judge conducting the case below did not consider the applicability of the alternative sentencing regime vis-a-vis Azli and Roszaidi, both of whom were sentenced to death in the court below, thus resulting in Roszaidi belatedly raising the issue of diminished responsibility on appeal.
Nevertheless, the court was satisifed that the belated application was made in good faith and not an abuse of process, and granted permission for Roszaidi to raise this ground of appeal. The court remitted the case back to the trial judge to hear further psychiatric evidence as the issue of Roszaidi’s mental state was not raised at the trial.
In so doing, the court held that the Defence, the Prosecution and the judge each has a duty of ensuring that the alternative sentencing regime, whether relating to the certificate of substantive assistance or diminished responsibility, was canvassed and considered in every capital drug trial.
Azli’s appeal, on the other hand, raised the question as to the scope of “joint possession of drugs” under section 18(4) of the Misuse of Drugs Act. Azli had argued that he was not in joint possession of the drugs with Roszaidi even though he drove him around to collect the drugs from Aishamudin’s group.
The court held that s 18(4) of the MDA is not a rebuttable presumption but a definitional provision, and considered, for the first time, the extent of “knowledge” required for there to be joint possession under this section – while the joint possessor need not know the precise nature of the drugs, he must at least know that the item posessed by the actual possessor is a controlled drug; and not just merely that the item existed.
As Azli’s statements showed that he knew Roszaidi was involved in drug activities on the night of the offence and had consented to driving him around to collect drugs, he was considered to be in joint possession of the diamorphine; in fact, Azli himself was an abuser of methamphetamine and had drug paraphernalia in his car for Roszaidi’s use.
The court nevertheless went on to consider whether there were alternative defences available to Azli; in so doing, they accepted the point that though a trial judge should consider alternative defences that might reasonably be available to an accused person, even if these are inconsistent with the primary case run by the defence, this must be constrained by reference to the available evidence placed before the court.
In Azli’s case, his statements did not prove beyond a reasonable doubt that he knew that the drug bundles contained diamorphine; at the very highest, it only showed that he knew it contained methamphetamine (which was not the subject of the charges in these appeals); Roszaidi’s account against Azli was also unreliable as he had first absolved him from liability, then incriminated him and absolved him from the issue of the nature of the drugs.
As a result, the court found that Azli had rebutted the presumption of knowledge; they also disagreed with Justice Choo that Azli was wilfully blind to the nature of the drugs. As such, Azli was acquitted of trafficking in the diamorphine.
Meanwhile, the Court of Appeal’s decision on the Prosecution’s appeal against Aishamudin, which raised yet another novel question of law concerning the interaction between the exercise of prosecutorial discretion and the concept of “common intention”, remains reserved and will be separately delivered on a date to be fixed.
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