Less than six months ago, the Court of Appeal acquitted Muhammad Nabill bin Mohd Fuad of two drug trafficking charges on the basis that the Prosecution has failed to call material witnesses in the State’s custody to rebut the former’s defence, in a landmark judgment which expanded the Prosecution’s duty to disclose witness statements to the Defence.
Now, as Mr Wong Siew Hong began arguing the appeal of his client, Beh Chew Boo, on Tuesday (8th September) morning, he indicated his intention to rely on Nabill’s case, which was handed down after Beh was convicted and sentenced to death for drug importation, to argue that the Prosecution, by not calling the alleged mastermind in the State’s custody to rebut his client’s defence, has effectively failed to prove its case against his client.
Beh was arrested at Woodlands Checkpoint on 26th October 2016 when entering Singapore from with one Ting Swee Ling, his then-girlfriend, while riding on a motorcycle belonging to one Lew Shyang Huei. The compartment beneath the motorcycle seat was examined and four bundles were found inside, containing not less than 499.97g of methamphetamine. The bundles also had Lew’s DNA found on them but not those of Beh’s.
At trial, the Prosecution’s case against Beh was that he was acting as a knowing courier for Lew. Beh’s defence was that he had borrowed Lew’s motorcycle as his own had broken down and that he had entered Singapore for other legitimate reasons, such as returning a power bank to his friend, to discuss with the same friend about an upcoming job and introduce two parties to him for this purpose, and to spend the day with Ting. He maintained throughout that he did not know that there were drugs hidden in the compartment beneath the motorcycle’s seat.
Justice Kannan Ramesh rejected Beh’s defences and convicted him of the drug importation charge in January this year. Beh was sentenced to death as he did not have a certificate of substantive assistance from the Prosecution.
The Court of Appeal – comprising Chief Justice Sundaresh Menon, Judge of Appeal Tay Yong Kwang and Judge of Appeal Steven Chong, expressed their agreement with Justice Ramesh that two of Beh’s reasons for entering Singapore, which concerned the upcoming job, was incredible as they were not raised in Beh’s statements and only surfaced at trial for the first time.
However, CJ Menon and Justice Chong also had a live exchange with Deputy Public Prosecutor Mark Jayaratnam over the Prosecution’s decision not to call Lew as a witness to rebut Beh’s defence, which was not inherently incredible and supported by some objective evidence, despite Lew being in the State’s custody.
While DPP Jayaratnam claimed that Lew would have denied any involvement with the drugs, the judges pointed out that Lew’s DNA were found on the bundles. They further found it ‘bizarre’ that the Prosecution had not charged Lew for any offence despite the objective evidence linking him to the drugs and their case was that Lew was Beh’s mastermind.
The Court of Appeal has reserved judgment and will give its decision on a date to be fixed.