District Court of Singapore

Public Prosecutor v Kalachelvam s/o Packirisamy
[2021] SGDC 129

Criminal Law – Statutory offences – Misuse of Drugs Act – Section 8(b)(ii) and section 33A(2)

Evidence – Proof of evidence – Onus of Proof

Criminal Procedure and Sentencing – Sentencing – Principles

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9136/2021/01.]

12 July 2021

District Judge Edgar Foo:

Introduction

1 Mr Kalachelvam s/o Packirisamy (“the Accused”), a 57-year-old male Indian Singapore Citizen had claimed trial to the following charge:

11th charge - DAC 900974-2020 (Additional)

You … are charged that you, on or about the 11th of May 2019, in Singapore, did consume a Specified Drug listed in The Fourth Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed), to wit, methamphetamine, without any authorisation under the said Act or the Regulations made there under and you have thereby committed an offence under Section 8(b)(ii) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed),

and further,

that you, before the commission of the said offence had been convicted on the 13th April 2005 in District Court 24, vide DAC10165/2005, convicted of an offence for consumption of a specified drug, to wit, morphine, under Section 8(b)(ii) read with Section 8A of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) and punished under Section 33A(1) of the said Act with 6 years and 6 months’ imprisonment, which conviction and punishment have not been set aside to date, and you shall now be punished under Section 33A(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed).

Punishment prescribed by law

2 The punishment prescribed under section 33A(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) was imprisonment for a term of 7 years to 13 years and 6 to 12 strokes of the cane.

3 At the conclusion of the trial on 8 June 2021, I found the Accused guilty and convicted him of the said charge. And after considering the Prosecution’s submission on sentence and the Accused’s mitigation plea, I imposed a sentence of 8 years’ imprisonment on the Accused.

4 The Accused, being dissatisfied with my decision, had filed his Notice of Appeal against my conviction and sentence. I hereby set out my reasons for my conviction and sentence.

Parties’ evidence and exhibits

Prosecution’s evidence and exhibits

5 The Prosecution had called a total of 12 witnesses in their case against the Accused:

No.	Witness	Role	Marking given to witness
1	SSG Aik Qisong	Arresting Officer	PW1
2	SGT3 Yang Da Wei	Arresting Officer	PW2
3	SGT2 Muhammad Iryani bin Johari	Arresting Officer	PW3
4	SSG Hamir bin Atan	Escorting Officer	PW4
5	SGT Koh Jun Xian	IUT operator/sealing officer	PW5
6	SSG Sriranjani d/o Govindaraju	Despatch officer	PW6
7	Chan Si Jia	HSA analyst	PW7
8	Kwok Yi Ling Miiko	HSA analyst	PW8
9	Lim Wan Xin	Investigation officer	PW9
10	Dr Chai Siang Chew	Doctor who had prepared Exhibits P5 and P6	PW10
11	Lee Yan Kai	HSA analyst	PW11
12	Muhammad Hafidh bin Ramli	Statement recorder	PW12

6 In addition to the 11 witnesses, the Prosecution had also tendered a total of 15 exhibits in support of their case against the Accused:

No.	Exhibit	Marking given to exhibit
1	Police report No. L/20190511/2058 dated 11 May 2019 at 2.59 pm	P1
2	Instant Urine Test Result Slip	P2
3	Certificate under section 16 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) by Chan Si Jia with Lab No. AT-1933-04416-001-03	P3
4	Certificate under section 16 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) by Kwok Yi Ling Miiko with Lab No. AT-1933-04416-002-03	P4
5	Medical Report from Changi General Hospital dated 23 October 2019	P5
6	Medical Report from Changi General Hospital dated 13 November 2019	P6
7	Memorandum of certified previous convictions	P7
8	Accused’s cautioned statement recorded under section 23 of the Criminal Procedure Code (Cap 68, 2010 Rev Ed) on 18 October 2019 at 10.05 pm	P8
9	Conditioned statement of Senior SSG Nurdilla binte Mursani	P9
10	Accused’s cautioned statement recorded under section 23 of the Criminal Procedure Code (Cap 68, 2010 Rev Ed) on 18 October 2019 at 9.36 pm	P10
11	Police report L/20190511/2062 dated 11 May 2019 at 3.37 pm	P11
12	Police report L/20190519/2032 dated 19 May 2019 at 10.48 am	P12
13	Photograph of exhibits seized from Accused	P13
14	Physical exhibits “KAL-A” analysed by Lee Yan Kai	P14
15	Certificate under section 16 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) by Lee Yan Kai with Lab No. AT-1932-01021-001	P15

7 The Prosecution’s evidence could be summarised as follows: -

PW1 – SSG Aik Qisong

8 PW1 had been a police officer with Singapore Police Force for 7 years and he was attached to the Woodlands Division^{[note: 1]}. PW1 was on duty on 11 May 2019 and he was despatched together with PW2, PW3 and Senior SSG Nurdilla Binte Mursani to the void deck at Block 3 Marsiling Road to attend to a suspicious person who was seen loitering at the void deck^{[note: 2]}.

9 When PW1 reached the void deck of Blk 3 Marsiling Road, he saw the Accused at the void deck, and he went to check on the Accused and he asked the Accused what he was doing at the void deck^{[note: 3]}. The Accused told PW1 that he was just sitting at the void deck and not doing anything^{[note: 4]}. PW1 also said that the Accused was normal and calm when he spoke to the Accused^{[note: 5]}. PW1 then proceeded to check the Accused’s belongings and he found some substance in the Accused’s pocket^{[note: 6]}. The Accused acknowledged that the substance belonged to him. When PW1 asked the Accused what the substance was, the Accused told PW1 that it was for smoking and he had obtained the substance “from somewhere nearby”^{[note: 7]}.

10 PW1 then decided to contact his supervisor, ASP Quek, regarding the case and ASP Quek came down to the scene. After that, PW1 and ASP Quek decided to place the Accused under arrest^{[note: 8]}. When they arrested the Accused, the Accused kept asking them why he was being arrested when he did not commit any offence and they told him that they were placing him under arrest for urine testing^{[note: 9]}. They had decided to bring the Accused back to the station for a urine test because the Accused could not give them a proper answer as to where he had obtained the substance from^{[note: 10]}.

11 After PW1 and ASP Quek brought the Accused back to the station, PW1 proceeded to file the arrest report (Exhibit P1) and he handed the Accused over to the lockup officer^{[note: 11]}. Exhibit P1, which was lodged by PW1 at 2.59 pm on 11 May 2019, showed that the Accused was arrested at 2.10 pm at Blk 3 Marsiling Road^{[note: 12]}. PW1 testified that he had to file 2 more police reports (ie Exhibits P11 and P12) in relation to this case. PW1 had filed Exhibit P11 at 3.37 pm on 11 May 2019 because he had noticed a typographical error in his earlier report Exhibit P1. In Exhibit P1, PW1 had wrongly written the vide report number as L/2019-0511/0106 when the correct vide report number should be L/2019/0511/0103. PW1 proceeded to file Exhibit P11 to rectify the vide report number^{[note: 13]}. PW1 had to file a 3^rd police report (Exhibit P12) because he had forgotten to list down 2 other items which were seized by PW3 from the Accused when the Accused was arrested on 11 May 2019 in Exhibit P1. The 2 additional items were a pack of rolling paper and one rolled-up stick of vegetable matters^{[note: 14]}.

12 PW1 also testified that he handed the Accused over to the charge office at about 3 plus in the afternoon^{[note: 15]}. After PW1 had handed the Accused over to the lockup officer, he was subsequently directed by his supervisor at about 6 pm to escort the Accused to Khoo Teck Puat Hospital for medical assistance because the Accused was suffering from irregular heartbeat^{[note: 16]}.

13 PW1 escorted the Accused to the A & E Department of Khoo Teck Puat Hospital and he remained at the hospital with the Accused until the end of his shift at about 7.30 pm^{[note: 17]}. PW1 left the hospital after the next shift officer had taken over his duties at the hospital^{[note: 18]}.

14 During cross-examination, the Accused had asked PW1 if he remembered conducting checks on 2 other persons, namely one Indian and one Chinese who were also present at the void deck at Blk 3 Marsiling Road after he had completed his check on the Accused before he went on to place the Accused under arrest. However, PW1 said that he could not remember that^{[note: 19]}. PW1 also denied that they had seized a lighter from the Accused when he arrested the Accused on 11 May 2019^{[note: 20]}.

PW2 – Sgt3 Yang Da Wei

15 PW2 was a Volunteer Special Constabulary attached to the Woodlands Division. At about 2 pm on 11 May 2019, PW2 was despatched together with PW1 to Blk 3 Marsiling Road to assist Senior SSG Nurdilla and PW3 who were already at the scene^{[note: 21]}. When PW2 arrived at Blk 3 Marsiling Road, he assisted the other officers to look for the Accused^{[note: 22]}. PW2 testified that PW1 was the officer who had found the Accused. PW2 was not present when PW1 found the Accused as he was assisting a member of the public on some other matter^{[note: 23]}.

16 When PW2 went back to the scene, he found out that PW1 was escorting the Accused back to the regional lockup and he followed them back to the regional lockup. PW2 said that he went back to the station together with Senior SSG Nurdilla in her police vehicle^{[note: 24]}. PW2 recalled arriving at the lockup at about 2.20 pm and he assisted PW1 with the arrest report^{[note: 25]}.

17 At about 6 pm on the same day, PW2 and PW1 were tasked to escort the Accused to Khoo Teck Puat Hospital. PW2 heard from the charge office that the Accused was complaining of chest pain and he was directed to escort the Accused to Khoo Teck Puat Hospital for medical treatment. When PW2 was escorting the Accused to Khoo Teck Puat Hospital, PW2 noticed that the Accused looked fatigued. PW2 also said that the Accused could not open his eyes and kept closing his eyes when he was being examined by the medics at the hospital^{[note: 26]}. Other than that, PW2 did not notice anything unusual at Khoo Teck Puat Hospital^{[note: 27]}.

18 PW2 also testified that both he and PW1 were with the Accused all the time including the time when the Accused was receiving medical treatment at the hospital^{[note: 28]}.

PW3 – Sgt2 Muhammad Iryani bin Johari

19 PW3 was a ground response officer with Woodlands Division on 11 May 2019^{[note: 29]}. PW3 testified that they had received a message that someone was selling substances at the void deck and they were despatched to investigate the incident^{[note: 30]}. PW3 also said that there were 4 police officers who were present at the scene and they were PW1, PW2, Senior SSG Nurdilla and PW3^{[note: 31]}.

20 PW3 testified that when the officers arrived at the scene, they did not see anyone at the void deck and they only saw the Accused sitting near the bench area by himself and they decided to approach the Accused to interview him^{[note: 32]}. When the officers spoke to the Accused, PW3 noticed that the Accused had slurred speech, but he was able to answer their questions^{[note: 33]}.

21 The officers conducted a search on the Accused, and they seized 2 items from the Accused a packet of brown substance and white rolling papers^{[note: 34]}. After that, the Accused was arrested, and he was brought back to the regional lockup by way of police vehicle^{[note: 35]}. PW3 had accompanied the Accused back to the lockup and he was in the same vehicle with the Accused when he was brought back to the regional lockup^{[note: 36]}. When they arrived at the regional lockup, the Accused was handed over to the regional lockup officers^{[note: 37]}.

22 During cross-examination, the Accused had suggested to PW3 that what had happened at the scene was that after the officers had conducted their checks on the Accused and the items found on him, they had returned the items back to the Accused before proceeding to conduct search on 2 other persons who were also present at the void deck. However, PW3 disagreed with the Accused’s suggestion and he said that he had only seen the Accused at void deck and there were no other persons who were present at the void deck^{[note: 38]}.

23 The Accused also suggested to PW3 that he was rolling some tobacco with white paper in his hand when the police officers were checking on him and PW3 had told the Accused not to smoke the tobacco. PW3 said that he could remember talking to the Accused but he could not remember saying those words to the Accused^{[note: 39]}.

24 The Accused also suggested to PW3 that they had also seized the tobacco and white rolling papers that he was rolling in his hand on top of the packet of brown substance and roll of white paper. PW3 disagreed with the Accused’s suggestion and he reiterated that they had seized only 2 items from the Accused, namely the packet of brown substance and white rolling papers^{[note: 40]}.

PW4 – SSG Hamir bin Atan

25 PW4 was the police officer who had escorted the Accused to the charge office toilet to procure his urine sample for testing after the Accused was arrested^{[note: 41]}.

26 PW4 testified that after the Accused had gone to the hospital for medical treatment, he was subsequently brought back to the charge office at the police station. At about 0010 hours on 12 May 2019^{[note: 42]}, the Accused informed PW4 that he wanted to urinate and PW4 brought him to the charge office toilet for him to urinate^{[note: 43]}. Before PW4 escorted the Accused to the toilet, PW4 had requested the register officer to print out the PCMS label with the Accused’s name and NRIC on it and PW4 brought the label with him in a blue polymer bag to the toilet^{[note: 44]}. PW4 also brought with him 2 A4 sized card boxes, one containing more than 10 red bottles and the other containing more than 20 blue bottles from the charge office^{[note: 45]}. All the bottles were prepared and sealed^{[note: 46]}.

27 When they reached the toilet, PW4 asked the Accused to verify his name and NRIC number on the label. After the Accused had verified the same, PW4 requested the Accused to wash his hand^{[note: 47]}. After the Accused had washed and dried his hands, PW4 requested the Accused to choose 1 red bottle and 2 blue bottles from the 2 card boxes^{[note: 48]}.

28 PW4 then told the Accused to open the packaging for the red and blue bottles and he told the Accused to urinate into the red bottle. After sufficient urine was deposited into the red bottle, PW4 told the Accused to cap the red bottle and hand the red bottle to him so that PW4 could swirl the urine. After swirling the urine, PW4 returned the red bottle to the Accused and told him to pour the urine from the red bottle into the 2 blue bottles. PW4 then told the Accused to cap all 3 bottles and PW4 taped all 3 bottles with a white masking tape. PW4 then proceeded to place the red bottle into one blue polymer bag and the 2 blue bottles into another blue polymer bag. Before placing the bottles into polymer bags, PW4 pasted the Accused’s PCMS label onto the polymer bags. PW4 then proceeded to seal both the polymer bags and he handed the 2 polymer bags to the Accused and warned him not to tamper with the polymer bags^{[note: 49]}. After the Accused had procured the Accused’s urine sample, he asked the APO to escort the Accused back to the lockup.^{[note: 50]} PW4 testified that he had finished procuring the Accused’s urine at about 0015 hours^{[note: 51]}.

29 PW4 testified that when the Accused was urinating into the red bottle, PW4 had stood beside the Accused to watch him urinate into the red bottle. PW4 also testified that he had taped the 3 bottles in the presence of the Accused and the Accused had watched him tape the bottles. As for the 2 polymer bags, PW4 confirmed that the bags were empty and tamper proof before the Accused placed the bottles into the bags^{[note: 52]}.

30 PW4 testified that even though the urine was procured around 0015 hours, the IUT was conducted around 6.17 am because there was no available tester^{[note: 53]}. PW4 said that only certain officers were authorised to conduct the instant urine test (“IUT”). So, the Accused was brought back to the lockup with his urine sample pending the IUT^{[note: 54]}. In the present case, the police officer who had conducted the IUT was Sgt3 Koh Jun Xian (PW5)^{[note: 55]}.

31 PW4 also testified that the Accused was responsive, and he was able to follow all of PW4’s instruction during the urine procurement process. The Accused also did not make any request or raise any complaints during the urine procurement process. Nothing unusual also happened during the urine procurement process^{[note: 56]}.

32 During cross-examination, the Accused suggested to PW4 that he did not carry the red and blue bottles from the charge office to the toilet, but the bottles were already placed outside the toilet. However, PW4 disagreed with what the Accused had suggested to him. PW4 also said that he did not make the Accused sign on any of the bottles when he was procuring the Accused’s urine at the toilet^{[note: 57]}.

PW5 – Sgt Koh Jun Xian

33 PW5 was the tester and sealer of the Accused’s urine. PW5 had conducted the ICT on the Accused’s urine at 6.17 am on 12 May 2019. Exhibit P2 was the Instant Urine Test Result Slip^{[note: 58]} and PW5 had placed his signature as the sealing officer on Exhibit P2 after it was printed out^{[note: 59]}. PW5 was unable to explain why the Accused’s urine was tested only at 6.17 am when it was procured just after 12 midnight but he said that it could be due to the charge office being busy at that point of time or that the testing officer was not available^{[note: 60]}.

34 As for the testing process, PW5 testified that he had arranged for the AETOS officer to bring the Accused from the lockup to the IUT room for the urine testing. When the Accused was at the IUT room, PW5 verified the Accused’s name and NRIC number verbally. PW5 also checked the Accused’s particulars against the Accused’s arrest report and a copy of his NRIC and he also asked the Accused to confirm the same. After the Accused had confirmed his particulars, PW5 proceeded to key the Accused’s NRIC into the IUT machine and the IUT machine generated a barcode with the Accused’s name and NRIC on it. PW5 then showed the barcode to the Accused for the Accused to confirm his particulars. After the Accused had confirmed his particulars on the barcode, PW5 took the polymer bag containing the red bottle from the Accused, cut opened the polymer bag and he retrieved the red bottle containing the Accused’s urine sample from the polymer bag. PW5 then proceeded to take out a new tube from a box which was placed beside the CNB computer in the IUT room and he pasted one of the barcodes onto the tube. PW5 then siphoned some of the Accused’s urine specimen from the red bottle and placed the urine sample into the tube. PW5 then proceeded to test the Accused’s urine sample which was in the tube^{[note: 61]}.

35 PW5 testified that while he was doing all these, the Accused was seated in front of him. PW5 noted that the Accused was responsive, and he understood PW5’s instructions^{[note: 62]}. The IUT machine took about 20 to 25 minutes to test the Accused’s urine. When the IUT was completed, the IUT machine printed out the test results (Exhibit P2). PW5 noted that the test results were positive, and he contacted the CNB duty officer and informed the CNB duty officer that the Accused’s urine had tested positive for methamphetamine and benzo. The CNB duty officer instructed PW5 to seal the Accused’s urine samples.

36 PW5 then proceeded to print out 4 to 5 HSA labels with the Accused’s name and NRIC on the labels. PW5 showed the labels to the Accused and asked the Accused to confirm his particulars. After the Accused had acknowledged PW5’s instructions, PW5 instructed the Accused to sign on the HSA labels and the Accused did place his signature on the HSA labels. PW5 pasted one of the HSA labels on the back page of Exhibit P2. PW5 also proceeded to take the other polymer bag containing the 2 blue bottles from the Accused and he cut open the polymer bag and he pasted the HSA labels with the Accused’s signature on the 2 blue bottles^{[note: 63]} in the presence of the Accused^{[note: 64]}. PW5 then took out a metal box from the refrigerator and asked the Accused to place the 2 blue bottles with his urine samples into the metal box^{[note: 65]}. PW5 then requested the APO on duty to escort the Accused back to his lock-up cell.

37 PW5 noted that the Accused was walking in a steady gait when he was going back to the lockup and he did not have any complaints during the urine testing process^{[note: 66]}. PW5 also testified that when he asked the Accused to sign the HSA labels, the Accused was responsive, and he understood PW5’s instruction on where to place his signature^{[note: 67]}.

38 PW5 also testified that he did inform the Accused of the IUT results and there was no response from the Accused^{[note: 68]}. PW5 also said that although the IUT result slip showed that the Accused’s urine had tested positive for Amphetamine and Benzodiazepines, he was asked by the CNB duty officer to send the Accused’s urine sample to be tested for Amphetamine, Benzodiazepines and New Psychoactive Substance (“NPS”). The reason was because the IUT machine was not able to test for NPS^{[note: 69]}.

PW6 – SSG Sriranjani d/o Govindaraju

39 PW6 had been a CNB officer for 21 years. In May 2019, PW6 was posted to the CNB office at Woodlands. PW6 was the officer who had despatched the Accused’s urine samples to HSA on 13 May 2019^{[note: 70]}.

40 PW6 had explained the CNB Woodland’s process for sending urine samples to HSA for testing^{[note: 71]}:

(a) PW6 testified that the sealing officer would need to retrieve the key to the freezer and unlock the freezer in order to take out the metal box for an accused to drop his urine sample into the metal box after he had sealed the urine sample. After an accused had dropped his urine sample into the metal box, the sealing officer would need to place the metal box back into the freezer and lock the freezer.

(b) When PW6 reported for work at the CNB office at Woodlands, she would first have to print out a summary sheet of all the urine samples to be despatched to HSA.

(c) PW6 would then retrieve the key to the freezer and unlock the freezer to take out the metal box containing all the urine samples. PW6 testified that the metal box itself was also locked and the lock on the metal box could only be opened by the HSA staff.

(d) PW6 then proceeded to despatch the summary sheet together the metal box containing all the urine samples to HSA by way of a CNB unmarked vehicle.

(e) Upon arrival at HSA, PW6 would register herself in the register book at HSA and she would wait for a HSA staff to open the metal box and tally the urine samples with the summary sheet that she had printed.

(f) The HSA staff had to ensure that the names on the summary sheet tallied with the labels on the bottles and that the bottles were not labelled wrongly. They also checked the signatures on the bottles to ensure that there was no smudging of the ink and that both signatures were identical. The HSA staff also ensured that the number of samples tallied with the numbers stated in the summary sheet. All these were done in the presence of PW6.

41 PW6 testified that when she despatched the Accused’s urine samples to HSA on 13 May 2019, there was no irregularities with the Accused’s urine samples and the Accused’s urine samples did have the HSA labels with the Accused’s signatures^{[note: 72]}.

PW7 – Chan Si Jia

42 PW7 was an analyst with the Analytical Toxicology Laboratory at HSA and she had been working for HSA for 10 years. PW7 was one of the analysts in charge of the testing of one of the Accused’s urine samples^{[note: 73]}.

43 PW7 testified that all urine samples from CNB which were sent to HSA for testing would be sent to HSA in locked security boxes and only the staff at the Analytical Toxicology Laboratory had the keys to unlock the security boxes. The counter staff at HSA would open the security boxes and check the urine bottles and the submission forms. If the bottle submission fulfilled the laboratory criteria, the laboratory would assign a unique identifier to the urine bottle and the bottles would be submitted to the analyst in charge to conduct a second verification before they proceeded to conduct the requested testing on the urine sample^{[note: 74]}.

44 PW7 testified that for the present case, the CNB had requested HSA to test the Accused’s urine sample for amphetamines, benzodiazepines and NPS^{[note: 75]}.

45 In the present case, PW7 had tested the Accused’s urine sample and she had found the sample to contain methamphetamine^{[note: 76]}. PW7 had also issued a Certificate under section 16 of the Misuse of Drug Act (“Exhibit P3”) to show the result of the test conducted^{[note: 77]}.

46 PW7 also confirmed that the consumption of the all the medications listed in Exhibits P5 and P6 would not give rise to methamphetamine in the Accused’s urine^{[note: 78]}.

47 In cross-examination, PW7 confirmed that the Accused’s urine had also tested positive for NPS^{[note: 79]}. PW7 also testified that NPS would not show up in the IUT test done at the police station because the NPS test was not available at the CNB IUT site^{[note: 80]}. PW7 also confirmed that HSA did not conduct any test on the brown substance which was seized from the Accused.

PW8 – Kwok Yi Ling Miiko

48 PW8 was an analyst employed by HSA and she had been working at HSA for about 10 years^{[note: 81]}. PW7 had tested one of the Accused’s urine samples and she had issued her Certificate under section 16 of the Misuse of Drugs Act (Exhibit P4) on the results of her test^{[note: 82]}.

49 PW8 said that her test results showed that the Accused’s urine sample contained methamphetamine. PW8 also confirmed that the medications listed in Exhibits P5 and P6 would not give rise to methamphetamine in the Accused’s urine^{[note: 83]}.

50 In cross-examination, PW8 testified that although Exhibit P2 showed that the Accused’s urine contained benzodiazepines, she did test the Accused’s urine sample for benzodiazepines, but his urine sample had tested negative for benzodiazepines^{[note: 84]}. PW8 was of the view that Exhibit P2 could have shown benzodiazepines present in the Accused’s urine because he had taken non-controlled benzodiazepines. Non-controlled benzodiazepines were not controlled under the Misuse of Drugs Act and HSA would only test for controlled benzodiazepines^{[note: 85]}.

51 PW8 was also unable to comment if the tobacco that the Accused had been taking could have contained methamphetamine^{[note: 86]}. When questioned by the Accused on the amount of methamphetamine found in his urine which was stated as 1816.96 ng/mL in Exhibit P2, PW8 said that she was not in a position to comment as the level of drugs found in the urine was dependent on several factors such as how much drugs one had consumed, when the drug was consumed and how much water intake that person had taken^{[note: 87]}.

PW9 – Senior SSG Lim Wan Xin

52 PW9 had been working as a CNB officer for 9 years and she was the investigating officer in charge of this case^{[note: 88]}. PW9 took over the investigation of the Accused’s case after he was arrested on 11 May 2019^{[note: 89]}.

53 PW9 confirmed that she had applied to the Criminal Records Officer for a copy of the Accused’s Memorandum of Certified Previous Conviction which was tendered by the Prosecution and marked as Exhibit P7^{[note: 90]}.

54 I also noted that when the Prosecution attempted to admit the Accused’s cautioned statement in relation to the charge that he was facing, the Accused had objected to his statement being admitted because “he was just merely asked to sign on all documents and [he] was not in [his] right frame of mind”^{[note: 91]}. The Accused had also alleged that his cautioned statement was not recorded properly as it was not read and explained to him and that PW9 had merely told him to append his signature at the relevant places^{[note: 92]}. As such, I had no alternative but to hold an ancillary hearing to determine the admissibility of the Accused’s cautioned statement. At the end of the ancillary hearing, I was of the view that PW9 had explained the charge and the Notice of Warning to the Accused before the recording of his statement and the Accused had given his cautioned statement to PW9 voluntarily without any threat, inducement or promise. I therefore ruled that the Accused’s cautioned statement (‘Exhibit P8”) was admissible for the purposes of the trial^{[note: 93]}.

55 The Accused had stated in Exhibit P8 that “I would like to say what I have mentioned in my 1^st charge. I also like to add that what I have said in my 1^st charge is the truth. I take drugs because I don’t have a choice. That is all.”^{[note: 94]}

56 I also noted that the 1^st charge against the Accused was for the consumption of 2-[1-(4-Fluorobutyl)-1H-indazol-3-carboxamido]-3,3-dimenthylbutanoic acid and its hexanoic acid isomers and their respective fluoro positional isomers in the butyl group without any authorisation and the Accused had stated in his cautioned statement for the 1^st charge (Exhibit P10) that “I got a heart problem. My family is separated. I got severe heart problem. I can’t ever do work. I am alone and loniless is killing me. And I got nobody to turn to. Without a choice, that is why I turn to the wrong friends for help and ended up doing the wrong things. I wish to go back to my family in Johor Bahru as soon as possible. That is all”^{[note: 95]}.

57 PW9 also confirmed that for Exhibit P10, she had read the 1^st charge to the Accused and he had appended his signature after acknowledging the charge. PW9 then proceeded to serve the Notice of Warning on the Accused and she then went on to record his cautioned statement. PW9 testified that the Accused did not have any request or complaints during the recording of Exhibit P10. PW9 also said that she did read the Accused’s cautioned statement back to him and invited him to make any additional correction or amendment to his statement, but the Accused had declined to do so^{[note: 96]}.

58 I noted that PW9 had recorded both Exhibits P8 and P10 at the Woodlands lockup interview room on the same day on 18 October 2019 and Exhibit P10 was recorded at 2136 hours while Exhibit P8 was recorded at 2205 hours.

59 PW9 confirmed that Exhibit P13 was a photograph which showed all the items that were seized from the Accused on the day of his arrest on 11 May 2019. The items in Exhibit P13 were also the same items which were listed in Exhibit P12^{[note: 97]}. PW9 also said that the 3 items that were seized by the police were sent to HSA for testing for drugs and HSA did prepare a report accordingly^{[note: 98]}. PW9 also confirmed that the police had handed to her only 3 items which were seized from the Accused on the day of his arrest^{[note: 99]}.

60 I also noted that the Prosecution had tendered the conditioned statement of Senior SSG Nurdilla (Exhibit P9), who was one of the officers who was involved in the arrest of the Accused on 11 May 2019, as Senior SSG Nurdilla was on long maternity and she was unable to attend court for the hearing and the Accused had not objected to the conditioned statement of Senior SSG Nurdilla which was tendered by the Prosecution^{[note: 100]}.

PW10 – Dr Chia Siang Chew

61 PW10 was a cardiologist from Changi General Hospital and he had prepared Exhibits P5 and P6. PW10 testified that the Accused was a patient at the cardiology clinic at Changi General Hospital and Exhibit P5 contained a list of all the medications which had been prescribed by the doctors at the cardiology clinic at Changi General Hospital when he went for follow up and when he was warded at Changi General Hospital^{[note: 101]}. PW10 also testified that the Accused had a chronic history of ischemic heart disease. He had a bypass done before and stenting to his left anterior descending artery and distal right coronary artery but with recurrent blockages, PW10 testified that the Accused was on the list of medications as stated in Exhibits P5 and P6 for his heart conditions which included blood thinners, cholesterol medications, Nitrix to relieve his chest pain as well as Ivabradine which slowed down his heart rate so that his heart condition could be optimised^{[note: 102]}. PW10 also testified that to the best of his knowledge, none of the medications in Exhibits P5 and P6 contained ingredients of methamphetamine^{[note: 103]}.

PW11 – Lee Yan Kai

62 PW11 was an analyst with HSA and he had been working with HSA since 2009^{[note: 104]}. PW11 was the analyst who had analysed the physical Exhibit P14 and he had also issued his certificate for the results of his findings^{[note: 105]}.

63 PW11 testified that he had received 3 items from the police for testing and these included a Butterfly packet containing vegetable matters, a packet of rolling paper and a paper roll that contained vegetable matter^{[note: 106]}. PW11 said that he only tested the vegetable matter and he did not test or analyse the packet of rolling paper^{[note: 107]}.

64 PW11 said that he found that the Butterfly packet and the paper roll contained not less than 8.54 grammes of vegetable matter. On analysis, he found that the vegetable matter contained not less than 8.54 grammes of vegetable matter and it was found to contain (i) 4-fluoro-MDMB-BINACA or its fluoro positional isomer in the butyl group, and (ii) 5-chloro-APINACA or its chloro positional isomer in the pentyl group. 4-fluoro-MDMB-BINACA and its fluoro positional isomer in the butyl group were Class A Controlled Drugs but 5-chloro-APINACA and its chloro positional isomer in the pentyl group were not controlled drugs^{[note: 108]}. PW11 had analysed the vegetable matter in the Butterfly packet and the paper roll separately and he had detected both drugs in both the samples^{[note: 109]}.

65 PW11 said that 4-fluoro-MDMB-BINACA was a type of synthetic cannabinoid^{[note: 110]}. PW11 also said that the technique that he used to test for the drugs in the present case could also be used for other drugs such as methamphetamine and PW11 did not detect methamphetamine in the vegetable matter in either the Butterfly packet or the rolled paper^{[note: 111]}.

66 During cross-examination, PW11 said that he had come across cases where methamphetamine or erimin had been detected in BINACA or fluora positional isomer drugs, but such cases were not common. PW11 also clarified that for the present case, he did not detect methamphetamine in any of the seized items that he had analysed^{[note: 112]}.

PW12 – Senior SSG Muhammad Hafidh bin Ramli

67 PW12 was a Senior Investigation Officer attached to the Investigation Division of the Central Narcotics Bureau^{[note: 113]} and he was the statement recorder for the Accused in relation to one of the charges. PW12 acknowledged that in Exhibit P12, it was recorded that PW1 had informed PW12 of the Accused’s arrest for possession and consumption of drugs^{[note: 114]}. PW12 said that he was informed of the Accused’s arrest because this was a police referral case. PW12 said that CNB would take on cases whereby an accused was arrested for drug offences. In the present case, PW12 was briefed by PW1 and he acknowledged the brief^{[note: 115]}.

68 PW12 clarified that for cases of such nature, after CNB was informed of the case, they would usually wait for the police to do the necessary such as testing the urine of the accused. Once the police had done their job, either PW12 or one of his team members would take over the case from the police. In the present case, PW9 was the officer who had taken over the Accused’s case from the police^{[note: 116]}.

69 In the present case, PW12 also confirmed that he had received the items that were seized from the Accused from the police and he had tallied the items before taking over the seized items from the police^{[note: 117]}. PW12 also clarified that he had only received 3 and not 4 items from the police^{[note: 118]}.

70 At the close of the Prosecution’s case, I was of the view that the Prosecution had made out a prima facie case against the Accused in respect of the proceeded charge and I thereby called on the Accused to enter his defence.

Defence’s evidence and exhibits

71 The Accused had decided to take the stand to give his evidence in support of his defence after I had called for his defence. Other than the Accused himself, the Accused did not call any other witness to give evidence on his behalf.

72 In addition, the Accused had also tendered one exhibit in support of his defence:

No.	Exhibit	Marking given to exhibit
1	Certificate under section 16 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) by Lee Yan Kai with Lab No. ID-1932-01021-001	D1

73 The Accused’s evidence could be summarised as follows:

DW1 – the Accused

74 The Accused testified that on the day in question, he was sitting at the void deck of Block 3 Marsiling Road when he was approached by some police officers who had asked for his NRIC and to go through his belongings^{[note: 119]}. After searching his belongings, the police officers returned his belongings to the Accused and they went off^{[note: 120]}.

75 After the police officers had gone off, the Accused started to roll a stick of tobacco to smoke but he was stopped from doing so by a police officer who had returned. The police officer told the Accused that he wanted to bring the Accused back to the police station for investigation. The police officer also told the Accused to place the rolled-up tobacco stick, the “mushroom” packet, and the rolling paper into a plastic bag. The Accused was subsequently brought back to Woodlands Police Station^{[note: 121]}.

76 The Accused said that he was arrested at 2 pm. When the Accused was brought back to Woodland Police Station, he was placed in a holding room. While the Accused was in the holding room, he became fearful and he started having shortness of breath and he was taken to the hospital for treatment^{[note: 122]}.

77 After the Accused was examined by a doctor at the hospital, he was taken back to Woodlands Police Station at around 6 am and he was placed back in the lockup. Later, the police took his urine sample^{[note: 123]}.

78 On the morning of 12 May 2019, a Malay CNB officer met up with the Accused and he identified himself as an investigation officer and he recorded a statement from the Accused^{[note: 124]}. After the Accused had his statement taken, he was released on bail until he was re-arrested on 18 September 2019^{[note: 125]}. On 18 September 2019, the police took his urine sample and he was taken to Court the next day where he was charged with consumption of a NPS called mushroom and offered bail of $15,000^{[note: 126]}.

79 As regards to the present charge, the Accused said that he had been consuming mushroom for the past 3 ½ years but he denied taking methamphetamine^{[note: 127]}. The Accused said that he did not know that the mushroom that he was smoking had contained methamphetamine. The Accused also said that he had learnt from an inmate in prison who manufactured mushroom that it could be tainted with methamphetamine, The Accused also said that PW12 had confirmed that it was possible for mushroom to be tainted/laced with methamphetamine. The Accused’s position was that he had knowingly smoked mushroom, but he did not know that it was mixed with methamphetamine^{[note: 128]}.

80 During cross-examination, the Accused testified that:

(a) He knew that the tobacco that was seized from him by the police on 11 May 2019 had contained mushroom^{[note: 129]} and he thought that the tobacco had also been laced with methamphetamine but he did not know who had mixed the methamphetamine into the tobacco^{[note: 130]}.

(b) The Accused also said that PW9 did not read the charges and she also did not administer the Notice of Warning to him when she was recording his statement in Exhibit P8 and P10^{[note: 131]}.

81 As pointed out by the Prosecution, I noted that the Accused did not state in both his statements in Exhibits P8 and P10 that he had unknowingly taken methamphetamine as the tobacco mushroom that he had been smoking had been laced/tainted with methamphetamine^{[note: 132]}. I also noted in Exhibits P8 and P10, the Accused had admitted that he had taken the drugs in both the charges for personal reasons including his heart problem^{[note: 133]}.

Prosecution’s Case^{[note: 134]}

Introduction

82 The Accused had claimed trial to a charge under section 8(b)(ii) p/u section 33A(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) for consumption of methamphetamine.

83 The Prosecution’s position was that the presumption under section 22 of the MDA was applicable. The urine procurement process and urine tests were conducted in accordance with the statutory requirement under the MDA. This was not disputed by the Accused.

84 The Prosecution submitted that the Accused ought to be convicted of the charge. First, the Accused had voluntarily confessed to consuming methamphetamine. Second, the Accused’s spiking defence, that he had unknowingly consumed methamphetamine through smoking tobacco, was insufficient to rebut the statutory presumption under section 22 of the MDA.

The law and elements of the charge

A. Relevant offence-creating provision

85 Section 8(b)(ii) of the MDA read as follows:

“Except as authorised by this Act, it shall be an offence for a person to smoke, administer to himself or otherwise consume a specified drug.”

86 The Prosecution submitted that they must prove the following in order to satisfy the court that the charge against the Accused was made out^{[note: 135]}:

(a) The Accused had consumed the specific drug;

(b) The Accused knew that he was consuming the specified drug and had intended to do so; and

(c) The Accused was not authorised under the MDA or the Regulations made thereunder to consume the specified drug.

87 For the Accused to be punished under section 33A(2) of the MDA, it was necessary to show that the Accused was previously convicted of an offence under the same section for consumption of a specified drug.

B. The presumption under section 22 of the MDA

88 Section 22 of the MDA stated:

“If any controlled drug is found in the urine of a person as a result of both urine tests conducted under section 31(4)(b), he shall be presumed, until the contrary is proved, to have consumed that controlled drug in contravention of section 8(b).”

89 The Prosecution submitted that the operation of section 22 of the MDA was summarised at [43] – [44] in Public Prosecutor v Kenneth Choo Chee Fye [2017] SGDC 207 (“Kenneth Choo”):

“s 22 has since been interpreted as giving rise to a presumption that both the requisite mens rea and actus reus for drug consumption exist once the controlled drug is found in the urine as a result of both urine tests conducted under section 31(4)(b). The burden of proof falls on the accused to disprove either element on a balance of probabilities. It is not sufficient to raise a reasonable doubt. A bare denial or a declaration of innocence, without any explanation or mention of his defence, would be manifestly inadequate in rebutting the presumption: Cheng Siah Johnson v Public Prosecutor [2002] 1 SLR(R) 839”

[Emphasis added in bold]

90 In Cheng Siah Johnson v Public Prosecutor [2002] 1 SLR(R) 839 (“Cheng Siah Johnson”) at [15], the High Court had observed that the presumption could not be so easily rebutted based only on the offender’s bare allegation. Instead, in the absence of any other credible supporting evidence, a judge would be obliged to approach the defence with greater caution and circumspection than usual.

91 If the Accused was unable to rebut the presumption on a balance of probabilities, he would be found guilty of the offence under section 8(b)(ii) of the MDA.

The Prosecution’s case

92 The Prosecution submitted that the Accused’s unauthorised consumption of methamphetamine had given rise to the methamphetamine detected in his urine samples. This was supported by a confession, which the Accused had given voluntarily. Alternatively, the section 22 MDA presumption, which was applicable, was not rebutted by the Accused on a balance of probabilities.

93 It was not disputed that the Accused was not authorised under the MDA or Regulations made thereunder to consume methamphetamine. It was also not disputed that the Accused was liable for enhanced punishment under section 33A(1) of the MDA.

A. Evidence led at trial

94 The Accused was arrested by PW1, PW2 and PW3 at the void deck of Blk 3, Marsiling Road, Singapore on 11 May 2019 at around 2.00 pm^{[note: 136]}, pursuant to a phone call made by a member of the public. While at the scene, some items, amongst them a packet containing vegetable matter, was seized from the Accused^{[note: 137]}. The packet containing vegetable matter was subsequently admitted into evidence as Exhibit P14.

95 Following his arrest, the Accused was escorted to Woodlands Police Divisional Headquarters (“Woodlands HQ”). While at Woodlands HQ, the Accused required medical attention and he was escorted by PW1 and PW2 to Khoo Teck Puat Hospital (“KTPH”) at around 6.00 pm on that same day.

96 When the Accused was discharged from KTPH back to Woodlands HQ, PW4 procured the Accused’s urine sample on 12 May 2019 at around 12.10 am^{[note: 138]}, at the charge office’s toilet^{[note: 139]}. PW5 then conducted the instant urine test (“IUT”) on a portion of the urine sample. PW5 also sealed the urine samples for analysis by HSA.

97 The urine samples were then delivered by PW6 to HSA the following day. At HSA, the urine samples were analysed by PW7 and PW8, who were HSA analysts with the analytical toxicology laboratory of the HSA. PW7 testified as to how the urine samples were inspected when submitted to HSA for analysis^{[note: 140]}. PW7 also conducted the analysis in relation to the urine sample, which tested positive for methamphetamine^{[note: 141]}, and she issued the certificate under section 16 of the MDA accordingly^{[note: 142]}.

98 Similarly, PW8 testified that the urine samples tested positive for methamphetamine^{[note: 143]}, and she had also issued the certificate under section 16 of the MDA^{[note: 144]}.

The Defence’s case

A. The Accused had consumed tobacco that was spiked with methamphetamine

99 The Accused’s defence at trial was that his urine tested positive as a result of unknowing consumption. The Accused had claimed that the tobacco which he was smoking prior to his arrest was spiked with methamphetamine.

The Accused ought to be convicted of the offence of drug consumption

A. The Accused had confessed to consuming methamphetamine

100 The Prosecution submitted that the Accused had confessed to consuming methamphetamine in his cautioned statement, which was admitted as Exhibit P8. In Exhibit P8, the Accused had stated:

“I would like to say what I have mentioned in my 1^st charge. I also like to add that what I have said in my 1^st charge is the truth. I take drugs because I don’t have a choice. That is all”.

101 As the Accused had referred to the cautioned statement for the first charge, the cautioned statement for the first charge was also admitted as Exhibit P10. Exhibit P10 was a confession:

“I got a heart problem. My family is separated. I got severe heart problem. I can’t ever do work. I am alone and loniless [sic] is killing me. And I got nobody to turn to. Without a choice, that is why I turn to the wrong friends for help and ended up doing the wrong things. I wish to go back to my family in Johor Bahru as soon as possible. That is all.”

102 The Prosecution submitted that this court could and should convict the Accused based on his confession given.

1. The law on confession evidence

103 The Prosecution submitted that this court should convict the Accused on the basis of his confession. While the Accused had attempted to challenge his confession at trial, the confession could still be given full weight. In Syed Abdul Mutalip bin Syed Sidek v Public Prosecutor [2002] 1 SLR(R) 1166, the Court of Appeal had stated at [21] – [22]:

“An accused person who retracts during his trial a confession he made earlier on can still be convicted on the basis of the confession if the court is satisfied that it was made voluntarily and that it was true.

…

While the court should consider any explanation that the accused person gives for his change of position, the explanation can be rejected if it is found to be untrue.”

104 The High Court in Jagatheesan s/o Krishnasamy v Public Prosecutor [2006] 4 SLR(R) 45 added at [87] that “if the explanation for the retraction is unsatisfactory then this may cast doubt on the entire evidence of that witness”.

105 The Prosecution submitted that the Accused’s confession in Exhibit P8 was made voluntarily and this court ought to accord full weight to his confession.

2. The confession, Exhibit P8, was made voluntarily

106 The Prosecution submitted that Exhibit P8 was correctly admitted into evidence. The Prosecution was of the view that there was no evidence of any threat, inducement or promise. The Accused did not dispute that Exhibit P8 was recorded from him, but he took issue with the way it was recorded^{[note: 145]}. The Prosecution noted that the only questions posed by the Accused which were remotely relevant to the issue of admissibility were:

(a) That PW9 had allegedly said “I’m going to send you on a LT2 because CNB got power (sic)”^{[note: 146]} when she recorded the Accused’s statement;

(b) That PW9 had asked him to sign on the charge and notice of warning on the first and second page of P8 without explaining the charge and the warning^{[note: 147]}; and

(c) That the Accused had written something in the statement, which was not reflected in the statement^{[note: 148]}.

107 The Prosecution submitted that it was plain even if the allegations were true, none of the allegation met the threshold of threat, inducement or promise under section 258(3) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”):

(a) What PW9 had allegedly said to the Accused was hardly threatening and was far from oppressive;

(b) The failure to comply with the procedure under section 23 of the CPC for recording a cautioned statement did not affect admissibility, provided that it passed the test of voluntariness^{[note: 149]};

(c) Inaccurate recording would only affect the weight to be accorded to the statement and not its admissibility.

108 The Prosecution was of the view that not only were Exhibits P8 and P10 correctly admitted into evidence, full weight ought to be accorded to the Accused’s confessions.

3. Full weight ought to be accorded to the Accused’s confession

109 The Prosecution submitted that Exhibit P8 was validly admitted after a voir dire. Therefore, full weight should be accorded to Exhibit P8. In this regard, PW9, the statement recorder, had given clear and unequivocal evidence which showed that Exhibit P8, was accurately recorded.

110 PW9 had testified that during statement recording, the Accused was normal and able to understand instructions^{[note: 150]}. PW9 had read the contents of the charge to the Accused, who signed on the page after he acknowledged that he understood the charge^{[note: 151]}. PW9 then administered the warning to the Accused, who signed on P8 after he understood the warning^{[note: 152]}. Before recording the Accused’s statement, PW9 also ensured that the Accused was fit for statement recording^{[note: 153]}. PW9 then proceeded to record the Accused’s statement, read the statement back to the Accused and invited him to make any amendments^{[note: 154]}. The Accused declined to make any amendments and signed on the cautioned statement^{[note: 155]}.

111 The Prosecution submitted that PW9’s testimony was unshaken during cross-examination. In contrast, the Accused’s evidence was internally inconsistent in these key aspects:

(a) The Accused had initially claimed that the statement was recorded while he was high^{[note: 156]}. However, the Accused subsequently confirmed that he was “in a proper state of mind”^{[note: 157]}.

(b) The Accused had given evidence that “nothing was explained to [him], nothing was read out to [him]”^{[note: 158]}. However, the Accused later admitted that he was explicitly warned to state his defence^{[note: 159]}. He had testified that when his cautioned statement was being recorded, he was told “if I have anything to say, it’s best for me to say it now and I may not be allowed to say it once the case goes to Court”^{[note: 160]}.

112 The Prosecution also submitted that the Accused’s evidence was also illogical:

(a) The Accused had claimed that he had written in the statement that he “was unable to understand the document and that he was being asked to sign”^{[note: 161]}. Given that he was warned to state his defence^{[note: 162]}, and his insistent at trial that he had never consumed methamphetamine intentionally, it was incredible that the Accused did not take the opportunity to deny the offence. It was also open to the Accused to have refused to sign or left the statement blank.

(b) The Accused had accepted that the handwritten portion on the third page of Exhibit P8, i.e. the confession, was his statement^{[note: 163]}. The Accused also did not dispute the contents of the cautioned statement in Exhibit P8^{[note: 164]}.

113 The Prosecution also noted that the Accused did not raise any objections with regard to Exhibit P10, which was another cautioned statement that was admitted into evidence. Exhibit P10 was recorded a mere 29 minutes before Exhibit P8 and there was no ostensible reason why the recording of Exhibit P8 would differ so vastly from that of Exhibit P10.

114 Given all these, the Prosecution submitted that the irresistible inference was that Exhibit P8 was an admission that was voluntarily given and accurately recorded. Full weight should therefore be accorded to Exhibit P8. On that basis, the Prosecution submitted that the Accused ought to be convicted of the charge.

The Accused had failed to rebut the presumption under section 22 of the MDA

115 In addition to the Accused’s confession, which in and of itself was adequate grounds for a conviction, the Prosecution submitted in the alternative that the Accused had failed to rebut the statutory presumption and should therefore be convicted of the charge.

The section 22 MDA presumption was applicable in the present case

116 The Prosecution submitted that the section 22 MDA presumption had arisen as both urine tests conducted under section 31(4)(b) of the MDA had shown that the Accused’s urine had contained methamphetamine.

117 Regulation 3 of the Misuse of Drugs (Urine Specimens and Urine Tests Regulations) (“MDA Regulations”) provided that the urine procurement process should be done in accordance with the First Schedule of the MDA Regulations.

118 The Prosecution submitted that there were no irregularities with the urine procurement process and the urine samples were procured in accordance with the MDA Regulations^{[note: 165]}:

(a) PW4 had verified the Accused’s particulars^{[note: 166]} and had instructed the Accused to wash his hands^{[note: 167]};

(b) The Accused was instructed to choose a red bottle out of 10 red bottles from a box and 2 blue bottles out of 20 blue bottles from another box^{[note: 168]}. All of the bottles were pre-packed and sealed^{[note: 169]}.

(c) PW4 then instructed the Accused to open the packaging of the red bottle and 2 blue bottles that he had selected^{[note: 170]}.

(d) The Accused was then directed to urinate into the red bottle until there was sufficient urine and to close the bottle thereafter^{[note: 171]}. The Accused then proceeded to urinate into the red bottle in PW4’s presence^{[note: 172]}. The Accused then hand the bottle over to PW4, who swirled the urine^{[note: 173]}.

(e) After swirling the urine in the red bottle, PW4 returned the bottle to the Accused. As there was sufficient urine in the red bottle, he directed the Accused to transfer some urine from the red bottle into the 2 blue bottles^{[note: 174]}. After transferring the urine, the Accused closed all three bottles^{[note: 175]}.

(f) While waiting for the IUT, the two blue bottles were sealed and placed into polymer bags, which were returned to the Accused^{[note: 176]};

(g) The Accused was then was escorted to the lockup by an auxiliary police officer ^{[note: 177]}while waiting for the IUT to be administered^{[note: 178]}.

(h) The IUT was subsequently conducted on 12 May 2019 at 6.17 am^{[note: 179]}. Before doing so, PW5 verified the Accused’s personal particulars and the Accused provided confirmation of the same^{[note: 180]}.

(i) The remaining urine specimen in the red bottle was used for the IUT and discarded thereafter^{[note: 181]}. During this process, the Accused was seated in front of PW5^{[note: 182]}.

(j) After the IUT results were ready, PW5 then sealed the two blue bottles in the Accused’s presence for the purpose of analysis by HSA. In this regard, PW5 did the following:

(i) The Accused checked his name and NRIC on the HSA labels and signed on the labels after confirming the details to be correct^{[note: 183]};

(ii) PW5 took the polymer bag containing the two blue bottles, cut it open, and retrieved the two blue bottles^{[note: 184]};

(iii) PW5 then pasted the signed labels onto the two blue bottles^{[note: 185]};

(iv) PW5 then asked the accused to deposit the two blue bottles into two separate sections of one metal box, which was secured by a padlock^{[note: 186]}.

(k) The urine samples were then securely transported to HSA for analysis by PW6, who testified to the following:

(i) On 13 May 2019 at around 9.30 am, PW6 prepared the summary sheets which tallied the urine samples collected in the metal box^{[note: 187]};

(ii) The metal box was stored in a freezer, which was locked^{[note: 188]};

(iii) The metal box containing the urine samples were locked and could only be unlocked by HSA staff^{[note: 189]};

(iv) The metal box was delivered on 13 May 2019 to HSA^{[note: 190]};

(v) PW6 witnessed the metal box being unlocked by HSA staff, who retrieved the urine bottles contained in the metal container^{[note: 191]};

(vi) PW6 witnessed the HSA staff checking the urine samples to ensure that the names, signatures and identification numbers on the labels tallied with the summary sheet^{[note: 192]}.

119 The Accused did not dispute the propriety of the urine procurement process during the trial process. Further, the urine samples were in the Accused’s custody at all times and there was no evidence of contamination. The Accused had never disputed that the urine samples were his.

120 While the Accused asserted that he could not recall when he gave his urine and that he was “high” at the material time^{[note: 193]}, he did not even attempt to support his own theory that he was “high”. He did not question PW4 or PW5 on whether he was “high” at the material time.

121 In any event, the Prosecution noted that both PW4 and PW5 had testified that the Accused was responsive during the urine procurement process:

(a) PW4 had testified that during urine procurement, the Accused was responsive and could follow instructions^{[note: 194]}. The Accused had no complaints or requests during the process and there were no irregularities^{[note: 195]}. PW4 maintained that the Accused was “normal, responsive” during the urine procurement process.

(b) PW5 had testified that during the IUT, the Accused was similarly responsive and followed PW5’s instructions^{[note: 196]}. There were also no complaints by the Accused^{[note: 197]}.

122 Therefore, the only question which arose was whether the Accused had proven, on a balance of probabilities, that the methamphetamine found in his urine arose from the consumption of Exhibit P14, which was allegedly spiked with methamphetamine.

An adverse inference should be drawn against the Accused for failing to raise his defence in his cautioned statement

123 The Prosecution submitted that it was trite law, as stipulated in section 261 of the CPC that the court could draw such appropriate inferences on the failure of accused persons, upon being charged with an offence, to state facts which he could reasonably be expected to mention when so questioned. The Prosecution submitted that this court should draw an adverse inference against the Accused for not stating his defence in his cautioned statement.

124 The Prosecution submitted that in the case of Kwek Seow Hock v Public Prosecutor [2011] 3 SLR 157, the Court of Appeal had held at [19]:

“If, however, the fact or circumstance that is withheld will exculpate the accused from an offence, a court may justifiably infer that it is an afterthought and untrue, unless the court is persuaded that there are good reasons for the omission to mention that exculpatory fact or circumstance. This accords with common sense - if an accused believes he is not guilty of an offence that he might be charged with, he would be expected to disclose why he has such a belief. For a self-confessed trafficker like the Appellant, consumption would be an exculpatory fact. Furthermore, an exculpatory fact or circumstance has more credibility if disclosed to an investigating officer at the earliest opportunity after arrest. Thus, in Chou Kooi Pang vPP [1998] 3 SLR(R) 205, this court (without referring to Lim Lye Huat Benny ([10] supra)) held, in regard to one of the appellants, that his "failure to mention a material part of his defence at an earlier stage meant that it was less likely to be believed" (at [30])”

[emphasis added]

125 The Prosecution submitted that the Court could draw any appropriate inferences, including an inference that the failure to state a defence arose from a realisation of guilt: see the Court of Appeal’s pronouncement in Pang Siew Fum and another v Public Prosecutor [2011] 2 SLR 635 at [71] that:

“It is trite law that the court may draw adverse inferences from an accused person's omission to mention his/her defence on arrest - including the fact that such silence arose from a realisation of guilt.”

126 In the present case, the Prosecution pointed out that the Accused had testified that when his cautioned statement was being recorded, he was told “if I have anything to say, it’s best for me to say it now and I may not be allowed to say it once the case goes to Court”^{[note: 198]}. Not only did the Accused fail to state his defence, he instead provided a confession. This was clearly grounds for this Honourable court to draw an adverse inference against the Accused.

127 The Prosecution submitted that it was clear that the Accused was an unreliable witness who was unworthy or credit. The Prosecution was also of the view that the “defence” that was advanced at trial was an untenable one.

The Accused’s defence was untenable

128 The Prosecution noted that the Accused’s defence against the charge was that he had consumed tobacco (admitted as Exhibit P14) which was spiked with methamphetamine. In this regard, the Prosecution had called PW11, who had conducted the analysis in relation to Exhibit P14. PW11 had testified that no methamphetamine was present in Exhibit P14^{[note: 199]}. PW11 also confirmed that the method of analysis adopted by him was capable of detecting controlled drugs like methamphetamine^{[note: 200]}. The Prosecution submitted that the result of the analysis had put an end to the Accused’s feeble attempt to attribute the presence of methamphetamine in his urine to the consumption of Exhibit P14.

129 More pertinently, the Accused was unable to show that the consumption of Exhibit P14 had given rise to methamphetamine in his urine:

(a) He did not know who had spiked Exhibit P14 with methamphetamine^{[note: 201]};

(b) He did not know if Exhibit P14 contained methamphetamine^{[note: 202]}; and

(c) Exhibit P14 was not the reason why his urine tested positive for methamphetamine^{[note: 203]}.

130 Further, the Accused had candidly admitted that his defence was simply “a thought that came to [him]”^{[note: 204]}. The Prosecutor was of the view that the Accused’s defence was therefore a non-starter and the section 22 presumption was unrebutted.

In any event, the accused’s defence is inadequate to rebut the section 22 MDA presumption on a balance of probabilities

131 The Prosecution submitted that the Accused’s evidence fell short of the standard of proof required to rebut the statutory presumption as laid down in Kenneth Choo and Cheng Siah Johnson. The Prosecution pointed out that the Accused’s defence was based solely on his own testimony, which was proven at trial to be false and flimsy.

132 The Prosecution was of the view that defences premised on such shaky grounds were doomed to fail. For example, in Public Prosecutor v Poh Teck Khoon [2012] SGDC 17, the offender had claimed trial to a charge of drug consumption for consumption of the drug, “ecstasy”. The offender claimed that he had consumed an alcoholic beverage at a KTV which was spiked with “ecstasy”. In rejecting the accused’s defence, the learned District Judge stated at [25]:

“I accepted the submission of the prosecution and found that the presumption had not been rebutted by the defence. For the defence merely to assert that the defendant had consumed drinks that possibly could have been spiked would be insufficient to rebut the presumption. It was speculative and did not amount to sufficient proof that the drinks were spiked.”

133 Indeed, for a spiking defence to succeed, something more than a mere assertion was required:

(a) In Public Prosecutor v Tan Chui Yun Joselyn [2003] 2 SLR(R) 85, the accused had gone for a prescheduled police interview on 3 May 2002, and her urine was found to contain a controlled drug on that day. Her defence was two-fold. First, it was extremely unlikely that she would knowingly consume drugs, knowing full well that she was scheduled for an interview with a police officer whom she knew to be from an antidrug squad: at [5]. Second, her drink could have been spiked when she was at a pub called Madam Wong’s the night before, as she had accepted a drink from a man in a white shirt. Her account was corroborated by another witness who had seen a man in a white shirt offer the accused a drink: at [6]. The High Court affirmed the principle in Cheng Siah Johnson and held that the accused had met the threshold to rebut the presumptions. The Defence “did not merely assert a suspicion that [the accused’s] drink had been spiked” but bolstered this with evidence: at [16] and [20].

(b) In Public Prosecutor v Tan Loon Lui [2003] 2 SLR(R) 216, the accused called a witness (“Lim”) who admitted to spiking the accused’s drink prior to the accused’s arrest. Lim said he had put the drugs into five jugs of beer, which he then used to pour the accused a drink. There was no evidence that Lim was lying or had been paid by the accused to take the “fall”. The High Court upheld the trial judge’s findings and found that there was “concrete evidence that the accused’s drink was spiked”: at [22].

134 In the present case, the Prosecution submitted that unlike the above two cases, the Accused did not give any evidence in support of his claim. As such, there was no doubt that the Accused had failed to rebut the section 22 MDA presumption.

Conclusion

135 For the above reasons given, the Prosecution urged me to convict the Accused of the charge.

Defence Case^{[note: 205]}

136 The Accused accepted that the section 22 presumption was applicable to his case. However, the Accused submitted that he had rebutted the presumption on a balance of probabilities.

137 The Accused had submitted the following:

(a) The Accused was arrested on 11 May 2019 and a packet of rolled “Butterfly” tobacco containing fragmented brown vegetable matter was seized from him from the day of his arrest.

(b) The Accused had admitted in his Submissions that the fragmented brown vegetable matter contained “mushroom”. The Accused also said that he had been smoking mushroom since 2016 even though he was still under urine test supervision at Jurong Police Station. According to the Accused, mushroom was not a classified as a Class A drug in 2016 and it was only classified as a Class A drug in 2018 or 2019.

(c) The Accused said that he smoked mushroom as an alternative to cigarettes. The Accused would purchase 2 packets of mushroom on each occasion and this would last him 3 to 4 days.

(d) The Accused had taken mushroom because he was suffering from physical pain due to his heart problem and his psychiatric problem. The other reason why the Accused had smoked mushroom was because he was separated from his family in Malaysia and he missed his family in Malaysia.

(e) In the present case, the preliminary urine testing and the HSA confirmatory test showed that other than methamphetamine, there were other drugs such as NPS and benzodiazepine which were found in the Accused’s urine^{[note: 206]}. The Accused was of the view that this was proof that the mushroom drug that he had taken was tainted with methamphetamine. This was also confirmed by PW11 who had testified that he had come across a small number of cases where he had found both NPS and methamphetamine in the samples that he had analysed.

(f) The Accused also submitted that Exhibit P2 also supported his position that the mushroom drug that he had been taking was tainted by methamphetamine because the level of methamphetamine that was found in his urine was a very low level (1816.96 ng/ml) and the usual results for someone who had tested positive for methamphetamine was usually much higher.

(g) The Accused had noted that only NPS was found in the packet of vegetable matter that was seized from him and no methamphetamine was found in the said packet. The Accused’s position was that the mushroom that he had smoked which was tainted with methamphetamine must be from the previous packets of vegetable matter that he had smoked.

My findings and decision

The law and elements of the charge

138 In the present case, the Accused faced 1 charge under section 8(b)(ii) of the Misuse of Drugs Act, for the consumption of methamphetamine, which was a specified drug under the Fourth Schedule of the said Act, on or about 11 May 2019, without any authorisation under the said Act or the regulations made there under and punishable under section 33A(2) of the said Act.

139 I agreed with the Prosecution that the burden was on the Prosecution to prove beyond a reasonable doubt that:

(a) The Accused had consumed methamphetamine;

(b) The Accused knew that he was consuming the specified drug and he intended to do so;

(c) The Accused was not authorised to consume the specified drug; and

(d) With regard to the punishment under section 33A(2), the Accused was previously convicted of an offence under the same section for consumption of a specified drug.

The urine testing procedure and presumption in section 22

140 On the issue of the presumption under section 22 of the Misuse of Drug Act provided that:

“If any controlled drug is found in the urine of a person as a result of both urine tests conducted under section 31(4)(b), he shall be presumed, until the contrary is proved, to have consumed that controlled drug in contravention of section 8(b).”

141 Section 31 of the Misuse of Drug Act also provided as follows:

Urine tests

31.—(1) Any officer of the Bureau, immigration officer or police officer not below the rank of sergeant may, if he reasonably suspects any person to have committed an offence under section 8(b), require that person to provide a specimen of his urine for urine tests to be conducted under this section…

(4) A specimen of urine provided under this section shall be divided into 3 parts and dealt with, in such manner and in accordance with such procedure as may be prescribed, as follows:

(a) a preliminary urine test shall be conducted on one part of the urine specimen; and

(b) each of the remaining 2 parts of the urine specimen shall be marked and sealed and a urine test shall be conducted on each part by a different person, being either an analyst employed by the Health Sciences Authority or any person as the Minister may, by notification in the Gazette, appoint for such purpose.

142 Steven Chong J had discussed the issue of the presumption under section 22 of the Misuse of Drugs Act as well as the urine testing procedure under section 31(4) of the Misuse of Drugs Act in the case of Lim Boon Keong v Public Prosecutor [2010] SGHC 179. Steven Chong J had made the following comments at [21]:

“The urine testing procedure in s 31(4)(b) and the presumption in ss 16 and 22

The requirements of s 31(4)(b)

21 I first consider the urine testing procedure in s 31(4)(b) and the presumption in s 22 which it is related to. Section 22 of the Act provides that:

Presumption relating to urine test

22. If any controlled drug is found in the urine of a person as a result of both urine tests conducted under section 31(4)( b), he shall be presumed, until the contrary is proved, to have consumed that controlled drug in contravention of section 8(b).

Section 31(4) of the Act provides that:

Urine tests

31. —(4) A specimen of urine provided under this section shall be divided into 3 parts and dealt with, in such manner and in accordance with such procedure as may be prescribed, as follows:

(a) a preliminary urine test shall be conducted on one part of the urine specimen; and

(b) each of the remaining 2 parts of the urine specimen shall be marked and sealed and a urine test shall be conducted on each part by a different person, being either an analyst employed by the Health Sciences Authority or any person as the Minister may, by notification in the Gazette, appoint for such purpose…

37 … the following requirements in my judgment be satisfied before it can be presumed that a controlled drug is found in the urine of an accused person as a result of both urine tests conducted under s 31(4)(b).

38 First, both urine tests must be conducted by persons authorised by the Act, ie HSA analysts or gazetted persons. Tests conducted by any other person will not give rise to the s 22 presumption. For convenience I will express the following requirements with respect to the conduct of the tests by a HSA analyst, but the same requirements would apply to any person gazetted by the Minister for the purpose of s 31(4)(b).

39 Secondly, both urine tests must be conducted by the HSA analysts who eventually certify the presence of the controlled drug. It is obvious that, if the HSA analyst did not conduct the urine test which found the controlled drug, he or she cannot certify its presence. This requirement was not disputed by the parties; however, they disputed the meaning of the word “conduct”. On this point I am in general agreement with the district judge that it is both necessary and sufficient for the analyst to supervise the testing process. It is strictly not necessary for the analyst to physically conduct the actual tests. After some argument Mr Kumar also conceded this point. However, I cannot agree with the district judge’s holding that an analyst can be said to have conduct of the test if he or she only reviews the test results, as opposed to actually supervising the test process. The district judge appears to have reached this view after referring to the definition of the word “conduct” in the Reader’s Digest publication, Use The Right Word: Modern Guide To Synonyms And Related Words (1979) at p 428, as follows:

“stresses direction, leadership or supervision: to conduct an experiment; to conduct a survey. In a specific sense, with reference to music, it is used of a single person and means to direct the performance of a work: to conduct an opera.”

With respect, there seems nothing in this definition that supports the district judge’s finding that review qualifies as conduct. In any event there is in my view a vital difference between review and supervision. In reviewing the test results and related documentation, the analyst does not directly perform the tests, or even observe the performance of the tests. He or she is wholly dependent on what is recorded by the persons who actually performed or supervised the testing process. He or she is therefore unable to detect any error which is not recorded or which cannot be detected from such records. This, in my view, would be plainly insufficient to constitute compliance with s 31(4)(b), in light of its purpose as a safeguard against error. The analyst must actually supervise the test process before he or she can be said to have conducted it. I would add that, as a general rule, the degree of supervision must be such that the analyst is able to claim responsibility for the whole testing process and authorship of the certificate consequently issued. In more practical terms, I would say that, at the minimum, the parts of the testing process which are currently supervised ought to be supervised by an analyst, and in particular the analyst who eventually certifies the presence of the controlled drug.

40 Thirdly, the entire conduct of both urine tests must be done independently of each other. This means that the personnel involved in the testing of one urine sample cannot be involved in any way at all in the testing of the other urine sample. This applies equally to the actual physical testing as well as to supervision and review. I should emphasise that in applying this requirement the court will not be concerned with nice arguments about whether the personnel involved in the testing of one sample actually relied upon or were influenced by the personnel involved in the testing of the other sample – as amply shown by the survey of the legislative history, the absolute independence of the two tests from each other is the cornerstone of the regime in s 31(4)(b).”

The undisputed facts

143 I noted that the following facts were undisputed in the present case:

(a) The Accused was arrested by PW1, PW2 and PW3 at the void deck of Blk 3 Marsiling Road Singapore at about 2.00 pm on 11 May 2019.

(b) The Accused was arrested by the police officers because they wanted him to undergo urine testing.

(c) When the Accused was arrested at Blk 3 Marsiling Road Singapore, the police officers also seized 3 items from the Accused, a packet containing vegetable matters, a packet of rolling paper and a rolled- up stick of vegetable matters.

(d) After the Accused was arrested, he was brought back to Woodland Police Divisional Headquarters. When the Accused was at Woodlands Police Divisional Headquarters, he suffered from irregular heartbeat and breathlessness and he was brought to Khoo Teck Puat Hospital for medical treatment at about 6 pm on the same day. The Accused was escorted to Khoo Teck Puat Hospital by PW1 and PW2.

(e) After the Accused was discharged from Khoo Teck Puat Hospital, he was brought back to Woodlands Police Divisional Headquarters.

(f) The Accused’s urine sample was procured by PW4 at the charge office toilet at around 12.10 am on 12 May 2019.

(g) PW5 conducted the IUT on the Accused’s urine sample at 6.17 am on 12 May 2019 in the presence of the Accused and the Accused’s urine sample tested positive for methamphetamine. PW5 then proceeded to label the Accused’s samples in the presence of the Accused and he got the Accused to place the same into the metal box to be forwarded to HSA for analysis.

(h) The Accused’ urine samples were delivered by PW6 to HSA the following day. At HSA, the 2 urine samples were analysed separately by PW7 and PW8. Both PW7 and PW8 found methamphetamine present in both the Accused’s urine samples and they both issued their certificate under section 16 of the Misuse of Drug Act accordingly.

Issues before the court

144 The Prosecution’s case against the Accused was that the Accused had knowingly consumed methamphetamine. The Accused accepted that methamphetamine was found in his urine. However, the Accused had denied that he had been taking methamphetamine knowingly and he was of the view that the mushroom that he had been smoking for the past 3 years could have been laced with methamphetamine. As such, his urine had tested positive because of unknowing consumption.

My assessment of the evidence

145 After reviewing the evidence that was presented before me by both parties, I accepted the Prosecution’s position that the Accused had knowingly and intentionally taken methamphetamine. My reasons were as follows:

(a) The urine procurement and testing process

146 In the present case, there was no dispute between the parties that methamphetamine was found in the Accused’s urine. The Accused also did not dispute the manner in which his urine was procured by the police and he also did not allege that his urine sample was tampered with or contaminated in any manner by the police.

147 PW4 who had procured the Accused’s urine had testified that the Accused had selected one bottle with a red cap from more than 10 red bottles and 2 bottles with blue caps from more than 20 blue bottles. After the Accused had urinated into the red bottle, PW4 had proceeded to swirl the urine before returning the red bottle to the Accused for him to pour his urine into the 2 blue bottles. The Accused then proceeded to cap all 3 bottles and PW4 taped all 3 bottles with a white masking tape. PW4 then proceeded to place the red bottle into one blue polymer bag and the 2 blue bottles into a second blue polymer bag. PW4 had also pasted the Accused’s PCMS label onto the polymer bags for identification purposes. PW4 then proceeded to seal both the polymer bags and he handed the 2 polymer bags to the Accused and warned him not to tamper with the polymer bags.

148 PW5 who conducted the IUT on the Accused’s urine also confirmed that the testing was conducted in the presence of the Accused. After the sample had tested positive, PW5 informed the Accused of the results. PW5 then printed out 2 HSA labels and he got the Accused to confirm his particulars on the labels and to sign the labels. PW5 then proceeded to paste the labels onto the 2 blue bottles with the Accused’s urine samples. After that, PW5 got the Accused to drop the 2 blue bottles into the locked HSA metal box which was to be sent to HSA for further analysis and testing.

149 PW6, who was the police officer who had sent the Accused’s urine samples to HSA had testified that she had delivered all the urine samples to HSA with a copy of the summary form and the officers at HSA had tallied the urine samples with the summary form to make sure that the correct samples were sent for testing. The officer had also checked the bottles containing the urine samples for leakage as well as to ensure that they had not been tampered with before the Accused’s urine samples were forwarded to PW7 and PW8 for analysis. PW7 and PW8 had proceeded to analyse the Accused’s urine samples and they had found that both samples had contained methamphetamine and they had issued their certificates under section 16 of the Misuse of Drugs Act accordingly.

150 I noted that the procurement of the Accused’s urine was in compliance with Regulation 3 of the Misuse of Drugs (Urine Specimens and Urine Test Regulations) and the First Schedule of the said Regulations.

151 And as for the testing process, it had also been carried out in accordance with section 31(4) of the Misuse of Drugs Act. Therefore, I agreed with the Prosecution that the presumption under section 22 of the Misuse of Drug Act would apply in that the Accused shall be presumed of consumption of methamphetamine under section 8(b) of the Misuse of Drugs Act until the contrary was proven.

(b) Accused’s defence and whether it rebutted the presumption in section 22

152 The Accused’s defence was that the vegetable matter that he was smoking had been spiked with methamphetamine without his knowledge. The Accused had testified that he knew that the vegetable matters that he had been smoking did contain mushroom, but he did not know that it contained methamphetamine. The Accused said that the vegetable matters that he had been smoking must have contained methamphetamine because:

(a) When he was remanded pending his trial, the Accused had met a fellow inmate at Changi Prison, and he was informed by this inmate who manufactured mushroom that they sometime add methamphetamine to their mushroom products.

(b) PW11 who had analysed the packet of vegetable matters that was seized from the Accused when he was arrested had given evidence that he had come across cases where he had found traces of methamphetamine in the mushroom drug.

153 It was trite law that the burden was on the Prosecution to prove its case against the Accused beyond a reasonable doubt. As for the Accused, the burden on the Accused was to cast a reasonable doubt on the Prosecution’s case.

154 In the present case, the Accused’s defence was that the mushroom that he had been smoking had been spiked with methamphetamine. I would agree with the Prosecution that for the Accused to rebut the presumption under section 22 of the Misuse of Drugs Act, mere assertion by the Accused was insufficient. The Accused would have to provide some evidence to back up his position in order for him to cast a doubt on the Prosecution’s case (see Public Prosecutor v Poh Teck Khoon, Public Prosecutor v Tan Chui Yun Joselyn and Public Prosecutor v Tan Loon Lui).

155 With regard to the Accused’s defence of unknowing consumption, I noted the following:

(a) The Accused had testified that he had met up with another inmate in prison who was a manufacturer of mushroom drugs and that inmate had told him that they sometimes would add methamphetamine to the mushroom drugs that they were producing. I noted that the Accused had not called on the inmate to testify on his behalf. As such, whatever that the Accused had said in relation to the inmate was merely hearsay.

(b) The Accused also did not name the supplier of his mushroom drug nor did he call the supplier to testify on his behalf.

(c) The Accused had also submitted that PW11 had testified that he can come across some instances where he had analysed mushroom drugs and had found that the drugs also contained methamphetamine. I noted that PW11 did testify to that effect. However, I also noted that PW11 had also said that such cases were not common. I also noted that PW11 had analysed the vegetable matters which the Accused had on him when he was arrested and PW11 had found that the vegetable matters contained 4-fluoro-MDMB-BINACA or its fluoro positional isomer in the butyl group which is the mushroom drug. However, PW11 did not find any traces of methamphetamine in the said vegetable matters that he had analysed.

(d) I also noted that the Accused had been prescribed medication by PW10 from Changi General Hospital for his heart condition. PW10 had given evidence in court that all the medications that he had prescribed to the Accused did not contain methamphetamine.

(e) The Accused had also submitted that the evidence that was tendered in court clearly proved that the mushroom that he had taken was tainted with methamphetamine. This was supported by the urine test results which showed that NPS, benzodiazepine and methamphetamine were also found in the Accused’s urine. I did not agree with the Accused on this point. Just because other drugs were found in the Accused’s urine, that did not conclusive point to the fact that the mushroom that he had been taking had been tainted with other drugs. It was also possible that the Accused could have been taken all these other drugs at the same time he was smoking the mushroom. The Accused had also not provided any objective evidence to show that the mushroom drug that he had been taking had indeed been tainted with methamphetamine.

(f) The Accused’s position in the present case was that he had been knowingly taking the mushroom drugs over the past few years, but he did not consume methamphetamine. The Accused knew that he had been consuming illicit drugs and he was liable to be punished if he was caught. The Accused’s defence was that he was not aware that mushroom drugs could be tainted with other drugs such as methamphetamine and he only found out about it when he met a drug supplier while he was in remand. I found it difficult to accept the Accused’s version. In the present case, the Accused had already known that he was taking an illegal substance.

(g) I also noted that in Exhibit P7, which was tendered by the Prosecution, the Accused had been previously convicted for the consumption of morphine and methamphetamine. This was not a case where the Accused had only consumed mushroom all his life and he had never taken any other drugs. The Accused was very familiar with methamphetamine given his past history.

(h) Given the above, I was not prepared to accept the Accused’s version of events. I would agree with the Prosecution that the Accused’s version of events were bare allegations and the Accused had not furnished any evidence to support his defence that he had taken methamphetamine unknowingly.

(c) The Accused’s confession (Exhibit P8)

156 The Accused had stated in his cautioned statement to the present charge (Exhibit P8):

“I would like to say what I have mentioned in my 1st charge. I also like to add that what I have said in my 1st charge is the truth. I take drugs because I don’t have a choice. That is all”^{[note: 207]}

157 I also noted that the 1^st charge against the Accused was for the consumption of 2-[1-(4-Fluorobutyl)-1H-indazol-3-carboxamido]-3,3-dimethylbutanoic acid and its hexanoic acid isomers and their respective fluoro positional isomers in the butyl group. The Accused had also given the following statement in his cautioned statement relating to the 1^st charge (Exhibit P10):

“I got a heart problem. My family is separated. I got severe heart problem. I can’t ever do work. I am alone and loniless is killing me. And I got nobody to turn to. Without a choice, that is why I turn to the wrong friends for help and ended up doing the wrong things. I wish to go back to my family in Johor Bahru as soon as possible. That is all.”^{[note: 208]}

158 The relevant provisions of the Evidence Act relating to confessions were as follows:

Admission and confession defined

17.—(1) An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances hereinafter mentioned.

(2) A confession is an admission made at any time by a person accused of an offence, stating or suggesting the inference that he committed that offence.

Proof of admissions against persons making them and by or on their behalf

21. Admissions are relevant and may be proved as against the person who makes them or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest except in the following cases:

(a) an admission may be proved by or on behalf of the person making it when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 32;

(b) an admission may be proved by or on behalf of the person making it when it consists of a statement of the existence of any state of mind or body relevant or in issue, made at or about the time when such state of mind or body existed and is accompanied by conduct rendering its falsehood improbable; and

(c) an admission may be proved by or on behalf of the person making it if it is relevant otherwise than as an admission.

159 The Prosecution had submitted and I agreed with the Prosecution that the Accused’s statements in Exhibits P8 and P10 clearly tantamount to a confession by the Accused that he had taken both methamphetamine and 2-[1-(4-Fluorobutyl)-1H-indazol-3-carboxamido]-3,3-dimethylbutanoic acid and its hexanoic acid isomers and their respective fluoro positional isomers in the butyl group.

160 It was also trite law that an accused person could be convicted on his confession if the court was satisfied that the confession was made voluntarily and was true.

161 On the issue of whether the confession was made voluntarily, the Accused had objected to the admissibility of Exhibit P8 on the basis that PW9 had failed to read and explain the charge and notice of warning to the Accused and “he was just merely asked to sign on all documents and [he] was not in [his] right frame of mind”^{[note: 209]}. The Accused had also alleged that PW9 had merely told him to append his signature at the relevant places.

162 Given that the Accused had objected to Exhibit P8 and his allegation against PW9, I decided to hold an ancillary hearing to determine the admissibility of the Accused’s cautioned statement.

163 The Accused had argued that PW9, in the course of recording Exhibit P8, had failed to do the following:

(a) That PW9 had told the Accused that “I’m going to send you on a LT2 because CNB got power (sic)”7 when she took the accused’s statement;

(b) That PW9 asked had him to sign on the charge and notice of warning on the first and second page of Exhibit P8 without explaining the charge and the warning;

(c) That he wrote something in the statement, which was not reflected on Exhibit P8.

164 PW9 had taken the stand during the summary hearing and she had testified that she had taken all the proper steps in explaining the charge in Exhibit P8 to the Accused before reading the Notice of Warning to the Accused and then proceeding to record his statement in Exhibit P8. PW9 also explained that after recording the Accused’s statement, she had proceeded to read back his statement to the Accused and had invited him to make amendments, but he had declined to do so. PW9 had also testified that the Accused appeared normal during the statement recording and he appeared to have understood her instructions.

165 I noted that PW9 had recorded the Accused’s statements in Exhibit P8 and P10 at the same sitting. PW9 had recorded the Accused’s statement in Exhibit P10 on 18 October 2019 at 2138 hours and she went on to record the Accused’s statement in Exhibit P8 at 2207 hours on the same day. I also noted that the Accused did not challenge the recording of Exhibit P10 but only Exhibit P8.

166 Having heard PW9 and the Accused at the ancillary hearing, I was of the view that PW9 had explained the charge and the Notice of Warning to the Accused before the recording of his statement and the Accused had given his cautioned statement to PW9 voluntarily without any threat, inducement or promise. I therefore ruled that Exhibit P8 was admissible for the purposes of the trial.

167 I also saw no reason for PW9 to want to lie to set up the Accused to get him into trouble. PW9 was just doing her job. There was no history of bad blood between the 2 of them and PW9 had nothing to gain by doing that.

168 I also agreed with the Prosecution that the Accused’s evidence at the summary hearing was internally inconsistent in that:

(a) The accused had initially claimed that the statement was recorded while he was high, but he subsequently confirmed that he was “in a proper state of mind”.

(b) The Accused had given evidence that “nothing was explained to [him], nothing was read out to [him]”. However, he later admitted that he was explicitly warned to state his defence. The Accused had testified that when his cautioned statement was being recorded, he was told “if I have anything to say, it’s best for me to say it now and I may not be allowed to say it once the case goes to Court”.

169 Given that both Exhibits P10 and P8 were recorded at the same sitting and only about half an hour apart, I found it hard to believe that PW9 had decided to explain the charge and Notice of Warning in Exhibit P10 to the Accused but not in Exhibit P8 which was recorded about half an hour later. I also found it strange that when Exhibit P8 was read back to the Accused, he did not raise any issue in relation to the missing words which he had purported written on Exhibit P8.

170 Given the above, I was prepared to accept PW9’s evidence that the Accused had given his statement in Exhibit P8 voluntarily without any promise, inducement or threat and PW9 had accurately recorded his statement in Exhibit P8.

(d) As to the amount of methamphetamine found in the Accused’s urine

171 As regards to the Accused’s claim that the low amount of methamphetamine found in his urine in Exhibit P2 was clear evidence that the mushroom drug that he was smoking was tainted with methamphetamine, I was of the view that the Accused’s contention was not supported by any objective evidence.

172 PW8 was unable to comment if the tobacco that the Accused had been taking could have contained methamphetamine^{[note: 210]}. When questioned by the Accused on the amount of methamphetamine found in his urine which was stated as 1816.96 ng/ml in Exhibit P2, PW8 had said that she was not in a position to comment as the level of drugs found in the urine was dependent on several factors such as how much drugs one had consumed, when the drug was consumed and how much water intake that person had taken.

173 As such, the fact that there was only 1816.96 ng/ml of methamphetamine in the Accused’s urine merely showed that there was methamphetamine present in the Accused’ urine. It just meant that the Accused had consumed methamphetamine and it proved nothing else.

174 I was of the view that the amount of methamphetamine in the Accused’s urine did not support the Accused’s position that he had unknowingly taken the drug.

My decision

175 In the present case, having considered all the evidence before me, I was of the view that the Prosecution had proved their case against the Accused beyond a reasonable doubt. I was also of the view that the Accused had failed to rebut the section 22 presumption on a balance of probability. I thereby convicted the Accused of the charge.

Accused’s antecedents

176 I noted that the Accused had the following drug related antecedents:

(a) Convicted by Subordinate Courts No. 5 for trafficking of a controlled drug under section 3(a) of the Misuse of Drugs Act 1973 on 10 January 1986 and sentenced to 5 years imprisonment with 5 strokes of the cane.

(b) Convicted by Subordinate Courts No. 5 for possession of a controlled drug under section 6(a) of the Misuse of Drugs Act 1973 on 10 January 1986 and sentenced to 1 year's imprisonment.

(c) Convicted by Subordinate Courts No. 26 for unauthorised possession of a controlled drug under section 8(a) of the Misuse of Drugs Act on 30 June 1998 and sentenced to 2 years imprisonment.

(d) Convicted by Subordinate Courts No. 24 for consumption of morphine under section 8(b)(ii) of the Misuse of Drugs Act on 13 April 2005 and sentenced to LT1 imprisonment 6 years 6 months.

(e) Had a charge of consumption of methamphetamine under section 8(b)(i) of the Misuse of Drugs Act taken into consideration on 13 April 2005 for the purposes of sentencing in Subordinate Courts No. 24.

(f) Convicted by Subordinate Courts No. 3 for consumption of morphine under section 8(b)(ii) of the Misuse of Drugs Act on 3 July 2012 and sentenced to LT2 imprisonment with caning 7 years with 6 strokes.

Sentencing

Prosecution’s Submission on Sentence

177 In their oral submission, the Prosecution had sought a sentence of 8 years’ imprisonment for the Accused. The Prosecution had pointed out to me that the Accused was a repeat LT2 offender and he was not entitled to any sentencing discount as he had claimed trial to the charge. The Prosecution also highlighted that the sentencing range for a LT2 consumption charge was from 7 to 13 years.

178 In the present case, the Accused was above the age of 50 years and he was not liable for caning. The Prosecution also informed me that they were not seeking any imprisonment term in lieu of caning.

Mitigation

179 The Accused had decided not to tender any mitigation after I had convicted him of the charge even though I had requested for his mitigation plea. The Accused maintained that he did not consume methamphetamine intentionally and that he had consumed methamphetamine unknowingly.

My Sentence

180 The punishment prescribed under section 33A(2) of the Misuse of Drugs Act was imprisonment for a term not less than 7 years and not exceeding 13 years.

181 I noted the following aggravating factors in the present case:

(a) The Accused had a history of drug offences. He had been convicted of trafficking, possession as well as on numerous occasions, consumption of various types of drugs.

(b) The Accused was convicted for consumption of morphine under section 8(b)(ii) of the Misuse of Drugs Act on 3 July 2012 and sentenced to LT2 imprisonment with caning 7 years with 6 strokes. The present offence was committed on 11 May 2019, not long after he was released from prison for his previous LT2 offence.

(c) The above clearly showed that the Accused was a recalcitrant drug addict who was not prepared to let go of his drug habits.

182 I also noted that the Accused had claimed trial to the proceeded charge and that meant that the usual sentencing discount that was usually granted to a case whereby an offender had pleaded guilty would not be applicable to the Accused.

183 Having considered all the above factors, I was of the view that a sentence of 8 years’ imprisonment submitted by the Prosecution was not unreasonable, and I accordingly imposed a sentence of 8 years’ imprisonment on the Accused.

184 In the present case, the Accused had informed me that he was first arrested on 19 September 2019 and he was remanded for about 10 days before he was released on bail. The court bail papers showed that the Accused was released on bail on 27 September 2019. However, the Accused was placed under remand a second time from 22 January 2020 as his bail amount was increased by the mentions court judge on 22 January 2020 from $15,000 to $50,000 and the Accused was unable to raise bail for the increased amount. The Prosecution also did not dispute the relevant dates.

185 As such, I decided to backdate the Accused’s sentence to start with effect from 19 September 2019 with the period from 27 September 2019 to 21 January 2020 when the Accused was on bail to be disregarded towards the imprisonment period.

186 The Accused being dissatisfied with my decision has filed his Notice of Appeal against my order on conviction and sentence. The Accused is also currently serving his sentence.[Context] [Hide Context]

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^{[note: 12]}See Exhibit P1

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^{[note: 14]}NE Day 4 Page 4, also see Exhibit P13 which is a photograph of the seized items.

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^{[note: 58]}NE Day 1 Page 43, see Exhibit P2

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^{[note: 77]}NE Day 1 Page 65, see Exhibit P3

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^{[note: 94]}NE Day 2 Page 37, see Exhibit P8

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^{[note: 134]}See Prosecution’s Closing Submissions filed on 3 May 2021

^{[note: 135]}Public Prosecutor v Mohammad Ashik bin Aris [2011] 4 SLR 34

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^{[note: 149]}See explanation 2 of section 258(3) of the CPC

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^{[note: 165]}Misuse of Drugs (Urine Specimens and Urine Tests Regulations) (Cap 185, Reg 6, 1999 Rev Ed), First Schedule.

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^{[note: 205]}See Written Submission of the Accused filed on 19 May 2021

^{[note: 206]}See Exhibit P2 and P15

^{[note: 207]}See Exhibit P8

^{[note: 208]}See Exhibit P10

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