District Court of Singapore

Public Prosecutor v Norhana Binte Ab Latif
[2021] SGDC 86

Criminal Law – Statutory Offences – Misuse of Drugs Act

Criminal Procedure and Sentencing – Sentencing

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9048/2021/01.]

14 May 2021

Principal District Judge Toh Han Li:

Introduction

1 The accused claimed trial to the following charge of trafficking in a controlled drug (“trafficking charge”):

You… are charged that on 16 May 2018, at about 10 am, at unit [xxx] euHabitat, 22 Jalan Eunos, Singapore….did traffic in a Class A controlled drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed), to wit, by having in your possession for the purposes of trafficking three packets containing not less than 74.76g of crystalline substance which was analysed and found to contain not less than 51.10g of methamphetamine, without authorisation under the said Act or the Regulations made thereunder and you have thereby committed an offence under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) and punishable under s 33(1) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed).

2 At the end of a trial I convicted her on the trafficking charge. She then pleaded guilty to two charges which were stood down pending the trial, namely a charge of consumption of methamphetamine (“consumption charge”) (DAC 919749 of 2018) and a charge of possession of utensils for the purposes of consumption (“utensils charge”) (DAC 919750 of 2018).

3 She was sentenced to 5 years 8 months’ imprisonment for the trafficking charge, 10 months’ imprisonment for the consumption charge and 3 months’ imprisonment for the utensils charge. The sentences for the trafficking charge and the utensils charge were ordered to run consecutively, leading to a global sentence of 5 years and 11 months’ imprisonment.

4 The accused has appealed only against her conviction and sentence on the trafficking charge. Her imprisonment term has been stayed and she is on bail pending appeal.

The prosecution’s case

Main trial

5 From the Agreed Statement of Facts (“P1”), it was not in dispute that at the time of her arrest, the accused was in possession of 74.76 g of a crystalline substance which was analysed and found to contain not less than 51.10 g of methamphetamine (“Ice”).

6 The Agreed Statement of Facts admitted a series of WhatsApp messages between the accused and one Nur Zawani Binte Elias (“Zawani”) (“P 6”), bank statements from the accused’s two bank accounts with OCBC and POSB (“P14” and “P15”) and the Health Sciences Authority (“HSA”) certificate which analysed the seized Ice (“P16”).

7 The prosecution called a total of 6 witnesses for the trial. The witnesses comprised the CNB raiding party which raided the accused’s condominium unit where the Ice was found as well as the Investigating Officer of the case (“IO”).

8 The prosecution witnesses were CNB officers PW1 Assistant Superintendent Liu Fuquan (“ASP Liu”), PW2 Senior Staff Sergeant Elyas Bin Md Mustasar (“SSSgt Elyas”), PW 3 Staff Sergeant Mohammad Nasran Bin Mohd Janbari (“SSgt Nasran”), PW4 Staff Sergeant Cynthia Lee Shue Ching (“SSgt Cynthia”) and PW5 Senior Staff Sergeant Ika Zahary Bin Kasmari (“SSSgt Ika”) comprised the CNB raiding party and PW6 Abdul Rahman bin Juma’at (“Insp Rahman”) was the IO. One Station Inspector Rosli Sharon was also part of the raiding party and was offered by the prosecution to the defence for cross-examination but defence counsel decided not to cross-examine him and he was accordingly not called as a witness.

9 On 16 May 2018, acting on information received, ASP Liu led a CNB raiding party together with SSSgt Elyas, SSgt Nasran, SSgt Cynthia, SSSgt Ika and Station Inspector Rosli Sharon to the accused’s flat at unit [xxx] euHabitat, 224 Jalan Eunos, Singapore (“the unit”). After the CNB raiding party had liaised with the condominium management by phone at the guardhouse, the security guard led the CNB raiding party to the accused’s unit. When the accused opened the door, the CNB officers comprising ASP Liu, SSSgt Elyas, SSgt Cynthia and SSgt Nasran entered the unit. At the same time Station Inspector Rosli and SSgt Ika were stationed at the back of the unit as a lookout. The accused was arrested and handcuffed and the CNB officers proceeded to search the unit. When asked if she had anything to declare, the accused surrendered the following items from the top right hand corner of the fridge cabinet in the unit:

a) One black metal container (“P2-1”);

b) One digital weighing scale (“P2-2”);

c) Numerous empty ziplock packets (“P2-3”);

d) One empty ziplock packet (“P2-4”);

e) Three packets containing a crystalline substance (“P2-5”).

10 SSSgt Elyas’s evidence was that P2-5 was found in P2-4 and together with P2-2 and P2-3 they were all found in the black metal container P2-1.

11 A white box containing a rolled up five dollar note, a lighter and a rubber tube was also seized from the unit. This comprised the subject matter of the consumption and utensils charges to which the accused subsequently pleaded guilty to.

12 SSSgt Elyas recorded a contemporaneous oral statement in English from the accused during the raid. SSSgt’s Elyas evidence was that the accused’s English was quite good and she wanted to record her statement in English^{[note: 1]}. The voluntariness of this statement was not challenged by the defence and it was admitted as P3.

13 Upon their return to Police Cantonment Complex in the afternoon of 16 May 2018, SSSgt Elyas lodged the arrest report (NP299) (“P4”). The seized exhibits were handed by SSgt Nasran to Insp Rahman, the IO of the case. In this regard, defence counsel confirmed that the defence was not disputing the chain of custody of the seized exhibits.

14 In the HSA certificate P16, the three packets were found to contain not less than 74.76g of crystalline substance and upon analysis were found to contain not less than 51.1 g of Ice.

15 On the same day of her arrest (16 May 2018) at 5.45pm, Insp Rahman recorded a statement in English from the accused. The voluntariness of this statement was not challenged by the defence and it was admitted as P12. Insp Rahman’s evidence was that the accused’s English was quite fluent. Another CNB officer, one Inspector Lee Choon Teck (“Insp Lee”) was also present at the recording of P12.

16 The prosecution sought to rely on a further statement made by the accused on 25 June 2018 and recorded by Insp Rahman. As the accused challenged the voluntariness of this statement, an ancillary hearing was conducted to determine its voluntariness.

Ancillary hearing

Prosecution’s case

17 The prosecution called two witnesses for the ancillary hearing. The witnesses were Insp Rahman, the recorder of the statement as well as another CNB officer Inspector Tan Jia Hui (“Insp Tan”) who was the escorting officer and present at the statement recording. The statement was recorded in CNB HQ Interview Room 2.

18 The statement was marked “A” for the purposes of the ancillary hearing. It comprised 4 pages, with two pages of the accused’s statement and two pages comprising the WhatsApp chats between her and Zawani.

19 Before the statement recording began, Insp Rahman asked the accused if she felt fine. The accused was shown her earlier statement P12 recorded on 16 May 2018 and she confirmed P12 to be true and correct. Insp Rahman proceeded to record her statement using by using a question and answer method and putting it in a narrative form. The statement was recorded in English. After the recording of the statement and after it was typed out, Insp Rahman read back the statement to the accused and she did not make any amendment and affirmed the statement to be true and correct. Insp Tan also looked through the statement. The accused signed once on the first page, three times on the second page and on the annex containing the WhatsApp messages she signed against the highlighted lines. On the first page of the WhatsApp messages she wrote “I texted this to Zawani”. The recording process started at 2.25pm on 25 June 2018 and ended at 3.50pm on the same day. Both Insp Rahman and Tan testified that no threat, inducement or promise was made to the accused, nor was the statement recorded under oppressive conditions.

20 The defence put the following allegations to Insp Rahman and Insp Tan with regard to the recording of statement “A”:

a) The accused was intimidated by Insp Lee at the recording of her 16 May 2018 statement, where he told her that she had better “wise up” because the CNB knew what she was up to.

b) Insp Rahman had asked the accused to come to CNB HQ to collect her condominium unit access card but was surprised by him upon her arrival when he told her that she had to give a further statement.

c) Upon arrival at CNB HQ, she was handcuffed by Insp Tan and led to the interview room. This caused her to be afraid and trembling throughout the recording of the statement.

d) When the accused asked what was going to happen to her, Insp Rahman said that it would “depend on her statement”.

e) Her request to go to the toilet during the statement recording were rebuffed by Insp Rahman and she was only allowed to go to toilet after the statement recording ended.

f) When the statement was recorded, Insp Rahman would ask her questions and give her options for the answers and the accused could only answer by picking one of these options.

g) The accused did not tell Insp Rahamn what was recorded in paragraphs 18, 19 and 20 of statement “A”.

Defence case

21 The accused testified that on 16 May 2018 during the recording of her statement P12 she was handcuffed. At that time, she kept asking Insp Rahman to contact her daughter but he simply shrugged his shoulders.

22 When she was produced and charged in court the following day (17 May 2018), she informed the judge that she could not get the contact number of her family members and the judge directed the IO to inform her family. Eventually when she was released on bail she managed to contact her family through her friend.

23 Subsequently she tried to contact Insp Rahman several times as she needed to get her condominium unit access card to return to the landlord. Insp Rahman eventually contacted her and said that he would arrange for the return of the condominium unit access card. The meeting was arranged to be on 25 June 2018. He did not mention anything to the accused about a further interview.

24 On 25 June 2018, when the accused arrived at CNB HQ, after changing her NRIC at the counter she went through the gantry and Insp Rahman told her that she had to be handcuffed for a further statement as it was the protocol. She was then handcuffed by Insp Tan on the direction of Insp Rahman.

25 She was scared, trembling and shivering as previously he did not inform her family of her situation. On the way up he asked Insp Rahman what would happen to her and he said “It depends on your statement.”

26 During the interview she was still handcuffed. After the recording, her statement was not read back to her, although she browsed through it. During the interview she asked to go to the toilet as it was urgent but she was not allowed to do so. It was only after she signed the statement that she was allowed to go to the toilet. Throughout the interview she was in a frightened state as she was afraid of being sent to the lockup as she had a bad experience during her earlier interview where she could not be bailed out and could not inform her daughter.

27 The defence called three other witnesses for the ancillary hearing. They were Muhammad Yuzaini Bin Yusope (“Yuzaini”), Siti Nor Aishah (“Aishah”) and Muhhamd Azrytay (“Azrytay”).

28 Yuzaini was the accused’s bailor and a close friend of the accused. He said that he met the accused after she was released from CNB HQ on 25 June 2018. She told him that she has been handcuffed and that she had to give a further statement. He said that he was shocked as she had earlier told him that she was going to CNB HQ to collect her condominium access card.

29 Aishah was a close friend of the accused. She testified that the accused had related to her over the phone about her second interview by the CNB in Cantonment Complex. The accused informed her that she had gotten her condominium unit access card, at the same time she was handcuffed and her statement was recorded a second time.

30 Azrytay was Aishah’s husband. Azrytay had known the accused for more than 10 years as the accused’s husband was his friend. Azrytay confirmed that Yuzaini was the accused’s boyfriend. Azrytay spoke of an occasion when he met up with the accused who talked about the recording of her second statement and he remembered the accused telling him that she was handcuffed when the second statement was being recorded.

Court’s ruling on the ancillary hearing

31 Section s 258 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) provides that any statement made by an accused person is admissible, subject to s 258(3) of the CPC:

The court shall refuse to admit the statement of an accused or allow it to be used in the manner referred to in subsection (1) if the making of the statement appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused grounds which would appear to him reasonable for supposing that by making the statement he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

32 In Teo Yeow Chuah v Public Prosecutor [2004] 2 SLR(R) 563, the Court of Appeal held at [20] that:

[B]efore any statement by the accused tending to implicate the accused with any wrongdoing was admitted in evidence, the court should be satisfied beyond a reasonable doubt that the statement given by the accused was made voluntarily without any threat, inducement, promise or any form of oppression.

[emphasis added]

33 The burden of proof is on the prosecution to prove beyond a reasonable doubt that the statement it seeks to admit was made voluntarily: Chai Chien Wei Kelvin v Public Prosecutor [1998] 3 SLR(R) 619 at [53] (“Chai Chien Wei Kelvin”). Where the accused seeks to raise such a reasonable doubt, it is sufficient for the prosecution to remove any reasonable doubt of the existence of the threat, inducement or promise, and not every lurking shadow of influence or remnants of fear: Panya Martmontree v Public Prosecutor [1995] 2 SLR(R) 806 (“Panya Martmontree”) at [32] .

34 The Court of Appeal (“CA”) in Chai Chien Wei Kelvin at [53] held that the test of voluntariness is partly objective and partly subjective:

The test of voluntariness is applied in a manner which is partly objective and partly subjective. The objective limb is satisfied if there is a threat, inducement or promise, and the subjective limb when the threat, inducement or promise operates on the mind of the particular accused through hope of escape or fear of punishment connected with the charge.

[emphasis added]

35 In Lim Thian Lai v Public Prosecutor [2006] 1 SLR(R) 319 at [14], the CA said:

[T]here were two components in determining voluntariness, the objective component and the subjective component. The objective component related to determining whether the threat, inducement or promise was made. The subjective component related to determining whether the threat, inducement or promise, if made, did operate on the accused's mind. Both components must be present before a statement made by the appellant should be excluded on the ground that it was not voluntarily made.

[emphasis added]

36 Oppressive circumstances are an additional ground for finding that the statements of the accused were made involuntarily, which is found in Explanation 1 to s 258(3) of the CPC. The High Court held in Tey Tsun Hang v Public Prosecutor [2014] 2 SLR 1189 held that “[s]ection 258(3) of the CPC does not change the substantive law on oppression despite the conceptual shift in approach.” The following observations of the Court of Appeal in Seow Choon Meng v Public Prosecutor [1994] 2 SLR(R) 338 at [33] thus continue to apply:

Oppression in this context relates to the methods and manner of interrogation preparatory to and during the making of statements. It has been said that oppressive questioning may be described as questioning which by its nature, duration or other attendant circumstances, including the fact of custody, excites hopes, such as the hope of release, or fears, or so affects the mind of the person being interrogated that his will crumbles and he speaks when otherwise he would have remained silent - questioning in circumstances which tended to sap and did sap, the free will of the person interrogated: per Edmund Davis LJ in R v Prager [1972] 1 All ER 1114. At the same time, it has been said that the court's approach should not be such so as to form a clog on the proper exercise by the police of their investigating function, and, indeed, on the administration of justice itself: per Lord Hailsham in DPP v Ping Lin [1975] 3 All ER 175 at 183. Robust interrogation is, in our opinion, an essential and integral aspect of police investigation. However, as was observed by L P Thean J in Sim Ah Cheoh ([31] supra), if the questioning is too vigorous or prolonged, it becomes oppressive, with the result that a doubt arises as to whether the statement or the answers have been caused by any fear or threat so as to render the statements or answers to the questions inadmissible.”

[emphasis added]

37 On the above principles, I had to assess if objectively there was any threat and inducement or promise made and subjectively whether such threat inducement or promise operated on the accused mind. I also had to assess whether the circumstances of the statement taking were oppressive. I will deal with each of the defence’s allegation in turn.

38 I first make the general observation that in the Case for the Defence, (“CFD”) (“P18”) the accused’s previous lawyers did not challenge the admissibility of the statement but only the accuracy of the statement as stated at [12] of the CFD:

The Accused avers that the statements had not been given under any threat, inducement or promise, but that what had been stated had not been accurately recorded.

[emphasis added]

39 While the accused is not precluded from subsequently raising an issue of threat, inducement or promise or oppressive circumstances with regard to statement “A”, what was stated in the CFD would be relevant in assessing the credibility of such allegations, as s 258A CPC which allowed the CFD to be used for the purposes of cross-examining the accused.

Allegation that the accused was intimidated by Insp Lee on 16 May 2018

40 Defence counsel subsequently clarified that his case of threat, inducement or promise was not based on what Insp Lee had said to the accused on 16 May 2018^{[note: 2]}, and as such I did not consider this allegation further. In any event, I would have found it hard to accept that any threat, inducement or promise made some 5 weeks earlier by a different CNB officer could have operated on the accused’s mind on 25 June 2018.

Allegation that the accused was not informed that she would have further statement recorded

41 The accused alleged that she had contacted Insp Rahman more than one to retrieve her condominium unit access card as her tenancy was coming to an end and she would need to return the access card. She finally got in touch with Insp Rahman one week before 25 June 2018 and Insp Rahman asked her to come to CNB HQ solely for the purpose of collecting her condominium access card. It was only when she arrived at CNB HQ that she realised that Insp Rahman wanted to record a further statement from her.

42 Insp Rahman’s evidence was that he called the accused to go down to CNB HQ to collect the condominium access card and to record a further statement as he wished to verify the WhatsApp messages between the accused and Zawani.

43 While the CFD did allege she was initially under the impression that she was to meet the IO to get her “house keys” back, the CFD was not alleging that this amounted to a threat, inducement or promise. In any event, even if I accepted the accused’s version that she was not told by Insp Rahman that a further statement would be recorded from her, I failed to see how the failure to inform the accused that a further statement would be recorded could, in itself, be objectively considered a threat, inducement or promise. This was indeed what was stated at paragraph 12 of the CFD where it stated that the statement A had not been given under any threat, inducement or promise but had not been accurately recorded.

Allegation that Insp Tan had handcuffed her on 25 June 2018

44 The accused alleged that Insp Rahman instructed Insp Tan to handcuff her the moment she arrived at CNB HQ and that she was handcuffed throughout the recording of the statement.

45 Both Insp Rahman and Insp Tan denied that she was handcuffed. Insp Rahman testified that as the accused was on bail, the usual process was not to handcuff the accused. Insp Rahman and Tan said that there was no need to handcuff the accused as she was not under arrest that day.

46 Defence counsel made an application during the ancillary hearing for the relevant CCTV footage to confirm the accused’s allegation. During the break in the ancillary hearing dates, Insp Rahman proceeded to follow up on this request and when the ancillary hearing resumed Insp Rahman testified that any CCTV footage would be retained only two months, and as statement A was recorded on 25 June 2018, any CCTV footage would have been overwritten after two months and accordingly was no longer available. While there was a camera in the interview room this was not switched on as it was not an interview subject to the Video Recording Interview procedure under the CPC.

47 In this regard, I did not agree with defence counsel’s submission that the prosecution had to produce the relevant person in charge of the CCTV to testify on this, as Insp Rahman had testified that he had conducted his own investigatory checks on the matter for which he was cross-examined.

48 Insp Rahman’s evidence was that accused persons would be handcuffed prior to the taking of a statement if the investigating officer needed to present the accused in court the following day or put the accused in the lock-up on the same day. This was the case for the accused’s 16 May 2018 statement where she was charged in court the following day. On 25 June 2018, as the accused was already on court bail when her further statement was being recorded, the usual process would be to not handcuff the accused.

49 In my view, being handcuffed per se would in itself not objectively amount to a threat, inducement or promise as Insp Rahman had testified that accused persons’ statement were frequently recorded when they were being handcuffed. This was precisely what happened to the accused when she was arrested on 16 May 2018 and handcuffed with her statement being recorded that same day. Yet the defence did not allege that 16 May 2018 statement was not voluntarily given.

50 In this regard, I found the accused’s allegation that she was handcuffed the moment she entered CNB HQ odd that it would be done in such a public area. Further, while the CFD alleged the accused was suddenly handcuffed and questioned, the CFD was not alleging that this amounted to a threat, inducement or promise.

51 I accordingly rejected this allegation by the accused.

Allegation that the accused was trembling and afraid when her statement was being recorded

52 The accused alleged that she was trembling and afraid when her statement was taken. This was refuted by Insp Rahman and Insp Tan who said that she was acting normally.

53 I note that this was not the first time her statement was taken and she had her statement taken on 16 May 2018 on the same day after she was arrested in her condominium. I would have thought that she would have been even more afraid on the day of her arrest when her statement was taken and yet she did not say that the 16 May 2018 statement was involuntarily made or given under oppressive conditions.

54 In her CFD she mentioned that she was suffering from withdrawal symptoms. When asked during the ancillary hearing why her suffering from withdrawal symptoms was not repeated she said that she “missed out on it” and even though it had been 5 weeks since she had consumed drugs she “took time to recuperate.” Further, there was no medical evidence adduced by the defence to support the fact that she was on withdrawal symptoms on 25 June 2018.

55 I accordingly rejected the accused’s allegation that she was so afraid or was in such a condition as to render her further statement involuntarily given.

Allegation that the accused told her that what would happen to her would depend on her statement

56 The accused alleged that she had asked Insp Rahman “what is going to happen to me?” and he then replied “depends on your statement.”

57 Insp Rahman and Tan denied that such a verbal exchange took place.

58 Objectively, it is unclear to me that even if there was such an exchange, such words would amount to a threat, inducement or promise. It could be taken to a neutral statement, meaning that what would happen to her subsequently depended on the contents of her statement. Further, there was no such reference to such a verbal exchange in the CFD.

59 The accused claimed that she had been denied the opportunity to call her daughter on 16 May 2018 when her first statement was recorded and that she was under the impression that it would happen again on 25 June 2018. There was no allegation that Insp Rahman denied her the opportunity to call her daughter on 25 June 2018 in the CFD.

60 Given that her statement of 16 June 2018 was voluntarily given, it is hard to see why the same alleged conduct would render it being involuntarily given on 25 June 2018. While the accused’s evidence was that she was under such an impression on 25 Jun 2018, she did not explain what Insp Rahman specifically said or did on 25 June 2018 to give such an impression. In any event, self perceived inducement does not impugn the voluntariness of a statement - see Gulam bin Notam Mohd Shariff Jamaladdin & Anor v PP [1999] 1 SLR (R) 498 at [60].

61 I accordingly rejected that that there was such a verbal exchange which in any event did not amount to render her statement being involuntarily given.

Allegation of denial of toilet break

62 The accused alleged that she was denied a toilet break despite having an urgent need to do so and was only allowed to do so after she signed the statement.

63 Insp Rahman and Tan denied that there was such a request from the accused and if there was such a request for a toilet break, the statement recording would have been paused and a note would be made in the statement to reflect this. Statement A did not reflect that there was such a request. There was also no mention of such an allegation in the CFD.

64 Although the accused’s evidence was that she was denied a toilet break until after the recording of the statement, I note that she still had the presence of mind to browse through the statement before signing it. As such, even if the allegation was true, I was not satisfied that it had operated on her mind to the extent as to render her statement as being involuntarily given.

65 As such, I did not find the allegation of denial of toilet break as credible nor would it render her statement being involuntarily given.

Allegation that Insp Rahman asked her questions and limited her answers by way of options

66 The accused alleged that Insp Rahman would ask her questions and give her options for answers and she could answer she wanted and could only pick the options provided.

67 In my view, it is unlikely that this even amounts to a threat inducement or promise as it goes more towards the accuracy of the statement.

68 In any event such an allegation was never mentioned in the CFD.

69 I accordingly rejected this allegation as having any impact on the voluntariness of her statement.

Allegation that the accused did not tell Insp Rahman what was recorded in paragraphs 18, 19 and 20 of the statement.

70 As this allegation turns more on the manner of recording of the statement as opposed to the voluntariness, I did not find a need to consider this allegation for purposes of the ancillary hearing and would subsequently review the weight to be given to these paragraphs in the statement should it be admitted.

Evaluation of other witness called by the defence

71 Yuzaini was the accused’s boyfriend and bailor (he referred to her as a close friend but it was Azrytay who referred to him as the accused’s boyfriend). Yuzaini admitted under cross examination that he had discussed the case with her and was present when the accused testified at the ancillary hearing including stating that she had been handcuffed.

72 Under cross examination, Aishah admitted that she had heard the accused testifying in court that she had gone to CNB HQ only to collect her access card and was then handcuffed. Aishah and Azrytay were married to each other and were the accused’s close friends.

73 Given the closeness of the relationship between Yuzaini, Aishah, Azrytay and the accused as well as the fact that Yuzaini and Aishah heard the accused’s court testimony that she was handcuffed before they testified during the ancillary hearing, I gave little weight to their testimony.

74 Further, the only substantive evidence they gave was in relation to the alleged handcuffing incident and no other allegation of threat, inducement or promise was related to them by the accused. Even if the allegations about her being handcuffed were true (which I have rejected), as discussed above I found it hard to see how they amounted to a threat, inducement or process or had subjectively operated on the accused’s mind to render the statement involuntary.

75 As I was satisfied that the statement A had not been procured objectively by any threat, inducement or promise nor had it subjectively operated on the accused’s mind through hope of escape or fear of punishment connected with the charge, nor was there a reasonable doubt of oppression pursuant to Explanation 1 to s 258(3) CPC, I ruled that the prosecution had proved beyond a reasonable doubt that the statement A was made voluntarily. The statement was admitted as P17.

76 I had also added that my ruling at the end of the ancillary hearing pertained only to the voluntariness of the statement and a finding as to the accuracy and the weight to be accorded to the statement would be considered at the end of the main trial in the light of all the evidence.

Defence made no submission of no case to answer

77 The defence acknowledged that as the accused was in possession of more than 25 g of methamphetamine as stated in s 17(h) MDA, she had to rebut, on a balance of probabilities, the presumption that she was in possession of the Ice for the purposes of trafficking and accordingly did not make a submission of no case to answer.

78 The court accordingly called for the defence.

The defence

The accused’s evidence

79 The accused testified that she had been working as a KTV hostess in a club known as “Triamp” but she had resigned a week or two before her arrest on 16 May 2018.

80 The accused was acquainted with one “Bab Yak” who was her ex husband’s friend. Bab Yak was a drug dealer. She had met Bab Yak at a place known as “Club Flirtatious” a few days before her arrest and asked if he had any drugs, specifically Ice, to sell to her. She told Bab Yak that she wanted to purchase 25g of Ice. She agreed to pay Bab Yak $900 for 25g of Ice.

81 Bab Yak informed the accused that he would get someone to contact her. Subsequently Bab Yak’s friend called the accused and she gave him her address. Bab Yak’s friend subsequently turned up at her unit’s front door and when he came in, he offered her 75g of Ice at a cheaper price. The accused testified that she was going to pay $900 for 25g but when Bab Yak’s friend offered her $1700 for 75g of Ice, she agreed to pay for 75g of Ice. This was because it was cheaper on a unit basis for that amount of Ice and she preferred to have bulk in hand so she did not have to approach Bab Yak to keep buying. Prior to her arrest on 16 May 2018, she had consumed a small quantity of the Ice. She said that she had not sold the Ice to anyone nor did she intend to do so.

82 She confirmed that she had no issues with the statement P 12 recorded by Insp Rahman but had issues with P 17 which had been admitted after the ancillary hearing. At paragraph 17 of the P 17 she said that she did not meet the person at the back gate of the condominium as recorded where in fact Bab Yak’s friend came to her front door. As for paragraph 18 of P 17, she said that the whole paragraph was inaccurate and she never wanted to sell drugs to Zawani. She said the whole of paragraph 19 was inaccurate except the last line “I only got to know that 25gramms of “Ice” cost about SGD$900 from the time I called Bab Yak”.

83 For paragraph 20 of P 17 she said that the sentence “Other than my text to Zawani in which I tried to sell her Ice, I did not offer anyone else “Ice”’ was incorrect.

84 As for her WhatsApp messages to Zawani, she said that it was for the purposes a job for social escort services which she used the code word “cleaning job” as she did not want Zawani’s boyfriend to know.

Zawani’s evidence

85 Zawani was the accused’s ex-colleague in a shipping company and was also a friend of the accused.

86 Zawani testified that the a few months before her WhatsApp messages between her and the accused on 15 May 2018 there was a barbeque at the accused’s place. At the barbeque, Zawani asked her friends (including the accused) to contact her if they had any part time jobs during mid-Puasa (the Muslim fasting month) as she wanted an additional part time job.

87 Zawani testified that the WhatsApp messages between her and the accused referred to the accused offering her a social escort job and the code word of “cleaning job” was used to refer to a social escort job as she did not want her boyfriend to know the she was instead being offered a social escort job.

88 She denied that the accused was offering to sell her drugs from the WhatsApp messages. She said that she had never taken drugs before.

The court’s decision on the trafficking charge

89 The sole issue that arose in the trial was whether the accused had successfully rebutted the s 17 MDA presumption of possession for the purposes of trafficking. Her defence was that she had bulk purchased the Ice in one transaction entirely for her own personal consumption.

90 In Muhammad bin Abdullah v Public Prosecutor and another appeal [2017] SGCA 4, the Court of Appeal held at [29]:

When an accused relied on the defence of consumption to rebut the presumption of possession for the purpose of trafficking, and where the drugs had not been re-packed or apportioned in any particular manner to differentiate those intended to be sold from those intended to be consumed, the court had to look at the totality of circumstances to determine whether the accused had rebutted the presumption in s 17. The court could consider whether there was reliable evidence as to the number of days the supply was meant to last in evaluating the credibility of an accused’s defence.

[emphasis added]

91 In Jusri bin Mohamed Hussain v PP [1996] 2 SLR(R) 706 (“Jusri”), the High Court made the following observations about an accused’s defence of consumption raised in an attempt to rebut the s 17 MDA presumption at [62]–[63]:

In conclusion, I was of the view that before any meaningful apportionment can be made, there must be credible evidence that part of the drugs found were meant for self-consumption. There must also be credible evidence of the rate of consumption as well as the number of days the supply is meant for. So far as the last item is concerned, as was noted by Rajendran J in PP v Dahalan bin Ladaewa, this should be looked at in connection with the frequency of supply.

In this respect, credible evidence does not mean the mere say-so of the accused. I appreciate that it is often difficult for an accused to adduce any other evidence apart from his own testimony. However, it seems to me that it must follow from the statutory presumption in s 17 of the Misuse of Drugs Act that an accused found in possession of a large quantity of drugs faces an uphill task. It cannot be right that the court is obliged to accept in all cases the bare allegation of the accused. That would make nonsense out of s 17.

[emphasis added]

92 In PP v Kwek Seow Hock [2009] SGHC 202, the High Court considered several factors in dealing with a defence of own consumption, namely: (a) the rate of drug consumption; (b) the frequency of supply; (c) whether the accused had the financial means to purchase the drugs for himself; and (d) whether he had made a contrary admission in any of his statements that the whole quantity of drugs was for sale.

93 In evaluating the accused’s consumption defence, I considered the accused’s evidence of her consumption pattern and financial situation, her various statements made to the CNB, the items that were found with the Ice, as well as her WhatsApp messages between the accused and Zawani.

Evaluation of the accused’s consumption defence

The accused’s consumption pattern and financial situation

94 The accused’s evidence was that she had suffered a relapse the week before her arrest on 16 May 2018. Prior to the relapse, she last consumed Ice more than 14 months back, in February 2017. In May 2018 she was still under drug supervision after her release from the Drug Rehabilitation Centre in June 2017 and was subject to drug testing once a month until the end of her supervision period in July 2018. As such, she had to control the level of her consumption until the end of her supervision period^{[note: 3]}.

95 Her explanation for purchasing three times more than the quantity of Ice she initially sought was that the pricing offered to her by Bab Yak’s friend was attractive. In terms of the quantity of Ice purchased, the accused said that she would not be mind if it lasted her for six months^{[note: 4]}. That said, she was not consistent on her rate and quantity of consumption. In her statement P 12, she spoke of a consumption rate of 0.2g each time, up to three times a day but in court she said the quantity might be less than 0.2g^{[note: 5]}. However, as the amount of Ice she had bought from Bab Yak (75g) and the amount of Ice she was arrested with (74.76g) had a difference of 0.24g (75g – 74.76g = 0.24g), she would then be consuming about 0.08g of consumption each time. This was derived from 0.24g divided by 3 in view of her claimed consumption of up to three times a day and not 0.2g as claimed at paragraph 5 of her statement P12.

96 The accused further qualified her evidence that because she was under drug supervision and subject to monthly drug testing until July 2018, she would be consuming at the same rate for three weeks and then not be consuming for one week to avoid detection during drug testing^{[note: 6]}. In my view, this evidence of her controlled consumption of Ice is at odds with what is stated in the CFD, where it was stated at [2] that “The Accused is a severe drug addict and consumes Methamphetamine on a regular basis”. This statement in her CFD is also at odds with her evidence in court that prior to her relapse one week before her arrest, she last consumed Ice more than 14 months back, in February 2017 was not therefore not consuming Ice on a regular basis.

97 As for her financial situation, based on her two bank accounts with OCBC and DBS (P 14 and P15), from the period February 2018 to the date of her arrest on 16 May 2018, her balance had dropped from $14,600 to $2,112.92, together with cash of $466 found at the time of her arrest.

98 Her evidence in court was that she had had other monies coming in as repayment of loans to her husband’s bank account. However, other than these bare assertions, no details of the borrowers, the amounts borrowed and the date of expected repayment were provided by her^{[note: 7]}.

99 In my view, for the accused to be spending $1,680 out of a total of $2,578.92 of available savings in her bank accounts ($2,112.92) and cash on hand ($466) would amount to spending a significant portion of her existing savings for some 4 to 6 months’ supply of Ice to consume. Given her evidence that she had relapsed to consuming Ice some 5 days before her bulk purchase of the Ice and that had not been consuming Ice since February 2017, that she was still subject to drug supervision and testing at that time and had to monitor her consumption, I did not find it credible on the evidence that she would spend such a large sum of her savings on 4 to 6 month’s supply of Ice entirely for her own consumption.

Her oral and cautioned statements

100 In her oral statement given to the police P3 on the day of her arrest the accused stated as follows:

Q7 When did you order the ice and how much did you pay for it ?

A7 On Monday (14/05/2018), I orders from `Bab Yak’ 75g. Then yesterday (16/05/2018) at around 0900hrs, `Bab Yak’ came to send the ice. I paid `Bab Yak’ $1740/- for the ice. That was the first and last time I brought from `Bab Yak.’

[emphasis added]

101 When asked by the court for clarification on how much Ice she had ordered from Bab Yak, the accused said that she did not mean to say 75g and “did not know how come they stated this 75”^{[note: 8]}. Upon clarification from defence counsel, she said that she ordered 25g from Bab Yak and not 75g.

102 Her evidence in court was that although she only ordered 25g from “Bab Yak”, she eventually purchased 75g on delivery as she was offered a good price by Bab Yak’s friend who delivered the drugs, as the 75g purchase was a spur of the moment bulk purchase at a cheaper price. This was materially inconsistent with P3 A7 that she had ordered 75g from Bab Yak two days earlier on 14 May 2018, which undermined her defence that she had made a spur of the moment purchase of 75g from Bab Yak’s friend. In my view, if she had stuck to her version of ordering 75g from Bab Yak two days earlier as stated in P3 A7, she would then be hard pressed to explain why she would need to order such a large quantity of Ice (3 times the claimed amount initially ordered) from him, as opposed to her version in court which was essentially an impulse bulk purchase as the price offered on the spot was attractive.

103 In her cautioned statement P 13 recorded on 16 May 2018 in answer to the trafficking charge, the accused stated “I have nothing to say”. There was no mention of her consumption defence in her cautioned statement.

Items found together with the Ice

104 When she was arrested the following items were found in her possession:

a) Digital weighing scale (P2-2)

b) 17 ziplock bags (P2-3)

105 With regard to the 17 ziplock bags, the accused claimed that this was meant for her to repack her “Ice” so that it would easier for her to consume. However, she gave differing accounts of where the ziplock bags were located and how they were to be used. In her statement P 12, she said that she had intended to repack the 3 packets of “Ice” into the three smaller bags but at trial she did not specify how many ziplock bags were to be used for repacking.

106 Under cross-examination the accused stated that the 17 ziplock bags were put in the black metal box P2-1 by her^{[note: 9]}. In re-examination she then claimed that the 17 ziplock bags had been kept elsewhere in a drawer and that they had been put into the black metal box P2-1 by one of the arresting officers^{[note: 10]}. This assertion by the accused on where the ziplock bags were found was not put to the arresting officers such as PW 2 Elyas who testified that the ziplock bags were found in the black metal box P2-1^{[note: 11]}.

107 As for the digital weighing scale which was also found in the black metal box P2-1, the accused stated at paragraph 8 of her statement P 12 that it had been bought by her husband and that she used it to weigh the Ice she bought. She testified that she did not use the scale to weigh the Ice when consuming it^{[note: 12]}.

108 If the Ice was entirely for the accused’s own personal consumption, she did not adequately explain why there needed to be so many small ziplock bags (together with the digital weighing scale) in the black metal box P2-1 with the purchased Ice. Further, if the accused used the digital weighing scale to weigh the drugs she bought but did not use the scale to weigh the ice when she consumed it, it was unclear as to why the digital weighing scale would need to be kept with the Ice in the black metal container P2-1.

109 Given that the Ice was already in three bags when purchased, her claim in her statement P 12 that she intended to repack them into another 3 ziplock bag made little sense, and in court she further shifted he position and said that the ziplock bags were not even found in the black metal container P2-1. In my view, her explanation of the presence of the 17 ziplock bags and the digital weighing scale found together with the Ice was neither consistent nor credible and did not support her claim that the Ice was to be used entirely for her own consumption.

Evaluating the text messages between the accused and Zawani

110 It is not in dispute that on 15 May 2018 the accused and Zawani sent each other a series of WhatsApp messages which had been literally translated in P6.

111 I had to evaluate the meaning of these text messages given the accused and Zawani’s explanation in court of what they meant together with the accused’s explanation of the messages to Inspector Rahman in her statement P 17 which had been admitted after an ancillary hearing.

112 For ease of reference, I set out the WhatAspp messages in the table below, with the literal translation, the accused and Zawani’s explanation of the messages as well as the accused explanation in her statement P 17 of what they meant.

Sender/ Date/ Time stamp	Message	Literal translation	Accused’s explanation in court	Zawani’s explanation	Accused’s explanation in her statement P 17
Accused 15/05/18 10:31:50	wanini	wanini	Refers to Zawani	Refers to Zawani	Refers to Zawani
Accused 15/05/18 10:32:03	u is no work I hap	u is no work I hap	If you hadn’t got a job I have a job for you	If you are not doing any part time job at that moment I have a part time job for you	Do you want Ice as I have a lot of Ice
Zawani 15/05/18 10:32:47	which work ? he he	Which work/hehe	Which work?	Which work ?	“work” refers to Ice
Accused 15/05/18 10:33:02	Work kemas rumah	Work tidying up the house	A cleaning house job	Work involving cleaning the house	“work” refers to Ice
Zawani 15/05/18 10:33:37	i mite need mid puasa	I mite need mid fast	I can take the job middle of Puasa (end May 2018)	I needed the job in the middle of the fasting month before Hari Raya
Zawani 15/05/18 10:33:44	goin fast tk na	Going fast or not na	Would the job be taken up anytime, how long will it be available ?	Would the job be taken up fast?
Accused 15/05/18 10:34:17	i tk keep long la	I don’t keep long la	If the job is taken up then it’s taken up	On a first come first serve basis
Accused 15/05/18 10:34:25	nk clear asap	Want to clear asap	If anyone wants to work to make it fast	I want the job to be taken up as soon as possible	I want to sell off as much Ice as I can to Zawani
Zawani 15/05/18 10:34:30	baru gak amik frm sue last wk	Quite recently took frm sue last wk	I already got a part time job from another friend Shue	I have already taken up a cleaning job from Shue
Zawani 15/05/18 10:34:37	brp syg?	Much/many darling	How much is the pay?	How much are they paying
Zawani 15/05/18 10:34:52	tkot tk reti kip je	Afraid Don’t know to kip only	Whether there was someone else interested in the job	I might not be able to juggle both jobs
Accused 15/05/18 11:11:16	u nk brape? hahahaha	U want hi much/many? Hahahaha	How many jobs do you want . Job refers to clients as it is a social escort job.	Zawani is unsure but it should the number of hours
Zawani 15/05/18 11:13:20	paling kecik mesti sukuk an? Lol	Smallest must be quarter right? Lol	The shortest period of work is 4 hours	4 hours of work
Zawani 15/05/18 11:13:40	u shud syg	U shud darling	Accused did not understand what Zawani meant	Zawani did not understand what she meant
Accused 15/05/18 11:15:27	kecik2 can la cuma dtg jauh2 ambik kecik2 hahahahaha	Small can la but you come so far and take small hahahahah	I travel all the way to the place for one client is a waste	It’s a wasted trip to take a 4 hours job
Zawani 15/05/18 11:16:35	suke?hehe	Happy?hehe	I’m happy	Like, happy
Zawani 15/05/18 11:16:48	suku brp?	Quarter how much?	How much is the 4 hours job	4 hours, how much are they paying	What is the cost for 1.25g of Ice?
Accused 15/05/18 11:16:53	80	80	$80 (referring to 4 hours and 1 client)	$80	$80 is the cost of 1.25g of Ice
Zawani 15/05/18 11:17:18	Psl tk work berat2, cam ne nk amik berat2	Because no heavy work, how to take heavy	I am not used to working this kind of line and date not take a few clients	I have done this and may not be able to sit with 2 or 3 customers
Zawani 15/05/18 11:17:30	can syg suku	Can darling quarter	I can take 1 job, 4 hours	One customer only for 4 hours
Zawani 15/05/18 11:17:53	sape la ye blh safekeep utk i?	Who can safekeep for me?	Can you hold the job for me	Zawani could not recall what she meant

113 In her evidence on court, the accused claimed that the text messages referred to a social escort job which she was offering Zawani. Even though the messages referred to her working as a cleaner in a house, she claimed that it was actually a code for a job as a social escort^{[note: 13]}. Zawani testified that when she referring to cleaning job is the messages she was using a code for escort services as she did not want her boyfriend to know.

114 In the CFD, it was stated at [17] as follows:

The Accused avers in particular that paragraphs of the statement have been inaccurately recorded and avers that the communication had with “Zawani” had pertained to offering her work as cleaning lady with details such as their shift and pay.

115 Significantly, there was no mention of social escort services in the CFD.

116 In my view, considering Zawani’s admission that she had never done a social escort job before, it was unclear why the accused would want to unilaterally offer such a job to her. As Zawani was actually doing a cleaning job at that time, it is unclear why she would choose to use such a code when she acknowledged that it was not a common slang to refer to social escort jobs as house cleaning jobs. Prior to the text messages, the only time this was discussed was at an alleged barbeque at the accused’s place some two to three months back.

117 Although she claimed that the social escort job was in Clarke Quay, there was no reference to any location in the WhatsApp messages. Zawani claimed that the accused had mentioned Clarke Quay to her at the barbeque. In my view, this was not credible as the social escort job would not have materialized at that time and even if it had, there should at least have been some reference to the location in the text messages sent several months later when the accused stated that it will be a wasted trip to do a four hour job.

118 Further Zawani could not adequately why she used the word “safe keep” in the messages which related more to the safe keeping of physical goods.

119 In view of the various internal and external inconsistencies in the evidence of the accused and Zawani, I rejected the accused and Zawani’s explanation of the text messages as referring to a social escort job.

120 I had earlier admitted her statement P 17 as having been voluntarily made after an ancillary hearing.

121 In P 17 the accused explained at paragraphs 18 and 19 what the text messages meant:

I am now shown 02 pieces of paper showing the WhatsApp messages I had with a female friend named “Zawani”….”Zawani” is an old friend of mine. I know that she smokes `Ice’ casually. I cannot remember how I got to know that she smokes `Ice’. I am now shown the text message which I sent on 15/05/2018 at 10:32 to “Zawani”. I admit that I intended to sell `Ice’ to “Zawani”. In the text which I said “u is no work I hap’, I was trying to find out “Zawani” if she wanted some `Ice’ as I had a lot of `ice’ with me. In that text, by “work” I am referring to 1Ice’. Later on, I texted her ‘nk clear asap”. By this, I meant that I wanted to sell off as much `ice’ as I can to her.

I am now shown the text message which I sent on 15.05/2018 at 11:16. “Zawani” texted me “suku brp?” which means that she was asking me for the cost of 1.25 grams of `ice’. To which I replied to her “80” which means SGD$80/-. I intended to sell “Zawani” some `Ice’ because I had too much `Ice’ on hand. I was not trying to sell `Ice’ for profit. However, in the end, I did not sell to “Zawani” as she did not follow up with me on the offer. The reason I offered her the price of SGD$80/- for 1.25 grams of `Ice’ is just random. I am not sure of the market price. I only got to know that 25 grams of `Ice’ cost about SGD$900/- from the time I called “bab Yak”. [emphasis added]

122 The defence submitted that P 17 should not be relied on by the court as the accused had retracted the confession and the prejudicial effect exceeded its probative value (see Muhammad bin Kadar & Anor v PP [2011] SGCA 32 at [73] to [75]) and the contents of paragraphs 18 to 20 “cannot be the truth” and the accused has since disavowed its contents in court.

123 As to the relevant weight to be placed on P 17, I make the following observations. I noted that the accused had handwritten “I texted this to Zawani” on each page of the text messages which had been annexed to P 17. She had also signed against the part of the text messages which were highlighted by the recorder Inspector Rahman which correlated to what she stated in paragraphs 18 and 19 of P 17. In my view, paragraphs 18 and 19 of P 17 had carefully referenced the text messages between the accused and Zawani and the accused had acknowledged this by initialing her signature against the relevant parts of the messages.

124 At paragraph 20 of P 17, the accused said that she only offered to sell Ice to Zawani and to no one else. She then said she was on bail and her next court mention was on 16 July 2018 at 9 am and she was reminded to attend and not to get in trouble with the law while on bail. With regard to the details of her bail and her next court mention, I failed to see how the defence could claim that these contents “cannot be the truth”. Further, if Inspector Rahman wanted to make up the contents in paragraph 20 to implicate the accused, there would be no reason for him to limit her culpability by stating that she offered to sell to only Zawani and no one else.

125 In testing the veracity and weight to be accorded to P 17, there needs to be a distinction from cases where the prosecution sought to rely on the accused’s confession as the sole basis of a conviction (see Jagatheesan s/o Krishnasamy v PP [2006] 4 SLR (R) 45 at [84]-[87]) and cases such as the present case, where the accused bears the burden of rebutting the s 17 MDA presumption. In the latter case, the accused’s confession in P17 needs to be assessed on a totality of circumstances, together with the other evidence in deciding if the accused has established the defence of consumption so as to successfully rebut the s 17 MDA presumption.

126 As I did not find the accused and Zawani’s evidence in court of the explanation of the text messages to be credible, I found that the text messages meant that the accused was offering to sell the drugs to Zawani as explained by the accused in P17.

Conclusion on whether accused had rebutted the presumption

127 In my evaluation of whether the accused had successfully rebutted the presumption of possession for the purposes of trafficking under s 17 MDA, I had emphasised that P17 was not the only piece of relevant evidence which the court had to consider. I looked at the totality of the circumstances, including her other statements, namely P3, P12 and P13, the accused and Zawani’s evidence in court and whether they were internally and externally consistent, as well as objective evidence such as the items found with the Ice and her financial situation at the time of her arrest.

128 I did not find as credible her evidence as to how she came about out to purchase such a large quantity of Ice given the inconsistency between her oral statement P3 and her evidence in court, the presence of 17 Ziplock bags and a digital scale found together with the purchased Ice, that she would spend such a large portion of her savings in the purchase of drugs entirely for her own consumption after a long break from consuming Ice and was still under drug supervision at that time. In her cautioned statement P 13, no consumption defence was mentioned by the accused. Lastly, in P 17 the accused had explained that the text messages between her and Zawani was referring to an offer by her to sell Ice to Zawani.

129 In the circumstances, I found that the accused had failed to rebut the presumption under s 17 MDA that she had the Ice in her possession solely for her own personal consumption and I convicted the accused on the trafficking charge accordingly.

Sentence

Prosecution’s submission on sentence

130 For the charge of trafficking which the accused had been convicted on, the mandatory minimum term of imprisonment was 5 years’ imprisonment and the maximum term of imprisonment was 20 years’ imprisonment.

131 The prosecution sought a sentence of at least 6 years’ imprisonment for the trafficking charge, 12 months’ imprisonment for the consumption charge and 4 months’ imprisonment for the utensils charge. The prosecution sought the imprisonment sentences for the trafficking and utensils charge to run consecutively resulting in a global sentence of 6 years and 4 months’ imprisonment.

132 The prosecution relied on Vasentha d/o Joseph v PP [2015] SGHC 197; [2015] 5 SLR 122 (“Vasentha”), where the High Court had set out a sentencing framework for first-time traffickers in diamorphine.

133 In Loo Pei Xiang Alan v PP [2015] SGHC 217; [2015] 5 SLR 500 (“Alan Loo”), the High Court held that based on parity between the statutory sentencing ranges, 1g of diamorphine was equivalent to 16.7g of Ice (the “Conversion Rate”). The High Court then applied the Conversion Rate to the sentencing framework in Vasentha to extrapolate the indicative starting sentences for the offence of trafficking in different quantities of Ice.

134 Based on the above conversion rate of 1 g of diamorphine equivalent to 16.7g of Ice, 51.5g of Ice would be equivalent to 3.05g of diamorphine. The relevant conversion table and the starting point is set out as follows:

Diamorphine	Methamphetamine	Imprisonment	Caning
Up to 3 g	Up to 50 g	5 – 6 years	5 – 6 strokes
3 – 5 g	50 – 84 g	6 – 7 years	6 – 7 strokes
5 – 7 g	84 – 117 g	7 – 8 years	7 – 8 strokes
7 – 8 g	117 – 134 g	8 – 9 years	8 – 9 strokes
8 – 9 g	134 – 150 g	10 – 13 years	9 – 10 strokes
9 – 9.99 g	150 – 166.99 g	13 – 15 years	10 – 11 strokes

[emphasis added]

135 The prosecution submitted that the indicative starting point for trafficking in 51.10g of Ice is an imprisonment term of at least 6 years and caning of at least 6 strokes. As the accused was female she was not eligible for caning and the prosecution confirmed that it was not seeking an imprisonment term in lieu of caning.

136 After the indicative starting point is arrived at, the sentence should be adjusted upwards or downwards depending on the culpability of the offender.

137 In this regard, the prosecution noted that the accused was not a mere drug courier and she attempted to sell the Ice herself, but it was not established that the accused person had concluded any sales. The evidence suggested that she was apprehended soon after she had started trying to sell the Ice.

138 The prosecution accordingly did not seek any adjustment to the indicative starting point based on her culpability, which would remain at 6 years’ imprisonment.

139 As the accused person had claimed trial to the trafficking charge, she would not benefit from the mitigating effect of a guilty plea.

140 Considering these factors, the Prosecution submitted that no adjustment was necessary to the indicative starting point sentence of 6 years’ imprisonment.

141 For completeness, I also set out the prosecution’s submission for the consumption charge and utensils charge to which the accused has pleaded guilty even though the accused has not appealed against these sentences.

142 For the consumption charge, the prosecution noted that with effect from 1 April 2019, the MDA imposed a mandatory minimum sentence of 1 years’ imprisonment for first-time consumption offenders. The accused person’s consumption offence was committed before the introduction of the mandatory minimum one imprisonment term.

143 The prosecution submitted that the usual range of sentences imposed for offences committed before mandatory minimum one imprisonment term was between 6 to 18 months’ imprisonment (Dinesh Singh Bhatia s/o Amarjeet Singh v PP [2005] 3 SLR(R) 1 (“Dinesh Singh”) at [38]).

144 The prosecution sought an imprisonment term of at least 12 months’ imprisonment, which fell in the middle of the 6 to 18 months range set out in Dinesh Singh, as the accused person has one prior admission to DRC and had not learnt from the chance that had been given to her.

145 As for the utensils charge, the prosecution sought a sentence of not less than 4 months’ imprisonment, which falls within the middle of the range of sentences imposed in other unreported cases where offenders pleaded guilty and did not have similar antecedents.

146 The prosecution asked for the imprisonment terms in the trafficking charge and the utensils charge to run consecutively, making it a global sentence of 6 years’ 4 month’s imprisonment.

Mitigation

147 Defence counsel submitted that the prosecution had made “a very objective and fair submission of sentence.” The defence submitted that the accused was 38 years old with a 20 year old daughter who lived with the accused’s mother and relied on her for living expenses. The accused had no fixed employment and worked on an ad hoc basis , earning $1,700 per month. She gave $1,000 per month to her mother and daughter. Although she had been convicted on trafficking, defence counsel submitted that there was no evidence that she had actually sold any of the Ice in her possession. She maintained her defence at trial that the Ice was for her personal consumption and submitted that the telephone messages to her friend Zawani were for social escort services and not to sell drugs. She was not a repeat offender.

148 Her relapse to consuming Ice was because of severe problems with her husband. Her husband left her and caused her to suffer depression when she found out that her husband’s mistress was made pregnant by him. She had turned to drugs to cope with her depression. Defence counsel urged the court to be lenient with her as she was at an age where it would be difficult to find sustained employment upon her release from prison. A long sentence meant that she may relapse into crime. The accused was in a loving relationship with her bailor and the accused hoped that the relationship will survive the sentence. Defence counsel accordingly urged the court to impose close to the minimum of 5 years’ imprisonment for the trafficking charge. As for the utensils charge, the defence submitted that given the circumstances the sentence should be no more than 2 months’ imprisonment.

The court’s decision on sentence

149 As noted by the High Court in Vasentha, for drug trafficking offences, the quantity of controlled drugs reflects the degree of harm to society and serves as a reliable indicator of the seriousness of the offence. The indicative starting sentence was accordingly determined by the quantity of drugs. In Alan Loo the High Court adopted the sentencing framework from Vasentha for Ice where the quantity of controlled drug gives the indicative starting sentence.

150 In Soh Qiu Xia Katty v PP [2018] SGHC 260 (“Katty Soh”) Chan J modified the sentencing framework in PP v Lai Teck Guan [2018] 5 SLR 852 which involved sentencing repeat trafficking offenders due to “gap” and “inconsistency” problems. Although Katty Soh was a case which involved a repeat offender, Chan J’s graph at [38] also dealt with first time offenders (“FT curve’) as illustrated in the graph below where the dotted curves represented Chan J’s modified framework.

151 Based on the conversation rate of 1 g of diamorphine to 16.7g of Ice, 51.5g of Ice would be equivalent to 3.05g of diamorphine. As highlighted in the above graph, the modified framework in Katty Soh did not yield a different indicative starting point for 3.05g of diamorphine. As such, based on the quantity of 51.1 g of Ice, the starting point would remain at 6 years’ imprisonment. Caning was not applicable as the accused was female and the prosecution did not seek imprisonment in lieu of caning.

152 Upon deriving the starting point, there would then need to be an adjustment for culpability and mitigating and aggravating factors. With regard to the accused’s culpability, the evidence revealed an attempt by the accused to sell Ice to Zawani which was not followed through and there was no actual or attempted evidence of sale of Ice to others before she was arrested. The evidence was that she had acted alone and was not part of a syndicate. In view of this, the accused’s culpability merited a downwards adjustment of the 6 years’ imprisonment indicative starting point to 5 years and 8 months’ imprisonment.

153 On the accused’s financial situation and personal background, as noted in Vasentha’s case at [84] affirming previous case such as Lai Oei Mui Jenny v PP [1993] 2 SLR(R) 406 and PP v Perumal s/o Suppiah [2000] 2 SLR(R) 145 at [23], except in the most exceptional circumstances, hardship to the offender’s family has very little, if any, mitigating value. As such, I did not make any further adjustments on account of aggravating or mitigating factors.

154 For the charges of possession of drug utensils and drug consumption to which she has pleaded guilty, I imposed sentences of 3 months’ imprisonment and 10 months’ imprisonment respectively, taking into account the usual range of sentences for such offences and as well as the fact that she had pleaded guilty to these charges.

155 As I was required by s 307(1) CPC to run two imprisonment terms consecutively in view of there being three terms of imprisonment, the sentences for possession for the purposes of trafficking (5 years and 8 months’ imprisonment) and the possessions of drug utensils (3 months’ imprisonment) were made to run consecutively.

156 The global sentence I accordingly imposed was 5 years and 11 months imprisonment.

157 The accused is on bail pending appeal.[Context] [Hide Context]

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