Case Summaries

Ali bin Mohamad Bahashwan v Public Prosecutor and other appeals

SUPREME COURT OF SINGAPORE

5 March 2018

Case summary

Ali bin Mohamad Bahashwan v Public Prosecutor and other appeals
Criminal Appeals Nos 33, 34 and 35 of 2016

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Decision of the Court of Appeal (delivered by Justice Andrew Phang Boon Leong):

The Court of Appeal holds that a person who abets another to traffic drugs to himself for his own consumption is not liable for drug trafficking unless he himself intended to traffic in those drugs.

 1         This case involved three men who were convicted of trafficking in a single bundle of diamorphine (that is, heroin) which was the subject of a transaction in which they all were participants. Two of them were sentenced to death and one to life imprisonment. Their appeals against their convictions and sentences were dismissed by the Court of Appeal today.

Background

2          On the evening of 23 October 2012, Ali Bin Mohamad Bahashwan (“Ali”) told his flatmate, Selamat Bin Paki (“Selamat”) to collect a bundle of drugs from Ragunath Nair A/L Janartanan (“Ragunath”) at the void deck of a block of flats in Tampines. Selamat did so, and was arrested before he could deliver the drugs to Ali. Ali and Ragunath were also arrested shortly thereafter. The bundle contained not less than 27.12g of pure heroin, which is an amount the trafficking of which warrants capital punishment.

3          Ali was charged with abetting Selamat to traffic in the heroin in the bundle under s 5(1)(a) read with s 12 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). Selamat and Ragunath were charged with trafficking in that same bundle of heroin under s 5(1)(a) of the MDA. All three were tried jointly in the High Court. The High Court Judge (“the Judge”) convicted them on their charges. He passed the mandatory death sentence on Ali and Selamat. As Ragunath had been issued a certificate of substantive assistance, the Judge sentenced him to life imprisonment and a mandatory 15 strokes of the cane. All three accused persons appealed against their convictions and sentences.

Ali’s and Selamat’s appeals

4          Generally speaking, the claim that the offending drugs were for one’s personal consumption is a common answer to a charge of drug trafficking and is known as the personal consumption defence. This case involved what the Court termed a joint personal consumption defence: Ali’s and Selamat’s case was that they jointly intended to consume half the heroin in the bundle and to sell the other half. That was said to take the amount of heroin which Ali was charged for having abetted Selamat to traffic in, and which Selamat was charged for having trafficked in, below the amount warranting capital punishment. Advanced within the context of this case, this defence raised two questions of law. First, as a matter of principle, is it a valid defence for a person charged with abetting another to traffic in drugs to claim that the offending drugs were meant for his own consumption? Second, is there such a thing in law as a joint personal consumption defence?

5          On the first question, the Court held, in agreement with the ruling of the High Court in Liew Zheng Yang v Public Prosecutor [2017] SGHC 157 (“Liew Zheng Yang”) and contrary to the Prosecution’s submission, that a person incurs no criminal liability under s 5 read with s 12 of the MDA for abetting another to traffic drugs to himself if the drugs were meant for his own consumption. The Court referred to such a person as a “consuming-recipient”. The rule is that where there is evidence that an accused person was the intended recipient of drugs which he had allegedly abetted another to traffic in, the court must be satisfied – and the Prosecution has to prove – beyond a reasonable doubt that the accused himself had the intention to traffic in those drugs, before he can be convicted on the abetment charge. In other words, he has to be shown not to be a consuming-recipient. This rule is necessitated by the clear policy of the MDA, which draws a distinction between how addicts and traffickers are to be treated and punished. ([3], [33] and [75])

6          The Court held that there were two main reasons why the MDA’s policy had to inform and, indeed, modify the elements of the offence of abetting another to traffic in drugs in this specific factual context:

(a)          First, the question whether a consuming-recipient may be guilty of abetting another to traffic drugs to himself essentially involves the question whether s 12 of the MDA makes an abettor liable to be punished as if he had committed an offence under the MDA which he as principal could not, by the very terms of that offence, have committed. This is a question that should and must be answered with reference to the policy of the MDA. ( [36], [40], [47] and [48])

(b)          Second – and this is a principle that buttresses the first reason and further justifies the need to look at the MDA’s policy – the common law contains a specialised rule of statutory interpretation that invites the court to look at how the legislature intended to deal with conduct which is inevitably incidental to a statutory offence before deciding whether such conduct is criminalised and, if so, how. By way of example, prostitution is conduct which is an inevitable incident of the statutory offence of living on the earnings of a prostitute; but prostitution is not itself intended by Parliament to be criminalised, certainly not through accessory liability for that statutory offence. Similarly, the intended receipt of drugs is conduct which is an inevitable incident of the statutory offence of trafficking, and it is therefore necessary to ask how the legislature intended to deal with such receipt in so far as the recipient participated in the trafficking offence, especially when he is a mere addict. Otherwise, as even the Prosecution accepted, virtually every person in possession of drugs for his own consumption would be liable for abetting another to traffic in drugs. ([49], [55], [57], [59], [62] and [63])

7          In that regard, the Court observed that it is well-established that the MDA is intended to operate differentially as between drug traffickers and drug addicts. This distinction has been expressly and repeatedly articulated in relevant ministerial statements with regard to the MDA, and is captured in the MDA’s provision not only for more severe penalties for drug traffickers compared to drug addicts but also for rehabilitative measures for the latter group. The centrality of this distinction to the MDA’s policy and the absence of any evidence of legislative intention that a consuming-recipient should be treated as a trafficker led the Court to the view that Parliament cannot have intended to criminalise consuming-recipients under the offence of drug trafficking. And that is why the rule in Liew Zheng Yang was held to be correct. ( [65], [67] and [74])

8          In so far as the second question is concerned, the Court disagreed with the Judge, and held that there is no such thing as a joint personal consumption defence: each accused person must be treated individually and independently for the purpose of the charge which has been brought against him. Therefore, the amount that Ali intended to consume could not be credited to Selamat, and vice versa, for the purpose of either of their attempts to establish that the portion of the heroin intended for personal consumption takes its total quantity below the amount warranting capital punishment. ([3] and [98])

9          Turning to the merits of their appeals, the Court observed that the Judge was wrong to consider Ali as being presumed under s 17 of the MDA to have the intention of trafficking in the offending drugs. The presumption under s 17 arises upon the fact of possession of the offending drugs. As Ali never came into possession of the offending bundle of heroin, he cannot be presumed to have had the intention to traffic in it. The Judge was correct, however, to proceed on the basis that that presumption applies to Selamat because Selamat was in possession of the bundle. ( [92] and [95])

10          Nevertheless, the Court was of the view that Ali’s and Selamat’s appeals had no merit. To begin with, there was no factual basis in the idea that Ali and Selamat jointly intended to consume half the heroin in the bundle. It was Ali who paid for and had full ownership over the heroin in the bundle, and Selamat had a mere expectation to receive some amount of heroin from Ali in exchange for making drug deliveries. There was also no reasonable doubt that Ali intended to traffic in the bulk of the heroin in the bundle in so far as he intended (a) to sell at least half the bundle for profit and (b) to give a substantial portion of the remaining heroin to Selamat. Furthermore, the assertion that half the bundle was intended to be consumed by them was incredible because it did not match their own evidence on their rate of consumption and the number of days the supply was meant for. ([98], [99] and [105])

11          Therefore, in so far as Ali is concerned, he was not a consuming-recipient and could obtain no assistance from the rule in Liew Zheng Yang. In so far as Selamat was concerned, he had failed to rebut the presumption of trafficking under s 17 of the MDA because the evidence showed that he intended to transport the bundle to Ali. His motive for doing so – that is, to obtain heroin from Ali as a reward – was irrelevant to the charge as it showed only that he was a courier, not that he was not a trafficker. For these reasons, the Court dismissed Ali’s and Selamat’s appeals against their convictions and sentences. ( [3], [101] and [103])

Ragunath’s appeal

12          The Court noted that the Judge correctly held that Ragunath is presumed under s 18(2) of the MDA to know that the bundle contained heroin. The key issue in his appeal was therefore whether he could rebut that presumption on the balance of probabilities. ([115])

13          The Court held that he failed to do so, largely for the reasons given by the Judge. In particular, various material inconsistencies in his evidence strongly suggest that his account of being under the impression that he was helping a friend deliver a bundle of medicine is unbelievable. For example, at the time he was arrested, he told the Central Narcotics Bureau that he thought that the bundle contained foodstuff. It was only later – in his long statements and at trial – that he claimed that it contained medicine for the elderly, which suggests that that claim is an afterthought. Text messages found in his mobile phone also indicate that he had previously visited the place where he delivered the bundle to Selamat, and this contradicts his claim that 23 October 2012 was his first time there. Accordingly the Court dismissed his appeal against his conviction. ( [128], [129], [130] and [134])

14          The Court also dismissed his appeal against his sentence because the Judge imposed the minimum possible sentence in law. ([139] )

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

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