Case Summaries

Mohamed Affandi bin Rosli v Public Prosecutor and another appeal [2018]SGCA 87

SUPREME COURT OF SINGAPORE

5 December 2018

Case summary

Mohamed Affandi bin Rosli v Public Prosecutor and another appeal [2018] SGCA 87

Criminal Appeals No 38 and 39 of 2017

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Decision of the Court of Appeal (delivered by Chief Justice Sundaresh Menon on behalf of Senior Judge Chao Hick Tin and himself, with Judge of Appeal Tay Yong Kwang dissenting)

Outcome: CoA (by a 2:1 majority) allows appeal by two appellants against HC decision to convict both on charges of trafficking of diamorphine and abetting by instigation of the same respectively; Prosecution failed to establish beyond reasonable doubt the actual chain of custody of the drug exhibits from the point of seizure to the point of analysis by the HSA.

Pertinent and significant points of the judgment

  • It was incumbent on the Prosecution to first establish the chain of custody of the exhibits beyond reasonable doubt, and to account for the movement of the exhibits from the point of seizure to the point of analysis. It would then be for the defence to suggest that there was a break in the chain of custody by raising reasonable doubt as to whether the chain of custody had been broken: at [39] and [118].

  • It is a fundamental requirement of fairness in our system of criminal justice that the accused is clear as to what that case is. Hence, the Prosecution could not discharge its burden of establishing the chain of custody of the exhibits by leading evidence in support of a range of options, which were inconsistent with one another, and then inviting the court to choose that which it wished. Not only would that be completely inconsistent with the way facts were to be found, it was fundamentally unfair to the accused who would be left to face a shifting case with moving parts: at [52].

    Background to the appeal

  1. The appellants, Mohamed Affandi bin Rosli (“Affandi”) and Mohamad Fadzli bin Ahmad (“Fadzli”), faced various drug-related charges, two of which carry the mandatory death penalty. Affandi was charged with possession, for the purpose of trafficking, of not less than 132.82g of diamorphine, an offence under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). Fadzli was charged with abetting by instigating Affandi to commit the above, an offence under s 5(1)(a) read with s 5(2) and s 12 of the MDA. The High Court judge (“the Judge”) convicted both on these two charges and sentenced them to death. Both appealed against their convictions.

    The material facts

  2. On 12 July 2013, eight bundles wrapped in black tape (“the black bundles”) were found in Affandi’s car, and they were later found to contain the aforementioned diamorphine. Fadzli was arrested on the same day. In Affandi’s contemporaneous statement (“P105”) and cautioned statement (“P115”), Affandi claimed that it was Fadzli who instructed him to collect the black bundles. He subsequently claimed to have done it on the instructions of one “Mamak”, and that he had implicated Fadzli in the earlier statements because he was scared and confused, and because a Central Narcotics Bureau (‘CNB”) officer was “pressurizing” him.

  3. Fadzli denied knowledge of the drugs or of what Affandi did. In Fadzli’s contemporaneous statement (“P106A”), he claimed to not recognise Affandi when he was shown a digital photo of him, though he readily identified and acknowledged that he knew Affandi when subsequent statements were recorded. Further, in a statement taken on 16 July 2013 (“P119”), Fadzli inserted a handwritten amendment to the original version of the statement indicating that he “was not known as Abut to anyone”. “Abut” was the name that Affandi used to address Fadzli. Fadzli subsequently explained at trial that he meant to say that he was not known as Abut to anyone except his friends and family members.

  4. The Judge found that the two charges were made out, and imposed the mandatory death sentence on both appellants.

  5. On appeal, Affandi focused solely on attacking the integrity of the chain of custody of the exhibits. He argued that there were two weaknesses in the chain. First, there were differing accounts as to who in the arresting party had possession of the exhibits from the time they were seized until they were handed over to the Investigating Officer (“IO”). Second, after the IO took possession of the exhibits, she did not lock them in her safe, but left them on the floor of her office instead.

  6. Fadzli associated himself with the arguments made by Affandi on appeal, and further submitted that the version of events set out in P105 and P115 could not be relied upon as they contained assertions that were untrue or suspicious. Further, Fadzli argued that it was unsafe for the Judge to conclude that he had been lying in P106A given that the judge had no frame of reference to compare the photo to. In addition, Fadzli claimed that he had made a genuine mistake when amending his statement in P119.

  7. The Prosecution submitted that there was no break in the chain of custody of the exhibits. The Prosecution premised its case against Fadzli on version of events set out in P105 and P115, and on what they alleged to be lies in P106A and P119.

    The Decision of the majority (delivered by Chief Justice Sundaresh Menon on behalf of Senior Judge Chao Hick Tin and himself)

  8. The majority allowed both appeals and set aside the convictions of both Affandi and Fadzli on their respective capital charges. The primary finding was that the Prosecution failed to establish the chain of custody of the relevant exhibits: at [57] and [100].

    The integrity of the chain of custody

  9. It was incumbent on the Prosecution to first establish the chain of custody of the exhibits beyond reasonable doubt, and to account for the movement of the exhibits from the point of seizure to the point of analysis. It would then be for the defence to suggest that there was a break in the chain of custody by raising reasonable doubt as to whether the chain of custody had been broken. The Prosecution could not discharge its burden by leading evidence in support of a range of options, which were inconsistent with one another, and then inviting the court to choose that which it wished. Not only would that be completely inconsistent with the way facts were to be found, it was fundamentally unfair to the accused who would be left to face a shifting case with moving parts: at [39] and [52].

  10. During the course of the trial, two inconsistent narratives emerged as to how the drugs were handled by officers in the arresting party. In particular, there were inconsistencies as to where the drug exhibits were or who held the exhibits: (a) when the CNB operational vehicle was on the move between Affandi’s workplace, his flat and the Woodlands Checkpoint; (b) when the arresting party was searching Affandi’s flat; (c) when backscatter and K-9 searches were conducted on Affandi’s vehicle; and (d) after the arresting party returned to CNB headquarters. Neither of these two complete and mutually exclusive chains of custody of exhibits was established beyond a reasonable doubt. Each raised a reasonable doubt as to the other in relation to the manner in which the black bundles were seized from the accused and then passed to the CNB headquarters and the HSA. Given that there were two irreconcilable narratives on the evidence, the Prosecution had not properly strung a chain of custody: at [48] and [51].

  11. Affandi’s second argument was speculative as the IO’s office was locked and even though the keys to her office were centrally available, there was a clear protocol to be followed – the IO’s personal authorisation was required before anybody else could enter the office. During the period in question, no one had requested such access, and there was nothing to suggest that the protocol had been compromised: at [56].

    The version of events in P105 and P115

  12. There were three factors that gave rise to a reasonable doubt as to whether Fadzli was the mastermind behind Affandi’s involvement in the trafficking of the seized diamorphine. First, the amount of seized diamorphine was sizeable but on the available evidence, Fadzli did not even check on the black bundles when he met Affandi on 12 July 2013. Secondy, Affandi had direct access to one “Mamak”, who was identified by the Prosecution to be Fadzli’s drug supplier. But if Mamak was content to contact Affandi directly, Fadzli would have been superfluous and nothing was advanced to explain this and in particular to explain what his role was. Third, Affandi subsequently said that what he had said in P105 and P115, which was the sole basis of the case against Fadzli, was untrue, and that he had been acting on the directions of Mamak instead. Even though the court would nonetheless be permitted to rely on such withdrawn statements, the fact that the statements were retracted gave rise to the need to subject such statements to “painstaking if not relentless scrutiny”, and to assess the evidence carefully in order to consider whether it is nonetheless reliable having regard to all the circumstances of the case. This was especially relevant in the present case where the Judge harboured concerns over Affandi’s credibility and where the Prosecution had also accepted that Mamak was in fact Affandi’s supplier of the drugs: at [62]–[64].

  13. There were numerous inconsistencies and difficulties with P105 and P115. First, Affandi claimed to have collected the diamorphine from the heavy vehicle carpark near Ten Mile Junction but he changed his account several times and his vehicle was not captured in CCTV footage of the area during the material period. Second, Affandi claimed to have used the word “panas” despite not knowing what it meant because he overheard one of the arresting officers using it. This was simply untenable. Third, in P105, Affandi mentioned receiving a loan of $1,500 but later, in P115, claimed to receive remuneration of $400–$500 per collection. Finally, in P105, Affandi claimed that the present case was the first time he received drugs on behalf of Fadzli but later, in P115, claimed to have been doing it for a month at a frequency of once or twice a week: at [67]–[69].

  14. The Prosecution could not rely on the alleged lies in P106A and P119. In relation to the failure to recognise Affandi from the photographs shown to him, the Judge had not satisfactorily established for himself a proper frame of reference within which he could assess Fadzli’s evidence. There was no direct evidence as to exactly which photo was shown. Moreover, none of the photos before the Judge were in a digital form. Moreover, Fadzli was quick to acknowledge that he knew Affandi when subsequent statements were taken from him. It therefore did not seem that Fadzli had any real desire to distance himself from Affandi. In relation to the statement that he was not known as “Abut”, it did not seem to be the case that Fadzli was trying to dissociate himself from Affandi by making this statement given that he had not denied knowing and meeting Affandi in his cautioned statement given three days earlier: at [84], [85] and [91].

  15. It was inconclusive that there were communications between Affandi and Fadzli in the early morning of 12 July 2013 as there was also a heightened level of communication between Affandi and Mamak during that period. It was equally plausible that Mamak and Affandi were in touch for the delivery of the bundles, and that Fadzli was not involved: at [97]–[99].

    Decision of the minority (delivered by Judge of Appeal Tay Yong Kwang)

  16. Tay Yong Kwang JA dismissed both appeals and affirmed the decision of the Judge in convicting both appellants on their respective capital charges. There was no break in the chain of custody of the drug exhibits and Fadzli was found correctly to have abetted Affandi by instigating him to be in possession of the seized diamorphine for the purpose of trafficking. Tay JA also affirmed the Judge’s decision to impose the mandatory death sentence on both appellants: at [106], [117] and [176].

    Whether there was a break in the chain of custody of the exhibits

  17. The Prosecution bore the burden of proving beyond reasonable doubt that the drug exhibits seized by the CNB officers were the substances eventually analysed by the HSA, and where there was a break in the chain of custody such that a reasonable doubt arose as to the identity of the drug exhibits, the Prosecution would not have discharged this burden. However, speculative arguments regarding the mere possibility of contamination will not be sufficient to raise a reasonable doubt as to the identity of the exhibits: at [118].

  18. Affandi’s two arguments regarding the chain of custody of the exhibits fell within the realm of speculation and did not rise to the level of creating a reasonable doubt as to the identity of the seized drug exhibits. First, the two inconsistent narratives provided by the relevant CNB officers regarding the carriage of the exhibits did not suggest that there was a break in the chain of custody of the exhibits because going by either version of events, there was a single unbroken chain of custody of the exhibits from the seizure of the exhibits to the handing over of the exhibits. From the moment the exhibits were seized, they were not unaccounted for and they remained in the custody and control of at least one member of the team of CNB officers. Second, the argument that the IO did not store the exhibits properly after getting custody of them was premised on a mere theoretical possibility of contamination of the exhibits, and was incapable of raising any reasonable doubt as to the identity of the exhibits: at[120], [122], [123], [125].

  19. As regards the DNA profiling evidence, it did not matter that neither Affandi’s nor Fadzli’s DNA was found on any of the black bundles. There could be no doubt that the trash bag that the black bundles were in came from the CNB operation at MBS. As for the DNA traces of two other persons on two of the black bundles, the mere fact that someone had come into contact with one or some of the drug exhibits could not mean that the chain of custody was thereby broken: at [126] and [129].

    Whether Fadzli abetted Affandi by instigating him in the trafficking of the seized diamorphine

  20. Fadzli’s claim that he had met Affandi on 12 July 2013 for the sole purpose of collecting groceries purchased by Affandi for donation to an orphanage was not credible. First, there was no urgent need for Fadzli to insist on meeting Affandi on 12 July 2013 to collect the groceries for donation during the month of Ramadan because Hari Raya Puasa in 2013 was about 26 days away, and the groceries purchased were not perishables. Second, there was no good reason for Fadzli to travel to Affandi’s workplace in town just to collect goods for donation because both Affandi and Fadzli lived in the east, and the orphanage was also in the east: at [133]–[136].

  21. P105 and P115 constituted reliable evidence of Fadzli’s guilt.

    1. Confessions that have been retracted could still be used against a co-accused, depending on whether the witness retracting his statement can give a reasonable and reliable explanation for his retraction. Affandi’s reasons for retracting P105 and P115 should be rejected. Among other things, Affandi was lucid and had a clear mind when providing those statements, appeared to give those statements under no stress or pressure, and had no reason to implicate a close friend even if he wanted to provide substantive assistance by identifying someone falsely as having greater involvement in the drug activities: at[140], [141] and [145].

    2. The inconsistencies between P105 and P115 did not affect the core of those statements, which comprised the following common facts: (i) Fadzli was the one who instructed Affandi to collect the bundles of “panas”; (ii) Affandi would collect and safekeep the bundles for Fadzli; (iii) Affandi needed money; and (iv) money was passed by Fadzli to Affandi for doing these tasks. These facts were sufficient to implicate Fadzli: at [149].

    3. P105 and P115 were not contradicted materially by objective evidence. First, although the telephone records showed that Affandi had direct contact with Mamak previously, in the absence of information as to the contents of the calls, they were not capable of showing that Fadzli did not instigate Affandi to possess the seized diamorphine for the purpose of trafficking. Second, the telephone records showed that there had been constant communication between Affandi and Fadzli after Affandi had collected the drugs. Third, although the fact that Affandi’s car was not captured on the CCTV at the relevant junction at the material time contradicted Affandi’s account of the route he took as presented in P105, this inconsistency did not materially affect the rest of P105. Finally, there was strong forensic evidence that corroborated P105: at[150], [152], [157]–[159].

  22. The two lies told by Fadzli were capable of corroborating the evidence that supported the finding that Fadzli was guilty of the offence as charged. First, Fadzli clearly told a Lucas lie when he said he did not recognise Affandi in the photo while P106 was being recorded. This lie was in relation to a material issue of whether Fadzli knew Affand, and Fadzli told this lie deliberately and was motivated by a desire to dissociate himself from Affandi because his explanation for his failure to recognise Affandi was unbelievable. Second, Fadzli also told a Lucas lie when adding the statement that he “was not known as Abut to anyone” in P119 because there was absolutely no reason for him to volunteer this statement. The clear inference to be drawn from this deliberate and unsolicited insertion in P119 was that Fadzli was trying to distance himself from Affandi and the drugs that were still in Affandi’s custody: at [163],[167], [168] and [172].

This summary is provided to assist in the understanding of the Court’s judgments. 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 judgments.

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