Case Summaries

Mohammad Rizwan bin Akbar Husain v Public Prosecutor and another appeal and another matter [2020] SGCA 45

SUPREME COURT OF SINGAPORE

8 May 2020

Case summary

Mohammad Rizwan bin Akbar Husain v Public Prosecutor and another appeal and another matter [2020] SGCA 45
Criminal Appeals Nos 9 and 13 of 2018 and Criminal Motions Nos 4 and 11 of 2019

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Decision of the Court of Appeal (delivered by Tay Yong Kwang JA):

Outcome: Court of Appeal affirmed Mohammad Rizwan’s conviction and sentence for abetting by instigating another person to be in possession of not less than 301.6g of diamorphine for the purpose of trafficking and Saminathan Selvaraju’s conviction and sentence for trafficking in not less than 301.6g of diamorphine by delivering the drugs.

Introduction

1 Mohammad Rizwan bin Akbar Husain (“Rizwan”) and Saminathan Selvaraju (“Saminathan) were jointly tried before a High Court Judge (“the Judge”). Rizwan faced a charge for abetting by instigating Zulkarnain bin Kemat (“Zulkarnain”) to be in possession of not less than 301.6g of diamorphine for the purpose of trafficking. Saminathan faced a charge of trafficking in not less than 301.6g of diamorphine by delivering the drugs to Zulkarnain. Both Rizwan and Saminathan were found guilty and convicted on their respective charges.

2 The Judge found that Saminathan was a courier within the meaning of s 33B(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed). However, as the Public Prosecutor did not issue a certificate of substantive assistance to Saminathan, the alternative sentencing regime was not available, and the mandatory death penalty was imposed. As for Rizwan, the Judge found that he was not a courier. In any event, Rizwan did not receive a certificate of substantive assistance. Accordingly, the Judge imposed the mandatory death penalty on him.

3 Criminal Appeal No 9 of 2018 (“CCA 9/2018”) and Criminal Appeal No 13 of 2018 (“CCA 13/2018”) were, respectively, Rizwan’s and Saminathan’s appeals against conviction and sentence.

4 Prior to the hearing of the appeals, both Rizwan and Saminathan filed separate criminal motions to adduce further evidence, namely, Criminal Motion No 11 of 2019 (“CM 11/2019”) and Criminal Motion No 4 of 2019 (“CM 4/2019”). These were heard and dismissed on 22 November 2019, with the court indicating that its reasons would be given after the hearing of the substantive appeals.

Facts

5 On 20 November 2013, Zulkarnain was placed under surveillance by the Central Narcotics Bureau (“CNB”) and followed to Chin Bee Drive. At about 9.55pm, a black Mitsubishi Lancer (“the Black Mitsubishi”), which was registered in Rizwan’s name, was observed parked in front of Zulkarnain’s car. Both cars subsequently moved from Chin Bee Drive into Quality Road and drove past a stationary trailer with its hazard lights turned on (“the Trailer”). The driver of the Trailer, a male Indian, alighted and placed some items in Zulkarnain’s car. All three vehicles left Quality Road and were separately tailed by CNB officers.

6 Zulkarnain was followed to Tagore Industrial Avenue where he was arrested. Two red plastic bags were found in the rear of his car containing 35 black-taped bundles of drugs which formed the subject of the charges against Rizwan and Saminathan. The Black Mitsubishi was tailed to Tampines Avenue 7 where the CNB officers lost sight of the car after it made a sudden U-turn. As for the Trailer, it was tailed to Tuas Checkpoint where it passed through the Immigration and Checkpoints Authority (“ICA”) gantry at about 10.15pm and departed for Malaysia.

7 Five days after the incident, Rizwan left Singapore illegally and entered Malaysia by hiding in the boot of a car. He was eventually arrested on 28 November 2013 and repatriated to Singapore. Saminathan was identified as the driver of the Trailer from ICA’s records and arrested on 25 March 2014 at the Woodlands Checkpoint when he entered Singapore.

8 In the course of investigations, Zulkarnain identified Rizwan as his “Boss”, being the person whom he took orders from to collect the drugs.

The court’s decision regarding Rizwan

9 Rizwan contended that the Judge erred in finding that Zulkarnain’s evidence was corroborated by other evidence. He also challenged the Judge’s finding that he had knowledge of the nature of the seized drugs and intended to traffic in them: at [55]–[56].

10 The court found that the Judge was entitled to take into account all relevant evidence before the court without first considering whether any particular piece of evidence individually satisfied the test in R v Baskerville [1916] 2 KB 658: at [63].

11 The court agreed with the Judge that Zulkarnain’s testimony identifying Rizwan as “Boss” was “cogent, coherent and consistent”. Zulkarnain identified Rizwan’s photograph from the day after his arrest while Rizwan was still at large and explained that he was familiar with Rizwan as he had carried out other similar transactions for Rizwan prior to 20 November 2013. Zulkarnain’s account was also supported by extrinsic evidence in the form of text messages forensically extracted from one of the handphones seized from him: at [65]–[67].

12 There was no reason for Zulkarnain to implicate Rizwan falsely instead of naming the real “Boss” if his purpose was to obtain a certificate of substantive assistance. At the material time of identification, Rizwan was not in custody and it could not be said that Zulkarnain was simply looking for a convenient scapegoat: at [69].

13 Rizwan’s account was plainly unconvincing. Rizwan claimed that he had lent the Black Mitsubishi to a man he called “Uncle” and it was the latter who informed him that something had happened to his car and then instructed him to leave home and country. However, Rizwan’s testimony contradicted the objective evidence and he was also unable to provide any explanation for the vastly differing accounts that he put forward on his whereabouts on 20 November 2013. His actions in leaving Singapore illegally also pointed to his guilt: at [70]–[74].

14 The court also agreed with the Judge that Rizwan had the necessary mens rea for the charge against him. The elaborate planning of the transaction, with multiple electronic communication devices used to avoid detection, as well as Rizwan’s flight from the scene, showed that Rizwan knew the nature of the drugs. The irresistible inference from the sheer amount of diamorphine involved was that Rizwan intended to traffic it: at [77], [78] and [80].

15 As such, the court affirmed the Judge’s conclusion that Rizwan was guilty of the charge of abetting by instigating Zulkarnain to be in possession of the drugs for the purpose of trafficking: at [82].

16 In respect of Rizwan’s application in CM 11/2019 to adduce further evidence on appeal, the court explained that it had dismissed the application as it found that the evidence sought to be adduced was not reliable: at [110], [111] and [118].

The court’s decision regarding Saminathan

17 Saminathan argued that the Judge erred in placing undue weight on various strands of circumstantial evidence in order to convict him and that someone had impersonated him by using his passport to enter Singapore to carry out the drug transaction: at [57].

18 The court was of the view that Saminathan’s conviction was safe even if the statement from his former employer, Mr Murugan a/l Silvarajoo (“Murugan”) was excluded. It was undisputed that the driver of the Trailer delivered the drugs to Zulkarnain and that the Trailer was tailed to the Tuas Checkpoint where it left for Malaysia. The ICA records showed that Saminathan drove the Trailer into and out of Singapore on numerous occasions and that Saminathan’s passport was used to exit Singapore after the drug transaction took place. The testimony of Staff Sergeant Goh Cheow Siang, who processed the exit of the Trailer, showed at the very least that the person who presented Saminathan’s passport bore a resemblance to the photograph in the passport. The fact that Saminathan’s DNA was found on the interior of one bundle of drugs from each of the red plastic bags pointed “inexorably” to Saminathan having been the one who delivered the drugs to Zulkarnain: at [97]–[99].

19 As against this, Saminathan’s defence was premised on a fortuitous confluence of several highly unlikely coincidences. The impersonator would have had to be aware of Saminathan’s practice of leaving his passport on the dashboard of the Trailer or came across it by chance, borne a reasonable resemblance to Saminathan’s photo in the passport or took the chance that the discrepancy would not be noticed, and somehow managed to transfer Saminathan’s DNA onto the drug bundles. The actions of the alleged impersonator were patently illogical and highly improbable as they would add to the transaction the unnecessary risks of being stopped by the ICA at the checkpoint. Saminathan’s credit was also further diminished by his failure to mention in any of his statements the possibility of an impersonator despite claiming that he was aware of the possibility in the course of investigations: at [100]–[105].

20 As such, the court agreed with the Judge’s conclusion that Saminathan was the person who delivered the drugs to Zulkarnain on the night of 20 November 2013. Given the nature of Saminathan’s defence, there was no evidence to rebut the presumption of knowledge under s 18(2) of the MDA. The court thus affirmed Saminathan’s conviction: at [106]–[107].

21 In respect of Saminathan’s application in CM 4/2019 to adduce further evidence on appeal, the court explained that it had dismissed the application to admit the testimony of his mother and sister as the evidence did not satisfy the requirement of non-availability and was also unreliable. As for the remaining categories of evidence sought to be adduced, they did not satisfy the requirement of relevance: at [109] and [113]–[117].

 

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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