Case Summaries

Saravanan Chandaram v Public Prosecutor and another matter [2020] SGCA 43

SUPREME COURT OF SINGAPORE

29 April 2020

Case summary

Saravanan Chandaram v Public Prosecutor and another matter [2020] SGCA 43
Criminal Appeal No 46 of 2017 and Criminal Motion No 15 of 2018

Decision of the Court of Appeal (delivered by Chief Justice Sundaresh Menon):

Outcome: CoA upholds the appellant’s conviction and sentence for importing cannabis, but overturns his conviction for importing cannabis mixture. 

Pertinent and significant points of the judgment:

  • “Cannabis mixture” as defined in s 2 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) means cannabis plant matter commingled with vegetable matter of non-cannabis origin or known to be of indeterminate origin, where the components cannot be easily distinguished or separated from each other (at [119] and [198(a)]).
  • The sentencing ranges for the offences of trafficking in, importing and exporting cannabis mixture should be calibrated according to the gross weight of the cannabis mixture concerned, and this sentencing framework is constitutional (at [150], [151], [172] and [198(b)]).
  • The Prosecution’s current practice of preferring two distinct charges – one pertaining to cannabis and the other, cannabis mixture – in respect of a single compressed block of cannabis-related plant material is not defensible and is hence impermissible (at [191] and [198(c)]).

Background to the appeal

1 The appellant, Saravanan Chandaram (“the Appellant”), was tried and convicted in the High Court of two separate charges involving the importation of cannabis and cannabis mixture respectively under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). Ten wrapped bundles were found in the car that the Appellant had driven into Singapore from Malaysia. Each of these bundles was analysed by the Health Sciences Authority (“the HSA”) and reported to contain both cannabis and cannabis mixture. Specifically, these bundles were reported to contain an aggregate of not less than 1,383.6g of cannabis and not less than 3,295.7g of fragmented vegetable matter containing cannabinol (“CBN”) and tetrahydrocannabinol (“THC”). These bundles were the subject of the two charges brought against the Appellant.

2 The determination of the existence of cannabis mixture in the ten bundles was made in line with the interpretation of the statutory definition of “cannabis mixture” that was laid down in Public Prosecutor v Manogaran s/o R Ramu [1996] 3 SLR(R) 390 (“Manogaran”). It was on this basis that the Prosecution preferred one charge of importing cannabis (“the Importation of Cannabis Charge”) and one charge of importing cannabis mixture (“the Importation of Cannabis Mixture Charge”) against the Appellant. According to the Prosecution, this was in line with its current charging practice (the “Dual Charging Practice”), which was as follows: where a single compressed block of cannabis-related plant material was certified by the HSA as containing (a) cannabis as well as (b) fragmented vegetable matter containing CBN and THC, the Prosecution would consider preferring a charge of trafficking in, importing or exporting cannabis in respect of the portion certified by the HSA as consisting purely of cannabis, and a charge of trafficking in, importing or exporting cannabis mixture in respect of the portion consisting of fragmented vegetable matter that, while not specifically certified by the HSA as cannabis, had been found to contain CBN and THC.

3 The material facts were that sometime in August 2014, the Appellant met an unidentified Malaysian man called “Aya”. The Appellant knew that Aya was a drug syndicate leader in Malaysia who arranged deliveries of drug consignments to Singapore and accepted Aya’s offer to employ him as his driver.

4 On 5 November 2014, the Appellant agreed, at Aya’s direction, to deliver ten bundles to a client in Singapore, for which he was to be paid S$5,000. Aya instructed the Appellant to collect a rented car (“the Car”) from a specified venue in Johor Bahru and then get its windows tinted. Subsequently, the Appellant met Aya, who handed him a blue bag containing the ten bundles. Aya allegedly told the Appellant that the bundles contained tembakau (meaning tobacco in the Malay language) and were to be concealed in the Car. On Aya’s instructions, the Appellant concealed the bundles in the Car’s armrests. He then parked the Car near his residence and handed the keys of the Car to Aya. The next morning, a relative of Aya handed the keys back to the Appellant, and on Aya’s instructions, the Appellant drove the Car to Singapore. He was arrested at Woodlands Checkpoint, and the ten bundles were discovered by the enforcement authorities after a search of the Car.

5 The Appellant admitted bringing the ten bundles into Singapore, but denied knowing that they contained controlled drugs. His defence was that he believed the bundles contained nothing other than contraband tobacco. He said that his involvement in the transportation of the bundles to Singapore arose out of his need to repay a loan he had obtained from Aya for an operation that his son had to undergo. Aya was willing to have the loan repaid by way of deductions from his salary and presumably from other payments due to him, and he therefore agreed to deliver tembakau. According to the Appellant, Aya had initially asked him to transport controlled drugs to Singapore, but he had declined to do so. He had made it clear to Aya that he would not deliver controlled drugs to Singapore because of the severe penalties for bringing such drugs into Singapore. He claimed that he had been deceived by Aya into bringing “ganja” (meaning cannabis) into Singapore, and that he would never have done so knowingly because he was aware that he could face the death penalty if he were caught.

6 After examining the evidence, the High Court judge (“the Judge”) convicted the Appellant of both charges. The Judge was satisfied that the Appellant was a mere courier, and as the Public Prosecutor had issued him with a Certificate of Substantive Assistance, the Judge sentenced him under s 33B(1)(a) of the MDA to life imprisonment and the minimum 15 strokes of the cane per charge, resulting in an aggregate sentence of life imprisonment and the statutory maximum of 24 strokes of the cane. The Appellant appealed against his conviction and his sentence.

The Court of Appeal’s decision

The Importation of Cannabis Charge

7 The Court of Appeal (“the Court”) dismissed the Appellant’s appeal against his conviction on the Importation of Cannabis Charge as it did not find the claims which he made in his defence plausible.

8 The Court disagreed with the Judge’s finding that the Appellant had actual knowledge that the ten bundles that he imported into Singapore contained cannabis. It held that the reasons that the Judge relied on in finding that the Appellant had actual knowledge of the nature of the drugs in these bundles did not in fact afford a basis for such a finding. Rather, the Judge’s reasoning entailed finding weaknesses in the Appellant’s contentions, which together provided a patchwork of suspicious circumstances. While these circumstances were probative of wilful blindness in the extended sense, they could not suffice in and of themselves to prove actual knowledge (at [27], [29] and [30]).

9 The Court agreed, however, with the Judge’s alternative finding that the Appellant had failed to rebut the presumption under s 18(2) of the MDA that he had actual knowledge of the nature of the drugs in the ten bundles. The Appellant’s contention that he thought he was only transporting contraband tobacco was found to be incredible for the following reasons. First, the Appellant knew of Aya’s drug activities, and also knew that Aya was, in his own words, a “drug boss”. He had also previously helped Aya to collect “drugs money” from his clients. Second, the Appellant knew that he would be transporting contraband items to Singapore. Aya had initially asked him to transport drugs, which he had ostensibly refused to do. His claim that Aya then asked him to transport contraband tobacco instead seemed a glib and convenient way to explain how his purported resistance to transporting drugs was overcome. Third, the Appellant admitted to having been “scared” prior to the delivery, as a result of which he consumed methamphetamine “to feel brave”. This was something he had not felt the need to do when he collected “drug and illegal tobacco money” for Aya on previous occasions. Fourth, the Appellant was to be paid a large sum for transporting the ten bundles to Singapore, which would have been wholly disproportionate if the task had entailed transporting only contraband tobacco. Fifth, the Appellant claimed that he would not knowingly have brought controlled drugs into Singapore because he knew of the harsh penalties for drug trafficking under Singapore law. If this were indeed a genuine concern, the Appellant would have considered most carefully Aya’s purported assurance that he would only be transporting contraband tobacco to Singapore, especially given what he knew about Aya. Sixth, the various steps that the Appellant took, under Aya’s directions, to avoid detection, including renting the Car, tinting its windows and concealing the ten bundles in its armrests, all made it implausible that such elaborate arrangements would be undertaken for a transaction involving just the delivery of contraband tobacco (at [31] and [35]).

10 The Court specifically found that the Appellant’s contention that he trusted Aya and relied on Aya’s assurance that the ten bundles did not contain illicit drugs was incredible in view of the circumstances in which he had come to know Aya and what he knew about Aya. Given these circumstances, when Aya asked the Appellant to deliver the ten bundles to a recipient in Singapore in highly suspicious circumstances and purportedly told the Appellant that the bundles only contained contraband tobacco, it was simply incredible that the Appellant would accept this at face value. This was all the more so given the Appellant’s testimony about how worried he supposedly was about being involved in drug trafficking activities because of the harsh penalties facing drug traffickers under Singapore law (at [36], [37], [38] and [39]).

11 The Court was also unpersuaded by the argument that the Appellant should be believed because the Prosecution failed to adduce the evidence of the intended recipient of the ten bundles as to what he had been expecting to receive. As the Appellant’s claim that he believed he was merely transporting contraband tobacco was incredible, the evidential burden had not shifted to the Prosecution to rebut his claim. The Prosecution’s failure to call the intended recipient of the ten bundles as a witness was therefore immaterial, and the presumption of knowledge under s 18(2) of the MDA remained unrebutted (at [40]).

12 For these reasons, the Court dismissed the Appellant’s appeal against his conviction on the Importation of Cannabis Charge (at [41]).

The Importation of Cannabis Mixture Charge

13 The Court allowed the Appellant’s appeal against his conviction on the Importation of Cannabis Mixture Charge and set aside his conviction on that charge on the basis that the charge could not be established (at [188] and [197]).

14 The Court held that “cannabis mixture” as defined in s 2 of the MDA meant cannabis plant matter commingled with vegetable matter of indeterminate origin or known to be of non-cannabis origin, where the components could not be easily distinguished or separated from each other. This meaning was preferred to the primary meaning coined in Manogaran, namely, “an unadulterated mixture of vegetable matter of entirely cannabis origin”, because there was simply no mixture to speak of in relation to plant material that was unadulterated and of entirely cannabis origin. The holding in Abdul Raman bin Yusof and another v Public Prosecutor [1996] 2 SLR(R) 538 that cannabis mixture only encompassed drugs containing cannabis plant material and some other vegetable matter was therefore correct, and the Court overruled Manogaran to this extent (at [104], [119] and [198(a)]).

15 The Court held that on a true construction of the relevant provisions in Part I and Part IV of the First Schedule to the MDA, cannabis mixture was a Class A controlled drug under the MDA. Further, the sentencing ranges for the offences of trafficking in, importing and exporting cannabis mixture should be calibrated according to the gross weight of the cannabis mixture concerned, and not the amount of THC or CBN contained in the cannabis mixture. This was borne out by the definition of “cannabis mixture” in s 2 of the MDA, which stated that cannabis mixture was “any mixture of vegetable matter containing [THC] and [CBN] in any quantity” [emphasis added], and the fact that the various sentencing thresholds set out in the Second Schedule to the MDA as well as the case precedents for offences involving cannabis mixture were all based on the gross weight of cannabis mixture. The Court was also satisfied that a sentencing framework based on the gross weight of cannabis mixture did not breach the constitutional guarantee of equality in Art 12(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) as it passed muster under the “reasonable classification” test. The gross weight of cannabis mixture was clearly an intelligible differentia, and it also bore a rational relation to the purpose and object of the MDA (at [138], [139], [150], [151], [155], [171], [172] and [198(b)]).

16 In relation to the issue of whether the fragmented vegetable matter in a compressed block of cannabis-related plant material could be said to fall within the definition of “cannabis mixture” in s 2 of the MDA, the Court held that there was nothing objectionable with treating such vegetable matter as cannabis mixture because cannabis mixture, as defined by the Court, included vegetable matter that was ultimately of indeterminate origin (at [178]).

17 The Court held that the Importation of Cannabis Mixture Charge could not be established. This was because the vegetable fragments that were created as a result of the HSA’s testing procedure (the “Created Fragmented Vegetable Matter”) did not exist in that form at the time the Appellant brought the ten bundles into Singapore on 6 November 2014, and there was no basis for saying that the fragmentation, which occurred as a consequence of the HSA’s testing procedure, was intended by the Appellant. Accordingly, it could not be held that at the time of the offence, the Appellant knew the nature of the Created Fragmented Vegetable Matter or knew that it was cannabis mixture. This was significantly compounded by the fact that it was impossible to ascertain accurately the quantity of vegetable fragments that were created as a result of the HSA’s testing procedure and the quantity of vegetable fragments that were already present in the ten bundles when the Appellant brought them into Singapore. Any estimate of the quantities of cannabis and cannabis mixture at the time of the offence extrapolated from their respective quantities after the HSA’s testing would inevitably be arbitrary. For the same reasons, the Prosecution’s Dual Charging Practice in respect of a single compressed block of cannabis-related plant material that was found to contain (a) cannabis as well as (b) fragmented vegetable matter containing CBN and THC (which could not be certified as cannabis by the HSA) was indefensible and, hence, impermissible (at [186], [187], [188], [192] and [198(c)]).

Conclusion

18 Although the Court overturned the Appellant’s conviction on the Importation of Cannabis Mixture Charge, it upheld his conviction on the Importation of Cannabis Charge as well as the sentence meted out by the Judge for that charge. The sentence which the Appellant had to serve was thus life imprisonment and 15 strokes of the cane (at [199]).

 

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

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