Case Summaries

Zainudin bin Mohamed v Public Prosecutor

SUPREME COURT OF SINGAPORE

12 February 2018

Case summary

Zainudin bin Mohamed v Public Prosecutor
Criminal Appeal No 29 of 2016

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Decision of the Court of Appeal (delivered by Judge of Appeal Steven Chong):

CoA sets out guidance on whether drug traffickers who divide and pack drugs fall outside the scope of the “courier exception” for discretionary life sentencing under the Misuse of Drugs Act.

1         This appeal concerned the interpretation of s 33B(2)(a) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”), which sets out the requirements for a person convicted of the offence of drug trafficking or drug importation to be considered a mere “courier”. The crux of the appeal was whether the division and packing of drugs by an offender takes him out of the definition of a “courier”. In its judgment, the Court of Appeal also examined and rationalised the breadth of activities which would be considered to be acts that are preparatory to or for the purpose of transporting, sending or delivering a controlled drug under s 33B(2)(a)(iii) of the MDA.

Background facts

2         The appellant received a plastic bag at the lift lobby of his block. Within the plastic bag were two “batu” of drugs containing diamorphine. He returned to his flat and later received instructions to divide the drugs in one of the two “batu” into half and to pack each of the divided portions into two smaller packets. The appellant was then to await further instructions regarding delivery of the repacked drugs. He made a few cuts on one of the packets, intending to divide and repack the contents, before the police entered his flat and arrested him. In the course of investigations, the appellant admitted that on a previous occasion, he had likewise received two “batu” of drugs. He had then repacked one of the “batu” into two smaller packets containing equal amounts of drugs, and handed the packets and the remaining “batu” to various recipients who arrived at his block or its vicinity.

3          The appellant was convicted by the High Court judge (“the Judge”) of the offence of possession of not less than 22.73g of diamorphine for the purposes of trafficking. The Judge found that he was not a “courier” because he had embarked on the process of repacking one bundle of drugs into two smaller packets. On appeal, the appellant argued that his act of dividing the “batu” was necessary for his onward transmission of the correct quantity of drugs to the parties who collected the drugs from him. He also argued that he was a courier because the divided “batu” was still many times above the retail size and therefore was not meant to facilitate distribution or sale, and that he had acted on instructions and did not exercise decision-making powers in seeking to divide and pack the drugs.

Decision of the court

Facilitative and incidental acts

4      The Court of Appeal reviewed the parliamentary debates on the introduction of s 33B as well as the case law that had developed on this issue since s 33B came into force. The Court of Appeal held that leaving aside acts that consist purely of transporting, sending or delivering of drugs and offering to do such acts, the common thread that runs through the other types of conduct that have been found to fall within the scope of s 33B(2)(a) is that they are all acts that were facilitative of or incidental to the transporting, sending or delivering of the controlled drugs by the offender to the intended recipient. ([36]–[80], [81])

5      The Court of Appeal provided the following explanations of facilitative and incidental acts. Acts that are facilitative of the transporting, sending or delivering of drugs are acts that are “preparatory to” or “for the purpose of” such transporting, sending or delivering. They enable or assist the offender to transport, send or deliver the drugs (and not to accomplish any unrelated aims which the offender may have in mind). Acts that are incidental to the sending, transporting or delivering of controlled drugs are secondary or subordinate acts that occur, or are likely to occur, in the course or as a consequence of such sending, transporting or delivering. Again, the primary act at issue is the offender’s sending, transporting or delivering of the drugs, which lies at the heart of each of the four limbs of s 33B(2)(a) of the MDA. ([82], [84])

Division and packing of drugs

6      The Court of Appeal emphasised that not every act of division and packing of drugs would necessarily take such an offender outside the courier exception. In determining whether an offender’s division and packing of drugs is preparatory to or for the purpose of transporting, sending or delivering the drugs, it is of the first importance to have close regard to the reason or purpose for the division and packing, objectively ascertained. If that reason or purpose is, for instance, to ensure that the drugs can be transported securely or to allow for placement of the drugs into confined spaces within the transporting vehicle, then the division and packing of the drugs can be considered to be facilitative of the transporting, sending or delivering of the drugs. However, breaking bulk for the purpose of enabling the original quantity of drugs to be transmitted to more than one recipient is not a preparatory step to deliver but is an antecedent step that is involved in facilitating distribution to more than one recipient. Therefore, properly understood, the act of breaking bulk is an act that enables distribution rather than an act that is preparatory to or for the purposes of delivery. That purpose does not fall within the scope of s 33B(2)(a)(iii) of the MDA and hence excludes an offender from eligibility for discretionary life sentencing under s 33B(1). ([92], [101])

7     Given the cardinal importance of ascertaining the reason or purpose for the division and packing, the Court of Appeal stressed that it is imperative for the offender to furnish an explanation for his conduct if he is seeking to persuade the court that he is a mere courier. This is plain from s 33B(2)(a) which places the burden on the offender to prove that his involvement in the offence was restricted to one of the qualifying types of activities falling within the courier exception. If he does not provide any evidence that he had a qualifying reason or purpose for dividing and packing the drugs, then he will plainly have failed to discharge that burden. ([109])

 Application to the facts

8           In the present case, the appellant chose to remain silent at the close of the Prosecution’s case and did not offer oral evidence in his defence. The Court of Appeal held that the appellant failed to discharge his burden under s 33B(2)(a) by electing to remain silent in the face of clear evidence, found in the statements provided by the appellant himself, that the appellant was to await instructions on how the drugs that he had divided and repacked were subsequently to be distributed, just as he had done so on a previous occasion. ([115])

9           The Court of Appeal rejected the appellant’s submission that because the appellant was not exercising business decision-making powers in dividing the “batu”, he was merely a courier. An offender’s ability to exercise decision-making power may provide a strong reason to find that he is not merely a courier, but the fact that he does not possess such ability is not in itself sufficient to establish that he is in fact a mere courier. The Court of Appeal likewise rejected the appellant’s argument that because the divided amounts of drugs remain substantial in quantity, it is unlikely that they were meant to be directly delivered to drug abusers for their consumption, and more likely that they would be moved further along the chain of distribution and subsequently further subdivided into smaller portions intended for immediate consumption. What is crucial is the fact that the reason or purpose for the offender’s division and packing is to create the prospect for wider dissemination of the drugs. Such a prospect materialises when he breaks down the original quantity of drugs into smaller amounts for this purpose, even if those smaller amounts remain substantial and therefore subject to possible further sub-division down the line. What the appellant really sought to accomplish, in the absence of any satisfactory explanation from him, was the division and packing of drugs for the purpose of distribution. His role in the drug trafficking enterprise – indeed his central role – was to divide and repack the diamorphine on instructions for distribution to customers. The Court of Appeal found that it would not be unreasonable to characterise the appellant’s residence as a sort of “distribution hub”. In the circumstances, it was of a matter of particular urgency for the appellant to explain that the reason and purpose for the intended division and repacking was unrelated to that of distribution. In omitting to do so, he has failed to discharge his burden under s 33B(2)(a) of the MDA. ([117]–[118])

Application to the facts

10           For the foregoing reasons, the Court of Appeal found that the appellant’s submission that he should be considered a “courier” because his involvement in the offence falls within the scope of s 33B(2)(a)(i)–(iv) of the MDA, was without merit. The Court of Appeal accordingly dismissed his appeal and affirmed the Judge’s decision to pass the sentence of death on the appellant. ([123])

 

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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