Abdoll Mutaleb Bin Raffik v PUBLIC PROSECUTOR

Facts

Three men were tried together in the High Court in HC/CC 32/2018 on capital drug charges under the Misuse of Drugs Act. Mohd Zaini bin Zainutdin (Zaini) and Mohd Noor bin Ismail (Noor) were charged with importing, in furtherance of their common intention, not less than 12 bundles containing not less than 212.57g of diamorphine. Abdoll Mutaleb bin Raffik (Mutaleb) was charged with abetting that import by engaging in a conspiracy with Zaini, Noor, a man known as Apoi and others.

On 11 September 2015 Noor drove Zaini's car from Malaysia into Singapore through Tuas Checkpoint, where Central Narcotics Bureau officers found bundles of drugs hidden in the car. After the arrest, officers had Zaini make recorded calls to Mutaleb, in which the two arranged to meet at a car park at Block 2 Chai Chee Road for Zaini to hand over "thirteen" for $39,000; drugs were never mentioned by name. Officers then handed Mutaleb a bag of mock drugs there, and he dropped it as he walked away and was arrested. Cash totalling $38,600 was found on him and in his flat.

The trial judge convicted all three. Zaini and Noor, each found to be a courier and given a certificate of substantive assistance, received life imprisonment and 15 strokes of the cane. Mutaleb, found not to be a mere courier, received the mandatory death penalty. Mutaleb appealed in CA/CCA 21/2019 and Noor in CA/CCA 8/2020. Noor's allegations against his trial counsel and the investigating officer were remitted to the trial judge, who rejected them, and the Prosecution later asked for Mutaleb's charge to be altered to attempted possession.

Issues

1. Whether Noor's allegations of improper advice by his former counsel and of threats or inducements by the investigating officer were made out.
2. Whether Noor's appeal against his conviction and sentence should be allowed.
3. Whether the conspiracy charge against Mutaleb was proved beyond reasonable doubt.
4. Whether the charge against Mutaleb should be altered on appeal to one of attempted possession of drugs.

Holding

The Court of Appeal allowed the appeals in part. It dismissed Noor's appeal in CCA 8 and upheld his conviction and his sentence of life imprisonment and 15 strokes of the cane. It allowed Mutaleb's appeal in CCA 21 against his conviction on the original capital charge, but under s 390(4) of the Criminal Procedure Code altered that charge to one of attempting to possess not less than 12 bundles containing not less than 212.57 grams of diamorphine, an offence under s 8(a) read with s 12 of the MDA. It would decide the altered charge after hearing the parties.

Reasoning

On the first issue, the Court agreed with the trial judge's findings on remittal. The standard for showing inadequate legal assistance is a high one, and Noor did not come near it. Noor had also acknowledged that any threat or inducement by the investigating officer did not operate on his mind.

On the second issue, Noor had no real defence once those allegations failed. The presumptions of possession and knowledge in the MDA applied to him, he chose to stay silent at trial, and an adverse inference was rightly drawn. As he was a courier with a certificate of substantive assistance, his sentence was appropriate.

On the third issue, the presumptions did not apply to Mutaleb, who only ever held mock drugs, so actual knowledge had to be proved. The case for a conspiracy rested on Zaini's account of overhearing a call between Mutaleb and Apoi, and that account kept shifting. In the recorded call Mutaleb seemed not to know who Apoi was. Mutaleb's unsigned statement of 17 September 2015, which he disowned before refusing to sign it, was admissible under s 258(1) of the CPC because he had made it voluntarily and refused to sign without good cause. But it described a different supplier, Alex, and said nothing of Apoi or of any agreement to import. The conspiracy was therefore not proved.

On the fourth issue, the unsigned statement and the other evidence showed that Mutaleb went to the car park believing he would receive bundles of diamorphine, so the offence of attempted possession was complete even though the drugs were mock. The Prosecution's proposed charge named 13 bundles and a larger quantity of diamorphine, but the Court limited the altered charge to the quantity in the trial charge, since that was the amount in issue throughout the trial.

From the judgment