Dzulkarnain Bin Khamis v PUBLIC PROSECUTOR

Facts

On 23 February 2015 Mr Dzulkarnain bin Khamis collected a brown box at a bus stop near Tuas Checkpoint and, after directions by phone, left it behind a green dustbin at 14 Lorong 37 Geylang while CNB officers watched. About five minutes later Mr Sanjay Krishnan drove up, retrieved a brown box from behind the bin and drove off. Both men were arrested. The box in Mr Sanjay's car held five bundles found to contain not less than 2375.1g of cannabis, and the car also held phones and notebooks with entries about drug transactions.

Mr Dzulkarnain was convicted of trafficking by delivering the drugs and, as a courier with a certificate of substantive assistance, received life imprisonment; being above 50, he was not caned. Mr Sanjay was convicted of possession for the purpose of trafficking. He was found to be a courier but received no certificate, so the mandatory death sentence was imposed. Both appealed to the Court of Appeal in Criminal Appeals Nos 30 and 32 of 2020. Mr Sanjay also filed Criminal Motion No 23 of 2022 to adduce his own evidence disputing a CNB officer's account that he drove to CNB headquarters with the duffel bag of drug exhibits on his lap.

Issues

1. Whether Mr Sanjay should be allowed to adduce fresh evidence on the chain of custody of the drug exhibits
2. Whether the box Mr Dzulkarnain delivered was proved beyond reasonable doubt to be the box Mr Sanjay collected
3. Whether Mr Dzulkarnain's statements were impermissibly used against Mr Sanjay in their joint trial
4. Whether Mr Sanjay rebutted the presumption of knowledge under s 18(2) of the Misuse of Drugs Act

Holding

The Court of Appeal dismissed Mr Sanjay's criminal motion and both appeals against conviction and sentence. The convictions were upheld, as were the sentences of life imprisonment for Mr Dzulkarnain and death for Mr Sanjay.

Reasoning

On the motion, the evidence was within Mr Sanjay's own knowledge and was available at the further hearing on the chain of custody, where his trial counsel pressed the officer on the very point; his counsel on appeal accepted the non-availability condition was not met. A bare denial from a witness the judge had found not credible would not have had an important influence on the result. Raising the point only after an earlier motion had been dismissed was drip-feeding of applications and an abuse of process.

On Mr Dzulkarnain's appeal, the court held that chain of custody principles apply only from seizure by the police, though the Prosecution still had to prove the two boxes were the same. His description of a taped box weighing about 5kg that he knew contained drugs matched the box seized, the drop-off point was pre-arranged, no other brown box was there, and Mr Sanjay arrived about five minutes later. The idea that a stranger swapped the box in that gap was fanciful, and the absence of his DNA was neutral.

On Mr Sanjay's appeal, s 258(5) of the Criminal Procedure Code governs the admissibility of a co-accused's confession, not cross-examination, and the passages put to him were background, not a confession. The Prosecution had disclaimed reliance on those statements and the judge expressly did not rely on them. Whether Boy Lai existed did not matter to either the presumption or the trafficking purpose. On the presumption, the judge was entitled to disbelieve the hunting knives story, which surfaced only in his fifth long statement, conflicted with his earlier accounts and was undermined by his lies about the phones, notebooks and money transfers. The alleged mis-recording of his oral statement was never put to the officer at trial and, given the procedural irregularity went to weight, did not displace that finding.

From the judgment