Mohamed Mubin Bin Abdul Rahman v PUBLIC PROSECUTOR

1 On the night of 8 September 2015, officers from the Central Narcotics Bureau (“CNB”) apprehended the Appellant’s brother, Lokman bin Abdul Rahman (“Lokman”), on the ground level of Katong Park Towers (“KPT”), a condominium. Lokman had a black bag with him which contained, among other things, two bundles of granular substances containing not less than 39.28g of diamorphine (“the Two Bundles”).

2 Following his arrest, the CNB officers escorted Lokman to unit #08-06 of KPT (“the Unit”). A subsequent search resulted in the discovery of various drugs and related items in different parts of the Unit, including some clear plastic wrapped in black tape.

3 Following his arrest, Lokman was directed by the CNB officers, to communicate with one “Edy” and the Appellant using his mobile phone. The contents of these conversations were recorded and later transcribed and translated. According to lease records, the Unit was rented out to the Appellant. The Appellant paid the monthly rent.

4 The Appellant was eventually arrested on 5 October 2015. At the time of his arrest, he was in possession of two packets of methamphetamine, three packets of diamorphine, some empty sachets, and a weighing scale.

5 The Appellant claimed trial to a single capital charge under s 5(1)(a) read with ss 5(2) and 12 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) for abetting by instigating Lokman to traffic in the Two Bundles (“the Original Charge”). Lokman, in turn, was charged with and claimed trial to a single charge of having the Two Bundles in his possession for the purpose of trafficking. The Appellant and Lokman were jointly tried and Lokman was cross-examined by the Prosecution before the Appellant. As is explained below, while the Appellant and Lokman each claimed trial to a single charge, they were each convicted of two charges at the end of the trial.

6 The Prosecution’s case against Lokman initially was that he had the Two Bundles in his possession for the purpose of trafficking, by delivering one bundle to Edy and the other to the Appellant at a residence in Holland Close (“the Holland Close Flat”). In the alternative, the Prosecution invoked s 17 of the MDA, pursuant to which Lokman was presumed to be in possession of the Two Bundles for the purpose of trafficking. The Prosecution further contended that Lokman was acting at all times under the direction of the Appellant.

7 As for the Appellant, the Prosecution maintained that he had directed Lokman to collect the Two Bundles from the Unit and to deliver one bundle to Edy and the other to the Appellant.

8 The Prosecution’s case was that the Appellant managed a drug trafficking operation, in which Lokman assisted him. The Prosecution contended that, in the week before Lokman’s arrest, the Appellant had received the Two Bundles from one Mohd Zaini bin Zainutdin (“Zaini”) and one Mohd Noor bin Ismail (“Noor”), and stored them at the Unit. Lokman was acting on the Appellant’s instructions on 8 September 2015 when he was apprehended. Zaini and Noor, who had been dealt with in a separate High Court trial that took place earlier, testified in the joint trial of Lokman and the Appellant. Zaini was called by the Prosecution while Noor was called by Lokman.

9 Lokman admitted that he had the Two Bundles in his possession and was aware that they contained diamorphine. His only defence was that had acted as a courier by working for the Appellant in exchange for a supply of drugs and some money.

10 In contrast, the Appellant denied that he had directed Lokman in any way. His main defence was that he had only consumed methamphetamine, commonly known as “ice”, in moderate amounts and that Zaini supplied him with only this drug. The Appellant had nothing to do with the drugs that were found in Lokman’s possession and in the Unit.

11 The Judge found that drugs were supplied by Zaini and Noor on 1, 5 and 7 September 2015 to the Appellant. As for the Two Bundles, the Judge found that these were delivered on 5 September 2015. The Judge also concluded that, in line with Lokman’s testimony, it was the Appellant who dealt with Zaini and arranged for the supply and delivery of drugs including the Two Bundles. With reference to the Two Bundles, even though the evidence that Zaini, Noor and Lokman each gave featured some inconsistencies from one account to another, they all agreed that it was the Appellant, rather than Lokman, who ordered the drugs and the inconsistencies did not ultimately dissuade the Judge from finding that it was the Appellant who ordered the drugs in question.

12 As regards the events of 8 September 2015, the Judge preferred Lokman’s account over the Appellant’s as being generally reliable and corroborated by several independent witnesses and material pieces of evidence. In particular, she found that the telephone calls among the Appellant, Lokman and Edy and recorded calls between the Appellant and Lokman significantly buttressed the Prosecution’s case against the Appellant and established that he was in charge that night and had given instructions to Lokman to retrieve and deliver the Two Bundles.

13 In summary, the Judge, found that the Appellant ordered the Two Bundles, was notified when Zaini and Noor came to Singapore, coordinated the deliveries of the Two Bundles with Zaini and Noor, and eventually received them from Zaini and Noor on 5 September 2015. The Appellant then kept the Two Bundles in the Unit before directing Lokman to retrieve the Two Bundles and some other drugs from the Unit on 8 September 2015. The Appellant further instructed Lokman to deliver one bundle to Edy and to return the remaining bundle to the Appellant at the Holland Close Flat and knew that the Two Bundles contained diamorphine.

14 The Judge found that the charge against Lokman of possession for the purpose of trafficking was made out in respect of the bundle intended for Edy, but not in respect of the other bundle intended to be delivered to the Appellant. This was by virtue of the Court of Appeal’s decision in Ramesh a/l Perumal v Public Prosecutor and another appeal [2019] 1 SLR 1003 in which it was held that, on the facts of that case, the accused person who had received drugs with the intention to return them to the person who had placed them with the accused person in the first place did not have the drugs for the purpose of trafficking. The charge against Lokman was accordingly amended so that Lokman was charged with trafficking in just one of the Two Bundles. An additional charge of possession was preferred against Lokman in relation to the other bundle.

15 As for the Appellant, the Original Charge against the Appellant was amended to one of abetting by instigating Lokman to traffic in one of the Two Bundles, by directing Lokman to deliver the bundle to Edy (“the Amended Charge”). A fresh charge was preferred against the Appellant in respect of the other bundle, namely, a charge of trafficking under s 5(1)(a) of the MDA by directing Lokman to retrieve the other bundle from the Unit and thereby putting Lokman in possession of the bundle (“the Fresh Charge”).

16 The Judge convicted both Lokman and the Appellant of the amended charges. Lokman was sentenced to life imprisonment while the Appellant was sentenced to suffer death.

17 Although the Appellant raised numerous issues which related to the soundness of his conviction and sentence on both the Amended Charge and the Fresh Charge, counsel for the Appellant, Mr Eugene Thuraisingam confined the appeal to a single issue, which pertained to the provenance of the Two Bundles. First, it was contended that prejudice was caused to the Appellant because of the manner in which the Prosecution had run its case at trial. Specifically, the Prosecution had changed its case as regards the provenance of the Two Bundles after the Appellant had given evidence. Second, Mr Thuraisingam submitted that the provenance of the Two Bundles was unresolved as the Judge wrongly found that the Two Bundles were delivered by Zaini and Noor on 5 September 2015, but neither could a finding be made that the Two Bundles were delivered by Zaini and Noor on 7 September 2015, because the unchallenged evidence of Zaini, who was the Prosecution’s witness, was that methamphetamine, and not diamorphine, was delivered on 7 September 2015.

18 The Prosecution’s main response was that if the Judge had erred, it was only as to the date on which the Two Bundles were delivered. However, the Appellant’s conviction should stand given that he was running the drug business and dealt with the suppliers, Zaini and Noor, who plainly did deliver diamorphine to him at some point prior to Lokman’s arrest when he was found in possession of the Two Bundles.

19 The Judge erred in finding that the Two Bundles were delivered on 5 September 2015. Lokman’s evidence, which was not challenged by the Prosecution, was that, while two bundles of diamorphine had been delivered on 5 September 2015 by Zaini and Noor to the Appellant, one of these had been unwrapped and repacked by the time of Lokman’s arrest on 8 September 2015, while the other could not be found and had likely already been sold to others. Moreover, based on the Prosecution’s cross-examination of Lokman, the Prosecution’s case was that: (a) while two bundles of diamorphine were delivered by Zaini and Noor on 5 September 2015, these had been unwrapped and repacked or disposed of by the time of Lokman’s arrest on 8 September 2015; and (b) the Two Bundles which were seized upon Lokman’s arrest were delivered by Zaini and Noor on 7 September 2015. Given that the Judge’s finding was contradicted by Lokman’s unchallenged evidence, the objective evidence consisting of the clear plastic wrapped in black tape which Lokman agreed was from one of the bundles of diamorphine delivered on 5 September 2015, and the Prosecution’s case that it put to Lokman, it was not open to the Judge to find that the Two Bundles were delivered on 5 September 2015: at [73]–[78].

20 For these same reasons, there was a reasonable doubt as to whether the Two Bundles were delivered on 5 September 2015: at [78].

21 As regards 1 September 2015, the available evidence shed virtually no light on the events of that day, and it was therefore unsurprising that the Judge made no factual findings on the events of 1 September 2015: at [80]–[81].

22 The evidence did not support a finding that the Appellant received the Two Bundles from Zaini on 7 September 2015 for four reasons. First, Zaini’s unchallenged evidence was that two bundles of methamphetamine, and not diamorphine, were delivered on 7 September 2015. Second, Zaini was not challenged by the Prosecution on what would have been a discernible difference in weight between two 25g bundles of methamphetamine and two bundles of 450g diamorphine. Third, Noor’s evidence that Zaini had referred to the two bundles of drugs handed to the Appellant on 7 September 2015 as “two batu” had to be considered alongside his unchallenged evidence that the use of the word “batu” could also have referred to smaller packets of drugs containing methamphetamine. Fourth, the evidence was inconclusive as to what, if any amount, was paid by the Appellant to Zaini on 7 September 2015: at [82]–[101].

23 Accordingly, there was a reasonable doubt as to whether the Two Bundles were delivered on any of the three dates (ie, 1, 5 or 7 September 2015) by Zaini and Noor to the Appellant: at [102].

24 During the course of the trial, the Prosecution shifted its case significantly in relation to when the Two Bundles were delivered:

a. By the time it closed its case, the Prosecution’s case was that the Two Bundles were delivered on 5 September 2015. This was because the Prosecution did not challenge Zaini’s evidence that methamphetamine, and not diamorphine, was delivered on 7 September 2015 during his examination-in-chief: at [106]–[108].

b. However, when cross-examining Lokman, the Prosecution led evidence from Lokman that two bundles of diamorphine were delivered both on 5 September 2015 and 7 September 2015, and further that the two bundles of diamorphine which were delivered on 5 September 2015 had been unwrapped and repacked or otherwise disposed of by the time Lokman was arrested on 8 September 2015. Therefore, its case shifted to one where two bundles of diamorphine were delivered by Zaini and Noor to the Appellant on both 5 September 2015 and 7 September 2015, and the Two Bundles were from the delivery on 7 September 2015 since those delivered on 5 September 2015 had been already unwrapped and repacked or disposed of: at [109] –[110].

c. When cross-examining the Appellant, the Prosecution’s position shifted once again to a broader case that the Two Bundles were delivered to the Appellant by Zaini sometime in the first week of September. This was a significant shift in the Prosecution’s case which had not featured in its line of questioning or examination of the other witnesses: at [111] –[112].

d. In the Prosecution’s written closing submissions at trial, its position shifted further between: (a) on the one hand, accepting Zaini’s version of events that the Two Bundles were delivered on 5 September 2015; and (b) on the other, contending that it was irrelevant which date specifically the Two Bundles were delivered on: at [113].

e. In its oral closing submissions, the Prosecution made clear its position that the specific date of delivery of the Two Bundles was completely irrelevant: at [114].

25 It was generally incumbent on the Prosecution to advance a consistent case, so that the accused person knows the case that he had to meet. This flowed from the principle that fairness requires an accused person to have the chance to confront the case theory adopted by the Prosecution and the need to ensure that an accused person is not prejudiced by reason of any inconsistency in the Prosecution’s case: at [143(a)]–[143(b)].

26 Accordingly, where there was an important weakness in the Prosecution’s case which the prosecution does not address, the court should not make a finding that is adverse to the accused person in respect of that weakness. Where there were multiple co-accused persons, the Prosecution should present a unified case theory that the Defence could challenge as a single, coherent account: at [143(c)]–[143(d)].

27 The Prosecution shifted its position in relation to an important aspect of its case, which was when the Two Bundles were delivered. Based on the way the Prosecution had cross-examined Lokman, the Appellant would have seen the Prosecution’s case as one that was rooted in the hypothesis that the Two Bundles had been delivered by Zaini on 7 September 2015. However, the Prosecution then appeared to resile from this position when cross-examining the Appellant and pursued a broader case instead that the Two Bundles were delivered sometime in the first week of September 2015. The result of this shift was that this aspect of the case against the Appellant became a moving target: at [149]–[150].

28 There were other objective facts which: (a) linked the Two Bundles to Zaini and Noor; (b) suggested that the primary line of contact for the placement of orders and making arrangements for drug deliveries was between the Appellant and Zaini; and (c) suggested that the Appellant did direct Lokman on the night of 8 September 2015, who was in possession of the Two Bundles at the material time. However, mounting a case on the basis of the objective evidence would have been based on the inferences to be drawn from certain objective facts and would wholly bypass the problematic evidential issue of when the Two Bundles were delivered by Zaini. This was quite different from the case that was run by the Prosecution at trial. Therefore, it was not open for the Prosecution to now mount a different case against the Appellant which left unresolved, on the ground that it was ultimately immaterial, the question of when the Two Bundles were delivered by Zaini and Noor on the Appellant’s instructions as this was simply not the case that the Appellant was confronted with at trial: at [152]–[153].

29 The matter was adjourned for further submissions as to what consequential orders should be made and specifically, whether the Appellant should be acquitted of the charges or whether the matter should be retried: at [155].