Muhammed Izwan Bin Borhan v PUBLIC PROSECUTOR

Facts

On 29 September 2017 Muhammad Izwan bin Borhan collected a consignment of drugs near 31 Toh Guan East from a runner for a Malaysian supplier known as Arun. He took it to his flat at Block 27 New Upper Changi Road, repacked part of it, left one 125g packet of Ice in an electrical box for a customer of Ahmad Suhaimi bin Ismail, and handed Suhaimi a bag containing two packets of Ice. Both men were arrested that afternoon. Izwan was convicted of trafficking in not less than 26.19g of diamorphine and not less than 252.04g of methamphetamine by possession for the purpose of trafficking. Suhaimi was convicted of abetting those offences by conspiring with Izwan. The trial judge had excluded heroin in an aluminium tray because it might have come from an earlier purchase. Both received certificates of substantive assistance but were not found to be mere couriers, so the mandatory death penalty was imposed.

The central defence was that the heroin order had been reduced from five "biji" to one in the early hours of that day, so that four bundles were delivered by mistake and were to be returned. Izwan also said his statements were induced by an officer's alleged promise to let his wife off, that two packets of Ice were for his own use, and that he was only a bailee of Suhaimi's Ice. Suhaimi said he merely relayed an order "as usual" and was not party to Izwan's share of the Ice. Before the appeals were heard, the court allowed additional evidence from two prisoners, Sumardi and Eddie, who said the supplier had asked them to find Suhaimi over four unreturned bundles. The judge held that this evidence would not have changed his verdict.

Issues

1. Whether the chain of custody of the drug exhibits was broken
2. Whether Izwan's statements were made voluntarily, without threat, inducement or promise
3. Whether the heroin order had been reduced to one bundle, and whether the two men jointly ordered the drugs and knew of each other's intention to traffic
4. Whether Izwan's claimed later intention to consume part of the Ice, or his role in delivering Suhaimi's share, reduced or altered the Ice charges

Holding

The Court of Appeal dismissed both appeals against conviction and sentence. As the appellants were not mere couriers, the mandatory death penalty applied despite their certificates of substantive assistance.

Reasoning

On custody, the question is whether there is reasonable doubt about the identity or integrity of the exhibits. Unlike Mohamed Affandi bin Rosli v Public Prosecutor and another appeal [2019] 1 SLR 440, a recording discrepancy of more than two-and-a-half hours over a handover between two officers did not suggest another set of drugs or tampering. The weight differences for the Ice in Suhaimi's car were explained by different weighing methods, and the Ice bore Izwan's DNA, matched packaging from his flat, and had been identified by Suhaimi as what he ordered.

The court upheld the finding that no inducement was made, relying on the independent interpreter's evidence and the other officers' accounts. An officer's imperfect recollection did not make her untruthful, and the wife not being charged was a neutral factor given the lack of evidence against her.

The claimed reduction was rejected. Messages with Arun after the supposed call concerned payment for the full order, Suhaimi confirmed a "balance" matching five bundles at $2,850 each, Izwan replied "Enough boss" when asked to check the delivery, and he raised no query over photographs showing five bundles. The prisoners' evidence did not raise reasonable doubt: the supplier gave them no contact details for Suhaimi, and the photographs were as consistent with chasing payment. Izwan's statements showed a joint order split two and three, and messages showed Suhaimi directing the repacking and delivery of heroin; the court found Izwan was in effect Suhaimi's worker.

On the Ice, possession for trafficking is complete when possession and intention coincide, so a later change of intention cannot reduce a capital charge, much as later restitution does not reduce a theft. Izwan's consumption claim was in any event an afterthought. Following Arun Ramesh Kumar v Public Prosecutor [2022] 1 SLR 1152, collecting drugs from a third party for Suhaimi moved them along the supply chain and was trafficking, not bailment. Suhaimi accepted the 500g order and knew Izwan's 125g was for sale.

From the judgment