Low Sze Song v PUBLIC PROSECUTOR

1 This case involves appeals against conviction and sentence by the appellants, Low Sze Song (“Mr Low”) and Sivaprakash Krishnan (“Mr Sivaprakash”). The appellants were convicted by the trial judge (“trial Judge”) for trafficking not less than 43.26g of diamorphine and sentenced to the mandatory death penalty as they did not qualify to be sentenced under the alternative sentencing regime in s 33B of the MDA: at [1]–[3].

2 In the early morning of 30 May 2019, Mr Sivaprakash passed Mr Low a white plastic bag containing four bundles of diamorphine (“Drug Bundles”) and Mr Low handed Mr Sivaprakash a stack of cash totalling $9,000. They were arrested by Central Narcotics Bureau (“CNB”) officers at separate locations shortly thereafter on the same day. The Drug Bundles were later analysed and found to contain not less than 43.26g of diamorphine in total: at [6]–[9].

3 Mr Low’s defence was that he had no knowledge of and did not think about what was in the white plastic bag. He was asked to follow instructions and was instructed to pass the $9,000 to a person riding a motorcycle and wearing a red helmet at the bus stop near Block 326A Sumang Walk: at [11]–[13] and [15].

4 Mr Sivaprakash’s defence was that he believed he was picking up and delivering “paan parak” (betel nuts). His friend, “Joe”, had asked him to help him collect “paan parak” and deliver it to a person wearing a cap at Block 326A Sumang Walk: at [16].

5 The trial Judge found that the appellants could not rebut the presumption of possession in s 18(1)(a) of the MDA and the presumption of knowledge in s 18(2) of the MDA (“s 18(2) presumption”). The trial Judge did not accept Mr Low’s contention that he had no knowledge of what was in the white plastic bag or that he could not reasonably be expected to have known the nature of the drugs in the white plastic bag. The trial Judge did not accept Mr Sivaprakash’s claim that he believed he was delivering “paan parak” for Joe: at [19]–[20] and [23].

6 Mr Low’s argument that an accused person could rebut the s 18(2) presumption by asserting that he never thought about what he was carrying contradicted the principles on the s 18(2) presumption set out in Gobi a/l Avedian v Public Prosecutor [2021] 1 SLR 180. An accused person must establish that he had a positive belief that was incompatible with knowledge that the thing he was carrying was the specific drug in his possession. It would not suffice to claim that he did not know or that he was indifferent to what he was carrying. Mr Low’s defence that he was not concerned with the contents of the white plastic bag as the thought of what was in it did not arise in his mind was not different from the situation of a person who was wholly indifferent to the nature of what he was carrying: at [27]–[29] and [32].

7 Mr Low was indifferent about the nature of the contents of the white plastic bag and he was therefore not able to rebut the s 18(2) presumption. An ordinary reasonable person in Mr Low’s position would have taken steps to establish what was in the white plastic bag. There were suspicious circumstances surrounding the transaction. Mr Low was paid $500 to hand over $9,000 and follow the instructions of an unknown person over the phone. He was asked to pass the $9,000 to a person wearing a red helmet and riding a motorcycle at the bus stop along Block 326A Sumang Walk: at [34], [37]–[38] and [40].

8 Mr Sivaprakash could not have believed he was helping Joe to deliver “paan parak”. Joe promised to pay him RM1,000 for delivering an item which he knew to be inexpensive and easily available. He was asked to pick up the “paan parak” from behind a dustbin at a bus stop located near the Tuas Checkpoint and deliver it to someone wearing a cap at Block 326A Sumang Walk. Any ordinary reasonable person would have been put on notice that something was not right: at [44], [46]–[48] and [57].

9 Mr Sivaprakash’s claim that he opened and checked the Drug Bundles to satisfy himself that they contained “paan parak” was unbelievable. He did not mention this in any of his investigative statements. The two black-taped Drug Bundles were wrapped neatly and tightly and had to be cut open by the CNB officers.: at [58] and [62]–[63].

10 There was no reasonable doubt in respect of the integrity of the chain of custody of the Drug Bundles. The results of the DNA analysis showed that Mr Sivaprakash’s and Mr Low’s DNA were found on the Drug Bundles and the white plastic bag. The evidence of the CNB officers indicated that the four Drug Bundles were recovered from Mr Low’s personal mobility device: at [66]–[67].