Low Sze Song v PUBLIC PROSECUTOR

Facts

Early on 30 May 2019, at a bus stop along Sumang Walk, Mr Sivaprakash Krishnan, a Malaysian riding a motorcycle, handed Mr Low Sze Song, a Singaporean on a personal mobility device, a white plastic bag, and Mr Low handed him $9,000 in cash. Both were arrested soon after. Four packets recovered from Mr Low's device contained not less than 43.26g of diamorphine; Mr Sivaprakash's DNA was on all the bundles and Mr Low's on the bag and one bundle. Mr Low was charged with possession for the purpose of trafficking, and Mr Sivaprakash with trafficking by giving the drugs to Mr Low.

Mr Low said a friend had paid him $500 and that he simply followed phone instructions from a man he did not know, never thinking about what was in the bag. Mr Sivaprakash said a friend, Joe, asked him to collect betel nuts ("paan parak") left behind a dustbin near the Tuas Checkpoint and deliver them, that he opened the bundles to check, and that he took the cash only because Mr Low was verbally aggressive. He also challenged the chain of custody. The trial judge convicted both on 14 April 2023. Although both were found to be mere couriers, neither received a certificate of substantive assistance, so the mandatory death penalty was imposed. They appealed in Criminal Appeals Nos 12 and 13 of 2023.

Issues

1. Whether Mr Low rebutted the presumption of knowledge in s 18(2) of the Misuse of Drugs Act by saying he never thought about the contents of the bag.
2. Whether Mr Sivaprakash rebutted the presumption by showing he believed he was delivering betel nuts.
3. Whether there was a reasonable doubt about the chain of custody of the drug bundles.

Holding

The Court of Appeal dismissed both appeals against conviction and sentence. Since neither appellant received a certificate of substantive assistance, the alternative sentencing regime in s 33B was unavailable and the mandatory death penalty applied to both.

Reasoning

Applying Gobi a/l Avedian v Public Prosecutor [2021] 1 SLR 180, an accused must show a positive belief incompatible with knowledge that the item was the drug in question. A claim of having never thought about the contents is no different from indifference, which cannot rebut the presumption. Mr Low could easily have looked in the bag, and an ordinary reasonable person would have done so: he was paid $500, which his own statements described as payment for the job, merely to hand over $9,000 and follow a stranger's early-morning instructions. Given his circumstances and his criminal history, the offer was too good to be true. He showed no reasons special to him for not checking, and his claimed gang rule against drugs made his lack of curiosity even less believable.

Mr Sivaprakash's account was patently unbelievable. He was to be paid RM1,000 on completion for delivering an item he knew was cheap and widely sold, in a clandestine pick-up from behind a dustbin with no named recipient. He did not contact Joe about the $9,000, and both men's trial accounts of the handover differed materially from their statements. His claim to have opened the bundles was first raised at trial, contradicted his statements, which gave smell and Joe's word as his reasons, and was inconsistent with the tightly wrapped, untampered bundles and the dark conditions.

On custody, the DNA evidence and consistent testimony and field diary entries of the narcotics officers showed that all four bundles came from Mr Low's device, despite the lack of a photograph of the search and of one bundle.

From the judgment