ABDULLAH BIN MOHAMMAD KUNHI v PUBLIC PROSECUTOR

1 Between 29 November and 1 December 2019, the appellant ordered 100 MDMA tablets from someone named “Boy” and transferred money to Boy as payment for the MDMA tablets.

2 On 2 December 2019, one Jude Leslie Paul (“Jude”) entered Singapore on the instructions of someone named “Dinesh” to deliver drugs. Jude delivered two bundles containing methamphetamine, diamorphine, and 100 MDMA tablets to the appellant.

3 After Jude had delivered the bundles to the appellant, Dinesh called him and told him to retrieve the two bundles from the appellant and deliver the same two bundles to another person (the “Intended Recipient”), but Jude did not manage to do so.

4 On 3 December 2019, the appellant was arrested with methamphetamine, diamorphine, and 100 MDMA tablets in his possession.

5 The appellant asserted that the drugs in his possession had been mistakenly delivered to him. He claimed that he had only ordered 100 MDMA tablets and not the other drugs. The DJ accepted his defence of mistaken delivery and acquitted him of the charges of being in possession of methamphetamine and diamorphine. The DJ also held that the Trafficking Charge was not made out. However, having regard to the evidence, he decided to amend the Trafficking Charge to the Attempted Trafficking Charge, and convicted the appellant on that charge. For this, the DJ sentenced the appellant to 11 years’ imprisonment and ten strokes of the cane.

6 The appellant appealed against his conviction and sentence on the Attempted Trafficking Charge.

7 The Court held that the DJ erred in holding that the Trafficking Charge was not made out. The DJ adopted an erroneous approach to the question of knowledge by placing undue weight on the subjective intention of the supplier of the drugs to deliver a particular consignment of drugs to the Intended Recipient and relatedly, he overlooked the fact that on the evidence before him, the MDMA tablets were essentially fungible: at [21]–[23].

8 The analysis of the appellant’s subjective mental state should proceed from the appellant’s perspective, rather than the perspective of other participants in the supply chain of the drugs. The appellant had ordered 100 MDMA tablets, expected to receive 100 MDMA tablets, and did receive 100 MDMA tablets from someone whom his supplier, Boy, directed him to meet. Since the appellant transacted with Boy to obtain 100 MDMA tablets, the appellant must have expected that any delivery he received pursuant to this transaction would contain 100 MDMA tablets. None of this would be displaced if the bundles happened to contain additional drugs that the appellant had not ordered. To that extent, he would not be liable for those other drugs, but that would not in any way affect his liability for the drugs he did order and receive: at [25].

9 The Court disagreed with the DJ’s finding that the appellant did not know that the bundles contained 100 MDMA tablets because he had expected the tablets to come in one bundle and was “shocked” or “surprised” to receive two bundles. In his statements and at trial, the appellant never said that he did not think the bundles contained 100 MDMA tablets. On the contrary, he expressly and unequivocally told the Central Narcotics Bureau that he thought the bundles contained, among other things, 100 MDMA tablets: at [26].

10 The Court set aside the DJ’s findings on the Trafficking Charge. Irrespective of whether the mistaken delivery defence was made out, the appellant was in possession of the 100 tablets, and as far as those tablets were concerned, there was no basis at all for thinking that he did not know they were MDMA tablets. On these facts, two elements of the offence of possession of drugs for the purpose of trafficking were made out – the elements of possession and knowledge. The last element, which requires the drugs to be for the purpose of trafficking, may then be presumed, such that the offence was prima facie made out. The Court amended the Attempted Trafficking Charge to the Trafficking Charge and complied with the safeguards set out in s 390 of the Criminal Procedure Code 2010 (2020 Rev Ed), after finding that the amendment of the charge did not prejudice the appellant: at [27]–[29].

11 The presumption of trafficking under s 17 of the MDA cannot apply to an offence of attempted possession of drugs for the purpose of trafficking. The predicate fact that engages the presumption is the accused’s knowing possession of drugs beyond a certain quantity. In a case where the accused person fails to possess a controlled drug, the predicate fact of being in possession of the drugs will not have been established, and the presumption under s 17 cannot then be applied in respect of the attempt to possess that drug: at [31].

12 The presumption of trafficking could apply to the Trafficking Charge. The appellant bore the burden of proving on a balance of probabilities that he did not possess the MDMA for the purpose of trafficking: at [33].

13 The appellant argued that he ordered the 100 MDMA tablets for his own consumption, not to traffic in them. But the evidence did not bear this out. He admitted that he was not in the habit of consuming MDMA at the time he ordered it. He also admitted that his phone contained messages in which he tried to sell MDMA tablets to someone named “Robin”. Accordingly, the appellant failed to rebut the presumption of trafficking, and the Trafficking Charge was made out: at [34]–[37].

14 The Court imposed on the appellant the same sentence which the DJ imposed on him for the Attempted Trafficking Charge (this being 11 years’ imprisonment and ten strokes of the cane). When the appellant was sentenced for the Attempted Trafficking Charge by the DJ, he was punished as if he had committed the offence under the Trafficking Charge. This is because s 12 of the MDA deems a person who attempted an offence as having committed that offence, and makes him liable to be punished as if he had committed that offence. In sentencing the appellant, the DJ did not err in deciding that an uplift from the mandatory minimum sentence was warranted, given that this was the appellant’s third conviction for a drug trafficking offence: at [38]–[39].