ABDULLAH BIN MOHAMMAD KUNHI v PUBLIC PROSECUTOR

Facts

Abdullah bin Mohammad Kunhi ordered 100 MDMA (ecstasy) tablets from a supplier known as "Boy" and transferred $1,350 to him. On 3 December 2019 a courier, Jude, handed him a plastic bag with two bundles near a carpark. Central Narcotics Bureau officers arrested him minutes later. The bundles held methamphetamine, diamorphine and 100 tablets containing not less than 15.01g of MDMA. Jude later testified that he had been told to take the bundles back and deliver them to someone else.

The District Judge accepted that the bundles had been delivered to the appellant by mistake and acquitted him of possessing the methamphetamine and diamorphine. He also held that the charge of possessing the MDMA for trafficking was not made out, because the appellant could not have known what a package meant for someone else contained. He amended that charge to one of attempted possession for trafficking, applied the statutory presumption of trafficking, convicted the appellant and sentenced him to 11 years' imprisonment and ten strokes of the cane. The appellant appealed against conviction and sentence in Magistrate's Appeal No 9203 of 2024, heard by Sundaresh Menon CJ, Steven Chong JCA and Ang Cheng Hock JCA. The Prosecution did not appeal.

Issues

1. Whether the District Judge erred in holding that the original trafficking charge was not made out
2. Whether the presumption of trafficking can apply to an attempt to possess drugs for trafficking
3. Whether the appellant possessed the 100 MDMA tablets for the purpose of trafficking
4. What sentence was appropriate on the restored charge

Holding

The court dismissed the appeal. It set aside the conviction on the attempted trafficking charge, restored the original trafficking charge, convicted the appellant on it, and imposed the same sentence of 11 years' imprisonment and ten strokes of the cane.

Reasoning

The court held that the District Judge had approached knowledge wrongly. The question is not whether an accused knew with near certainty what an unopened package held, but whether he knew he possessed the thing and what he thought it was, following Zainal bin Hamad v Public Prosecutor [2018] 2 SLR 1119. The appellant ordered, expected and received 100 MDMA tablets, and told the CNB he thought the bundles contained them; the supplier's intention to send the bundles elsewhere was irrelevant and the tablets were essentially fungible. Unordered extra drugs did not affect his liability for what he did order. Because the restored charge was the one tried below and he confirmed he would not run a different defence, the alteration under s 390 of the Criminal Procedure Code 2010 caused no prejudice.

Though now moot, the court addressed the novel point with help from Young Independent Counsel. The presumption in s 17 of the Misuse of Drugs Act turns on proof of actual possession of the drug, so it cannot apply to an attempt where the drug was never possessed.

On the restored charge, the presumption applied and was not rebutted. The appellant's claim of intended personal use was unbelievable given he had not been consuming MDMA, his far-fetched reasons for restarting, his limited means, and messages days earlier in which he tried to sell MDMA to a man called Robin. Even without the presumption, the evidence supported an inference of trafficking.

Under s 12 of the Misuse of Drugs Act an attempt is punished as the full offence, so the appellant had already been sentenced as if for trafficking. The uplift from the mandatory minimum for a third trafficking conviction was justified, and the sentence stood.

From the judgment