Public Prosecutor v Low Sze Song & Sivaprakash Krishnan

Low Sze Song, a 70-year-old Singaporean, and Sivaprakash Krishnan, a 35-year-old Malaysian, were tried jointly in the General Division of the High Court in Criminal Case No 36 of 2022. Each faced one charge of trafficking not less than 43.2g of diamorphine under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act.

On 30 May 2019, at a bus stop along Sumang Walk, Sivaprakash handed Low a white plastic bag holding packets of drugs, and Low gave him a stack of cash totalling S$9,000. Officers of the Central Narcotics Bureau (CNB) arrested Low at about 6.45am at Blk 986C Buangkok Crescent, and Sivaprakash at about 6.49am near his workplace at Sungei Kadut. The cash was found on Sivaprakash's motorcycle. According to the Prosecution, four drug bundles were recovered from Low's personal mobility device. Low's defence, which Sivaprakash later adopted, was that only three packets had been handed over, and that the fourth exhibit, analysed to contain not less than 8.64g of diamorphine, might have come from another case. Low also said he never checked the bag. Sivaprakash said a friend called Joe had asked him to collect and deliver what he believed was paan parak, a betel-nut product.

1. Whether there was a reasonable doubt that the fourth drug exhibit analysed by the Health Sciences Authority was the one seized from Low's personal mobility device.
2. Whether Low and Sivaprakash each had possession of the drug bundles.
3. Whether either accused rebutted the presumption of knowledge of the nature of the drugs under s 18(2) of the Misuse of Drugs Act.
4. Whether each accused was a courier within s 33B(2)(a) of the Misuse of Drugs Act for sentencing purposes.

On the chain of custody, the court accepted the evidence of the officers that the device was brought up to the flat and searched in Low's presence at about 7.03am, and that an earlier preliminary search at the lift lobby had already revealed a black bundle suspected to contain drugs besides the white bag. A field diary entry corroborated the search. The court accepted that the fourth bundle should have been photographed with the others and asked about in Low's contemporaneous statement, and found that omission unexplained, but held it was a lapse that did not create a reasonable doubt. The exhibits were sealed in tamper-proof bags and their movements accounted for, and suggestions of a mix-up with another case were never put to the officers. Low's DNA on the adhesive side of the fourth bundle's packaging, and Sivaprakash's DNA on all four, supported the finding, as did Sivaprakash's own later statements that there had been four packages.

On possession, the presumption under s 18(1)(a) applied to both men once the bundles were shown to be the ones recovered. Sivaprakash's belief that he carried paan parak did not alter the fact that he possessed the bundles.

On knowledge, the court found Low's claim that he never looked inside the bag at odds with his DNA on its interior, and found the bag was untied. The S$9,000, the furtive handover and a S$500 payment that Low had earlier described as payment, not a loan, would have put him on notice; not asking what he was carrying could not rebut the presumption. As for Sivaprakash, the court rejected his paan parak account. His descriptions of his relationship with Joe shifted, the delivery was clandestine, and he was promised RM1,000 and received the cash. His accounts of what paan parak looked and smelled like were inconsistent, and his claim to have unwrapped and rewrapped the tightly taped bundles was implausible.

On sentencing, the Prosecution accepted that both men were couriers. Low merely carried the bag on instructions. For Sivaprakash, the court did not decide whether he had packed the bundles, since any packing was at most facilitative of the delivery.

The court found the elements of the trafficking charge established against both Low and Sivaprakash and convicted them. It held that the chain of custody of the drug exhibits was intact, that the presumptions of possession and knowledge applied and had not been rebutted by either accused, and that both men were couriers under s 33B(2)(a) of the Misuse of Drugs Act, which bears on their possible eligibility for the alternative sentence.

The element of trafficking was not seriously in issue: on his own account Sivaprakash delivered the bundles to Low, and it was undisputed that Low meant to pass the bag to someone waiting at Buangkok Crescent.