Public Prosecutor v Hashim Bin Ismail and others

Four men were tried jointly in the High Court in Criminal Case No 40 of 2018, each on one charge of trafficking in five packets of granular/powdery substance found to contain not less than 97.02 g of diamorphine. They were Hashim bin Ismail, Jayacelan a/l Kerusnan, Azuin bin Mohd Tap and Kumaran Kesawan.

The Prosecution’s case was that the drugs moved in a relay on 9 July 2015. Kumaran, a Malaysian trailer driver delivering cement, allegedly brought them into Singapore in a red plastic bag and left it in his trailer cabin at Tuas Megayard with the passenger door unlocked. Jayacelan collected the bag, rode to an open-air carpark next to Sim Lim Tower and put it in an open dustbin, watched by Central Narcotics Bureau officers and recorded on surveillance video. Hashim took the bag out and placed it beside another dustbin. Azuin then picked it up and was arrested with the five bundles in his sling bag. All four were arrested that day.

Kumaran admitted bringing the bag in but said he believed it held untaxed electronic items for a man called Raja. Jayacelan admitted the collection and drop-off but disputed that his bag was the one Hashim retrieved, and said he thought it held “black money” for a man called Sutha. Hashim did not contest the charge and argued only that he was a courier. Azuin accepted he knew he was collecting heroin and sought the alternative sentencing regime under s 33B of the Misuse of Drugs Act.

1. Whether Kumaran and Jayacelan rebutted the presumption under s 18(2) of the Misuse of Drugs Act that they knew the nature of the drugs.
2. Whether the bag Jayacelan placed in the dustbin was proved to be the bag containing the drugs that Hashim retrieved.
3. Whether proceedings against Hashim could continue after he appeared unable to follow them.
4. Whether Azuin proved an abnormality of mind that substantially impaired his mental responsibility under s 33B(3)(b).

Kumaran’s account of what he thought the bundles held kept shifting: from vague “expensive things”, to taxable electronic items described as cheap, to items that felt like sand, and only at trial to “chips”. He claimed “chips” had been mistranscribed as “cheap”, which the court rejected because the statement was taken and read back in Tamil. The court also found his late reliance on a trusted friend, Kesavan, first raised almost three years after arrest, to be an afterthought. His account lacked credibility and the presumption was not rebutted.

On the chain of custody, the court held that the doubt Jayacelan raised was fanciful, not reasonable. Both bags were red and tied at the top and held five black bundles, no one else went near the dustbin in between, Hashim waited for Jayacelan before going to it, and call records showed the two coordinating that morning. On knowledge, Jayacelan had not raised the “black money” explanation in his first statement, and his claim that the recording officer refused to write it down was never put to her. His trust in a man he had met once was not credible, and he had simply not wanted to know what he carried.

When Hashim became unresponsive before the verdict, the court held that a trial continues until acquittal or sentence, so it could still remand him for psychiatric observation. The resulting report led to the stay.

For Azuin, no certificate of substantive assistance had been issued. On diminished responsibility, the court preferred the psychiatrist who examined him in 2015, when he and his sister reported normal mood, over a psychologist who interviewed them three years later. It found both had lied to the psychologist, gave her report no weight, and added that Azuin’s own evidence showed he chose drug work because it was lucrative, so his responsibility was not substantially impaired in any event.

The High Court convicted Kumaran, Jayacelan and Azuin. Kumaran and Jayacelan were found to be couriers and had certificates of substantive assistance, so each was sentenced to imprisonment for life from 9 July 2015; Jayacelan also received 15 strokes of the cane, while Kumaran could not be caned because of his age. Azuin did not qualify for either alternative regime and was sentenced to death. The proceedings against Hashim were stayed after he was found of unsound mind and incapable of making his defence, and the case was reported to the Minister for Law, who ordered his confinement in the Institute of Mental Health.