Mohammad Shaffy Bin Hassan v Public Prosecutor

Mohammad Shaffy bin Hassan was convicted in the High Court of possessing diamorphine (heroin) for the purpose of trafficking under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act, and sentenced to the mandatory death penalty in Public Prosecutor v Mohammad Shaffy bin Hassan [2022] SGHC 111. On 19 June 2018 he messaged a Malaysian supplier, "M2", to order "2 packets", and collected a bag near Jurong Bird Park the next evening. He said he later found two large bundles and one small bundle inside. On 21 June 2018 CNB officers intercepted his car and found three packets in his bag; an extra small packet inside one of them was found only during exhibit processing.

At trial his main defence was that he had ordered ecstasy, collected heroin by mistake and meant to return it; the judge rejected this, found he knew the drugs were heroin, and found he was not a mere courier. On appeal in Criminal Appeal No 22 of 2022, his new counsel ran a different defence: he had ordered two packets of heroin and collected the third by mistake, so the Prosecution had not proved he intended to traffic the third, which would bring the quantity below the capital threshold. The court allowed him to amend his petition of appeal to raise this, but dismissed a separate application to admit affidavits from a man said to be his contact "MB" and from a fellow inmate.

1. Whether the appellant could rely on appeal on a defence inconsistent with his defence at trial, and on what evidence
2. Whether the judge was plainly wrong to find no reasonable doubt that he intended to traffic the third packet
3. Whether the chain of custody of the drugs, including the extra packet, was proved
4. Whether the judge erred in finding that he was not a courier

An accused may raise a new, even inconsistent, defence on appeal, but the court looks only at the trial evidence to see whether it is reasonably made out, following Mohd Suief bin Ismail v Public Prosecutor [2016] 2 SLR 893. Public Prosecutor v Mas Swan bin Adnan [2012] 3 SLR 527 does not help an appellant whose alternative defence has no basis in that evidence. The proposed affidavits were hearsay, or double hearsay, and failed the Ladd v Marshall conditions.

The judge was not plainly wrong to reject the mistaken-collection account. He did not contact the supplier or MB for 15 hours, his claimed rule that he could not message the supplier first was contradicted by his own "Done boss" message, the bag and tape colours were bare assertions, and he smoked from the very packet he said was a mistake. Messages and Hanafiah's evidence showed he took orders himself. Even if the third packet had been collected by mistake, he never said what he meant to do with it, and his accounts after arrest kept changing: delivering the drugs, returning all three, keeping them from his mother. Once the Prosecution proved intent to traffic all three, he had to raise a reasonable doubt, and the Prosecution need not identify a buyer.

The extra packet sat inside another packet and was easily overlooked, and nothing suggested tampering. He had no certificate of substantive assistance, and taking and placing orders went beyond a courier's role.

The Court of Appeal dismissed the appeal against conviction and sentence in its entirety, affirming the mandatory death sentence. It had earlier dismissed the application to adduce further evidence.