Mohamed Faizel Ahmed v Public Prosecutor

Mohamed Faizel Ahmed was arrested near Woodlands MRT Station on 10 November 2020 carrying a packet of vegetable matter (FA-A) and tobacco rolling paper. His urine tested positive for two synthetic cannabinoids, and FA-A was found to contain MDMB-4en-PINACA. After trial, a district judge convicted him on 3 October 2022 of two consumption charges and one possession charge under the Misuse of Drugs Act, acquitted him of a utensil charge, and sentenced him to a global term of one year and six months' imprisonment.

His defence was that four unidentified men at a Woodlands void deck had given him hand-rolled cigarettes and FA-A, which he believed was "Butterfly" rolling tobacco he had bought for them, and that they could have laced it. He had not mentioned the four men in any investigation statement. He appealed (Magistrate's Appeal No 9214 of 2022) and, through new counsel, filed Criminal Motion No 52 of 2023 to adduce fresh evidence: that he had told a senior CNB officer who bought a drink at his stall in January 2021 about the four men, and that at trial his former counsel told him the prosecutor had said a corruption charge over the drink might follow if the officer were called.

1. Whether the fresh evidence met the requirements of non-availability, materiality and credibility
2. Whether the trial prosecutor threatened the appellant or wrongly suppressed evidence
3. Whether the appellant rebutted the presumption of consumption under s 22 of the Misuse of Drugs Act
4. Whether he rebutted the presumption of knowledge of the drug's nature under s 18(2)

Applying the Ladd v Marshall test as adopted in Sanjay Krishnan v Public Prosecutor [2022] 2 SLR 49, the court held the evidence was within the appellant's own knowledge and could have been raised at trial; his claimed fear of a corruption charge did not explain his later change of heart. It was not credible: the officer's affidavit gave a different date and said the appellant only spoke briefly of buying a cigarette he did not know was a drug, without mentioning four individuals, and former counsel's email said the appellant claimed to have "suddenly remembered" the matter in court and did not recall him describing that level of detail. It was not material, because he never mentioned the four men in four statements, including one recorded on 17 June 2021, and had told investigators he bought FA-A from a minimart.

The complaint about the prosecutor was groundless. Counsel's email showed the prosecutor had only said the matter might need investigation that could lead to a charge; counsel advised that a charge seemed unwarranted and left the choice whether to call the officer to the appellant.

On the appeal, a bare denial cannot rebut the s 22 presumption. The account of the four men was uncorroborated, unverifiable and, as the district judge found, a fabrication and an afterthought; the adverse inference from his silence in his statements was justified. The appellant misunderstood the burdens: the Prosecution keeps the legal burden but, once a presumption applies, the evidential burden to rebut it shifts to the accused. Smoking openly near police was at best inconclusive.

On possession, the appellant conflated physical possession with knowledge of the drug's nature. He knew FA-A was in his bag, which proved possession, and his rejected story could not rebut the s 18(2) presumption.

The court dismissed both the criminal motion and the appeal against conviction. None of the requirements for admitting fresh evidence was met, and the district judge's findings were not plainly wrong or against the weight of the evidence.