The appellant, Muhammad Afzal Khan ("Afzal"), a Pakistani national, was tried and convicted in the High Court of the following drug trafficking charge:

That you, Muhammad Afzal Khan, on the 6^th day of April at River View Hotel, Singapore, did engage with one Muhammad Ali Hashim in a conspiracy to do a certain thing, namely, to traffic in diamorphine, a controlled drug specified in Class "A" of the First Schedule of the Misuse of Drugs Act, Chapter 185, and in pursuance of the said conspiracy and in order to the doing of that thing, did offer to sell to one "Ray" about 5 kilograms of heroin containing a total of not less than 2871.2 grams of diamorphine, and you have thereby abetted the commission of the offence of offering to traffic in the said controlled drug, and committed an offence under section 5(1)(a) read with section 12 of the Misuse of Drugs Act and punishable under section 33 of the said Act.

2 One Muhammad Ali Hashim ("Hashim") and one Muhammad Naveed ("Naveed"), both also Pakistani nationals, were tried together with Afzal in the High Court on drug trafficking charges relating to the same transaction. Hashim was convicted of a charge of drug trafficking by possession. He appealed against the conviction and sentence but later withdrew the appeal. Naveed was acquitted of a charge of drug trafficking by delivery and remained acquitted after prosecutions appeal against his acquittal was dismissed.

3 Afzal appealed against his conviction. After hearing his appeal, we dismissed it for the reasons set out below.

4 In relation to Afzal, the main evidence adduced by the prosecution was contained in the following segments, namely (i) a statement of agreed facts; (ii) the evidence of one Raymond Quattlander ("Ray") together with several audio and video tapes and their transcripts which recorded the conversation between Ray, Afzal and Hashim on 6 April 2000 in connection with the drug transaction; and (iii) the statements of Hashim recorded in the course of investigations.

5 The statement of agreed facts revealed the following. In the evening of 6 April 2000, Afzal and Hashim met Ray and a Caucasian lady at the River View Hotel. Ray was an undercover agent attached to the United States Drug Enforcement Agency ("DEA") who was involved in a sting operation leading to the arrest of Afzal, Hashim and Naveed. After the meeting, Afzal and Hashim accompanied Ray to Rays hotel room in River View Hotel. Subsequently, Afzal and Hashim left River View Hotel in a taxi and proceeded to Hotel Grand Central, where Afzal was staying.

6 Later that evening, Hashim left Hotel Grand Central in a taxi and went to River View Hotel again. About 10 minutes later, he left River View Hotel and returned to Hotel Grand Central in another taxi. An hour later, at about 9.30pm, Hashim left Hotel Grand Central and walked to Centrepoint Shopping Centre where he met Naveed, from whom he collected two dark coloured suitcases. Hashim then boarded a taxi and headed for River View Hotel with the two suitcases. Upon arriving at River View Hotel at about 10.10pm, Hashim went up to Rays room.

7 At about 10.30pm, Hashim and Ray came down to the lobby of River View Hotel, where they met Naveed who arrived and handed a bunch of keys to Hashim. Thereafter, Naveed left whilst Hashim and Ray returned to Rays room.

8 Hashim was arrested at the lobby of River View Hotel at about 11.40pm. At that time, he had with him the two suitcases which he had collected from Naveed earlier and brought to the hotel.

9 Afzal was arrested at about 12.25am on 7 April 2000 in his hotel room at Hotel Grand Central. Naveed was arrested at about 10.50pm on 6 April 2000 on his journey back from River View Hotel after handing the bunch of keys over to Hashim.

10 After their arrest, Afzal, Hashim and Naveed were brought to the Major Investigation Branch ("MIB") of the Central Narcotics Bureau ("CNB"). The two suitcases found in Hashims possession were opened and the inner lining of the suitcases were chiselled away in the presence of Afzal, Hashim and Naveed. The drugs which they were allegedly trafficking was found concealed in the sides of both suitcases in the form of a white granular substance. Upon scientific analysis, the white granular substance found in the two suitcases amounted to 4,874g and the diamorphine content thereof was 2,871.2g. Afzal, Hashim and Naveed also had their urine samples tested for drugs and the results were negative for all three of them.

11 In June 1999, Ray, a Special Agent with the DEA, was assigned to act in an undercover operation to negotiate the purchase of heroin from Afzal and Hashim. Rays role was to impose as the head of a major international heroin syndicate based in New York. Contact was made with Afzal and Hashim, who chose Singapore as the venue for the drug transaction. The arrangement was that Afzal and Hashim would sell to Ray two kilograms of heroin for US$120,000 cash and another three kilograms on credit. On 5 April 2000, Ray left New York for Singapore for the drug transaction.

12 Hashim contacted Ray in Singapore on 6 April 2000. That evening, Afzal and Hashim met Ray at River View Hotel. The Caucasian lady who was also present was Kimberley Elliot ("Elliot"), also a DEA Special Agent. She was feigning as Rays girlfriend and courier. At that time, Ray was fully wired and had a concealed micro-audio device on him to record the conversation between himself and the others. The parties present were seated at the caf in the hotel when Ray opened a bag and showed Afzal and Hashim the US$120,000 cash which was kept inside. Shortly, Elliot departed from the caf with the bag and money.

13 Thereafter, Ray invited Afzal and Hashim to his room to discuss the transaction in private. A concealed audio-visual device had been set up in Rays room and monitoring equipment was also set up in the adjoining room. The equipment was maintained by a DEA Special Agent until Hashim was arrested.

14 In Rays room, Ray, Afzal and Hashim engaged in conversation on the proposed sale of five kilograms of heroin to Ray. Their conversation was recorded in both audio and video form and were replayed at the trial below. The recordings made secretly in Rays room showed the three parties actively discussing the sale of heroin.

15 Rays evidence was that while Afzal and Hashim were with him in his hotel room, they had told him that the heroin was concealed in suitcases in a highly sophisticated manner. The final agreement was that Ray would take delivery of five kilograms of heroin for US$300,000, of which US$120,000 would be paid in cash and the balance to be remitted later. Afzal and Hashim also agreed to show the heroin to Ray later that evening. They then departed from River View Hotel. Ray testified that Afzal and Hashim appeared to be earnest in discussing the sale of the heroin. Elliot also gave evidence for the prosecution in respect of the meeting between the parties at the caf before Afzal, Hashim and Ray adjourned to Rays room.

16 Later that evening, at about 8.00pm, Hashim returned alone to see Ray in his room. Hashim did not have any suitcases with him but had brought a sample to Ray for testing. The sample tested positive for heroin. Ray, however, told Hashim that he should return with the suitcases containing the heroin in order to conclude the deal.

17 Hashim returned to Rays room about two hours later with the two suitcases. However, when he tried to open them, he found them locked and he did not have the keys to open them. He then made a telephone call to Naveed and left the room with Ray to collect the keys from Naveed at the hotel lobby.

18 After Hashim and Ray had collected the keys and returned to Rays room, they opened the suitcases. The suitcases were empty but emitted an odour of mothballs. Hashim pointed to the sides of the suitcases and said that the heroin was concealed along the walls of the suitcases. However, both Hashim and Ray could not locate the drugs in the suitcases although they had cut open the lining of the suitcases. Hashim then called Afzal to enquire the whereabouts of the heroin. While waiting for Afzals reply, Hashim told Ray that one of the suitcases contained about 1,300g of heroin and the other about 3,200g.

19 Shortly, Afzal called back. After speaking to Afzal, Hashim told Ray that the drugs were compressed against the walls of both suitcases. Hashim and Ray scraped the walls of the suitcases and discovered powder along the walls. Ray tested the powder for heroin and the result was positive. The suitcases were then closed and Ray directed Hashim to accompany him to the hotel lobby with the suitcases and told him that he would receive payment upon handing over the suitcases to his courier (Elliot). Hashim carried both suitcases to the hotel lobby and while waiting for Elliot, as instructed by Ray, he was arrested. Shortly thereafter, Afzal was also arrested in his hotel room at Hotel Grand Central.

20 At the trial below, the prosecution sought to admit three statements recorded from Hashim by the Investigating Officer at the CNB. Those statements amounted to a confession and Hashims counsel objected to the admission of the statements on the ground that they were made by Hashim involuntarily. However, a voir dire was conducted and the trial judge, having found that the statements were made voluntarily, admitted Hashims statements in evidence.

21 Hashims statements contained, inter alia, details of his involvement in the drug deal initially with one Lou and later with Ray, the involvement of Afzal in the transaction, the meeting with Ray at the lobby of River View Hotel and in Rays room and the identification of drugs along the walls of the suitcases.

22 The parts of Hashims statements, insofar as they revealed Afzals involvement in the drug transaction, stated as follows:

7. In January 2000, I sought help from my partner Afzal [Khan] by asking him to find and send samples to Lou. Afzal is aware of my financial situation and also Lou asking me to do drugs as I discussed with him my personal problems. Afzal agreed to help but he also could not find anybody who would send the sample. Afzals heroin supplier asked for 30 per cent advance of the money. So we contacted Lou to ask him to come to Pakistan to check the sample and take the drugs from Pakistan. It is then that myself and Afzal got to know Ray. Sometime at the end of January 2000, Lou called me on my mobile and told me that he wanted to introduce me to his cousin Ray who is the main man and whom he works for. According to Lou, Ray has been in the business for a long time and has all along got his heroin from Mexico and Columbia. He also told me that Ray could be trusted and then he handed the conversation over to Ray

14. On 2 Apr 2000, Afzal informed me that the courier would be going to Singapore on 3 Apr from Lahore, passing through Karachi. The supplier would fax a copy of his passport photo so that I could watch him while he goes through the Customs. He then asked me to change my flight to Singapore Airlines, the same as the courier. It was only at that time when he told me that instead of 2 jackets, there would be 5 and they would be going in suitcases

21. Ray then asked Afzal and myself to go to his Room 1711 where he started talking about the business. He said that we had agreed on 2 for US$120,000/- and the remaining 3 to be at US$50,000/- each. I asked how he would pay us and Ray said that after checking the goods, he would make the payment through his girlfriend in 2 days time. Ray also asked where we want, in Pakistan or Singapore and Afzal replied in Singapore. Ray insisted to open the suitcase in Singapore but we did not agree as the arrangement was for him to check in New York. We started an argument with Ray stating that he could not pay for something he did not see. Afzal and myself disagreed and not decision was made. We then left the room and took a taxi back to the Hotel Grand Central.

30. I went back to the lobby to meet up with Ray and we both returned to his room. Ray asked me to open the suitcases and I opened one of them, only to find it empty. He started searching the suitcase and ripped open the inside using a knife but he could not find anything. He then asked me to open the other suitcase and it is also empty. Ray started getting furious again and said that I am cheating him. He asked me to ask Afzal about how the heroin was hidden using his mobile. I called Afzal and he got furious that I called him at the hotel using Rays mobile. I told him that there was nothing in the suitcases and he sounded worried. He said that he would call the people in Pakistan. Afzal called into Rays mobile about 10 minutes later and asked him to look at the de-colouration at the corners of the suitcase. Afzal hung up the phone and I passed the message to Ray. Ray then tried breaking through the crust of both suitcases. He managed to break the crust only after some hard work and saw some powder inside. Ray started testing the powder found at every corner of the suitcases and told me that it is OK but that it may not be 5 kilograms

31. After testing the heroin, Ray asked me to close the suitcases Ray asked me to pick up the suitcases and follow him. We then went to the hotel lobby and he told me to wait there for his girlfriend whom I an to hand over the suitcases to. She would also hand me the money. After that, Ray went off. A few minutes later, I was arrested by 5 or 6 people.

 

23 At the close of the prosecutions case, after having considered all the evidence adduced by the prosecution and having regard to the principles in Haw Tua Tau v PP [1981] 2 MLJ 49, the trial judge found that the prosecution had made out a case against Afzal, which if unrebutted would warrant his conviction. Afzal was thus called upon to enter his defence.

24 At the trial, Hashims evidence was that he had not intended to sell drugs to Ray but that he had merely wanted to cheat Ray in a sham transaction, to which Afzal was also a party. Afzals evidence contradicted Hashims materially in the sense that he denied any knowledge nor any involvement on his part in the drug transaction or any sham transaction to cheat Ray. Although he had taken part in the negotiations with Ray, he had thought that what Hashim was selling to Ray was not drugs but leather jackets.

25 Afzal was a 50-year-old Pakistani. For the past 10 to 12 years, he had been supplying defence equipment to the Pakistani Army and had also been dealing in electronic goods, photocopying machines, computer parts, faxes and other goods. He claimed that he had arrived in Singapore on 6 April 2000 for the primary purpose of making enquiries about some cabin compressor parts. He had visited Singapore many times previously, mainly to procure electronic goods which were either unavailable or too expensive in Pakistan.

26 Afzal first met Hashim about 10 to 12 years ago in New York. When Hashim visited him in June 1999, Hashim said that he was in the leather garment business and was looking for an office. As Afzal had a large office, he agreed to accommodate Hashim. In December 1999, Afzal and Hashim became business partners.

27 Afzal averred that Hashim had never mentioned or talked about drugs to him at any time. With regard to Lou, Hashim had told Afzal that Lou had a leather business in the United States and that Lou was Hashims buyer. Afzal had therefore spoken to Lou and greeted him only once. Afzal denied any communication with Ray whilst in Pakistan. Neither did he suspect that Hashim had anything to do with drugs.

28 In March 2000, Hashim told Afzal that he was going to Singapore to meet Lou, who was going to make him some advance payments for samples. Afzal was told that the order was for the supply of 2,000 leather jackets. Afzal then informed Hashim that he too had been planning to visit Singapore to make some enquiries. Hashim said that if Afzal were in Singapore as well, he would pay Afzal a substantial sum to clear part of his debt to Afzal. Hashim also asked Afzal to help remit monies from Singapore to Pakistan as Hashim intended to stay in Singapore for a while. By the end of March 2000, Afzal was unable to obtain spare parts which he required in Pakistan and he decided to visit Singapore.

29 When Hashim reached Singapore on 4 April 2000, he called Afzal in Pakistan to tell him where he was staying. Afzal arrived in Singapore in the early morning on 6 April 2000. After his arrival, he called Hashim and they agreed to meet for lunch. Hashim came by Afzals room at Hotel Grand Central and they had a general conversation about the defence equipment that Afzal was trying to source for. Hashim mentioned that he was meeting his buyer later that day to collect some advance payments and asked Afzal to accompany him. Afzal agreed as Hashim said that he wanted to show his buyer some leather samples and persuade him to make the advance payment. Hashim had represented to Afzal that the order was a substantial one valued at US$300,000. Earlier on in Pakistan, Afzal had heard from Hashim that the order was for the supply of 4,000 to 5,000 jackets.

30 Afzal accompanied Hashim to meet the buyer (Ray) at River View Hotel. Hashim and Afzal were sitting at a table at the ground level caf of the hotel with Ray and a lady (Elliot) when Ray placed a bag in front of Hashim and opened it briefly before closing it back. Afzal claimed that he did not see what was in the bag. Due to the accent and speed with which Ray was talking, Afzal did not understand what Ray was saying while opening and closing the bag. Soon, Elliot left with the bag and Ray, Hashim and Afzal proceeded to Rays room.

31 Afzal admitted that while in Rays room discussing the transaction, Afzal himself did most of the talking. However, he was talking in relation to the leather jackets which Hashim was selling and the advance payment that Hashim was to receive. Afzal claimed that did not understand English and during their conversation, he did not understand some of the things that were said. He maintained that throughout the entire conversation, he did not use the word drugs. He also denied that when Hashim called him from Rays room later on, he had told Hashim to break the suitcases to find the drugs. He testified that he did not know anything about the suitcases, to whom they belonged or what was inside them. Further, he denied any knowledge or any part in Hashims scam to cheat Ray.

32 Having reviewed the evidence in its totality after discounting what Hashim had said about Afzals role, the trial judge found that Afzal was on 6 April 2000 actively engaged in a conspiracy with Hashim and abetted Hashim in the commission of the offence stated in the charge. The judge was satisfied that the prosecution had proven beyond a reasonable doubt that Afzal was guilty of the charge he faced and therefore convicted Afzal of the offence and sentenced him to the mandatory punishment prescribed under s 33 of the Misuse of Drugs Act (Cap 185) (the "MDA"), the death penalty.

33 Afzal was charged for an offence under s 5(1)(a) read with s 12 of the MDA. Section 5(1)(a) states that it is an offence to traffic in a controlled drug whereas s 12 provides that any person who abets the commission of or who attempts to commit or does any act preparatory to, or in furtherance of, the commission of any offence under the Act shall be guilty of that offence and shall be liable on conviction to the punishment provided for that offence.

34 In this case, Afzal was charged for abetting the commission of the offence under s 5(1)(a) of the MDA by engaging in a conspiracy with Hashim to traffic in the drugs. The essence of conspiracy is agreement and it has been acknowledged by the Court of Criminal Appeal in PP v Yeo Choon Poh [1994] 2 SLR 867 and Lai Kam Loy & Ors v PP [1994] 1 SLR 787 that direct evidence of such agreement is not necessary as it will rarely be available. In PP v Yeo Choon Poh (supra) at 873, the Court stated as follows with regard to the offence of abetment by conspiracy:

The charge against the respondent was that of abetment by conspiracy. The ingredients that the prosecution had to prove were the existence of a conspiracy to traffic in the drugs and that the trafficking was actually carried out. That the second limb had been fulfilled was not disputed. The essential question in this appeal was, therefore, whether it could be said beyond a reasonable doubt that the respondent was a party to that conspiracy. The essence of a conspiracy is agreement and in most cases the actual agreement will take place in private in such circumstances that direct evidence of it will rarely be available. In fact there is no requirement in law that the alleged conspirators should remain in each others company throughout or at all

One method of proving a conspiracy would be to show that the words and actions of the parties indicate their concert in the pursuit of a common object or design, giving rise to the inference that their actions must have been co-ordinated by arrangement beforehand. These actions and words do not of themselves constitute the conspiracy but rather constitute evidence of the conspiracy.

35 In this case, in order to secure a conviction against Afzal on the charge, the prosecution had to prove the following elements beyond a reasonable doubt, that:

(i) Afzal was engaged in a conspiracy with Hashim and as conspirators, both of them agreed to traffic in diamorphine, a controlled drug, this being the object of the said conspiracy; and

(ii) the trafficking was actually carried out.

36 The second requirement, i.e. that the trafficking was actually carried out, was clearly established by the evidence of Ray and Hashim and this was not disputed by Afzals counsel. Afzals defence was essentially a denial of the first requirement, i.e. that there was no conspiracy and he had not agreed with Hashim to traffic in the drugs as he thought that what they were selling to Ray were leather jackets and not drugs.

37 Without doubt, the circumstances and evidence adduced by the prosecution incriminated Afzal. The evidence of Ray and Hashim in respect of the conversation between the three parties that took place in Rays room as well as the audio-visual recording of that conversation showed that the parties were in pursuit of a common object, i.e. to sell the drugs to Ray, and clearly constituted evidence of a prior arrangement and conspiracy between Afzal and Hashim to traffic in those drugs.

38 Further, the evidence of both Ray and Hashim that Hashim had called Afzal from Rays room and asked him for instructions in locating the drugs in the walls of the suitcases was also particularly incriminating. Following Hashims call, Afzal had made a call to Pakistan and then reverted to Hashim with instructions, whereupon Ray and Hashim managed to find the drugs which were concealed in the suitcases. This clearly showed that Afzal could not have been an innocent party to the transaction and that he had a role in the conspiracy with Hashim to traffic in the drugs.

39 Afzals counsel conceded that although the trial judge had discounted Hashims evidence, this Court was not precluded from looking at the entire evidence in its totality on record and to draw its own inferences regarding the guilt or innocence of Afzal. However, his submission was that Hashims statements confession should not be relied upon as Hashim was not a truthful witness and had retracted many parts of his statements. Counsel also contended that the trial judge had erred by implicitly relying on the evidence of Ray and accepting his evidence without scrutinising and evaluating his evidence and making any finding as to his credibility and reliability as a witness. We found such allegations devoid of merit. The evidence of Ray and Hashim in respect of Afzals role in the negotiation and drug transaction was consistent. Moreover, quite apart from the testimony of Ray and Hashim, the real evidence in the form of the audio-visual recording of the conversation between the three parties clearly showed Afzals guilt and this appeared to be the main basis on which the trial judge had convicted Afzal.

40 The other submissions of Afzals counsel on appeal revolved around various points in Afzals evidence which allegedly threw a reasonable doubt on the prosecutions case. It was submitted by counsel that the trial judge had erred in not giving sufficient consideration and weight to those points in Afzals evidence.

41 In our opinion, however, the audio-visual recording of the conversation between Ray, Afzal and Hashim in Rays room on April 6 2000 provided overwhelmingly incriminating evidence against Afzal. The trial judge found that the audio-visual recordings clearly showed that Afzal was deeply involved in the drug conspiracy. Afzal appeared to be the one who did most of the talking during the negotiation and some of his words were clearly incriminating, for example, " We do business with topmost quality so much risk right from one place to other place"; " we will always give you the topmost quality, crystal, topmost"; " we often come here, we travel here, its easy. Its very dangerous also"; " the things which are packed they are really very highly technically placed and if you open them" and "It was a big Christmas card and it was a sample, very little sample".

42 In view of the negotiations in Rays room, in which Afzal appeared to play a significant role, and the incriminating words uttered by Afzal which surfaced in the audio-visual recording, Afzals defence that he had no part in the drug transaction and that he was merely negotiating with Ray for the sale of leather jackets was beyond belief. Ray had used the words heroin and drugs several times during their conversation and Afzal had not shown any surprise at the use of those words. Although Afzal claimed that he had difficulty understanding Ray because of his accent and the speed at which he was talking, this was not evident from the recording of the conversation. In the light of the evidence, there was no doubt that Afzal knew that they were negotiating for the sale of drugs and not leather jackets.

43 Although on the facts of the case, our view was that direct evidence of the conspiracy was not required in order secure a conviction against Afzal, Hashims statements and confession to the CNB did contain such direct evidence of the conspiracy between Afzal and Hashim to traffic in the drugs by selling the drugs to Ray. According to the evidence contained in Hashims statements and confession, Afzal had played an active role in the drug transaction both while in Pakistan prior to and after their arrival in Singapore.

44 At this juncture, it is apt to observe that Afzal was charged for abetting an offence under s 5(1)(a) of the MDA and therefore the charge should have read "abetted the commission of the offence of trafficking in the said controlled drug" instead of "abetted the commission of the offence of offering to traffic in the said controlled drug", which was an offence under s 5(1)(b) read with s 12 of the MDA. Nonetheless, the oversight was inconsequential and did not in any way affect the substance of the charge. Afzal was essentially tried jointly with Hashim in relation to the same offence of trafficking in the drugs under s 5(1)(a) of the MDA. That being the case, the fact that Hashim was tried jointly with Afzal in relation to the same offence did not prevent the incriminating parts of Hashims evidence from being used against Afzal. This was allowed by virtue of s 30 of the Evidence Act (Cap 97) which states as follows:

30. - When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration the confession as against the other person as well as against the person who makes the confession.

Explanation "Offence" as used in this section includes the abetment of or attempt to commit the offence.

45 However, since the trial judge chose not to take into account Hashims evidence against Afzal, we did not see the need to depart from his decision in this respect. In any case, on the facts and evidence, we had no doubt that the independent and incontrovertible evidence from the audio-visual recording of the conversation between Afzal, Hashim and Ray was sufficiently incriminating to warrant a conviction against Afzal on the charge he faced. We saw no reason to disturb the finding of the trial judge that the prosecution had proven their case against Afzal beyond a reasonable doubt and we therefore dismissed Afzals appeal and upheld his conviction and sentence.