This was an appeal from the decision of the Judicial Commissioner Woo Bih Li ("the judge"), in which he convicted the appellant of an offence under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185). The appellant was sentenced to death, as required by s 33 and the Second Schedule to the Act. The appellant appealed against the conviction.

2 The charge read:

That you, Yap Ah Chuan

on the 19^th day of January 2001, at about 1.20 p.m., at Blk 218 Choa Chu Kang Ave 3 #03-246, Singapore, did traffic in a controlled drug specified in Class A of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, by having in your possession for the purpose of trafficking, 2 blocks, 54 sachets and 1 straw containing a total of more than 15 grams but less than 55.38 grams of diamorphine, without any authorisation under the said Act or the regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) read with section 5(2) of the Misuse of Drugs Act, Chapter 185, and punishable under section 33 of the aforesaid Act.

5. --(1) Except as authorised by this Act, it shall be an offence for a person, on his own behalf or on behalf of any other person, whether or not that other person is in Singapore

(a) to traffic in a controlled drug

This substantive offence includes the offence of possession of a controlled drug for the purpose of trafficking, as provided for in s 5(2):

(2) For the purposes of this Act, a person commits the offence of trafficking in a controlled drug if he has in his possession that drug for the purpose of trafficking.

4 The elements required for the offence are as follows. The actus reus is the possession of a threshold amount of a controlled drug. The relevant provision in this case is s17(c):

17. Any person who is proved to have had in his possession more than

(c) 2 grammes of diamorphine

17. Any person who is proved to have had in his possession more than

(c) 2 grammes of diamorphine

whether or not contained in any substance, extract, preparation or mixture shall be presumed to have had that drug in possession for the purpose of trafficking unless it is proved that his possession of that drug was not for that purpose (emphasis added).

8 The total weight of the drugs found was 1,290.39 g, and the total diamorphine weight was 55.38 g. The appellant admitted to possessing 8.77 g of the diamorphine for the purpose of trafficking. Hence the issue was whether the appellant possessed the remaining 46.71 g of diamorphine for trafficking.

9 The officers also found various paraphernalia used for drug consumption, two mobile phones and two pagers.

10 As mentioned above, the appellant made two statements which were recorded by Inspector Chan. He also made a long statement, recorded in four tranches, which was recorded by the Investigating Officer, Inspector Muruganandam (PW 21). The defence did not challenge the voluntariness of any statement.

12 The first point which the defence tried to establish was that the appellant was heavily addicted to heroin. The appellant had been detained in drug rehabilitation centres ("DRC") seven times between 1983 and 1998. He was imprisoned for two years from 1998. During this period, he spent more time incarcerated than free. However, he reverted to his drug habit each time he was released. The table below shows his level of consumption over this period, according to the appellant. It should be noted that the appellants evidence as to the period of detention is not on fours with the records, and in any case, some of the time periods do not make sense. However, these inconsistencies are not material.

To support this, the appellants sister, Yap Bee Hoon ("Ms Yap")(DW2) also testified regarding the withdrawal symptoms which she had witnessed in the appellant, and her failed attempts to rid him of the addiction.

13 The appellant claimed that most of the drugs were for his own consumption. Hence the second point which the defence attempted to address was, why the appellant had purchased such a large quantity of drugs from one Ah Boy for his own consumption. The reasons given were:

a As Ah Boy would not supply drugs for three weeks over the Chinese New Year period, the appellant bought a larger amount to tide himself over during that period.

b The appellant wanted to show Ah Boy that he could pay for a large quantity of drugs, so that he could win Ah Boys trust.

14 The third point which the defence tried to establish was that the appellant, though an odd-job painter with a drug habit, could pay $12,000 for the heroin. It was also alleged that Ah Boy allowed the appellant to have the drugs on credit. The appellant planned to pay by either of the following ways. The first option was:

a He would borrow $10,000 from his brother-in-law, Goh Hak Hua ("Mr Goh") (DW3).

b He would make a profit of $1,000 from selling certain exhibits P81, P82 and P83; and

c He would return to work and earn the balance of $1,000.

15 The appellant claimed that the drugs could not have been meant for sale because:

a There was no weighing machine in the appellants bedroom with which the packets could be accurately weighed.

b The packets had not been machine-sealed.

16 The appellant added that one of the mobile phones had been given to him by one Ah Heng, so that he could contact the appellant when he wanted to consume drugs with the appellant. The appellant also said that both pagers belonged to him, but only one was still in use.

17 The judge handed down his grounds of decision on 7 August 2001. He first set out the background facts relating to the appellants arrest and the recovery of the drugs. He then set out the gist of the appellants statements to the police. He then documented the proceedings before him.

18 The judge found that the charge against the appellant was proved beyond reasonable doubt for the following reasons:

a He did not believe that the appellant had bought such a large quantity of drugs merely because Ah Boy would not supply him with drugs for three weeks over the Chinese New Year period.

b He did not believe that the appellant had tried to borrow $10,000 from Mr Goh.

c He did not believe that Ah Boy would not chase the appellant for payment.

d He did not believe that the sachets could not be for sale because they had not been sealed by machine, as the sachets which the appellant had admitted were for sale had also not been sealed by machine.

e The fact that there was no weighing scale in the appellants bedroom was irrelevant, as there was no evidence that buyers would not buy drugs unless they had been accurately weighed.

f He accepted the evidence of the prosecutions expert, Dr Choos opinion that the appellant was only mildly addicted to heroin.

g He did not believe that Ah Heng gave the appellant a mobile phone merely for the purpose of contacting him so they could consume drugs together. He also did not believe that the appellant had terminated the line of his second pager.

h He was not satisfied with the appellants attempt to explain away the inconsistencies between his statements and his evidence, by saying that he had been confused and tired when he gave his statements.

19 We do not discuss points (d), (e) and (g) above as they are minor and we see no reason to overturn the judges findings thereon.

20 The judge also held that 1.81 g of the diamorphine was probably for the appellants own consumption, as these items were not found with the other drugs and were neither in an envelope nor covered with newspaper. The respondent submitted before us that the judge should not have conducted the apportionment exercise, but the status of the 1.81 g of heroin would not have affected the outcome of our decision.

22 In dealing with these issues, the following passage from Public Prosecutor v Lim Ah Poh and another [1992] 1 SLR 87 was borne in mind:

An appellate court will not disturb findings of fact unless they are clearly reached against the weight of the evidence. In examining the evidence, an appellate court has always to bear in mind that it has neither seen nor heard the witnesses and has to pay due regard to the trial judges findings and their reasons therefor.

31 The second question was why the appellant bought such a large quantity of drugs if they were merely for his own consumption. Neither reason given by the appellant at trial had been mentioned in his statements. Under s 123(1) of the Criminal Procedure Code (Cap 68), the court could draw any relevant inferences from this failure. The appellants first reason was that Ah Boy would not supply him with heroin for three weeks over the Chinese New Year period. At the trial below, defence counsel submitted that the appellant would take between 60 and 72 days to consume three packets of heroin, and this made the appellants case credible. The prosecutions calculations, based on two packets, 54 sachets and a straw of heroin, concluded that the appellant would have enough to last him more than 51 days. A period of 51 to 72 days can by no means be mistaken for three weeks, and with respect this aspect of the appellants case was not credible.

33 A key element in the appellants first payment option was a loan of $10,000 from Mr Goh. It should be noted that the appellant did not mention in any of his statements that he had asked Mr Goh for a loan. Once again, the court could draw adverse inferences under s 123 of the Criminal Procedure Code.

34 Mr Gohs testimony also cast some doubt on the truth of this claim. The first issue was Mr Gohs ability to make the loan. In response to a question by the judge, Mr Goh revealed that his personal savings amounted to more than $10,000 but less than $15,000. While he may have been able to lend the appellant $10,000, that would have meant parting with a large part of his savings. Given that the appellant still had not repaid a loan which he had previously taken from Mr Goh, and that the appellant did not hold a regular job, it was unlikely that Mr Goh would see his money again.

35 Secondly, Mr Goh was not sure of, and did not care for, the reason behind the appellants request for a loan. This seemed strange, given the reason above. Under cross-examination, he admitted that he knew of the appellants drug habit, but claimed that it did not occur to him that the appellant might use the money to buy drugs. It also did not strike him that this might undermine the efforts of the appellants family to rid the appellant of his addiction.

36 Thirdly, Mr Goh had not even agreed to the appellants request. He was unable to communicate his decision to the appellant because the latter had been arrested. He was evasive as to his level of willingness to make the loan, and maintained that he would "consider" the appellants present and future requests.

37 As for the appellants second payment option, it was unlikely, given his monthly salary of about $2,000 and his expensive drug habit, that he could save $10,000 in seven months.

38 For the reasons above, we dismissed the appeal.