Low Lin Lin v Public Prosecutor
[2002] SGHC 199

Judgment

GROUNDS OF DECISION

11        While the appellant agreed with Sybil’s claim that the two of them had gone to the toilet together while they were at Double-O, and that they had shared a cubicle together, she completely denied taking cocaine that night, or any drugs previously. Indeed, the appellant’s position was that she had left both her handbag and her wallet behind in Double-O when she went to the toilet with Sybil.

16        The trial judge first considered whether the presumption of possession found in s 18(1)(a) of the Misuse of Drugs Act (the ‘MDA’) operated in the present case. On the evidence adduced, the trial judge found that the appellant had "possession" of her handbag, such that the s 18(1) presumption could be invoked. This led to the further presumption in s 18(2) that the appellant had knowledge of the nature of the drugs. The appellant was hence obliged to rebut the prosecution’s case on a balance of probabilities, which the trial judge felt that she had failed to do.

18        Before me, the appellant concentrated on two main issues; namely, whether the presumption in s 18(1) of the MDA had been properly invoked; and whether the trial judge had erred in convicting the appellant of the charge.

24        The invocation of the s 18 presumption aside, the only way to prove the case against the appellant was to accept Sybil’s evidence and, as a corollary, reject the appellant’s, as Sybil was the only person who was able to explain the presence of the cocaine in the appellant’s wallet. The appellant as such raised several arguments before me meant to demonstrate that the trial judge had erred in accepting Sybil as a reliable witness. As shall be seen below, I was not convinced that the trial judge had reached the wrong conclusions on Sybil’s and the appellant’s respective credibility.

25        The first criticism made by the appellant of the trial judge’s findings was based on para 87 of the grounds of decision, in which the trial judge had commented:

As to the submissions concerning Sybil’s drug history and her lack of truthfulness in the first statement, if the gist of these submissions was that I should treat her evidence with caution, then that was precisely how I treated the evidence of all the witnesses.

The appellant argued that this was the wrong approach to take, as Sybil was not just any other witness. Instead, she had on her own admission consumed cocaine with the appellant, and should hence have been treated like an accomplice, with all the attendant caution implicit in such treatment. The prosecution for its part contended that Sybil was not an accomplice as the only crime she had been committed was consumption of drugs, while the appellant had been charged with the possession of drugs.

26        I agreed with the prosecution’s contention that Sybil was not an accomplice in the strictest sense of the word. At the same time, it was manifestly clear to me that Sybil could not be treated like any other witness. Her own confessed act of consumption was so closely tied with the issue of the appellant’s possession of the cocaine that she would definitely have to be considered an interested witness, and a very interested one at that. For this reason, I took the view that Sybil’s evidence ought to have been treated with the same caution afforded the evidence of accomplices, even though she was not strictly speaking an accomplice.

27        Having said the above, I was satisfied that the trial judge did subject Sybil’s evidence to the high level of scrutiny which should be accorded the testimony of accomplices.

28        Section 116 of the Evidence Act (Cap 97) provides that the court may presume:

(b)        that an accomplice is unworthy of credit and his evidence needs to be treated with caution

The above was interpreted in Chai Chien Wei Kelvin v PP [1991] 1 SLR 25 as meaning:

Whether or not the court should believe the evidence of the accomplice would depend on all the circumstances of the case and the evidence must be tested against the objective facts as well as the inherent probabilities and improbabilities…

Treating Sybil’s evidence with caution

29        The appellant raised several issues as tending to show the unreliability of Sybil’s evidence. The first was the inconsistencies between Sybil’s statement to the CNB on 31 October 2000, in which she stated that she did not know whether the appellant abused drugs, and her statement of 19 February 2001, in which she gave a full account of the consumption incident in the toilets outside Double-O. A second issue was an alleged promise of immunity made by the Investigating Officer (the ‘IO’) to Sybil when the second statement was made, arguing that since the IO did not have the legal authority to offer immunity, Sybil’s fate remained open-ended and there was hence incentive for her to lie in an effort to get herself out of trouble. A final issue was that Sybil had not disclosed that the appellant had asked her to lie until the trial itself, such that Sybil must have been improvising her testimony in order to exaggerate the culpability of the appellant.

30        I found that it was clear from the grounds of decision as well as from the Notes of Evidence that the trial judge was well aware of the inconsistencies in the statements and sought an explanation from Sybil. The explanation that Sybil provided - namely that she had lied in her statement of 31 October 2000 as she feared getting involved in the CNB investigations, but fear and guilt in the intervening months led her to tell the truth to the CNB – was to my mind perfectly reasonable and I concluded that the trial judge had not erred in accepting it. The same applied to Sybil’s initial non-disclosure of the appellant’s request for her to lie. Again, the trial judge was well aware of this non-disclosure and had demanded an explanation from Sybil for it. I was of the opinion that Sybil’s explanation – that her main reason for not telling the truth on 31 October 2000 was to keep herself out of trouble, and she did not think that the appellant’s request was very important as she thought it came naturally – was not such as to arouse suspicion.

31        As for the alleged promise of immunity, I was not convinced it detracted in any way from the reasonableness of her explanation. For one thing, the alleged promise of immunity was only made after Sybil had confessed everything to the CNB. Sybil was as such leaving herself open to criminal charges by telling the truth. I also considered whether a promise of immunity had in fact been made by the IO. What had actually transpired on 19 February was that, after confessing that she had consumed cocaine, Sybil asked the IO if she was going to be charged. The IO then told her that since the focus of the investigation was presently on the possession of the drugs, not consumption, Sybil would not have to worry about getting in trouble. In the circumstances, I took the view that it would be extremely far-fetched to consider that a promise of immunity had been made.

Testing the evidence against objective facts

32        The appellant’s arguments under this head related to the colour of the appellant’s wallet on the night in question. While both the prosecution and the appellant agreed that the wallet was a black wallet, Sybil testified that she thought the appellant was using a green snakeskin wallet. The appellant hence contended that Sybil’s mistake as to the colour of the wallet showed that she was also lying when she said that she saw the appellant take the cocaine out from the wallet.

33        While it is patently obvious that Sybil made a mistake as to the colour of the wallet, I failed to see how the mistake could be said to lead logically to the conclusion that Sybil was also lying about the consumption incident. Sybil had earlier testified that she did not often notice things such as wallets and clothing, and the appellant herself had conceded that she often changed her wallets and bags to match her clothing. Sybil’s attention during the consumption episode would have been focussed on the cocaine, and I did not see anything sinister in her inability to remember the colour of the wallet.

Weighing the inherent probabilities and improbabilities in the evidence

34        The final attempt by the appellant to undermine the trial judge’s assessment of Sybil’s credibility came from a series of arguments purporting to show the improbability of Sybil’s account of the cocaine consumption. In particular, the appellant took issue with Sybil’s claim that the cocaine was consumed in a public toilet with a queue waiting outside, and that the cocaine was cut into lines on the toilet seat cover itself. However, I noted that Sybil did testify in the court below that their original intention had been to use the toilets at Double-O, only to find that they were still being constructed. The appellant herself had also admitted under cross-examination the following: that she would have expected a certain amount of privacy in the cubicle of a ladies’ toilet; that the toilet at Robertson Walk was far from being as dirty as a toilet in a hawker centre; and that snorting cocaine would not generate the type of noise or smell which might arouse the suspicions of the persons queuing outside.

35        As for the appellant’s claim that Sybil’s and her getting into a single cubicle together would have aroused the attention of third parties, I noted that the appellant herself had claimed that she and Sybil had gone together into a single cubicle, but to urinate and not to consume drugs. It followed that I could hardly accept that such an act was improbable when the appellant herself had accepted that there was nothing odd in it.

36        One last criticism made by the appellant under this head was of Sybil’s testimony that she "didn’t feel anything" after consuming the cocaine, contending that her inability to describe the effects of cocaine were more consistent with the fact that they had not in fact consumed any cocaine. The appellant also suggested that Sybil ought to have commented on the lack of feeling to the appellant immediately afterwards. However, I noted that, in the trial below, Sybil had not been questioned on her lack of sensation, the appellant’s counsel having let the matter drop during cross-examination. To take issue with it now would run foul of the rule in Browne v Dunn 1893] 6 R 67, which states that any matter upon which it is proposed to contradict the evidence-in-chief given by the witness must normally be put to him so that he may have an opportunity of explaining the contradiction, and failure to do this may be held to imply acceptance of the evidence-in-chief.

37        I was also aware that the amount of cocaine consumed was in all likelihood very small. 0.27 grams of cocaine had been seized from the appellant at Zouk, constituting the remainder of the original quantity in the sachet. Sybil’s testimony was that the appellant only poured "some" out, sufficient only for two lines of two cm per person. In the absence of expert evidence on the effects of consumption – evidence which was open to the appellant to adduce – and counsel’s failure to question Sybil on the effects of the cocaine during the trial, I concluded that it would be inappropriate to make too much of the absence of any after-effects from the cocaine.

38        All in all, I took the view that the appellant’s arguments under this head did not go very far in supporting her argument that the trial judge failed to consider the inherent improbabilities in Sybil’s account. I found that the account was not improbable in the first place, and the appellant’s own admissions under cross-examination led me to conclude that the appellant had exaggerated the alleged improbabilities in the story in an attempt to save her own skin.

Whether independent corroborating evidence was needed

39        It followed from my findings above that I also rejected the appellant’s argument that the trial judge ought to have sought independent corroborating evidence before relying on Sybil’s evidence to convict the appellant. The need for such evidence depended on the trial judge’s assessment of the flaws (if any) in Sybil’s evidence and whether she felt that it would be safe to convict the appellant on Sybil’s evidence alone. I found that, of the many criticisms made by the appellant, few were valid and Sybil was nevertheless able to provide reasonable explanations for them. It is trite law that an appellate court will be slow to disturb the findings of a lower court unless they were clearly reached against the weight of the evidence – Lim Ah Poh v PP [1992] 1 SLR 713. The trial judge has the benefit of observing the witnesses in person, an advantage denied to the appellate court, and the prima facie reasonableness of Sybil’s explanations militated strongly against my overturning of the trial judge’s assessment of Sybil as an "honest and credible" witness.

40        At the same time, I agreed with the trial judge’s conclusion that the appellant’s defence should be disregarded. As the trial judge has pointed out, the appellant’s own testimony was rife with inconsistencies, notably her ability to remember recall the exact sequence of events by which Sybil allegedly retrieved her possessions from the appellant’s handbag while at Velvet Underground, while at the same time claiming that this was a common occurrence and that she had not kept her eye on Sybil while they were at Velvet Underground. The appellant also came up with far-fetched explanations to refute the prosecution’s suggestion that a person who wanted to plant cocaine in the appellant’s handbag would simply slip it into the bottom of the bag rather than take the extra trouble of putting it in the appellant’s wallet.

41        A third example was the appellant’s claim that she had contacted Sybil after she found out about the latter’s interview with the CNB on 19 February 2001 because she was curious as the CNB had not contacted her for a long time. However, the prosecution was able to show that the appellant had been interviewed by the CNB only two weeks prior to Sybil’s interview, thereby showing her claim of curiosity to be a lie. In light of this disclosure, it would not be unreasonable to draw the inference that the appellant was concerned that Sybil should break down and confess to the CNB.

42        The appellant also made much of the fact that she had admitted ownership of her handbag to ASP Tan, contending that it demonstrated her innocence. At the same time, she took issue with the trial judge’s finding that she had had many drinks that evening and would not have been able to identify ASP Tan as a law enforcement officer in the short time span afforded her.

44        The above said, I did not find the appellant’s act of claiming her bag from a known law enforcement officer to go very far at all in showing her innocence of the charge. As the trial judge noted in her grounds of decision, there were other reasons for the appellant’s actions. Chief among them was the fact that the handbag could have been traced back to the appellant, since she had informed both Diana Chong and Soo Han that she had lost her handbag. Furthermore, the handbag contained the name-cards of the appellant’s friends, and the handbag could have been traced back to her through them. If the appellant was lucid enough to notice ASP Tan’s clothing that night and to reason out that he was a law enforcement officer, she would also have been capable of concluding that she should acknowledged ownership of her bag since it could always be traced back to her.

46        First, the appellant contended that the IO had failed to test the appellant’s urine sample properly, and also did not produce the currency note which was used by the appellant and Sybil to snort the cocaine. The appellant argued that these omissions gave rise to an adverse inference which undermined the prosecution’s case.

47        Section 116 of the Evidence Act provides that the court may presume:

The prosecution for its part had explained that the CNB were not expecting the drug concerned to be cocaine, and hence did not test the appellant’s urine sample for it. As Dr Lui explained in the court below, it was too late to test the urine sample for cocaine by the time the CNB realised that the drugs in the packet were in fact cocaine. In any event, since the urine test might or might not have shown that the appellant did consume cocaine, such that it was a neutral point which should not influence the decision. As for the currency note, the prosecution explained that the CNB were not in a position to seize seemingly innocuous items in the possession of the appellant as they would not have known that a currency note was used to snort the cocaine until much later in the investigations.

48        Illustration (g) is an evidentiary device meant to penalise parties who withhold evidence, and the following passage from Mususamy v PP [1987] 1 MLJ 492 is useful:

Furthermore, it would not be appropriate to draw an adverse inference if a reasonable explanation for the failure to produce is given – Murugan v Lew Chu Cheong [1980] 2 MLJ 139. In the present case, while the absence of evidence on the urine test and the currency note were most unfortunate, I concluded it would not have been appropriate in the circumstances to draw an adverse inference against the prosecution.

49        I was also mindful that it was not crucial to the prosecution’s case against the appellant to produce such evidence, as it is clear that a conviction may be warranted on the testimony of one witness alone, so long as the court is aware of the dangers and subjects the evidence to careful scrutiny. This is so whether the witness is an accomplice – Chua Poh Kiat Anthony v PP [1998] 2 SLR 713 – or an interested witness – Tan Khee Koon v PP [1995] 3 SLR 724, Kwang Boon Keong Peter [1998] 2 SLR 592.

52        The present case turned ultimately on whether Sybil’s or the appellant’s testimony should be believed. Given that Sybil was able to provide prima facie reasonable explanations for those few inconsistencies in her statements, while the appellant’s story was full of logical and factual flaws, I concluded that the trial judge was justified in preferring Sybil’s evidence, and accepting it in its entirety. It followed that the appellant was unable to rebut the presumption of possession. I would also add that if the s 18 presumption had not applied, Sybil’s evidence was such that the prosecution would have proved its case beyond reasonable doubt. Consequently, I dismissed the appeal.

Sgd:

YONG PUNG HOW

Chief Justice

Republic of Singapore