1 The accused is Pannir Selvam Pranthaman, a 29-year-old male Malaysian citizen. He claimed trial to the following charge under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”):

2 The accused accepted that the drugs were found on him and that he possessed the drugs. But he contested that he had knowledge of the nature of the drugs and he argued that he rebutted the presumption under s 18(2) of the MDA. Accordingly, the only issue before me was whether the accused succeeded in rebutting the presumption under s 18(2) of the MDA on a balance of probabilities. After hearing the witnesses and submissions from both sides, I found that the accused has not rebutted the s 18(2) presumption and convicted him of the charge. I now give my reasons.

3 On the morning of 3 September 2014, the accused retrieved four packets of brown coloured substance from the drain across his house and proceeded to tape up the four packets with black tape. He hid three of the packets in his groin area and the fourth in the back seat compartment of his motorcycle bearing registration number JQB5302 (“the motorcycle”). Later the same day at about 4.05pm, the accused rode the motorcycle through Woodlands Checkpoint. It was raining at that time and the accused was wearing a raincoat. He was stopped for a random check by Senior Staff Sergeant Leong Mun Keong (“PW11”) and Corporal Shi Gong Qiang (“PW12”). PW11 conducted a frisk search of the accused and felt a protruding object at his groin area. He then searched the motorcycle and found one packet wrapped in black tape at the back seat compartment of the motorcycle.

4 The accused was then arrested and the packet recovered from the motorcycle was handed over to Corporal Sollehen bin Sahadan (“PW17”). The accused was accompanied to an interview room for a strip search by Sergeant Abdul Samad bin Suleiman (“PW16”) and Corporal Khairul Faiz bin Nasaruddin (“PW13”). They found the remaining three packets concealed at the accused’s groin area upon the strip search. All four packets were eventually handed over to the Health Sciences Authorities (“HSA”) for analysis. They were found to be a granular/powdery substance which contained not less than 51.84g of diamorphine. The accused’s DNA profile was found on the black tape used to wrap one of the bundles which were recovered from his groin area.

5 After the strip search, PW16 and PW13 proceeded to record a statement from the accused under s 22 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) from about 5.05pm to about 5.46pm (“the contemporaneous statement”). The events during the course of recording the contemporaneous statement were disputed. But what was not disputed was that the accused was recorded as having replied “I don’t know” to the majority of questions posed, including what the packets were, what they contained, who the person who passed him the packets was, and who the packets were to be delivered to. The accused was further recorded as stating that he was paid RM500 for each delivery but that it was his “first time” making such a delivery. The accused also did not challenge the voluntariness of the statement.

6 A first information report (“P57”) was later produced by PW17 at 7.39pm which noted, among other things, that “one black tape bundle” was seized which was “[believed to be] containing heroin recovered at the back seat compartment of the [motorcycle]”.

7 Subsequently, Investigating Officer Lee Tien Shiong Herman (“PW23”) recorded the following statements from the accused:

(a) Under s 23 CPC on 4 September 2014 at around 2.30am;

(b) Under s 22 CPC on 9 September 2014 at around 10.40am;

(c) Under s 22 CPC on 9 September 2014 at around 3.20pm;

(d) Under s 22 CPC on 10 September 2014 at around 10.05am;

(e) Under s 22 CPC on 10 September 2014 at around 10.55am;

(f) Under s 22 CPC on 10 September 2014 at around 2.30pm;

(g) Under s 22 CPC on 10 September 2014 at around 4.02pm; and

(h) Under s 22 CPC on 24 September 2014 at around 10.15am.

8 The accused did not challenge the voluntariness of any of the statements.

9 For the accused’s s 23 CPC statement, medical examinations were conducted on the accused before and after the statement at about 2.09am and 3.28am on 4 September 2014 respectively. On each occasion the medical report noted “strong alcohol fetor” on the accused. The charge including the notice of the death penalty was read to the accused and he signed on it. In this statement the accused stated that it was one “Anand” who gave him the packets. The accused met Anand at a gambling den and Anand subsequently offered him a job as the accused had lost most of his money on gambling. The accused also stated that “[t]his is the first time I do this kind of mistake. I really do not know what is the thing that they put on my [motorcycle]. That is all.”

10 In the accused’s s 22 CPC statement at [7(b)] above, the accused stated that on the night of 2 September 2014, Anand brought him to a hotel room with four to five other persons, and that he joined them in drinking and smoking “Ice”. But the accused could not remember what happened after that. When he woke up it was around 11.30am on 3 September 2014. He was awakened by Anand’s call. Anand reminded the accused that he agreed to send “sapdhe” to Singapore. Anand told him that he, the accused, had placed something in the drain behind the shop houses near his house. The accused stated that he did not know what “sapdhe” was, nor had he placed anything in the drain. He nevertheless went to the drain to look. He found four plastic packets and brought them home. They contained “brownish coloured stuff”. Again, although the accused did not know what it was, he followed Anand’s instructions to wrap them in black tape, intending to pass them to one “Jimmy” in Singapore. The accused said that Anand told him that “this thing is not play play and can kill people”, and that it was “worth thousands of dollars”. The accused said that when he was stopped to be checked at Woodlands Checkpoint, he “knew that it was over for [him]” and “told the officers to give [him] a chance and let [him] go back to Johore Bahru”. He explained that he “panicked” and “knew that [he] was going to die and did not know what to do”. That was why he did not cooperate with the officers after he was arrested.

11 In the accused’s s 22 CPC statement at [7(g)] above, the accused stated that while he could not remember when he had first “helped ‘Anand’ send the drugs”, he had met Jimmy two to three times to deliver items for Anand. This was between 22 August 2014 to 3 September 2014. The accused described the three occasions: first, where he put three black taped bundles into a basket of a bicycle chained to a tree; second, where he put three black taped bundles into a rubbish bin near an overhead bridge; and third, when he put three black taped bundles into an electric box on a bicycle. The accused was paid RM700 for each bundle delivered. He stated that he “did not reveal all these in [his] earlier statements because [he] was afraid it would affect [his] case”.

12 The Prosecution noted that the accused’s version of events was that he thought that the four packets contained “sex medicine” or “aphrodisiac” instead of diamorphine. But the Prosecution submitted that this account was insufficient to rebut the s 18(2) presumption for two primary reasons: the accused was not a credible witness, and his account was inherently illogical.

13 The Prosecution first submitted that the accused was not a credible witness, relying on the inconsistencies in the accused’s account between his statements and his version at trial, and also certain inconsistencies during the trial itself:

(a) The accused’s account as to why he agreed to help Anand changed. He initially stated in the s 23 CPC statement that it was due to his need for money; but later in his evidence-in-chief he said that it was because Anand faced financial difficulties. The accused blamed the deficiencies in the recording process when confronted with this inconsistency during cross-examination.

(b) The accused’s story as to who sent him home on the night of 2 September 2014 also changed. He claimed that it was one “Taya” who did so during his evidence-in-chief; but during cross-examination changed the story to include a third, unknown person. When confronted with this inconsistency the accused stated that he was not specifically questioned about the event.

(c) In his s 23 CPC statement, the accused initially said that he did not know where the bundles came from; only in later statements did he reveal Anand’s involvement. His reason for doing so was that he did not wish to prejudice his own case.

(d) The accused also initially claimed that this was the “first time” he had made this “mistake” but later admitted that he had delivered packets from Anand to Jimmy on three prior occasions. When the inconsistency was pointed out to the accused in cross-examination, he maintained that this was not an inconsistency as the “mistake” referred to the fact that he brought “powdery substance” into Singapore. Since the previous three occasions involved bringing tablets into Singapore, they were distinct incidents.

(e) The accused initially stated that he did not know the contents of the bundles. But he later identified them as “drugs” and finally at trial he proffered the position that he thought the packets contained “sex medicine”.

14 From these instances, the Prosecution submitted that the accused was evasive, seeking to paint himself in the best possible light while attempting to blame others such as the officers recording these statements for their alleged inability to record accurately what he had said.

15 Apart from the accused’s credibility, the Prosecution further submitted that the accused’s version of events was also inherently illogical in the following areas:

(a) The accused’s account that he fully trusted Anand and treated him like a brother was illogical since the two met at a gambling den and the accused did not even know Anand's name. It was also illogical that the accused would not be suspicious for being paid such a large amount for merely transporting packets of sex medicine, especially since Anand would pay for any fines incurred.

(b) The accused’s account as to what happened on the night of 2 September 2014 was also illogical, because if he had been as drunk as he said he was, he would not have been able to hide the drugs in the drain.

(c) The accused’s story that he did not know that the packets contained drugs was also illogical because in his own statements he referred to the packets as containing drugs, and he also said that he was “going to die” and did not know what to do. This suggested that he knew the packets contained drugs attracting the death penalty.

(d) The accused’s explanation that he did not cooperate with the police and Central Narcotics Bureau because he was paralyzed with fear from hearing of the possibility of the death penalty was illogical, because it did not explain why he was uncooperative between the time he was arrested and the time the charge was read to him.

(e) The accused’s case that the officers involved were essentially attempting to falsely procure a conviction was illogical. If PW16 wanted to do so he would not have told the accused that the packets contained “heroin”, as at the time of the contemporaneous statement the packets had not yet been tested and it could have been any one of a number of controlled drugs. It was also unlikely that PW23 would have been in cahoots with PW16 since he recorded answers advantageous to the accused, such as when the accused stated that the packets contained “brownish coloured stuff” but that he did not know what it was.

(f) Finally, the allegation that the statement-recording process was improper as the accused was not read back his statements and was not given the chance to amend them if he so wished was also illogical. The accused signed against the clauses stating that the statements were read back to him and had declined to make any corrections. And in the contemporaneous statement, the accused had signed against every single answer.

16 The Prosecution submitted that based on the above factors, the accused had not discharged his burden of rebutting the s 18(2) presumption on a balance of probabilities.

17 The Defence submitted that the accused rebutted the presumption under s 18(2) of the MDA on a balance of probabilities. The Defence’s case was that the accused believed that the packets contained sex medicine and had reasonable grounds to have held that belief.

18 The Defence first contended that the accused believed that the packets contained sex medicine. This could be seen from the fact that he variously described the packets as “things”, “sapdhe”, or “sex medicine”, rather than drugs. According to the Defence, the accused had also positively mentioned this defence when his statements were being recorded or when he had the chance to speak to CNB or police officers, but this was not recorded:

(a) When the accused was first arrested, he mentioned to PW11 that the packets contained aphrodisiac but this was not reflected anywhere. PW11 could have missed out on this testimony given that PW11 noted in his statement, Exhibit PS11, that the accused “mumbled his reply”. PW11 also could not remember under cross-examination whether he had conversed with the accused about aphrodisiac.

(b) The accused also mentioned that the packets contained aphrodisiac when the contemporaneous statement was recorded to PW16 and PW13. But PW16 insisted that the packets contained “heroin” instead, even before the packets were sent to HSA for analysis, and did not record the accused’s version of events. This was supported by the fact that PW16 admitted during cross-examination that it was standard procedure to ask the accused what was contained within the bundle and whether the accused was fit to give a statement, but neither of those questions were reflected in the contemporaneous statement. Further, PW13 could not recall whether PW16 asked questions which he did not record; and PW17 testified that he was informed by PW16 and PW13 that the bundles contained heroin after they came out of the interview room with the accused.

19 The Defence submitted that it was reasonable for the accused to have held this belief because Anand had told him that the packets contained sex medicine. The accused had no reason to doubt Anand: the accused had treated Anand like a brother and if Anand truly intended to “cheat” the accused, he could have directly wrapped the packets in black tape instead of allowing the accused the chance to look at the contents of the packets. Further, the accused had called Anand to query him about this, and was satisfied with Anand’s answer as he had previously seen similar brown substances being sold in medicine shops in Malaysia.

20 In this regard the Defence referred me to the Court of Appeal’s recent decision in Harven a/l Segar v PP [2017] 1 SLR 771 (“Harven”). The accused was acquitted and one of the factors contributing to the acquittal was the fact that he imported the drugs believing himself to be doing a “favour” to someone he only met three weeks before he was arrested (at [6], [20]). The Defence submitted that this should equally apply: although the accused only knew Anand for a similar period of time, this would not preclude him from reasonably relying on Anand’s assurances.

21 The Defence further submitted that the accused had been candid and forthright and there were no material discrepancies or serious inconsistencies in his account. For instance, the accused admitted that he had delivered similar packets for Anand on three previous occasions even though there was no need to do so. While the Defence acknowledged that there were some inconsistencies in the accused’s statements, it was contended that they were not material:

(a) While the contemporaneous statement could be viewed as a lack of cooperation by the accused, this was because the accused was paralyzed by fear upon PW16’s repeated insistence that the packets contained heroin. The Defence relied on the CA’s decision in PP v Ilechukwu Uchechukwu Chukwudi [2015] SGCA 33 for the proposition that even if the accused was excessively defensive, this did not “unequivocally” show that the accused had knowledge of the contents of the imported items (at [20(b)].

(b) While the accused stated that it was the “first time” that he “[did] this kind of mistake” in his s 23 CPC statement, this could be logically explained by the fact that it was the first time the accused brought a granular substance to Singapore. In any event, the Defence submitted that it was unsafe to overly rely on this statement since the medical reports prior to and after its recording indicated that the accused had a “strong alcohol fetor” about him. The Defence submitted that this could indicate that the accused was intoxicated whilst the statement-recording process took place.

22 Ultimately the Defence submitted that the accused was a “hapless and naïve young man” who had been “duped” and “preyed on” by Anand whilst the accused was in an “impaired state”. In such circumstances, the Defence said, the accused should be found to have rebutted the presumption under s 18(2) of the MDA on a balance of probabilities.

23 Since the accused admitted that he possessed the drugs, the only issue that I have to deal with is the presumption of knowledge under s 18(2) of the MDA. This presumption reverses the burden of proof onto the accused to show that, on a balance of probabilities, he did not know the nature of the drug. As to how this may be practically accomplished, guidance may be found in the CA’s decision in Obeng Comfort v PP [2017] 1 SLR 633, where the court noted at [39] that:

24 In other words, the court would consider the version of events put forth by the accused, including what he believed the imported items contained. The court would assess the veracity of this story and the credibility of the accused as a witness, to determine whether in totality this suffices to discharge the burden of proof. At the same time, as the CA in Harven equally noted (at [2]):

25 I had borne these principles in mind as I assessed the accused’s evidence against the evidence of the witnesses and the objective evidence.

26 After considering the evidence of both sides, I found that the accused had not rebutted the presumption under s 18(2) of the MDA on a balance of probabilities. My reasons are as follows.

27 The account put forth by the Defence was essentially that the accused believed that the packets contained “sex medicine” or “aphrodisiac” or “sapdhe” instead of heroin or diamorphine. I did not accept this account because it did not cohere with the statements that the accused himself gave from between the time he was arrested to the time of trial.

28 As the Prosecution noted, the accused was given multiple opportunities to raise his defence: he could do so when he was first arrested by PW11, when his contemporaneous statement was recorded by PW16 and PW13, and when his s 23 CPC statement and seven s 22 CPC statements were recorded by PW23. If the accused had truly believed that the packets contained sex medicine from the beginning, he would have mentioned it at the first chance possible and then continued to raise it at every opportunity. But in the case of the accused, he did not raise it before PW11, PW16, or PW13. And in the eight statements recorded by PW23, the only instance where the accused even mentioned “sapdhe” was in his s 22 CPC statement on 9 September 2014 from 10.40am to 1.37pm (see above at [10]). It was not mentioned before or after. And even when it was mentioned in the aforementioned statement, the accused’s account was not that he thought it was sex medicine, but rather that he knew it was “sapdhe” although he did not know what was meant by “sapdhe”, and that it contained “brownish coloured stuff”. If he had believed that the packets contained sex medicine, he would have been expected to raise it at this time.

29 I also found that this was inconsistent with the other indications that the accused gave in his statements. The accused first stated in his s 23 CPC statement that “I really do not know what is the thing that they put on my bike.” This by itself already contradicted his case at trial that he believed the packets contained sex medicine. And in the accused’s first s 22 CPC statement (see [10] above), he noted that Anand stated that “this thing is not play play and can kill people” and that it was “worth thousands of dollars”. This was consistent with the accused stating that he “knew it was over for [him]” when he was arrested at Woodlands Checkpoint and he asked the officers to “give him a chance” and let him return to Malaysia. This was also consistent with his statement that “[a]fter [he] was arrested… [he] knew that [he] was going to die and did not know what to do”. If the accused held the view that the packets contained sex medicine, it would be incongruent for him to hold this view at the time that he was arrested.

30 In coming to this view I had taken into account the Defence’s submissions that the contemporaneous statement was made in an irregular manner. The Defence submitted that this meant that the accused’s position (namely, that he believed the packets to contain sex medicine) was not recorded by PW16 or PW13, and that PW16 merely insisted that the packets contained heroin. This was corroborated in part by PW17’s evidence under cross-examination. When PW17 was asked how he believed that the packets contained heroin, he replied that “it could be either informed by [PW13] or [PW16]” and that he heard this “[a]fter they [ie, PW13 and PW16] went out of the interview room”. That was why he recorded on P57 that the packets were believed to contain heroin. The Prosecution sought to explain PW17’s evidence in that “after” he left the interview room could refer to any time after the contemporaneous statement was taken, including after the HSA report had come in. I do not think PW17’s evidence should be viewed in this manner. PW17 was not a lawyer and it was likely that his statement that he heard this after PW13 and PW16 exited the interview room referred to shortly after they left the room, and the Defence was entitled to take it as such. In any case the Prosecution was also entitled to clarify PW17’s evidence in re-examination but chose not to do so, and must now live by what PW17 said in cross-examination.

31 For the above reasons, I did not take into account the Prosecution’s submissions on whether the accused had said that the packets contained aphrodisiac during the taking of the contemporaneous statement. But even disregarding this statement, as I noted at [28] above, there were sufficient opportunities – eight subsequent statements – where the accused could have raised this defence, and where he indeed made mention of “sapdhe” and “brownish coloured stuff”, but did not. The Defence submitted that these statements were also tainted by irregularities in the same way that the contemporaneous statement was. I did not accept this submission because there was no evidence to show that this was anything more than a mere assertion. It was also illogical that PW23 would choose to record some evidence that was favourable to the accused (ie, that he believed that it was “sapdhe” but did not know what “sapdhe” was and that he saw “brownish coloured stuff”) but not others (ie, that he thought it was sex medicine or aphrodisiac).

32 Apart from the incongruity as to why the accused would not mention his belief that formed the lynchpin of his defence at trial, I also found that his story of what happened leading up to his arrest to be inconsistent. The accused’s version of events was essentially that he had been misled or duped by Anand into importing heroin, and that this was despite the fact that he had asked Anand about the contents of the package and had himself looked at the package. If this version of events were true, then it is difficult to understand why Anand would get the accused so drunk and high on “Ice” the night before to risk Anand’s own enterprise of importing drugs into Singapore. The accused could also provide no cogent explanation about why his story changed relating to who had brought him home on 2 September 2014 – whether it was Taya alone or whether Taya was accompanied by an unknown third party. Further, the fact that the drugs which, according to the accused, Anand said were “worth thousands of dollars” would be hidden in a drain open to the public for at least one night when there was a risk that they would go missing.

33 In relation to Anand, the Defence also contended that it was reasonable for the accused to have relied on Anand’s assurances that the packets contained sex medicine and relied on Harven where the court found that it was also reasonable for the accused there to rely on the statements of someone he only knew for three weeks. The Prosecution sought to distinguish Harven on the basis that in that case it was the accused’s first time transporting the drugs, he did not profit from the transaction, and that the accused had handed over the bag containing the drugs immediately, as opposed to the present case, where the accused had to be strip searched. I do not think that Harven assisted the Defence because in that case the length of time that the accused knew the dealer was only one of the many factors that the court considered in evaluating whether his testimony was believable.

34 The Defence’s case was essentially that PW11, PW13, PW16, and PW23 – in short, all the officers that came into contact with the accused – were in a conspiracy to procure false statements from the accused. I found no evidence to support such a claim. For these reasons I found that the totality of the accused’s account whether about the events leading up to his arrest or the events after, were mired with unexplained inconsistencies. His evidence was simply unbelievable, and was certainly not sufficient to rebut the presumption of knowledge under s 18(2) of the MDA.

35 I also did not find the accused to be a credible witness. I did not accept the Defence’s submission that the accused had been candid and forthright. On the contrary, the accused’s conduct in the recording of the various statements showed that he was shrewd enough to withhold information when he thought it would not benefit him, and only revealed them when he thought that there was an advantage to be gained. The accused initially unequivocally stated that he did not know who passed him the packets during his contemporaneous statement, and only later mentioned that Anand was involved in his s 22 CPC statement on 9 September 2014 from 10.40am to 1.37pm (see above at [10]).

36 Yet even in that very statement where he purported to give more information to the police, he not only withheld the fact that there were multiple previous occasions where he had imported packets for Anand, but in fact made a statement to the contrary: that this was the “first time” that he made this “mistake”. Although the Defence sought to impress upon me that this was the “first time” in the sense that he previously did not import granular substances, the explanation seemed contrived. Indeed this was contradicted on its face by his later statement the next day (see [11] above) that he did not reveal these past instances because he was “afraid it would affect [his] case”, not because he did not think that the instances were comparable.

37 This was consistent with his demeanour at trial. The accused’s evidence was inconsistent in many parts and he could not give a cogent explanation for these inconsistencies. While he attempted to give explanations for some of the inconsistencies, these were merely assertions and mostly centred on trying to push the blame to the recording officers. Although the accused admitted that he had previously delivered similar packets into Singapore for Anand, I have to take this against the fact that he had only raised it in his statements when he had essentially no choice and was looking for a way out. The accused’s evidence was also self-serving such as in the fact that he attempted to portray himself as having transported the packets for Anand because the latter was going through financial difficulties, while in his previous statements the accused had stated that he himself needed money to pay off his debts. I found that the accused was not a truthful witness and instead, his defences seemed to be afterthoughts quickly adapted to the situations around him.

38 For the above reasons, I found that the accused has not rebutted the presumption of knowledge under s 18(2) of the MDA on a balance of probabilities. I therefore found him guilty of the charge against him. On the evidence before me, I found that his involvement fell within s 33B(2)(a)(i) of the MDA. However, the Prosecution informed me that it has considered the relevant facts under s 33B of the MDA and determined that the accused has not rendered substantive assistance. As there is no certificate of substantial assistance from the Public Prosecutor under s 33B(2)(b) of the MDA, I passed the mandatory death sentence on the accused.