Chong Hoon Cheong v Public Prosecutor

Clarifying Presumptions and Interpretations:

Chong Hoon Cheong v Public Prosecutor[2022] SGCA 50

I. Executive Summary

Under section 5(1)(a) read with section 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”), any person found:

(a) in the possession of a controlled drug (the “Possession Element”); 
(b) with the knowledge of the nature of the drug (the “Knowledge Element”);
(c) for the purpose of the unauthorised trafficking of the drug (the “Purpose Element”)

may be found guilty of drug trafficking.

While the Prosecution is usually required to prove all elements of a charge, section 17 of the MDA allows the Prosecution to presume the Purpose Element in cases involving drug trafficking, so long as the remaining two elements are proven beyond a reasonable doubt.

However, should the Prosecution seek to prove all three elements of the section 5 charge (also known as a case of direct proof) while also building an alternative case relying on the statutory presumptions available under section 17 of the MDA, the question arises: should an accused person be acquitted when the Prosecution fails to prove its primary case beyond a reasonable doubt, even if the Prosecution succeeds on its alternative case? In Chong Hoon Cheong v Public Prosecutor [2022] SGCA 50, the Court of Appeal (“CA”) set out its position on this matter, as well as the approach to be taken in such cases.

II. Material facts

A. Background 

In December 2015, the accused, Chong Hoon Cheong, was arrested after he was found possessing 25.01g of heroin for the purpose of trafficking. This 25.01g was divided amongst 27 packets, that were subsequently identified as Exhibits “A1A”, “A2”, “A4A”, and “D1A2”. Under the Second Schedule to the MDA, the mandatory punishment for trafficking more than 15g of heroin is the death penalty.

Following his arrest, the accused gave several statements, while potentially under heavy drug intoxication, in both Hokkien and Mandarin. These statements concerned evidence of his rate of consumption and his involvement with drugs. He stated that he consumed about 4g of heroin each day, and that he agreed to work by collecting heroin, repacking it and then waiting for people to collect them. However, his statements did not clearly indicate which packets were used for his personal consumption, and which were meant for trafficking. 

B. The trial below

While the Possession and Knowledge Elements of the charge were not in dispute, the accused disputed the Purpose Element of the charge. The accused submitted that his earlier statements should be interpreted to mean that of the 25.01g of heroin found in his possession, Exhibit D1A2 (which contained 14.08g of heroin) was for his personal consumption only. This formed the basis of his “Consumption Defence”. If the accused succeeded in mounting this defence, only the remaining 10.93g of heroin would have been in his possession for the purpose of trafficking – making it well under the legal threshold of 15g for the imposition of the mandatory death penalty. 

To this end, the accused’s Consumption Defence rested on: (1) his preferred interpretation of his earlier statements (as stated above); (2) his claimed high rate of consumption at the time of his arrest; and (3) evidence produced by his witness, Josiah Teh Choon Sin (“Mr Teh”), who attested to the accused’s rate of drug consumption in 1980 and 2003. 

The Prosecution’s response was twofold. First, the Prosecution primarily argued that the accused had essentially admitted to possessing the drugs in Exhibit D1A2 for the purpose of trafficking (“primary case”). In any event, the Prosecution argued that the statutory presumption under section 17(c) of the MDA applied, and Chong may be presumed to have possessed all 25.01g of heroin for the purposes of trafficking (“alternative case”).  The Prosecution also challenged Chong’s interpretation of events and Mr Teh’s statement.

At trial, the High Court (“HC”) rejected the Prosecution’s primary argument, and held that the possibility that the accused was intoxicated while making his earlier statements together with a reasonable doubt as to the proper interpretation of the accused’s statements – combined to “raise a reasonable doubt as to the accused’s guilt”. 

However, because of the twofold approach the Prosecution took at trial, the HC also considered the Prosecution’s alternative case. The HC concluded that the Prosecution had succeeded in proving its alternative case beyond a reasonable doubt. Here, since the Possession and Knowledge Elements of the charge were not in dispute, the Prosecution was able to rely on the statutory presumption under section 17(c) of the MDA to presume the Purpose Element. Further, the accused failed to establish his Consumption Defence to rebut the statutory presumption. The HC disbelieved the accused’s evidence as to his allegedly high rate of drug consumption. The HC also considered that the dated nature of Mr Teh’s statements cast significant doubt over the accused’s Consumption Defence. As such, the HC found for the Prosecution.

III. Issues on Appeal

On appeal, the accused challenged both his conviction and sentence. He argued that he possessed Exhibit D1A2 for his personal consumption only. Specifically, he claimed that:

(a) the HC erred by finding that the accused failed to rebut the presumption under section 17(c) of the MDA through the Consumption Defence; and 
(b) the HC erred by resolving a “reasoned doubt”⁽¹⁾ in favour of the Prosecution.

The CA also considered the seemingly contradictory nature of the HC’s decision. Under its primary case, the Prosecution failed to prove the Purpose Element beyond a reasonable doubt. Yet, in its alternative case, the Prosecution was allowed to apply the statutory presumption to show that the accused was guilty of drug trafficking beyond a reasonable doubt. This gave rise to an apparent dilemma where an accused person’s guilt may depend on the way the Prosecution opts to mount its case, rather than on whether the elements of the charge have been satisfied.  

Taking these considerations together in mind, the CA determined that the sole issue was whether the HC erred in concluding that the accused had not established his Consumption Defence. In so doing, the CA would also assess whether the HC subsequently erred in sentencing the accused to the mandatory death penalty. The CA addressed its decision in three parts:

(a) Whether the HC erred in finding that the accused failed to rebut the presumption under section 17(c) of the MDA;
(b) Whether the HC erred by resolving a reasoned doubt in favour of the Prosecution; and
(c) Establishing the proper approach to interpret statements made by accused persons.

A. Whether the HC erred in finding that the accused failed to rebut the accused’s Consumption Defence

The CA noted that the crux of the case (and this appeal) was whether the accused made out his Consumption Defence, on the balance of probabilities.⁽²⁾ At the very least, the accused had to establish his level of consumption at the material time. This was regardless of whether the Prosecution proceeded on its primary or alternative case, ie, whether the case was viewed from the perspective of rebutting the inference that he had the drugs in his possession for the purposes of trafficking by reason of its very large quantity, or by reason of the statutory presumption under section 17(c) of the MDA. If the accused was able to prove the Consumption Defence, then he must be acquitted.⁽³⁾  The CA then agreed with the HC that the accused had indeed failed to establish the Consumption Defence. 

Following Muhammad bin Abdullah v Public Prosecutor [2017] SGCA 4, to determine whether an accused person has successfully rebutted the statutory presumption under section 17(c) of the MDA, the court should examine the totality of the circumstances. Relevant circumstances include the accused’s rate of consumption; frequency with which he obtained his supply; ability to afford the drugs at his claimed rate of consumption; and whether he admitted in any of his statements that the whole quantity of the drugs was for sale.

Here, the CA noted that the key pillar and essential foundation of any consumption defence is the accused’s rate of consumption, since the other factors logically flow from it. To illustrate, if an accused had an especially high rate of consumption, he would most likely obtain his supply more frequently; likewise, he would likely have the financial ability to support such a high rate of consumption. Accordingly, CA focused its attention on evaluating the accused’s claimed rate of consumption, and his ability to afford the Drugs at the claimed rate. 

(a) Accused’s claimed rate of consumption 

The burden rests on the accused to prove his claimed rate of consumption by furnishing the court with credible evidence. Here, the CA found that the accused’s claimed rate of consumption was neither based on credible evidence nor “believable”. 

Crucially, from his initial statements in December 2015 to his most recent statement in November 2020, the accused’s claimed rate of consumption had “implausibly and dramatically increased, almost with each telling”. By the end of the trial, the accused’s claimed consumption rate was nearing five to six times his original claim, growing from 4g to more than 20g of heroin per day. By failing to account for his “rapidly inflating” alleged rate of consumption between his initial statements and at his trial, the accused inevitably cast “considerable doubt” over the credibility of his evidence. Although the CA affirmed that the accused need not “recall his consumption rates with scientific precision”, what was concerning was that his account of his consumption had “drastically shifted”– increasing fivefold.

In turn, the accused’s initial rate of consumption at 4g per day could not possibly have supported his Consumption Defence. Based on the 448.7g contained in Exhibit D1A2, if Exhibit D1A2 was only used for the accused’s personal consumption, he would have had more than 112 days’ worth of supply in his possession. Yet, the accused provided no explanation for why he possessed such a high amount of drugs.

As such, the CA held that it was “unbelievable” that one would own such a large supply of drugs solely for his personal consumption. Additionally, such a situation was “untenable” since it was clear on the evidence and undisputed that the accused was facing considerable financial difficulties. Thus, the accused could not have had the financial capacity to afford the luxury of stockpiling such a high quantity of drugs.

The CA also addressed the accused’s claim that Mr Teh’s evidence should have been accorded more weight. The CA held that Mr Teh’s evidence regarding the accused’s alleged consumption rates in 1980 and 2003 provided “little corroborative value” and “could not be relied upon” since they lacked contemporaneity with the accused’s relevant rate of consumption in 2015. Contemporaneity of evidence was particularly important here as the Consumption Defence hinged squarely upon determining the accused’s rate of consumption in December 2015. As such, evidence relating to the accused’s drug habits 12 years earlier could not be used to support his Consumption Defence. This is especially since the accused’s own initial statement, recorded almost immediately after his arrest, differed from Mr Teh’s evidence.

(b) Accused’s ability to afford drugs at the claimed rate of consumption

The CA also addressed whether the accused had the financial means necessary to support his claimed rate of consumption, answering this in the negative.

The CA held that the accused lacked the financial means to support his alleged consumption rate. Based on his most likely consumption rate of about 4g a day, Exhibit D1A2 would have been sufficient to support the accused for an extensive 112 days. However, at the time, the accused testified to being “jobless” and having “no money” or “any savings” as everything he “earned from drugs were just enough for [his] rental and daily needs”. In the eyes of the CA, it was thus “inconceivable” that someone as financially desperate as the accused could have possibly been able to stockpile 112 days’ worth of drugs.

Though the accused had submitted that Exhibit D1A2 was his compensation for packaging drugs, and all cash he received was payment for other work done, the CA held that on the totality of evidence, Exhibit D1A2 could not have been renumeration in kind for the accused’s drug work. Such a renumeration system would mean that the accused was significantly overcompensated for his work:

(a) By his own calculations, the accused should have been renumerated with 700g of heroin worth between $6,125 and $8,730. However, based on the accused’s own statement, he packed a total of 210 sachets and was paid $10 for packing each sachet. Following this logic, the accused should have received $2,100 worth of heroin, if he was compensated in kind. Instead, giving him nearly 700g of heroin would mean he was overcompensated at least threefold.

(b) The accused’s alternative claim that Exhibit D1A2 was renumeration for packing a smaller package into 60 sachets was even less convincing. Since the smaller package contained considerably less drugs than Exhibit D1A2, it was inconceivable that the accused received a larger quantity of drugs as compensation for repacking a smaller quantity of drugs. Moreover, his calculation would have entitled him to $600 whereas Exhibit D1A2 contained about $1,000 worth of drugs – meaning that the accused would have received almost twice what he would have been owed.

Thus, the CA rejected the accused’s first ground of appeal. The statutory presumption under section 17(c) of the MDA was not rebutted and the Prosecution had proved the Purpose Element beyond a reasonable doubt.

B. Whether the HC erred by resolving a reasoned doubt in favour of the Prosecution

At trial, the accused’s Consumption Defence turned solely on how the courts chose to interpret the accused’s statements made following his arrest. Both sides presented competing interpretations of statements made while the accused was potentially under the influence of drugs. The accused argued that his earlier statements pointed to the drugs in Exhibit D1A2 being for his own personal consumption. Conversely, the Prosecution submitted that the accused had “essentially admitted” that the drugs in Exhibit D1A2 were for repacking and delivery.

On appeal, the CA rejected both submissions. Instead, the CA held that the HC erred in finding that the ambiguous disputed statements could not sustain the weight of the accused’s conviction, and that this ambiguity gave rise to a “reasonable doubt as to the accused’s guilt”. Had there truly been a reasonable doubt as to the accused’s guilt, then the accused would have successfully established his defence and that would be the end of the matter. It would have thus been incongruous to hold that the Prosecution had nevertheless proven its case beyond reasonable doubt, by relying upon the statutory presumption under s 17(c) of the MDA (under the alternative case).

This gave rise to the apparent tension between two differing conclusions. On the one hand, the HC held that there was a reasonable doubt as to the accused’s guilt. On the other hand, the HC also held that the statutory presumption under section 17(c) of the MDA was not rebutted, and the accused was therefore found guilty.

In resolving this issue, the CA held that the HC erred in finding that a reasonable doubt as to the accused’s guilt had arisen. The CA found that the HC had mistakenly focused its analysis solely on the accused’s statements, to the exclusion of all other evidence. Rather, the true questionto be determined rested on whether the accused made out his Consumption Defence on the totality of evidence. Had the HC directed its attention to assessing the totality of evidence rather than just the accused’s contested statements, the HC would have reached the conclusion that the Purpose Element was established beyond a reasonable doubt, regardless of whether the Prosecution sought to establish its case by relying on the statutory presumption or by relying on the evidence before the court. In other words, a consideration of the totality of the evidence should not lead to a conclusion contrary to the conclusion that would otherwise be reached if the Prosecution were to rely on the statutory presumption.

Nevertheless, the CA recognised that the HC was limited to deciding the case based on how the parties had argued their positions. Indeed, it noted that the Prosecution needlessly complicated the case at trial by advancing a case of direct proof of the Purpose Element based on the accused’s statements alone. The CA emphasised that the Prosecution should seriously consider whether it even needs to run an alternative case when it is able to rely on the presumption. In most cases, whatever evidence the Prosecution thinks it has can be mounted to counter the accused person’s efforts to rebut the presumption. In the present case, the Prosecution was entitled to rely on the statutory presumption under section 17(c) of the MDA and it was unclear why the Prosecution ran its primary case as it did. This was especially as, given the quantity of drugs involved, it would seem to have been an obvious ground for asking the court to infer as a fact that such a large quantity was held by the accused for the purpose of trafficking. Had this been done, the inquiry would have shifted the focus back to the Consumption Defence.

C. Establishing the proper approach to interpreting statements

The CA first noted that a question as to the interpretation of an accused person’s statement usually cannot be answered by reference to the standard of proof. The standard of proof concerns the legal threshold at which the Prosecution and Defence may be said to have established their respective cases. In this context, the court will consider the statements, made by an accused person or by other witnesses, as part of the case mounted by either party. Where the entirety of the case rests on an accused person’s statements, it may be necessary to consider exactly what was said and meant in a statement and this may then have to be determined by applying the relevant standard of proof. However, such cases would likely be rare. In the vast majority of cases, an accused person’s statements will form just one part of the whole evidence before the court. That was precisely the case in the present appeal. When that is so, the court should first decide on the admissibility of an accused person’s statements before turning to consider its interpretation and weight together with all the other evidence before it to determine whether the parties have successfully made out their cases on the applicable standards of proof.

The CA then laid down the proper approach to interpreting statements made by an accused person in two steps. The first step is to determine the precise content of the accused person’s statement (whether oral or written). In the appropriate case, there may be a need to consider whether a written statement, in all of the circumstances including a potential language barrier, properly records what the accused person had said at the material time.

The second step is to determine the intended meaning of the statement. Here, the court is concerned with the subjective intention of the statement-maker at the time the statement was made. The inquiry is not directed at whether the statement maker currently intends to stand by what he said earlier, but at what the court thinks he meant by what he said at the time he made the statement. Although this is an inquiry into the accused person’s subjective intention in making the statement, the exercise of interpretation will necessarily be undertaken from an objective perspective but taking into account the accused person’s circumstances, and the words used to convey his intended meaning.

If there is any reasonable doubt as to the answer in either step, the court should not rely on the statement when assessing whether the parries successfully proved their case on the applicable standards of proof. If there is a reasonable doubt as to either what the accused person actually stated or what the accused person intended to mean when he made such statement, the court should not place any weight on that statement, simply because it cannot be satisfied as to what was in fact said or meant.

In the present case, the CA held that that no reasonable doubt arose at the first step. However, there was some ambiguity and hence a reasonable doubt at the second step since the accused’s statement did not clearly identify which packets of drugs were meant for trafficking. Nevertheless, this did not mean that the HC (as the accused argued) should have given the benefit of the doubt to the accused by interpreting the statements in his favour. Rather, the HC should have simply accorded no weight to the disputed statements.

IV. Conclusion

The CA concluded that, on the totality of evidence, the accused had failed to establish his Consumption Defence. Accordingly, the CA dismissed the accused’s appeal and upheld his conviction and the sentence imposed upon him.

V. Lessons Learnt

This case presents a timely reminder that the Prosecution should be judicious in exercising its powers of discretion when deciding to mount multiple cases against a defendant. Particularly, where statutory presumptions exist to facilitate the Prosecution’s case, the Prosecution should do its best to avoid “overcomplicating” its cases before the courts, to ensure that similar dilemmas do not re-surface in the future.

Written by: Erica Wee Heoh Ern, 3^rd-Year LLB student, Singapore Management University Yong Pung How School of Law. 

Edited by: Ong Ee Ing (Senior Lecturer), Singapore Management University Yong Pung How School of Law.

Footnote

(1)  Under Public Prosecutor v GCK [2020] 1 SLR 486, a reasoned doubt refers to a reasonable doubt, which exists where there is insufficient evidence to support an accused’s conviction. 

(2)  Generally, the balance of probabilities is a standard of proof used to determine the likelihood of a disputed fact being true. Here, the court’s determination will turn on which version of events presented by either side was more likely or probable.

(3)  At trial, much of the dispute between the parties rested on their competing interpretations of the accused’s interview statements. While the accused’s interpretation of his statements corroborated his Consumption Defence, the Prosecution submitted that the statements were “essentially admi[ssions] that Exhibit D1A2 was meant for repacking and delivery”. However, the CA held that the entire debate regarding the meaning of the statements was immaterial, because the analysis turned solely on whether the accused was able to establish the Consumption Defence, regardless of whether the Prosecution chose to rely on the statutory presumption or not.