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Revisiting the admissibility of statements, status of bailees in drug trafficking, and the Prosecution’s additional disclosure obligations:

Roshdi bin Abdullah Altway v Public Prosecutor [2022] 1 SLR 535

I. Executive Summary

What happens if the recording of an accused’s statements to the police are allegedly accompanied by a threat, inducement or promise with reference to the charge against the accused? Can someone who “safekeeps” controlled drugs for another be said to be in possession of such drugs for the purpose of trafficking? What is the scope of the Prosecution’s obligations to disclose evidence to the Defence? These three questions were addressed by the Court of Appeal (“CA”) in its decision of Roshdi bin Abdullah Altway v Public Prosecutor [2022] 1 SLR 535 (“Roshdi”).

On the first question, the case concerned alleged representations made by the two Staff Sergeants who recorded the statements of the accused. The CA distilled the inquiry into whether the alleged representations were in fact made. Further, even assuming they were, the CA considered if the alleged representations were objectively a threat, inducement or promise (which would make the statements involuntary statements and thus inadmissible as evidence), and whether they subjectively operated in the mind of the accused when giving his statement. The CA answered all these questions in the negative. It found that the statements to the police made by the accused were not made involuntarily, and hence were admissible as evidence.

On the second question, the CA expounded on the recent judgment of Ramesh a/l Perumal v Public Prosecutor and another appeal [2019] 1 SLR 1003 (“Ramesh”), where it was held that a person who merely holds drugs as a “bailee” intending to return the drugs to the person who initially gave them to him “cannot, without more, be liable for trafficking because the act of returning the drugs is not part of the process of supply or distribution of drugs”. The CA reiterated the legislative policy underlying the harsh penalties for trafficking offences in the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (the “MDA”), which was to target movement of drugs along the supply chain towards end users. The CA clarified here that the inquiry as to whether a “bailee” can be found to have the drugs in his possession for the purposes of trafficking turns on whether the “bailee” knew or intended that the “bailment” was in some way part of the process of supply or distribution of drugs. The CA found that the accused here did in fact know that by allegedly safekeeping the drugs in question, he was helping to facilitating the sale and distribution of the drugs. As such, the CA held that the accused had the drugs in his possession for the purposes of trafficking.

On the final question, the CA explained the Prosecution’s duty to the court. In criminal proceedings, there are three main parties: the Prosecution; the Defence; and the Judge. It is typically understood that the Prosecution is pitted against the Defence, while the Judge evaluates the evidence and facts of the case to determine if a particular accused should be convicted and the punishment thereof. However, while this situation appears adversarial at first, the Prosecution also owes a duty to the court and the wider public to conduct matters with the aim of ensuring that the guilty, and only the guilty, are convicted. Against this backdrop, the Prosecution thus has a duty to disclose any material that may be credible or relevant to the guilt or innocence of an accused. The CA addressed several issues in relation to the Prosecution’s additional disclosure obligations, surrounding: the identification of “material witnesses”, potential consequences from a breach of additional disclosure obligations, and whether the Prosecution has a positive duty to conduct further investigations once a witness has been identified as “material”.

II. Material facts

On 14 September 2016, officers from the Central Narcotics Bureau (“CNB”) arrested the accused, one Roshdi bin Abdullah Altway (“Roshdi”), at Compassvale Lane. He was later taken to a nearby apartment where he identified the bedroom he occupied, which was found to have contained the Drugs. In addition, drug paraphernalia such as spoons, pieces of paper, empty packets, empty straws and digital weighing scales were recovered from Roshdi’s bedroom. He was subsequently charged with having in his possession for the purposes of trafficking 267 packets and 250 straws containing not less than 78.77g of diamorphine (i.e. heroin) (the “Drugs”), an offence under section 5(1)(a) read with section 5(2) of the MDA. He claimed trial.

In the course of police investigations, between 14 September 2016 and 27 September 2016, nine statements were recorded from Roshdi:

  • On 14 September 2016, the first three statements were recorded by Staff Sergeant Fardlie from Roshdi (the “Contemporaneous Statements”). In these statements, Roshdi:
    • identified the Drugs as heroin and admitted that they were for sale;
    • set out the prices at which the Drugs would be sold and the quantities thereof; and
    • stated that the Drugs “[a]ll belong[ed] to [him]”. He later added that he worked for a person named “Aru” and stated that “I only pack and keep the thing. If someone wants I will send.”
  • On 15 September 2016, a cautioned statement was recorded by Assistant Superintendent Prashant Sukumaran from Roshdi. Roshdi claimed that he was “just a worker” and that “[t]he one who owns the thing is another person”.
  • Between 21 September 2016 and 27 September 2016, five long statements were recorded by Staff Sergeant Ibrahim from Roshdi (the “Long Statements”). In these statements, Roshdi:
    • admitted to receiving, storing, repacking and distributing drugs to customers on multiple occasions from as early as July 2016;
    • said that he had been working for “Aru” and that he would sometimes also collect money from “Aru’s” customers for the Drugs; and
    • explained that the Drugs were for sale and explained how he would weigh and pack them for distribution.

Roshdi disputed the admissibility of the Contemporaneous Statements and Long Statements (collectively, the “Contested Statements”). Further, in relation to the offence he was charged under, he denied that he had the Drugs in his possession for the purposes of trafficking.(1) To this end, Roshdi’s defence was that he was just safekeeping the Drugs for a person known as “Aru”, to whom he had all along intended to return the Drugs (the “safekeeping defence”). Police investigations ascertained “Aru” to be one Chandran Prasanna Anu (“Chandran”). Roshdi accordingly submitted that the charge against him should be amended to one of simple possession under section 8(a) of the MDA,(2) which attracted a lower sentence.

The High Court (“HC”) held that the Contested Statements were admissible as evidence, because no threat, inducement or promise had been made to Roshdi when he made these statements. The HC also rejected Roshdi’s safekeeping defence and convicted Roshdi of the charge. The HC found that the Prosecution had successfully proven that Roshdi was in possession of the Drugs for the purpose of trafficking beyond a reasonable doubt, and in any event, Roshdi had failed to rebut the presumption of trafficking under section 17(c) of the MDA.(3) As Roshdi had not been issued a certificate of substantive assistance,(4)the HC imposed the mandatory death penalty on Roshdi.

III. Issues on Appeal

Roshdi raised two main arguments on appeal. First, he argued that the HC incorrectly admitted the Contested Statements because Roshdi did not make them voluntarily. Secondly, Roshdi’s safekeeping defence ought not to have been disbelieved (and hence the requirement of possession would not have been established). The CA also explored whether, even if Roshdi’s safekeeping defence was to be believed, the requirement of possession for the purpose of trafficking would nevertheless be made out. As for the latter argument, Roshdi further contended that the Prosecution’s disclosure of Chandran’s statements to the Defence was late and thus breached the Prosecution’s additional disclosure obligations.

The issues on appeal were distilled to the following: (A) whether the Contested Statements were admissible in evidence; and (B) whether Roshdi was correctly convicted of the charge, based on whether the requirement of possession for the purpose of trafficking was established.

A. Whether the Contested Statements were admissible.

The starting point under section 258(1) of the Criminal Procedural Code (Cap 68, 2012 Rev Ed) (the “CPC”) is that any statement furnished by an accused person in the course of investigations is admissible in evidence at their trial. However, this is subject to the requirement of “voluntariness” in section 258(3) of the CPC, as well as the court’s residual discretion to exclude evidence where its prejudicial effect outweighs its probative value.

The test of voluntariness has both an objective and subjective requirement:

  • Objective: whether there was a relevant threat, inducement or promise.
  • Subjective: if there was, what is the effect of that threat, inducement or promise on the particular accused person at the material time.

Further, where an issue is raised as to the voluntariness of a statement, the burden is on the Prosecution to prove beyond a reasonable doubt that it was made voluntarily.

Roshdi raised two reasons for arguing that the Contested Statements were not made voluntarily. First, prior to recording the first contemporaneous statement, Staff Sergeant Fardlie allegedly said to Roshdi in Malay, “Now Singapore has a new law. If this thing is not yours, you will not be hanged. You don’t be afraid.” Secondly, prior to recording the first long statement, Staff Sergeant Ibrahim allegedly told Roshdi in Malay, “Those things are not yours, so you don’t have to be afraid”, which according to Roshdi “made [him] calm, so [he could] say whatever [he] want[ed]” (collectively, the “Alleged Representations”). Both Staff Sergeant Fardlie and Staff Sergeant Ibrahim denied making the Alleged Representations. The HC accepted their testimony in preference to Roshdi’s evidence. However, the HC found that even if the Alleged Representations had been made, the objective and subjective requirements in the test of voluntariness would not have been satisfied.

On appeal, Roshdi raised three arguments. First, that there was sufficient evidence to show that the Alleged Representations were actually made to Roshdi. Secondly, the objective requirement in the test of voluntariness was satisfied because the Alleged Representations were essentially offers to “procure a non-capital charge in return for a good statement”. Thirdly, the subjective requirement of the test of voluntariness was satisfied because Roshdi had subjectively relied on the Alleged Representations as inducements in furnishing the Contested Statements. The CA rejected all three arguments and agreed with the HC that the Contested Statements were admissible.

On the first argument, the CA agreed with the HC that the Alleged Representations had not been made (and hence the Contested Statements were not involuntary and thus were admissible). First, Staff Sergeant Fardlie’s alleged statement was an incorrect statement of law. Singapore’s anti-drug laws are not generally concerned with questions of ownership, but rather, what a person does with the drugs. As CNB officers, Staff Sergeant Fardlie and Staff Sergeant Ibrahim would have known that the ownership of the drugs is not determinative of an offender’s liability for capital punishment. Secondly, Roshdi did not enquire into the “new law” that would supposedly help him avoid the capital punishment. Third, the answers that were in fact given by Roshdi in the first contemporaneous statement are inconsistent with Roshdi’s account. Roshdi alleges that Staff Sergeant Fardlie had said that “[i]f this thing is not yours, you will not be hanged”. Yet, when asked by Staff Sergeant Fardlie who the Drugs belonged to, Roshdi answered “All belong to me.”

On the second argument, the CA found that the Alleged Representations did not objectively constitute a threat, inducement or promise. This was because it was unclear what Roshdi was supposedly induced to say or do. Moreover, the Alleged Representations were too vague and ambiguous to constitute a promise or inducement of any sort and there was no threat to speak of. On the third argument, the CA agreed with the HC that the Alleged Representations were not subjectively a consideration in Roshdi’s decision when he gave the Contested Statements. This was because Roshdi did not seek clarification about the vague assurances allegedly given to him. Further, Roshdi’s claim that he relied on these assurances is irreconcilable with the fact that Roshdi never denied in the first contemporaneous statement that the Drugs belonged to him.

B. Whether Roshdi was correctly convicted of the charge.

As stated earlier, given that Roshdi admitted to having both possession of the Drugs and knowledge of their nature, the only question here was whether Roshdi had the Drugs in his possession for the purpose of trafficking. This required examination of the following:

  1. Whether the HC erred in disbelieving Roshdi’s safekeeping defence (i.e. that he did not have the Drugs in his possession for the purpose of trafficking).
  2. If Roshdi’s safekeeping defence was believed, whether the requirement of possession for the purpose of trafficking would nevertheless be made out.
  3. Whether the Prosecution was in breach of its additional disclosure obligations, and if so, what effect this would have on Roshdi’s conviction.
  1. Whether the HC erred in disbelieving Roshdi’s safekeeping defence.

The CA held that the HC did not err in refusing to accept Roshdi’s safekeeping defence. First, Roshdi had given a clear account in his statements as to the role he played in receiving, packing, selling and distributing drugs. This pointed strongly to the fact that Roshdi had the Drugs in his possession for the purpose of trafficking. It was only at trial that Roshdi claimed for the first time that his role was limited to safekeeping and that he had intended to return the Drugs to Chandran. If indeed Roshdi’s alleged safekeeping defence was genuine, it was incredible that Roshdi would have omitted to mention such a significant fact in his statements given all the other details as to the trafficking activities that he did admit to.

Secondly, Chandran’s statements to the CNB provided little support for Roshdi’s safekeeping defence. The thrust of Chandran’s account was that his interactions with Roshdi were limited to him seeking Roshdi’s help to find a job in Singapore. The CA thus found that nothing in Chandran’s statements cohered with Roshdi’s claim that Chandran was involved in drug trafficking and had delivered the Drugs to Roshdi for safekeeping.

 2. Whether the requirement of possession for the purpose of trafficking would be made out.

The CA held that even if Roshdi had a safekeeping arrangement with Chandran, the element of possession for the purpose of trafficking would still be established. Relying on Ramesh, Roshdi argued that since he was merely safekeeping the Drugs for Chandran and had intended all along to return them to Chandran, he did not have the Drugs in his possession for the purpose of trafficking. However, the CA stated that Ramesh did not establish the general proposition that any “bailee” who receives drugs intending to return them to the “bailor” will never be liable for trafficking, or possession for the purpose of trafficking. Much would depend on the circumstances.

The legislative policy behind the harsh penalties for trafficking offences under the MDA was to target the movement of drugs along supply chains towards end-users. The key inquiry was whether the “bailee” in question knew or intended that the “bailment” was in some way part of the process of supply or distribution of the drugs. A “bailee” who engages in a “bailment” arrangement knowing or intending that the “bailment” would be part of this process of supply and distribution falls within the class of persons targeted by that legislative policy. Conversely, in the absence of such knowledge or intention, the “bailee” cannot be said to be “trafficking” in a purposive sense.

The CA laid out three non-exhaustive factors which could indicate that the “bailee” knew or intended that the “bailment” was part of the process of distribution:

  • The “bailment” was part of a systematic arrangement for safekeeping drugs, rather than an isolated, spontaneous or one-off occurrence.
  • The “bailee” was to receive some kind of remuneration or reward for safekeeping the drugs.
  • The “bailee” knew that the “bailment” was meant to assist in evading detection by the authorities.

Roshdi’s testimony was that he knew the nature of the Drugs that he was allegedly safekeeping for Chandran. This was part of an alleged arrangement in which Roshdi would keep drugs for periods of time for Chandran in exchange for money. Roshdi also testified that when Chandran’s customers wanted the drugs, he would deliver the drugs that he was allegedly safekeeping either to Chandran or Chandran’s couriers. In the CA’s opinion, this was exactly what trafficking entailed. Thus, the CA found that Roshdi knew that by supposedly safekeeping the Drugs for Chandaran, he was facilitating the process of their intended sale and distribution. In any event, Roshdi also had no grounds to rebut the presumption of trafficking under section 17(c) of the MDA. Accordingly, the third requirement of possession for the purpose of trafficking was made out.

3. Whether the Prosecution was in breach of its additional disclosure obligation; if so, what effect this would have on Roshdi’s conviction.

Finally, the CA addressed the issue of the Prosecution’s additional disclosure obligations in the context of the Prosecution’s disclosure of Chandran’s statements. While there was no need for the court to address this issue because Roshdi’s defence was hopeless in the present circumstances, the CA nonetheless decided to provide some observations.

The Prosecution had a duty to disclose to the Defence statements given by a “material witness”, where the said witness is not a prosecution witness. The CA adopted the definition of a “material witness” provided in Muhammad Nabill bin Mohd Fuad v Public Prosecutor [2020] 1 SLR 984 (“Nabill”), i.e. a person who could be expected to confirm or contradict an accused person’s defence in material respects (“Current Definition”). This duty on the Prosecution to disclose statements given by a “material witness” stemmed from the fundamental premise that the Prosecution owes a duty to the court and to the wider public to ensure that only the guilty are convicted. All relevant material must be placed before the court to assist it in its determination of the truth. Thus, the Prosecution must always act in the public interest and the Prosecution is not strictly adversarial in criminal proceedings. In view of this fundamental duty of the Prosecution, the CA considered the following four issues concerning material witnesses.

(a) Prosecution’s Proposed Redefinition of a “material witness” as meaning only a witness whom the accused identifies as the “true culprit” responsible for the offence.

The Prosecution argued that the Current Definition of a “material witness” in Nabill should be narrowed such that it covers only a witness whom the accused identifies as the “true culprit” responsible for the offence (instead of the accused). The CA disagreed, for two reasons.

First, the Prosecution might, despite acting in good faith, inadvertently fail to disclose statements which might support the Defence. It would be intolerable for the court to be deprived of relevant evidence that might potentially exculpate the accused person, simply because the Prosecution erred in assessing the significance of certain evidence. Secondly, the accused person ought to have access to all relevant information in order to make an informed choice in deciding whether or not to call a “material witness”. The Defence would be at a distinct disadvantage if it is not aware of what the witness had previously said in the course of police investigations, and this would not reflect a satisfactory balance between ensuring fairness to the accused person and preserving the adversarial nature of the trial process.

Thus, the CA found that where a witness can confirm or deny material aspects of an accused person’s defence, the statements of such a witness would potentially be material to the case and to the court’s determination of the truth. It follows that a “material witness” is not just who the “true culprit” is, but any witness who can be expected to materially confirm or contradict the accused person’s defence.

(b) The process of identifying “material witnesses”.

The Prosecution contended that under current law, the duty to identify “material witnesses” is placed solely on the Prosecution, even though who qualifies as a “material witness” is entirely dependent on the defence that the accused person intends to run at trial. As such, it faced considerable difficulties in determining whether a witness is “material”. Thus, the Prosecution argued that the identification of “material witnesses” should be the responsibility of the Defence instead.

The CA disagreed. This was because the Prosecution’s proposal would have transformed what was meant to be a disclosure obligation borne by the Prosecution into a duty falling upon the Defence to outline its case at trial. This was out of touch with the purposes of the additional disclosure obligations.

With regard to the process of identifying “material witnesses”, the CA held that the “materiality” of a witness is assessed only by reference to the defences that an accused person may have disclosed at each stage of a criminal proceeding. It was thus inaccurate to suggest that at all stages of a criminal proceeding, the identification of a “material witness” depends on the defence that the accused person may have run at trial.

As such, the CA laid out the general process of identifying “material witnesses”:

  • At the pre-trial stage, it is for the Prosecution to disclose the statements of witnesses whom it thinks are “material” based on the accused’s statements. If the Prosecution has any doubt as to whether a witness is “material”, it should generally err on the side of disclosure because of its duty to actively ensure that all evidence is placed before the court.
  • Once trial begins and in any subsequent appeal, it is incumbent upon both the Prosecution and the Defence to identify any new “material witnesses” at the earliest opportunity. The “materiality” of such witnesses will be ascertained by reference to defences which the accused persons may have raised in his statements, as well as any new defences which he runs at trial.
  • In the event of any dispute as to the “materiality” of a witness, either party can thereby apply to the court for a ruling.

(c) Where a witness is identified as a “material witness”, but the Prosecution has not recorded any statements from the witness relating to the person’s defence, whether the Prosecution must record further statements from the witness.

The Prosecution raised some concerns that Nabill might also be interpreted as suggesting that where a new “material witness” is identified but the Prosecution does not have any statements from that witness relating to the accused person’s defence, the Prosecution has a legal duty to conduct further investigations and to record further statements from that witness. The CA disagreed and clarified that where a new “material witness” is identified, the Prosecution does not have a legal duty to conduct further investigations and to record statements from that witness. The CA did not see how its observations in Nabill could be interpreted as imposing a legal duty on the Prosecution and law enforcement agencies to conduct further investigations. Further, the CA stated that it would be inappropriate for the court to impose a legal duty on the Prosecution to conduct such further investigations. This is because of the doctrine of the separation of powers, meaning that the courts (who represent the Judiciary) cannot interfere with the discretion of the Prosecution (who represent the Executive). Instead, if the Prosecution chooses not to pursue any further investigations, the Prosecution runs the risk that it will be found to have failed to discharge its evidential burden with regard to the facts which have come into issue to prove the charge against an accused.

(d) Consequences of a breach of the Prosecution’s additional disclosure obligations.

The CA noted that the consequences flowing from a breach of the Prosecution’s additional disclosure obligations would depend on all the facts at hand. There was no fixed answer to the question.

IV. Lessons Learnt 

There are three lessons to be learnt from this case. First, regarding the admissibility of statements made under an alleged threat, inducement or promise, the test of voluntariness remains a sound principle of law. It adequately balances the ideal that no statement should ever be solicited through threats, inducements or promises towards an accused, while also providing a safeguard against evidence being rendered inadmissible from convenient afterthoughts. Secondly, it clarifies the Ramesh principle with regard to an alleged “bailment” of drugs. This is also in line with the legislative intent of the MDA which is to target those who are involved in the supply or distribution of drugs in society. Thirdly, it stresses the Prosecution’s duty to the court and to the wider public in ensuring that the guilty, and only the guilty, are convicted. The Prosecution’s duty is premised on the notion of public interest and their duty to assist the court in ensuring that the right conviction and the right sentence is levied on an accused. As such, the Prosecution also bears additional disclosure obligations to the Defence.

 

Written by: Natalia Mai Do Ngoc, 3rd year LLB student, Singapore Management University Yong Pung How School of Law.

Edited by: Faculty, Singapore Management University Yong Pung How School of Law.

 

Footnote

(1) For Roshdi to be found liable for the charged offence, three requirements had to be proven: possession of the Drugs, knowledge of the nature of the Drugs, and that such possession was for the purpose of trafficking. Roshdi admitted to having both possession of the Drugs and knowledge of their nature. As such, he challenged only the third requirement.

(2) Section 8(a) of the MDA makes it an offence for a person to have in his or her possession a controlled drug.

(3) Any person who is proved to have more than 2 grammes of diamorphine in their possession will be presumed to have that drug in possession for the purpose of trafficking unless it is proved otherwise under section 17(c) of the MDA. This is discussed further below.

(4) Where a person commits or attempts to commit an offence under sections 5(1) or 7 of the MDA, being an offence punishable with death, the court may, if the Public Prosecutor certifies that the person has substantively assisted the CNB in disrupting drug trafficking activities within or outside Singapore, sentence the person to imprisonment for life instead.

 

 


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