Prosecutors handling future drug trafficking trials have to specify which presumption under the Misuse of Drugs Act (MDA) they are invoking to prove their case, the Court of Appeal has ruled.
This would help the courts assess whether the prosecution's case is made out and, more fundamentally, gives the accused a fair chance of knowing what evidence he has to put forward to meet the prosecution's case.
The top court made the ruling in written grounds yesterday for its decision to uphold the death penalty imposed on two men for trafficking heroin.
On May 27, 2015, Rahmat Karimon delivered a green bag to Zainal Hamad, who handed him $8,000.
Zainal moved the bag to a warehouse, hiding it behind some pallets. He was arrested at the warehouse and the bag was found to contain not less than 53.64g of heroin.
Rahmat was arrested at the Woodlands Checkpoint.
Zainal's case was that he had expected Rahmat to deliver 20 cartons of cigarettes and thus paid the money for those cigarettes. However, he knew the bag could not physically contain the cigarettes. He put it behind the pallets so it could be returned to Rahmat later.
Rahmat's case was that he believed he was transporting medicine.
Both men were convicted by the High Court after a joint trial and given the mandatory death sentence.
Their appeals were dismissed.
In a written judgment, penned by Chief Justice Sundaresh Menon, the apex court took the opportunity to provide some guidance on how the prosecution and the defence should approach such cases in which different presumptions under the MDA may potentially apply.
For someone to be convicted of trafficking, it has to be proven that he had possession, knew the nature of the drugs, and possessed the drugs for the purpose of trafficking.
Under Section 17, a person is presumed to be trafficking if it is proven that he had specified quantities of drugs in his possession, such as more than 2g of heroin.
Under Section 18, a person is presumed to have a controlled drug in his possession if he was in possession of anything containing the drug.
Also under Section 18, anyone who is proven or presumed to have had a controlled drug in his possession is presumed to have known the nature of that drug.
The court said the presumption of trafficking under Section 17 could not run together with either the presumption of possession or the presumption of knowledge in Section 18. The presumption of trafficking can only be invoked if both physical possession and knowledge of what was being possessed had been proven, said the court.
In future cases such as this, where presumptions under both sections are potentially applicable, it is "incumbent" on the prosecution to state clearly which it is relying on in advancing its case.
It would not be sufficient for the prosecution to simply state, for instance, that the possession of the drugs, knowledge of the nature of the drugs and possession for the purpose of trafficking have either been proven or presumed without making clear the precise nature of the primary case that is being put against the accused.
"In the present case, we did not receive such assistance from the prosecution," said the court.
It made no difference to the outcome of the current case.
However, the court said it could potentially be prejudicial to the accused given a different set of facts.