Duo escapes gallows after split apex court decision on chain of custody of seized heroin

SINGAPORE - Two men, originally sentenced to hang for heroin trafficking, were cleared on Wednesday (Dec 5) after a split decision by the Court of Appeal, with two of the three judges pointing to inconsistencies in how the seized drugs were handled after the arrest.

In acquitting Mohamed Affandi Rosli and Mohamad Fadzli Ahmad of trafficking 132.82g of heroin, Chief Justice Sundaresh Menon and Senior Judge Chao Hick Tin said the prosecution had failed to establish the chain of custody of the exhibits.

The majority decision, written by CJ Menon, noted that the prosecution bears the burden of proving beyond reasonable doubt that the drug exhibits analysed by the Health Sciences Authority were the very ones that were seized by Central Narcotics Bureau (CNB) officers.

In the current case, two CNB officers each gave a differing account of where the seized drugs were placed and who was holding onto them before the team returned to headquarters.

Dissenting with the majority decision, Judge of Appeal Tay Yong Kwang said there was no break in the chain of custody.

Affandi and Fadzli were arrested separately on July 12, 2013, in an operation conducted by the CNB. Fadzli was arrested at about 4pm. Methamphetamine was found in his car and nimetazepam tablets were later found in his flat.

Affandi was arrested shortly after, and heroin and methamphetamine were found in his seven-seat vehicle.

He was charged with possession of not less than 132.82g of heroin for the purpose of trafficking, while Fadzli was charged with abetting him. The pair also faced non-capital charges in relation to the other drugs.

Each was found guilty on the capital charge against them, among others.

During their appeal, Affandi's assigned lawyer, Mr Michael S. Chia, attacked the integrity of the chain of custody of the exhibits.

First, he argued, there were differing accounts as to who had possession of the exhibits from the time they were seized until they were handed over to the investigating officer.

Second, after the investigating officer took custody of the exhibits, she did not lock them in her safe, but left them on the floor of her office instead.

The Court of Appeal was unanimous in rejecting the improper storage argument, saying that it was not enough to raise arguments that seek to raise a theoretical possibility of a break in the chain of custody.

However, the court was split on the inconsistencies of the two officers.

One officer said the drugs were put inside a black trash bag, which was placed on the front passenger seat of the CNB vehicle while the team was on the move. He said he took the bag with him when they searched Affandi's flat.

The other officer said he held on to the exhibits and recalled that the bag was blue. He said while the team was in the CNB vehicle, the exhibits were locked inside the boot.

The majority said: "In each case, each version was supported by the robust evidence of a senior law enforcement officer. But both could not possibly be true. Nor was any plausible explanation put forward by the prosecution as to how these inconsistencies were to be reconciled."

Either of the two narratives could be true, and as a result, the upshot was that neither had been established beyond a reasonable doubt, said the majority.

"In that sense, it is not so much that the chain has been broken, as it is that it has not been properly strung in the first place."

But Justice Tay said: "While these inconsistencies in the evidence suggested that the care with which the team of CNB officers took in recording the movement of the exhibits was not entirely satisfactory, they did not suggest that there was a break in the chain of custody of the exhibits."

He said that going by either version of events, the exhibits were always in a trash bag and in the custody of the CNB team. There was no evidence that the exhibits were mixed up with other exhibits or that there was a possible mix-up or contamination, he said.

Affandi and Fadzli are currently in custody pending a decision about the non-capital charges.

Although they were found guilty by the High Court of these charges, the pair were granted a discharge not amounting to an acquittal after the prosecution said that it would take no further action. A discharge not amounting to an acquittal means that charges are temporarily dropped but can be revived later.

Mr Chia told The Straits Times the case underlined the need for CNB to handle the chain of custody of drug exhibits very seriously.

"The Misuse of Drug Act imposes a presumption of guilty knowledge on suspects found with drugs. How can the courts allow a man to be hanged on such a presumption if we cannot say with confidence that the item seized from the suspect is the same item as what was eventually analysed to be drugs?"

A CNB spokesman said it would study the court's comments and observations.

"CNB conducts regular reviews of investigative processes as part of our internal work process. As part of the regular reviews, we take into consideration the findings and grounds of judgment of past cases."