Two men, originally sentenced to hang for heroin trafficking, were cleared yesterday 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 noted that the prosecution bore the burden of proving beyond a reasonable doubt that the drug exhibits analysed by the Health Sciences Authority were the very ones seized by Central Narcotics Bureau (CNB) officers.
In the current case, two CNB officers each gave a differing account of how the drugs were handled after they were seized.
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 a CNB operation. Fadzli was arrested with methamphetamine in his car, and nimetazepam tablets were later found in his flat. Affandi was arrested shortly afterwards. Heroin and methamphetamine were found in his vehicle.
Affandi was given the death penalty for having 132.82g of heroin for the purpose of trafficking, and Fadzli was given the same penalty for abetting him. They were convicted of non-capital charges in relation to the other drugs.
During their appeal, Affandi's assigned lawyer, Mr Michael S. Chia, attacked the integrity of the chain of custody of the exhibits, pointing to the differing accounts. Fadzli's lawyer Ramesh Tiwary associated himself with the arguments.
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 bag, which he recalled was blue. He said that 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." The upshot was that neither narrative had been established beyond a reasonable doubt, said the majority.
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, the exhibits were always in a trash bag and in the custody of the CNB team. There was no evidence that there was a possible mix-up or contamination, he said.
Affandi and Fadzli are currently in custody pending a decision on the non-capital charges.
Mr Chia told The Straits Times: "The Misuse of Drugs 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 in reviewing investigative processes it considers past court decisions.