[2008] 1SLR(R) SINGAPORE LAW REPORTS (REISSUE) 1

Tan Kiam Peng

v
Public Prosecutor
[2007] SGCA 38
Court of Appeal Criminal Appeal No 8 of 2006
Andrew Phang Boon Leong JA, Kan Ting Chiu J and Woo Bih Li J
22 January; 28 September 2007
Criminal Law Statutory offences Misuse of Drugs Act Illegally importing
controlled drug Possession of diamorphine Accused arguing that he knew he was
carrying controlled drugs but did not know drugs consisting of heroin Nature of
knowledge required under s 18(2) Misuse of Drugs Act Whether necessary that
accused knew precise nature of controlled drugs he was found in possession of
Whether knowledge encompassing constructive knowledge and wilful blindness
Section 18(2) Misuse of Drugs Act (Cap 185, 2001 Rev Ed)
Facts
The appellant was convicted in the High Court under s 7 of the Misuse of Drugs
Act (Cap 185, 2001 Rev Ed) (the Act) for importing heroin. He was sentenced
to suffer the mandatory death penalty.
The appellant, who was in financial difficulties, had sought job opportunities in
Kuala Lumpur, Malaysia. Through a friend, he came to know a man known to
him as Uncle whom he hoped could give him a job transporting drugs such as
ecstasy within Malaysia.
The appellant asked Uncle if there were any jobs available and was told that
there might be. He travelled to Malaysia the next day and met Uncle in a hotel
room. Uncle brought with him three big packets wrapped in mahjong paper.
The packets contained smaller plastic packets of yellowish powder. When the
appellant asked Uncle what those packets contained, Uncle held up three fingers
in response. When the appellant said to Uncle that it was a lot, Uncle disagreed
and used his fingers to indicate seven.
Uncle secured the smaller packets onto the appellants body. The appellant was
instructed to take a private taxi to Redhill, Singapore. He was arrested at
Woodlands customs clearance point when the drugs were discovered.
Police Constable Phua (Constable Phua) asked the appellant some questions
about the packets while carrying out the body search. This conversation was not
documented but it emerged during cross-examination and was relied on by the
trial judge (the Judge). Constable Phua testified that he had asked the
appellant, in Hokkien, what the packets were and the appellant answered,
number 3. When Constable Phua asked the appellant what number 3 was,
the appellant repeated, number 3.
Later, the appellant was interviewed by Inspector Teng (Insp Teng). They
spoke in the Hokkien dialect. When asked what the packets of yellowish
substance were, the appellant said, I believed it is heroin number 3.
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2 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
During cross-examination, it emerged that Station Inspector Ong (SI Ong),
one of the CNB officers who escorted the appellant back to the CNB Woodlands
office and who carried out the raid at the appellants flat, had spoken to the
appellant in the course of the investigations. SI Ong testified at the trial that the
appellant told him that the contents of the packets were number 3 and that the
appellant had been given $800 to bring number 3 into Singapore.
The appellants defence was that while he knew he was importing illegal drugs,
he did not know the precise nature of the drugs he was carrying. The appellant
contended that, inter alia, the Judge had erred in finding that the word peh
hoon in Hokkien meant heroin or diamorphine and that the appellant knew
that number 3 or peh hoon was in fact heroin or diamorphine. The appellant
also argued that it was Insp Teng who translated the Hokkien word peh hoon
to mean heroin when he recorded the appellants statement.
Held, dismissing the appeal:
(1) Besides actual knowledge, s 18(2) of the Act encompassed the doctrine of
wilful blindness which had been applied in many Singapore decisions in the
context of the operation of the Act. Wilful blindness was treated as the legal
equivalent of actual knowledge. To establish wilful blindness, there had to be the
appropriate level of suspicion that led to a refusal to investigate further. If
controlled drugs were slipped into an accuseds bag without his or her
knowledge, no offence under the Act would have been committed. On the other
hand, if an accused knew that he or she was carrying controlled drugs, merely
inquiring as to the nature of the drugs might not be sufficient. If the accused
chose to assume such a large risk by trafficking drugs without establishing the
true nature of the drugs he or she was carrying, this was wilful blindness: at
[104], [121], [123] to [125], [129] and [130].
(2) Applying the relevant legal principles to the present case, the issue was
whether or not the Judge was correct in holding that the appellant had clearly
understood that number 3 was the street name for heroin and that, in the
circumstances, the appellant knew that he was carrying heroin. The court was
concerned with the appellants subjective knowledge assessed on an objective
basis. Although the appellant was not a known drug abuser, he had some
knowledge of controlled drugs. However it was not entirely clear that the
knowledge of most persons in the drug trade that number 3 alone was the
street name for heroin would be general knowledge for persons in the
appellants shoes: at [151] and [153].
(3) Although it was not clear, from the appellants oral statements to both
Constable Phua and SI Ong, that he in fact knew that number 3 alone
effectively meant heroin number 3, on the evidence, he clearly suspected that
the drugs he was carrying were heroin. The appellant did not pursue the matter
further with Uncle after Uncle had held up three fingers in response to his
question of what the packets contained, lest he (Uncle) confirm beyond
peradventure that the drugs were in fact heroin. Uncles extreme reluctance to
elucidate the matter would have aroused the suspicion of a person in the
appellants shoes. He should have followed up or abandoned the deal. Even if the
court assumed that there was ambiguity, it demanded clarification which the
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[2008] 1SLR(R) Tan Kiam Peng v PP 3
appellant refrained from seeking. Thus these oral statements demonstrated
wilful blindness on the part of the appellant: at [155] to [157].
(4) The Judge found Insp Teng to be a credible witness and accepted his
testimony that he had not suggested the Hokkien equivalent of heroin when he
recorded the appellants responses to his questions. An appellate court would be
slow to interfere with the findings of the trial judge. As for defence counsels
argument that peh hoon did not mean heroin but drugs in Hokkien, this
argument could not be sustained given the specific context in which the
appellant had used these words. From the written statement recorded by
Insp Teng, it was clear that the appellant had actual knowledge that the drugs he
was carrying consisted of heroin. It followed that when the appellant referred to
number 3 in his statements to Constable Phua and SI Ong, it was a reference
to heroin number 3: at [161], [163], [164], [167], [170] and [171].
[Observation: The popular view that the presumptions in ss 18(1) and 18(2) of
the Act were motivated by the decision in Warner v Metropolitan Police
Commissioner [1969] 2 AC 256 (Warner) was misconceived. The UK Drugs
(Prevention of Misuse) Act 1964 (c 64) (the 1964 UK Act) was silent as to
whether mens rea was required and the majority of the law lords in Warner
considered that the 1964 UK Act created absolute offences. This was not the case
with the Act which laid down presumptions that the accused must rebut on a
balance of probabilities. The antecedents of the Act went as far back as 1927,
before the Warner decision. Thus guidance must be sought from the actual
language of the Act and the application of the House of Lords decision in
Warner should be limited to the point of general principle relating to the
concept of possession: at [35] and [69].
In Warner, most of the law lords in the majority recognised a qualification to
the general principle if the accused did not know that he was in control or
possession of the prohibited substance. However, Lord Pearces comment that if
the accused reasonably believed the tablets he or she possessed to be aspirin but
they turned out to contain heroin, the accused would still be assumed to be in
possession of heroin tablets even if he or she believed them to be sweets, went a
little too far and could be explained on the ground that the 1964 UK Act created
absolute offences. The Court of Appeals decision in Tan Ah Tee v PP
[19791980] SLR(R) 311, which applied Lord Pearces example and had been
cited in a long line of local cases since, should be regarded as having only
endorsed that part of Lord Pearces judgment dealing with the general concept
of possession: at [35], [36], [49], [50], [52] and [53].
Section 18(2) of the Act must be read with s 18(1) to the extent that if the
accused person successfully rebutted the presumption in s 18(1) concerning
possession, the presumption under s 18(2) pertaining to knowledge of the thing
possessed would not arise. However if the prosecution proved actual possession
by the accused for the purposes of s 18(1), the presumption under s 18(2) would
still operate. The Act had not dispensed with mens rea, but the s 18
presumptions were introduced to mitigate the practical difficulty of proving
possession and knowledge on the part of the accused and to ensure that the
policy underlying the Act would be fulfilled rather than frustrated. While the
conditions for triggering the presumptions under s 18 of the Act had to be
strictly proved, once the conditions had been satisfied, the accused bore the
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4 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
burden of rebutting the presumptions therein on a balance of probabilities: at
[54], [55], [60] and [61].
There were two possible interpretations of the reference to knowledge in
s 18(2) of the Act the first was that the reference to knowledge was to
knowledge that the drug concerned was a controlled drug, and the second was
that the accused had knowledge that the drug concerned was not only a
controlled drug but also the specific drug which he was found to be in possession
of (in this case, heroin). The first interpretation was more consistent with the
general policy underlying the Act and there was some case law which appeared
to support it. In contrast, the second interpretation would tend to undermine the
general policy of the Act. However, the second interpretation appeared to be
more consistent with the literal wording of the provision. Furthermore, the need
(given the extreme penalties prescribed by the Act) to resolve any ambiguities (if
they existed) in favour of the accused and the fact that no local case had adopted
the first interpretation pointed in favour of the second interpretation. In the
absence of detailed argument by counsel, no definitive conclusion was reached
although, on balance, the second interpretation would appear to be the
preferable one: at [83] to [85], [87] to [89], [91], [92] and [95].
Constructive knowledge had no application under s 18(2) of the Act although
it was possible that on certain occasions, the line between actual and
constructive knowledge might be blurred. The case of Roper v Taylors Central
Garages (Exeter), Limited [1951] 2 TLR 284, which drew a clear and practical
distinction between actual knowledge on the one hand and constructive
knowledge on the other, was a preferred authority to Baden, Delvaux and Lecuit
v Socit Generale pour Favoriser le Dveloppement du Commerce et lIndustrie
en France SA [1983] BCLC 325 in which the judge expounded on five levels of
knowledge, one of which was constructive knowledge: at [133] to [135].]
Case(s) referred to
Abdul Rauf bin Abdul Rahman v PP [1999] 3 SLR(R) 533; [2000] 1 SLR 683
(refd)
Abou-Rahmah v Abacha [2006] 1 All ER (Comm) 247 (refd)
Abou-Rahmah v Abacha [2007] 1 All ER (Comm) 827 (refd)
Anand Naidu a/l Raman v PP [2000] SGCA 67 (refd)
Attorney General of Zambia v Meer Care & Desai [2007] EWHC 952 (Ch) (refd)
Baden, Delvaux and Lecuit v Socit Generale pour Favoriser le Dveloppement
du Commerce et lIndustrie en France SA [1983] BCLC 325 (distd)
Barlow Clowes International Ltd v Eurotrust International Ltd [2006] 1 WLR
1476; [2006] 1 All ER 333 (refd)
Chan Chi Pun v PP [1994] 1 SLR(R) 654; [1994] 2 SLR 61 (refd)
Cheng Heng Lee v PP [1998] 3 SLR(R) 747; [1999] 1 SLR 504 (refd)
Chou Kooi Pang v PP [1998] 3 SLR(R) 205; [1998] 3 SLR 593 (refd)
Compania Maritima San Basilo S A v Oceanus Mutual Underwriting Association
(Bermuda) Ltd [1977] QB 49 (refd)
Cowan de Groot Properties Ltd v Eagle Trust plc [1991] BCLC 1045 (refd)
Criterion Properties plc v Stratford UK Properties LLC [2004] 1 WLR 1846 (refd)
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[2008] 1SLR(R) Tan Kiam Peng v PP 5
English and Scottish Mercantile Investment Company, Limited, The v Brunton
[1892] 2 QB 700 (refd)
Evans v Dell (1937) 53 TLR 310 (refd)
Fok Chia Siong v PP [1999] SGCA 5 (refd)
Fun Seong Cheng v PP [1997] 2 SLR(R) 796; [1997] 3 SLR 523 (refd)
Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] AC 1 (refd)
Gulam bin Notan Mohd Shariff Jamalddin v PP [1999] 1 SLR(R) 498; [1999]
2 SLR 181 (refd)
Iwuchukwu Amara Tochi v PP [2006] 2 SLR(R) 503; [2006] 2 SLR 503 (refd)
John A Leeson v R [1999] EWCA Crim2176 (refd)
Jones v Gordon (1877) 2 App Cas 616 (refd)
Ko Mun Cheung v PP [1992] 1 SLR(R) 887; [1992] 2 SLR 87 (refd)
Kong Weng Chong v PP [1993] 3 SLR(R) 453; [1994] 1 SLR 34 (refd)
Lau Boon Huat v PP [1997] 2 SLR(R) 534; [1997] 3 SLR 273 (refd)
Lee Ngin Kiat v PP [1993] 1 SLR(R) 695; [1993] 2 SLR 511 (refd)
Lee Yuan Kwang v PP [1995] 1 SLR(R) 778; [1995] 2 SLR 349 (refd)
Lim Ah Poh v PP [1992] 1 SLR(R) 192; [1992] 1 SLR 713 (refd)
Lim Beng Soon v PP [2000] 3 SLR(R) 213; [2000] 4 SLR 589 (refd)
Lim Chin Aik v The Queen [1963] AC 160 (refd)
Lim Lye Huat Benny v PP [1995] 3 SLR(R) 689; [1996] 1 SLR 253 (refd)
Lockyer v Gibb [1967] 2 QB 243 (refd)
Loh Kim Cheng v PP [1998] 1 SLR(R) 512; [1998] 2 SLR 315 (refd)
Low Kok Wai v PP [1994] 1 SLR(R) 64; [1994] 1 SLR 676 (refd)
Manifest Shipping Co Ltd v Uni-Polaris Insurance Co Ltd [2003] 1 AC 469 (refd)
Mohamed Faizi bin Abdul Rahim v PP [1999] SGCA 14 (refd)
Ng Kwok Chun v PP [1992] 3 SLR(R) 256; [1993] 1 SLR 55 (refd)
Ong Ah Chuan v PP [19791980] SLR(R) 710; [19801981] SLR 48 (refd)
Polly Peck International plc v Nadir (No 2) [1992] 4 All ER 769 (refd)
PP v Azman bin Abdullah [1998] 2 SLR(R) 351; [1998] 2 SLR 704 (refd)
PP v Hla Win [1995] 2 SLR(R) 104; [1995] 2 SLR 424 (refd)
PP v Iwuchukwu Amara Tochi [2005] SGHC 233 (refd)
PP v Khampali Suchart [1996] SGCA 38 (refd)
PP v Ko Mun Cheung [1990] 1 SLR(R) 226; [1990] SLR 323 (refd)
PP v Koo Pui Fong [1996] 1 SLR(R) 734; [1996] 2 SLR 266 (refd)
PP v Lee Ngin Kiat [1992] 3 SLR(R) 955; [1993] 2 SLR 181 (refd)
PP v Mohamed Faizi bin Abdul Rahim [1998] SGHC 335 (refd)
PP v Phua Keng Tong [19851986] SLR(R) 545; [1986] SLR 168 (refd)
PP v Tan Siew Lam [2000] SGHC 161 (refd)
PP v Teo Ai Nee [1995] 1 SLR(R) 450; [1995] 2 SLR 69 (distd)
PP v Teo Kwang Kiang [1991] 2 SLR(R) 560; [1992] 1 SLR 9 (refd)
PP v Tseng Yue-Wey [2003] SGDC 288 (refd)
PP v Virat Kaewnern [1993] 1 SLR(R) 358; [1993] 2 SLR 9 (refd)
PP v Wong Wai Hung [1992] 2 SLR(R) 918; [1993] 1 SLR 927 (refd)
PP v Yeoh Aik Wei [2002] SGHC 225 (refd)
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6 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
Public Prosecutor v Tan Kok An [1996] 1 MLJ 89 (refd)
R v Boyesen [1982] AC 768 (refd)
R v Gareth Edmund Lewis (1988) 87 Cr App R 270 (refd)
R v James McNamara (1988) 87 Cr App R 246 (refd)
R v Keith Ian Thomas (1976) 63 Cr App R 65 (refd)
R v Leslie George Griffiths (1974) 60 Cr App R 14 (refd)
R v William Sleep (1861) CLC 472 (refd)
Regina v Lambert [2002] 2 AC 545 (refd)
Roper v Taylors Central Garages (Exeter), Limited [1951] 2 TLR 284 (folld)
Roslan bin Sabu @ Omar v Pendakwa Raya [2006] 4 AMR 772 (refd)
Royal Brunei Airlines Sdn Bhd v Philip Tan Kok Ming [1995] 2 AC 378 (refd)
Salmon v HM Advocate 1999 SLT 169 (refd)
Shan Kai Weng v PP [2004] 1 SLR(R) 57; [2004] 1 SLR 57 (refd)
Sweet v Parsley [1970] AC 132 (refd)
Tan Ah Tee v PP [19791980] SLR(R) 311; [19781979] SLR 211 (refd)
Tan Boon Tat v PP [1992] 1 SLR(R) 698; [1992] 2 SLR 1 (refd)
Tay Kah Tiang v PP [2001] 1 SLR(R) 577; [2001] 2 SLR 305 (refd)
Tee Soon Kay v AG [2007] 3 SLR(R) 133; [2007] 3 SLR 133 (refd)
Twinsectra Ltd v Yardley [2002] 2 AC 164 (refd)
Ubaka Chris Chinenye v PP [1994] 3 SLR(R) 401; [1995] 1 SLR 267 (refd)
Van Damme Johannes v PP [1993] 3 SLR(R) 694; [1994] 1 SLR 246 (refd)
Warner v Metropolitan Police Commissioner [1969] 2 AC 256 (distd)
Westminster City Council v Croyalgrange Ltd [1986] 1 WLR 674; [1985] 1 All ER
740 (refd)
Wong Kee Chin v PP [19771978] SLR(R) 628; [19781979] SLR 114 (refd)
Wong Soon Lee v PP [1999] SGCA 42 (refd)
Yeoh Aik Wei v PP [2003] SGCA 4 (refd)
Zulfikar bin Mustaffah v PP [2001] 1 SLR(R) 181; [2001] 1 SLR 633 (refd)
Legislation referred to
Copyright Act (Cap 63, 1988 Rev Ed)
Copyright Act (Cap 63, 2006 Rev Ed) ss 136(1)(b), 136(2)(a)
Criminal Procedure Code (Cap 68, 1985 Rev Ed) ss 121(1), 122(6)
Interpretation Act (Cap 1, 2002 Rev Ed) ss 2(1), 9A
Misuse of Drugs Act (Cap 185, 2001 Rev Ed) s 18(2) (consd);
ss 2, 7, 18, 18(1), 33, Second Schedule
Misuse of Drugs (Amendment) Act 1975 (Act 49 of 1975)
Misuse of Drugs (Amendment) Act 1998 (Act 20 of 1998)
Straits Settlements Deleterious Drugs Ordinance 1907 (SS Ord No 14 of 1907)
s 5(3)
Straits Settlements Deleterious Drugs Ordinance 1910 (SS Ord No 27 of 1910)
s 16
Straits Settlements Deleterious Drugs Ordinance 1927 (SS Ord No 7 of 1927)
s 17
Criminal Appeal Act 1907 (c 23) (UK) s 4(1)
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[2008] 1SLR(R) Tan Kiam Peng v PP 7
Criminal Appeal Act 1966 (c 31) (UK) s 4
Drugs (Prevention of Misuse) Act 1964 (c 64) (UK) ss 1, 1(1)
Misuse of Drugs Act 1971 (c 38) (UK) ss 5(3), 28
Road Traffic Act 1930 (c 34) (UK)
B Rengarajoo (B Rengarajoo & Associates) and Patrick Tan Tse Chia (Patrick Tan &
Associates) for the appellant;
David Khoo (Attorney-Generals Chambers) for the respondent.
[Editorial note: The decision from which this appeal arose is reported at [2007]
1 SLR(R) 522.]
28 September 2007
Andrew Phang Boon Leong JA (delivering the grounds of decision of the
court):
Introduction
1 After hearing arguments made on behalf of both the appellant as well
as the respondent, we dismissed the present appeal. We now give the
detailed grounds for our decision.
2 We should also mention, at this preliminary juncture, that the present
appeal raised important legal issues turning on the interpretation of s 18(2)
of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (the Act).
The factual background
3 The appellant was charged in the High Court as follows:
That you, Tan Kiam Peng, on the 18
th
day of August 2005 at about
6.50pm, at the Inspection Pit Green Channel Left Lane 03, Woodlands
Checkpoint, Singapore, did import into Singapore a controlled drug
specified in Class A of the First Schedule to the Misuse of Drugs Act,
Chapter 185, to wit, ten (10) packets of granular/powdery substance
containing not less than 145.07 grams (nett) of diamorphine, without
authorisation under the said Act or the regulations made thereunder,
and you have thereby committed an offence under section 7 and
punishable under section 33 of the Misuse of Drugs Act, Chapter 185.
4 The appellant was convicted by the trial judge (the Judge) and
sentenced to suffer the mandatory death penalty (see PP v Tan Kiam Peng
[2007] 1 SLR(R) 522 (GD)). The appellant appealed against his conviction
and sentence.
5 The appellant had been in dire financial straits and had been looking
for job opportunities in Kuala Lumpur since February 2005. Through a
friend (Ah Huat), the appellant came to know a man, known to him as
Uncle, whom the appellant hoped would give him a job transporting
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8 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
drugs such as ecstasy within Malaysia. The appellant regularly contacted
Uncle thereafter in hope of finding work.
6 On 16 August 2005, the appellant again called Uncle to ask if there
were any jobs available. The appellant was told that there might be
something for [him] to do. On 17 August 2005, he then travelled to
Malaysia where he met Uncle in a hotel room in Sin Luck Hotel at about
5.00pm on 18 August 2005.
7 Uncle brought along a backpack which contained three big packets
wrapped in mahjong paper. When each individual package was unwrapped,
it revealed smaller plastic packets of yellowish powder. The appellant asked
Uncle what those packets were, and Uncle merely held up three fingers in
response. When the appellant told Uncle that it was a lot, Uncle disagreed
and used his fingers to indicate seven. These smaller packets were secured
with tape onto various parts of the appellants body by Uncle. Uncle then
left the hotel.
8 On Uncles instructions, the appellant checked out of the hotel at
around 6.30pm and called for a private taxi to take him to Redhill,
Singapore. The appellant was given a number to dial upon reaching Redhill
to find out the exact delivery location.
9 However, at the customs clearance point at Woodlands (the
Woodlands checkpoint), the car was subjected to a routine check. Police
Constable Phua Han Siang (Constable Phua), a Cisco Auxillary Police
officer attached to the Immigration Checkpoint Authority Supplementary
Force, after noticing that the appellant looked nervous, asked him to step
out of the vehicle. Constable Phua noticed that the appellants waist area
appeared bulky. Constable Phua asked the appellant whether there was
anything on him but the appellant gave a non-committal answer. Constable
Phua patted the bulky part of the appellants body and after confirming
that there were strapped objects on the lower half of the appellants body,
directed him to another Cisco Auxillary Police officer, Lance Corporal
Rosta bin Haji Dahlan (L/Cpl Rosta) who was standing at Lane 05.
10 The appellant was brought to a search room by L/Cpl Rosta and
another Cisco Auxillary Police officer, Lance Corporal Chin Wei Wen
(L/Cpl Chin). They were joined by Constable Phua who had been
directing a vehicle to an inspection pit earlier. Constable Phua, L/Cpl Rosta
and L/Cpl Chin did a thorough body search of the appellant. They found
nine plastic packets, containing a yellowish powdery substance, in the black
tights worn by the appellant under his jeans and a similar plastic packet
strapped to one of the appellants thighs.
11 Sergeant Guo Yi An (Sgt Guo), Senior Staff Sergeant Lim Lian Huat
(SSSgt Lim) and Senior Staff Sergeant Razano (SSSgt Razano) as well as
two Central Narcotics Bureau (CNB) officers, Staff Sergeant Anil s/o
Rajendra Prasad (SSgt Anil) and Woman Sergeant Jenny Woo Yoke
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[2008] 1SLR(R) Tan Kiam Peng v PP 9
Chun (W/Sgt Jenny), were also present in the search room when
Constable Phua, L/Cpl Rosta and L/Cpl Chin did a body search of the
appellant. The two CNB officers, SSgt Anil and W/Sgt Jenny, had been
instructed by one Station Inspector Ong Lu Hieow (SI Ong) to proceed
first to the scene.
12 In his written statement, Constable Phua stated at para 5 that he had
asked the appellant some questions pertaining to the said packets while
carrying out the body search. However, this conversation was not
documented. It was during cross-examination that the entire conversation
that had transpired between the appellant and Constable Phua emerged. As
this conversation was relied upon by the Judge in finding that the appellant
knew the nature of the drugs that was in his possession and is therefore
extremely important in the context of this appeal, the entire text of the
relevant extract from the cross-examination is reproduced as follows:
[emphasis added in bold italics]
13 After the body search, the appellant was escorted by Constable Phua,
L/Cpl Rosta and L/Cpl Chin from the search room to the CNB office at the
Q: Now, let me read this:
[Reads]: I asked the accused some questions pertaining
to the said packets.
Can you tell the Court what are those questions that you
asked?
A: Sir, I asked him in Hokkien.
Q: Yah, what you asked [sic] him?
A: Jee eh sim mee lai eh?
Q: Can you tell us that in English?
A: I asked him in Hokkien. I told him---I asked him, What
is this?
He told me that is number 3. Then I asked him again,
What number 3? Then he still answer [sic]
number 3.
Court: Slow down, slow down.
A: Then he still answer [sic] me, number 3. Then I asked
him again, Where are you going to send this number 3
to? He---he told me that [sic] to Bukit Merah. Then
after I asked him again, For how much you are---for
how much you are pay [sic] for this delivery? He told
me that its S$800. Then I asked him again, Why do you
do this kind of thing? He told him [sic] that he is going
to be sued by the bank for bankruptcy and his HDB flat
is going to [sic] seized by the government, Sir.
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10 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
Woodlands checkpoint (the CNB Woodlands office). They were
accompanied by a CNB officer, SI Ong. At about 9.21pm at the interview
room of the CNB Woodlands office, Inspector Jack Teng Jit Sun
(Insp Teng), an inspector with the CNB attached to its Enforcement
Division, recorded an oral statement made by the appellant pertaining to
the contents of the packets of yellowish powder found strapped on the
appellants body. The conversation between Insp Teng and the appellant
was in the Hokkien dialect and Staff Sergeant Ashari bin Hassan
(SSgt Ashari) was also present in the CNB office when Insp Teng
conversed with the appellant. What transpired between the appellant and
Insp Teng was also relied upon by the Judge in finding that the appellant
knew the nature of the drugs he had in his possession and is therefore
extremely pertinent to this appeal. The relevant portion of the conversation
between the appellant and Insp Teng, according to the record made by
Insp Teng (marked as Exhibit P37), was as follows:
Q1: What are these? (pointing to several packets of yellowish
substance)
A1: I believed it is heroin number 3.
[emphasis added]
14 At about 1.15am on 19 August 2005, the appellant went with a group
of seven CNB officers, comprising Staff Sergeant Tan Kah Chyoon
(SSgt Tan), Woman Staff Sergeant Lim Sok Hoon (W/SSgt Lim),
Sergeant Muhammad Fairus (Sgt Fairus), Sergeant Mohd Hafiz bin
Jumali (Sgt Hafiz), W/Sgt Jenny, SI Ong and Insp Teng to the appellants
flat at Block 155 Woodlands Street 13 #05-761 (the unit). Nothing
incriminating was found by the CNB officers at the unit.
15 During cross-examination, it emerged that SI Ong, one of the CNB
officers who escorted the appellant to the CNB Woodlands office and who
carried out the raid at the appellants unit, had spoken to the appellant in
the course of investigations. However, this conversation was not recorded.
In fact, it is not apparent from SI Ongs statement when he spoke to the
appellant, although it is clear that the conversation took place. As what
transpired between the appellant and SI Ong was also relied upon by the
Judge in reaching his decision in the court below, it would be useful to set
out SI Ongs testimony, as follows:
Court: Did you speak to the accused?
Witness: Yes, I did.
Court: Can you recollect what was said?
Witness: Yes. I asked the accused what were those things. He
told me that it was number 3.
Court: Anything else?
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[2008] 1SLR(R) Tan Kiam Peng v PP 11
16 After the raid at the unit, the group of seven CNB officers brought the
appellant to Alexandra Hospital for a medical examination. The appellant
and the CNB officers left the hospital at about 2.40am and reached the CNB
Headquarters Special Investigation Team (SIT) office at about 3.10am
where the appellant, his personal effects and his passport were handed over
to the Investigating Officer, CNB ASP Herman Hamli (ASP Herman).
17 It was only then that the appellant made four other statements (the
written statements) to ASP Herman:
(a) on 19 August 2005 at about 4.08am at CNB/SIT office room
0310C (Exhibit P60);
(b) on 20 August 2005 at about 3.05pm at CNB/SIT office room
0310C (Exhibit P62);
(c) on 22 August 2005 at about 11.05am at room B0310C, Police
Cantonment Complex (Exhibit P63); and
(d) on 25 August 2005 at about 8.55am at room B0310C, Police
Cantonment Complex (Exhibit P64).
The issues
18 The issue before this court was a short and simple one and is
embodied succinctly within the appellants own submissions before this
court, as follows:
The crux of the Appellants defence was that while he knew he was
importing illegal drugs, he did not know the precise nature of the drugs
he was carrying. In other words, the Appellant did not know that the
drugs had contained heroin.
19 This necessarily brings into play a consideration of s 18(2) of the Act,
which reads as follows:
Any person who is proved or presumed to have had a controlled drug
in his possession shall, until the contrary is proved, be presumed to
have known the nature of that drug.
Witness: I asked him how much he was paid by bringing
number 3 in.
He told me that he was given $800.
Court: Anything else?
Witness: I also asked him whether he knew the driver. He
replied that he did not know the driver. I asked him
how did he contact the driver. He told me that his
boss helped him to book the driver.
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12 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
20 In order to succeed, the appellant had to rebut the presumption under
s 18(2) of the Act (reproduced in the preceding paragraph as well as below
at [54]).
21 More specifically, in his petition of appeal, the appellant argued that
the Judge had erred in the following:
(a) Finding that the word peh hoon in Hokkien means heroin or
diamorphine.
(b) Finding that the appellant knew that number 3 or peh hoon
was in fact heroin or diamorphine.
(c) Giving undue weight to an answer to a leading question that
number 3 refers to heroin in street parlance.
(d) Attributing to the appellant the knowledge of a class of people
dealing in the drug trade that the reference to number 3 points to
heroin.
(e) Finding that number 3 refers to heroin and that this is known
to the appellant.
(f) Mistaking that the Defence was challenging all the three
statements (statements made to Constable Phua, SI Ong and
Insp Teng) on the presumed basis that they unequivocally
demonstrated the appellants knowledge of what he was carrying
when only one of the statements was challenged.
(g) Mistaking that the procedural issue that was raised was for the
purpose of excluding the statements made to Constable Phua and
SI Ong from evidence when it was raised to show the distinction
between an oral statement that was not reduced in writing and a
statement recorded under s 121(1) of the Criminal Procedure Code
(Cap 68, 1985 Rev Ed) (CPC) and the weight to be given to the
statement recorded by Insp Teng which was not an oral statement
unlike the oral statements made to Constable Phua and SI Ong which
were not reduced in writing.
(h) Accepting the third statement (the statement made to
Insp Teng) as an oral statement when it was not an oral statement.
(i) Finding that the oral statements made to Constable Phua and
SI Ong are inculpatory when they are exculpatory.
(j) Not giving due weight to the oral statements made to Constable
Phua and SI Ong which are exculpatory in nature.
(k) Failing to take cognisance of the fact that it was Insp Teng who
translated the Hokkien word peh hoon to mean heroin when he
recorded the appellants statement.
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[2008] 1SLR(R) Tan Kiam Peng v PP 13
(l) Not appreciating the variance between the oral statements made
to Constable Phua and SI Ong vis--vis the statement recorded by
Insp Teng.
(m) Holding that the appellant failed to make an exculpatory
statement when he made an exculpatory statement in respect of the
driver as to the peh hoon that was found on the appellants body.
(n) Holding that the appellant should have stated that he is
innocent in the long statement recorded by ASP Herman when the
appellant was never asked what number 3 was or whether he was
importing heroin.
(o) Holding that the appellant should have stated in his statements
that he was ignorant of the precise nature of the drug when in fact the
appellant was never asked what number 3 was at all material times;
the appellant had merely narrated what Uncle told him, ie,
number 3.
(p) Finding that the appellant was virtually certain that the drug he
was carrying was heroin but had wilfully chosen to turn a blind eye.
(q) Finding that the appellant did not ask Uncle about the nature of
the drug.
22 All the appellants arguments on appeal pertained to the Judges
findings of fact and his assessment of the veracity and credibility of the
witnesses. Before considering each of these grounds of appeal, it must be
noted that an appellate court customarily exercises great caution in
evaluating factual findings and will not interfere with a trial judges findings
unless they are plainly wrong: see, for example, the decision of this court in
Lim Ah Poh v PP [1992] 1 SLR(R) 192. An appellate court, if it wishes to
reverse the trial judges decision, must not merely entertain doubts whether
the decision is right but must be convinced that it is wrong: see, for
example, the Singapore High Court decision of PP v Azman bin Abdullah
[1998] 2 SLR(R) 351. It should also be pointed out that although all the
aforementioned grounds set out in the preceding paragraph will be
considered, they will not be considered in the strict order set out above as
some of these grounds overlap and (more importantly) constitute parts of
an integrated whole that focuses, in the final analysis, on the central issue
set out at [18] above. We will, in fact, be considering these grounds by
reference to, as well as in the context of, the appellants own arguments in
this particular appeal as these arguments embody all these grounds as well
as other arguments all of which are part of an integrated whole which, it
bears repeating, focuses on the central issue in [18] above.
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14 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
The interpretation and application of section 18(2) of the Act
The underlying policy of the Act
23 The ultimate interpretation of s 18(2) of the Act must, as far as is
possible, give effect to the underlying policy of the Act itself. The corollary
of this obvious yet utterly fundamental proposition is that any
interpretation that would undermine or frustrate such policy ought to be
eschewed. Hence, it would be appropriate to commence with a
consideration of the underlying policy of the Act.
24 We commence with a fundamental and self-evident proposition: In
order to give effect to the policy referred to in the preceding paragraph, the
court must not distort the relevant statutory language.
25 All the above principles are premised on the basic and irreducible as
well as non-negotiable proposition that the courts do not act as mini-
legislatures.
26 Returning to the underlying policy of the Act, an even cursory perusal
of the relevant parliamentary debates will reveal that the public interest was
and continues to be of paramount importance. Indeed, there are few
local statutes where the legislative intention is clearer.
27 During the second reading of the Bill introducing what was ultimately
enacted as the Misuse of Drugs (Amendment) Act 1975 (Act 49 of 1975)
(which, most significantly, introduced the death penalty for drug trafficking
for the first time), the then Minister for Home Affairs and Education,
moving the Bill, observed thus (see Singapore Parliamentary Debates,
Official Report (20 November 1975) vol 34 at cols 13791381):
Sir, the tragedy of drug abuse has been presented in terms of the
individual drug abuser and his family. The irreparable damage caused
by drug addiction to the health and career of the drug abuser and the
sorrow, anxiety and the shame caused to the family has often been
emphasised. This, therefore, need not be elaborated upon here.
But what is not sufficiently appreciated is the threat that drug addiction
poses to national security and viability. If drug abuse were to be
allowed to grow unchecked, particularly among our youths, we would
eventually be faced with a dangerous national security problem. In no
time we would find that it had penetrated right into the vital and
sensitive institutions of the State, like the Police and the Armed Forces.

Rampant drug addiction among our young men and women will also
strike at the very foundations of our social fabric and undermine our
economy. Once ensnared by drug dependence they will no longer be
productive digits contributing to our economic and social progress.
They will not be able to carry on with their regular jobs. Usually for the
young men, they turn to all sorts of crime, and for the girls, to
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[2008] 1SLR(R) Tan Kiam Peng v PP 15
prostitution to get money to buy their badly needed supply of drugs.
Thus, as a developing country, our progress and very survival will be
seriously threatened.
Singapore, as it is situated, is in a rather vulnerable position. The
Golden Triangle straddling Thailand, Laos and Burma, which is the
source of supply of narcotics, is not far from Singapore. Being a busy
port, an important air communication centre and an open coastline
easily accessible from neighbouring countries, it makes detection of
supplies of narcotics coming in difficult. Further, the manufacture of
morphine and heroin is not a complicated process and can be done in
as small a space as a toilet. Our Central Narcotics Bureau has
intelligence information that much of the heroin brought into
Singapore has been manufactured in illicit laboratories clandestinely
established in a neighbouring country. The Central Narcotics Bureau
also reported that there was an abortive attempt to set up an illicit
heroin laboratory in Singapore itself.
Heroin is one of the most potent and dangerous drugs. In the first half
of 1974 only nine out of 1,793 drug abusers arrested consumed heroin.
In the corresponding period this year 1,007 out of 1,921 drug abusers
arrested consumed heroin. Thus the number of heroin abusers arrested
increased by almost 112 times in 12 months. This is an explosive
increase by any reckoning. Equally significant is the fact that the
number of traffickers arrested for dealing in heroin had also increased
from six in the first half of 1974 to 26 in the corresponding period this
year.
28 And, in the judicial context, F A Chua J, delivering the grounds of
judgment of the court in the Singapore Court of Criminal Appeal decision
of Ng Kwok Chun v PP [1992] 3 SLR(R) 256, observed (at [19]) that [i]t is
unnecessary to stress the damage that non-medical use of heroin and
morphine can inflict upon the society at large. Further, in the court below,
the Judge observed thus (GD at [8]):
The drug trade is a major social evil. While drug peddlers may not be
visibly seen or caught taking away or damaging lives, they nonetheless
inflict alarmingly insidious problems on society that have the potential
to destroy its very fabric if left unchecked. Each successful trafficker
has the disturbing potential to inflict enormous and enduring harm
over an extremely wide circle of victims. Apart from the harm that
drugs inflict on an addicts well-being, drug trafficking engenders and
feeds a vicious cycle of crime that inexorably ripples through the
community.
29 So much by way of a summary of the underlying policy of the Act.
Before proceeding to analyse s 18(2) of the Act proper, it would be
appropriate to clarify a House of Lords decision that has been cited
numerous times by Singapore courts.
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16 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
The significance of Warner v Metropolitan Police Commissioner
30 One of the most oft-cited decisions in the context of the local case law
is the House of Lords decision of Warner v Metropolitan Police
Commissioner [1969] 2 AC 256 (Warner). This is not surprising as the
case itself contains much general discussion specifically, on the meaning
of the concept of possession. However, we are of the view that, the
particular advantage just mentioned notwithstanding, it must also be borne
in mind that the rest of the discussion in Warner is (owing to the different
statutory contexts) irrelevant and that the application of Warner ought
therefore to be confined only to the point of general principle (with respect
to the concept of possession).
31 Simply put, the facts in Warner were as follows. The accused had two
packages in his car when he was stopped by the police. His defence was that
he believed that both packages contained scent, whereas one of the
packages contained a prohibited drug. He was charged under s 1(1) of the
then UK Drugs (Prevention of Misuse) Act 1964 (c 64) (the 1964 UK
Act). A point of law of general public importance was in fact stated by the
Court of Appeal for decision by the House, as follows:
Whether for the purposes of section 1 of the Drugs (Prevention of
Misuse) Act 1964, a defendant is deemed to be in possession of a
prohibited substance when to his knowledge he is in physical
possession of the substance but is unaware of its true nature.
32 The material part of the s 1(1) of the 1964 UK Act itself read as
follows:
[I]t shall not be lawful for a person to have in his possession a
substance for the time being specified in the Schedule to this Act unless

33 The actual holding with regard to the issue just stated is clear: The
majority of the House in Warner held that that provision created an
absolute offence (in this regard, however, Lord Reid delivered a powerful,
albeit lone, dissenting judgment).
34 It should be noted, at the outset, that, unlike the provisions of the Act,
s 1(1) of the 1964 UK Act was silent with respect to the issue as to whether
or not mens rea was required; the word knowingly and/or allied words
did not appear in the provision itself (this was particularly emphasised by
Lord Guest in Warner at 300). It should also be noted that s 1(1) of the 1964
UK Act also expressly sets out exceptions under which the persons
concerned could lawfully possess drugs thus suggesting that all other
situations would fall within the ambit of the provision, regardless of
whether or not mens rea was present (a point emphasised, for example, by
Lord Pearce and Lord Wilberforce in Warner at 304305 and 312,
respectively). However, it should also be noted that the reasoning of the
various law lords (even amongst the majority) did differ. An excellent
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[2008] 1SLR(R) Tan Kiam Peng v PP 17
summary may in fact be found in the UK Law Commissions Report on the
Mental Element in Crime (Law Com No 89, 1978) (Law Commission
Report) at paras 3334, and we therefore do not propose to examine the
various judgments in Warner in detail, save where certain passages might
throw light on the interpretation of the Act. However, it should be noted
that although the majority found that the offence concerned was an
absolute one, it also held that the summing-up by the trial judge to the jury
was wanting. The majority nevertheless proceeded to hold that the evidence
was so strong that no jury properly directed would have acquitted the
accused and therefore dismissed the accuseds appeal, applying the proviso
to s 4(1) of the UK Criminal Appeal Act 1907 (c 23) (as amended by s 4 of
the UK Criminal Appeal Act 1966 (c 31)).
35 One key distinction between the situation in Warner and that under
the Act is that, unlike the 1964 UK Act, the Act does not create absolute
offences. It is true that the Act does lay down (inter alia, in ss 18(1) and
18(2)) presumptions that the accused must rebut on a balance of
probabilities (see below at [60]). However, the situation under the Act is
nevertheless an advance over a situation where (as in Warner) the statutory
offences are absolute in nature (and see per Choo Han Teck J, delivering the
judgment of the court in the Singapore Court of Appeal decision of
Iwuchukwu Amara Tochi v PP [2006] 2 SLR(R) 503 at [9] (Tochi) (see also
at [41] below)). It should, nevertheless, be noted that even in Warner itself,
despite the holding of the majority that s 1 of the 1964 UK Act created an
absolute offence, most of the law lords in the majority did not, in effect, go
so far as to adhere to this particular holding without any qualification
whatsoever (apart from Lord Guest). Indeed, the following view expressed
by Lord Parker CJ in the English Court of Appeal decision of Lockyer v
Gibb [1967] 2 QB 243 (at 248) was clearly endorsed in Warner itself:
In my judgment it is quite clear that a person cannot be said to be in
possession of some article which he or she does not realise is, for
example, in her handbag, in her room, or in some other place over
which she has control. That I should have thought is elementary; if
something were slipped into your basket and you had not the vaguest
notion it was there at all, you could not possibly be said to be in
possession of it. [emphasis added]
36 Further, Lord Pearce, despite endorsing the proposition to the effect
that s 1 of the 1964 UK Act created an absolute offence, did proceed to
observe thus (Warner at 305306):
The situation with regard to containers presents further problems. If a
man is in possession of the contents of a package, prima facie his
possession of the package leads to the strong inference that he is in
possession of its contents. But can this be rebutted by evidence that he
was mistaken as to its contents? As in the case of goods that have been
planted in his pocket without his knowledge, so I do not think that he
is in possession of contents which are quite different in kind from what
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18 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
he believed. Thus the prima facie assumption is discharged if he proves
(or raises a real doubt in the matter) either (a) that he was a servant or
bailee who had no right to open it and no reason to suspect that its
contents were illicit or were drugs or (b) that although he was the
owner he had no knowledge of (including a genuine mistake as to) its
actual contents or of their illicit nature and that he received them
innocently and also that he had had no reasonable opportunity since
receiving the package of acquainting himself with its actual contents.
For a man takes over a package or suitcase at risk as to its contents
being unlawful if he does not immediately examine it (if he is entitled
to do so). As soon as may be he should examine it and if he finds the
contents suspicious reject possession by either throwing them away or
by taking immediate sensible steps for their disposal. [original
emphasis in italics; emphasis added in bold italics]
37 The above observation by Lord Pearce (see also, in similar vein, by the
same law lord at 307308 and by Lord Wilberforce at 312, as well as
Lord Pearces views on Warner itself in the subsequent House of Lords
decision of Sweet v Parsley [1970] AC 132 at 157158; though cf the
interpretation of Lord Pearces judgment in Warner by Michael Hor in
Managing Mens Rea in Singapore (2006) 18 SAcLJ 314, especially at
paras 3043, which, however, is (in turn) to be contrasted with the
observations expressed by Rudi Fortson in the leading UK work, Misuse of
Drugs and Drug Trafficking Offences (Sweet & Maxwell, 4th Ed, 2002)
(Fortson) at para 3-31) was in fact referred to by the Singapore Court of
Criminal Appeal in Chan Chi Pun v PP [1994] 1 SLR(R) 654 (Chan Chi
Pun) (cf also the decision of the Singapore Court of Appeal in Lim Beng
Soon v PP [2000] 3 SLR(R) 213). However, in applying both what it
perceived to be the common law test [emphasis added] under Warner and
the position pursuant to s 18(2) of the Act, the court in Chan Chi Pun
perhaps went, with respect, a little too far. As we shall elaborate in more
detail below, the first port of call in the local context must surely be the
actual language of the relevant provisions of the Act itself. Indeed, in a
decision of this court in Cheng Heng Lee v PP [1998] 3 SLR(R) 747 at [46]
(Cheng Heng Lee), the same observation appeared (in contrast) to be
utilised in the context of rebutting the presumption under s 18(2) of the Act
(cf also another decision of this court in Chou Kooi Pang v PP [1998] 3
SLR(R) 205 at [18][20] as well as the Singapore High Court decision of PP
v Lee Ngin Kiat [1992] 3 SLR(R) 955 at [13][16] (affirmed in Lee Ngin Kiat
v PP [1993] 1 SLR(R) 695 (Lee Ngin Kiat), but without, apparently, any
discussion of this particular issue, simply because counsel for the accused
had conceded that the drugs concerned were in the latters possession)).
38 Whilst still on the key distinction between the Act and the 1964 UK
Act, it would be pertinent to note that at least two of the law lords in
Warner recognised that there might be a need for the enactment of a
statutory provision in the UK context along the lines of s 18(2) of the Act.
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[2008] 1SLR(R) Tan Kiam Peng v PP 19
For example, Lord Reid observed as follows (Warner ([30] supra) at
279280):
So it would be quite sufficient to prove facts from which it could
properly be inferred that the accused knew that he had a prohibited
drug in his possession. That would not lead to an unreasonable result.
In a case like this Parliament, if consulted, might think it right to
transfer the onus of proof so that an accused would have to prove that
he neither knew nor had any reason to suspect that he had a prohibited
drug in his possession. [emphasis added]
39 And in the same case, Lord Pearce observed thus (at 302303):
Thirdly, Parliament may have intended what was described as a half-
way house in the full and able argument by counsel on both sides.
Each acknowledged its possibility and certain obvious advantages, but
neither felt able to give it any very solid support. By this method the
mere physical possession of drugs would be enough to throw on a
defendant the onus of establishing his innocence, and unless he did so
(on a balance of probabilities) he would be convicted. Unfortunately
I do not find the half-way house reconcilable with the speech of
Viscount Sankey L.C. in Woolmingtons case [1935] A.C. 462, 481.
Reluctantly, therefore, I am compelled to the decision that it is not
maintainable. Ultimately the burden of proof is always on the
prosecution unless it has been shifted by any statutory provision.
[emphasis added]
40 More importantly, the same law lord observed, later in his judgment,
as follows (at 307):
It would, I think, be an improvement of a difficult position if
Parliament were to enact that when a person has ownership or physical
possession of drugs he shall be guilty unless he proves on a balance of
probabilities that he was unaware of their nature or had reasonable
excuse for their possession. [emphasis added]
41 It is important to pause at this juncture and note that what was
suggested by Lord Reid as well as Lord Pearce above is, in substance,
already embodied within s 18(2) of the Act itself (interestingly, too, the UK
position is presently governed by s 28 of the Misuse of Drugs Act 1971
(c 38) (the 1971 UK Act), as a result of the invitation of Lord Pearce (see
at [40] above): per Lord Bonomy in the Scottish decision of Salmon v HM
Advocate 1999 SLT 169 at 186, who also observed that [i]n s 28 Parliament
set out defences echoing, to a considerable extent, the views of their
Lordships in Warner about the circumstances which led, or should lead, to
an acquittal on a charge of unlawful possession and reflecting the views of
Lord Pearce about the action which Parliament should take to clarify the
law; see also the English Court of Appeal decision of R v James McNamara
(1988) 87 Cr App R 246 at 251 (McNamara)). Indeed, Lord Pearces
observation (see at [40] above) was referred to by Choo J in Tochi ([35]
supra), thus confirming the point just made. However, any suggestion that
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20 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
the origin of s 18(2) can be traced to this suggestion in Warner is, with
respect, misconceived since (as we shall see below at [64][69]), s 18 had its
statutory analogues much earlier in the local context stretching as far back
as 1927.
42 Returning to Lord Reids observations quoted above (at [38]), the
learned law lord proceeded (contrary to the decision of the remaining
(majority) judges) to hold that the offence prescribed under the 1964 UK
Act was not an absolute one so that, in any event, the accused would be
afforded an opportunity to show that he neither knew nor had any reasons
to suspect that he had a prohibited drug in his possession.
43 Another key point is this: Lord Reid, who (as we have noted)
delivered a powerful dissent, nevertheless proceeded to endorse, first, the
doctrine of wilful blindness, which we shall consider in more detail below
(at [106][132]). Suffice it to state at this relatively preliminary juncture
that wilful blindness is considered, in law, to be the equivalent of actual
knowledge.
44 More importantly, perhaps, even Lord Reid was of the view that it was
unnecessary for the prosecution to prove that the accused knew that he had
the precise drugs concerned in his possession (indeed, this was not,
apparently, what the accused himself had argued for in Warner: see, for
example, at 290 and 300, per Lord Morris of Borth-y-Gest and Lord Guest,
respectively). As the learned law lord observed (Warner ([30] supra)
at 279):
Further it would be pedantic to hold that it must be shown that the
accused knew precisely which drug he had in his possession. Ignorance
of the law is no defence and in fact virtually everyone knows that there
are prohibited drugs. So it would be quite sufficient to prove facts from
which it could properly be inferred that the accused knew that he had a
prohibited drug in his possession. [emphasis added]
The observation embodied in the above quotation is, in fact, of general
import. And it is an important one, to which we shall return later in this
judgment (at [86][87]).
45 In a similar vein, Lord Morris observed thus (Warner at 286):
I think that the notion of having something in ones possession
involves a mental element. It involves in the first place that you know
that you have something in your possession. It does not, however,
involve that you know precisely what it is that you have got. [emphasis
added]
Again, the learned law lord later observed thus (at 289):
The question resolves itself into one as to the nature and extent of the
mental element which is involved in possession as that word is used
in the section now being considered. In my view, in order to establish
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[2008] 1SLR(R) Tan Kiam Peng v PP 21
possession the prosecution must prove that an accused was knowingly
in control of something in circumstances which showed that he was
assenting to being in control of it: they need not prove that in fact he
had actual knowledge of the nature of that which he had. [emphasis
added]
Later on in his judgment, Lord Morris also stated (at 295) that:
[B]efore the prosecution can succeed they must prove that a person
knowingly had in his possession something which in fact was a
prohibited substance. In my view, the prosecution discharged that
onus in this case. Was it, however, for the prosecution to prove that the
appellant knew the nature and quality of that which he had? In my
view, it was not. [emphasis added]
46 And Lord Wilberforce had occasion to observe thus (at 310311):
[I]n addition to physical control, he has, or ought to have imputed to
him the intention to possess, or knowledge that he does possess, what
is in fact a prohibited substance. If he has this intention or knowledge,
it is not additionally necessary that he should know the nature of the
substance. [emphasis added]
The same law lord, referring to the decision of Lockyer v Gibb ([35] supra),
later proceeded to state as follows (at 311):
One can only hold this decision to be wrong if the view is taken that to
constitute possession under this legislation knowledge not merely of
the presence of the thing is required but also knowledge of its attributes
or qualities. But (except perhaps under the old law of larceny) no
definition or theory of possession requires so much, nor does the
language or scheme of the Act postulate that such a degree of knowledge
should exist. I think the line was drawn here at the right point.
[emphasis added]
47 Likewise, Lord Pearce also observed as follows (at 304):
But when a man knows that he physically has an article in his
possession, how far does a mistake as to its essential attributes nullify
the apparent possession? It would be, for instance, quite unreal (and
particularly in such a context as one is here considering) to say that a
man who bought and kept a so-called authentic Rembrandt for years,
never had it in his possession because he later found by X-ray
examination that it was a skilful fake. When one draws a distinction
between a thing and its qualities, one gets involved in philosophic
intricacies which are not very appropriate to a blunt Act of Parliament
intended to curb the drug traffic. [emphasis added]
48 Perhaps more importantly, Lord Pearce proceeded, later on in his
judgment, to observe thus (at 305):
One may, therefore, exclude from the possession intended by the Act
the physical control of articles which have been planted on him
without his knowledge. [see also at [35] above] But how much further is
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22 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
one to go? If one goes to the extreme length of requiring the prosecution
to prove that possession implies a full knowledge of the name and
nature of the drug concerned, the efficacy of the Act is seriously
impaired, since many drug pedlars may in truth be unaware of this. I
think that the term possession is satisfied by a knowledge only of the
existence of the thing itself and not its qualities, and that ignorance or
mistake as to its qualities is not an excuse. This would comply with the
general understanding of the word possess. Though I reasonably
believe the tablets which I possess to be aspirin, yet if they turn out to
be heroin I am in possession of heroin tablets. This would be so I think
even if I believed them to be sweets. It would be otherwise if I believed
them to be something of a wholly different nature. At this point a
question of degree arises as to when a difference in qualities amounts to
a difference in kind. That is a matter for a jury who would probably
decide it sensibly in favour of the genuinely innocent but against the
guilty. [emphasis in italics and additional emphasis in bold italics
added]
49 Indeed, the words in bold italics in the above quotation were applied
by this court in Tan Ah Tee v PP [19791980] SLR(R) 311 (Tan Ah Tee)
(see also the Singapore High Court decision of PP v Tan Siew Lam [2000]
SGHC 161 at [15]). And, in the Singapore High Court decision of Shan Kai
Weng v PP [2004] 1 SLR(R) 57, Yong Pung How CJ observed thus (at [24]):
The position under our law, therefore, is that possession is proven once
the accused knows of the existence of the thing itself. Ignorance or
mistake as to its qualities is no excuse. The appellant knew that the
tablet was in his car. He believed it to be a sleeping pill, which, like the
aspirin of the hypothetical in Warner and Tan Ah Tee, is a drug. As
such, his ignorance as to the qualities of the tablet did not provide him
a defence to the charge of possession, and his contention that he did
not understand the nature of his plea could not stand. [emphasis
added]
50 However, we are of the view that that part of Lord Pearces
observations quoted at [48] above to the effect that if the accused
reasonably believed the tablets he or she possessed to be aspirin but that if
the tablets concerned turned out to be heroin, the accused would still be
assumed to be in possession of heroin tablets even if he or she believed them
to be sweets goes a little too far (see also GD, especially at [33]), and can
be explained on the basis that the learned law lord was of the view that s 1 of
the 1964 UK Act created an absolute offence. Nevertheless, to the extent
that they relate to the general principle to the effect that it is unnecessary for
the accused to know the precise nature of the drug concerned, Lord Pearces
observations are both relevant and helpful. Further, as the learned law lord
himself proceeded to point out, the accused would not be in possession of a
thing if he or she believed it to be something of a wholly different nature
and that [a]t this point a question of degree arises as to whether a
difference in qualities amounts to a difference in kind, which was itself a
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[2008] 1SLR(R) Tan Kiam Peng v PP 23
matter for a jury (see above at [48]). Indeed, this last-mentioned
observation emphasises the very factual nature of the entire inquiry. It is
also important to note that even Lord Reid (who was of the (minority) view
that s 1 of the 1964 Act did not create an absolute offence) expressed a
similar view with respect to the general principle just mentioned (see at [44]
above). In the circumstances, therefore, it might, with respect, have been
preferable, in fact, for this court in Tan Ah Tee to have cited Lord Reids
view instead.
51 This particular aspect of Warner is, as alluded to in the preceding
paragraph and as we shall see (at [87] below), one of general applicability, as
it deals with the concept of possession. However, as already pointed out
above, the central thrust of Warner is quite different from the situation
embodied within the Act (and ss 18(1) and 18(2) thereof in particular).
Hence, apart from this particular aspect of Warner (which we endorse
below (at [86][87])), we are of the view that Warner should play little or no
part in the Singapore jurisprudence in this particular area of the law.
52 Warner was, in fact, given much prominence in Tan Ah Tee ([49]
supra). There has also been a very long line of local cases that have
continued to cite both Tan Ah Tee as well as Warner. Indeed, in this courts
decision in Fun Seong Cheng v PP [1997] 2 SLR(R) 796 (Fun Seong
Cheng), it was observed (at [55]) that [a] long line of cases have since
followed Tan Ah Tee v PP and Warner v Metropolitan Police
Commissioner. This is no exaggeration and it would serve no purpose to
list out the numerous cases in this particular regard. Indeed, there was even
one instance where Warner was applied, with the court holding that no
reliance need be placed on s 18(1) of the Act (see the Singapore Court of
Criminal Appeal decision of Low Kok Wai v PP [1994] 1 SLR(R) 64),
although this particular decision can be explained on the basis that it was
clear, on the facts, that the accused not only had the only key to the car in
which the drugs were found but also knew that the said drugs were in the
car. Looked at in this light, it was clear that there was no need to rely on the
presumption in s 18(1) of the Act as such.
53 What is important in the context of the Act in general and this appeal
in particular is the fact that Tan Ah Tee only endorsed that part of
Lord Pearces judgment in Warner which dealt with the general concept of
possession. It is important to emphasise, once again, that the same approach
is, in fact, also to be found in the judgment of Lord Reid in the same
decision. Indeed, because the learned law lord differed from Lord Pearce
with regard to the interpretation to be accorded to s 1 of the 1964 UK Act, it
is clear beyond peradventure that he was indeed dealing with the general
concept of possession (see also at [44] and, especially, [50] above)). It is also
important to note that the different statutory regimes embodied,
respectively, in both Warner and the Act (as noted above) do not therefore
impact in any way on the views expressed on this general concept.
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24 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
Introduction to section 18(2) of the Act
54 As already mentioned, the principal focus in the present appeal is on
s 18(2) of the Act. However, s 18(2) must be read together with s 18(1) to
the extent that if the accused successfully rebuts the presumption under
s 18(1), the presumption under s 18(2) will not arise (see the Singapore
Court of Appeal decision of Lim Lye Huat Benny v PP [1995] 3 SLR(R) 689
(Lim Lye Huat Benny) at [19]). This follows, in fact, from the language as
well as logic of ss 18(1) and 18(2) themselves. It will therefore be useful to
set out both provisions, which read as follows:
Presumption of possession and knowledge of controlled drugs
18.(1) Any person who is proved to have had in his possession or
custody or under his control
(a) anything containing a controlled drug;
(b) the keys of anything containing a controlled drug;
(c) the keys of any place or premises or any part thereof in
which a controlled drug is found; or
(d) a document of title relating to a controlled drug or any
other document intended for the delivery of a controlled drug,
shall, until the contrary is proved, be presumed to have had that drug
in his possession.
(2) Any person who is proved or presumed to have had a controlled
drug in his possession shall, until the contrary is proved, be presumed
to have known the nature of that drug.
It should, however, also be clarified that if the prosecution actually proves
that the accused is, in fact, in possession of a controlled drug, then the
presumption under s 18(2) of the Act would still operate (unless, of course,
it is proved that the accused has actual knowledge of the nature of the drug,
in which case there would be no need to invoke the presumption under
s 18(2)). In such a situation (viz, one where the prosecution actually proves
that the accused is, in fact, in possession of a controlled drug), there is
simply no need to invoke the presumption under s 18(1) of the Act in the
first instance. This is, in fact, the situation in the present appeal.
55 This is therefore clearly not a situation where mens rea has been
dispensed with by Parliament (the general principles governing such a
situation are set out succinctly by the Judicial Committee of the Privy
Council in Lim Chin Aik v The Queen [1963] AC 160 and Gammon (Hong
Kong) Ltd v Attorney-General of Hong Kong [1985] AC 1, both cases of
which were applied in the Singapore High Court decision of PP v Phua
Keng Tong [19851986] SLR(R) 545, and the latter case of which was
applied in the (also) Singapore High Court decision of PP v Teo Kwang
Kiang [1991] 2 SLR(R) 560). However, because of the policy underlying the
Act as well as the practical difficulty (in the nature of things) for the
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[2008] 1SLR(R) Tan Kiam Peng v PP 25
prosecution to prove possession and knowledge on the part of the accused,
the presumptions in ss 18(1) and 18(2) have been introduced to mitigate
this particular difficulty and ensure not only that the policy underlying the
Act is not frustrated but also that it is fulfilled.
56 At this juncture, we should note that the charge against the appellant
in the present case involves the offence of importing a controlled drug
under s 7 of the Act. Section 7 itself reads as follows:
Import and export of controlled drugs
7. Except as authorised by this Act, it shall be an offence for a
person to import into or export from Singapore a controlled drug.
57 And, in s 2(1) of the Interpretation Act (Cap 1, 2002 Rev Ed),
export and import are, unless there is something in the subject or
context inconsistent with such construction or unless it is therein otherwise
expressly provided, assigned the following respective meanings:
export, with its grammatical variations and cognate expressions,
means to take or cause to be taken out of Singapore by land, sea or air;

import, with its grammatical variations and cognate expressions,

means to bring or cause to be brought into Singapore by land, sea or
air;
58 The sole task of this (indeed, every) court is to give effect to the plain
meaning of the statutory language before it in a manner that is not only
consistent with the underlying policy of the Act but which (wherever
possible) fulfils it (see also at [23] above).
59 However, as we have already pointed out (at [24][25] above), the
court cannot re-write the statutory language in order to achieve these
objectives. The task before the court, simply put, is to interpret the statutory
language in the context of the statute as a whole, bearing in mind the
purposive approach toward statutory interpretation which is now
embodied in s 9A of the Interpretation Act, which reads as follows:
9A.(1) In the interpretation of a provision of a written law, an
interpretation that would promote the purpose or object underlying
the written law (whether that purpose or object is expressly stated in
the written law or not) shall be preferred to an interpretation that
would not promote that purpose or object.

60 As an important general (and preliminary) point, it is important to

note that the local courts have been astute to ensure that the presumptions
under s 18 of the Act are triggered only if the conditions therein have been
strictly proved. However, once the conditions in ss 18(1) and 18(2) have
been satisfied, the accused bears the burden of rebutting the presumptions
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26 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
therein on a balance of probabilities (see, for example, the Singapore Court
of Appeal decisions of Wong Kee Chin v PP [19771978] SLR(R) 628 at
[33]; Tan Ah Tee ([49] supra); PP v Virat Kaewnern [1993] 1 SLR(R) 358;
Van Damme Johannes v PP [1993] 3 SLR(R) 694 at [9] (Van Damme
Johannes); Fok Chia Siong v PP [1999] SGCA 5 at [49]; Wong Soon Lee v
PP [1999] SGCA 42 at [32] (Wong Soon Lee); Anand Naidu a/l Raman v
PP [2000] SGCA 67 at [23]; and Tochi ([35] supra); the Singapore Court of
Criminal Appeal decision of Tan Boon Tat v PP [1992] 1 SLR(R) 698 (Tan
Boon Tat) at [55]; as well as the Singapore High Court decision of PP v
Yeoh Aik Wei [2002] SGHC 225 at [31] (affirmed in Yeoh Aik Wei v PP
[2003] SGCA 4) and GD at [18] and [20]). And whether or not the
presumption has been rebutted is entirely a question of fact (per
Rajendran J, delivering the grounds of judgment of the court in Tan Boon
Tat, supra at [55]). In this regard, the appellate court would pay great
deference to the trial court in so far as the assessment of the credibility of the
accused is concerned (see id as well as the (also) Court of Appeal decision of
Abdul Rauf bin Abdul Rahman v PP [1999] 3 SLR(R) 533 at [29] (Abdul
Rauf) and the Singapore Court of Criminal Appeal decision of Loh Kim
Cheng v PP [1998] 1 SLR(R) 512 at [21]; see also above at [22]).
61 Turning to a consideration of ss 18(1) and 18(2) proper, it is clear, in
our view, that the former deals with the concept of possession (often, but
not invariably, physical in nature: see Van Damme Johannes ([60] supra) at
[8]) whilst the latter deals with the knowledge of the nature of the thing
possessed. The former is also a pre-requisite before the latter can be
considered. Put simply, if no possession on the part of the accused is proved
in the first instance, it is futile indeed, illogical to consider whether there
is knowledge of the nature of the thing possessed (see, for example, the
Singapore High Court decision of PP v Wong Wai Hung [1992] 2 SLR(R)
918, where the second accused was therefore acquitted). This interpretation
is supported not only by the language of ss 18(1) and 18(2) but also by the
heading of s 18 itself, which reads as follows: Presumption of possession
and knowledge of controlled drugs [emphasis added] (see also above at
[54]; and on the utility of headings and marginal notes generally, see the
recent decision of this court in Tee Soon Kay v AG [2007] 3 SLR(R) 133 at
[37][41]). Further, in Fun Seong Cheng, MKarthigesu JA, who delivered
the grounds of judgment of the court, observed ([52] supra at [54]):
Physical control is not enough for the purpose of proving possession.
There needs to be mens rea on the part of the accused.
62 Even more to the point are the following observations by Yong Pung
How CJ in Van Damme Johannes ([60] supra at [9]):
[C]ounsel for the appellant submitted that a person cannot be in
possession of something if he did not know or have knowledge of its
contents. This argument clearly involves a misreading of s 18.
Possession and knowledge are distinct and dealt with separately under
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[2008] 1SLR(R) Tan Kiam Peng v PP 27
s 18(1) and s 18(2) respectively. The initial onus was on the prosecution
to prove possession of anything containing a controlled drug (in this
case, the suitcase), after which the appellant was presumed (a) to have
the drug in his possession; and (b) to know the nature of the controlled
drug. The onus was then on the appellant to rebut the two
presumptions on a balance of probabilities and this argument should
rightly have been dealt with under the second ground of appeal to
which we now turn. [emphasis added]
63 We note, however, that there was no need to invoke the presumption
in s 18(1) of the Act in the present appeal. That is why the focus was on
s 18(2) instead. There was no need to invoke s 18(1) simply because the
appellant himself admitted that he had physical possession of the controlled
drugs in question (see also at [54] above). Indeed, they were strapped to
various parts of his body as briefly described in an earlier part of this
judgment. In any event, s 18(1) of the Act was not intended to cover such
clear-cut situations as that which existed in the present appeal. Looking
closely at the provision itself, it is clear that the presumption as to physical
possession will only be triggered where the accused is proved to have had
in his possession or custody or under his control anything containing a
controlled drug or the key of anything containing a controlled drug or
the keys of any place or premises or any part thereof in which a controlled
drug is found or a document of title relating to a controlled drug or any
other document intended for the delivery of a controlled drug [emphasis
added]. Where, as in the present appeal, the accused has the controlled
drugs strapped directly on his body, he cannot claim ignorance that the
controlled drugs were in his physical possession. However, in the various
situations set out in s 18(1) of the Act, it is indeed possible for the accused
to make such a claim, which is an altogether easy as well as convenient one
to make and for which the presumption exists as a counterpoint in order to
ensure that the policy of the Act is not undermined by such convenient
excuses inasmuch as the accused would have the burden of proof of
rebutting the presumption on a balance of probabilities (see [60] above).
That presumptions such as those contained in s 18(1) of the Act are clearly
justified in principle is a point that is discussed in more detail below (at
[75]).
64 It is interesting, at this juncture, to note that the presumptions in
s 18(1) and 18(2) of the Act are not novel. Indeed, a similar set of
presumptions (also in relation to an offence centring on possession of
controlled drugs) can be found as far back as 1927 in s 17 of the Straits
Settlements Deleterious Drugs Ordinance 1927 (SS Ord No 7 of 1927) (the
1927 Ordinance). Similar offences were to be found in earlier Ordinances
(see, for example, s 5(3) of the Straits Settlements Deleterious Drugs
Ordinance 1907 (SS Ord No 14 of 1907) and s 16 of the (also) Straits
Settlements Deleterious Drugs Ordinance 1910 (SS Ord No 27 of 1910)),
but none contained any presumptions prior to the 1927 Ordinance.
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28 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
Section 17 of the 1927 Ordinance itself read as follows (including the
marginal notes):
[emphasis added]
65 Although the layout of ss 17(2) and 17(3) of the 1927 Ordinance
differs from that contained in ss 18(1) and 18(2) of the Act (reproduced at
[54] above), the overall substance (and, certainly, spirit) of both appear to
be the same. There does not appear to be much by way of legislative
background in so far as s 17 of the 1927 Ordinance is concerned. The
material parts of the Objects and Reasons to the Bill read as follows (see The
Straits Settlements Government Gazette 1927 (11 February 1927) at p 288):
The object of this Bill is to amend the law relating to deleterious drugs
so as to embody in it such of the provisions of the International Opium
Convention signed at Geneva on the 19
th
February, 1925, as are
applicable to the Colony. The principal amendments are the following:

Offences 17.-(1) Any person, other than a person

acting under the relating to directions of a
medical practitioner or veterinary surgeon,
who
(a) is found in possession of; or
(b) is proved to have had possession
of
any deleterious drug shall be guilty of an
offence, unless he is or was at the time of
such possession authorised in that behalf by
a licence under this Ordinance.
Presumptions (2) Any person who is proved to have had in
his possession or under his control any thing
whatsoever containing any deleterious drug
shall, until the contrary is proved, be deemed
to have been in possession of such drug, and
shall, until the contrary is proved, be deemed
to have known the nature of such drug.
(3) Any person who is proved to have had in
his possession or under his control or subject
to his order any document of title relating to
any thing whatsoever containing any
deleterious drug shall, until the contrary is
proved, be deemed to have been in possession
of such drug, and shall, until the contrary is
proved, be deemed to have known the nature
of such drug.
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[2008] 1SLR(R) Tan Kiam Peng v PP 29
4. A person who has in his possession any thing containing a
deleterious drug, or any document of title relating to any thing
containing a deleterious drug, is presumed to know that nature of such
drug. (clause 17).
[emphasis added]
66 Indeed, the proposed clause 17 referred to in the preceding paragraph
was clearly new, as evidenced by the following observation by the then
Attorney-General during the first reading of the Deleterious Drugs Bill (see
Proceedings of the Legislative Council of the Straits Settlements, 1927,
Shorthand Report (Monday, 7 February 1927) at p B11):
In clause 17, (2) and (3) are two new presumptions: any person who has
in his possession or under his control any thing containing a
deleterious drug or a document of title relating to any thing containing
a deleterious drug shall be deemed to be in possession of the drug and
to know its nature. [emphasis added]
67 Significantly, this particular clause was in fact subsequently passed
without amendment (see the second reading of the Deleterious Drugs Bill at
Proceedings of the Legislative Council of the Straits Settlements, 1927,
Shorthand Report (Monday, 21 March 1927) at p B44).
68 The above presumptions were, in fact, later consolidated under a
separate section in the Singapore Dangerous Drugs Ordinance 1951
(Ordinance No 7 of 1951) in particular, ss 37(d) and 37(e), which read as
follows (the marginal note of which simply states, Presumptions):
37. In all proceedings under this Ordinance or any regulation made
thereunder

(d) any person who is found to have had in his custody or under
his control any dangerous drug shall, until the contrary is proved,
be deemed to have been in possession of such drug and shall, until
the contrary is proved, be deemed to have known the nature of
such drug;
(e) any person who is found to have had in his possession or under
his control or subject to his order any document of title relating to
any dangerous drug shall, until the contrary is proved, be deemed
to have known the nature of such drug;

[emphasis added]
69 The important point to reiterate is that ss 18(1) and 18(2) of the Act
are therefore by no means novel, having had antecedents going as far back
as 1927. More importantly, as a consequence, the popular view to the
effect that the presumptions in ss 18(1) and 18(2) of the Act were motivated
by the decision in Warner (([30] supra); see also GD at [15]) is, with respect,
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30 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
misconceived. All these legislative antecedents, to re-emphasise an
important point, antedated the decision in Warner. This is not to state that
the general principles as well as approaches in Warner are necessarily
irrelevant. However, it is imperative to emphasise that the first and
foremost guidance must come from the actual language of the Act itself
(and, in particular, in the context of the present proceedings, s 18(2)).
70 In this regard, in the Singapore Privy Council decision of Ong Ah
Chuan v PP [19791980] SLR(R) 710 (which was also referred to in the GD
at [17]), Lord Diplock, who delivered the judgment of the Board, observed
thus (at [28]):
In a crime of specific intent where the difference between it and some
lesser offence is the particular purpose with which an act, in itself
unlawful, was done, in their Lordships view it borders on the fanciful
to suggest that a law offends against some fundamental rule of natural
justice because it provides that upon the Prosecutions proving that
certain acts consistent with that purpose and in themselves unlawful
were done by the accused, the court shall infer that they were in fact
done for that purpose unless there is evidence adduced which on the
balance of probabilities suffices to displace the inference. The purpose
with which he did an act is peculiarly within the knowledge of the
accused. There is nothing unfair in requiring him to satisfy the court that
he did the acts for some less heinous purpose if such be the fact.
Presumptions of this kind are a common feature of modern legislation
concerning the possession and use of things that present danger to society
like addictive drugs, explosives, arms and ammunition. [emphasis
added]
71 Lest it be thought that this is a uniquely Singaporean approach, the
same view was also acknowledged (albeit in the context of the then UK
drugs legislation) by none other than one of the most accomplished and
famous common law scholars of the twentieth century
Prof A L Goodhart. In his influential article, Possession of Drugs and
Absolute Liability (1968) 84 LQR 382, Prof Goodhart examined the
holdings and implications of Warner ([30] supra). Indeed, he described
Warner as probably the most interesting case in many years that has been
decided on the subject of possession (see ibid at 383). More importantly,
the learned author referred to the rationale underlying the approach
adopted by the majority in Warner (ibid at 386):
[I]t is essential to note that if the physical possession of an
unauthorised drug does not create absolute liability, then an addict or a
drug pedlar may be able to persuade a jury that there was a possibility
that the tablets had got into his possession by accident, or had been
planted on him, or that he had been told by his supplier that they were
an innocent remedy. The inevitable result would be that the
enforcement of the law would become far more difficult. It must be
remembered that vast sums of money are involved in the drug trade. It
costs very little to manufacture these drugs, but the expense of getting
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[2008] 1SLR(R) Tan Kiam Peng v PP 31
them distributed is very large because the distributors, both the large
and the small ones, are not willing to face the chance of imprisonment
unless the profits they make are commensurate with the risk. The
traffickers will, therefore, take every possible step to protect their agents
against a possible conviction. Is it unreasonable in these circumstances
to suggest that [the UK] Parliament did intend to provide that the
physical possession of unauthorised drugs, which it is comparatively
easy to prove, is absolute proof of guilt, even at the faint risk that the
possessor was morally innocent, especially as evidence concerning this
moral innocence could be given when the question of sentence was
under consideration? Moreover, in how many instances is it likely that
drugs will be planted on an innocent man? [emphasis added]
72 We have, of course, seen (at [35] above) that, unlike the 1964 UK Act,
ss 18(1) and 18(2) do not, in fact, adopt an absolute approach. However, the
policy factors enunciated by Prof Goodhart in the above quotation are no
less relevant to the Singapore context or the context of any other country
for that matter in so far as this particular sphere of the law is concerned.
73 Prof Goodhart also commented on the suggestion for legislative
reform by Lord Pearce (above at [40]) that would result in the statutory
equivalent of ss 18(1) and 18(2) of the Act and, in particular, on one
possible objection to it, as follows ([71] supra at 389):
The first objection, which is a minor one, is that the suggested
provision seems to be in conflict with the golden rule as stated in the
Woolmington case [[1935] AC 462] that throughout the web of the
English criminal law one golden thread is always to be seen, that it is
the duty of the prosecution to prove the prisoners guilt. The answer to
this objection is that no rule is so golden that there cannot be an
exception to it if justice requires it. After all, the function of the
Woolmington rule is to protect an accused person, so that an exception
to it, which may benefit him, has much to be said in its favour.
[emphasis added]
[Significantly, the last sentence is a reference to the mitigation of the
absolute approach under the 1964 UK Act, which is, however, not
present in ss 18(1) and 18(2) of the Act.]
74 It is also noteworthy that the UK Law Commission itself has
considered the arguments both for as well as against having statutory
presumptions in the context of the mental element in crime: see the Law
Commission Report ([34] supra, especially at paras 7985).
75 There has, however, been some dissatisfaction expressed with regard
to the presumptions contained in the Act in general and (in the context of
the present proceedings) ss 18(1) and 18(2) thereof in particular (see, for
example, Michael Hor, Misuse of Drugs and Aberrations in the Criminal
Law (2001) 13 SAcLJ 54). The general thrust of such dissatisfaction is that
the concept of mens rea has been undermined. In a practical context, it is
true that the accused bears the burden of rebutting applicable presumptions
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32 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
under the Act. However, that is not only what the relevant provisions of the
Act require. The Act is also undergirded by twin policies that are
inextricably connected with each other ensuring that the general policy of
the Act is not undermined as well as simultaneously ensuring that (unlike
the UK legislation at issue in Warner ([30] supra)) the concept of mens rea
is still retained. The Act is structured in such a manner as to ensure that
truly innocent persons are (in so far as the issue of possession is concerned)
able to rebut the initial presumption (in s 18(1)) without any difficulties.
However, this structure also ensures that accused who are truly guilty under
the relevant provisions of the Act are not given carte blanche to deny
possession by mere assertion, without more, hence undermining the
general policy of the Act itself. As we shall elaborate in the conclusion to
this judgment, the inimical effects that would result from a frustration of
the general policy of the Act generate not only social ills and tragedy but
also simultaneously violate the individual rights of those who are adversely
and directly impacted by the availability (and, hence purchase as well as
consumption) of controlled drugs on the open market (including, in many
instances, innocent members of their respective families as well). These
very important aspects have generally been downplayed by critics of the Act
who, at best, mention them in passing without more only to revert to the
alleged contravention of the rights of the accused against whom (in their
view) no presumptions should operate against. However, these critics never
directly address the issue as to what the reality would be if no presumptions
were in operation a reality that even Prof Goodhart acknowledged in the
UK context (see at [71] above). In any event, the courts must observe these
considerations of policy enacted by the Legislature by applying the law
objectively to the facts at hand. That having been said, we are of the view
that these considerations of policy are not only valid and practical but also
(as we have already mentioned) protect the precious individual rights of
others in society. A purely theoretical discourse which tends to abstract
itself from the realities and adopts a one-sided approach (which, at bottom,
favours only the accused) tends to not only implode by its very abstraction
but also ignores the fact that, in an imperfect and complex world, there is
necessarily a whole compendium of rights, all of which must be balanced.
Looked at in this light, any theoretical discourse which tends to favour only
one conclusion whilst ignoring other approaches as well as considerations
and (worse still) other wider consequences, gives, with respect, a distorted
view (see also Chan Sek Keong, The Criminal Process The Singapore
Model (1996) 17 Sing L Rev 433, especially at 494498). However, such
discourse is nevertheless important as well as helpful in reminding us that
we must also never forget the rights of the accused and that, where the context
and facts warrant it, the presumptions should be rebutted accordingly.
However, to argue that the presumptions should be jettisoned altogether
just because they might (potentially) operate against an accused not only
ignores the reality of things but also throws out the baby together with the
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[2008] 1SLR(R) Tan Kiam Peng v PP 33
bathwater. To put it simply, all lives and rights are precious. To this end, the
Legislature has put in place a structure that balances the rights of accused
persons on the one hand and the rights of persons in the wider society on
the other.
The issue
76 Indeed, this appears to be, to the best of our knowledge, one of the
very rare occasions when it has been sought to argue, in the context of
s 18(2) of the Act and in the most specific of fashions, that although the
accused did in fact know that he was in possession of a controlled drug, he
did not know that he was in possession of the specific drug in question. A
similar argument was made in the Singapore Court of Appeal decision of
Wong Soon Lee ([60] supra). In that case, the accused stated that he did not
know that the drugs he was carrying were heroin and that he had believed
that they were less serious drugs for which he, if convicted, would at the
most have to pay a fine only. The trial judge found, on the facts, that the
accused actually knew that he was in possession of heroin. The Court of
Appeal affirmed the trial judges decision, but appeared to rely upon the
doctrine of wilful blindness instead. Yong Pung How CJ, who delivered the
grounds of judgment of the court, observed thus (at [45]):
Having considered all the arguments canvassed, we were unable to
accept the appellants contention that the trial judge erred in coming to
the decision he came to. First, the circumstances in which the appellant
received the drugs were so suspect that any reasonable man would have
gone one step further and ascertained for himself the precise nature of
the drugs. This the appellant had failed to do. The only reason why he
failed to do so was because he either knew the precise nature of the drugs
or he did not care to know. If the appellant chose to turn a blind eye and
merely relied on the assurance given by Ah Kee, he would not be able to
rebut the statutory presumption of knowledge. [emphasis added]
It is also worthy to note that, in Wong Soon Lee, the Court of Appeal
emphasised the trial judges findings of fact, especially with regard to the
accuseds credibility. This is of course an obvious point but is, more often
than not, of special importance owing to the very factual nature of an
accuseds attempts to rebut the presumptions under the Act and, on
occasion, may even be crucial (see, for example, the Singapore Court of
Appeal decisions of Lau Boon Huat v PP [1997] 2 SLR(R) 534 and PP v Ko
Mun Cheung [1990] 1 SLR(R) 226 (affirmed in Ko Mun Cheung v PP [1992]
1 SLR(R) 887 (Ko Mun Cheung)). While we do not exclude the possibility
that there could well be a case where an accused does not have knowledge of
the nature of the drugs, we note the observations made by Yong Pung
How CJ in Wong Soon Lee where he said thus ([60] supra at [48]):
The difficulty which the court faces in such situations is that the defence
of lack of knowledge of the precise nature of the drugs is all too often
raised by drug couriers. It is very hard for the court to believe, as in this
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34 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
case, that the appellant had no knowledge that the drugs were heroin
on the following grounds. He had agreed to deliver something which
he knew were illegal drugs to someone in Singapore, he did not know
the identity of the recipient, he received these drugs in a dark alley and
he was promised RM$1,000.00 in return for his trouble. [emphasis
added]
77 The above observations, with respect, generate some ambiguity. On
one reading, the court appears to be suggesting that the argument that
knowledge of the precise nature of the drugs is necessary is one that is to be
frowned upon as it will be raised by accused persons both often as well as
indiscriminately. However, on another reading, the court did refer to the
accuseds knowledge of the precise drug in the case itself (viz, heroin).
Nevertheless this reference is not conclusive simply because, as noted
above, the decision of the court in this case turned on the fact that the
accused had actual knowledge that the drug was heroin in any event. Of
some ambiguity, too, with respect to this particular issue is the decision of
this court in Lim Lye Huat Benny ([54] supra). We note, however, that
neither party to this appeal canvassed this ambiguity. However, because this
ambiguity raises a threshold interpretive issue, we pause to deal with it
before dealing with the further issue as to the type of knowledge required
under s 18(2) of the Act as well as whether or not the appellant has, in the
circumstances, rebutted the presumption embodied within s 18(2) itself.
78 Returning to the threshold interpretive issue that arises from a
reading of s 18(2) of the Act itself, there are, in our view, at least two
possible interpretations open to the court.
Two possible interpretations
(a) Introduction
79 As already mentioned, there are two possible interpretations.
80 The first possible interpretation is that the reference to knowledge in
s 18(2) of the Act is to knowledge that the drug concerned is a controlled
drug.
81 The second is the interpretation contended for by the appellant in the
present proceedings and referred to at the outset of the present part of this
judgment: That the reference to knowledge in s 18(2) of the Act is to
knowledge that the drug concerned is not only a controlled drug but also the
specific drug which it turns out the accused was in possession of. It should
be noted that, in the court below, this particular interpretation was assumed
to be the correct one, and the Judge certainly proceeded to render his
decision on this basis (see GD, especially at [36]). With respect, however,
the situation (as we shall see) is not as clear-cut as the Judge assumed it to
be.
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[2008] 1SLR(R) Tan Kiam Peng v PP 35
82 It would be appropriate to consider the arguments both for as well as
against each of these interpretations.
(b) The first interpretation
83 There are a number of arguments in favour of the first interpretation
that knowledge in s 18(2) of the Act is only a reference to knowledge that
the drug concerned is a controlled drug.
84 However, looking, first, at the literal language of s 18(2) itself
(reproduced above at [19] and [54]), it appears, at first blush, that the
second alternative must prevail. After all, the reference in that provision is
to knowledge of the nature of that drug.
85 Let us, however, now turn to the case law which, as we shall see,
supports the first interpretation especially when viewed in the context of
the underlying policy of the Act itself.
86 In this courts decision in Fun Seong Cheng ([52] supra), the following
passage from Lord Pearces judgment in Warner ([30] supra at 305) was
cited (at [54]):
One may, therefore, exclude from the possession intended by the Act
the physical control of articles which have been planted on him
without his knowledge. But how much further is one to go? If one goes to
the extreme length of requiring the prosecution to prove that possession
implies a full knowledge of the name and nature of the drug concerned,
the efficacy of the Act is seriously impaired, since many drug pedlars may
in truth be unaware of this. I think that the term possession is satisfied
by a knowledge only of the existence of the thing itself and not its
qualities [emphasis added]
87 The above observations by Lord Pearce, cited and adopted by this
court in Fun Seong Cheng, clearly exclude the need by the prosecution to
prove that the accused knew of the precise nature of the drug; the
prosecution need only prove that the accused knew that the drug is (in the
Singapore context) a controlled drug. This would, in fact, be an appropriate
juncture to emphasise that this basic approach was not only embodied
within the quotation above but generally within Warner itself a point
which emerges from our analysis of Warner above (at [44][48] and [50]).
Indeed, the court in Fun Seong Cheng proceeded to point out ([52] supra at
[55]) that this particular meaning of possession (enunciated by, inter alia,
Lord Pearce in Warner) had in fact been adopted by this court as well in the
earlier decision of Tan Ah Tee ([49] supra; see also the decision of this court
in Gulam bin Notan Mohd Shariff Jamalddin v PP [1999] 1 SLR(R) 498 at
[66]). Tan Ah Tee is, in fact, a seminal decision where the court cited, in
addition to the observations quoted above, in extenso from the judgment of
Lord Pearce in Warner. As we have already emphasised (above at
[50][52]), to the extent that the court in Warner was dealing with the
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36 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
general concept of possession, then that approach (adopted, as we have just
seen, in Tan Ah Tee as well as other Singapore decisions) clearly supports
the view that s 18(2) does not refer to the specific drug in question but,
rather, simply to controlled drugs generally. Indeed, Lord Pearces views in
Warner (quoted above at [48]) find a similar expression in Lord Guests
observations in the same case, as follows (([30] supra) at 301):
If the correct interpretation of section 1 [of the 1964 UK Act] is that the
prosecution are required to prove knowledge by the accused of the
existence of the substance this will be, in my view, a drug pedlars
charter in which a successful prosecution will be well-nigh impossible in
the case of the trafficker who conceals the drugs and on questioning
remains silent or at any rate refuses to disclose the origin of the drug.
If, therefore, this is not an absolute offence the prosecution will, in my
view, require to establish knowledge by the accused not only of possession
of the actual substance but also knowledge of the nature of the substance,
namely, that it is a prohibited drug under the Act. This would, in my
view, lead to wide-scale evasion of the Act. [emphasis added]
Interestingly and perhaps even significantly, this particular approach
towards the concept of possession has apparently been retained in the UK
context, despite the presence of a quite different statutory regime to that
which existed at the time Warner was decided: see, for example, the English
Court of Appeal decisions of McNamara ([41] supra) at 251252; R v
Gareth Edmund Lewis (1988) 87 Cr App R 270 at 276 and John A Leeson v R
[1999] EWCA Crim2176 (Leeson); as well as the House of Lords
decisions of R v Boyesen [1982] AC 768 at 773774 and Regina v Lambert
[2002] 2 AC 545, especially at [16], [56][59], [61][71], [120][123] and
[126] (cf also s 28(3)(a) of the 1971 UK Act itself as well as Fortson ([37]
supra, especially at paras 3-673-76) and Robert Ribeiro & John Perry,
Possession and Section 28 of the Misuse of Drugs Act 1971 [1979] Crim
LR 90, especially at 100101).
88 To summarise the general point at issue here, adoption of the first
interpretation is consistent with the general policy underlying the Act. In
contrast, adoption of the second interpretation will tend to undermine the
general policy of the Act. Take, for example, the facts of this very appeal.
Put simply, was it the intention of the Legislature that it is sufficient if the
prosecution proves that the accused knew that he was in possession of a
controlled drug or must it go further and prove that the accused knew that
it was a specific type of controlled drug (in this case, heroin)? The fact that
s 18(2) of the Act is required demonstrates how difficult it is for the
prosecution to prove knowledge on the part of the accused for, indeed, it is
all too easy for an accused to simply assert that he or she did not know that
what he or she was carrying contained a controlled drug, let alone a specific
controlled drug. One approach that Parliament could have adopted to
obviate this problem was to have simply made all offences under the Act
absolute ones which did not require proof of mens rea. This was, according
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[2008] 1SLR(R) Tan Kiam Peng v PP 37
to the majority of the House in Warner, precisely what the UK Parliament
did in so far as the 1964 UK Act was concerned. As we have already pointed
out, the Singapore Parliament did not adopt such an extreme approach.
However, to now interpret s 18(2) of the Act as requiring knowledge on the
part of the accused of the specific type of controlled drug in question is, in
substance and effect, to swing to the other extreme.
89 Indeed, looking closely at the various offences under the Act itself, it
will be seen that all of them only refer to the offence concerned in relation
to a controlled drug. It is of course true that, depending on the specific type
of controlled drug concerned, the punishment (under the Second Schedule
of the Act) would differ and drastically at that. However, the fact that the
substantive offences themselves do not make any reference to specific drugs
but, rather, to controlled drugs generally supports the first interpretation (cf
also Leeson ([87] supra), interpreting s 5(3) of the 1971 UK Act). Indeed,
the strongest evidence in support of the first interpretation can be found in
the general scheme of the Act itself. First, as just stated, the substantive
offences under the Act do not make any reference to any specific drugs but
only to controlled drugs, with a controlled drug defined under s 2 of the
Act to mean any substance or product which is for the time being specified
in Parts I, II or III of the First Schedule or anything that contains any such
substance or product. Second, the punishments for offences under the Act
are referred to in s 33 and the Second Schedule. To ascertain the
punishment for the offence committed by the accused, one looks under the
first column. Then one looks across the schedule for the specific offence or
type and quantity of the drug involved under the second column. The
punishment for the offence committed by the accused depends in large part
on whether the controlled drug has been classified as a Class A drug,
Class B drug, Class C drug, or is an offence for which the punishment will
vary depending on the quantity of the controlled drug with which the
accused was charged. The fact that the punishment concerned would differ
according to the specific type of controlled drug concerned is a logically
separate issue. Indeed, it has not been argued that an offence concerning a
drug which carries the death penalty (which punishment, incidentally, was
introduced after s 18(2) had been enacted in the original Act) should be
treated more leniently than the same offence concerning a drug which
carries a less severe criminal penalty. This is plainly correct, lest inequality
of treatment ensue as a result of such an approach. Is it then correct to argue
that because there may be harsher punishments meted out under law
depending on the type of controlled drug in question, an approach should
be adopted towards s 18(2) of the Act which would tend to undermine the
general policy of the Act itself? As we point out below (at [91]), however,
the possibility of harsher punishments may, albeit in another sense,
nevertheless be a relevant consideration and supports the second
interpretation to which our attention must now turn.
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38 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
(c) The second interpretation
90 As already mentioned above, the key argument in favour of the
second interpretation (that the reference to knowledge in s 18(2) of the Act
is to knowledge that the drug concerned is not only a controlled drug but is
also the specific drug which it turns out the accused was in possession of) is
the literal wording of s 18(2) itself. However, as we have also seen, the literal
wording of this provision is also (at least arguably) consistent with a
contrary interpretation (see generally above at [83][89]). More
importantly, we have also referred to the fact that the second interpretation
would tend to undermine the general policy of the Act itself.
91 In summary, it would appear that there are fewer arguments that
support the second interpretation. The fact that an accused charged under
the Act might receive very harsh punishments is, in and of itself, not
conclusive. However, it does not thereby follow that this particular fact is
wholly irrelevant. What is of direct relevance for the purposes of the present
issue is this: That where the possible punishments are harsh and may even
result in the imposition of the death penalty, the fact that an ambiguity in
the statutory language exists (thus giving rise to these two possible
interpretations) does tend to suggest that the benefit of the doubt ought to
be given to the accused in the light of the fact that adoption of the first
interpretation would tend, on balance, to work against him or her (cf also
GD at [37]). Indeed, the present appeal is precisely one such instance. In
this regard, it is important to note that the very strict approach in Warner,
albeit general in nature, was adopted in the context of punishments that
were less harsh than those under the Act, and which certainly did not
include the death penalty. In our view, this particular argument appears to
be the strongest in so far as support for the second interpretation is
concerned. Indeed, it might even be argued that there is no ambiguity in the
statutory language and that the literal language is, instead and in addition to
the argument just mentioned, the strongest argument in favour of the
second interpretation. We also pause to observe that there has been, to the
best of our knowledge, no local decision that has in fact adopted the first
interpretation.
(d) Conclusion
92 Unfortunately, no detailed argument with respect to which of these
two interpretations was to be preferred was proffered by counsel before this
court.
93 In the circumstances, we cannot and ought not to express a
definitive conclusion. This being the case, and in fairness to the appellant,
our analysis and decision will proceed on the footing that the second
interpretation applies (which interpretation in fact constituted the nub of
his argument before this court).
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[2008] 1SLR(R) Tan Kiam Peng v PP 39
94 Indeed, it is important to note that had we accepted the first
interpretation as being the conclusive one to adopt, that would, in the
nature of things, have concluded the present appeal. It will be recalled that
the appellant knew that he was in possession of a controlled drug, although
he had argued that he did not know that it was the precise or specific
controlled drug which he was in fact carrying, viz, heroin. Hence, since the
first interpretation entails that the reference to knowledge in s 18(2) of the
Act is to knowledge that the drug concerned is a controlled drug only, and
the appellant in the present proceedings had actual knowledge that he was
in possession of a controlled drug, his appeal would necessarily have failed if
the first interpretation was adopted.
95 However, given the specific language of s 18(2) of the Act, the need
(given the extreme penalties prescribed by the Act) to resolve any
ambiguities in interpretation (if they exist) in favour of the accused, as well
as the fact that no case has (to the best of our knowledge) adopted the first
interpretation, it would appear, in our view, that (whilst not expressing a
conclusive view in the absence of detailed argument) the second
interpretation appears to be the more persuasive one and (as pointed out at
[93] above) will in fact be adopted in the present appeal. It is, nevertheless,
important to note that it would be necessary to consider the further
question as to whether, on the second interpretation, the appellant in the
present proceedings had knowledge that what he was in possession of was
heroin. This raises, in turn, a further issue, which would apply equally to the
first interpretation what is the nature of the knowledge required under
s 18(2). We turn now to consider this particular issue. However, before
proceeding to do so, it should be noted that if it is actually proven, on the
facts of this particular case, that the appellant had actual knowledge that the
drugs he was carrying were not only controlled drugs within the meaning of
the Act but also that they contained heroin, then the presumption under
s 18(2) of the Act need not even be invoked in the first instance.
The issue of knowledge
(a) The issue stated
96 The answer to the question posed in the preceding paragraph turns
on the interpretation of the meaning of the word known in s 18(2) of the
Act. In other words, is the accused required to prove, on a balance of
probabilities (see generally above at [60]), that he or she did not have actual
knowledge of the nature of the drug concerned, or is the accused required
to go further and prove (once again, on a balance of probabilities) that he or
she did not have constructive knowledge of the nature of the drug
concerned?
97 The latter requirement (viz, that of constructive knowledge) is more
onerous in so far as the accused is concerned simply because the accused
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40 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
would have to prove that he or she not only did not have actual knowledge
of the nature of the drug concerned but also that he or she ought not, as a
reasonable person, to have known of the nature of the drug concerned. The
Judge did not accept such a requirement. However, by way of a preliminary
observation, we would point out that the concept of constructive
knowledge ought to be clearly distinguished from the doctrine of wilful
blindness, which is the legal equivalent of actual knowledge (cf also per
Willes J in the English Court of Criminal Appeal decision of R v William
Sleep (1861) CLC 472 at 480). Indeed, as we point out below, the Judge
himself accepts that wilful blindness constitutes (in the eyes of the law)
actual knowledge as well.
98 The Judge did not, strictly speaking, need to deal with the issue set out
in the preceding paragraph as he had (as already noted above) found that
the appellant possessed actual knowledge of the drug he was transporting or
was at least wilfully blind to the fact that he was transporting the said drug
(which wilful blindness was tantamount to actual knowledge) (see, for
example, GD at [55] and [65]). In the circumstances, therefore, there was
no need to even invoke the presumption in s 18(2) of the Act in the first
instance. To put it simply, the appellant would not even be needed to rebut
the presumption that he had actual knowledge of the nature of the drug
because, on the evidence, it was clear that he had actual knowledge of the
nature of the drug.
99 The Judge nevertheless proceeded to consider the interpretation of
s 18(2) in more general terms. Strictly speaking, the Judges observations in
this regard are obiter dicta. However, they are no less important or
significant from a legal as well as a practical perspective because of this.
100 Unfortunately, although counsel for the appellant, Mr Rengarajoo,
appeared (not surprisingly, perhaps) to support the Judges (albeit obiter)
approach, counsel for the respondent, Mr David Khoo, stated that the
prosecution was not taking a definite position on this particular issue in the
present appeal. However, because the issue is an extremely fundamental
one which the Judge took pains to analyse as well as expound upon, it
would be remiss of us if we did not consider it. We would point out, at this
juncture, however, that what is often perceived to be constructive (as
opposed to actual) knowledge might (as we shall see at [132] below) be
actual knowledge that arises from the application of the doctrine of wilful
blindness a doctrine which the Judge himself accepts as constituting actual
knowledge. Bearing this important observation in mind, we turn now to an
analysis of s 18(2) of the Act in general and the knowledge required under it
in particular.
(b) Analysis
101 The Judge, in commencing his analysis of the issue of knowledge in
the context of s 18(2) of the Act, began by considering the famous (or
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[2008] 1SLR(R) Tan Kiam Peng v PP 41
infamous, depending on the perspective one takes) observations on the five
levels of knowledge enunciated by Peter Gibson J (as he then was) in the
English High Court decision of Baden, Delvaux and Lecuit v Socit
Generale pour Favoriser le Dveloppement du Commerce et lIndustrie en
France SA [1983] BCLC 325 (Baden), as follows (at [250]):
What types of knowledge are relevant for the purposes of constructive
trusteeship? Counsel for the plaintiff (Mr Price) submits that
knowledge can comprise any one of five different mental states which
he described as follows: (i) actual knowledge; (ii) wilfully shutting ones
eyes to the obvious; (iii) wilfully and recklessly failing to make such
inquiries as an honest and reasonable man would make; (iv) knowledge
of circumstances which would indicate the facts to an honest and
reasonable man; (v) knowledge of circumstances which would put an
honest and reasonable man on inquiry. More accurately, apart from
actual knowledge they are formulations of the circumstances which
may lead the court to impute knowledge of the facts to the alleged
constructive trustee even though he lacked actual knowledge of those
facts. Thus the court will treat a person as having constructive
knowledge of the facts if he wilfully shuts his eyes to the relevant facts
which would be obvious if he opened his eyes, such constructive
knowledge being usually termed (though by a metaphor of historical
inaccuracy) Nelsonian knowledge. [emphasis added]
102 The Judge pertinently observed that the view of Peter Gibson J just
quoted had been severely criticised in the context of the law relating to
constructive trusts and, indeed, had been abandoned in so far as the specific
issue of knowing assistance (as opposed to knowing receipt) was concerned
(for developments in the context of knowing receipt, see, for example,
Jill E Martin, Hanbury & Martin Modern Equity (17th Ed, Sweet &
Maxwell, 2005), especially at paras 12-01612-019 and Hayton and
Marshall Commentary and Cases on the Law of Trusts and Equitable
Remedies (Sweet & Maxwell, 2005, 12th Ed by David Hayton & Charles
Mitchell), especially at paras 11-2111-27; cf also the observations in the
recent House of Lords decision of Criterion Properties plc v Statford UK
Properties LLC [2004] 1 WLR 1846). This abandonment was, in fact,
effected by the Judicial Committee of the Privy Council in Royal Brunei
Airlines Sdn Bhd v Philip Tan Kok Ming [1995] 2 AC 378 (Royal Brunei
Airlines) (noted by Hans Tjio, No Stranger to Unconscionability [2001]
JBL 299; see also GD at [22]). Indeed, as we point out below, this
abandonment as well as subsequent developments are not really germane to
the issues before us in the present appeal. This is not unfortunate as the
subsequent developments in this particular area of the law relating to
constructive trusts have been, to say the least, rather complex (see, for
example, the House of Lords decision in Twinsectra Ltd v Yardley [2002]
2 AC 164 (Twinsectra) (noted by T MYeo and HTjio, Knowing What Is
Dishonesty (2002) 118 LQR 502); the Privy Council decision of Barlow
Clowes International Ltd v Eurotrust International Ltd [2006] 1 All ER 333
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42 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
(noted by T MYeo, Dishonest Assistance: a Restatement from the Privy
Council (2006) 122 LQR 171); and the English High Court decisions of
Abou-Rahmah v Abacha [2006] 1 All ER (Comm) 247 (affirmed recently by
the English Court of Appeal in Abou-Rahmah v Abacha [2007]
1 All ER (Comm) 827) and Attorney General of Zambia v Meer Care &
Desai [2007] EWHC 952 (Ch)). Indeed, the entire area of law as a whole has
been and continues to be rife with conceptual as well as practical
difficulties (see, for example, the perceptive accounts in Charles Harpum,
The Stranger as Constructive Trustee (Part I) (1986) 102 LQR 114
(Part II, dealing, in the main, with knowing receipt was published in (1986)
102 LQR 267) and Simon Gardner, Knowing Assistance and Knowing
Receipt: Taking Stock (1996) 112 LQR 56). Significantly, though, the issue
of dishonesty may be closely related to the doctrine of wilful blindness (as is
evidenced from the discussion in both Royal Brunei Airlines as well as
Twinsectra). The doctrine of wilful blindness is an important one in the
present context and will, in fact, be dealt with in more detail below (see
generally at [106][128]).
103 Turning, now, to the issue of actual knowledge, it has been described
by Yong Pung How CJ, in the Singapore High Court decision of PP v Koo
Pui Fong [1996] 1 SLR(R) 734 (Koo Pui Fong) thus (at [14]):
I think that it would be reasonable to say that a person knows a
certain fact if he is aware that it exists or is almost certain that it exists
or will exist or occur. Thus knowledge entails a high degree of
certainty.
104 The practical reality, however, is, as Yong CJ put it in Koo Pui Fong,
that [o]f course, we would never have the benefit of going into the mind of
another person to ascertain his knowledge and in every case, knowledge is a
fact that has to be inferred from the circumstances (([103] supra) at [14];
see also the Singapore Court of Appeal decision of Tay Kah Tiang v PP
[2001] 1 SLR(R) 577 (Tay Kah Tiang) at [34]). Likewise, a finding of
wilful blindness is solely dependent on the relevant inferences to be drawn
by the trial judge from all the facts and circumstances of the particular case,
giving due weight, where necessary, to the credibility of the witnesses (per
Abdul Malik Ishak J in the Malaysian High Court decision of Public
Prosecutor v Tan Kok An [1996] 1 MLJ 89 at 101; see also per
Lord Esher MR in the English Court of Appeal decision of The English and
Scottish Mercantile Investment Company, Limited v Brunton [1892] 2 QB
700 at 708 (Brunton) (the relevant passage of which is quoted at [109]
below)). Indeed, short of a clear admission (which will, in the nature of
things, be extremely rare), inferences drawn from the precise facts and
circumstances of the case concerned are the only viable material available to
the court in order to ascertain whether or not either actual knowledge or
wilful blindness exists. It is, at this juncture, important to note, once again,
that wilful blindness has always been treated, in law, as the equivalent of
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[2008] 1SLR(R) Tan Kiam Peng v PP 43
actual knowledge (see also per Yong CJ in Koo Pui Fong, cited at the end of
this paragraph and per Devlin J in Roper v Taylors Central Garages (Exeter),
Limited [1951] 2 TLR 284 (Roper) (quoted at [116] below), as well as at
[123] below). This is entirely understandable as well as logical and practical
simply because the court cannot read a persons mind (see per Yong CJ in
Koo Pui Fong, supra, as well as per Lord Esher MR in Brunton at [109]
below). As we have just mentioned, a clear admission is going to be
extremely rare. The proof of an actual situation of actual knowledge is, in
the circumstances, going to be equally rare. This is a fortiori the case in so
far as offences under the Act are concerned. Accused persons are hardly
likely to admit to possessing actual knowledge and can (indeed, will) easily
disavow such knowledge even if it existed, given the surreptitious nature
inherent in drug offences as well as the draconian penalties that are
imposed on conviction. In any event, as we have already noted, wilful
blindness has, in any event, always been treated, in law, as actual
knowledge. In this regard, Yong CJ, in Koo Pui Fong, observed that the
concept of wilful blindness does not introduce a new state of mind to that
of knowing and that [i]t is simply a reformulation of actual knowledge
([103] supra at [14]); the learned Chief Justice then proceeded to observe as
follows (see id):
It seems to me that it is wholly in keeping with common sense and the
law to say that an accused knew of certain facts if he deliberately closed
his eyes to the circumstances, his wilful blindness being evidence from
which knowledge may be inferred. Thus I fully agree with the following
passage of Lord Bridge in Westminster City Council v Croyalgrange Ltd
(1986) 83 Cr App R 155 at 164:
it is always open to the tribunal of fact, when knowledge on
the part of a defendant is required to be proved, to base a finding
of knowledge on evidence that the defendant had deliberately
shut his eyes to the obvious or refrained from inquiry because he
suspected the truth but did not want to have his suspicion
confirmed.
105 Yong CJ did then state thus ([103] supra at [15]):
But this is different from saying that wilful blindness should be
automatically equated with knowledge. Hence, if the respondent
suspected that PW1 was an illegal immigrant but deliberately shut her
eyes to the circumstances, that in itself is strictly speaking not an
alternative to knowing that PW1 had entered the country illegally,
although it would be fair and almost irresistible to infer that the
respondent had the relevant knowledge. Despite the distinction, the
practical effect it seems, would usually be the same but the difference
should be borne in mind so as not to confuse the concept of wilful
blindness as being a separate state of mind which is sufficient to form
an alternative to the requirement of knowledge.
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44 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
106 Given the practical reality that a finding of actual knowledge is likely
to be rare, we turn, now to what, as we have just mentioned, is the legal
equivalent of actual knowledge, viz, the doctrine of wilful blindness.
107 Various criteria have been laid down in the context of the doctrine of
wilful blindness. Although many deal with cases from a commercial
perspective, the general principles and reasoning stated therein are
completely on point.
108 For example, Goddard J (as he then was), in the English decision of
Evans v Dell (1937) 53 TLR 310, referred (in the context of the provisions of
the UK Road Traffic Act 1930 (c 34) (as amended)) to the concept of
shutting ones eyes to the obvious (see at 313). And, as far back as 1877,
Lord Blackburn observed, in the House of Lords decision of Jones v Gordon
(1877) 2 App Cas 616, thus (at 629):
If he was (if I may use the phrase) honestly blundering and careless,
and so took a bill of exchange or a bank-note when he ought not to
have taken it, still he would be entitled to recover. But if the facts and
circumstances are such that the jury, or whoever has to try the question,
came to the conclusion that he was not honestly blundering and careless,
but that he must have had a suspicion that there was something wrong,
and that he refrained from asking questions, not because he was an
honest blunderer or a stupid man, but because he thought in his own
secret mind I suspect there is something wrong, and if I ask questions
and make farther inquiry, it will no longer be my suspecting it, but my
knowing it, and then I shall not be able to recover I think that is
dishonesty. [emphasis added]
109 In a similar vein, Lord Esher MR, distinguishing between the
equitable doctrine of constructive notice on the one hand and that of actual
knowledge on the other, observed thus in Brunton ([104] supra at 707708):
The doctrine of constructive notice is wholly equitable; it is not known
to the common law. There is an inference of fact known to common
lawyers which comes somewhat near to it. When a man has statements
made to him, or has knowledge of facts, which do not expressly tell him
of something which is against him, and he abstains from making
further inquiry because he knows what the result would be or, as the
phrase is, he wilfully shuts his eyes then judges are in the habit of
telling juries that they may infer that he did know what was against him.
It is an inference of fact drawn because you cannot look into a mans
mind, but you can infer from his conduct whether he is speaking truly or
not when he says that he did not know of particular facts. There is no
question of constructive notice or constructive knowledge involved in
that inference; it is actual knowledge which is inferred. [emphasis
added]
110 Turning to more modern case law, in the English Court of Appeal
decision of Compania Maritima San Basilo S A v Oceanus Mutual
Underwriting Association (Bermuda) Ltd [1977] QB 49 (Oceanus),
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[2008] 1SLR(R) Tan Kiam Peng v PP 45
Lord Denning MR observed (in the context of marine insurance) thus
(at 68):
To disentitle the shipowner, he must, I think, have knowledge not only
of the facts constituting the unseaworthiness, but also knowledge that
those facts rendered the ship unseaworthy, that is, not reasonably fit to
encounter the ordinary perils of the sea. And, when I speak of
knowledge, I mean not only positive knowledge, but also the sort of
knowledge expressed in the phrase turning a blind eye. If a man,
suspicious of the truth, turns a blind eye to it, and refrains from inquiry
so that he should not know it for certain then he is to be regarded as
knowing the truth. This turning a blind eye is far more blameworthy
than mere negligence. Negligence in not knowing the truth is not
equivalent to knowledge of it. [emphasis added]
Roskill LJ (as he then was) agreed with Lord Denning MR (see id at 76):
But like Lord Denning M.R., I would emphasise that knowledge does
not only mean positive knowledge, but includes that type of knowledge
which is expressed in the phrase turning a blind eye. If the facts
amounting to unseaworthiness are there staring the accused in the face
so that he must, had he thought of it, have realised their implication
upon the seaworthiness of his ship, he cannot escape from being held
privy to that unseaworthiness by blindly or blandly ignoring those facts
or by refraining from asking relevant questions regarding them in the
hope that by his lack of inquiry he will not know for certain that which
any inquiry must have made plain beyond possibility of doubt.
[emphasis added]
And, in the same case, Geoffrey Lane LJ (as he then was) stated (id at 81):
Knowledge of what? Again the subsection is clear. It says
unseaworthiness, not facts which in the upshot prove to amount to
unseaworthiness. Accordingly it seems clear to me that if this matter
were res integra, the section would mean that the assured only loses his
cover if he has consented to or concurred in the ship going to sea when
he knew or believed that it was in an unseaworthy condition. I add the
word believed to cover the man who deliberately turns a blind eye to
what he believes to be true in order to avoid obtaining certain knowledge
of the truth. [emphasis added]
111 An even more recent decision is that of the House of Lords in
Manifest Shipping Co Ltd v Uni-Polaris Insurance Co Ltd [2003] 1 AC 469
(another decision in the context of marine insurance) (Manifest
Shipping). In this case, wilful blindness is succinctly encapsulated within
the phrase blind-eye knowledge. For example, Lord Clyde, referring to this
phrase, then proceeds to elaborate thus (at [3]):
Blind-eye knowledge in my judgment requires a conscious reason for
blinding the eye. There must be at least a suspicion of a truth about
which you do not want to know and which you refuse to investigate.
[emphasis added]
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46 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
112 Lord Hobhouse of Woodborough, after referring to the various views
expressed in Oceanus, opined thus (at [25]):
All these formulations reject the suggestion that even gross negligence
will suffice. The use of the word suspicion and belief are indicative
of the strength of the suspicion that is required. But perhaps the most
helpful guide is to be found in what was said by Roskill LJ and Geoffrey
Lane LJ about the reason for refraining from inquiry in the hope
that by his lack of inquiry he will not know for certain in order to
avoid obtaining certain knowledge of the truth. It is probable that
Lord Denning MR was saying the same thing when he used the phrase
so that he should not know it for certain. The illuminating question
therefore becomes why did he not inquire?. If the judge is satisfied that
it was because he did not want to know for certain, then a finding of
privity should be made. If, on the other hand, he did not enquire because
he was too lazy or he was grossly negligent or believed that there was
nothing wrong, then privity has not been made out. An ambiguity has
arisen from the use by Roskill LJ of the phrase had he thought of it.
This suggests that the test may be objective. If so, that is not correct.
The test is subjective: Did the assured have direct knowledge of the
unseaworthiness or an actual state of mind which the law treats as
equivalent to such knowledge? [emphasis added]
113 Lord Scott of Foscote observed thus (at [112]):
Blind-eye knowledge approximates to knowledge. Nelson at the
battle of Copenhagen made a deliberate decision to place the telescope
to his blind eye in order to avoid seeing what he knew he would see if
he placed it to his good eye. It is, I think, common ground and if it is
not, it should be that an imputation of blind-eye knowledge requires
an amalgam of suspicion that certain facts may exist and a decision to
refrain from taking any step to confirm their existence. [emphasis
added]
This is an obvious reference to what is commonly known as Nelsonian
blindness (for further background, see Michael P Furmston, Some
Themes and Thoughts (2005) 17 SAcLJ 141 at 145147, where it is also
suggested that the account of Nelson placing the telescope to his blind eye
was an embellishment (see also per Peter Gibson J in Baden (at [101]
above)). The learned law lord also observed, a little later on in his judgment,
as follows (at [116]):
In summary, blind-eye knowledge requires, in my opinion, a suspicion
that the relevant facts do exist and a deliberate decision to avoid
confirming that they exist. But a warning should be sounded. Suspicion
is a word that can be used to describe a state-of-mind that may, at one
extreme, be no more than a vague feeling of unease and, at the other
extreme, reflect a firm belief in the existence of the relevant facts. In my
opinion, in order for there to be blind-eye knowledge, the suspicion must
be firmly grounded and targeted on specific facts. The deliberate decision
must be a decision to avoid obtaining confirmation of facts in whose
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[2008] 1SLR(R) Tan Kiam Peng v PP 47
existence the individual has good reason to believe. To allow blind-eye
knowledge to be constituted by a decision not to enquire into an
untargeted or speculative suspicion would be to allow negligence, albeit
gross, to be the basis of a finding of privity. That, in my opinion, is not
warranted by section 39(5) [of the UK Marine Insurance Act 1906 (c
41)]. [emphasis added]
114 Indeed, the views of both Lord Hobhouse and Lord Scott in Manifest
Shipping were expressly referred to by Lord Hoffmann in Twinsectra ([102]
supra at [22]).
115 Numerous cases in the criminal sphere adopt the same principles as
well (see, for example, the English Divisional Court decision of Roper ([104]
supra) and the English Court of Appeal decisions of R v Leslie George
Griffiths (1974) 60 Cr App R 14 and Westminster City Council v
Croyalgrange Ltd [1985] 1 All ER 740 (Westminster City Council)).
116 In Roper ([104] supra), although the court arrived at its decision on a
comparatively narrow ground to the effect that the court below had taken
into account inadmissible evidence and that the defendants appeal had
therefore to be allowed, Devlin J (as he then was) nevertheless proceeded to
make the very pertinent observations, which merit quotation in full, as
follows (at 288289):
There are, I think, three degrees of knowledge which it may be relevant
to consider in case of this kind. The first is actual knowledge, which the
justices may find because they infer it from the nature of the act done,
for no man can prove the state of another man mind; and they may
find it even if the defendant gives evidence to the contrary. They may
say, We do not believe him; we think that that was his state of mind.
They may feel that the evidence falls short of that, and if they do they
have then to consider what might be described as knowledge of the
second degree; whether the defendant was, as it has been called, shutting
his eyes to an obvious means of knowledge. Various expressions have
been used to describe that state of mind. I do not think it necessary to
look further, certainly not in cases of this type, than the phrase which
Lord Hewart, C.J., used in a case under this section, Evans v. Dell
((1937) 53 The Times L.R. 310), where he said (at p. 313): the
respondent deliberately refrained from making inquiries the results of
which he might not care to have.
The third kind of knowledge is what is generally known in the law as
constructive knowledge: it is what is encompassed by the words ought
to have known in the phrase knew or ought to have known. It does not
mean actual knowledge at all; it means that the defendant had in effect
the means of knowledge. When, therefore, the case of the prosecution
is that the defendant fails to make what they think were reasonable
inquiries it is, I think, incumbent on them to make it plain which of the
two things they are saying. There is a vast distinction between a state of
mind which consists of deliberately refraining from making inquiries, the
result of which the person does not care to have, and a state of mind
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48 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
which is merely neglecting to make such inquiries as a reasonable and
prudent person would make. If that distinction is kept well in mind I
think that justices will have less difficulty than this case appears to
show they have had in determining what is the true position. The case
of shutting ones eyes is actual knowledge in the eyes of the law; the case
of merely neglecting to make inquiries is not knowledge at all it comes
within the legal conception of constructive knowledge, a conception
which, generally speaking, has no place in the criminal law.
[emphasis added]
The above observations quoted at length because, as we shall see below, of
their signal importance are instructive. Although the learned judge spoke
of three degrees of knowledge, there are, in point of fact, only two distinct
categories, viz, actual knowledge and constructive knowledge, respectively.
The former, however, comprises two sub-categories first, actual
knowledge in (for want of a better way of putting it) an actual sense and,
secondly, actual knowledge in the form of wilful blindness. And, as Devlin J
aptly put it, the other main category of knowledge, viz, constructive
knowledge has no place in the criminal law. However, as we shall see
below (especially at [133]), the line between actual and constructive
knowledge is not, owing to the very factual nature of the inquiry, always
that clear.
117 The views of Devlin J in Roper (quoted in the preceding paragraph)
were in fact endorsed by the English Court of Appeal in Westminster City
Council ([115] supra). Robert Goff LJ (as he then was) observed thus (at
744):
It is well established that, in cases where knowledge is required,
knowledge may be proved not only by showing actual knowledge, but
also by showing that the defendant in question has deliberately shut his
eyes to obvious means of knowledge or deliberately refrained from
making inquiries, the results of which he might not care to know. We
were referred, very helpfully, by counsel for the respondents to the
judgment of Devlin J in Roper v Taylors Central Garages (Exeter) Ltd
[1951] 2 TLR 284 at 288, in which in the course of his judgment he
reaffirmed that proposition, and treated deliberately shutting ones
eyes to obvious means of knowledge as being equivalent to actual
knowledge. [emphasis added]
118 More importantly, perhaps, Roper was also endorsed in the Singapore
High Court decision of Koo Pui Fong, where Yong Pung How CJ observed
thus (at [20]):
[T]here is a vast difference between a state of mind which consists of
deliberately shutting the eyes to the obvious, the result of which a
person does not care to have, and a state of mind which is merely
neglecting to make inquiries as a reasonable and prudent man would
make. The latter, also known as constructive knowledge, is not
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[2008] 1SLR(R) Tan Kiam Peng v PP 49
knowledge at all: see Roper v Taylors Central Garages (Exeter) Ltd
[1951] 2 TLR 284 at 289.
119 Finally, the UK Law Commission, in its working paper entitled
Codification of the Criminal Law, General Principles The Mental Element
in Crime (Working Paper No 31, 1970), described its conception of wilful
blindness in two alternatives, as follows:
KNOWLEDGE
[emphasis added]
120 The UK Law Commission itself subsequently expressed a preference
for the first alternative set out in the preceding paragraph in the Law
Commission Report already referred to above ([34] supra at paras 4749;
though cf at [127] below).
121 The doctrine of wilful blindness is, in fact, not a novel one in the
Singapore context. It has, in fact, been applied in many decisions in the
context of the operation of the Act itself: see, for example, the Singapore
Court of Appeal decisions of Chan Chi Pun ([37] supra at [20]); PP v
Khampali Suchart [1996] SGCA 38 (Khampali Suchart); Chou Kooi Pang
([37] supra at [20]); Wong Soon Lee ([60] supra at [45]; see also above at
[76]); Zulfikar bin Mustaffah v PP [2001] 1 SLR(R) 181; Yeoh Aik Wei v PP
([60] supra); and Tay Kah Tiang ([104] supra at [34], although it was in fact
proved that the accused had actual knowledge in any event); the Malaysian
Court of Appeal decision of Roslan bin Sabu @ Omar v Pendakwa Raya
[2006] 4 AMR 772; the Singapore High Court decisions of Koo Pui Fong
([104] supra); PP v Mohamed Faizi bin Abdul Rahim [1998] SGHC 335
(affirmed in Mohamed Faizi bin Abdul Rahim v PP [1999] SGCA 14); the
Malaysian High Court decision of Public Prosecutor v Tan Kok An ([104]
supra at 100101); as well as the Singapore District Court decision of PP v
Tseng Yue-Wey [2003] SGDC 288 at [32]. Indeed, even where the doctrine
is not expressly referred to, it is clear that it has, in substance, been applied:
see, for example, the Singapore Court of Appeal decisions of Kong Weng
Chong v PP [1993] 3 SLR(R) 453 (Kong Weng Chong); Ubaka Chris
Chinenye v PP [1994] 3 SLR(R) 401; Lee Yuan Kwang v PP [1995] 1 SLR(R)
778 (Lee Yuan Kwang); Cheng Heng Lee ([37] supra); and Abdul Rauuf
([60] supra); as well as the Singapore High Court decision of Ko Mun
Cheung ([76] supra)). The doctrine of wilful blindness was also emphasised
(3) A PERSON KNOWS OF CIRCUMSTANCES
NOT ONLY WHEN HE KNOWS THEY EXIST,
BUT ALSO WHEN
First
alternative
HE HAS NO SUBSTANTIAL DOUBT THAT
THEY EXIST.
Second
alternative
HE KNOWS THAT THEY PROBABLY EXIST.
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50 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
by Yong Pung How CJ in the Singapore Court of Appeal decision of PP v
Hla Win [1995] 2 SLR(R) 104. Although the learned Chief Justice dissented
in that case, this was due to a difference in view from the majority vis--vis
the facts of that particular case. Indeed, this difference in view only serves to
underscore the point (made below, especially at [123] and [125]) that the
precise factual matrix is of the first importance. In that particular case, the
majority of the court in fact found that the accused had managed to rebut
the statutory presumptions (reference may also be made to Khampali
Suchart (supra), where the accused was held not to have been wilfully blind
to the contents of the bag concerned).
122 It is appropriate at this point to draw the various threads with respect
to the doctrine of wilful blindness together. Indeed, specific central
principles, in our view, emerge from the relevant case law, as follows.
123 The first is that wilful blindness is treated, in law, as being the
equivalent of actual knowledge (see above at [106] as well as Koo Pui Fong
(see at [104] above); Roper (see at [116] above); Leslie George Griffiths ([115]
supra at 18); and Westminster City Council ([115] supra at 744)). Indeed, we
are of the view that, given that both actual knowledge as well as wilful
blindness are, more often than not, inferred from the facts and
circumstances of the case, the line, in practice, between the two is a fine one
and may, on occasion at least, even be blurred. However, it bears repeating
that wilful blindness is not opposed to actual knowledge. Indeed, the
suggestion that this was the case at the trial court stage in Tochi ([35] supra)
was swiftly rejected by the Court of Appeal. Choo Han Teck J, who
delivered the judgment of the court, observed thus (at [6]):
The presumption of knowledge was therefore not rebutted, and all that
remained was to determine whether the act of importing the drugs was
proved. However, a statement in the trial judges grounds requires
clarification. At [48], the trial judge stated, in what appeared to us as an
emphasis to his rejection of the first appellants evidence:
I found he had wilfully turned a blind eye on the contents of the
capsules because he was tempted by the US$2000, which was a
large sum to him. Consequently, even if he may not have
actual knowledge that he was carrying diamorphine, his
ignorance did not exculpate him [emphasis added].
That passage creates an impression that there is a legal duty not to
turn a blind eye. It would thus create a wrong assumption that there
was some sort of positive legal duty, meaning that the first appellant
was bound in law to inspect and determine what he was carrying, and
that consequentially, if he did not do so, he would be found liable on
account of that failure or omission. The Act does not prescribe any such
duty. All that the Act does (under s 18), is to provide the presumptions
of possession and knowledge, and thus the duty of rebutting the
presumptions lay with the accused. There could be various reasons why
a court might not believe the accused person, or find that he had not
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[2008] 1SLR(R) Tan Kiam Peng v PP 51
rebutted the presumptions. The fact that he made no attempt to check
what he was carrying could be one such reason. Whether the court
would believe a denial of knowledge of the articles in the accused
persons possession (made with or without explanation or reasons)
would depend on the circumstances of the individual case. The trial
judge then referred to Yeo Choon Huat v PP [1997] 3 SLR(R) 450 at
[22]:
[I]gnorance is a defence only when there is no reason for
suspicion and no right and opportunity of examination
The above passage, however, was from the judgment in Ubaka Chris
Chinenye v PP [1994] 3 SLR(R) 401 and cited with approval by both the
minority judgment in PP v Hla Win [1995] 2 SLR(R) 104, as well as in
the unanimous judgment in Yeo Choon Huat v PP. It is also pertinent
that the same coram sat in both cases (Yeo Choon Huat v PP and PP v
Hla Win). It will be gleaned from these cases that the true principle is
that, ultimately, a failure to inspect may strongly disincline a court
from believing an absence of knowledge defence. Therefore, to say, as
in this case, that the first appellant thought it was chocolates was
another way of saying he did not know that he was carrying drugs.
Given the evidence, including the evidence that the first appellant did
not inspect the articles when he could have done so (the turning of the
blind eye), the court was entitled to find that the presumption had not
been rebutted.
[emphasis added in bold italics]
124 What is clear from the above observations is that the accused is under
no legal obligation not to turn a blind eye. However, if he does in fact turn a
blind eye, that could, on the facts, be taken to be wilful blindness on his
part. If so, this would be tantamount to actual knowledge in law, and the
accused would have failed to have rebutted the presumption of knowledge
under s 18(2) of the Act. The above observations are important inasmuch as
they clarify what might otherwise have been a misunderstanding of some
observations expressed at first instance in Tochi. In particular, in PP v
Iwuchukwu Amara Tochi [2005] SGHC 233, the learned trial judge had held
(at [42]) that there had been no direct evidence that [the first accused]
knew the capsules contained diamorphine [emphasis added]. Reading this
observation in context, it was clear that the learned trial judge had made a
finding that the first accused did not possess actual knowledge that he was
in possession of the drug concerned. However, it was crystal clear that he
had nevertheless found that the first accused had what is, in law, the
equivalent of actual knowledge as he (the first accused) had clearly been
guilty of wilful blindness on the objective facts before the court; as the
learned trial judge observed (at [48]):
I found that he [the first accused] had wilfully turned a blind eye on the
contents of the capsules because he was tempted by the US$2000,
which was a large sum to him. When Smith, who had befriended him
and had appeared to help him get out of Pakistan, also offered him the
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52 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
US$2000, he did not want to ask any questions or check the capsules
himself. Consequently, even if he may not have actual knowledge that
he was carrying diamorphine, his ignorance did not exculpate him
because it is well established that:
[I]gnorance is a defence only when there is no reason for
suspicion and no right and opportunity of examination
Yeo Choon Huat v PP [1997] 3 SLR(R) 450 at [22] and his defence
cannot stand. He was therefore found guilty and convicted on the
charge he faced.
[emphasis added]
125 The second central principle is that suspicion is legally sufficient to
ground a finding of wilful blindness provided the relevant factual matrix
warrants such a finding and the accused deliberately decides to turn a blind
eye. However, that suspicion must, as Lord Scott perceptively points out in
Manifest Shipping (see at [113] above), be firmly grounded and targeted on
specific facts. Mere untargeted or speculative suspicion is insufficient
(see also Hor ([75] supra) at 73). A decision in this last-mentioned instance
not to make further inquiries is, as the learned law lord correctly points out,
tantamount to negligence, perhaps even gross negligence, and is as such
insufficient to constitute a basis for a finding of wilful blindness. As
Lord Scott aptly put it (see at [113] above), [s]uspicion is a word that can
be used to describe a state-of-mind that may, at one extreme, be no more
than a vague feeling of unease and, at the other extreme, reflect a firm belief
in the existence of the relevant facts. It is important to note that the
(unacceptable) negligence which the Judge referred to in the court below
relates to the level of suspicion required before a decision not to make
further inquiries will be considered to constitute wilful blindness. It is
equally if not more important to emphasise that the Judge was therefore
not stating that suspicion per se would not be sufficient to ground a finding
of wilful blindness. On the contrary, suspicion is a central as well as integral
part of the entire doctrine of wilful blindness. However, the caveat is that a
low level of suspicion premised on a factual matrix that would not lead a
person to make further inquiries would be insufficient to ground a finding
of wilful blindness where the person concerned did not in fact make further
inquiries. What is of vital significance, in our view, is the substance of the
matter which (in turn) depends heavily upon the precise facts before the
court. It is equally important to note that in order for wilful blindness to be
established, the appropriate level of suspicion (as just discussed) is a
necessary, but not sufficient, condition, inasmuch as that level of suspicion
must then lead to a refusal to investigate further, thus resulting in blind eye
knowledge (see also the second quotation from the article by Wasik &
Thompson at [127] below).
126 That having been said, the requirement of suspicion is nevertheless a
vital (and, indeed, threshold) one. So, for example, if the accused makes
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[2008] 1SLR(R) Tan Kiam Peng v PP 53
merely token inquiries because he suspects that making more substantive
inquiries might lead him to the truth which he does not want to know, that
is wilful blindness. If the factual matrix was such that the accused ought to
have been suspicious, the court must then consider the accuseds reasons
for not making further inquiries. We will come to this point below but it
suffices to state at this juncture that a court would be well justified in
thinking that the reason why an accused refused to make further inquiries
may be because he or she was virtually certain that if further inquiries were
made, his or her suspicions would be confirmed. In such a situation, the
level of suspicion is, in fact, quite the opposite of the very first scenario
referred to (in the preceding paragraph), and is one where a person in the
accuseds shoes ought to make further inquiries and the failure to do so
would therefore constitute wilful blindness. As already emphasised above,
what is token and what is substantive (in so far as the making of further
inquiries is concerned) is, of course, a matter of fact (and see at [129][132]
below for brief discussions as well as corresponding analyses). The
propositions canvassed in the present paragraph are of fundamental
importance and will (as we shall see) figure prominently in the analysis of
the factual matrix in the present proceedings in so far as the doctrine of
wilful blindness is concerned.
127 We would venture to state a third central principle. Whilst
Prof Glanville Williams has correctly drawn a clear distinction between
wilful blindness on the one hand and recklessness on the other (see
Glanville Williams, Textbook of Criminal Law (Stevens & Sons, 2nd Ed,
1983) at pp 125126), this distinction must be properly understood in its
proper context. To elaborate, it is clear that wilful blindness, being (as we
have seen) the equivalent of actual knowledge, is distinct from recklessness
which, theoretically at least, falls short of actual knowledge. Indeed, wilful
blindness necessarily entails an element of deliberate action inasmuch as to
the extent that the person concerned has a clear suspicion that something is
amiss but then embarks on a deliberate decision not to make further
inquiries in order to avoid confirming what the actual situation is, such a
decision is necessarily a deliberate one. Looked at in this light, wilful
blindness and recklessness are, ex hypothesi, incompatible with each other.
It is imperative, in order to avoid any unnecessary confusion, that we
emphasise, once again, that wilful blindness is a combination of suspicion
coupled with a deliberate decision not to make further inquiries, whereas the
recklessness that has been referred to by Prof Williams refers to
recklessness in terms of the accuseds conduct in the context of
circumstances which would not otherwise have aroused suspicion on the part
of the accused. We think that it is important to reiterate this point because
it is possible, on another interpretation, to argue that the decision by the
accused not to make further inquiries when faced with suspicious
circumstances may be characterised as reckless conduct. We do not agree
with such an argument and characterisation. Such conduct is wilful
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54 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
blindness that entails a deliberate decision not to make further inquiries
when faced with suspicious circumstances. Semantical confusion must be
avoided, especially when an accuseds life or liberty is at stake. Indeed, as
Prof Williams himself put it (again in his textbook, supra, at p 125):
[The doctrine of wilful blindness] is meant to deal with those whose
philosophy is: Where ignorance is bliss, tis folly to be wise. To argue
away inconvenient truths is a human failing. If a person deliberately
shuts his eyes to the obvious, because he doesnt want to know, he
is taken to know. [emphasis added]
The following observations in a leading article are also pertinent (see
MWasik & MP Thompson, Turning A Blind Eye as Constituting Mens
Rea (1981) 32 NILQ 328 at 330331):
[W]ilful blindness is more than non-coincidence: it is the
construction of a greater mental element than D [the accused] actually
had, by virtue of Ds own fault in closing his eyes. The fault which is
seen to justify this is provided by Ds advertence to the particular fact,
prior to his deliberately turning a blind eye. It would seem that strict
subjective principles of criminal liability are modified, though not
overridden, in the case of liability imposed for wilful blindness.
[emphasis in original]
And, even more to the point, the same writers observe thus (id at 335):
It may well be the case that whilst suspicion alone is not strong
enough to found liability, suspicion plus deliberately refraining from
finding out the truth will be enough, or ought to be enough, because of
Ds fault in turning a blind eye. [emphasis added]
In this regard, the following observation by Stephenson LJ in the English
Court of Appeal decision of R v Keith Ian Thomas (1976) 63 Cr App R 65 at
69 is also helpful:
Suspicion is not knowledge, but knowledge may be inferred from
shutting ones eyes to suspicious circumstances
Finally, it is important to note that the judgment in the court below is, in
large part, consistent with the propositions just made. For example, the
passage the Judge cites (see GD at [24]) from Prof Andrew Ashworths
book, Principles of Criminal Law (Oxford University Press, 3rd Ed, 1999) at
pp 196197, when read closely, confirms the central importance of the
concept of suspicion. It is also interesting to note that where the phrase
virtual certainty is used, it is in fact an alternative instance of the highest
possible form of suspicion; indeed, this particular alternative, in our view,
borders on if not actually epitomises actual knowledge rather than
wilful blindness (see also, especially, per Yong CJ in Koo Pui Fong, set out at
[103] above; and cf at [119][120] above). At this point, the distinction
between actual knowledge (in its purest form) and wilful blindness would
(unjustifiably, wrongfully, and in substance) be erased. In the same vein, the
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[2008] 1SLR(R) Tan Kiam Peng v PP 55
reference by Prof Williams in his work to the phrase virtual certainty
(also cited by the Judge in GD at [25]) should be given the same meaning.
As just mentioned, any other interpretation would be to equate, in effect,
actual knowledge (in its purest form) with wilful blindness. Although the
latter is the legal equivalent of the former, they are, as we have seen in the
analysis above, not identical concepts. The Judge also cites (see GD at [26])
Prof Hors views ([37] supra), but to the extent that the learned author
eschews the concept of suspicion in the context of wilful blindness
altogether, that view is, with respect, erroneous (a similar comment may be
made of the passage cited by the Judge in his GD at [29]). The preferable
view, however, is to interpret the passage cited as referring to various levels
of suspicion (as to which see above at [125]).
128 Finally, a fourth central principle is that whether or not a
presumption (here, of knowledge) under the Act is rebutted (on a balance of
probabilities (see above at [60])) depends, in the final analysis, on the
precise factual matrix concerned. As Choo Han Teck J put it in Tochi ([35]
supra at [9]):
Rebutting the statutory presumption is a matter of fact, and is no
different from any other fact-finding exercise save that the law requires
that a person rebutting a statutory presumption does so on a balance of
probabilities. It is not sufficient for him merely to raise a reasonable
doubt.
Reference may also be made to Koo Pui Fong ([103] supra, especially
at [22]).
129 Indeed, in the context of the doctrine of wilful blindness, while some
illustrations may be helpful, it is nevertheless imperative to note that, owing
to the intensely factual nature of the inquiry, they cannot be representative,
let alone comprehensive. Generally speaking, if an accused has had his or
her suspicions aroused in the manner set out at [125] above, the accused
can still rebut the relevant presumption under s 18 of the Act by
demonstrating that he or she took reasonable steps to investigate by making
further inquiries that were appropriate to the circumstances. What these
circumstances will be will obviously vary from case to case, thus
underscoring (once again) the intensely factual nature of the entire process.
Nevertheless, one obvious situation is where the accused takes no steps
whatsoever to investigate his or her suspicions. The court would naturally
find that there was wilful blindness in such a situation. Where, for example,
an accused is given a wrapped package and is told that it contains
counterfeit currency when it actually contains controlled drugs, we would
have thought that, absent unusual circumstances, the accused should at
least ask to actually view what is in the package. Even a query by the accused
coupled with a false assurance would, in our view, be generally insufficient
to obviate a finding of wilful blindness on the part of the accused under
such circumstances. Indeed, if an accused is told that the package contains
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56 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
counterfeit currency and the package is then opened to reveal that it
contains packets of what are obviously drugs, that ought then to prompt the
accused to make further inquiries. And, where, in fact, only token efforts
are made to investigate ones suspicions, this would be insufficient. But
might it not be argued that the accused in the example just given (relating to
a wrapped packaged) has done all that could reasonably have been done to
investigate further? Much will, of course, depend on the precise facts before
the court but it would appear, in principle, that merely asking and receiving
answers in situations such as that presently considered would be
insufficient simply because the accused concerned would certainly be given
false answers and assurances. Further, denials of knowledge by the accused
are also to be expected and must, in the circumstances, be (in the words of
the Judge in the court below) scrupulously analysed and warily assessed for
consistency and credibility (see GD at [11]). As the Judge aptly put it (see
ibid):
It is only too easy to disingenuously claim I did not know. Associated
with the plea of I did not know are often belated claims of I did not
inspect or I was told it was something else. These pleas are more
often than not flimsy fabrications of last resort without an atom of
credibility.
However, to the extent that the Judge later suggests that it would be wrong
to convict accused persons solely on the basis that they had failed to make
proper inquiries (see GD at [27]), we would respectfully disagree with such
a suggestion. His analysis to the effect that such an approach would equate
wilful blindness with mere negligence or recklessness fails, with respect, to
recognise that a key threshold element in the doctrine of wilful blindness
itself is that of suspicion followed by (and coupled with) a deliberate
decision not to make further investigations. To be sure, and as we have
emphasised above, the level of suspicion ought to be properly grounded
(see above at [125]), this being an intensely factual issue (see also the
acknowledgment by the Judge of the importance of this last-mentioned
point in GD at [31]). Wilful blindness cannot be equated with virtual
certainty for, as already explained above, this would be to equate wilful
blindness with actual knowledge in its purest form. The result would be to
erase the doctrine of wilful blindness from the legal landscape altogether.
That this is not what the Judge intended is evident, for example, from the
following observation where he maintains the distinction between actual
knowledge in its purest form on the one hand and wilful blindness on the
other (see GD at [28]; see also GD at [30]):
[T]he failure to inspect or inquire is relevant and pertinent only where,
together with the ambient circumstances of the case, they go towards
establishing either that the accused knew what he was carrying or was
wilfully blind to the obvious. [emphasis added]
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[2008] 1SLR(R) Tan Kiam Peng v PP 57
130 Situations such as that which exists on the facts of the present appeal
underscore this point since the accused already knows that he or she is
carrying controlled drugs and surely cannot rely merely on the fact that he
or she had asked for assurances that the controlled drugs concerned were
not of a nature which carried the death penalty. If the accused chooses to
take an enormous (indeed, deadly) risk and proceed without establishing
the true nature of the drugs he or she is carrying, that constitutes, in our
view, wilful blindness. To say that this is unfair to the accused concerned is
rather disingenuous, particularly in light of the fact that the countenancing
of false answers and assurances would be precisely to constitute a drug
pedlars charter, for accused persons who are willing to risk imprisonment
but not death (see also the observations of Lord Guest in Warner (at [87]
above)) thus undermining (in a crucial manner) the policy of the Act
itself. It is also clear that the accused has a real choice to decide not to
proceed if satisfactory answers are not forthcoming, especially where liberty
or even life is at stake. Indeed, the Judge himself also observed, in a similar
vein, thus (GD at [65]):
Tan [the appellant] is not a hapless victim caught in the web of
inevitable circumstances beyond his control. He had real choices.
While life may not have been kind to him, he was under no
compulsion to risk his life by committing an illicit act for meagre
returns. He has consciously chosen to run the legal gauntlet and to
leave everything to chance. Given the concatenation of circumstances,
Tans plaintive plea that I am just unlucky as this was my first time
doing it and I was caught is a tragic but futile one.
We pause to observe, however, that if the first interpretation vis--vis
s 18(2) of the Act is adopted (see [80] above), the accused would not be able
to make such arguments in the first instance at least on facts such as those
which obtain in the present appeal since, as noted above (at [94]), the
accused would know that he or she was in possession of a controlled drug in
the first instance. Indeed, even absent actual knowledge such as was
possessed by the appellant in the present case, in situations where the
accused is carrying packets of powder and/or tablets, the possibility of those
packets being controlled drugs is strong. Whether or not the accused is
guilty of wilful blindness would of course depend on the precise facts and
circumstances (these would include, for example, the quantity and weight
of the packets, as well as whether or not the accused was remunerated for
carrying the packets, although obviously no one factor would usually be
conclusive).
131 We also observe that much often turns on the credibility of the
witnesses (in particular, the accused), as was the situation in the present
appeal. For example, the accused might claim to have made inquiries but
this might be disbelieved by the court. Such a finding might well be
determinative of the case itself. The Judge in the court below says as much;
in his words (see GD at [36]):
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58 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
The plain words of s 18(2) of the MDA states that it is for an accused to
prove that he did not know the nature of the drug. That an accused
knows he is carrying a drug is only one aspect of the issue; he can still
be exonerated if he can show that he did not know its nature. As such,
it is still conceivably open to an accused carrying a drug to assert that
he did not know that he was carrying the particular type of drug which
was in fact found on him. His credibility alone forms the crux of the
matter in such cases. [emphasis in original]
The last sentence in the above quotation was emphasised in italics by the
Judge himself. It suggests that the credibility of the accused and that alone
should be the legal lodestar in situations such as that which obtains in the
present appeal (where the only issue is whether or not the accused knew the
specific nature of the controlled drug in question). However, the Judge does
then proceed to suggest that the entire process of inquiry is, in the final
analysis, a factual one (see GD at [37]). This last-mentioned proposition
appears to be the more reasonable approach to adopt although, as we have
observed above, the credibility of the accused will often be an extremely
important and, on occasion, vital factor.
132 However, as we have emphasised, the possible factual scenarios are far
too many to admit of blanket propositions and, hence, the decision of the
court in a given case will have to depend on the precise facts, the evidence
adduced as well as the credibility of the witnesses themselves (not least the
accused) (this was also, as we have seen in the preceding paragraph, the
apparent position ultimately adopted by the Judge in the court below). To
reiterate an obvious (but important) example, where the accused has had
the controlled drugs slipped into a bag without his or her knowledge, it is
clear that no offence under the Act would have been committed (see, once
again, the passage by Lord Parker CJ in Lockyer v Gibb (set out at [35]
above) as well as the GD at [12]). Where, to take another example, the
accused is asked by a close family member to carry a box containing
controlled drugs on the understanding that the box (wrapped up, say, in
ribbons) contains a cake which is to be delivered to another close relative,
there might be a strong case for arguing that the accused could not be said
to be wilfully blind because the circumstances ought not to have aroused his
or her suspicions, let alone entailed further investigation. Again, however,
much would (to reiterate an extremely important point) depend on the
precise facts, evidence as well as credibility of the witnesses (especially the
accused).
133 Given our views on actual knowledge as well as wilful blindness
(which is, in law, a form of actual knowledge), it is unnecessary, in our view,
to consider other forms of knowledge. In particular, and here we agree with
the Judge, it is inappropriate to include constructive knowledge as falling
within the ambit of s 18(2) of the Act. However, given the objective
approach that this (indeed, any) court must adopt as well as the very factual
nature of the inquiry itself, we should emphasise that there might be
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[2008] 1SLR(R) Tan Kiam Peng v PP 59
occasions when the line between actual and constructive knowledge might be
blurred (this may particularly be the case in so far as (in the nature of
things) the application of the doctrine of wilful blindness is concerned).
Indeed, as Scott LJ (as he then was) perceptively observed in the English
Court of Appeal decision of Polly Peck International plc v Nadir (No 2)
[1992] 4 All ER 769 (at 777):
The various categories of mental state identified in Badens case are not
rigid categories with clear and precise boundaries. One category may
merge imperceptibly into another. [emphasis added]
134 Nevertheless we accept that there is and ought to be a distinction,
in principle, between actual knowledge on the one hand and constructive
knowledge on the other. Looked at in this light, it would, in our view,
conduce towards clarity to consider the views on the various types of
knowledge considered in Baden ([101] supra). This is not, we hasten to add,
due to the fact that the concept of knowledge was displaced by that of
dishonesty in the context of the doctrine of knowing assistance vis--vis
constructive trusts (as noted briefly above at [102]; cf, though, Tjio ([102]
supra at 303) on the irreducible role of knowledge even in the context of the
ascertainment of dishonesty). The fact of the matter is that the views on the
various types of knowledge in Baden could nevertheless still furnish
guidance from the perspective of general principle. However, that having
been said, we are of the view, with respect, that the views expressed in
Baden do not really assist since, in our view, the doctrine of constructive
notice ought not to be imported, as it were, into s 18(2) of the Act. In the
circumstances, therefore, that part of Peter Gibson Js judgment in Baden
dealing with constructive notice is really irrelevant to the present appeal.
The only relevant part of that judgment pertains to actual knowledge. This
would include the first three categories enunciated by Peter Gibson J (see
[101] above, and per Knox J in the English High Court decision of Cowan
de Groot Properties Ltd v Eagle Trust plc [1991] BCLC 1045 at 1103). Even
so, it might be argued that the third category falls outside the ambit of the
doctrine of wilful blindness, and this appears to be the view adopted by
Peter Gibson J himself in Baden ([101] supra at [253]). However, it must be
borne in mind that the learned judge was utilising the terminology
concerned in the context of constructive trusts instead of with an eye
towards (as is the situation here) the criminal law in general and the Act in
particular. To this end, one will notice, for example (at [101] above), that
the learned judge equates the doctrine of wilful blindness with constructive
knowledge. However, as we have already pointed out above, the doctrine of
wilful blindness, far from being a form of constructive knowledge, is (in
law) a form of actual knowledge. This slight confusion in terminology
might also, with respect, have influenced Peter Gibson Js own
characterisation of the third category of knowledge in Baden. In any event,
we are of the view that there is no difference in substance between the
second and third categories of knowledge in Baden and would respectfully
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60 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
disagree with Peter Gibson J to the extent that he suggests otherwise (see
also MJ Brindle and R J A Hooley, Does Constructive Knowledge Make a
Constructive Trustee? (1987) 61 ALJ 281 at 289). Indeed, as the two
writers aptly observe, [u]nder category (3), [n]egligence is not
sufficient and [a]ctual or Nelsonian knowledge must be shown (see
Brindle & Hooley, supra, at 290).
135 In the light of the difficulties generated by an interpretation of Baden
as set out briefly in the preceding paragraph, the more helpful precedent, in
our view, is the decision in Roper ([104] supra), where a clear and practical
distinction is drawn (as we have seen) between actual knowledge on the one
hand and constructive knowledge on the other with the former
encompassing the doctrine of wilful blindness as well (see generally above
at [116]). This is, of course, consistent with the view of actual knowledge
which we have adopted in the present judgment. However, such an
approach would appear to be at variance with that adopted by the
Singapore High Court in PP v Teo Ai Nee [1995] 1 SLR(R) 450 at [38][39],
where Peter Gibson Js views in Baden (at [101] above) were preferred to
those of Devlin J in Roper (see at [116] above). It should, nevertheless, be
noted that Yong Pung How CJ did, in PP v Teo Ai Nee, acknowledge that
that particular case related to the Copyright Act (Cap 63, 1988 Rev Ed, and
presently Cap 63, 2006 Rev Ed) (the Copyright Act) which (in turn)
concerned both civil and criminal provisions, instead of merely criminal
provisions which was the situation in both Roper as well as in the present
appeal. That is one salient point of distinction. Another and perhaps more
important point of distinction relates to the fact that the provisions
concerned (viz, ss 136(1)(b) and 136(2)(a) of the Copyright Act) contain
the phrase which he knows, or ought reasonably to know [emphasis
added], thus clearly (and expressly) importing (unlike s 18(2) of the Act) the
concept of constructive knowledge into those particular provisions (see also
GD at [23]). Further, Yong CJ was only of the view (at [39]) that Peter
Gibson Js views might be preferred to Devlin Js observations [emphasis
added]. However, to the extent the learned Chief Justice was of the view that
categories two to five in Baden (see at [101] above) were more appropriately
characterised as instances of constructive knowledge, we must, with the
greatest of respect, beg to differ for the reasons set out above (at [134]).
Conclusion
136 At this particular juncture, a summary of the applicable principles of
law would be appropriate.
137 First, although the statutory contexts under Warner ([30] supra) and
under the Act are different, the explication by the House of Lords in
Warner of the general concept of possession (which was adopted locally in
Tan Ah Tee ([49] supra) and a myriad of other Singapore decisions) is
helpful and, in fact, supports the first interpretation of s 18(2) of the Act to
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[2008] 1SLR(R) Tan Kiam Peng v PP 61
the effect that knowledge in s 18(2) is a reference to knowledge that the
drug concerned is a controlled drug.
138 Secondly, there is a second interpretation which states that the
reference to knowledge in s 18(2) is not only to a controlled drug but also to
the specific drug which it turns out the accused is in possession of. The
strongest arguments for this second interpretation are as follows. First,
there is the literal language of that provision. Secondly, because of the
possibility of harsh punishments (including the death penalty) being
imposed, even if it is argued that an ambiguity in the statutory language
exists, the fact of such ambiguity suggests that the benefit of the doubt
ought to be given to the accused. However, although the second
interpretation appears to us to be more persuasive, we express no
conclusive view in this particular appeal simply because this particular issue
was not argued fully before us.
139 Thirdly, whilst the concept of knowledge in s 18(2) of the Act entails
actual knowledge, the doctrine of wilful blindness should also be
emphasised and is also included within the concept of knowledge in s 18(2)
simply because wilful blindness is the legal equivalent of actual knowledge.
However, the reference, particularly in the court below, to the various
theoretical degrees of knowledge is, in our view, unhelpful and might even
have an adverse impact in the sphere of practical application. This brings us
to a closely related point.
140 In so far as the doctrine of wilful blindness is concerned, the evidence
required to be adduced by the accused to rebut the presumption of
knowledge of the nature of the controlled drug under s 18(2) of the Act is
by no means a mere formality, even though the standard required is the
civil standard (of proof on a balance of probabilities). Such an approach is
not only just and fair but is also consistent with the underlying policy of the
Act itself. However, we have also demonstrated that in situations where the
accused truly does not know the nature of the controlled drug in his or her
possession, it is clear that the accused will be able to rebut the presumption
of knowledge of the nature of the controlled drug under s 18(2) on a
balance of probabilities. This will be the situation where, for example, the
controlled drugs in question were slipped into a package the accused was
carrying without his or her knowledge (see also above at [35] and [132]), or
where the accused is otherwise devoid of actual knowledge and finds
himself or herself in a situation in which the facts and circumstances do not
give rise to that level of suspicion that would entail further investigation lest
a finding of wilful blindness results. All this, again, is consistent with the
underlying policy of the Act.
141 Fourthly, therefore (and still on the issue of knowledge in s 18(2) of
the Act), whilst general regard ought to be had to the concept of actual
knowledge (including the doctrine of wilful blindness), the main focus ought
always to be on the specific or particular factual matrix in the case at hand.
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62 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
The principal difficulty lies in the attempt to divine a universal legal norm
to comprehensively govern what is essentially and, at bottom, a factual
inquiry. This is not to state that, in certain areas of the law, such an
approach is inappropriate. However, in a situation such as the present, such
an approach is less than satisfactory simply because the focus is primarily
factual and (more importantly) the permutations of the factual matrices are
too numerous, varied and complex to admit of a perfect legal solution. It is,
of course, axiomatic that a universal legal norm is necessary. What,
however, should be eschewed is the attempt to formulate a universal legal
norm that purports to comprehensively govern the various (and variegated)
fact situations. This leads, as we shall see, to excessive refinements and fine
distinctions that hinder (rather than facilitate) the task at hand. Indeed, that
s 18(2) of the Act is formulated at a fairly high level of generality is an
acknowledgment of the danger just mentioned. In the circumstances, the
universal norm with respect to knowledge in s 18(2) is that it would
encompass actual knowledge in both its purest form as well as in the form
of wilful blindness and would apply to the specific factual matrix concerned
with the focus being, in the nature of things, on the latter.
142 Having set out the relevant legal principles, we now turn to apply, in
the context of the present appeal, these principles to what we have just
emphasised is the most important aspect of cases of this nature the factual
matrix.
Our decision
Introduction
143 The principal grounds of appeal centred on the various statements
made as well as (in the main) how these statements impacted on the state of
knowledge of the appellant in so far as s 18(2) of the Act was concerned.
The statements made by the appellant to Constable Phua and SI Ong
144 Counsel for the appellant, Mr Rengarajoo, argued that the statements
reproduced above at [12] and [15] were in fact exculpatory in nature and
that that was the reason why the appellant did not challenge them. It bears
repeating that although these statements were not reduced into writing,
they were adduced in evidence as part of the conversations between the
appellant on the one hand and Constable Phua and SI Ong, respectively, on
the other, and which (in turn) were subject to cross-examination.
145 The Judge in fact held that the procedural challenge tendered by the
appellant in so far as these statements were concerned was a mere
afterthought (see GD at [46]). Indeed, we note that the Judge had the
opportunity of assessing the credibility of the respective witnesses and there
is no reason why his finding in this regard should be overturned. We turn
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[2008] 1SLR(R) Tan Kiam Peng v PP 63
now to consider the other substantive arguments that were made in the
present appeal.
146 The issue that arose both in the court below as well as in the present
appeal centred on the legal effect of these statements.
147 It will be recalled that the statements contained references by the
appellant to the contents as number 3. Nevertheless, Mr Rengarajoos
argument was that the reference was not to heroin number 3 but, rather,
simply to number 3.
148 The Judge held, in fact, that the appellant, by [intimating]
unequivocally time and again that he knew that the drugs were called
number 3 knew full well that he was carrying heroin and his statements
indicating that the drugs were number 3 were not, by any stretch of the
imagination, benign references to the numerical digit three (see GD at
[52]).
149 It is also clear from the relevant testimony in the court below that
number 3 is in fact a reference, in street talk or parlance, to heroin of a
particular grade. The evidence revealed (and the Judge in fact so found) that
there was, in this context, neither a grade 1 or 2, although there might be a
grade 4. Indeed, the Judge himself was at pains to clarify the significance of
the phrase number 3, particularly as it is understood in its context (see
GD at [51]).
The following clarification from SI Ong is also instructive:
[emphasis added]
Further, whilst such clarification was also sought by the Judge of Insp Teng,
it is of equal importance in relation to the general point now being
considered in relation to Constable Phuas and SI Ongs oral statements. In
particular, Insp Teng clarified that there were different grades of heroin in
the (Singapore) market and that, as noted in the exchange below,
number 3 is one of the grades; and in response to a question from the
court as to what the other grades of heroin were, the following exchange is
instructive:
Court: Let me clarify the point once again for you and
then you can decide. Among drug users in
Singapore or among those who traffic drugs, when
they use the word number 3, does that mean
heroin?
Witness: Yes.
Court: And nothing else? No, number 3 means heroin;
it doesnt mean any other drug?
Witness: That is so.
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64 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
[original emphasis in italics; emphasis added in bold italics]
In a similar vein, the following responses from ASP Herman (during
examination-in-chief by the prosecution counsel) are also instructive:
Court: Can I just clarify something with you, Insp Teng?
Witness: Yes, your Honour.
Court: He [the appellant] used the word, as you said, peh
hoon sar tong [sic], right?
Witness: Peh hoon sar ho.
Court: Sar ho. Now, what does sar ho mean? Because if
peh hoon already means heroin, why the sar ho?
Witness: Your Honour, because theres different grading of
heroin in the market, so you got different grading,
so number 3 is one of the grades.
Court: What are the other grades?
Witness: The common [sic] in Singapore would be grade
number 4 and grade number 3.
Court: And theres grade 1 and 2 as well?
Witness: Not--I havent encountered them, your Honour.

Court: And when you use these different grades like

number 3 or number 4, other than heroin, would
you use the grades in relation to other types of
drugs like opium or cannabis or ganja?
Witness: Your Honour, from what I know, theres no
grading for cannabis or ketamine, that sort of
drugs.
Court: Right. So do you use--the word number 3 in
isolation, what would that mean to you?
Witness: If it is just a number 3 without anything, then
[sic] doesnt mean anything to me.
Court: Suppose someone were to point a packet of
powder, yellow or white, and say this is number 3,
would that have any significance?
Witness: Your Honour, I would then clarify with him,
What do you mean by number 3? Because
number 3 doesnt really mean anything.
Court: But heroin is the only drug used on the streets
which has a number attached to it to signify purity?
Witness: This is from my limited knowledge, your Honour.
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[2008] 1SLR(R) Tan Kiam Peng v PP 65
[emphasis added]
150 The following observations by the then Minister for Home Affairs
and Education, Mr Chua Sian Chin, during the second reading of the
Misuse of Drugs (Amendment) Bill are also relevant (see Singapore
Parliamentary Debates, Official Report (20 November 1975) vol 34 at
col 1383):
The heroin that is commonly used by drug abusers and addicts in
Singapore is referred to as Heroin No. 3. This is currently sold in little
plastic phials, at $32 per phial. It is usually mixed with other substances
in the proportions of about 40% pure heroin and 60% adulterants.
Each phial contains about 0.8 grammes of the mixed substance.
Therefore, a person will only be in danger of receiving the death
penalty if he has in his possession some 37.5 grammes of adulterated
heroin which contains 40% of pure heroin. This works out to 47 phials.
Q: Now, witness, how long have you been with the
Central Narcotics Bureau?
A: Your Honour, I have been with CNB for 8 years.
Q: Now, based on your knowledge of the drug scene in
Singapore, can you tell the Court what are the types
of heroin that are commonly available in
Singapore?
A: Your Honour, the local addicts abuse heroin
number 3, what we call heroin number 3 in
Singapore.
Court: Sorry? The local---
Witness: Heroin number 3, they call it number 3.
Court: No, what did you say before that? Local addicts?
Witness: They consume heroin number 3.
Court: Do you know why its called heroin number 3?
Witness: No, Sir.
Q: Besides heroin number 3, are there any other kinds
of heroin that you have come across or that are in
circulation in Singapore?
A: I have not seen heroin number 4 in circulation in
Singapore but I have been involved in operation
where heroin number 4 was seized. This is a purer
form of heroin than heroin number 3.
Q: And, witness, are there heroin number 1 and
number 2 as far as you know?
A: As far as I know, I have not come across number 1
and number 2, your Honour.
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66 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
And it costs about $1,500 to buy this amount at the current retail price.
[emphasis added]
151 The issue that now arises is whether or not the Judge was correct in
holding that the appellant had clearly understood that number 3 was the
street name for heroin and that, in the circumstances, therefore, the
appellant knew that he was carrying heroin. In our view, the fact that it is
objectively the case that number 3 is the street name for heroin does not
necessarily conclude the matter in favour of the respondent inasmuch as we
are concerned here with the appellants subjective knowledge, albeit
assessed on an objective basis. The relevant facts before us reveal that while
it is acknowledged that the appellant is not a known drug abuser or addict,
he must be taken to have some knowledge of drugs, given the circumstances
surrounding the manner in which he came into possession of the drugs in
the context of the present appeal, which have been set out at the
commencement of this judgment.
152 Mr Rengarajoo did, however, also argue that SI Ong did not ask the
appellant whether he knew he was carrying heroin or if he knew that
number 3 was in fact heroin. With respect, we do not find this argument
persuasive. There was no duty on the part of SI Ong to ask these questions.
As we observed in the preceding paragraph, an objective approach has to be
adopted.
153 In this regard, and returning to the issue posed at [151] above, we
note, first, that the appellant is not (as we have noted (again, at [151]
above)) a known drug abuser. However, it was clear (as we have also noted)
that he had some knowledge of controlled drugs. We note, in particular, his
claim that he had only intended to carry ecstasy (which offence does not
carry the death penalty). Nevertheless, we were of the view that to then
conclude that the appellant must have known the much more specific
proposition to the effect that number 3 alone was the street name for
heroin was not clearly warranted on the facts, bearing in mind the fact that
the criminal standard of proof entails proof beyond a reasonable doubt.
Although we were initially inclined towards accepting the Judges analysis
(see at [148] above) to the effect that the appellant, by intimating time and
again that he knew that the drugs he was carrying were called number 3
and that, consequently, he knew full well that he was carrying heroin, it was
not entirely clear that, notwithstanding the fact that most persons in the
drug trade would probably know that number 3 alone is the street name
for heroin, this would also be general knowledge for persons in the
appellants shoes. We therefore, albeit with some reluctance, find in favour
of the appellant on this particular point. We say with some reluctance
because it was clear, as we have already noted, that the appellant was no
babe in the woods, having, inter alia, some knowledge of drugs and having
in fact sought out the opportunity to transport drugs (albeit, as claimed by
the appellant himself, not those which carried the death penalty).
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[2008] 1SLR(R) Tan Kiam Peng v PP 67
154 However, this does not mean that the appellant did not need to take
further steps in the context of the doctrine of wilful blindness a point
which we deal with below (at [156]).
155 Returning, however, to the issue of actual knowledge (as opposed to
its other legal variant in the form of the doctrine of wilful blindness), it was,
in our view and for the reasons given above (especially at [153]), not clear,
based only on the appellants own oral statements to both Constable Phua
and SI Ong, that he in fact knew that number 3 alone referred, in effect, to
heroin number 3. However, we must emphasise that this particular
conclusion is based only on these oral statements. As we shall see below
(especially at [158] and [171]), when these statements are read together with
the written statement recorded by Insp Teng, the conclusion is the exact
opposite (ie, that the appellant did have actual knowledge that the drugs he
was carrying consisted of heroin).
156 Furthermore, even on our finding that the appellant did not have
actual knowledge that the drugs he was carrying consisted of heroin (based,
it should be emphasised, solely on the appellants statements to
Constable Phua and SI Ong), this is not the end of the matter, simply
because there could be wilful blindness instead (which is the legal equivalent
of actual knowledge (see at [123] above)). It is clear, on the evidence, that
the appellant clearly suspected that the drugs he was carrying were heroin. It
was for this reason that the appellant did not pursue the matter further with
Uncle, lest he (Uncle) confirm beyond peradventure that the drugs (which
were said to be number 3) were in fact heroin. It will be recalled that the
appellant stated that Uncle had merely held up three fingers in response to
his question as to what the packets he (the appellant) was being strapped
with contained (see at [7] above). It will also be recalled that when the
appellant then told Uncle that it was a lot, Uncle disagreed and used his
fingers to indicate seven. Even at this juncture, it will be noticed that there is
a discrepancy in the appellants own evidence as to what transpired between
him and Uncle. It is clear that the appellant was attributing the quantitative
element to the numbers which Uncle had indicated (here three and
seven, respectively) (see also GD at [52]). However, it is equally clear that
given the discrepancy in Uncles response within that brief moment, it was
not reasonable to attribute the quantitative element to both his answers, as
the appellant claimed. It is a reasonable inference, in our view, that the
second response (seven) was quantitative in nature, whereas the first
(three) was qualitative in nature inasmuch as it referred to the specific
type as well as grade of the drug itself (here, heroin number three). Be that
as it may, even if we assume an ambiguity, that ambiguity cried out for
clarification. Yet, the appellant, according to his own testimony, did not
follow-up with Uncle in this regard. Indeed, given (according to the
appellants own evidence) Uncles extreme reluctance to elucidate the
matter (which even bordered on caginess), a person in the appellants shoes
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68 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
would have had his or her suspicions aroused as it was clear that something
was certainly amiss. This was a clear situation where following-up was not
only desirable, but absolutely imperative, especially given the possible and
ultimate sanction of the death penalty. Indeed, if satisfactory answers
were not forthcoming from Uncle, a person in the appellants shoes still had
the choice to abandon the deal they had altogether. However, it is
unnecessary for us to even go so far. It is clear, as we have already noted,
that the appellant did not follow-up with Uncle at all. Hence, even
according the appellants evidence the broadest latitude, it is clear that, at
the very least, the appellant was guilty of wilful blindness: He had
deliberately refrained from making further inquiries and, hence turned a
blind eye to what he believed to be the truth in order to avoid obtaining
certain knowledge of that truth (that the drugs were such as would attract
the death penalty).
157 Our view on this issue is also buttressed by the findings by the Judge
in the court below. In this regard, the Judge observed thus (see GD at [55]):
Even if I was wrong to hold that Tan knew (and/or has failed to
disprove that he knew) that he was importing heroin, I was persuaded
that he had been wilfully blind to the obvious fact that he was carrying
heroin. The picture portrayed by the evidence is that of a man
desperately in need of money. He approached, without instigation or
encouragement, his friend to ask for lobangs in the drug trafficking
business. He claims to have asked only to be involved in the trafficking
of Ecstasy within Malaysia; but this alone inherently demonstrates
both knowledge of the assortment of drugs available and of the
potential severity of punishment for smuggling drugs into Singapore.
Yet, despite his professed willingness to traffic only drugs that would
attract a lower sentence, he did not flinch when Uncle purportedly
responded by holding up three fingers when he asked what drugs he
was carrying. It may be reasonably inferred from the fact that he was
prepared to traffic Ecstasy that he knew what Ecstasy looked like.
Moreover, he admitted during cross-examination that he read the
newspapers regularly enough to know that trafficking heroin attracted
the death penalty. Tan must have known that the yellowish powder
could not have been Ecstasy; he even accepted it was number 3. That
Tan did not press on with his inquiry concerning the nature of the
drug even while he asked a barrage of other questions regarding how
he was going to carry so many packets of drugs, whether he looked too
bulky because of the drugs, and where he was supposed to deliver them
to, inter alia, shows that if he did not already know that he was carrying
heroin, he was virtually certain that it was heroin but wilfully chose to
turn a blind eye. This is not a case of a trafficker recklessly or
negligently relying on an assurance that the drugs were not serious;
Uncle had given what Tan himself understood as an affirmative
indication that the drugs were number 3 drugs. The inexorable
inferences from all these facts is that Tan must have known clearly, or
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[2008] 1SLR(R) Tan Kiam Peng v PP 69
else, at the very least, chose to be wilfully blind to the fact that he was
importing heroin. [emphasis in original]
We would only disagree with one particular aspect of the above
observations: That the appellant was virtually certain that the drugs
concerned were heroin but wilfully chose to turn a blind eye. As we have
explained in some detail above (at [127] and [129]), whilst the highest level
of suspicion would result in virtual certainty, this particular level of
suspicion is not required before the doctrine of wilful blindness can be
triggered. Whilst much would turn on the precise facts before the court, one
must and this cannot be emphasised enough not equate virtual certainty
(which is either, or at least borders on, actual knowledge in its purest form
(see also per Yong CJ in Koo Pui Fong, set out at [103] above)) with that of
the level of suspicion that is a threshold element under the doctrine of wilful
blindness.
158 However, it is important, at this juncture, to emphasise once again
that we have hitherto considered only the statements made by the appellant
to Constable Phua and SI Ong (see also at [155] above). Whilst, as we have
seen, these statements themselves demonstrate wilful blindness on the part
of the appellant, it is equally important to note that these statements must
also be read in context. In particular, they were not the only statements
made by the appellant. To this end, they must be read together with the
written statement recorded by Insp Teng. Indeed, as we shall see, this
particular written statement itself demonstrates that the appellant had
actual knowledge that the drugs he was carrying consisted of heroin. This
finding also throws light, simultaneously, on the statements made by the
appellant to Constable Phua and SI Ong inasmuch as it clearly
demonstrates that the appellant knew that number 3 was in fact heroin.
To summarise, the statements made by the appellant to Constable Phua and
SI Ong were sufficient to establish wilful blindness on the part of the
appellant (which is the legal equivalent of actual knowledge on his part that
the drugs he was carrying consisted of heroin). In any event, we shall see
that the written statement recorded by Insp Teng demonstrates actual
knowledge on the part of the appellant that the drugs he was carrying
consisted of heroin and simultaneously demonstrates that the reference by
the appellant in his statements to Constable Phua and SI Ong to
number 3 was, in fact, a reference to heroin number 3. In the
circumstances, it is of the first importance to turn now to the written
statement recorded by Insp Teng.
The written statement recorded by Insp Teng
159 Mr Rengarajoo argued that the appellant never said (contrary to
Insp Tengs testimony at the trial itself) the words peh hoon to Insp Teng.
Mr Rengarajoo stated that all that the appellant had stated to Insp Teng
were the words number three powder, which was consistent with what he
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70 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
had said earlier to Constable Phua and SI Ong. In other words,
Mr Regarajoo argued that it was Insp Teng, and not the appellant, who had
translated, used and recorded the word heroin in the appellants
statement.
160 We are unable to accept the appellants version as set out in the
preceding paragraph.
161 Indeed, the Judge held, in fact, that the appellants suggestion to the
effect that Insp Teng had put the (additional) word heroin in the
appellants mouth was both belated and entirely improbable (see GD at
[48]). The Judge further held that from the testimony given by the appellant
at the trial, the statement concerned had been accurately explained by
Insp Teng to him (the appellant) (see ibid). The Judge had also held that the
appellants own testimony further demonstrated that he had not
unequivocally denied knowledge of what he was carrying and that he had
not claimed that Insp Teng had used the word heroin in any of his
(Insp Tengs) questions (see ibid). On the contrary, the Judge found that the
appellant had acknowledged that Insp Teng had read the statement back to
him and, in the statement, the appellant had admitted that the drugs were
heroin number 3 and, yet, he had voluntarily signed this particular
statement (see ibid). Further, the appellant was no simpleton and had
passed his O level exams, even managing a pass mark for English (see
ibid). The Judge, in fact, held that this particular statement [amounted] to
a conclusive statement [by the appellant] that he knew he was carrying
heroin (see GD at [53]).
162 Mr Rengarajoo argued before us that the Judge had erred in making
the above findings. With respect, we are unable to agree.
163 There was clearly a dispute at trial with respect to what the appellant
had said to Insp Teng. It was one witnesss word against the others. It
naturally follows, therefore, that the credibility of the respective witnesses
would play a crucial role as to which version the Judge ultimately believed.
And the Judge in fact held that he had found Insp Teng, who gave his
evidence in a direct and forthright manner, a credible witness and
accepted his testimony that he had not suggested the Hokkien equivalent
of heroin when he recorded Tans responses to his initial queries (GD at
[49]). We reiterate the point made earlier in this judgment (at [22]) that an
appellate court would, in such circumstances, be slow to interfere with the
findings of the trial judge.
164 However, in attacking the findings on this particular issue before us,
Mr Rengarajoo argued that the Judge had not first resolved the issue as to
whether the appellant had indeed said the word peh hoon and that unless
this issue was resolved, the Judge could not have then proceeded to find that
Insp Teng had accurately translated and explained to the appellant that
peh hoon meant heroin. Such an argument is, in substance, an attack on
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[2008] 1SLR(R) Tan Kiam Peng v PP 71
a finding of fact by the trial judge which (once again) centred heavily on the
credibility of the respective witnesses. Having looked closely at the available
evidence as well as at the transcript of proceedings, we are of the view, with
respect, that Mr Rengarajoo has not demonstrated why this particular
finding by the Judge (that the appellant had said the word peh hoon to
Insp Teng) was in error. It is also significant, in our view, that peh hoon is
a Hokkien term and that the appellant in fact chose to render his statement
to Insp Teng in Hokkien (indeed, this is not surprising as the appellant had
himself admitted, under cross-examination, that he understood Hokkien
well). Further, although this particular statement was recorded in English, it
was subsequently read over and explained to the appellant in Hokkien
before the appellant himself signed it (declining the invitation to make any
amendment to it). We also note this statement was made only
approximately two hours after the appellants arrest at the Woodlands
checkpoint.
165 Mr Rengarajoo nevertheless had yet another string to his legal bow:
He argued that peh hoon (which, as we have pointed out above, is a
Hokkien word) did not mean heroin. He referred to the observation of
Yong Pung How CJ in the Singapore decision of Lee Yuan Kwang ([121]
supra at [6]), where the learned Chief Justice had indicated that peh hoon
meant drugs in Hokkien. With respect, however, this particular
observation should not be taken out of context. Indeed, the court in that
case was not (unlike the court in the present appeal) dealing with the specific
meaning of peh hoon as such.
166 More importantly, the following exchange between Mr Rengarajoo
and Insp Teng during the formers cross-examination of the latter at the
trial is instructive:
Q: Witness, the word peh hoon means, you heard, it is white
powder, right? Its white powder; thats the literal meaning of
peh hoon. Peh means white, I think, hoon is powder, right?
Now, why didnt you put it as white powder?
A: Your Honour, because peh hoon is a street language that
everyone knows that it stands for heroin, your Honour.
[emphasis added in bold italics]
167 Insp Tengs response as reproduced above is significant. It re-
emphasises the obvious and commonsensical point that any words uttered
by the appellant must be construed in context. Mr Rengarajoo was correct
in pointing out that, in a literal translation from Hokkien to English, the
phrase peh hoon means white powder. However, such a literal
translation obscures the true meaning of this phrase which can only be
derived from the context in which such a phrase is used. It is clear, from the
context, that the phrase peh hoon was simply the Hokkien term for heroin.
This is a radically different situation from one where the phrase number 3
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72 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
is involved as (unlike the phrase number 3) the phrase peh hoon clearly
has currency of meaning in the broader societal context. Further, as the
respondent correctly pointed out, the appellant speaks Hokkien and had, in
fact, used this very term (viz, peh hoon) in his statement recorded
pursuant to s 122(6) of the CPC, when referring to the knowledge of the
taxi driver (which statement is considered below at [175]).
168 Mr Rengarajoo also attempted to argue that the phrase peh hoon
merely meant illegal drugs in powdery form. Again, we find such an
argument to be too vague and general. The meaning of the phrase peh
hoon had to be ascertained against the backdrop of the specific context and
that this (in turn) entailed looking at what was commonly understood as
peh hoon. Further, when the phrases are taken together (viz, peh hoon sar
ho), it is clear that, viewed in context, the reference was clearly to heroin.
169 Mr Rengarajoo also argued that even if the appellant had made this
statement recorded by Insp Teng (in particular that part containing the
sentence, I believed it is heroin number 3.) this was because, by the time
he met Insp Teng, he (the appellant) had already known the nature of the
drugs from observing what the officers had said. More specifically,
Mr Rengarajoo argued that when the appellant signed this particular
statement, the appellant was, in all probability, under the misguided
impression that the statement was meant to reflect his knowledge at the
point in time when he signed the statement and not at the point in time
when he had agreed to bring the drugs into Singapore by which time the
appellant had, as just mentioned, knowledge of the drugs from observing
what the officers had said. With respect, we find this argument wholly
unpersuasive. If the situation had been as the appellant had maintained it
was, he ought not to have signed the statement and ought, instead, to have
protested. This would have been the natural course of action for the
appellant to have adopted.
170 Mr Rengarajoo also argued that Insp Teng did not ask the appellant
whether he knew he was carrying heroin or if he knew number 3 was in
fact heroin. With respect, we see no reason why Insp Teng should have
adopted this course of action, especially in the light of our findings which
have just been set out above.
171 In the circumstances, it is clear, based on this particular written
statement recorded by Insp Teng (and even if we do not take into account
any other statement made by the appellant), that the appellant had actual
knowledge that the drugs he was carrying consisted of heroin. It also
follows, as we have pointed out at [158] above, that when the appellant
referred to number 3 in his statements to Constable Phua and SI Ong,
this was in fact a reference to heroin number 3. Indeed, given our finding
that the appellant had actual knowledge that the drugs he was carrying
consisted of heroin, there is in fact no need for this court to rely on the
presumption under s 18(2) of the Act (set out at [19] and [54] above). As we
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[2008] 1SLR(R) Tan Kiam Peng v PP 73
have observed earlier in this judgment, the appellant would not even be
required to rebut the presumption that he had actual knowledge of the
nature of the drug because, on the evidence, it was clear that he had actual
knowledge of the nature of the drug (see above at [98]).
The written statements recorded by ASP Herman
172 The written statements recorded by ASP Herman comprised, first, a
statement recorded pursuant to s 122(6) of the CPC, as well as three other
statements recorded on other separate occasions (as noted above at [17]).
Once again, we note that the appellant gave the statements in Hokkien and
that, whilst the statements were recorded in English, they were each read
over and explained to him in Hokkien before he signed them (after
declining the invitations, each time, to make any amendments to them) (see
also at [164] above).
173 The Judge held correctly, in our view that in none of the
statements referred to in the preceding paragraph did the appellant state the
critical fact that he did not know what he was carrying (see GD at [54]). On
the contrary, the appellant stated, instead, that the taxi driver did not know
about the peh hoon (see also the next paragraph). The Judge held again,
correctly, in our view that, in those circumstances, the appellant had
thereby implicitly affirmed his knowledge that the drugs were indeed
heroin (see GD at [54]). We also agree with the Judges conclusion that the
appellants argument that he understood peh hoon to mean white
powder (instead of heroin) to be contrived (see ibid). Indeed, the Judge
found that, at the trial itself, the appellant had conceded that he roughly
knew that peh hoon was a reference (in Hokkien) to heroin (see GD ibid).
In the appellants own words:
I roughly knew about it but I did not understand it fully.
174 Once again, the Judges assessment of the credibility of the various
witnesses (in particular, the appellant) is of obvious importance.
175 Mr Rengarajoo argued, in particular, that the Judge had erred in
holding that the appellant should have stated that he was innocent in the
long statement recorded by ASP Herman when the appellant had never
been asked what number 3 was or whether he was importing heroin.
Likewise, Mr Rengarajoo argued that the Judge had erred in holding that
the appellant should have stated in his statements that he was ignorant of
the precise nature of the drugs when the appellant had never been asked
what number 3 was at all material times and that the appellant could not
be faulted for merely narrating what Uncle had told him (viz, number 3).
With respect, we find no merit in these arguments. Given the immense
gravity of the offence (which the appellant clearly knew about by the time
the relevant statements were made by him to ASP Herman), any person in
the appellants shoes would have stated that he or she was innocent and that
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74 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
he or she did not know the precise nature of the drugs (see also Yeoh Aik
Wei v PP ([60] supra at [13]). On the contrary, as the Judge himself
observed, the appellant was, instead, at pains to exculpate the taxi driver
instead. Indeed, in the only words uttered in his statement made under
s 122(6) of the CPC, the appellant said:
The driver does not know anything about the pei hoon.
In a similar vein, in his further statement recorded on 22 August 2005, the
appellant stated thus:
I wish to say that this is the first time I saw the taxi driver. He is not
related to this case. He was just earning some money to drive me
around as a pirate taxi driver.
And in a yet further statement recorded on 25 August 2005, the appellant
said:
From my conversation with Ah Beng the taxi driver, I discern that he
was just operating an unlicensed taxi business and he was just trying to
earn a living. There is no reason for him to pick me up if he knows I am
carrying drugs.
While the appellant did claim that he had wanted to end the matter fast as
the taxi driver had been grumbling that he had been dragged into the entire
matter by the appellant, this still did not explain why the appellant did not
also seek to exculpate himself after he knew he was being charged for an
offence relating to heroin and which carried the death penalty. Indeed, in
his evidence at trial, he said that if he had known that it was heroin, he
would definitely have run away. The appellant did also claim that he was
very tired but, again, given the gravity of the situation, no reasonable
explanation was given by him as to why he had said nothing to exculpate
himself. All this is, at the very least, consistent with the appellant having
actual knowledge that the drugs he was carrying consisted of heroin.
Conclusion
176 We find that, on the objective evidence before us, it is clear beyond a
reasonable doubt that the appellant not only knew that he was carrying
controlled drugs but also that he had actual knowledge that those
controlled drugs he was carrying consisted of heroin. We should add that
the appellants argument to the effect that he had been paid a pittance was
neither here nor there. Indeed, his acceptance of the sum offered to him
merely underscored the fact (which the appellant himself admitted) that he
(the appellant) was in dire and desperate financial straits. Such an action is
also consistent with the appellants professed ignorance of the respective
values of the various controlled drugs. These points were, in fact, also noted
by the Judge (GD at [59]); in addition, the Judge also noted (correctly, in
our view) the fact [t]hat the first and only mention of a fee surfaced
while Uncle was strapping the drugs unto [the appellant] signifies that there
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[2008] 1SLR(R) Tan Kiam Peng v PP 75
was no genuine attempt whatsoever to negotiate a fee for transporting the
drugs (see GD at [60]). The following further general observations by the
Judge are also, in our view, apposite (see ibid):
In the absence of other compelling evidence (such as a course of
negotiation, or a custom dictating a certain price for certain drugs), the
price at which a courier is willing to traffic drugs is rarely (if ever) a
barometer to signal that the courier did not know the nature of the
drugs he was trafficking.
Conclusion
177 The underlying policy of the Act has already been dealt with in some
detail above. As we have seen, this policy has (naturally) shaped this courts
interpretation of s 18(2) of the Act. A coda might, at this juncture, be
appropriate in order to correct the popular yet wholly erroneous and
simplistic perception that somehow individual rights have (in the light of
the Act) somehow gone by the board.
178 It should be noted that the Act itself is only one method (albeit a very
major one) of dealing with the problem of drug abuse. As the Minister of
Law, Prof S Jayakumar, put it during the second reading of the Bill which
was ultimately passed as the Misuse of Drugs (Amendment) Act 1998
(Act 20 of 1998) (see Singapore Parliamentary Debates, Official Report
(1 June 1998) vol 69 at col 47):
The overall drug situation may be under control today, but we must
never rest on our laurels. However, in addition to tough laws and strict
enforcement, I wish to assure Members [of Parliament] that my
Ministry would continue to focus on preventive drug education,
treatment, rehabilitation and aftercare of recovering addicts who are
amenable to change. Only adopting a comprehensive approach
towards drugs would we eradicate the drug problem in Singapore.
[emphasis added]
179 More importantly, whilst safeguarding the rights of the accused
according to law is vital, it must not be forgotten that that it is equally vital
to safeguard the rights of persons in the wider community whose lives
would be ruined if controlled drugs such as those involved in the present
proceedings had found their way into their hands (see also generally above
at [27][28]). Indeed, the potentially horrendous consequences in the
present context were noted by the Judge himself (see GD at [65]):
The quantum of heroin involved in hardly insubstantial. With a street
value of some $900,000 it carries with it the potential to ruin many lives
and to cause incalculable pain and misery to the wider community.
[emphasis added]
180 And it is not only the lives of drug abusers and consumers which
would be ruined. The social cost arising from the profoundly deleterious
effects that would inevitably permeate the lives of their respective families
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76 SINGAPORE LAW REPORTS (REISSUE) [2008] 1SLR(R)
must also be taken into account (and are also embodied in the Judges
observations above).
181 The sharp dichotomy often drawn between individual rights on the
one hand and majoritarian goals on the other (often encompassed within
the rubric of the public interest) is, in this particular context at least, a
fallacy. The public interest is not, as we have just seen, a mere abstract or
theoretical concept. In this particular context, it encompasses a situation
where drugs impact (in the most adverse manner possible) actual lives in
real space and time with (in many instances) equally adverse
consequences for the future as well. The individual lives of affected
members of the public are, indeed, very real. These persons possess
individual rights that are safeguarded by the provisions of the Act (see also
at [75] above). We must never lose sight of this reality.
182 Looked at from another perspective, the present proceedings also deal
with the appellants legal responsibility for his actions under the relevant
provisions of the Act. As has been noted by the Judge, it is tragic that the
appellants dire financial straits drove him in part, probably in large part
to do what he did. However, each individual must take legal responsibility
for his or her own actions. Unpleasant and painful though it is, this court
has no choice but to decide on the issue of the appellants legal liability
according to the law as applied to the relevant facts of the case itself. We had
no choice but to find, on the evidence, that the appellant knew or was at
least wilfully blind to the fact that he was transporting heroin. He had
therefore not succeeded in rebutting the presumption (under s 18(2) of the
Act) that he knew the nature of the drug concerned. Indeed, there was no
need to invoke this presumption in the first instance. The respondent has,
in the circumstances, proven its case against the appellant beyond a
reasonable doubt.
183 In the premises, we dismissed the appeal.
Reported by Linda Esther Foo.
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