[THIS IS A FICTIONAL CREATION INSPIRED BY SOME OF THE LEGAL CASES THAT CAME ACROSS OUR PRACTICE EITHER DIRECTLY OR INDIRECTLY. IT IS NOT MEANT TO BE A LEGAL ADVICE]
Mun Tak and Janet were immediately detained. The crystalline substance was later confirmed to be methamphetamine also known on the street as “ice”, “syabu” or “crystal” weighing about 300g.
Mun Tak protested his innocence, desperately explaining how the car was just a borrowed vehicle belonging to a man in Malaysia called Ah Sing. After a series of interrogations, both Mun Tak and Janet were charged with drug trafficking.
In law (both in Malaysia and Singapore), when the accused has in possession a drug weighing above a certain limit, then it is presumed that the accused is (i) trafficking the drugs rather than (ii) misusing/abusing the substance.
The difference is crucial as it is a matter of life and death (literally). The punishment for drug trafficking in both Malaysia & Singapore is the dreaded death penalty by hanging.
To give you some perspective, section 17(h) of the Singapore Misuse of Drug Act (MDA) states that: “Any person who is proved to have had in his possession more than 25g of methamphetamine … shall be presumed to have had that drug in possession for the purpose of trafficking…”.
Whereas in Malaysia the presumption weight for methamphetamine is 50g per section 37(da)(xvi) of the Dangerous Drugs Act.
In Mun Tak’s case, the total weight was 287g! Things did not look pretty.
The presumption clause such as above is a very powerful tool for the prosecutors as it takes away the heavy lifting from the prosecutors. As a result, the prosecutors need not prove Mun Tak to be a drug-trafficker since it is already presumed so by law. The burden is now on Mun Tak to rebut the said presumption, failing which means Mun Tak heads for the gallows.
The death penalty was initially meant to serve as deterrence, but as years went by, its effectiveness in the war on drugs are now being questioned? Cases of drug trafficking remain high if not increasing.
But what is more disheartening are the cases where drug-mules were duped into taking unknown “parcels” or “documents” across international borders in exchange for monetary rewards. A lot of people, mostly the desperate, the gullible or simply those who were just eager to travel (nothing beats a free holiday to the heavenly and warm beaches in South East Asia) still fall for the scheme.
Most of them do not even know that the envelope of “documents” that they were travelling with were illicit drugs. As a result, innocent people were charged and executed while the drug lords remained free to pick their next mule.
I digressed. Mun Tak was not a drug mule. However, he soon found himself sharing a similar fate with one.
After a few mentions and case managements in court, the prosecutions decided to drop their charges against Janet. The Court then granted a discharge not amounting to an acquittal (DNAA) to Janet. A bit of a jargon there, it simply means that Janet would be released but may be rearrested and charged again if there is new evidence that may implicate her in the future. This was the last time Mun Tak ever saw Janet again.
The prosecutions were concentrating their firepower on Mun Tak.
Mun Tak appointed Simon Lee, an experienced criminal lawyer in Singapore with 30 years under his belt as his Defence Counsel. As part of the Defence’s submission, the Defence’s argument could be briefly summarised as below:
(i) That Mun Tak’s DNA was not found on the pink plastic bag;
(ii) That the DNA of an unidentified individual was found instead, it was presumed that the said unidentified individual is Ah Sing;
(iii) That the Mun Tak was not the owner the vehicle but Ah Sing, a Malaysian living across the causeway;
(v) That it would be unthinkable for any drug trafficker to place the illicit drugs so overtly inside the glove compartment, unconcealed and in plain sight; and
(vi) That Mun Tak had a legitimate reason to travel to Singapore on that day. If you recall, Mun Tak had initially planned to pick up a work related document from a colleague in Hougang, the said colleague attended court to confirm this.
The prosecution’s arguments were more simplistic and straightforward. Beside the presumption of drug-trafficking at s17(h) of MDA, the prosecutors also relied on 2 more presumptions clauses provided by the same statute:
“Section 21 – Presumption relating to vehicle:
If any controlled drug is found in any vehicle, it shall be presumed, until the contrary is proved, to be in the possession of the owner of the vehicle and of the person in charge of the vehicle for the time being.”
and
Section 18(2) – Presumption of possession and knowledge of controlled drug:
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.”
As you can see, the prosecutor case was mainly founded on presumptions as allowed by law. The burden is on Mun Tak to rebut on 2 presumptions namely (i) that he has possession of the illicit drugs and (ii) that he has knowledge or aware that he was trafficking illicit drugs.
As to the issue in respect to the unidentified DNA found on the pink plastic bag, the prosecution postulated that even though Mun Tak’s DNA was not found on the pink plastic bag, it does not means that Mun Tak was innocent as it was highly probable that he was acting in cahoot with other unidentified perpetrators in Malaysia to traffic the illicit drugs into Singapore. Hence, the fact that DNA of an unidentified individual (rather than Mun Tak) was found and that the vehicle does not belong to Mun Tak was immaterial, as argued by the prosecutors.
In regards to Mun Tak’s legitimate reason to enter Singapore, the prosecution quickly dismissed it by contending that a person may have several reasons to enter Singapore, some legitimate and some unlawful, both are not necessarily mutually exclusive. Well, a valid point there.
In the meantime, Simon also sent a young legal assistant to JB in order to inquire on Ah Sing’s whereabouts and to explore how he could be of any assistance to Mun Tak’s defence.
But Ah Sing, after catching wind that Mun Tak was arrested in Singapore with his car, has since moved out of the rented room in Skudai. The young legal assistant returned home empty handed.
However, by a twist of fate, 1 year later in 2017, when Mun Tak’s trial was still ongoing, Ah Sing was detained in Singapore during an unrelated raid on a local nightclub where he was tested positive for drugs.
Ah Sing was then charged for misuse of drugs and due to the overwhelming evidence against him, Ah Sing was quick to plead guilty and sentenced to 5 years imprisonment.
This is where it gets interesting, with Ah Sing being locked up in prison, he is now accessible by both the prosecution and defence as a witness. The police was also able to link the DNA of Ah Sing to the unidentified DNA found on the pink plastic bag.
Hence, the testimony of Ah Sing is not only relevant, it is material.
Now, it’s up to either the prosecutions or Mun Tak’s defence team to issue a subpoena to compel Ah Sing’s attendance to court.
Simon and Mun Tak discussed the prospect of calling Ah Sing to testify as Mun Tak’s witness. Understandably Mun Tak was initially jovial and optimistic, for him, this is his free pass, his lifeline to escape the gallow. He hastily made up his mind, he will call Ah Sing as a witness.
“But I hate to break it to you Tak, things may not work out as you would hope for. There is no guarantee he will help you. Helping you means taking your place at the gallow.” Simon cautioned.
“From my experience, in trafficking cases involving multiple suspects, it is almost certain to see one defendant pushing the blame exclusively to the others, this is the only way they can escape free. It could get really ugly. For all we know, Ah Sing might be a hostile witness. As a matter of fact, you didn’t even know his full name for god sake.” Simon hitting the nail on the head.
Mun Tak was left silent, acknowledging Simon’s valid point. “Then, what should we do now?” he asked helplessly.
“We do nothing. It is the prosecution’s case anyway, let them decide. This should rock their boat.” Simon asserted with confidence.
Across the island at No. 1 Upper Pickering Street, the prosecutions were also mulling on the same issue. But for the prosecution, the choices were more obvious. They had successfully prosecuted many drug traffickers using the presumptions clauses in the MDA before and were confident that the outcome for Mun Tak’s case should be no different. Why bring in a wild card whose credibility is highly questionable to jeopardise their own case?
So at the end, Ah Sing was never called as a witness in Mun Tak’s drug trafficking’s case.
The trial then went on for three arduous years and concluded in November 2019. However, despite all of Simon’s hard work, the High Court Judge still found Mun Tak guilty at the end. The Honourable Judge reasoned that Mun Tak had failed to rebut the presumptions of possession & knowledge as stipulated in the MDA. Mun Tak was subsequently sentenced to death by hanging.
