In Norasharee bin Gous v Public Prosecutor [2017] SGCA 17 (“Norsharee”), the Court of Appeal upheld the conviction of Norasharee bin Gous (the “Accused”) for an offence under s 5(1)(a) read with s 12 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (the “MDA”) for abetting to traffic in not less than 120.90g of diamorphine, based almost exclusively on statements by a co-accused, Mohamad Yazid bin Md Yusof (“Yazid”).

In Norasharee, three accused persons – Yazid, the Accused and Kalwant Singh a/l Jogindar Singh (“Kalwant”) – were convicted by the High Court after a joint trial involving various charges under the MDA. The High Court sentenced Yazid to imprisonment for life and 15 strokes of the cane as he was found to be a “courier” within the meaning of s 33B of the MDA and was given a certificate of substantive assistance by the public prosecutor under 33B (2)(b) of the MDA.

Kalwant was sentenced to death as he did not receive a certificate of substantive assistance. The Accused was sentenced to death as he did not receive a certificate of substantive assistance and was also not a “courier” within the meaning of s 33B of the MDA. The Accused and Kalwant appealed against the decision of the High Court. The salient facts surrounding their conviction are set out as follows.

Facts

On 23 November 2013, Yazid met Kalwant at a multistory carpark in Woodlands. Both were arrested by the CNB and found to possess diamorphine. Yazid claimed to have been instructed to traffic drugs by one “Boy Ayie”, whose phone number was saved in his mobile phone as “Eye.” This person was identified by Yazid as the Accused. Yazid claimed that the Accused would instruct him to collect, hold and deliver drugs to various persons in Singapore.

Yazid stated that he met the Accused on 22 September 2013, the day before his arrest, in the vicinity of VivoCity Shopping Centre (“VivoCity”). During the meeting, the Accused told Yazid that there would be a delivery of drugs the next day and that Yazid was to collect the drugs from a courier, who was Kalwant. On 1 July 2015, the Accused was arrested in connection with the transaction.[1]

The High Court found that the actus reus of abetment by instigation was met when the Accused told Yazid to collect the drugs at VivoCity. The High Court accepted Yazid’s account despite the fact that he had a clear incentive to frame the Accused so as to save himself from the death penalty. The High Court found that the mens rea of the offence was satisfied as the Accused would know the quantity of diamorphine that Yazid was to traffic in. The case against the Accused was based almost entirely on the basis of Yazid’s statements.[2]

The Accused’s appeal rested primarily on two grounds: 1) that Yazid had a personal vendetta against him and was trying to frame him; and 2) that the High Court was wrong to find that the Accused was the person whom Yazid identified as his boss and whom Yazid met at VivoCity.

In upholding the decision of the High Court, the Court of Appeal affirmed the decision in Chin Seow Noi and others v Public Prosecutor [1993] 3 SLR (R) 566 (“Chin Seow Noi”). There, the Court of Appeal previously held that the confession of an accused person may, of itself, be sufficient evidence to convict any other person implicated in the confession, if he is jointly tried with the accused person for the same offence.

Before Chin Seow Noi, a confession from a co-accused could only lend “assurance to other evidence” and could not be the sole basis of a confession. This long standing proposition was set out by the Privy Counsel in Bhuboni Sahu v The King (1949) LXXVI IA 147, as well as the Court of Appeal decisions in Sim Ah Cheoh v Public Prosecutor [1991] MLJ 353 and Ramachandran v PP [1993] 2 SLR (R) 392.

Accordingly, Chin Seow Noi has since been the subject of close examination.[3] It has even been suggested in obiter by Rajah JA in Lee Chez Kee v Public Prosecutor [2008] 3 SLR(R) 447 that Chin Seow Noi should be reconsidered as the law was concerned with the reliability of the statement of a co-accused. It would therefore appear out of the ordinary for such a statement to, by itself, form the basis of a conviction. [4]

The Court of Appeal in Norasharee, however held at [59] as follows:

In our view, Chin Seow Noi is correct insofar as it stands for the principle that [an accused] may be convicted solely on [a co-accused’s] testimony. However, the foregoing discussion shows that [a co-accused] confession has to be very compelling such that it can on its own satisfy the court of [the accused] guilt beyond a reasonable doubt. In this regard, it would be relevant to consider the state of mind and the incentive that [a co- accused] might have in giving evidence against [an accused]. If [an accused] alleges that [a co-accused] has a motive to frame him, then this must be proved as a fact (see Judgment at [28], citing Khoo Kwoon Hain v Public Prosecutor [1995] 2 SLR(R) 591). Of course, [a co-accused] may well be truthful despite having an incentive to lie or could be untruthful despite not having such an incentive.

In view of this, the Court of Appeal carefully considered the facts surrounding the statements of Yazid of the case in upholding the decision of the High Court. The Court of Appeal acknowledged the incentive Yazid had to manufacture claims against the Accused and Kalwant to secure himself a certificate of substantial assistance under s 33B of the MDA.[5] Ultimately, however, the Court of Appeal found that on a holistic examination of the facts, Yazid’s evidence was clear and consistent enough to support a conviction. The Accused was not able to prove why Yazid would want to frame him; how Yazid knew that the Accused was at VivoCity on 23 October 2013; and why the Accused previously denied knowing Yazid.[6]

The Court of Appeal held that Yazid had no motive to frame the Accused based on their gang history. It held that Yazid was not actively involved in gang activity up to the time of his arrest nor he was trying to hide his past involvement with a rival gang, which the Accused was a part of.[7] The Court of Appeal also held that “Boy Ayie” referred to the Accused.[8]

However, the most compelling piece of evidence that supported Yazid’s statements was the Accused’s presence at VivoCity on 23 October 2013. Yazid’s allegations were supported by objective evidence such a phone records. The Court of Appeal also placed significant weight on the fact that investigations revealed that the Accused’s car was parked at VivoCity at the material time. [9]

The Court of Appeal considered all other alternative factual hypotheses that could possibly explain how Yazid knew that the Accused was a VivoCity at the material time and concluded that none were plausible on the facts.[10] In the final analysis, the Court of Appeal held that the only conclusion was that Yazid met the Accused at VivoCity on 23 October 2013 during which the Accused directed Yazid to collect the drugs from Kalwant. [11]

Conclusion

The Court of Appeal’s meticulous consideration of the facts surrounding Yazid’s statements approach in Norasharee illustrates the caution courts should take in convicting an accused based only on the statement of a co-accused.

This case also highlights that in any such analysis, the real risk that a co-accused may falsely incriminate someone else to increase his chance of acquittal or minimize his role in the crime should be kept in mind.[12] Such considerations are arguably more pertinent in cases for charges under the MDA such as Norasharee where a co-accused may make incriminating statements in order to obtain a certificate of substantial assistance under s 33B of the MDA and avoid the death penalty.