Case Details
- Title: Public Prosecutor v Andi Ashwar Bin Salihin & 2 Ors
- Citation: [2019] SGHC 44
- Court: High Court of the Republic of Singapore
- Date: 27 February 2019
- Judge: Chan Seng Onn J
- Criminal Case No: 28 of 2017
- Proceedings: Joint trial involving three accused persons
- Plaintiff/Applicant: Public Prosecutor
- Defendants/Respondents: Andi Ashwar Bin Salihin; Mohd Akebal s/o Ghulam Jilani; Mohammed Rusli Bin Abdul Rahman
- Charges (overview): Capital trafficking and abetment charges under the Misuse of Drugs Act (Cap 185)
- Statutory framework: Misuse of Drugs Act (MDA) ss 5(1)(a), 5(2), 12, 18(1), 18(2), 18(4), 33(1), 33B
- Trial dates (as recorded): 30–31 March, 4–7, 18–19 April 2017; 3–5 April, 14–16, 28 August 2018; 13 November 2018
- Judgment reserved: Yes
- Judgment length: 45 pages; 12,043 words
- Legal areas: Criminal Law; Misuse of Drugs Act; statutory presumptions; trafficking and wilful blindness
- Cases cited (as provided): [2012] SGCA 18; [2016] SGHC 102; [2018] SGCA 87; [2018] SGHC 161; [2019] SGHC 44
Summary
In Public Prosecutor v Andi Ashwar Bin Salihin & 2 Ors ([2019] SGHC 44), the High Court (Chan Seng Onn J) convicted two accused persons—Andi Ashwar Bin Salihin (“Andi”) and Mohd Akebal s/o Ghulam Jilani (“Akebal”)—of capital trafficking-related offences arising from the delivery of two bundles of diamorphine. The court found that the prosecution proved beyond a reasonable doubt that both men had the requisite possession and knowledge, and that the statutory presumptions under the Misuse of Drugs Act (“MDA”) were not rebutted on the evidence.
As against Mohammed Rusli Bin Abdul Rahman (“Rusli”), however, the court held that the prosecution failed to prove beyond reasonable doubt that he knew of both bundles. The court therefore amended the charge against Rusli to a reduced quantity (one bundle) and convicted him on that basis. The decision is a detailed application of the MDA’s presumptions of possession and knowledge, and it also illustrates how courts assess “one bundle only” defences and the evidential threshold for proving knowledge of multiple bundles.
What Were the Facts of This Case?
The case arose from a drug transaction involving two bundles of granular/powdery substance containing diamorphine. The accused persons were tried jointly for capital trafficking charges relating to the same two bundles, which in total contained not less than 29.06g of diamorphine. The prosecution’s theory was that the accused persons were part of a coordinated arrangement: Rusli instructed Andi to collect “obat” (a street name for diamorphine) from a person identified as “Bai/Bala”, whom the court later found to be Akebal.
Between 21 August 2014 and the morning of 22 August 2014, Rusli instructed Andi to collect obat for him from Bai/Bala. On 22 August 2014, at about 9.06am, Rusli texted a handphone number belonging to Akebal (8286 6224) to Andi. In a separate phone call, Rusli also instructed Andi to arrange with Akebal where and when to pick up the obat. Acting on these instructions, Andi arranged to collect the drugs from Akebal at Block 716 Woodlands Avenue 7 later that day.
At about 10.20am, Andi drove to the service road near Block 716 Woodlands Avenue 7. Akebal approached Andi’s car and placed an orange plastic bag containing two bundles of granular/powdery substance on the front passenger seat. Akebal then left to take a bus, while Andi drove away to meet Rusli. This sequence was central to the court’s findings on identification and possession.
At about 11.30am, Andi parked his car at a multi-storey car park at Block 499 Tampines Avenue 9, leaving the orange plastic bag containing the bundles in the car. At about 12.40pm, Andi, Rusli, and an unrelated person left Rusli’s flat. Shortly thereafter, at about 12.45pm, CNB officers arrested Andi while he was seated in the driver’s seat of his car. No one else had entered or approached the car in the interim. Concurrently, Rusli and the unrelated person were arrested at the car park where they had gone. A search of Andi’s car recovered the orange plastic bag and two black-taped bundles marked “A1A1” and “A1B1”. The HSA analysis showed that A1A1 contained not less than 14.60g of diamorphine and A1B1 contained not less than 14.46g of diamorphine.
What Were the Key Legal Issues?
The first major issue concerned the elements of trafficking under s 5(1)(a) of the MDA, particularly the requirement of “possession” and “knowledge”. For Andi, the dispute was not whether he knew the bag contained diamorphine, but whether he knew of the existence of both bundles. The defence advanced the position that he intended to deal with only one bundle, consistent with a “one bundle only” practice said to avoid capital punishment thresholds.
The second issue concerned Akebal’s identity and involvement. Akebal denied involvement and claimed that the CNB officers and Andi had wrongly identified him as the person who had passed the orange plastic bag containing the bundles to Andi. His defence also included attempts to challenge the reliability of identification, including arguments about his attire and the possibility that Andi’s identification might have been affected by drug withdrawal at the material time. Akebal also sought to explain the presence of a handphone (bearing the number used to communicate with Andi and Rusli) found near him at the time of arrest.
The third issue related to Rusli’s knowledge of the quantity and the number of bundles. Even if Rusli instructed Andi to collect obat, the prosecution still had to prove beyond reasonable doubt that Rusli had knowledge of both bundles. Rusli’s case raised the question of whether he was wilfully blind to the presence of the second bundle, and whether the evidence established that he acted under instructions from another person (referred to in the judgment as “Azman”).
How Did the Court Analyse the Issues?
Chan Seng Onn J began by setting out the elements of trafficking under s 5(1)(a) of the MDA. The court reiterated that trafficking requires: (a) possession of a controlled drug; (b) knowledge of the nature of the drug; and (c) proof that the possession was for the purpose of trafficking which was not authorised. The court noted that possession and knowledge can be proved or presumed under the MDA’s statutory presumptions (including ss 18(1), 18(2) and 18(4)), but that the prosecution must still establish the necessary factual foundation for the presumptions to operate.
For Andi, the court accepted that he admitted knowledge that the orange plastic bag contained diamorphine and that he intended to traffic by passing it to Rusli. The dispute therefore narrowed to possession in the sense of knowledge of the existence of the “thing itself” and, crucially, knowledge of the existence of both bundles. The court emphasised that physical control over the bag was not, by itself, sufficient to prove possession of the entire quantity for trafficking purposes. Instead, the prosecution had to show that Andi knew of the existence of both bundles containing diamorphine.
However, the court found that the statutory presumption of possession was triggered because the two bundles were in Andi’s physical possession at the time of arrest. Under s 18(1)(a) of the MDA, the court held that there is a presumption that the accused was in possession of the entire quantity of drugs, ie, both bundles. The central question then became whether Andi rebutted that presumption on a balance of probabilities. The court concluded that he did not. Although Andi stated in a long statement that he knew the bag contained obat but did not know how much it contained, the court found inconsistencies and admissions undermining the “one bundle only” narrative.
In particular, the court relied on Andi’s trial evidence and admissions that he was not concerned with how much obat he received and that he was willing to collect and deliver regardless of the number of bundles. The court also noted the commercial incentive: Andi was paid according to the number of bundles he collected. This meant that the more bundles he collected, the more he would be paid. The court treated these facts as inconsistent with a genuine belief that only one bundle would be delivered. The court also considered the practical circumstances surrounding the bag and its accessibility, including that the bag had no zip and was “very easy to open” (as reflected in the truncated extract). Taken together, the court was not satisfied that Andi’s evidence raised a reasonable doubt as to his knowledge of both bundles, nor that he rebutted the presumption.
With respect to Akebal, the court’s analysis focused on identification and the credibility of the defence. The prosecution’s case was supported by the chain of communications and the observed handover. The court was satisfied that the person who passed the orange plastic bag to Andi was Akebal. The court also addressed Akebal’s attempt to show that he was dressed differently from what CNB officers and Andi had observed, and it assessed whether those discrepancies were sufficient to create reasonable doubt. The court further examined Akebal’s explanation for the handphone found near him at arrest, including his claim that the phone had been in a friend’s possession during the transaction and was returned shortly before his arrest.
Importantly, the court found that the phone evidence supported the correctness of the identification. The handphone number found on Akebal (8286 6224) was the same number used in communications between Rusli and Andi regarding the pick-up arrangements. This corroborated the prosecution’s narrative that Akebal was the person who coordinated the drug handover. The court therefore found that the elements of the charge against Akebal were made out beyond reasonable doubt, and it rejected the misidentification defence.
For Rusli, the court’s reasoning turned on knowledge of both bundles. The prosecution’s case included Rusli’s statement referencing the “black bundles” and an account that Rusli acted under instructions from Azman. The court found two key evidential gaps. First, it was not satisfied that the prosecution had adduced sufficient evidence to prove that Rusli acted under Azman’s instructions in the manner alleged. Second, even if Rusli had been acting under instructions, the court held that the prosecution had not proved beyond reasonable doubt that Rusli was wilfully blind to the presence of the second bundle.
In assessing wilful blindness, the court considered whether Rusli deliberately avoided confirming the presence of both bundles, or whether the evidence supported a conclusion that he had knowledge. The court also addressed the “one bundle defence” in a more nuanced way than for Andi. While it was commercially and operationally plausible that a person might instruct collection of obat without knowing the exact number of bundles, the prosecution still had to prove knowledge of both bundles for the capital quantity. The court found that the evidence did not meet that threshold. It also considered the prosecution’s argument that delivering two bundles would be commercially sensible or expected; however, the court concluded that the evidential basis was insufficient to establish knowledge beyond reasonable doubt.
Accordingly, the court amended the charge against Rusli from trafficking/abetment relating to not less than 29.06g to a reduced quantity corresponding to one bundle (14.46g). This reflects a careful application of the principle that the prosecution must prove the mental element for the specific quantity charged, and that where knowledge of the full quantity is not proven, the conviction must be adjusted to the quantity that is proven.
What Was the Outcome?
Andi was convicted of possessing not less than 29.06g of diamorphine for the purpose of trafficking, and Akebal was convicted of trafficking not less than 29.06g of diamorphine. In both cases, the court found the prosecution’s evidence sufficient to prove the elements of the offences beyond reasonable doubt, and it held that the relevant statutory presumptions (particularly for possession) were not rebutted.
Rusli, by contrast, was not convicted on the full capital quantity. The court amended the charge to instigating Andi to traffic in not less than 14.46g of diamorphine (the amount in one bundle) and convicted him accordingly. The practical effect is that Rusli faced liability for a reduced quantity, reflecting the court’s finding that the prosecution failed to prove knowledge of both bundles beyond reasonable doubt.
Why Does This Case Matter?
This decision is significant for practitioners because it provides a structured, evidence-driven approach to the MDA’s statutory presumptions and the knowledge requirement in multi-bundle trafficking cases. The court’s analysis shows that where drugs are found in an accused’s physical possession, the presumption of possession may be triggered, but the accused may still attempt to rebut the presumption by demonstrating lack of knowledge of the existence of the full quantity. The court’s rejection of Andi’s “one bundle only” defence underscores that courts will scrutinise admissions, incentives, and practical circumstances rather than accept a bare assertion of limited knowledge.
For identification defences, the case demonstrates the importance of corroborative evidence. Akebal’s misidentification attempt was undermined by the phone evidence linking him to the communications arranging the pick-up. This illustrates how courts evaluate identification challenges in the context of contemporaneous communications and objective evidence, rather than treating identification disputes as purely subjective.
For abetment and wilful blindness arguments, the case is also instructive. The court’s refusal to convict Rusli on the full quantity highlights that the prosecution must prove the mental element for the capital threshold. Even where there is evidence of involvement in the transaction, the evidential standard for knowledge of multiple bundles remains demanding. Practitioners should therefore carefully assess whether the evidence establishes knowledge (or wilful blindness) as to the specific quantity charged, and not assume that participation in the overall transaction automatically satisfies the mental element for the capital amount.
Legislation Referenced
- Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), including ss 5(1)(a), 5(2), 12, 18(1), 18(2), 18(4), 33(1), 33B
Cases Cited
- [2012] SGCA 18
- [2016] SGHC 102
- [2018] SGCA 87
- [2018] SGHC 161
- [2019] SGHC 44
- Muhammad Ridzuan bin Md Ali v Public Prosecutor and other matters [2014] 3 SLR 721
- Fun Seong Cheng v Public Prosecutor [1997] 2 SLR(R) 796
Source Documents
This article analyses [2019] SGHC 44 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.