Case Details
- Citation: [2023] SGHC 95
- Title: Public Prosecutor v Low Sze Song and another
- Court: High Court of the Republic of Singapore (General Division)
- Criminal Case No: Criminal Case No 36 of 2022
- Date of Judgment: 14 April 2023
- Judges: Dedar Singh Gill J
- Hearing Dates: 26–29 July, 2–3 August, 10–11 August, 16–18 August, 23–26 August, 18 November 2022
- Plaintiff/Applicant: Public Prosecutor
- Defendant/Respondent: Low Sze Song; Sivaprakash Krishnan
- Legal Areas: Criminal Law — Statutory offences
- Statutes Referenced: Criminal Procedure Code; Misuse of Drugs Act
- Charge(s): Trafficking not less than 43.2g of diamorphine under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act
- Judgment Length: 73 pages, 19,891 words
- Core Themes: Possession and knowledge presumptions under the MDA; chain of custody/integrity of drug exhibits; “courier” concept under s 33B(2)(A) of the MDA; evaluation of contemporaneous and long statements recorded under the CPC
- Cases Cited (as provided): [2003] SGHC 60; [2023] SGHC 95
Summary
Public Prosecutor v Low Sze Song and another concerned two accused who were jointly tried for trafficking not less than 43.2g of diamorphine under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). The prosecution’s case was that the accused, acting in concert, exchanged a white plastic bag containing four drug packets (collectively, the “Drug Bundles”) for a stack of cash. The High Court ultimately had to determine whether each accused was in possession of the drug bundles and, crucially, whether each could rebut the statutory presumption of knowledge arising from possession under the MDA.
A central battleground was the integrity of the chain of custody of the drug exhibits, particularly whether a specific sub-exhibit (labelled “A1A1A”) recovered and processed at the CNB Exhibit Management Room (“EMR”) was indeed the same item as that seized from the accused’s person/device. The court also analysed whether the accused’s explanations—particularly Low’s claim of lack of knowledge and Sivaprakash’s account of delivering items believed to be “paan parak”—were credible and legally sufficient to rebut the presumption.
In addition, the court considered the “courier” framework under s 33B(2)(A) of the MDA, which can be relevant to sentencing outcomes where an accused is found to have trafficked but may qualify for a reduced sentencing regime if statutory conditions are met. The judgment therefore combined orthodox evidential analysis (possession, knowledge, and chain of custody) with the statutory “courier” inquiry.
What Were the Facts of This Case?
The first accused, Low Sze Song (“Low”), was a 70-year-old Singaporean. The second accused, Sivaprakash Krishnan (“Sivaprakash”), was a 35-year-old Malaysian national. Both accused claimed trial to a single charge of trafficking not less than 43.2g of diamorphine. The charge was framed under s 5(1)(a) read with s 5(2) of the MDA, which criminalises trafficking where the accused has in possession a controlled drug for the purpose of trafficking.
On 30 May 2019, at about 5.40am, Low was at the ground floor of Blk 326A Sumang Walk with his personal mobility device (“PMD”). At about 6.18am, Sivaprakash approached Sumang Walk on his motorcycle (“Motorcycle”). Low and Sivaprakash then travelled together in the same direction on their respective vehicles. At about 6.20am, at a bus stop along Sumang Walk, Sivaprakash gave Low a white plastic bag containing packets of drugs, and Low gave Sivaprakash a stack of cash totalling S$9,000. The prosecution alleged that the white plastic bag contained four packets of diamorphine, amounting to not less than 43.26g (the “Drug Bundles”).
After the exchange, Low travelled towards Buangkok Crescent. CNB officers arrested Low at the lift lobby of Blk 986C at about 6.45am. Between Low’s arrest and about 8.01am, CNB officers conducted a thorough search of the PMD and seized multiple exhibits. The exhibits were marked and later analysed. The court’s discussion of the exhibit markings and sub-markings shows the evidential complexity: the PMD was marked as location “A”, and the seized items included a black bag (A1), a taped packaging with clear plastic (A1A), and further nested sub-packaging and drug packets, including the disputed sub-exhibit “A1A1A”.
Meanwhile, Sivaprakash proceeded towards his workplace at Sungei Kadut Way. CNB officers followed him and arrested him at a canteen along 16A Sungei Kadut Way at about 6.49am. At about 6.50am, a search was conducted in Sivaprakash’s presence on the motorcycle, and officers recovered the stack of cash totalling S$9,000. The prosecution’s exhibit scheme therefore linked the cash found with Sivaprakash to the exchange with Low, while the drug exhibits were recovered from Low’s PMD.
During investigations, multiple statements were recorded from each accused under the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”). Low gave a contemporaneous statement pursuant to s 22 of the CPC, a cautioned statement pursuant to s 23, and several long statements pursuant to s 22. Sivaprakash similarly gave a contemporaneous statement, a cautioned statement, and long statements. The record shows that Low spoke in Hokkien and Sivaprakash spoke in Tamil, with translations provided by interpreters. Notably, the statements included references to photos of the drug exhibits, which became relevant to the court’s assessment of knowledge and credibility.
What Were the Key Legal Issues?
The first major issue was whether Low and Sivaprakash respectively had “possession” of the drug bundles within the meaning of the MDA. Possession in this context is not limited to physical custody; it can include circumstances demonstrating control or dominion over the drug. The exchange of the white plastic bag and the subsequent recovery of drug packets from Low’s PMD were therefore central to the possession inquiry.
The second issue was whether each accused could rebut the statutory presumption of knowledge that arises under s 18(2) of the MDA when an accused is found to have possession of a controlled drug. The court had to examine whether Low’s claim that he did not know the contents of the white plastic bag, and whether he could not reasonably be expected to have known the nature of the drugs, was legally and evidentially sufficient. Similarly, the court had to assess whether Sivaprakash successfully rebutted the presumption by showing that he did not know the nature of the drugs and that his explanation was credible.
A third, highly technical issue concerned the integrity of the chain of custody of the drug exhibit “A1A1A”. Low argued that there was a reasonable doubt as to whether the exhibit processed at the EMR was indeed the same as the one recovered from the PMD. This required the court to scrutinise the search and recovery process, the sealing and packaging procedures, the record keeping, and the consistency of CNB officers’ accounts, including DNA evidence on adhesive sides of taped packaging.
How Did the Court Analyse the Issues?
The court’s analysis began with the statutory structure of the trafficking offence. Under s 5(1)(a) read with s 5(2) of the MDA, trafficking is established where the accused has in possession the controlled drug for the purpose of trafficking. The court therefore focused on possession and knowledge, because possession triggers the presumption of knowledge under s 18(2) of the MDA. Once possession was established, the burden shifted to the accused to rebut the presumption on a balance of probabilities.
On possession, the court relied on the factual sequence of events: Sivaprakash handed Low the white plastic bag at the Sumang Walk bus stop, Low then travelled with the PMD, and CNB officers later recovered the drug bundles from the PMD. The court also considered the accused’s respective roles and the practical control each had over the items at relevant times. While Sivaprakash physically delivered the bag, Low was the one who retained it and whose PMD contained the drug packets when searched. This supported a finding that both accused were linked to the drugs in a manner consistent with possession for the purposes of the MDA.
The chain of custody sub-issue required more granular reasoning. Low challenged the integrity of the chain of custody of exhibit “A1A1A”, asserting that it was not among the case exhibits recovered from the PMD and that it was instead processed later at the EMR. The court analysed the search and recovery of the four drug exhibits from the PMD, including how the exhibits were sealed in tamper-proof bags for exhibit handling and processing. It also examined the evidential trail of markings and sub-markings, and whether any inconsistencies in record keeping or officers’ accounts created a reasonable doubt.
In addressing this, the court considered both alleged inconsistencies and corroborative evidence. The judgment’s structure indicates that it weighed: (a) the sealing and packaging process; (b) the presence of Low’s DNA on adhesive sides of the taped packaging containing the disputed “Fourth Drug Bundle”; and (c) other alleged discrepancies, including lack of contemporaneous records at each point of movement of the case exhibits, and alleged inconsistencies in CNB officers’ accounts. The court ultimately concluded that the chain of custody was sufficiently established such that the reasonable doubt threshold was not met. The DNA evidence and the overall coherence of the exhibit handling process were particularly important in resolving the dispute about “A1A1A”.
After addressing chain of custody, the court turned to the rebuttal of the presumption of knowledge. For Low, the court analysed his claim that he had no knowledge of the contents of the white plastic bag and that he could not reasonably be expected to have known the nature of the drugs. The court assessed the plausibility of Low’s explanation in light of the circumstances of the exchange, the nature of the packaging, and the content of his statements to CNB. The judgment indicates that Low’s explanations were tested against what he said at different stages, including the contemporaneous statement and later long statements, and against the photos shown to him during recording of statements.
For Sivaprakash, the court analysed whether he successfully rebutted the presumption of knowledge. The judgment’s headings show that Sivaprakash’s account involved a relationship with a person referred to as “Joe”, and a claim that he believed he was delivering “paan parak”. He also claimed that he checked the contents of the drug bundles and found them similar to “paan parak”. The court therefore had to evaluate not only the internal consistency of Sivaprakash’s narrative, but also its external plausibility. The court’s reasoning likely involved assessing whether a courier-like explanation can realistically be believed where the items are packaged in a manner consistent with drug trafficking, and whether the accused’s conduct and statements align with genuine ignorance.
Finally, the court considered the statutory “courier” requirements under s 33B(2)(A) of the MDA. The headings indicate that the court determined whether Low and Sivaprakash were “couriers” for the purposes of that provision. This is a distinct inquiry from possession and knowledge: even where an accused is found guilty of trafficking, the sentencing regime may be affected if the accused meets the statutory criteria. The court’s conclusion on whether each accused was a courier would therefore have practical consequences for sentencing outcomes.
What Was the Outcome?
At the conclusion of the trial, the High Court convicted both Low Sze Song and Sivaprakash Krishnan of trafficking not less than 43.2g of diamorphine under s 5(1)(a) read with s 5(2) of the MDA. The court found that the prosecution proved possession and that the accused did not rebut the presumption of knowledge to the required standard. The court also rejected Low’s chain of custody challenge relating to exhibit “A1A1A”, holding that the integrity of the drug exhibits was sufficiently established.
In addition, the court’s analysis of the “courier” framework under s 33B(2)(A) would have informed the sentencing position of each accused. While the precise sentencing orders are not included in the truncated extract provided, the judgment’s structure makes clear that the court addressed the courier question as part of its final determination.
Why Does This Case Matter?
This case is significant for practitioners because it illustrates how Singapore courts approach the interlocking issues of possession, knowledge, and chain of custody in MDA trafficking trials. The judgment demonstrates that challenges to exhibit integrity—particularly those focused on specific sub-exhibits and alleged gaps in record keeping—must be supported by concrete reasons that create a reasonable doubt. The court’s willingness to accept the prosecution’s chain of custody where the overall handling process is coherent, and where corroborative evidence such as DNA findings supports the prosecution narrative, is a practical lesson for future defence submissions.
From a knowledge-presumption perspective, the case underscores the evidential weight of an accused’s explanations and statements recorded under the CPC. Where photos of exhibits are shown to an accused during statement recording, and where the accused’s narrative is tested against the physical packaging and circumstances of the exchange, courts will scrutinise whether the claimed ignorance is credible. The court’s treatment of Sivaprakash’s “paan parak” explanation and the claimed checking of contents highlights the difficulty of rebutting the presumption where the accused’s account appears inconsistent with the realities of drug trafficking operations.
Finally, the judgment’s engagement with the “courier” concept under s 33B(2)(A) is important for sentencing strategy. Even where an accused is not the principal organiser, the statutory courier inquiry is not automatic; it depends on whether the accused satisfies the legal requirements. Defence counsel should therefore treat the courier analysis as a separate and carefully evidenced component of the case, rather than as a mere characterisation of the accused’s role.
Legislation Referenced
- Criminal Procedure Code (Cap 68, 2012 Rev Ed) — ss 22 and 23 (recording of statements; contemporaneous and cautioned/long statements)
- Misuse of Drugs Act (Cap 185, 2008 Rev Ed) — s 5(1)(a) and s 5(2) (trafficking offence structure)
- Misuse of Drugs Act (Cap 185, 2008 Rev Ed) — s 18(2) (presumption of knowledge upon possession)
- Misuse of Drugs Act (Cap 185, 2008 Rev Ed) — s 33B(2)(A) (courier requirements relevant to sentencing)
Cases Cited
- [2003] SGHC 60
- [2023] SGHC 95
Source Documents
This article analyses [2023] SGHC 95 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.