Public Prosecutor v Low Sze Song and another [2023] SGHC 95

Case Details

• Citation: [2023] SGHC 95
• Court: General Division of the High Court of the Republic of Singapore
• Decision Date: 14 April 2023
• Coram: Dedar Singh Gill J
• Case Number: Criminal Case No 36 of 2022
• Hearing Date(s): 26–29 July, 2, 3 August, 10, 11 August, 16–18 August, 23–26 August, 18 November 2022
• Claimants / Plaintiffs: Public Prosecutor
• Respondent / Defendant: (1) Low Sze Song; (2) Sivaprakash Krishnan
• Counsel for Claimants: [None recorded in extracted metadata]
• Counsel for Respondent: [None recorded in extracted metadata]
• Practice Areas: Criminal Law; Statutory offences; Misuse of Drugs Act; Drug Trafficking

Summary

The judgment in [2023] SGHC 95 represents a significant application of the presumptive framework under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) in the context of a capital drug trafficking charge. The case involved two accused persons: Low Sze Song (“Low”), a 70-year-old Singaporean, and Sivaprakash Krishnan (“Sivaprakash”), a 35-year-old Malaysian national. Both were charged with trafficking in not less than 43.26g of diamorphine, an amount nearly three times the threshold for the mandatory death penalty. The Prosecution’s case rested on a Central Narcotics Bureau (“CNB”) operation conducted on 30 May 2019, which observed a transaction between the two men at Sumang Walk involving a white plastic bag and S$9,000 in cash.

The primary legal battleground concerned the integrity of the chain of custody and the rebuttal of statutory presumptions. Low raised a vigorous challenge against the "Fourth Drug Bundle" (Exhibit A1A1A), contending that only three bundles were recovered from his Personal Mobility Device (“PMD”) at the scene of the arrest. He argued that the discrepancy between the initial search observations and the subsequent forensic analysis at the Health Sciences Authority (“HSA”) created a reasonable doubt regarding the identity and quantity of the drugs. Sivaprakash supported this challenge, asserting that he had only delivered three bundles. Furthermore, both accused sought to rebut the presumption of knowledge under s 18(2) of the MDA. Low relied on a defense of "blind trust," claiming he was merely a conduit for a third party, while Sivaprakash maintained a "mistaken belief" that the bundles contained "paan parak," a tobacco-based substance.

The High Court, presided over by Dedar Singh Gill J, ultimately dismissed these defenses. The court found that the chain of custody remained intact despite minor recording discrepancies by CNB officers, emphasizing that the "Fourth Drug Bundle" was indeed recovered from the same bag. On the issue of knowledge, the court held that neither accused had discharged the burden of proof on a balance of probabilities. Low’s failure to inquire about the contents of a highly valuable and surreptitiously delivered package was fatal to his defense. Similarly, Sivaprakash’s claim regarding "paan parak" was found to be inconsistent with the physical characteristics of the drugs and the high transaction value of S$9,000.

In the sentencing phase, the court determined that both Low and Sivaprakash were "couriers" within the meaning of s 33B(2)(a) of the MDA. This finding is of critical importance as it provides a pathway for the court to exercise its discretion to impose life imprisonment and caning (where applicable) instead of the death penalty, provided the Public Prosecutor issues a certificate of substantive assistance. The decision underscores the rigorous evidentiary standards required to challenge the chain of custody and reinforces the principle that an accused person cannot simply rely on "blind trust" or implausible mistaken beliefs to escape the operation of the MDA’s presumptive regime.

Timeline of Events

1. 4 April 2019: A date noted in the investigative records as relevant to the background of the case.
2. 30 May 2019, approx. 5:40 AM: Low Sze Song arrives at the ground floor of Blk 326A Sumang Walk. Sivaprakash Krishnan arrives on a motorcycle and hands Low a white plastic bag. Low gives Sivaprakash a stack of cash totaling S$9,000.
3. 30 May 2019, approx. 6:45 AM: Low is arrested by CNB officers at the lift lobby of Blk 326A Sumang Walk. A search of his PMD reveals a white plastic bag containing drug bundles.
4. 30 May 2019, approx. 6:49 AM: Sivaprakash is arrested by CNB officers at a canteen along Sungei Kadut Way. S$9,000 is recovered from his motorcycle.
5. 31 May 2019: CNB officers record the first set of investigative statements from both Low and Sivaprakash.
6. 2 June 2019: Further statements are recorded as part of the ongoing investigation into the drug transaction.
7. 3 June 2019: Investigative statements continue to be taken from the accused persons.
8. 6 June 2019: Additional statements are recorded by the CNB.
9. 14 June 2019: A follow-up statement is recorded from the accused.
10. 20 June 2019: The investigation continues with further statement recording.
11. 26 June 2019: Another statement is added to the investigative file.
12. 15 January 2020: A significant interval occurs before further statements are recorded from the accused.
13. 23 January 2020: The final sets of investigative statements are concluded prior to the commencement of trial proceedings.
14. 26–29 July, 2, 3, 10, 11, 16–18, 23–26 August, 18 November 2022: The substantive trial takes place before Dedar Singh Gill J in the High Court.
15. 14 April 2023: The High Court delivers its judgment, convicting both Low and Sivaprakash of the capital charge.

What Were the Facts of This Case?

The factual matrix of this case centers on a coordinated sting operation conducted by the Central Narcotics Bureau (“CNB”) in the early hours of 30 May 2019. The first accused, Low Sze Song (“Low”), a 70-year-old Singaporean, was under surveillance at Blk 326A Sumang Walk. At approximately 5:40 AM, the second accused, Sivaprakash Krishnan (“Sivaprakash”), a 35-year-old Malaysian national, arrived at the location on a motorcycle. The two men met briefly at the ground floor. During this encounter, Sivaprakash handed Low a white plastic bag. In exchange, Low handed Sivaprakash a stack of cash totaling S$9,000. Immediately after the exchange, Sivaprakash departed on his motorcycle, and Low proceeded toward the lift lobby of the block.

Low was intercepted and arrested by CNB officers at the lift lobby at about 6:45 AM. He was using a Personal Mobility Device (“PMD”) at the time. A search of the PMD led to the discovery of the white plastic bag that Sivaprakash had delivered. Inside this bag, officers found what appeared to be multiple bundles of drugs. These were later identified and marked as Exhibits A1A1, A1A2, A1A3, and A1A1A. Forensic analysis by the Health Sciences Authority (“HSA”) confirmed that these four bundles contained a total of not less than 43.26g of diamorphine. In addition to the main bundles, Low was found with other drug-related items, including smaller packets of controlled substances and drug paraphernalia, though these were not the subject of the primary capital charge.

Sivaprakash was arrested shortly after Low, at approximately 6:49 AM, at a canteen located at Sungei Kadut Way. During a search of his motorcycle, CNB officers recovered S$9,000 in cash, which was found in the storage compartment. Sivaprakash admitted to delivering the bag to Low but claimed he was acting on the instructions of an individual known to him as “Joe.” He asserted that he believed the bag contained "paan parak," a mixture of tobacco and betel nut, which he had delivered for Joe on previous occasions for a fee of RM1,000 per delivery. He claimed he had no knowledge that the bag contained diamorphine.

Low’s defense was two-pronged. First, he challenged the physical evidence, specifically the "Fourth Drug Bundle" (Exhibit A1A1A). He argued that when the CNB officers initially searched his PMD and took photographs, only three bundles were visible. He contended that the fourth bundle was either added later or was not part of the original bag delivered by Sivaprakash. This challenge was aimed at breaking the chain of custody and creating reasonable doubt as to the total quantity of diamorphine (which would fall below the capital threshold if the fourth bundle were excluded). Second, Low claimed he did not know the nature of the contents of the bag, asserting a defense of "blind trust" in the person who had asked him to collect the bag.

The Prosecution relied on the testimonies of the arresting and investigating officers, including SSI Seah, SSGT Tan, and others involved in the search and seizure. They also presented forensic evidence from the HSA regarding the chemical composition and weight of the drugs. The Prosecution invoked the statutory presumptions under s 18(1) and s 18(2) of the MDA, arguing that since the accused were in possession of the drugs, they were presumed to know the nature of the substances. The Prosecution's narrative was that this was a clear-cut commercial transaction of a large quantity of high-grade narcotics, evidenced by the significant cash payment and the surreptitious nature of the meeting.

During the trial, the defense extensively cross-examined the CNB officers regarding the procedures followed at the scene. They highlighted discrepancies in the field notes and the formal exhibit diary, as well as the timing of the photographs taken. The defense argued that the lack of meticulous record-keeping by the CNB officers meant the Prosecution could not prove the integrity of the drug exhibits beyond a reasonable doubt. Sivaprakash’s defense mirrored Low’s regarding the number of bundles, while also emphasizing his alleged mistaken belief about the "paan parak."

The procedural history involved multiple statements recorded from both accused between May 2019 and January 2020. These statements were a focal point of the trial, as the Prosecution used them to highlight inconsistencies in the accused persons' versions of events. The trial itself spanned several months in 2022, involving detailed technical evidence regarding the handling and storage of the drug exhibits from the point of seizure to the point of forensic testing.

What Were the Key Legal Issues?

The High Court was required to resolve several complex legal and factual issues to determine the guilt of the accused:

• Integrity of the Chain of Custody: Whether the Prosecution had proven beyond a reasonable doubt that the four drug bundles (A1A1, A1A2, A1A3, and A1A1A) analyzed by the HSA were the same bundles seized from Low’s PMD on 30 May 2019. This involved a specific inquiry into whether the "Fourth Drug Bundle" was part of the original seizure.
• Rebuttal of the Presumption of Possession under s 18(1) MDA: Whether the accused could prove, on a balance of probabilities, that they were not in possession of the drugs. Given the physical exchange, this issue was closely tied to the chain of custody challenge.
• Rebuttal of the Presumption of Knowledge under s 18(2) MDA: Whether the accused had discharged their burden to prove they did not know the nature of the drugs. The court had to evaluate Low’s "blind trust" defense and Sivaprakash’s "mistaken belief" regarding "paan parak."
• Definition of "Traffic" under s 2 MDA: Whether the actions of the accused fell within the statutory definition of trafficking, specifically whether the possession was for the purpose of trafficking under s 5(1)(a) read with s 5(2).
• Courier Status under s 33B(2)(a) MDA: Whether the involvement of the accused was limited to the acts of transportation, sending, or delivery, which would qualify them for the alternative sentencing regime.

These issues were framed by the high stakes of a capital charge, where the Prosecution must prove its case beyond a reasonable doubt, while the accused bear the burden of rebutting statutory presumptions on a balance of probabilities. The court’s analysis of the "paan parak" defense also touched upon the duty of an accused to verify the contents of suspicious packages in the context of the MDA.

How Did the Court Analyse the Issues?

The court’s analysis was structured around the three elements of an offence under s 5(1)(a) read with s 5(2) of the MDA, as summarized in Muhammad Ridzuan bin Md Ali v Public Prosecutor [2014] 3 SLR 721 at [59]: (a) possession of the controlled drug; (b) knowledge of the nature of the drug; and (c) that the possession was for the purpose of trafficking.

1. Possession and the Chain of Custody

The most significant factual dispute was the integrity of the chain of custody, specifically regarding the "Fourth Drug Bundle" (Exhibit A1A1A). Low and Sivaprakash contended that only three bundles were involved in the transaction. The court conducted a granular review of the testimonies of the CNB officers. While the defense pointed to inconsistencies in how the bundles were initially described and photographed, the court applied the principle from Ng Kwee Leong v Public Prosecutor [1998] 3 SLR(R) 281, which states that minor discrepancies in recollection do not necessarily invalidate the Prosecution's case. The court noted at [37]:

"In my view, the discrepancy was not material because, in any event, the Fourth Drug Bundle was found."

The court examined the search process in detail. Although some early photographs did not clearly show four distinct bundles, the court accepted the Prosecution's explanation that the bundles were layered or obscured within the white plastic bag. The court emphasized that the Prosecution must prove there is no reasonable doubt as to the identity of the exhibits, citing Public Prosecutor v Chen Mingjian [2009] 4 SLR(R) 946. After reviewing the movement of the exhibits from the scene to the CNB headquarters and then to the HSA, the court concluded at [86]:

"I find that the integrity of the chain of custody of the drug exhibits seized from the PMD, in particular, the Fourth Drug Bundle, has not been compromised."

2. The Presumption of Knowledge under s 18(2) MDA

With possession established, the presumption of knowledge under s 18(2) of the MDA was triggered. The burden shifted to the accused to prove, on a balance of probabilities, that they did not know the nature of the drugs. The court followed the analytical framework in Zainal bin Hamad v Public Prosecutor and another appeal [2018] 2 SLR 1119 and Obeng Comfort v PP [2017] 1 SLR 633.

Low’s defense was one of "blind trust." He claimed he was merely collecting the bag for someone else and did not know what was inside. The court found this unconvincing. The surreptitious nature of the 5:40 AM meeting and the exchange of S$9,000 would have made any reasonable person suspicious. Low’s failure to take any steps to verify the contents of the bag, despite these red flags, meant he could not rebut the presumption. The court held that "blind trust" is generally insufficient to discharge the burden under s 18(2).

Sivaprakash’s "paan parak" defense was also rejected. He claimed he believed the bundles contained a tobacco product. However, the court noted the significant physical differences between diamorphine (granular/powdery) and "paan parak." Furthermore, the court referenced Gobi a/l Avedian v Public Prosecutor [2021] 1 SLR 180, which requires an accused to show an honestly held mistaken belief. Sivaprakash’s claim was undermined by the high value of the transaction (S$9,000), which was entirely inconsistent with the delivery of a low-value tobacco product. The court found his testimony regarding his "check" of the bundles to be inconsistent and self-serving.

3. Purpose of Trafficking

The court found that the purpose of trafficking was established by the very nature of the transaction. Sivaprakash delivered the drugs to Low in exchange for cash. Under s 2 of the MDA, "traffic" is defined broadly:

“traffic” means — (a) to sell, give, administer, transport, send, deliver or distribute; or (b) to offer to do anything mentioned in paragraph (a),

The act of delivery by Sivaprakash and the receipt by Low for further distribution (inferred from the large quantity) satisfied the elements of s 5(1)(a) read with s 5(2).

4. Courier Status under s 33B

Finally, the court considered whether the accused were "couriers" under s 33B(2)(a). The court relied on Public Prosecutor v Chum Tat Suan [2015] 1 SLR 834, which clarifies that a person who merely receives and transports drugs can be a courier. For Sivaprakash, the court cited Zainudin bin Mohamed v Public Prosecutor [2018] 1 SLR 449, concluding at [130] that his involvement was restricted to the acts of delivery and transportation. The court made a formal finding that both Low and Sivaprakash were couriers, which is a prerequisite for the alternative sentencing regime.

What Was the Outcome?

The High Court found both Low Sze Song and Sivaprakash Krishnan guilty of the charge of trafficking in not less than 43.26g of diamorphine under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act. The court was satisfied that the Prosecution had proven all elements of the offence beyond a reasonable doubt and that the accused had failed to rebut the statutory presumptions of possession and knowledge on a balance of probabilities.

The court's findings were summarized as follows:

• Conviction: Both accused were convicted of the capital charge.
• Chain of Custody: The court held that the drug exhibits, including the disputed Fourth Drug Bundle (A1A1A), were the same as those seized at the scene of the arrest.
• Presumptions: The court found that neither Low nor Sivaprakash had successfully rebutted the presumption of knowledge under s 18(2) of the MDA.
• Courier Status: The court formally determined that both Low and Sivaprakash were "couriers" within the meaning of s 33B(2)(a) of the MDA.

The operative conclusion of the court regarding the integrity of the evidence was stated at [86]:

"I find that the integrity of the chain of custody of the drug exhibits seized from the PMD, in particular, the Fourth Drug Bundle, has not been compromised."

Regarding the sentencing, the court noted that while the conviction normally carries the mandatory death penalty, the finding of courier status allows for the alternative sentencing regime under s 33B. This would permit the court to impose life imprisonment and 15 strokes of the cane (for Sivaprakash) or life imprisonment (for Low, who is above 50), provided the Public Prosecutor issues a certificate of substantive assistance. The matter of sentencing was deferred pending the Prosecution's decision on the certificate.

Why Does This Case Matter?

The decision in [2023] SGHC 95 is a significant addition to the jurisprudence on drug trafficking in Singapore for several reasons. First, it provides a detailed examination of the "chain of custody" defense. In capital cases, the integrity of the drug exhibits is paramount. This case demonstrates that while the CNB is expected to maintain meticulous records, minor discrepancies or "unanswered questions" in the field notes do not automatically create reasonable doubt. The court’s reliance on Public Prosecutor v Yen May Woen [2003] SGHC 60 reinforces the principle that the court will look at the totality of the evidence to determine if the identity of the exhibits has been established.

Second, the case clarifies the limits of the "blind trust" and "mistaken belief" defenses under s 18(2) of the MDA. The court’s rejection of Low’s "blind trust" defense serves as a warning to those who claim to be unwitting conduits for drug syndicates. The judgment emphasizes that the surreptitious nature of a transaction and the high value of the items involved impose a duty of inquiry on the individual. One cannot simply "close one's eyes" to the obvious signs of illicit activity and then claim a lack of knowledge. This aligns with the "wilful blindness" doctrine often discussed in tandem with s 18(2).

Third, the treatment of Sivaprakash’s "paan parak" defense highlights the evidentiary burden on the accused. It is not enough to simply assert a mistaken belief; that belief must be honestly held and supported by the facts. The court’s comparison of the physical properties of diamorphine versus tobacco products shows that the court will apply a common-sense approach to evaluating such claims. The discrepancy between the market value of the alleged substance and the actual cash exchanged is a potent factor in undermining the credibility of such defenses.

Finally, the finding of courier status for both accused illustrates the application of s 33B of the MDA. By finding that a 70-year-old receiver (Low) and a 35-year-old deliverer (Sivaprakash) were both couriers, the court confirms that the "courier" definition is functional rather than based on the specific stage of the supply chain. This provides important guidance for practitioners on how to frame arguments for alternative sentencing in capital cases. The case reinforces the high threshold for the Prosecution's case while maintaining the stringent requirements for the defense to rebut statutory presumptions.

Practice Pointers

• Challenging the Chain of Custody: Practitioners should meticulously review CNB field notes, exhibit diaries, and photographs for discrepancies. However, as seen in this case, minor inconsistencies in descriptions (e.g., the number of bundles visible in a bag) may not be sufficient to create reasonable doubt if the overall movement of the exhibits is accounted for.
• Rebutting s 18(2) Presumptions: A defense of "blind trust" is highly unlikely to succeed in the face of "red flags" such as surreptitious meetings, high cash amounts, or suspicious packaging. Counsel must find affirmative evidence of the accused’s state of mind that goes beyond mere denial.
• Mistaken Belief Defense: When raising a "mistaken belief" defense (e.g., "paan parak"), it is crucial to address the physical characteristics of the drug. If the drug looks or smells significantly different from the alleged substance, the defense must provide a compelling explanation for the accused’s failure to notice.
• The Role of Transaction Value: The court will heavily weigh the value of the transaction against the alleged nature of the goods. A payment of S$9,000 for a delivery of tobacco is a significant "red flag" that practitioners must be prepared to explain.
• Courier Status under s 33B: Even in cases where the evidence of trafficking is strong, counsel should focus on establishing that the accused’s role was limited to the acts specified in s 33B(2)(a). This involves demonstrating that the accused did not have a wider role in the distribution or financing of the drug operation.
• Recording of Statements: The dates and circumstances of statement recording (e.g., the long gap between June 2019 and January 2020 in this case) should be scrutinized for any potential impact on the reliability of the accused’s memory or the consistency of their account.

Subsequent Treatment

As of the date of this analysis, [2023] SGHC 95 stands as a recent and authoritative application of the principles governing chain of custody and statutory presumptions in drug trafficking cases. The court’s ratio—that the integrity of drug exhibits is not compromised by minor recording discrepancies and that the burden to rebut the presumption of knowledge is not discharged by implausible claims of blind trust or mistaken belief—is consistent with established Court of Appeal precedents. The finding of courier status for both the deliverer and the receiver provides a clear example of the functional application of s 33B(2)(a) of the MDA.

Legislation Referenced

• Misuse of Drugs Act (Cap 185, 2008 Rev Ed): s 5(1)(a), s 5(2), s 18(1), s 18(1)(a), s 18(2), s 33B, s 33B(2), s 33B(2)(a), s 2 (definition of "traffic").
• Evidence Act 1893 (2020 Rev Ed): s 116 (illustration (g) regarding adverse inference).
• Criminal Procedure Code: Section 19(2), s 22, s 23, s 32(1).

Cases Cited

• Considered: Muhammad Ridzuan bin Md Ali v Public Prosecutor [2014] 3 SLR 721
• Referred to: Public Prosecutor v Yen May Woen [2003] SGHC 60
• Referred to: Mohamed Affandi bin Rosli v Public Prosecutor and another appeal [2019] 1 SLR 440
• Referred to: Jagatheesan s/o Krishnasamy v Public Prosecutor [2006] 4 SLR(R) 45
• Referred to: Public Prosecutor v GCK and another matter [2020] 1 SLR 486
• Referred to: Ng Kwee Leong v Public Prosecutor [1998] 3 SLR(R) 281
• Referred to: Muhammad bin Kadar and another v Public Prosecutor [2011] 3 SLR 1205
• Referred to: Satli bin Masot v Public Prosecutor [1999] 1 SLR(R) 931
• Referred to: Public Prosecutor v Chen Mingjian [2009] 4 SLR(R) 946
• Referred to: Dinesh Pillai a/l K Raja Retnam v Public Prosecutor [2012] 2 SLR 903
• Referred to: Zainal bin Hamad v Public Prosecutor and another appeal [2018] 2 SLR 1119
• Referred to: Obeng Comfort v PP [2017] 1 SLR 633
• Referred to: Public Prosecutor v Gobi a/l Avedian [2019] 1 SLR 113
• Referred to: Gobi a/l Avedian v Public Prosecutor [2021] 1 SLR 180
• Referred to: Tan Kiam Peng v Public Prosecutor [2008] 1 SLR 1
• Referred to: Public Prosecutor v Chum Tat Suan [2015] 1 SLR 834
• Referred to: Zainudin bin Mohamed v Public Prosecutor [2018] 1 SLR 449

Source Documents

• Original judgment PDF: Download (PDF, hosted on Legal Wires CDN)
• Official eLitigation record: View on elitigation.sg