The appellant (“Beh”) had entered Singapore on a motorcycle which he borrowed from his friend (“Lew”). A routine check found drugs in the storage compartment of the motorcycle. Beh was charged under s 7 of the Misuse of Drugs Act (MDA). The presumptions under ss 21 and 18(2) of the MDA applied and thus Beh had an evidential burden to rebut these presumptions.
The key issue was whether Beh had rebutted the presumption of possession under s 21 of the MDA by showing that he had no knowledge of the drugs in the motorcycle. If he had, the evidential burden would have shifted over to the prosecution.
The Court of Appeal (CA) found that Beh’s account was not inherently incredible because of the following reasons:
- The motorcycle belonged to Lew;
- Lew’s DNA was found on the drugs and Beh’s was not;
- Not all of Beh’s reasons for entering Singapore were incredible; and
- Beh’s position in his statements and oral evidence was consistent overall that the Motorcycle belonged to Lew and that the authorities should ask Lew regarding the drugs.
Sgt Ong recalled that Beh asked SSSgt Khairul to call Lew to ask about the drugs. This is significant as Beh could not have known that Lew’s DNA was on the drugs.
Due to these factors, the CA found that Beh had done enough to rebut the presumption under s 21 of the MDA and thus the evidential burden was handed over to the prosecution.
The prosecution had postulated three possible scenarios arising from Beh’s denial of knowledge of the drugs in the motorcycle and all three scenarios involved Lew. At the time of trial, Lew was an available witness as he was in jail in Singapore. He was a central figure who could have shed light on which version of events was correct but the prosecution did not call him as a witness.
As a result, the prosecution failed to discharge its evidential burden and the CA acquitted Beh of the charge.
The CA did make observations with regards to the text messages. The CA remarked that the blanket decision to omit the text messages before cross examination begins incurs the risk of shutting down potentially relevant evidence. The context of the messages and their apparent meaning should be taken into consideration. However as the text messages were not put forth as evidence, the CA could not rule on them.