Public Prosecutor v Tan Loon Lui [2003] 2 SLR 216
High Court — Magistrate’s Appeal No 55 of 2002
Yong Pung How CJ
25 March; 11 April 2003

Criminal Law — Consumption of controlled drugs without authorisation — Section 22 Misuse of Drugs Act (Cap 185) — Presumption of actus reus and mens rea — Whether defence of ‘spiked drinks’ valid — Consequence of such defence

Evidence — Admission — Witness admitted to spiking drink — Credibility of such witness — Treatment of witness in such admissions

Hui Choon Kuen (Deputy Public Prosecutor) for the appellant
Ch’ng Lye Beng (Tan Lye & Ngaw Partnership) for the respondent

This was an appeal by the Public Prosecutor against the decision of District Judge Malcolm Tan Ban Hoe to acquit the respondent, Tan Loon Lui (‘Tan’) of two charges under s 8(b) of the Misuse of Drugs Act (‘MDA’) for having consumed controlled drugs without authorisation under the MDA.

The respondent, had accompanied his wife to Johor Bahru where he then met his wife’s sister and brother-in-law, Ng Wan Sing (‘Ng’). After supper, the group, on Ng’s invitation, went to a discotheque named the ‘Jazz and Blues’.

The group ordered beer. Soon after, a group of Ng’s friends joined Tan’s group. Ng’s friends, among whom Lim Beng Chuan (‘Lim’), who later becomes a key witness, was one of those in the group. Lim’s group had brought their own jugs of beer which they then shared with Tan’s group. Ng and his friends were all bookies, despite this Tan and his wife remained and drank on.

Shortly after, the Malaysian Police raided the discotheque and conducted Instant Urine Tests (‘IUTs’) on the patrons. Among the Singaporeans who tested positive were Tan and his wife. All those who tested positive were then escorted across the border and handed over to the Central Narcotics Bureau (‘CNB’) officers. CNB officers also conducted IUTs and those with positive results had their samples sent to the Health Sciences Authority (‘HSA’) for further testing. Among those sent to the HSA, only Tan’s tested positive for controlled drugs.

Tan tested positive for Methamphetamine, a Class ‘A’ drug and Ketamine, a Class ‘B’ drug. He was then charged under s 8(b) of the MDA. Section 22 of the MDA provides for statutory presumption that both mens rea and actus reus of an offence of drug consumption are satisfied once a controlled drug is found in the urine of the accused person. The case of Cheng Siah Johnson v PP [2002] 2 SLR 481 has further clarified that the accused has to disprove on a balance of probabilities either element of the offence.

During the trial, Lim as witness for the defence, admitted that he had spiked his jugs of beer and that these jugs were shared among all those at the table, including Tan.

The district judge took into consideration Lim’s background of being a bookie as well as his admission of spiking drinks and found that despite Lim being a man of immoral means and practices — the fact that he owned up to committing the act of spiking drinks with controlled substances convinced the district judge that Lim had no ulterior motives behind his admission.

Further, the judge also found that there was no evidence of Lim being paid to take the ‘fall’. The district judge had observed that Tan and his wife were simple people who were incapable of making up a story of having consumed spiked drinks. After assessing the demeanour of both Tan and Lim at the trial, the judge was convinced that Tan had rebutted the presumption under s 22 MDA on a balance of probabilities and acquitted him. The Public Prosecutor appealed against the acquittal.

Held, dismissing the appeal:

A witness’s capability must be tested against known objective facts and evidence as stated in Simon Joseph v PP [1997] 3 SLR 196. The same principle was used in light of the spiked drinks defence.

The DPP then questioned why was it that among all those who were present at the table, it was only Tan who tested positive for controlled drugs. The DPP, in his line of questioning, was trying to prove that Tan was the only one who tested positive among those in the group as he was the only who had consumed the controlled drug. This, however, did not discredit Tan’s case in the same way as it would have improved Tan’s case if all in the group had also tested positive but it still would not have been enough to grant an acquittal.

The fact that Tan’s wife tested positive during the tests in Johor Bahru but not when HSA tested, required some explanation. Ms Ann Young, an analyst with the HSA, explained that IUTs tests cover a wide range of amphetamine-type drugs while the HSA tests only looks for specific drugs. Further, she explained that it was possible for the drugs to be diluted through drinking water. Also the lesser the amount of drug consumed, the faster it would be diluted.

From this evidence, it was possible to deduce that the others had also tested positive in Johor Bahru and it was possible that in some of them the drugs had been diluted and it was also plausible that Tan had consumed a much greater quantity of the drink than the others.

Tan’s failure to call any member from his group of friends to testify for him did not warrant an adverse inference, unlike the case of PP v Nurashikin bte Ahmad Borhan [2003] 1 SLR 52; Singapore Law Gazette, June 2003. Unlike the Nurashikin case, Tan had produced a key witness whose testimony formed the backbone of his case.

The DPP then argued that the fact that the trial judge had observed that Lim was ‘a man of shady character, a bookie and a member of the pill-popping, drug taking sub-culture that exists on the underbelly of society’ should have led the trial judge to discredit Lim’s admission. On the contrary, it is the fact that the trial judge had taken into consideration Lim’s background that lends weight to the fact that the trial judge had fully addressed this aspect of the witness and even after having taken such background into consideration, the trial judge was willing to accept Lim’s admission.

The prosecution then raised the argument that Tan had not in fact consumed the beer from Lim’s jugs due to Tan’s suspicion of the group. The trial judge found that it was not likely that Tan had been suspicious of Lim as it could be ascertained from the facts that Tan had not been on his guard that night even when he accepted the invitation to join his brother-in-law, Ng, to go to the Jazz and Blues. Even if Tan had been suspicious it would have been insufficient to prove that Tan had failed to rebut the presumption imposed on him by virtue of s 22 MDA.

In light of all the facts, Tan had successfully rebutted the presumption under s 22 MDA.

[It was also observed that, in cases where a ‘spiked drink’ defence is made, in order to prevent the abuse of the justice process, in future, any defence witness who ‘confesses’ to spiking the accused’s drink should be arrested immediately after giving his evidence for abetting such consumption. Without this measure, there would be no end to the number of ‘remorseful spikers’ who, perhaps for a fee, will take the ‘fall’ for drug consumers. Whether or not the accused’s drink was spiked should remain a question of fact — the answer to which depends on the unique facts of each case — but it should be made clear that the consequence of a spiker’s confession would be his immediate arrest.]

Appeal dismissed.

Vimala Chandrarajan