Thong Ah Fat v PP: Misuse of Drugs Act & Knowledge of Controlled Drug Nature

Thong Ah Fat appealed to the Court of Appeal of Singapore against his conviction in the High Court for importing diamorphine into Singapore, an offense under the Misuse of Drugs Act. The primary legal issue was whether Thong Ah Fat had the requisite knowledge that he was importing diamorphine, or whether he believed he was importing methamphetamine. The Court of Appeal allowed the appeal and ordered a retrial, citing insufficient reasoning in the original judgment regarding findings of fact and application of law.

1. Case Overview

1.1 Court

Court of Appeal

1.2 Outcome

Appeal Allowed

1.3 Case Type

Criminal

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Thong Ah Fat appeals his conviction for importing diamorphine. The Court of Appeal orders a retrial due to insufficient reasoning in the original judgment.

1.7 Decision Date

29 November 2011

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Public Prosecutor	Respondent	Government Agency	Appeal Allowed	Lost	Samuel Chua of Attorney-General’s Chambers Siva Shanmugam of Attorney-General’s Chambers
Thong Ah Fat	Appellant	Individual	Appeal Allowed	Won	Boon Khoon Lim of Dora Boon & Company Chua Siow Lee Dora of Dora Boon & Company

3. Judges

Judge Name	Title	Delivered Judgment
Chao Hick Tin	Justice of Appeal	No
Andrew Phang Boon Leong	Justice of Appeal	No
V K Rajah	Justice of Appeal	Yes

4. Counsels

Counsel Name	Organization
Samuel Chua	Attorney-General’s Chambers
Siva Shanmugam	Attorney-General’s Chambers
Boon Khoon Lim	Dora Boon & Company
Chua Siow Lee Dora	Dora Boon & Company

4. Facts

Thong Ah Fat was charged with importing not less than 142.41 grams of diamorphine into Singapore.
The drugs were found in ten packets in Thong Ah Fat's car at Woodlands Checkpoint.
Thong Ah Fat claimed he thought he was carrying methamphetamine, not diamorphine.
The trial judge found Thong Ah Fat guilty and sentenced him to death.
The trial judge admitted a contemporaneous statement from Thong Ah Fat as evidence.
The defense argued that the contemporaneous statement was not voluntarily given.
The Court of Appeal found the trial judge's reasoning unclear and ordered a retrial.

5. Formal Citations

Thong Ah Fat v Public Prosecutor, Criminal Appeal No 13 of 2010, [2011] SGCA 65
Public Prosecutor v Thong Ah Fat, Criminal Case No 17 of 2010, [2010] SGHC 227

6. Timeline

Date	Event
2009-01-12	Thong Ah Fat imported drugs into Singapore at Woodlands Checkpoint.
2010-01-01	Criminal Case No 17 of 2010
2010-01-01	High Court decision in [2010] SGHC 227.
2010-01-01	Criminal Appeal No 13 of 2010
2011-11-30	Judgment reserved.
2011-11-30	Court of Appeal decision.

7. Legal Issues

Knowledge of the nature of controlled drugs
- Outcome: The Court of Appeal found that the trial judge's reasoning was unclear regarding the appellant's knowledge and ordered a retrial.
- Category: Substantive
- Sub-Issues:
  - Rebuttal of presumption of knowledge
  - Wilful blindness
- Related Cases:
  - [2008] 1 SLR(R) 1
  - [2011] SGCA 49
Judicial duty to give reasoned decisions
- Outcome: The Court of Appeal held that the trial judge failed to adequately discharge the judicial duty to give reasoned decisions, necessitating a retrial.
- Category: Procedural
- Sub-Issues:
  - Adequacy of reasons
  - Findings of fact
  - Application of law
- Related Cases:
  - [1984] 1 AC 729
Admissibility of statements
- Outcome: The Court of Appeal raised concerns about the trial judge's analysis of the admissibility and significance of the appellant's statements.
- Category: Procedural
- Sub-Issues:
  - Voluntariness of statement
  - Voir dire
- Related Cases:
  - [1998] 3 SLR(R) 619

8. Remedies Sought

Appeal against conviction
Appeal against sentence

9. Cause of Actions

Importation of controlled drugs without authorisation
Violation of Misuse of Drugs Act

10. Practice Areas

Criminal Appeals
Drug Trafficking

11. Industries

No industries specified

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Tan Kiam Peng v Public Prosecutor	Court of Appeal	Yes	[2008] 1 SLR(R) 1	Singapore	Cited to discuss the interpretations of mens rea under s 7 of the Misuse of Drugs Act.
Nagaenthran a/l K Dharmalingam v Public Prosecutor	Court of Appeal	Yes	[2011] SGCA 49	Singapore	Cited to clarify the position on the issue of knowledge under the Misuse of Drugs Act.
Lai Wee Lian v Singapore Bus Service (1978) Ltd	Privy Council	Yes	[1984] 1 AC 729	Singapore	Cited to underscore the requirement to state reasons at the end of a trial.
Coleman v Dunlop Limited	English Court of Appeal	Yes	[1998] PIQR 398	England	Cited for the position on the duty to give reasons.
Waterson v Batten	New South Wales Court of Appeal	Yes	(13 May 1988, unreported)	Australia	Cited to show that the issue is no longer whether judicial officers owe a duty to state reasons for their decisions, but the extent of that obligation.
Craven v Craven	English Court of Appeal	Yes	(1957) 107 LJ 505	England	Cited as authority for introducing a requirement for trial judges to give judgments which are reasoned to the extent of stating the findings of fact on which they rely.
Pettitt v Dunkley	New South Wales Court of Appeal	Yes	[1971] 1 NSWLR 376	Australia	Cited to show that there is as much a judicial duty to give reasons in an appropriate case as there is otherwise a duty to act judicially.
Soulemezis v Dudley (Holdings) Pty Ltd	New South Wales Court of Appeal	Yes	(1987) 10 NSWLR 247	Australia	Cited to show that it is now considered an indivisible incident of the judicial process.
Public Service Board of New South Wales v Osmond	N/A	Yes	(1986) 63 ALR 559	Australia	Cited to show that it is now considered an indivisible incident of the judicial process.
Flannery and Another v Halifax Estate Agencies Ltd (trading as Colleys Professional Services)	English Court of Appeal	Yes	[2000] 1 WLR 377	England	Cited to show that the duty is a function of due process, and therefore of justice.
Tramountana Armadora SA v Atlantic Shipping Co SA	N/A	Yes	[1978] 2 All ER 870	N/A	Cited to show that having to give reasons concentrates the mind wonderfully.
Beale v Government Insurance Office of NSW	N/A	Yes	(1997) 48 NSWLR 430	Australia	Cited to show that the requirement to provide reasons can operate prophylactically on the judicial mind, guarding against the birth of an unconsidered or impulsive decision.
Wright v Australian Broadcasting Commission and Another	N/A	Yes	[1977] 1 NSWLR 697	Australia	Cited to show that the appellate court should not be left to speculate from collateral observations as to the reasoning upon which a critical decision is made, when the trial judge can and ought directly to reveal it.
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd	N/A	Yes	[1983] 3 NSWLR 378	Australia	Cited to show that the duty ordinarily applies even where there can be no appeal against that decision.
Regina v Harrow Crown Court, Ex parte Dave	Queen’s Bench Division	Yes	[1994] 1 WLR 98	England	Cited to exemplify the importance of having reasons adequately stated.
ADF v Public Prosecutor and another appeal	High Court	Yes	[2010] 1 SLR 874	Singapore	Cited to show that the appellate court will exercise restraint in recognition of the trial judge’s advantage in observing the evidence directly.
Jagatheesan s/o Krishnasamy v Public Prosecutor	High Court	Yes	[2006] 4 SLR(R) 45	Singapore	Cited to show that appellate intervention is still justified under certain circumstances, for example, when the inferences drawn by a trial court were not supported by the primary or objective evidence on record.
Watt or Thomas v Thomas	House of Lords	Yes	[1947] AC 484	United Kingdom	Cited to show when an appellate court may intervene notwithstanding the trial judge’s advantage.
Choo Kok Beng v Choo Kok Hoe and others	High Court	Yes	[1983–1984] SLR(R) 578	Singapore	Cited to show an extreme scenario where an appellate court may intervene notwithstanding the trial judge’s advantage.
MacDonald v The Queen	Supreme Court of Canada	Yes	(1976) 29 CCC (2d) 257	Canada	Cited to show that the volume of criminal work makes an indiscriminate requirement of reasons impractical.
Glen Rees T/as Glynmar Pastoral Co v Walker	New South Wales Court of Appeal	Yes	(13 December 1988, unreported)	Australia	Cited to show that even in matters of practice and procedure, where the decision will effectively decide the rights of the parties finally, reasons must be given.
Sun Alliance Insurance Ltd v Massoud	Supreme Court of Victoria	Yes	[1989] VR 8	Australia	Cited to show that the simplicity of the context of the case or the state of the evidence may be such that a mere statement of the judge’s conclusion will sufficiently indicate the basis of a decision.
Brittingham v Williams	N/A	Yes	[1932] VLR 237	Australia	Cited to show that the simplicity of the context of the case or the state of the evidence may be such that a mere statement of the judge’s conclusion will sufficiently indicate the basis of a decision.
Capital and Suburban Properties Ltd v Swycher and Others	N/A	Yes	[1976] 1 Ch 319	England	Cited to show that there are some types of interlocutory applications, mainly those with a procedural focus, which a judge can properly make an order without giving reasons.
Knight and Another v Clifton and Others	N/A	Yes	[1971] 1 Ch 700	England	Cited to show that there are some types of interlocutory applications, mainly those with a procedural focus, which a judge can properly make an order without giving reasons.
Eagil Trust Co Ltd v Pigott-Brown and another	N/A	Yes	[1985] 3 All ER 119	England	Cited to show that neither are reasons normally to be expected when a judge exercises his discretion on costs, unless it involves an unusual award.
R v MacPherson	N/A	Yes	[1982] 1 NZLR 650	New Zealand	Cited to show that the law ordinarily requires the trial judge to explain his assessment of the witness’s testimony.
Crowley v Willis	N/A	Yes	(1992) 110 FLR 194	Australia	Cited to show that the law ordinarily requires the trial judge to explain his assessment of the witness’s testimony.
NRMA Insurance Ltd v Tatt and Another	New South Wales Court of Appeal	Yes	(1988) 94 FLR 339	Australia	Cited to show that the basis for allowing the appeal was not because the trial judge had committed an “error in making the wrong finding” but because of his “failure to make any findings on material issues”.
Chai Chien Wei Kelvin v Public Prosecutor	High Court	Yes	[1998] 3 SLR(R) 619	Singapore	Cited to show that because the recorder of the statement was a Central Narcotics Bureau officer and not a police officer, it would appear that s 24 of the Evidence Act (Cap 97, 1997 Rev Ed) (“EA”) was the applicable admissibility provision rather than s 122(5) of the CPC.
In the Marriage Of: John Christopher Towns Appellant/Husband and Deborah Jane Towns Respondent/Wife	Full Court of the Family Court of Australia	Yes	[1990] FamCA 129	Australia	Cited to show that the Full Court of the Family Court of Australia has, on numerous occasions, displayed a considerable amount of latitude towards judges at first instance being mindful that they are often sitting in busy lists and have to deliver their judgments on an extemporary basis which may not make it possible for them to express themselves with the directness and clarity that an appellate tribunal and litigants might wish.
Lloyd Junior Beckford (An Infant by his Mother and Next Friend Tracy Alleyne) v Dr Trevor ET Weston	English Court of Appeal	Yes	(22 June 1998, unreported)	England	Cited to show that the judge has to give a detailed, reasoned judgment and that it was his duty to give reasons which hold water.
John Strbak v Narelle Newton	New South Wales Court of Appeal	Yes	[1989] NSWCA 202	Australia	Cited to show that it is going too far to suggest that in every case a judge must submit the material before him or her to the most meticulous analysis and carry into judgment a detailed exposition of every aspect of the evidence and the arguments.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
Misuse of Drugs Act, Chapter 185	Singapore
Criminal Procedure Code (Cap 68, 1985 Rev Ed)	Singapore
Evidence Act (Cap 97, 1997 Rev Ed)	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Diamorphine
Methamphetamine
Controlled drug
Mens rea
Presumption of knowledge
Judicial duty to give reasons
Contemporaneous statement
Cautioned statement
Voir dire
Retrial

15.2 Keywords

Drug Importation
Misuse of Drugs Act
Criminal Appeal
Singapore Law
Retrial
Judicial Reasoning

17. Areas of Law

Area Name	Relevance Score
Misuse of Drugs Act	95
Criminal Law	70
Criminal Procedure	60
Evidence	50
Appeal	30

16. Subjects

Criminal Law
Drug Trafficking
Judicial Review