Mas Swan v Public Prosecutor: Attempted Drug Importation & Inconsistent Defenses
In Public Prosecutor v Mas Swan bin Adnan and another appeal, the Singapore Court of Appeal heard appeals from both Mas Swan and Roshamima regarding drug importation charges. Mas Swan was initially acquitted of importing diamorphine, while Roshamima was convicted. The Prosecution appealed Mas Swan's acquittal, seeking a conviction for attempted importation of ecstasy. Roshamima appealed her conviction. The Court convicted Mas Swan of attempted importation of ecstasy and set aside Roshamima's conviction for importing diamorphine, convicting her instead of attempted importation of ecstasy. The court addressed the issue of inconsistent defenses and the duty of trial judges to consider all reasonably available defenses.
1. Case Overview
1.1 Court
Court of Appeal1.2 Outcome
Appeal allowed. Mas Swan convicted of attempted importation of ecstasy. Roshamima's conviction for importing diamorphine set aside; convicted of attempted importation of ecstasy.
1.3 Case Type
Criminal
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Singapore Court of Appeal judgment on attempted drug importation, addressing inconsistent defenses and the duty of trial judges.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Public Prosecutor | Appellant, Respondent | Government Agency | Appeal allowed in part | Partial | Hay Hung Chun of Attorney-General’s Chambers Sharmila Sripathy-Shanaz of Attorney-General’s Chambers |
| Mas Swan bin Adnan | Respondent, Appellant | Individual | Convicted | Lost | |
| Roshamima binti Roslan | Respondent, Appellant | Individual | Conviction Set Aside | Neutral |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Chan Sek Keong | Chief Justice | Yes |
| Andrew Phang Boon Leong | Justice of the Court of Appeal | No |
| V K Rajah | Justice of the Court of Appeal | No |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Hay Hung Chun | Attorney-General’s Chambers |
| Sharmila Sripathy-Shanaz | Attorney-General’s Chambers |
| Ranadhir Gupta | A Zamzam & Co |
| N Kanagavijayan | Kana & Co |
| Mohamed Muzammil Bin Mohamed | Muzammil & Company |
| Gloria James | Civetta & Co |
4. Facts
- Mas Swan and Roshamima were arrested at Woodlands Checkpoint with 123 packets containing 21.48 grams of diamorphine.
- Mas Swan claimed he believed the bundles contained ecstasy, not diamorphine, based on Roshamima's information.
- Roshamima claimed she was unaware of the drugs and was entering Singapore for wedding-related purposes.
- The trial judge acquitted Mas Swan of importing diamorphine but convicted Roshamima.
- The Prosecution appealed Mas Swan's acquittal, seeking a conviction for attempted importation of ecstasy.
- Roshamima appealed her conviction, arguing she didn't know about the drugs.
- An anonymous email surfaced, claiming responsibility for placing the drugs in the car without Roshamima's knowledge.
5. Formal Citations
- Public Prosecutor v Mas Swan bin Adnan and another appeal, Criminal Appeals Nos 7 and 8 of 2011, [2012] SGCA 29
- Public Prosecutor v Mas Swan bin Adnan and another, , [2011] SGHC 107
6. Timeline
| Date | Event |
|---|---|
| Mas Swan and Roshamima arrived at Woodlands Checkpoint from Malaysia | |
| Mas Swan and Roshamima were due to be engaged | |
| Mas Swan and Roshamima were due to get married | |
| Anonymous Email sent to lawyers | |
| Judgment reserved |
7. Legal Issues
- Attempted Importation of Drugs
- Outcome: The court held that Mas Swan committed the offence of attempting to import ecstasy into Singapore under s 7 read with s 12 of the MDA.
- Category: Substantive
- Sub-Issues:
- Factual Impossibility
- Mens Rea for Attempt
- Actus Reus for Attempt
- Inconsistent Defenses in Criminal Trials
- Outcome: The court held that the Judge erred in law in not addressing the possibility that Roshamima might also have believed that the three bundles contained ecstasy since this was what she had told Mas Swan.
- Category: Procedural
- Sub-Issues:
- Duty of Trial Judge
- Alternative Defenses
- Burden of Proof
- Rebuttal of Statutory Presumption
- Outcome: The court found that Roshamima's conviction for importing diamorphine was unsafe because the trial judge did not adequately consider whether she believed the drugs to be ecstasy, which would have rebutted the presumption that she knew the drugs were diamorphine.
- Category: Substantive
- Sub-Issues:
- Section 18(2) of the Misuse of Drugs Act
- Knowledge of Controlled Drugs
8. Remedies Sought
- Conviction for Attempted Importation of Ecstasy
- Appeal against Conviction
9. Cause of Actions
- Importation of Controlled Drugs
- Attempted Importation of Controlled Drugs
10. Practice Areas
- Criminal Litigation
11. Industries
- No industries specified
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Khor Soon Lee v Public Prosecutor | Court of Appeal | Yes | [2011] 3 SLR 201 | Singapore | Cited as precedent for convicting the appellant of an amended charge of attempting to import Class A controlled drugs after acquitting him of a capital charge of importing diamorphine. |
| Public Prosecutor v Goh Ah Lim | Unknown | Yes | [1989] 2 SLR(R) 217 | Singapore | Cited as a local case concerning the offence under s 12 of the MDA of attempting to commit offences under the MDA. |
| Public Prosecutor v Ho So Mui | Unknown | Yes | [1993] 1 SLR(R) 57 | Singapore | Cited as a local case concerning the offence under s 12 of the MDA of attempting to commit offences under the MDA. |
| Goh Joon Tong and another v Public Prosecutor | Unknown | Yes | [1995] 3 SLR(R) 90 | Singapore | Cited as a local case concerning the offence under s 12 of the MDA of attempting to commit offences under the MDA. |
| Public Prosecutor v Bryan Yeo Sin Rong and others | High Court | Yes | [1998] SGHC 266 | Singapore | Cited as a local case concerning the offence under s 12 of the MDA of attempting to commit offences under the MDA. |
| Chua Kian Kok v Public Prosecutor | High Court | Yes | [1999] 1 SLR(R) 826 | Singapore | Cited for the mens rea for the general offence of attempt under the then equivalent of s 511 of the Penal Code. |
| Haughton v Smith | House of Lords | Yes | [1975] AC 476 | United Kingdom | Cited for the holding that a person who dishonestly handled goods believing them to be stolen (but which were not stolen because they had been returned to lawful custody due to police interception) was not guilty of attempting to handle stolen goods. |
| Regina v Shivpuri | Unknown | Yes | [1987] 1 AC 1 | England | Cited for the current position in England that factually impossible attempts are offences. |
| Law Society of Singapore v Bay Puay Joo Lilian | Unknown | Yes | [2008] 2 SLR(R) 316 | Singapore | Cited for applying Chua Kian Kok in a disciplinary case involving the entrapment of solicitors involved in touting for conveyancing work. |
| Jeffery bin Abdullah v Public Prosecutor | High Court | Yes | [2009] 3 SLR(R) 414 | Singapore | Cited for the factors to consider when determining the sentence for drug trafficking. |
| Regina v Tomasz Szmyt | English Court of Appeal | Yes | [2010] 1 Cr App R (S) 69 | England | Cited for the holding that the proper way to assess the sentence for the offence was to consider what would have been an appropriate sentence if that quantity of ecstasy had been imported, and then to scale it down to account for the fact that although the appellant was guilty of attempting to import ecstasy, what was imported was actually a harmless substance. |
| R v Magdalen Genevieve Wolin | Unknown | Yes | [2006] 1 Cr App R (S) 133 | England | Cited for the court reducing the sentence because it felt that a further discount was warranted to account for the fact that the appellant was charged with an attempt and not a completed offence; and the fact that the substance which the appellant carried was not a prohibited substance. |
| Public Prosecutor v Phuthita Somchit and another | High Court | Yes | [2011] 3 SLR 719 | Singapore | Cited for sentencing considerations in drug-related offences. |
| Mancini v Director of Public Prosecutions | House of Lords | Yes | [1942] 1 AC 1 | United Kingdom | Cited for the duty of the judge to deal adequately with any other view of the facts which might reasonably arise out of the evidence given, and which would reduce the crime from murder to manslaughter. |
| Pemble v The Queen | Unknown | Yes | 124 CLR 107 | Australia | Cited for the principle that the trial judge must be astute to secure for the accused a fair trial according to law. |
| Regina v Cambridge | English Court of Appeal | Yes | [1994] 1 WLR 971 | England | Cited for the principle that the court will disregard the fact that an alternative defence available to an accused may be inconsistent with his primary defence, and will not hold it against him if he does not wish to raise the alternative defence. |
| Regina v Coutts | Unknown | Yes | [2006] 1 WLR 2154 | England | Cited for the principle that the interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves. |
| Mohamed Kunjo v Public Prosecutor | Privy Council | Yes | [1977–1978] SLR(R) 211 | Singapore | Cited for the principle that in a jury trial, the trial judge must put to the jury all matters which might reasonably entitle the jury to return a lesser verdict. |
| Chamru Budhwa v State of Madhya Pradesh | Supreme Court of India | Yes | AIR 1954 SC 652 | India | Cited for an Indian decision involving a bench trial in which the Supreme Court of India substituted a verdict of culpable homicide for one of murder because it found that the special exception of sudden fight was made out notwithstanding that this special exception was not raised during the trial. |
| Rex v. Hopper | Court of Criminal Appeal | Yes | [1915] 2 KB 431 | United Kingdom | Cited for the principle that whatever the line of defence adopted by counsel at the trial of a prisoner, it is for the judge to put such questions as appear to him properly to arise upon the evidence, even although counsel may not have raised some question himself. |
| Bullard v. The Queen | Privy Council | Yes | [1957] A.C. 635 | Unknown | Cited for the principle that if on the evidence, whether of the prosecution or of the defence, there is any evidence of provocation fit to be left to a jury, and whether or not this issue has been specifically raised at the trial by counsel for the defence and whether or not the accused had said in terms that he was provoked, it is the duty of the judge, after a proper direction, to leave it open to the jury to return a verdict of manslaughter if they are not satisfied beyond reasonable doubt that the killing was unprovoked. |
| Reg. v. Porritt | Unknown | Yes | [1961] 1 W.L.R. 1372 | Unknown | Cited for approving a passage from the opinion of the Privy Council in Bullard v. The Queen [1957] A.C. 635 delivered by Lord Tucker. |
| Reg. v. Camplin | Unknown | Yes | [1978] A.C. 705 | Unknown | Cited for the principle that if there was any evidence that the accused himself at the time of the act which caused the death in fact lost his self-control in consequence of some provocation however slight it might appear to the judge, he was bound to leave to the jury the question, which is one of opinion not of law: whether a reasonable man might have reacted to that provocation as the accused did. |
| Reg. v. Rossiter | Unknown | Yes | [1994] 2 All E.R. 752 | Unknown | Cited for the principle that wherever there is material which is capable of amounting to provocation, however tenuous it may be, the jury must be given the privilege of ruling upon it. |
| R. v Fairbanks | Unknown | Yes | [1986] 1 WLR 1202 | Unknown | Cited for the principle that in any criminal prosecution for a serious offence there is an important public interest in the outcome. |
| Von Starck v The Queen | Unknown | Yes | [2000] 1 WLR 1270 | Unknown | Cited for the principle that it is the ultimate responsibility of the trial judge to ensure that the jury is alerted to the options open to it. |
| Hunter v The Queen | Privy Council | Yes | [2003] UKPC 69 | United Kingdom | Cited for the principle that it is the ultimate responsibility of the trial judge to ensure that the jury is alerted to the options open to it. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Misuse of Drugs Act (Chapter 185) | Singapore |
| Section 7 of the Misuse of Drugs Act (Chapter 185) | Singapore |
| Section 33 of the Misuse of Drugs Act | Singapore |
| Section 12 of the Misuse of Drugs Act | Singapore |
| Section 34 of the Penal Code (Chapter 224) | Singapore |
| Section 511 of the Penal Code (Cap 224, 2008 Rev Ed) | Singapore |
| Section 163(1) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) | Singapore |
| Section 54(2) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) | Singapore |
| Section 18(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Diamorphine
- Ecstasy
- Attempted Importation
- Statutory Presumption
- Inconsistent Defenses
- Wilful Blindness
- Joint Charge
- Amended Charge
- Woodlands Checkpoint
- Controlled Drugs
- Section 18(2) MDA
15.2 Keywords
- Drug Importation
- Attempt
- Ecstasy
- Diamorphine
- Singapore
- Criminal Law
- Inconsistent Defenses
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Misuse of Drugs Act | 95 |
| Criminal Law | 90 |
| Criminal Procedure | 70 |
| Criminal Revision | 60 |
| Statutory Interpretation | 50 |
| Penal Code | 40 |
| Evidence | 30 |
16. Subjects
- Criminal Law
- Drug Trafficking
- Criminal Procedure
- Evidence