Uncovering Miscarriages of Justice

A Case Commentary on Veeramani Manikam v Public Prosecutor [2015] SGHC 201

By Chan Jian Da, Roi Tan Yu Ming, Joel Jaryn Yap Shen

For three years and seven months, Mr Veeramani Manikam (“the accused”) had been in remand in Changi Prison after being sentenced by the District Judge (“DJ”) to a total of 20½ years imprisonment with 20 strokes of the cane. The accused was convicted for importing cannabis under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) punishable under s 33(1) of the MDA and possessing Nimetazepam, a “Class C” controlled drug, under s 8(a) of the MDA.

However, on 3rd August 2015, the accused was acquitted after Justice Chan Seng Onn (“Justice Chan”) allowed his appeal in Veeramani Manikam v Public Prosecutor [2015] SGHC 201 (“Veeramani”). The Singapore High Court accepted his account that he had no knowledge about the drugs found in the car he was driving at the time of arrest.

In delivering the judgment, Justice Chan reversed the DJ’s decision after concluding that the accused’s testimony was “consistent”, “candid”, “credible” and “predominantly unrebutted” (at [14] and [19]). The learned judge also identified several lapses that had occurred at trial and in the investigation process leading to the accused’s wrongful conviction at first instance.

Facts

On 29 December 2011, while the accused was working as a bouncer at a Johor Bahru pub, he drank with a customer (“the Singer”) throughout the night. The Singer later requested the accused to arrange transportation for him back to Singapore as the Singer had to work the next day. The accused then approached his colleague, Ravi, for help. Ravi lent the accused a car, on the condition that the Singer did the driving and the accused drove the car back.

The accused opened a black bag which he noticed in the car, only to be told by the Singer that it contained food. The accused did not pursue the matter. While the Singer continued driving, the accused fell asleep.

When the accused was later awoken by a Malaysian Traffic Police Officer who threatened to issue a summons if the accused did not move his car, the Singer was found to be missing. At that point, the car was parked along the road before the Malaysian Customs. As the Singer was no longer in the Car, the accused drove the Car, crossed the Malaysian Customs and proceeded towards the Woodlands Checkpoint because he was unable to make a U-turn. He also noticed that the black bag was not in the car and assumed that the Singer took it.

Acting on intelligence, Immigration & Checkpoints Authority officers inspected the car at Woodlands Checkpoint. The accused was arrested after the black bag was found hidden under the car’s bonnet and it contained cannabis mixture and the “Class C” drug, Nimetazepam.

The decision below

In PP v Veeramani Manikam [2013] SGDC 206 (“GD”), the DJ convicted the accused on the following grounds:

1. It was “inexplicable that [the accused] had driven into Singapore instead of turning back and returning to the pub as the officer was chasing him from where the car was parked and that it was a straight road” (GD at [44]).

2. The DJ drew the inference that the drugs were imported into Singapore for trafficking from the accused’s admission that the drugs were not meant for his personal consumption (GD at [44]).

3. The DJ held that the Appellant was ‘clearly aware’ that the black bag contained drugs when he drove the vehicle into Singapore because he opened the bag earlier and saw the drugs being wrapped with transparent plastic wrappers (GD at [45]).

Findings on Appeal

On appeal, Justice Chan overturned the DJ on the above three grounds, thereby finding that the accused had successfully rebutted the presumptions under ss 18(2) and 21 of the MDA, on a balance of probabilities. Firstly, the accused’s decision to drive towards Singapore is justified because he was unable to negotiate a U-turn before the Malaysian Customs. Secondly, the accused was not aware of the presence of drugs given that the drugs were kept in an opaque bag and the accused was falsely reassured by the Singer that the bag contained food. Thirdly, the DJ made an unsupported inference that the accused was aware that the bag contained the drugs when he simply stated that he did not consume drugs.

U-turn

The lawyer who represented the accused pro bono, Mr Jason Chan from Allen & Gledhill LLP, hired a private investigator who tendered evidence that there was “no available U-turn located at the Johor Sultan Iskandar Complex Customs” and that “the only way to make a U-turn would be to ‘go back’ to Singapore and proceed to come back to JB”. The prosecution’s witness also submitted evidence that the “Malaysian Customs will not allow anyone to make a U-turn so easily” (at [10]).

Justice Chan accepted the evidence provided by the private investigator and the prosecution witness, stating that it ‘would have made sense for the [accused]’ to proceed to drive into Singapore instead of negotiating a U-turn near the Malaysian Customs (at [10]).

Moreover, the factual premises relied on by the DJ are “inherently flawed as there seems to be a highly plausible explanation for the appellant driving into Singapore even though the Singer was no longer in the car”. Thus, Justice Chan concluded that the DJ’s findings were “made against the weight of the evidence” (at [11]).

Unaware of the presence of drugs

Justice Chan reviewed the objective evidence and accepted Mr Jason Chan’s submission that the multiple layers of wrappings used to conceal the bundles of drugs had rendered it opaque (at [12]). Hence, it would not be apparent to the accused upon a cursory glance that the bundles contained drugs.

Unsupported Inference

Justice Chan also held that the DJ “manifestly erred” by finding that the accused admitted that he knew the black bag contained drugs simply because the accused admitted that the drugs were not for his personal consumption (at [13]). The purported admission as inferred by the DJ was completely unsupported by evidence.

Rebutting the presumptions under ss 18(2) & 21 of MDA

Section 18(2) of the MDA states that a person who is proved or presumed to have had a controlled drug in his possession is presumed to have known the nature of the drugs and s 21 of the MDA states that if a controlled drug is found in any vehicle, the owner or the person who is in charge of the vehicle for the time being is presumed to be in possession of the controlled drug. In the instant case, the accused had rebutted the presumptions in ss 18(2) and 21 of the MDA on the following grounds:

(a) The accused furnished a detailed, consistent and candid testimony that was held to be credible. His account was also supported by the private investigator’s findings. Contrary to the Prosecution’s submissions that his story was “improbable”, he was able to accurately provide the name of the pub and its location.

(b) Given the difficulties in making a U-turn at the Malaysian Customs, the accused’s explanation for driving into Singapore when he had no intention to do so is plausible.

(c) On the evidence, the accused was unlikely to suspect that there were controlled drugs in the black bag, especially when the Singer assured him that it was food.

(d) The accused was so intoxicated that he was “slurring” when arrested. Justice Chan opined that it is odd if the accused would not want to be alert while making the drug run.

(e) The accused was candid in providing information in his statements soon after his arrest.

Holistically, Justice Chan was satisfied that the accused had rebutted the presumptions on a balance of probabilities and he is not guilty of importing the controlled drugs.

Justice Chan further observed that the accused had rejected a request to illegally smuggle cigarettes into Singapore one month before his arrest. The accused had earlier reported this incident to the Singapore authorities and it was possible that the report was unrecorded. The accused believed that he might have been framed as a result of his refusal to commit the illegal act (at [18]).

Lapses at trial and in the investigation process as identified on appeal

On appeal, Justice Chan identified several lapses not addressed at the decision below. These lapses could be classified into two categories, namely the Investigation Officers (“IOs”) failure to verify the accused’s statements and judicial errors.

Under the first category, the IOs did not verify the accused’s statements by failing to follow up on it and carry out due investigations.

“[T]he existence of a U-turn before the Malaysian Customs had not been ascertained and no attempt was made to verify the existence of the Pub, his co-worker Ravi, the Singer and the incident of the Malaysian Traffic Police officer waking him up and ordering him to drive the Car away.” [emphasis added] (at [9])

“[T]he prosecution had submitted at the trial below that the accused had “fabricated his entire defence” … At the appeal, the prosecution similarly maintained its position that “[the] entire story of the [accused] is highly improbable”… However, I note that at the trial below, the [accused] had in fact accurately provided the name of the Pub … The existence of the Pub at the location mentioned by the [accused] could have been ascertained by a simple search on the Internet (which was probably not done by the investigating officers in charge of the [accused] case (“the IOs”) and the prosecution). I performed a “Google” search based on the name of the Pub provided by the [accused] and found the address and location of the [pub] broadly tallies with what the [accused] had said. I note that [the private investigator] was also subsequently able to verify the physical existence of the Pub.” (at [14])

“[I]t is unfortunate that the IOs chose not to check the truth or falsity of the [accused’s] story at that time and follow up by tracing the location of the Pub, the existence and whereabouts of Ravi, the Singer and the Malaysian Traffic Police officer who had woken the appellant up while the Car was stationary near the Malaysian Customs.” [emphasis added] (at [16])

The IOs’ failure to corroborate the accused’s story illustrates the danger of an accused being prejudiced by administrative breaches in the investigation process.

Under the second category, judicial errors also contributed to the accused’s wrongful conviction when the DJ drew inferences against the weight of the evidence.

“[T]his finding of the DJ also appears to be made against the weight of the evidence before her as the appellant’s evidence that he could not perform a U-turn was not challenged by the prosecution in the hearing below.” [emphasis added] (at [11])

“[T]he DJ manifestly erred by finding that the appellant admitted that the drugs were not for his personal consumption; such a finding also implied an admission by the appellant that he knew that the Black Bag contained drugs (see [44] of the DJ’s GD). This purported admission is completely unsupported by the evidence before the DJ.” [emphasis added] (at [13])

“The DJ, for reasons not known, did not allow the [accused] to fully ventilate this point in the hearing below.” [emphasis added] (at [18])

With respect, this unfortunately demonstrates the very existence of human fallibility, revealing the limitations of the judicial system where it cannot be said to be fully error-free.

Commentary

While a well functioning criminal justice system strives to convict the guilty and protect the innocent, the imprisonment of innocent persons debases this purpose. Lives of the wrongfully convicted are inadvertently destroyed and victims are falsely reassured by the apparent retributive justice meted out. Resultantly, real perpetrators are accorded the freedom to commit further crimes, ultimately undermining public confidence in our criminal justice system.

Veeranmani’s significance transcends beyond the mere acquittal of an individual who was caught in an unfortunate circumstance. It reiterates the overriding duty that both prosecution and defence counsel owe to the court in assisting it to achieve justice. This necessarily places a burden on both parties to verify the salient facts on which the case may turn on.

It is poignant in this regard to recall the words of V K Rajah JA (as he then was), in delivering the judgment of the seminal decision of Muhammad bin Kadar v Public Prosecutor, that:

“[t]he duty of the Prosecution is not to secure a conviction at all costs. Rather, the Prosecution owes a duty to the court and to the wider public to ensure that only the guilty are convicted, and that all relevant material is placed before the court to assist it in its determination of the truth. The fruits of investigations are after all the property of the community to ensure that justice is done”[1].

While the onus of rebutting the presumptions in the MDA rests on accused persons as in the immediate case, it is even more important that the prosecution discharges its duty given the reversal of the burden of proof.

In the instant case, the pro bono lawyer remarkably engaged a private investigator to ascertain that it was not possible for the accused to perform a U-turn before the Malaysian Customs. This finding was crucial in overturning the accused’s conviction. The lawyer’s commitment had vindicated the innocent accused, reiterating the importance of strengthening a pro bono culture in the legal landscape to facilitate access to justice. Veeramani also highlights the importance of scaling up legal representation for accused persons in criminal cases. If the accused had represented himself or was without an effective pro bono counsel, the court may not have accepted the sensibility of the accused’s decision to drive into Singapore.

In conclusion, Veeramani illustrates that our robust criminal justice system is not completely immune from errors. The multiple lapses identified in the investigation process and at the trial below were regrettable, especially the IOs’ refusal to verify or follow up with the accused’s statements. These lapses serve as a stark reminder that the risk of wrongful convictions in Singapore is real. This reinforces Innocence Project (Singapore)’s position in the Singapore criminal legal system as the final ‘safety net’ to vindicate the innocent who may have fallen through the cracks of the justice system.

[1] [2011] SGCA 32 at [200]

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