Alleged Drug Trafficker Acquitted of Capital Offence Charge

Public Prosecutor v Moad Fadzir Bin Mustaffa & Zuraimy Bin Musa [2019] SGHC 33; Moad Fadzir bin Mustaffa v Public Prosecutor [2019] SGCA 73

1. Introduction

We acted for Zuraimy Bin Musa (“Zuraimy“) who stood trial alongside Moad Fadzir Bin Mustaffa (“Moad“) for sharing a common intention to traffic in 36.93 grams of diamorphine (the “Drugs“) when they were arrested separately on 12 April 2016. If convicted, both would face the death penalty.

Zuraimy’s charge read

You, ZURAIMY BIN MUSA are charged that you, on 12th April 2016,   at   or   about   12.15a.m., at the vicinity of Blk 623 Woodlands Drive 52, Singapore, together with one Moad Fadzir bin Mustaffa, NRIC No. SXXXXX12F, in furtherance of the common intention of both of you, did traffic in a controlled drug specified in Class ‘A’ of the First Schedule to the  Misuse  of Drugs Act (Cap 185, 2008, Rev Ed), to wit, by having in your possession for the purpose of trafficking  four  packets  of granular substances that were analysed  and  found  to  contain not less than 36.93 grams of diamorphine, without any authorization under the said  Act  or  Regulations  made thereunder and you have thereby committed an offence under section 5(1)(a) read with section 5(2) of the Misuse of Drug Act read with section 34 of the Penal Code (Cap 224, 2008 Rev Ed) which offence is punishable under section 33(1)  of the  Misuse  of Drugs Act.

Moad’s charge read

You, MOAD FADZIR BIN MUSTAFFA are charged that you, on 12th April 2016, at or about 12.15a.m., at the vicinity of Blk 623 Woodlands Drive 52, Singapore, together with one Zuraimy bin Musa, NRIC No. SXXXXX06E, in furtherance of the common intention of both of you, did traffic in a controlled drug specified in Class ‘A’ of the First Schedule to the  Misuse of  Drugs  Act (Cap 185, 2008, Rev Ed), to wit, by having in your  possession  for the purpose of trafficking, four packets of  granular  substances that were analysed and  found  to  contain  not  less than 36.93 grams of diamorphine, without any authorization  under the said Act or Regulations made  thereunder  and  you  have thereby committed an offence under section 5(1)(a) read  with section 5(2) of the Misuse of Drug Act read with section 34 of the Penal Code (Cap 224, 2008 Rev Ed) which offence is punishable under section 33(1) of the  Misuse of Drugs Act.

2. Moad’s Contemporaneous Statement 

Crucially, it was Moad who had been arrested in possession of the Drugs. In his contemporaneous statement, Moad had also admitted to knowing the nature of the drugs. It was also Moad who had made a withdrawal of approximately $3,000 the night before his arrest, presumably to pay for the Drugs (or at least a part thereof). Considering the evidence in its totality, the Judge thereby sentenced Moad to suffer death.

3. Common intention to traffic the drugs 

The Judge, however, did not agree with the Prosecution’s case that Zuraimy had shared in Moad’s intention to traffic the Drugs. The Judge found that the evidence had not necessarily shown that Zuraimy knew that Moad was purchasing the Drugs for the purpose of trafficking, and opined that it was possible that Zuraimy had thought that Moad had made the purchase for his own consumption.

4. Conclusion

The Judge thereby amended the charge against Zuraimy to one of abetting Moad to obtain the Drugs, and sentenced him to 10 years’ imprisonment. The Prosecution appealed against the Judge’s decision to the Court of Appeal. We successfully defended this appeal, and it was dismissed.