The Singapore Law Gazette

Section 18(4) of the Misuse of Drugs Act

Mohammad Azli bin Mohammad Salleh v Public Prosecutor and Another Appeal and Other Matters [2020] 1 SLR 1374

This article seeks to unpack the Court of Appeal’s four salient points regarding section 18(4) of the Misuse of Drugs Act in Mohammad Azli bin Mohammad Salleh v Public Prosecutor [2020] 1 SLR at [49]-[70].

Introduction

Section 18(4) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (MDA) states that:

“Where one of 2 or more persons with the knowledge and consent of the rest has any controlled drug in his possession, it shall be deemed to be in the possession of each and all of them.”

The Court of Appeal consisting of five Judges, in Mohammad Azli bin Mohammad Salleh v Public Prosecutor and another appeal and other matters [2020] 1 SLR 1374 at [49]-[70] (Mohammad Azli), made four salient points regarding section 18(4) of the MDA:

1. Section 18(4) is a definitional and deeming provision, not a rebuttable presumption;
2. The touchstone of joint possession under section 18(4) is not a physical connection, but rather the accused’s consent to another person being in actual possession of the thing;
3. Consent requires a “degree of power or authority”; there has to be “some dealing between the parties in relation to the drug, such as an agreement to buy it or help in concealing it”; and
4. Knowledge in section 18(4) refers to knowledge that the object in the actual possessor’s possession is a controlled drug in general (as opposed to any specific controlled drug). This is the intermediate conception of section 18(4) knowledge.This case note seeks to unpack these four salient points.

Facts of the Case

On the night of 6 October 2015, the accused person – Mohammad Azli bin Mohammad Salleh (Azli) – drove Roszaidi bin Osman (Roszaidi) to Bulim Avenue in his rented car.

There, Roszaidi collected a red plastic bag from Aishamudin bin Jamaludin (Aishamudin) and another person, who were in the cabin of a trailer truck. The red plastic bag contained two packets of diamorphine, which is commonly referred to as “heroin”, as well as three packets of methamphetamine, which is commonly referred to as “ice”. The two packets of diamorphine (the Drugs), contained a total of not less than 32.54g of diamorphine. This formed the subject matter of the charges under the MDA against Azli, Roszaidi and Aishamudin, who were tried jointly for their role in trafficking the Drugs.

Azli then drove Roszaidi to the vicinity of his residence in Jurong West, where Roszaidi’s wife, Azidah binti Zainal (Azidah) was waiting along the side of the road with a yellow paper bag. Roszaidi had placed the Drugs and two of the packets of methamphetamine into a “Starmart” plastic bag. He took the yellow paper bag from Azidah, placed the “Starmart” plastic bag inside it, and handed it back to Azidah. He asked her to bring the bag up to their apartment. Azli then drove off with Roszaidi. Azidah was arrested shortly afterwards by CNB (Central Narcotics Bureau) officers. The Drugs and the two packets of methamphetamine were found in her possession.

Roszaidi later alighted from Azli’s car, after which they were each arrested at different locations. Upon Azli’s arrest, the car was searched by CNB officers, resulting in the seizure of a number of items found to contain methamphetamine. Drug paraphernalia such as a digital weighing scale as well as some empty paper and plastic packets were also seized from a compartment located on the driver’s door of the car.

Azli was charged under section 5(1)(a) read with section 12 of the MDA for abetting Roszaidi to traffic in the Drugs by intentionally aiding him – namely, by driving Roszaidi to Bulim Avenue to collect the Drugs, and then to Jurong West to deliver the Drugs to Azidah.

Main Body

(A) Section 18(4) is a definitional and deeming provision, not a rebuttable presumption

Section 18(4) defines the joint possession of drugs. It is a deeming provision, and not a rebuttable presumption.¹Mohammad Azli Bin Mohammad Salleh v Public Prosecutor and another appeal and other matters (2020) 1 SLR 1374 at (51) and (72).

The fact that section 18(4) is a definitional provision and not a presumption – i.e. there would be no question of rebutting it – impacts on the analysis in choosing between the various conceptions of section 18(4) knowledge.

(B) Touchstone of joint possession under section 18(4) is not a physical connection, but rather the accused’s consent to another person being in actual possession of the thing

The touchstone of joint possession under section 18(4) is not a physical connection (involving physical possession, custody or control) between the accused person and the thing, but rather the accused person’s consent to another person being in actual possession of the thing.²Ibid. at (63).

In Mohammad Azli, Azli submitted that he cannot be said to have been in joint possession under section 18(4) because Roszaidi was not in possession of the Drugs at the time of his arrest, and Azli was not with him at that point.³Ibid. at (71). This argument was not accepted. The Court of Appeal held that if Azli knew of and consented to Roszaidi being in possession of certain drugs for them to be delivered to a third party, it cannot make a difference that Roszaidi had parted company with the drugs and with Azli by the time he was arrested.⁴Ibid. at (73).

The Court of Appeal decision of Hartej Sidhu and another v Public Prosecutor [1994] 2 SLR(R) 541 at [4] and [38] is also instructive. The first appellant – who was carrying the drugs – was arrested in the coffee house, while the second appellant was arrested at a separate location i.e. hotel lobby. The Court of Appeal held that section 18(4) was validly engaged.⁵Hartej Sidhu and another v Public Prosecutor (1994) 2 SLR(R) 541 at (39).

(C) Consent requires a degree of power or authority; there has to be some dealing between the parties in relation to the drug

What amounts to “consent” in section 18(4)? “Consent” requires a degree of “power or authority” over the object in question. Mere acquiescence or condonation would not suffice; rather, there has to be “some dealing between the parties in relation to the drug, such as an agreement to buy it or help in concealing it”. As such, a minimal or distant role in the drug transaction would not amount to “consent” under section 18(4).⁶Mohammad Azli Bin Mohammad Salleh v Public Prosecutor and another appeal and other matters (2020) 1 SLR 1374 at (86).

An instructive case is the Court of Appeal decision of Moad Fadzir bin Mustaffa v Public Prosecutor and other appeals [2019] SGCA 73. There, the first accused person, Moad Fadzir, had driven to a location to pay for and collect drugs, while the second accused person, Zuraimy, sat in the car next to him and liaised with the drug trafficker for directions. The evidence indicated that Moad Fadzir was the one with the plan to deal in drugs, while Zuraimy was just the middleman who would have had no part to play had Moad Fadzir been in direct contact with the trafficker.⁷Ibid. at (86), referencing Moad Fadzir bin Mustaffa v Public Prosecutor and other appeals (2019) SGCA 73 at (97).

For that reason, the Court of Appeal upheld the trial judge’s finding that Zuraimy did not consent to Moad Fadzir being in possession of the drugs within the meaning of section 18(4) of the MDA, and therefore found Zuraimy not to be in joint possession of the drugs. That said, the Court of Appeal expressed the view that Zuraimy’s conduct failed only “marginally” to show such consent, especially since he had played a minor role in concealing the drugs in a bag.⁸Mohammad Azli Bin Mohammad Salleh v Public Prosecutor and another appeal and other matters (2020) 1 SLR 1374 at (86), referencing Moad Fadzir bin Mustaffa v Public Prosecutor and other appeals (2019) SGCA 73 at (98).

(D) Knowledge in section 18(4) refers to knowledge that the object in the actual possessor’s possession is a controlled drug in general

What does the “knowledge” in section 18(4) refer to? The Court of Appeal in Mohammad Azli considered three possibilities:

(1) Broad Conception of section 18(4) Knowledge	Section 18(4) knowledge is the same as the element of knowledge for trafficking, meaning knowledge of the nature of the drug9Adili Chibuike Ejike v Public Prosecutor (2019) 2 SLR 254 at (32) and (34).
(2) Narrow Conception of section 18(4) Knowledge	Does not require knowledge of the nature of the drug, but only knowledge of the existence of the thing that turns out to be the drug – this is equivalent to the knowledge which is embedded within the element of possession10Ibid. at at (31)-(34).
(3) Intermediate Conception of section 18(4) Knowledge	Knowledge that the object in the actual possessor’s possession is a controlled drug in general (as opposed to any specific controlled drug)

The primary point of contention in choosing between the various conceptions of section 18(4) knowledge is whether the deeming of joint possession requires as a prerequisite that the joint possessor must have actual knowledge of the nature of the drug, and how this impacts upon the relevance or otherwise of the presumption of knowledge under section 18(2).¹¹Mohammad Azli Bin Mohammad Salleh v Public Prosecutor and another appeal and other matters (2020) 1 SLR 1374 at (61).

The choice between the possible conceptions of section 18(4) knowledge therefore also determines whether and how the section 18(2) presumption may be engaged in circumstances where the Prosecution relies on section 18(4) to establish the element of possession.¹²Ibid. at (61).

(1) Broad Conception of Section 18(4) Knowledge

Under the broad conception, knowledge is the same as the element of knowledge for trafficking, meaning knowledge of the nature of the drug.¹³Ibid. at (53).

If the broad conception were adopted, then once joint possession under section 18(4) of the MDA has been established, it would mean that the elements of both possession and knowledge in the offence of trafficking would have been established. This is because although joint possession seems primarily to be concerned with the element of possession, on the broad conception referred to above, to be treated as being in joint possession one would also have to be shown to know the nature of the drug, and will therefore have satisfied the element of knowledge as well.¹⁴Ibid. at (54).

Under the broad conception, knowledge of the nature of the drug must be proven under section 18(4), therefore removing the possibility of or the need for invoking the section 18(2) presumption.¹⁵Ibid. at (61).

The Court of Appeal did not adopt the broad conception. This is because possession of the drugs and knowledge of their nature are distinct elements when dealing with any offence under the MDA, and the jurisprudence has emphasised the importance of not conflating them.¹⁶Ibid. at (67), referencing Adili Chibuike Ejike v Public Prosecutor (2019) 2 SLR 254 at (32) and (35). Significantly, section 18(4) of the MDA is concerned with the question of possession and not with the separate question of knowledge.¹⁷Mohammad Azli Bin Mohammad Salleh v Public Prosecutor and another appeal and other matters (2020) 1 SLR 1374 at (67). It also seemed to the Court of Appeal to be unnecessary and inconsistent with the text of section 18(4) to hold that knowledge for the purpose of finding joint possession should extend to actual knowledge of the nature of the drugs.¹⁸Ibid. at (67).

(2) Narrow Conception of Section 18(4) Knowledge

The narrow conception does not require knowledge of the nature of the drug, but only knowledge of the existence of the thing that turns out to be the drug – this is equivalent to the knowledge which is embedded within the element of possession.¹⁹Ibid. at (53).

In other words, if the narrow conception were adopted, joint possession under section 18(4) would match and be concerned only with the element of possession in the offence of trafficking.²⁰Ibid. at (54). Under the narrow conceptions, a lesser degree of knowledge would satisfy the prerequisites of section 18(4), and the section 18(2) presumption may remain relevant and be invoked to bridge the evidential gap in order to establish knowledge of the specific nature of the drug.²¹Ibid. at (61).

The Court of Appeal did not adopt the narrow conception. This is because a meaningful degree of consent beyond mere acquiescence would not be possible if the narrow conception of section 18(4) knowledge were adopted.²²Ibid. at (63).

This can be illustrated based on the facts of Mohammad Azli. Suppose it were true that Azli was merely a driver for private hire, and had agreed to drive Roszaidi from point to point on Roszaidi’s instructions. Under the narrow conception, any object on Roszaidi’s person during this journey could potentially also be in Azli’s joint possession under section 18(4) of the MDA (if it turned out to be a controlled drug). Section 18(4) knowledge would be satisfied as long as Azli had perceived the existence of that object. The “consent” element of section 18(4) would also be satisfied: Azli’s agreement to convey Roszaidi around, together with any objects that Roszaidi may bring into the car, would amount to “dealing” in these objects by delivering them from one place to another. Azli would also have a degree of “power or authority” over these objects, as he could refuse Roszaidi permission to bring those objects into his car.²³Ibid. at (64).

Azli could therefore be said to have known of and consented to Roszaidi’s being in possession of these objects within the narrow conception of section 18(4) knowledge (if they turned out to be controlled drugs). Further, the presumption of knowledge under section 18(2) would then apply. Azli would also be trafficking in those drugs, because he was intentionally conveying them from one point to another.²⁴Ibid. at (64).

These difficulties are exacerbated by the fact that because section 18(4) is not a presumption but a definitional provision, there would be no question of rebutting it.²⁵Ibid. at (64).

It is no doubt true that it would be open to Azli in such a scenario to seek to rebut the section 18(2) presumption by showing that he had no knowledge of the nature of the drugs; and he might well succeed in this. However, he would bear the burden of proving this negative. In other words, as a result of the narrow conception, the Prosecution would be able to construct its entire case against Azli (in this scenario) on the basis of entirely innocuous facts – namely, that Azli had agreed to drive Roszaidi from point to point, and that he had known of the existence of the thing in Roszaidi’s possession which turned out to be the drugs.²⁶Ibid. at (65).

On this interpretation of section 18(4), any driver who allowed a passenger to enter his car, visibly carrying an item or package which turned out to contain controlled drugs, would bear the burden of proving that he did not know that they were drugs in order to escape a trafficking charge. This plainly is untenable and led the Court of Appeal to the firm conclusion that the narrow conception cannot be the correct interpretation of section 18(4) knowledge.²⁷Ibid. at (65).

(3) Intermediate Conception of Section 18(4) Knowledge

The intermediate conception is the knowledge that the object in the actual possessor’s possession is a controlled drug in general (as opposed to any specific controlled drug).²⁸Ibid. at (55). The Court of Appeal considered this to be the correct conception of section 18(4) knowledge.²⁹Ibid. at (55).

It is only meaningful to say that one knows of and consents to another being in possession of an object if one has at least some relevant knowledge of the nature of that object. What the relevant knowledge is depends on the basis upon which one could be said to exercise consent to another being in possession of that object. After all, knowledge is a prerequisite to consent since it is not possible to consent to something that one is unaware of.³⁰Ibid. at (66).

In the Court of Appeal’s judgment, the aim of section 18(4) of the MDA is to fix with possession those who know of and consent to another person being in possession of controlled drugs, and therefore the relevant knowledge would be the fact that the object is a controlled drug. This corresponds to the intermediate conception. This must then be accompanied by “consent” in the sense that there is some dealing or participation in the manner described in Mohammad Azli at [52].³¹Ibid. at (66).

The intermediate conception also best accords with the plain meaning of section 18(4).³²Ibid. at (55) and (67).

If the “knowledge and consent” elements in section 18(4) are made out, the accused person is deemed to be in joint possession of the drugs. Joint possession is deemed to be legally equivalent to actual possession by virtue of section 18(4).³³Ibid. at (51) and (68). The result of this equivalence is that all the usual consequences of a finding of actual possession would apply: principally, in the present context, that means the applicability of the presumption of knowledge under section 18(2) of the MDA.³⁴Ibid. at (68). Section 18(2) of the MDA reads: Any person who is proved or presumed to have had a controlled drug in his possession shall, until the contrary is proved, be presumed to have known the nature of that drug. (emphasis added)

In the Court of Appeal’s judgment, the intermediate conception brings the joint possessor under section 18(4) into (at least) a state of moral equivalence with an actual possessor.³⁵Ibid. at (68).

Conclusion

In the final analysis, the intermediate conception, viz. “knowledge” under section 18(4) of the MDA requires knowledge that the thing is a controlled drug in general (as opposed to any specific controlled drug), coupled with the accused person’s consent, places him in circumstances where the section 18(2) presumption would then fairly be applicable.³⁶Ibid. at (70).

For completeness, in Imran bin Mohd Arip v Public Prosecutor [2020] SGCA 120 at [1] and [137], the Court of Appeal emphasised the observation in Public Prosecutor v Aishamudin bin Jamaludin [2020] 2 SLR 769 at [110] that instead of invoking section 34 of the Penal Code against all the offenders unnecessarily, it may be conceptually and practically more desirable to frame charges against secondary offenders based either on abetment or on joint possession under section 18(4) of the MDA.