Two es­cape gal­lows af­ter split de­ci­sion

The New Paper - - NEWS - SELINA LUM, LAW COR­RE­SPON­DENT

Court of Ap­peal split over han­dling of drug ev­i­dence af­ter ar­rests

Two men, orig­i­nally sen­tenced to hang for heroin traf­fick­ing, were cleared yes­ter­day af­ter a split de­ci­sion by the Court of Ap­peal, with two of the three judges point­ing to in­con­sis­ten­cies in how the seized drugs were han­dled af­ter the ar­rest.

In ac­quit­ting Mo­hamed Af­fandi Rosli and Mo­hamad Fad­zli Ah­mad of traf­fick­ing 132.82g of heroin, Chief Jus­tice Sun­daresh Menon and Se­nior Judge Chao Hick Tin said the prose­cu­tion had failed to es­tab­lish the chain of cus­tody of the ex­hibits.

The ma­jor­ity noted that the prose­cu­tion bore the bur­den of prov­ing be­yond a rea­son­able doubt that the drug ex­hibits an­a­lysed by the Health Sciences Au­thor­ity were the same that were seized by Cen­tral Nar­cotics Bu­reau (CNB) of­fi­cers.

Two CNB of­fi­cers each gave a dif­fer­ing ac­count of how the drugs were han­dled af­ter they were seized.

Dis­sent­ing with the ma­jor­ity de­ci­sion, Judge of Ap­peal Tay Yong Kwang said there was no break in the chain of cus­tody.

Af­fandi and Fad­zli were ar­rested sep­a­rately on July 12, 2013, in a CNB op­er­a­tion. Fad­zli was ar­rested with metham­phetamine in his car and nimetazepam tablets were later found in his flat. Af­fandi was ar­rested shortly af­ter­wards. Heroin and metham­phetamine were found in his ve­hi­cle.

Af­fandi was given the death penalty for hav­ing 132.82g of heroin for the pur­pose of traf­fick­ing, and Fad­zli was given it for abet­ting him. They were con­victed of non-cap­i­tal charges in re­la­tion to the other drugs.

AP­PEAL

Dur­ing their ap­peal, Af­fandi’s as­signed lawyer, Mr Michael S. Chia, at­tacked the in­tegrity of the chain of cus­tody of the ex­hibits.

One of­fi­cer said the drugs were put in­side a black trash bag, which was placed on the front pas­sen­ger seat of the CNB ve­hi­cle while the team was on the move. He said he took the bag with him when they searched Af­fandi’s flat.

The other of­fi­cer said he held on to the bag, which he said was blue. He said that while the team were in the CNB ve­hi­cle, the ex­hibits were in­side the boot.

The ma­jor­ity said: “In each case, each ver­sion was sup­ported by the ro­bust ev­i­dence of a se­nior law en­force­ment of­fi­cer. But both could not pos­si­bly be true. Nor was any plau­si­ble ex­pla­na­tion put for­ward by the prose­cu­tion as to how these in­con­sis­ten­cies were to be rec­on­ciled.”

But Jus­tice Tay said that go­ing by ei­ther ver­sion of events, the ex­hibits were al­ways in a trash bag and in the cus­tody of the CNB team.

There was no ev­i­dence that the ex­hibits were mixed up with other ex­hibits or that there was a pos­si­ble mix-up or con­tam­i­na­tion, he said.

Af­fandi and Fad­zli are in cus­tody pend­ing a de­ci­sion about the non-cap­i­tal charges.

seli­[email protected]

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