1 The two appellants were charged in the High Court as follows:

2 Following a trial of some 13 days in the High Court, they were convicted of the above charge. The present appeals were brought against their convictions. We dismissed the appeals on 14 February 1994 and now give our reasons.

3  The facts

4 The two appellants were arrested at Plum`s Coffee House, Hyatt Regency Hotel (`the Hyatt`) at about 1.55pm on 24 May 1988. On that day, they had met with one Michael Fullett at the coffee house. Unbeknownst to both appellants, Fullett was a special agent from the United States Drug Enforcement Administration (`DEA`), who had been requested by the Central Narcotics Bureau (`CNB`) in Singapore to assist them in the course of certain investigations. Also unbeknownst to both appellants, a team of narcotics officers had been stationed nearby to keep watch on the three men.

5 The second appellant had been observed to be carrying a red plastic bag when he entered the hotel. At about 1.50pm, he was seen following Fullett towards the toilet situated at the foyer of the hotel lobby, still carrying the red plastic bag. A little while later, he returned without Fullett and without the plastic bag. Two narcotics officers, Jamaluddin Bin Salleh (`Jamaluddin`) and Lee Kiong Lock, entered the toilet and found Fullett in there with the red plastic bag, which he told them had been handed over to him by the second appellant. Upon opening the red plastic bag, Jamaluddin discovered a white plastic bag which in turn contained brown powder stored in a brown wrapper. The two appellants were then arrested in Plum`s and brought to CNB. There, the powdery substance inside the bag was weighed in the presence of both appellants and found to weigh 827 grams. A cautioned statement was subsequently recorded from each appellant pursuant to s 122(6) of the Criminal Procedure Code (Cap 224) (`CPC`).

6  The prosecution`s case

7 The prosecution`s case relied mainly on the evidence of Fullett and Jamaluddin. Jamaluddin testified that on 23 May 1988, after having received information about a Singaporean wishing to sell `Golden Crescent` heroin to a foreign buyer, he requested Fullett to work undercover for the CNB in their investigations of the matter. A meeting was arranged between Fullett and the would-be Singaporean seller at 9.30pm on the same day, at the Royal Holiday Inn (`Holiday Inn`), Scotts Road, with Jamaluddin positioned in the hotel lobby to provide cover for Fullett. The first appellant arrived at about 9.35pm and was observed engaged in conversation with Fullett. Fullett testified at trial that the first appellant discussed the sale of heroin with him during that meeting. The first appellant asked if Fullett would be interested in buying 1kg of heroin for US$10,000, to which Fullett made a counter-offer of US$7,500. Eventually, they reached agreement at the price of US$8,000 although the first appellant added the caveat that he would not be able to confirm the price until the following day.

8 According to Fullett, the two men also spoke about different grades of heroin during their meeting. The first appellant talked about the different types of heroin available and further described the brown heroin which he would be selling Fullett. In Fullett`s words:

9 At the same meeting, Fullett, wishing to ascertain if the first appellant was close to any laboratory involved in drug manufacture, asked the first appellant whether he knew anything about a chemical called `acetic anhydride` and whether he knew anyone who had that chemical for sale. He did this by writing the words `acetic anhydride` on a piece of paper and handing it to the first appellant.

10 A second meeting was arranged for 24 May 1988 at sometime between 12.30pm and 1pm, again at the Holiday Inn. On the morning of 24 May 1988 Fullett attended a briefing at the CNB before proceeding to the Holiday Inn where he was to meet the first appellant in the Cafe Vienna. During the ensuing meeting, the first appellant informed Fullett that the price of US$8,000 which they had arrived at the previous day was now unacceptable. A new price of US$9,000 was demanded instead. When Fullett agreed to this, the first appellant asked him to proceed to Plum`s Coffee House in the Hyatt and to wait for him there for about 20 minutes to an hour. The first appellant further stated that he would be bringing another person along with him with the heroin.

11 After the first appellant left, Fullett proceeded to Plum`s and sat at a table, having duly informed Jamaluddin beforehand of the arrangements. At about 1.45pm, the first appellant appeared, with the second appellant following him. The second appellant was carrying a red plastic bag which the first appellant told Fullett contained the heroin in question. Fullett then asked to look at the heroin, whereupon the first appellant directed the second appellant to accompany Fullett to the toilet with the plastic bag. Both Fullett and the second appellant made their way to the toilet. It should be noted that Fullett testified that, on the way to the toilet, he asked the second appellant how the heroin was packaged and was told that it was brown powder. Before they actually entered the toilet, however, the second appellant handed Fullett the plastic bag and walked away from him. On peeking into the bag, Fullett saw brown powder loosely kept in a brown bag. This was placed in a white plastic bag which was in turn placed inside the red plastic bag. After Fullett entered the toilet, Jamaluddin came in too: the events which then followed have been briefly recounted above (see under `The facts`).

12 The prosecution further relied on the s 122(6) statements of both appellants. The first appellant`s s 122(6) statement, admitted without his having contested its admissibility, read as follows:

13 The second appellant`s s 122(6) statement was also admitted after a voir dire to determine its voluntariness. It read as follows:

14 The prosecution called Dr Saw Chwee Guan, a scientific officer attached to the Institute of Scientific and Forensic Medicine. Dr Saw gave evidence that his analysis of the brown powdery substance found in the plastic bag showed its net weight to be 817.9 grams and the amount of diamorphine contained therein to be 254.36g.

15 At trial the prosecution stated specifically its reliance on s 18(1), (2) and (4) of the Misuse of Drugs Act (Cap 185) (`the Act`), which establish the presumption of possession of the drug in question as well as the presumption of knowledge of the nature of that drug. At the close of the prosecution case the trial judge found that a prima facie case had been made out against both appellants with regard to the charge against them and called upon their defence.

16  The first appellant`s defence

17 The first appellant denied the prosecution`s version of the facts. In particular, he denied that he had known that the brown powder was heroin or that he had arranged to sell it to Fullett as such. He claimed that he had found the brown powder in the Pacific Mansion flat of a friend, Ali, at which he had been staying. He had first set eyes on it when he met one Sayyid Seth (`Seth`) in the flat who was seated at the dining table with a number of bags laid out before him and a great deal of brown powder on the table top. When asked by the first appellant what the powder was, Seth answered only that Ali knew about it and then proceeded to place a brown bag in Ali`s cupboard in the master bedroom. Overcome by curiosity, the first appellant inspected the bag after Seth`s departure and discovered in it some fine brown powder. He became very inquisitive about the nature of the powder and so mentioned it to a couple of friends. One of these was Zainal, who subsequently told the first appellant that he had a friend whom the first appellant could ask about the brown powder. According to Zainal, this friend dealt in chemicals. He was coming to Singapore for a visit and Zainal would introduce him to the first appellant so that the first appellant could take him shopping and looking for electronic goods (this being a job the first appellant sometimes engaged in).

18 The promised meeting occurred on 23 May 1988, sometime between 9pm and 9.30pm at the Holiday Inn. The first appellant was introduced to Fullett as `Tony`. Asked about the brown powder, Fullett told the first appellant that it could be a drug called `acetic anhydride`, a name which he wrote on a piece of paper. Fullett further stated that acetic anhydride was costly in the market and expressed an interest in buying 500g of the powder if it really turned out to be this drug. Apart from the matter of the brown powder, however, they also spoke of other matters, such as nightclubs in Singapore. A second meeting the following day was set up as well.

19 On 24 May 1988, the first appellant again met Fullett at the Holiday Inn and was informed by Fullett that he (Fullett) strongly believed the brown powder to be acetic anhydride. Fullett then surprised the first appellant by offering to buy the powder from the first appellant for US$9,000 if the powder was indeed what he believed it to be. The first appellant insisted in his testimony, however, that he did not agree unconditionally to this offer; he was, so he claimed, more concerned to discover the true nature of the powder first. The two men agreed to meet an hour later at the Hyatt. The first appellant proceeded back to the Pacific Mansion flat where the brown powder was still stored within the cupboard in the master bedroom. The first appellant placed the powder in a brown paper bag which he put inside a white plastic bag. The entire package was in turn placed in a red plastic bag.

20 At this point, the second appellant, who was a friend of the first appellant and who was also staying in the Pacific Mansion flat, wandered into the room. Upon being told by the first appellant that he was going to show the package of brown powder to an American, the second appellant opened the package to inspect the powder. Some of the brown powder flew onto his face, moustache and nose. He wiped this off and, taking a pinch of the powder, sprinkled it on the tip of the cigarette he was then smoking. Seeing this, the first appellant, who was also smoking, did the same thing. After wrapping up the brown powder, the first appellant left for his meeting with Fullett, accompanied by the second appellant who was told that Fullett would be buying lunch and beer at the Hyatt. The two appellants entered the hotel with the second appellant carrying the red plastic bag. The first appellant introduced him to Fullett as a friend and told him to give the bag to Fullett, whereupon the American stood up and asked the second appellant to follow him to the toilet. The second appellant did so, returning after a short while. According to the first appellant, both of them were somewhat flabbergasted at Fullett`s actions. They were even more astonished when a group of men converged upon them and arrested them with handcuffs. The first appellant was then informed by one of these men that the brown powder he had brought along was actually heroin.

21 In giving his evidence the first appellant vehemently denied having known that the brown powder was heroin or having arranged to sell it as such to Fullett. He also denied having ever told the second appellant that the red plastic bag contained `drugs`, although he subsequently conceded that he had said, `Things like possible chemical or medicinal drug`. He maintained that he had only shown the powder to Fullett out of curiosity about what the powder really was. To boost the claim, he called as a witness another friend, one Ashok Kumar, whom he had allegedly planned to meet at 3pm on 24 May 1988 and whom he had hoped would assist him in finding out the true nature of the drugs.

22 It may be noted that the defence also called Zainal as a witness. His testimony was to the effect that the first appellant had asked him about the brown powder in an effort to find out what it really was and that he had introduced the first appellant to Fullett for that purpose. He admitted his presence at the first meeting between the first appellant and Fullett but denied that there had been any discussion of heroin during that meeting. As far as he was aware, Fullett worked in an oil company and he had inquired of Zainal whether the latter knew anyone who wished to sell chemicals and medicine.

23  The second appellant`s defence

24 The second appellant, for his part, chose first of all to contest the admissibility of the s 122(6) statement recorded from him by the investigating officer, Senior Narcotics Officer Teo Chin Seng (`SNO Teo`). He claimed that he had made the statement only because SNO Teo had promised that he would be made a state witness and the second appellant had inferred from this that he would not be charged. He claimed also that SNO Teo failed to explain the charge to him or to elucidate the meaning of the word `traffic`. The above was denied by SNO Teo in the voir dire. SNO Teo testified that no threat, inducement or promise had been made to the second appellant by him or by anyone else during the recording of the statement and that he had explained the charge as well as the notice of warning to the second appellant before the latter commenced giving his statement. It may be noted, moreover, that the second appellant admitted in cross-examination that the signature appearing after the charge was his and that he did understand the meaning of the word `traffic`. In addition he admitted his awareness of the existence of the death penalty for drug offenses and agreed that 827g of a drug was a considerable quantity. At the end of the voir dire the trial judge ruled that the s 122(6) statement of the second appellant had been made voluntarily and admitted it as evidence in the trial.

25 In his defence, the second appellant asserted that he was an innocent party who had only had the singular misfortune of tagging along with the first appellant to the Hyatt on 24 May 1988 in the hope of getting a free lunch and drinks from an American man whom the first appellant had said he was meeting. When the second appellant first saw the brown powder in the Pacific Mansion flat on 24 May 1988, he sprinkled some of it onto the tip of his cigarette and puffed at it. It tasted bitter and he spat it out in the toilet. The first appellant apparently did the same thing. Throughout this, the second appellant was, so he claimed, completely ignorant of the true nature of the powder. He alleged that the first appellant said the powder was `medicinal drugs` which he would be showing the American. This, so the second appellant claimed, was why he used the term `drugs` in his own s 122(6) statement when referring to the contents of the red plastic bag: he meant no more than `medicinal drugs`. As to the statement `I`ve never done this kind of things and I`m worried`, the second appellant elaborated that what he actually meant was as follows:

26 The two men then left the flat in a taxi, with the red plastic bag in which the brown powder had been placed. When they alighted from the taxi, this bag was held by the second appellant. They went into Plum`s at the Hyatt where the second appellant was introduced to the American, Fullett. The American ordered drinks and then asked the first appellant, `Is this the bag?`. Replying in the affirmative, the first appellant told the second appellant to give the bag to the American but before the second appellant could do so, the American stood up and asked the second appellant to follow him to the toilet. Although somewhat puzzled, the second appellant did as asked. According to him, he walked behind the American without either of them exchanging a word. When they reached the toilet, he handed the bag to the American who took it into one of the cubicles. Feeling by now totally bemused, the second appellant returned to Plum`s and reported the American`s behaviour to the first appellant. The two men were arrested within minutes of the second appellant`s return.

27  The findings in the trial court

28 Having heard the evidence in the case, the trial judge rejected the explanations proffered by both appellants. He accepted the prosecution`s version of the events which had transpired on 23 and 24 May 1988, including the testimony of Fullett to the effect that there was `a meeting of minds between him and [the first appellant] for the sale of the drugs` at US$9,000 and that delivery of the drugs `was scheduled for the afternoon of 24 May 1988 at the Hyatt`. The trial judge also relied on the s 122(6) statements of the appellants in rejecting the evidence they gave at trial. He disbelieved the first appellant`s claim that the word `drug` used in his statement had been suggested to him by the recording officer, and also the second appellant`s claim that he had meant only `medicinal drugs` by the use of the word `drugs` in his statement. As for the evidence of Zainal and Ashok Kumar, both of whom had been called by the first appellant, the trial judge found in relation to the former that, his credit having been impeached, no weight could be given to his testimony. With regard to Ashok Kumar, he held that his evidence had been `destabilized and for that matter nullified` by the first appellant`s own s 122(6) statement as well as by Fullett`s evidence.

29 At the conclusion of the trial, therefore, the trial judge held that the two appellants had failed to rebut the presumptions of possession and knowledge contained in s 18(1), (2) and (4) of the Act and relied on by the prosecution. He held further that the evidence adduced proved beyond reasonable doubt that the two appellants had shared a common intention to traffic in the heroin eventually seized and that they had acted in furtherance of this common intention. On the evidence before him, he was satisfied that the first appellant had negotiated the sale of the drugs to Fullett and that he had informed the second appellant that the red plastic bag he was carrying on 24 May 1988 contained the drugs in question. He was also satisfied that the second appellant, though worried, had nevertheless gone along with the first appellant to the Hyatt knowing full well that they were going there to deliver the drugs to Fullett. Accordingly the trial judge found both men guilty of the charge against them.

30  The appeal

31 On appeal, counsel for the first appellant raised a great many grounds. We considered each submission in turn, bearing in mind that several of them overlapped, and found them to be without merit. We will now set out in some detail our views, before turning to the grounds raised by counsel for the second appellant.

32  Submission by counsel for first appellant that no act of trafficking was proved

33 It was submitted at great length by counsel for the first appellant that the prosecution failed to prove an act of delivery of the drugs or for that matter any act of trafficking at all. Counsel contended that, on the facts available, it was clear that the intention was only to show the brown powder to Fullett and not to transfer to him possession of it. It was clear to us, however, that there had been some unfortunate confusion on counsel`s part as to what the facts as found by the trial judge actually were. As we have pointed out above, the trial judge accepted Fullett`s testimony that there had been a `meeting of minds` between the first appellant and himself as regards the sale of the drugs and that the meeting at the Hyatt on 24 May 1988 was to effect the delivery of these drugs. The trial judge disbelieved the first appellant`s claim that he had gone to the Hyatt to show Fullett the `brown powder` and to find out from Fullett what it actually was. On the facts as found by the trial judge, therefore, the first and second appellants committed an act of delivery when they met Fullett at the Hyatt with the drugs, which they proceeded to hand over to him. We saw no reason at all to disagree with the trial judge`s findings of fact on this, especially since he had the advantage of being able to observe all the relevant witnesses and to assess their credibility.

34 Counsel also attempted to persuade us that it was Fullett who had taken the plastic bag from the second appellant and not the second appellant who had given it to him; and that in such circumstances it could not be said that there was an act of `delivery`. Quite apart from the fact that in any case the trial judge preferred Fullett`s version of events to that proffered by either appellant (a finding which again we saw no reason to disturb), we found this intellectual hair-splitting futile. What was significant was that the drugs were brought from the Pacific Mansion flat to the Hyatt hotel by both appellants and that at the Hyatt Fullett obtained possession of the drugs. The transportation of the drugs to the Hyatt and the subsequent handing over of possession formed one complete transaction which in itself `constituted a continuous process of making delivery of the drugs thereby satisfying the charge of trafficking`: see Lai Kam Loy & Ors v PP . We are really losing ourselves in a semantic quagmire if we squabble about whether it was necessary for Fullett to be handed the drugs as opposed to his taking them.

35  Submission on common intention

36 It was submitted by counsel that in relying on s 34 of the Penal Code (Cap 224), the prosecution failed to adduce any evidence to show that there existed as between the first and second appellants a common intention to deliver the plastic bag of drugs to Fullett. With respect, such a submission was completely without basis. The issue of common intention was considered meticulously by the trial judge at pp 72-73 of his grounds of decision and we could find no cause to dispute his findings:

37 On the issue of common intention, it was further submitted by counsel that the prosecution should have specified in the charge the criminal act allegedly committed in furtherance of the appellants` common intention, and that the omission to do so occasioned a miscarriage of justice, because it `prevented the first appellant from focusing his defence on the exact issues raised by s 34`. It was not shown to us, however, that our criminal law required such a specification. In any case we were satisfied that the first appellant had sufficient notice of the matter of which he stood accused. From the above passage in the trial judge`s grounds of decision, in particular the last few lines, it was clear that the act which the prosecution was concerned with proving was that of delivery undertaken by both appellants pursuant to an agreed sale on 24 May 1988. It would be disingenuous for the first appellant to claim that he was ignorant of this. The defence he raised at trial was that he had brought the brown powder to Fullett, only so that Fullett could inspect it and tell him what it really was; he strenuously denied that he had been delivering drugs pursuant to a sale arrived at earlier on. To substantiate his defence, the first appellant not only gave evidence himself but also called two other witnesses, Zainal and Ashok Kumar. It was plain to us, therefore, that the first appellant was in no danger of suffering injustice of any sort through the omission to specify the relevant criminal act in the charge.

38  Submission that manner of trafficking should have been specified in the charge

39 In relation to the charge, counsel further argued that the prosecution should have specified therein the manner of trafficking concerned and it was said again that the omission to do so resulted in a miscarriage of justice. Counsel conceded that Lee Ngin Kiat v PP was not directly relevant because there the Court of Appeal was dealing with s 17 of the Act, whereas in the present case the prosecution did not refer to s 17 in the trial below. Lim Hong Yap v PP was canvassed instead in support of counsel`s argument. A careful perusal of the judgment in that case, however, satisfied us that it was of no real aid to counsel. In upholding the trial judge`s refusal to grant a request from the defence for additional particulars of the charge, the appellate court in that case made it clear that what is crucial is that the accused person is given sufficient notice of the matter with which he is charged. In the present case it can hardly be said that the first appellant was in doubt as to which overt act of trafficking he was being accused of: that of delivering the drugs to Fullett, together with the second appellant, in pursuance of a sale arrived at earlier. As we have pointed out earlier (see under `Submission on issue of common intention`), in denying the allegation, the first appellant was able to present a full and detailed explanation for his bringing the drugs to the Hyatt hotel on 24 May 1988. We were of the opinion, therefore, that the omission to specifying the manner of trafficking in the charge did not produce a miscarriage of justice.

40  Submission on Fullett`s evidence

41 Counsel also endeavoured to persuade us that Fullett was an agent provocateur and for that reason the trial judge should have accorded less weight to his evidence. Counsel`s basis for labelling Fullett an agent provocateur was that `without his involvement the alleged offence would not have been committed` and that had he not `led the first appellant on ... the alleged offence would not have been committed`. This seemed to us to be straining the facts of the case. The evidence of SNO Jamaluddin (which was accepted by the trial judge) showed that it was the first appellant who was seeking a buyer for `Golden Crescent` heroin. Fullett was requested by the CNB to assist in their investigations by posing as a would-be buyer, but it would be absurd to suggest that he thereby provoked the offence of trafficking by the first appellant. An agent provocateur is a person who `entices another to commit an express breach of the law which he would not otherwise have committed`: see Mealey v R . In this case, the initiative to sell the drugs clearly emanated from the first appellant.

42 Counsel contended in addition that Fullett had `an obvious interest of his own to serve` and that his evidence should thus have been viewed cautiously. It was not really explained to us, however, what `obvious interest` of his own Fullett might have been serving. Fullett was a DEA agent with some 23 years` experience, who had been asked by the CNB to assist in the operation because they wanted a foreigner to pose as a buyer. Prior to the meeting with the first appellant on 23 May 1988, Fullett had never been involved in any dealings with him. We could not conceive of any `obvious interest` which Fullett might have had and which might have induced him to concoct or distort his evidence.

43  Submission on inadmissibility of scientific literature

44 Counsel also contended on behalf of the first appellant that the trial judge erred in allowing Dr Saw Chwee Guan to refer to certain scientific literature for the purpose of proving the viability of his methods of analysis. Counsel submitted that s 62(2) of the Evidence Act (Cap 97, 1990 Ed) rendered such literature inadmissible. That subsection reads:

45 As the prosecution pointed out, however, the article which Dr Saw referred to was in fact one which he had co-authored. Section 62(2) was therefore inapplicable and counsel`s submission in this respect was without merit.

46  Submission on Zainal`s statement

47 Several arguments were put forward by counsel for the first appellant relating to a statement recorded from Zainal by Jamaluddin on 29 July 1988. It was contended first of all that the trial judge erred in refusing to grant an adjournment to enable the defence to adduce expert evidence as to the authorship of the statement. The defence had proposed to bring in from the United Kingdom one Reverend Andrew Morton, who had been reported in the British newspapers recently to have given expert evidence on the use of language in a criminal case in England. It may be noted that the expert, had he appeared, would have testified on the use of language in the statement rather than on the form of the statement (which in any case was typewritten). Counsel could not deny, however, that the decision to grant an adjournment lay at the discretion of the trial judge. Section 198(1) of the CPC provides that:

48 In the present case, the trial judge`s decision not to grant an adjournment could not in our view be faulted since the defence`s grounds for applying for an adjournment were so regrettably flimsy. They had at no point been able to contact Reverend Andrew Morton personally, and there was no indication that they would be able to secure his services, even if they did manage to contact him or that his evidence would be favourable to the defence. Nor were they truly able to elaborate on the nature of the evidence sought to be adduced. In any case, the trial judge, in assessing the authorship of the statement, was afforded ample opportunity to observe the two key witnesses on that matter, Zainal and Jamaluddin. We were of the opinion that the trial judge was entirely justified in rejecting the defence`s request for an adjournment. We were further of the opinion that the trial judge was perfectly warranted, having heard the relevant witnesses, in finding that the statement was undoubtedly made by Zainal.

49 Yet another submission made by counsel in relation to Zainal`s statement was that s 23(1)(a) of the Act barred the trial judge from admitting it. Section 23(1)(a) reads:

50 As it stands, s 23(1)(a) is loosely and rather vaguely drafted. We did not find it necessary, however, to adjudicate upon the meaning of s 23(1)(a) for the purposes of the present appeal. The subsection itself provides for an exception in the form of the subsequent subsection (3) which reads:

51 In the present case, Zainal gave two wholly conflicting versions of the events which transpired on 23 May 1988. He insisted in his testimony that he was in court to tell the truth and denied that the statement which he gave had been made by him. This was obviously a situation calling for the application of the exception in subsection (3); full justice in the case could not have been achieved otherwise. In short, in our opinion, even assuming that s 23(1)(a) applied in the present case to Zainal`s statement, so too did s 23(1)(3); and for that reason no inequity was occasioned to the first appellant by the admission of the statement.

52 Finally, in relation to Zainal`s statement, it was argued that the trial judge placed improper reliance on it by treating it as substantive evidence in the case. It was plain to us, however, from the grounds of decision that there was no such reliance; the only use he made of the statement was for the purpose of impeaching Zainal`s credit as a witness, as seen in pp 66-67 of the grounds:

53  Submission on Ashok Kumar`s evidence

54 Counsel submitted that insufficient weight was given to the evidence of Ashok Kumar, the other witness called by the first appellant in the trial court. Kumar testified that on 24 May 1988 the first appellant had made an appointment to meet him in the afternoon for the purpose of showing him the brown powder he had found in the Pacific Mansion flat. The trial judge considered Kumar`s testimony but concluded that any effect it had was nullified by Fullett`s testimony and by the first appellant`s own s 122(6) statement. Again, we could see no cause to interfere with this finding of fact.

55  Submission on the second appellant`s s 122(6) statement

56 Various arguments were also attempted in relation to the s 122(6) statement of the second appellant. It was submitted on behalf of the first appellant that his counsel in the court below should have been allowed to cross-examine the second appellant during the voir dire of the second appellant`s statement. We were in full agreement with the trial judge, however, that the first appellant had no such right. The only issue at the voir dire was to ascertain whether the statement had been made voluntarily by the second appellant and not to determine the truth or otherwise of that statement: see Wong Kam-Ming v R .

57 Counsel argued that it was unjust not to allow one accused to cross-examine his co-accused during that co-accused`s voir dire because, following the recent decision in Chin Seow Noi & Ors v PP , an accused person may be convicted solely on the basis of his co-accused`s confession; that accused, therefore, has an interest in proving the involuntariness of his co-accused`s confession. We could not agree, however, that in this case the first appellant suffered any real prejudice in being refused permission to cross-examine the second appellant during the voir dire of the admission in evidence of the second appellant`s s 122(6) statement. Any statement subjected to a voir dire is admitted in evidence only after the trial judge finds, on the basis of all the evidence adduced, that the prosecution has proved beyond reasonable doubt the voluntariness of the statement. It was on this basis that the second appellant`s s 122(6) statement was admitted in evidence.

58 Counsel then claimed that it was not proved beyond reasonable doubt that the second appellant`s s 122(6) statement had been made voluntarily. As stated earlier in these grounds of judgment, the second appellant alleged that he had made the statement only because SNO Teo had promised him that he would be made a state witness, the implication being that he would not therefore be charged. The trial judge considered the second appellant`s evidence in respect of that allegation and also the evidence of SNO Teo, eventually arriving at the conclusion that he believed SNO Teo`s testimony that no such promise (or indeed any other promise, inducement or threat) had been made to the second appellant. We saw no reason to disagree with the trial judge, especially since he had the advantage of having seen and heard both witnesses.

59  Submission on the first appellant`s right of access to counsel

60 Another submission raised by counsel was that the first appellant was deprived of his constitutional right of access to counsel, such a deprivation being a grave injustice. Counsel relied on art 9(3) of the Constitution of the Republic of Singapore (1992 Ed) which provides that:

61 At the same time, however, counsel conceded that the article does not specify when the accused person is entitled to consult a legal practitioner, or even that the accused person must be informed of such a right. In the first appellant`s case, he was allowed access to his lawyer two weeks after his arrest. Counsel argued that the right of access to counsel was an immediate one, and further contended that, in particular, the first appellant should have been allowed to consult a lawyer before making his s 122(6) statement.

62 We could find no statutory basis for such a contention. Counsel cited to us several Malaysian cases, for example: Ramli bin Salleh v Inspector Yahya bin Hashim , Ooi Ah Phua v Officer-in- C harge, Criminal Investigations, Kedah/Perlis , and Hashim bin Saud v Yahaya bin Hashim & Anor . An examination of the ratio of these authorities failed to reveal any real support for counsel`s argument that the first appellant should have been allowed access to a lawyer before making his s 122(6) statement. Essentially, the Malaysian cases, in construing the identical provision in their Constitution, lay down the principle that the right of an arrested person to consult his lawyer begins from the moment of his arrest, but (and it is important to note this) that the exercise of that right must be subject to a balance between the arrested person`s right to legal advice and the duty of the police to protect the public by carrying out effective investigations.

63 We had regard also to the only relevant Singapore authority on this issue, Lee Mau Seng v Minister for Home Affairs, Singapore & Anor . All that was said of the constitutional right of access to counsel in that case was:

64 Wee Chong Jin CJ, in giving the above judgment, did not elaborate on what he considered a `reasonable time` to be. However, since the only exception he allowed was that categorically enacted by statute, it may be surmised that he intended the element of allowance for police investigations and procedure to be already built into the `reasonable time` time-frame. In short, the Lee Mau Seng criterion really led to the same practical result as that set by the Malaysian courts in the above-mentioned cases. In fact, this court preferred the Lee Mau Seng criterion since, with all due respect, it seemed to us somewhat elliptical to say on the one hand that an arrested person had a right to see counsel immediately but to stipulate on the other hand that the police could deny him that right if they needed time to complete investigations.

65 In effect, therefore, neither Lee Mau Seng nor the Malaysian cases constituted support for counsel`s submission that the first appellant suffered an injustice in not being granted immediate access to a lawyer following his arrest. There is a world of difference between `within a reasonable time` and `immediately`; and, in our view, two weeks in the present case was a reasonable period of time. In any case, as pointed out by the deputy public prosecutor, the recording of a statement under s 122(6) of the CPC does not compel an accused person to make any statement which incriminates him. The notice given under s 122(6) states only that he has to state any fact which he intends to rely on in his defence in court, and informs him of the consequences of any omission to do so.

66  Submission on rebuttal by first appellant of presumption of knowledge

67 Finally, it was submitted for the first appellant that the trial judge erred in holding that the first appellant had failed to rebut the presumption of knowledge raised against him by s 18(2). The first appellant used the word `drug` in his s 122(6) statement in referring to the substance he supposedly found in the Pacific Mansion flat. He admitted also in the same statement that he had arranged to sell the `drug` to Fullett. Fullett himself testified as to the sale of heroin which he and the first appellant arrived at, as well as the delivery scheduled for 24 May 1988 at the Hyatt. At trial, however, the first appellant claimed that he had used the word `drug` only because that word had been suggested to him at the CNB. He claimed that he was ignorant of the true nature of the `brown powder` throughout his dealings with Fullett and that he had met with Fullett precisely because he wished to find out what it actually was. We have already made reference to the evidence adduced by the first appellant (apart from his own testimony) in support of these claims, namely, the evidence of Zainal and Kumar. All the relevant evidence in the case was considered by the trial judge before he came to the conclusion that the first appellant had not rebutted the presumption of knowledge; and we could find no reason to disagree with his finding of fact.

68  Final conclusions on the first appellant`s appeal

69 Having regard to all the foregoing, we were of the considered view that there was no merit whatsoever in the first appellant`s appeal and we therefore dismissed it.

70 We turn now to consider the submissions made by counsel for the second appellant.

71  Submission by counsel for second appellant on common intention

72 Counsel`s first submission was that there was insufficient evidence in the case to show a common intention as between the first and second appellants to traffic in the drugs; and also that the trial judge `failed to apply the proper approach in deciding whether there existed a pre-arranged plan between the first and second appellants to sell the heroin to [Fullett]`. A perusal of the grounds of decision, however, showed both contentions to be inaccurate. The trial judge considered the issue of common intention exhaustively at pp 70-73 of his grounds of decision and we could see no basis, whether in fact or in law, to dissent from his determinations. Counsel argued that the second appellant was not involved in the alleged negotiations between Fullett and the first appellant for the sale of the heroin, but that was really beside the point. The crucial factor was the second appellant`s involvement in the delivery of the drugs to Fullett on 24 May 1988. The prosecution led a not insubstantial amount of evidence to show that, in accompanying the first appellant to the Hyatt on 24 May 1988 and in taking charge of the red plastic bag, the second appellant shared with the first appellant a common intention to traffic in the drugs by delivering them to Fullett in pursuance of a sale arranged earlier. In particular, the prosecution relied on the second appellant`s s 122(6) statement in which he stated that the first appellant had told him the bag contained `drugs`.

73  Submission on second appellant`s s 122(6) statement

74 Not surprisingly, therefore, counsel`s next submission was that the trial judge erred in finding that the second appellant`s s 122(6) statement had been made voluntarily. We have in fact already dealt with this point in the context of the first appellant`s appeal and we would only reiterate our view that, the trial judge having made that finding only after assessing the conflicting testimonies of the second appellant and SNO Teo, we could see no cause to disagree with him.

75  Submission on second appellant`s clarification

76 Finally, it was argued that the trial judge failed to consider the second appellant`s clarification of his subsequent statement on 7 June 1988. In that further statement, the second appellant `clarified` his s 122(6) statement by asserting that he used the word `drugs` in that statement only to mean `medicinal drugs`. He claimed that it was the first appellant who had told him that the red plastic bag contained medicinal drugs. On the contrary, however, the statement was fully taken into account by the trial judge at pp 51-52 of his grounds of decision. Having seen and heard the second appellant in the witness stand, he clearly had no faith in the veracity of the attempted clarification and found instead that the second appellant was well aware of the true nature of the drugs when he undertook to carry them to the meeting on 24 May 1988: see p 73 of the grounds of decision. This court examined at length the verbatim notes of proceedings and saw no reason to disturb the trial judge`s finding.

77  Final conclusions on the second appellant`s appeal

78 For the reasons given above, we also dismissed the second appellant`s appeal.

79  Appeal dismissed.