Abdul Rahim Bin Shapiee to be executed on 5 August 2022

On the morning of Friday, 29 July 2022, Abdul Rahim Bin Shapiee’s sister was notified that her brother’s execution has been scheduled for Friday, 5 August 2022. It was the news that she been dreading for years, her worry heightened in recent months by the multiple executions that have already been carried out by the prison this year.

Abdul, a 45-year-old former Uber driver, was arrested on 3 August 2015, and has been on death row since 2018. If the scheduled execution proceeds, Abdul may have just 4 days left to live. He is one of four persons who may be scheduled to hang in Changi Prison between 2 to 5 August 2022.

Arrested on 3 August 2015

Abdul was arrested during a raid on a HDB flat carried out by the Central Narcotics Bureau (CNB) on the morning of 3 August 2015, where they found him packing “granular powdery substances”. Another person, Nuraiin binte Rosman, was also caught packing “white crystalline substances”. CNB officers seized 14 packets and three straws of a powdery substance, as well as various drug-related paraphernalia. Abdul admitted to being in possession of these seized items.

Abdul was later contacted by Ong Seow Ping, who was unaware that Abdul had already been arrested. Under the CNB’s watchful eye, Abdul made arrangements to meet Ong to deliver one pound of heroin. Ong was arrested shortly after he left home, and CNB officers found drugs in his HDB flat.

Ong was initially charged with possessing, for the purposes of trafficking, 51.73g of diamorphine. Abdul faced a charge of possessing, for the purposes of trafficking, 41.24g of diamorphine. The amounts set out in the respective charges were lowered slightly at the end of trial after the Prosecution accepted that a portion of the drugs were intended for personal consumption by the respective accused persons.

Under the Misuse of Drugs Act, a conviction for trafficking over 15g of diamorphine will result in a mandatory death sentence, unless certain narrow criteria are met.

The Burden of Proof and Rebuttable Presumptions

Under the Misuse of Drugs Act, there are certain rebuttable presumptions that the Prosecution can rely on to prove their case. Ordinarily, every element of a criminal charge must be proven beyond a reasonable doubt by the Prosecution. However, the burden of proof may shift when these rebuttable presumptions are relied upon by the Prosecution.

In this case, the Prosecution relied on the presumption of trafficking in section 17 of the MDA. This presumption is triggered when one is caught with more than 2g of diamorphine in their possession. As both Ong and Abdul were arrested with more than 2g of diamorphine in their possession, the burden of proof on them to rebut the presumption on the balance of probabilities. The presumption provides:

Presumption concerning trafficking

 

17. Any person who is proved to have had in his possession more than —

…

(c) 2 grammes of diamorphine;

…

whether or not contained in any substance, extract, preparation or mixture, shall be presumed to have had that drug in possession for the purpose of trafficking unless it is proved that his possession of that drug was not for that purpose.

In the case of Rahmat bin Karimon and Zainal Bin Hamad, the Court of Appeal clarified that the presumptions under sections 17 and 18(1) of the MDA could not run together because the former only applied where possession was proved. Whereas if the latter provision was invoked, its effect was to give rise to a presumption (and not proof) of the fact of possession.

In that case, the Court of Appeal also observed that it would be incumbent on the Prosecution to make clear which presumption(s) it relied on when advancing its case in the trial court and on appeal. This would give the accused a fair chance of knowing the case that was advanced against him and what evidence he had to adduce (and to what standard of proof) in order to meet that case. It would not be sufficient for the Prosecution to simply state, for instance, that the elements of possession of the drugs, knowledge of the nature of the drugs and possession for the purpose of trafficking have either been proved or presumed without making clear the precise nature of the primary case that was being put against the accused.

Were the drugs meant for personal consumption or trafficking?

At trial, Abdul was represented by Defence lawyers Nadwani Manoj Prakash, Jeeva Arul Joethy, and Luo Ling Ling.

The crux of Abdul Rahim’s defence at trial was that several of the seized drug exhibits were for his own consumption and not for trafficking. Generally, when dealing with the defence of consumption to a charge of drug trafficking, the Court will examine the following factors:

(a)     rate of drug consumption;

(b)     frequency of supply;

(c)     whether the accused had the financial means to purchase the drugs for himself; and

(d)     whether the accused had made a contrary admission in any of his statements that the whole quantity of drugs was for sale.

At trial, upon cross examination, Abdul that although his rate of consumption would vary, his average rate of consumption was one straw every two days.

The Judge noted that, assuming that each straw contained 0.02g of diamorphine, 2 of the seized exhibits contain enough diamorphine for 517 straws, which would last about two years and ten months.

Could Abdul afford the drugs he bought?

When he was on the stand, Abdul testified that he earned less than $2,000 a month as a part-time Uber driver, and roughly $800 a week working for his father’s business. This worked out to to around $5,200 a month.

However, after deducting for expenses for Nuraiin, to whom he paid $300 to $500 a month for helping to repack drugs, and the fact that Abdul told a psychiatrist from the Institute of Mental Health that he was not working since July 2014 due to an arrest for a separate incident, the Court found that ” his monthly income in 2015 was most likely much lower than $5,200″.

Considering the above matters and other facts related to his financial situation at the material time, the Judge held that Abdul could not afford spending at least $8,400 on purchasing both heroin and ice from February 2015 to June 2015 without the prospect of earning a profit from the onward sale of the drugs.

Justice Valerie Then, in her grounds of decision, also made reference to multiple instances during Abdul’s statements where he had admitted to repacking and selling the drugs.

Abdul’s allegations against Police Officers

In the midst of trial, Abdul alleged that a police officer, ASP Chor, had made a threat against him.

According to Abdul, as ASP Chor was frustrated that the telephone number of Ong provided by Abdul was incorrect, ASP Chor said: “If that’s the case, I’ll bring your wife and … your family to the station.”

Abdul also alleged that another investigating officer, Basheer, had not allowed him to call his wife until he had given all his statements to the police. Abdul claimed that his led him to fear for his wife, and that this fear operated on his mind and continued to do so throughout the recording of his police statements.

In Singapore, accused persons do not have access to legal counsel during the interrogation process. At the time Abdul’s statements were recorded, he was not accompanied by a lawyer.

The Judge found that  the words uttered by ASP Chor were not, objectively determined, a threat. She noted that there was no suggestion that ASP Chor had threatened to prosecute his family or to harm them in any way. In the Judge’s view, Abdul’s fears were self-induced and did not emanate from a threat, inducement or promise. The Judge added that Abdul conceded in cross-examination that his worries about his wife were “self-perceived”.

Similarly, the High Court Judge found that Abdul’s contentions were without basis. Shee found that the words allegedly uttered by IO Basheer did not, objectively determined, amount to a threat, inducement or promise.

The Judge held that it was difficult to believe that Abdul would have willingly admitted to a capital charge in exchange for an opportunity to speak with his wife. She also made reference to another Court of Appeal case involving an accused person who faced a capital charge. In that case, Singapore’s apex Court found that it “made no sense” that the accused’s free will “would be so easily weakened by his desire to see his wife that he would rather give a statement that would eventually bring him more harm than any advantage” (Sharom bin Ahmad v PP at [47]).

The Judge found Abdul guilty of trafficking

After considering the evidence, the Judge regarded as reliable the admissions made by Abdul in his third contemporaneous statement and those made after.

Applying the relevant legal framework, the Judge ultimately found that the Prosecution had proved the charge beyond a reasonable doubt, and she accordingly convicted Abdul on the amended charge.

The Certificate of Substantive Assistance and the Section 33B exemption

When a person has been convicted of possessing, for the purposes of trafficking, more than 15grams of diamorphine, the person faces the mandatory death penalty.

However, if Section 33B of the Misuse of Drugs Act applies, the Court has the discretion not to impose sentence of death and impose life imprisonment with caning instead. In order for s 33B to be applicable, 2 elements must be fulfilled.

First, the Public Prosecutor must certify to any court that, in his determination, the person has substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities within or outside Singapore.

In this case, the Public Prosecutor issued a certificate of substantive assistance in Abdul’s favour. So, the first element has been established.

The second element that has to be established is that the convicted person must prove, on a balance of probabilities, that he was a mere courier. Some examples of actions that show that a person was a mere courier include:

• storing or safe-keeping drugs in the course of transporting, sending or delivering those drugs;
• collection of drugs for the purpose of subsequent transporting, sending or delivering those drugs;
• collection of money upon sending, transporting or delivering of drugs; and
• relaying of information regarding subsequent deliveries in the course of transporting, sending or delivering drugs.

The Court of Appeal, in the case of Zainudin bin Mohamed, found that Parliament intended section 33B of the MDA to contain “limited” and “‘tightly-defined’ exceptions” to the general rule that the death penalty is the appropriate punishment for those who traffic or import drugs in a quantity exceeding the prescribed threshold, because general deterrence still remains the predominant objective in relation to drug offences.

In that same case, the Court found that acts like sourcing for drug supply and acting as a go-between in negotiations for drug transactions, recruitment of drug couriers and administration of remuneration, efforts to expand the drug consumer base, and the division and packing of drugs for the purpose of giving the drugs the capacity for wider transmission, fell outside of the scope of the exception.

On the facts, the Judge found that Abdul’s role exceeded that of a “courier” and that he was unable to satisfy the requirements of s 33B(2)(a) of the MDA. Thus, the alternative sentencing regime under s 33B(1)(a) was not available to Abdul because both requirements in s 33B(2)(a) and s 33B(2)(b) must be satisfied before an accused person may qualify.

Amongst other things, the Judge found that Abdul had sourced for and intended to facilitate the sale and distribution of the heroin found in his possession. Reference was also made to Abdul’s sixth investigative statement, where he had admitted to some 55 customers. The Judge was of the view that Abdul had sourced diamorphine for Ong, and was a middleman between Ong and Kumar.

Accordingly, the sentence of death was passed on Abdul.

You may read the High Court’s grounds of decision in full here – https://www.elitigation.sg/gdviewer/s/2018_SGHC_82

Abdul’s Appeal was dismissed in March 2020

Abdul’s appeal against his conviction by the High Court was dismissed by the Court of Appeal on 5 March 2020 with no written grounds of decision. The Court determined that all of the key points had been canvassed before the Judge, and that she was correct in her analysis.

Abdul and Ong may be executed on 5 August 2022

Abdul Rahim Bin Shapiee is scheduled to be executed on Friday, 5 August 2022. Ong Seow Peng, his co-accused, may also be executed on the same day.

As was the case with the double executions of Kalwant Singh and Norasharee Bin Gous, who were co-accused persons, on 7 July 2022, co-accused persons are generally hanged on the same day provided that both are alive and on death row during the same period.

If Ong will be executed alongside Abdul on 5 August 2022, a total of 4 people may be executed between 2 August 2022 and 5 August 2022. As set out in our previous article, a 32-year-old Malaysian man, and a 44-year-old Singaporean man, may be executed on 2 August 2022. All 4 men were sentenced to death for trafficking diamorphine.

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