Singaporean authorities are reportedly set to execute Mohammad Azwan Bin Bohari (“Azwan“), a 47-year-old Singaporean, on Friday, 4 October 2024.
A copy of an execution notice dated 30 September 2024 from the Singapore Prisons Service was published by local rights group Transformative Justice Collective (“TJC“) on Instagram. According to TJC, this is the second execution notice that Azwan’s family received this year. The first scheduled execution in April 2024 was halted as Azwan had a “pending case” before the Courts, TJC said.
Arrest and Defence
Azwan was arrested by officers of the Central Narcotics Bureau (“CNB“) on 17 October 2015 at 8.50pm in the car park of Blk 629 Ang Mo Kio Avenue 4. At the time of his arrest, he was found to be in possession of three packets of drugs, analysed to be 26.5g of diamorphine. Azwan’s ex-girlfriend, Nurain Binte Ahma, was also arrested.
“Azwan made three claims regarding Nurain.
First, he said that he shared drugs for his personal consumption with her.
Secondly, he claimed that he had hidden the three packets of drugs from her in the biscuit tin because he did not want her to think that he was a drug trafficker.
Thirdly, he said that he had changed the statements he made to the CNB because he wanted to protect her.” – Paragraph 3 of High Court Judgment
Azwan did not dispute the fact that he was in possession of the three packets.
However, at trial, he denied that all of the three packets were meant to be sold. His defence, which was eventually rejected by both the High Court and the Court of Appeal, was that only 50% of the drugs were meant to be sold (trafficked). The other 50% was meant for Azwan’s personal consumption.
“His defence was that he was a drug addict and would normally set aside 50% of the drugs he obtains for his personal consumption and the other 50% for sale to cover his costs. The doctors who examined Azwan shortly after his arrest testified that Azwan exhibited mild withdrawal symptoms.
Dr Munidasa Winslow testified on Azwan’s behalf that withdrawal symptoms are not indicative of an addict’s rate of consumption as there was no direct correlation between them.” Paragraph 2 of High Court Judgment
The High Court Judge observed that there were numerous parts in Azwan’s statements to the CNB where he stated that he had been trafficking in drugs to feed his own addiction.
The Presumption of Trafficking
In an archetypal criminal case, the Prosecution bears the burden of proving each element of an offence beyond a reasonable doubt. For example, in the case of drug trafficking, some elements that the Prosecution would need to prove beyond a reasonable doubt are possession, knowledge, and purpose.
Pursuant to s 17 of the Misuse of Drugs Act 1973, for the offence of drug trafficking, the Prosecution may rely on the weight of the drugs found to be in the possession of the Accused to trigger a “rebuttable presumption” of trafficking (assuming both the knowledge and possession elements are proved). In the case of diamorphine, this presumption may be engaged if the weight of exceeds 2g.
This presumption under s 17 of the MDA cannot be relied upon if either or both of the possession and knowledge Elements have been presumed, or this may be presumed under s 17 of the MDA if both the Purpose and Knowledge Elements are proved.
If this presumption is triggered, the burden shifts to the accused to prove that, on a balance of probabilities, the drugs were for consumption or some purpose other than trafficking.
In Azwan’s case, it was undisputed that he was in possession of the drug, and that he had knowledge of the nature of the drug. Accordingly, the presumption under s 17 of the MDA may apply. Since Azwan was found to be in possession of 3 packets containing 26.5g of diamorphine, it may be statutorily presumed that the said drug was in his possession for the purpose of trafficking.
Azwan can, of course, rebut this presumption if his consumption defence is accepted on a balance of probabilities.
Court Rejects Azwan’s Consumption Defence
The High Court also rejected Azwan’s argument that his statements to the CNB should not be admitted into evidence due to a promise made by one ASP Billy. Azwan claimed that ASP Billy told him that he would be allowed to meet Nurain if he “co-operates”.
When Nurain was called to the stand by Defence Counsels Muzammil Bin Mohamed and Luo Ling Ling, her evidence corroborated the Prosecution’s case.
“ASP Billy denied that he had made any promises to Azwan. He said that he was initially the investigating officer in Azwan’s case, but had handed the case to IO Quah, and thereafter, he concentrated on the other accused persons.
On 22 October 2015, ASP Billy was recording the statement of one Mohammad Rohaizat, from 5.20pm to 7.25pm and therefore could not have brought Azwan to see Nurain after the recording of the Second Statement.” – Paragraph 10 of the High Court Judgment
The High Court Judge added that it was “hard to believe that the CNB would allow two persons arrested at the same time to meet each other when investigations had only just begun“. Accordingly, the two disputed statements were admitted into evidence. therefore admitted the First Statement and the Second Statement into evidence.
At the material time that the statements were recorded, Azwan was not accompanied by counsel (this, we understand, is the case for most capital and non-capital cases in Singapore).
The High Court found that Azwan’s defence of consumption was only raised “belatedly” at trial. It also found that the defence was lacking in detail, especially in comparison to his statements to the authorities detailing his modus operandi for trafficking.
In one of his statements, Azwan stated that he would use a “receipt book to keep track of [his] drug transaction”.
The Court ultimately rejected Azwan’s defence of consumption.
“Azwan’s evidence in court that half of the three packets of drugs were for his own consumption, was not convincing. He made belated and bare assertions that he smoked “about 8 grams a day”, and that he bought a big amount of diamorphine because he was “a heavy smoker” and it was cheaper to buy in bulk.
Crucially, Azwan failed to explain why his supplier, Bai, would instruct him to neatly and uniformly pack the diamorphine into three packets, only for Azwan to then split them into two for his own consumption.”
Accordingly, the presumption of trafficking was left unrebutted and the death penalty was imposed on 11 February 2019.
The High Court judgment makes no mention of any certificate of substantive assistance issued by the Attorney-General’s Chambers. In any event, there was no finding by the High Court that he was a courier.
The High Court’s judgment can be read in full at this link.
Court of Appeal dismisses Azwan’s appeal
Azwan’s appeal against his conviction was dismissed by Singapore’s Apex Court on 24 October 2019. The Court of Appeal rejected Azwan’s consumption defence, and agreed with the reasoning and decision of the High Court in admitting the two disputed statements into evidence.
The Court found that Azwan’s accounts of his rate of consumption was not consistent. It was also observed that the said statements that Azwan sought to exclude contained detailed accounts of Azwan’s drug trafficking activities generally and of his supplier to whom he owed money.
If Azwan’s execution is carried out this Friday at dawn, he would be the fourth person to be executed in Singapore in 2024.
More from Wake Up Singapore:-
Singapore may hang 3 Singaporeans and 1 Malaysian this week for drug trafficking
4 executions in 19 days – Man, 49, hanged in Singapore for trafficking Cannabis
Singapore reportedly set to hang 2 men, Malaysian aged 32 & Singaporean aged 40, on 2 August 2022
160+ Overseas Singaporeans sign open letter against death penalty authored by NYU Law Scholar
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