SINGAPORE — Caught with an amount of drugs punishable with death, a drug trafficker’s defence was that he had a standing agreement with his supplier to never carry a quantity that invites the gallows.
After his charge was downgraded, however, he decided against calling this supplier to the witness stand during the trial to prove his argument.
Should an adverse inference be drawn against his claim?
The Court of Appeal gave its views on this issue in dismissing prosecutors’ appeal against a lower court’s decision in such a case.
By opting against calling his supplier to the stand to testify on the agreement they had, Muhammad Farid Mohd Yusop cast a “real doubt” on his own claim, prosecutors had argued. Although he was made to carry methamphetamine not exceeding the threshold for capital punishment on three occasions, this did not mean he was not acting with “wilful blindness” on the occasion he was caught, they added.
Farid’s charge was downgraded to a non-capital charge, and he was sentenced to 23 years’ jail and 15 strokes of the cane.
In its judgment released yesterday, the apex court said the threshold had not been crossed for them to intervene. This is because the trial judge’s findings, including on the credibility of Farid’s evidence, were not “plainly against the weight of the objective evidence”.
Defence lawyers are free to make the “tactical decision” not to call a witness, they noted. In this case, Farid’s lawyer Amolat Singh had explained that it was felt the supplier’s evidence would not help or might even be prejudicial to his client.
It would be “extremely rare” for a court to draw an adverse inference in such situations, it added.
But Judge of Appeal Andrew Phang noted: “As the facts of each case can vary so vastly, we hesitate to lay down a blanket rule that an adverse inference can never be drawn against an accused person even in a context where the failure to call a material witness was primarily motivated by the concern that it would be in that witness’s self-interest to give evidence that is prejudicial to the defence.”
On the prosecution’s contention with Farid’s claim that he did not know the weight of drugs he was carrying, the court said the “danger of abuse is clear”, in that accused persons may attempt to “manufacture defences” to escape capital charges.
But in this case, the judges — the others being Judge of Appeal Chao Hick Tin and Justice Tay Yong Kwang — felt the trial judge had assessed Farid’s credibility in some detail, and they saw no ground to interfere with his finding or decision.