Abdul Kahar bin Othman v Public Prosecutor
Court | Court of Appeal (Singapore) |
Judge | Sundaresh Menon CJ |
Judgment Date | 25 October 2018 |
Neutral Citation | [2018] SGCA 70 |
Citation | [2018] SGCA 70 |
Published date | 30 October 2018 |
Plaintiff Counsel | Rupert Seah Eng Chee (Rupert Seah & Co) |
Defendant Counsel | Francis Ng SC, Lim Jian-Yi, Ho Lian-Yi and Senthilkumaran s/o Sabapathy (Attorney-General's Chambers) |
Docket Number | Criminal Motion No 1 of 2018 |
Hearing Date | 16 August 2018 |
Date | 25 October 2018 |
Subject Matter | Courts and Jurisdiction,Judicial power,Constitutional Law,Court of Appeal,Power to reopen concluded criminal appeal |
In 2013, the applicant, Abdul Kahar bin Othman, now 62 years old, was convicted on two capital charges of drug trafficking (“the Charges”) and subsequently sentenced to the mandatory death penalty. In 2015, this court heard and dismissed his appeal against conviction and sentence. By the present Criminal Motion No 1 of 2018 (“CM 1”), the applicant applied for his appeal to be reopened and reviewed on the principal grounds that a previous decision of this court was decided wrongly and the sentencing regime in s 33B of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”), under which he was sentenced, is unconstitutional.
On 16 August 2018, we heard CM 1 and were satisfied that there was no merit in the application. Accordingly, we dismissed it after giving brief oral grounds and informing the parties that we would be giving detailed grounds in due course. After we dismissed CM 1, the Prosecution indicated to us that it was seeking an order of costs against counsel for the applicant (“Mr Seah”) personally. We directed the parties to file written submissions sequentially and they did so. After reviewing the parties’ written submissions, we decided on 7 September 2018 not to make any costs order against Mr Seah and directed the Supreme Court Registry (“the Registry”) to inform the parties about our decision. We now give the detailed grounds of our decision on the merits of CM 1 and on the issue of costs.
Facts On 6 July 2010, the applicant was driving a car when he was arrested by officers of the Central Narcotics Bureau (“the CNB”). The officers searched the car and found a packet containing 26.13g of diamorphine. This was the subject matter of the first charge against the applicant: see
The CNB officers escorted the applicant to his home. They searched his room and found a total of not less than 40.64g of diamorphine in a sachet and two packets. This resulted in the second charge against the applicant: see
On 27 August 2013, the applicant was convicted by a High Court Judge (“the Judge”) on the Charges. The Judge noted that the drug paraphernalia “indicated that [the applicant] was re-packing and selling the diamorphine that he had received” and it “could also be inferred … that [the] diamorphine was not intended for personal consumption”: see
On 24 October 2013, the Judge decided that the applicant was a courier for the purpose of s 33B(2)(
The Prosecution then brought two criminal references on issues of law to this court, one of which arose out of
On 4 February 2015, the Judge found that the applicant was not a courier for the purpose of s 33B(2)(
The applicant filed an appeal against his conviction and sentence (“CA 4”). In that appeal, he was also represented by Mr Seah, his counsel in the present application. On 1 October 2015, we heard and dismissed CA 4 and issued our grounds of decision thereafter: see
On 11 February 2016, the applicant filed Originating Summons No 134 of 2016 (“OS 134”) in the High Court for leave to commence judicial review in respect of the CSA Decision.1 The hearing of OS 134 was adjourned pending the delivery of our judgment in
On 2 December 2016, we delivered our judgment in
The applicant’s preliminary submission was that the test for reopening a concluded criminal appeal set out in
The applicant presented arguments relating to the constitutionality and interpretation of s 33B of the MDA. In respect of the constitutionality of s 33B, he submitted the following:
In his written submissions, the applicant raised two arguments on the interpretation of s 33B of the MDA. First, the applicant contended that he should be reclassified as a courier in the light of our decision in
Finally, in his written submissions, the applicant invited us to sever the allegedly unconstitutional parts of ss 33B(2)(
The PP submitted that the
The PP emphasised in particular that even if the applicant was found to be a courier and succeeded in establishing the unconstitutionality of the relevant portions of s 33B of the MDA, the law prior to the introduction of this provision would still require him to be sentenced to death. Therefore, the court should not exercise its inherent power of review since the success of the applicant’s arguments could not affect the outcome of the case.13
The issues Three issues arose in this application:
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