Abdul Kahar bin Othman v Public Prosecutor

• Jurisdiction: Singapore
• Court: Court of Appeal (Singapore)
• Judge: Sundaresh Menon CJ,Judith Prakash JA,Tay Yong Kwang JA,Chao Hick Tin SJ,Belinda Ang Saw Ean J
• 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

Tay Yong Kwang JA (delivering the grounds of decision of the court):

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 Public Prosecutor v Abdul Kahar bin Othman [2013] SGHC 164 (“Abdul Kahar (Conviction)”) at [1].

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 Abdul Kahar (Conviction) at [2]. Besides the drugs, the officers also found paraphernalia that indicated that the applicant was repacking and selling drugs (numerous plastic sachets, a stained spoon, a weighing scale and a packet of rubber bands): see Abdul Kahar (Conviction) at [2]–[3].

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 Abdul Kahar (Conviction) at [15].

On 24 October 2013, the Judge decided that the applicant was a courier for the purpose of s 33B(2)(a) of the MDA: see Public Prosecutor v Abdul Kahar bin Othman [2013] SGHC 222 (“Abdul Kahar (Sentencing)”) at [5].

The Prosecution then brought two criminal references on issues of law to this court, one of which arose out of Abdul Kahar (Sentencing). On 28 November 2014, we held that a person who intended to sell drugs forming the subject matter of a charge was not a courier for the purpose of ss 33B(2)(a) and 33B(3)(a) of the MDA: see Public Prosecutor v Chum Tat Suan and another [2015] 1 SLR 834 (“Chum Tat Suan”) at [62]. We therefore held that the Judge was wrong to have found that the applicant was a courier, set aside that finding and remitted the case to the Judge: see Chum Tat Suan at [70], [72] and [73].

On 4 February 2015, the Judge found that the applicant was not a courier for the purpose of s 33B(2)(a) of the MDA. The Prosecution informed the Judge that the applicant would not be granted a certificate of substantive assistance (“CSA”) under s 33B(2)(b) of the MDA (“the CSA Decision”). Accordingly, the Judge passed the death sentence on the applicant in accordance with the law.

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 Abdul Kahar bin Othman v Public Prosecutor [2016] SGCA 11. We held at [98] that the applicant could not avail himself of s 33B(2)(a) of the MDA and we found “no reason to interfere with the Judge’s finding that the [applicant] was actively involved in purchasing, re-packaging and selling drugs”.

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 Prabagaran a/l Srivijayan v Public Prosecutor and other matters [2017] 1 SLR 173 (“Prabagaran”).

On 2 December 2016, we delivered our judgment in Prabagaran. On 11 July 2017, the High Court heard OS 134 and dismissed it. The applicant did not appeal against the dismissal of OS 134. Subsequently, the applicant filed CM 1.

The parties’ submissions on the merits of CM 1 The applicant’s submissions

The applicant’s preliminary submission was that the test for reopening a concluded criminal appeal set out in Kho Jabing v Public Prosecutor [2016] 3 SLR 135 (“Kho Jabing”) did not apply to CM 1 as it should be confined to the facts in that case. He stressed that Kho Jabing involved an application brought very soon before the convicted person’s death sentence was to be carried into effect and which traversed largely the same grounds that had been raised in the concluded appeal. However, CM 1 raised points that had not been ventilated in CA 4 and was not a last-ditch effort to avoid the death sentence.² The applicant submitted that prior to Kho Jabing, this court had reopened concluded criminal appeals simply because they raised constitutional issues of public importance. Accordingly, this court should also reopen CA 4 given that CM 1 raised important constitutional issues.³

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: First, the role of the Public Prosecutor (“the PP”) in determining whether an accused has provided substantive assistance to the CNB under s 33B(2)(b) of the MDA is unconstitutional, for two reasons: The PP’s role amounts to a usurpation of judicial power, and thus violates the principle of separation of powers which is part of the basic structure of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). This court’s reasoning in Prabagaran rejecting a similar argument was flawed.⁴ We will refer to this argument as the “Judicial Power Argument”. The PP’s role under s 33B(2)(b) of the MDA is ultra vires the PP’s constitutional role under the Constitution (“the Constitutional Role Argument”).⁵ Second, s 33B(4) of the MDA is unconstitutional because: it is “self-referentially inconsistent and is consequently self-defeating in purpose”;⁶ and it infringes the rules of natural justice, and thus breaches Arts 9(1) and 12 of the Constitution.⁷ Third, s 33B(2)(a) of the MDA is unconstitutional. There is an “inherent confusion” in this provision that has manifested itself in its evolving interpretation. This has led to “possible unfair discrimination between [prisoners awaiting capital punishment] who are of the same class in legal guilt”. Section 33B(2)(a) therefore breaches Art 12(1) of the Constitution. The applicant emphasised that he was first found to be a courier by the High Court in Abdul Kahar (Sentencing), and then found not to be a courier by the Court of Appeal in Chum Tat Suan.⁸

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 Zainudin bin Mohamed v Public Prosecutor [2018] 1 SLR 449 (“Zainudin”).⁹ Second, he submitted that the substantive assistance condition under s 33B(2)(b) of the MDA should be construed as requiring only that an accused person try his best to assist the CNB (“the Best Effort Interpretation”), even if this does not lead to desired outcomes.¹⁰

Finally, in his written submissions, the applicant invited us to sever the allegedly unconstitutional parts of ss 33B(2)(b) and 33B(4) of the MDA from the rest of s 33B, by “deleting” s 33B(4) and substituting the court in place of the PP in s 33B(2)(b) as the authority which determines whether a CSA is granted.¹¹ However, Mr Seah accepted at the hearing that the law did not permit the court to take this approach and therefore, if s 33B of the MDA was found to be unconstitutional, the law prior to the introduction of this provision would make it mandatory for the applicant to be sentenced to death.

The PP’s submissions

The PP submitted that the Kho Jabing test applied to CM 1.¹² The applicant did not satisfy the Kho Jabing test because none of the applicant’s arguments was “new” and “compelling”.

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: First, did the Kho Jabing test apply to CM 1 and if so, was that test satisfied such that this court should reopen CA 4 (“Issue 1”)? Second, was there merit in the applicant’s arguments as to the constitutionality and interpretation of s 33B of...