Abdul Karim bin Mohamed Kuppai Khan v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 30 March 2021
• Neutral Citation: [2021] SGCA 27
• Published date: 06 April 2021
• Docket Number: Criminal Appeal No 35 of 2019
• Year: 2021
• Hearing Date: 26 January 2021
• Plaintiff Counsel: Ramesh Chandr Tiwary (Ramesh Tiwary)
• Defendant Counsel: Professor Kumaralingam Amirthalingam (Faculty of Law, National University of Singapore) as amicus curiae.,Anandan Bala, Wong Woon Kwong, Nicholas Wuan Kin Lek, Zhou Yihong and Jotham Tay (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Citation: [2021] SGCA 27
• Subject Matter: Statutory offences,Criminal Law,Sentencing,Misuse of Drugs Act,Criminal Procedure and Sentencing

Sundaresh Menon CJ (delivering the grounds of decision of the court): Introduction

CA/CCA 35/2019 (“CCA 35”) was originally a self-contained appeal against sentence. The appellant had pleaded guilty to a charge of abetting another to possess not less than 329.99g of cannabis for the purpose of trafficking under s 5(1)(a) read with s 5(2), s 12 and 33(1) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). He had also consented to a similar charge pertaining to 659.99g of cannabis mixture being taken into consideration for the purposes of sentencing (the “TIC charge”). The learned High Court judge (“Judge”) did not issue formal written grounds for her decision but certified the transcript dated 27 September 2019 as containing her brief oral grounds. After convicting the accused of the cannabis charge, the Judge sentenced the appellant to 15 years’ imprisonment (backdated to the date of remand) and 10 strokes of the cane. In arriving at this sentence, the Judge clarified that she placed no weight on the TIC charge concerning cannabis mixture. The appellant filed an appeal against his sentence contending that the custodial term was manifestly excessive.

The appeal potentially implicated our holding in Saravanan Chandaram v Public Prosecutor and another matter [2020] 2 SLR 95 (“Saravanan”) at [183]–[188], [191] and [198(c)] to the effect that it was impermissible for the Prosecution to prefer, concurrently, two distinct charges, one concerning cannabis and the other, cannabis mixture, arising from a single compressed block of cannabis-related material (the “Dual Charging Practice”). Although this issue could have been avoided in this case because the Judge had expressly declined to consider the TIC charge involving cannabis mixture, the Prosecution took the opportunity to invite us, on the basis of what it claimed to be new legal arguments, to reconsider our decision in Saravanan effectively disallowing the Dual Charging Practice.

Following our decision in Saravanan, the Prosecution had applied to set aside a number of convictions and sentences in respect of accused persons who had been or were then facing concurrent cannabis and cannabis mixture charges arising from the Dual Charging Practice. These applications had been brought by the Prosecution in CA/CM 11/2020, CA/CM 12/2020, CA/CM 13/2020 (“CM 13”) and CA/CM 14/2020.

In CM 13, the Prosecution had sought to persuade this court to reconsider the sentence imposed on the accused in Suventher Shanmugam v Public Prosecutor [2017] 2 SLR 115, and to set aside the High Court’s decision to take into consideration a cannabis mixture charge in Public Prosecutor v Suventher Shanmugam [2016] SGHC 178. However, on 4 June 2020, the Prosecution applied to amend CM 13 seeking instead to contend that it was, after all, appropriate to take into consideration the cannabis mixture charge, and further indicated that it intended to raise new legal arguments with a view to persuading us to depart from Saravanan in respect of our holding on the impermissibility of the Dual Charging Practice. The Prosecution stated that it had no objections if a five-judge bench were to be empaneled to hear CCA 35 and took the view that this appeal would afford a suitable opportunity for it to advance the ostensibly new legal arguments. Counsel for the appellant in CCA 35 did not object to the Prosecution’s proposal. Accordingly, we directed that these points be canvassed in CCA 35 and the four aforementioned criminal motions be adjourned pending the resolution of the present appeal. As Professor Kumaralingam Amirthalingam (“Prof Amirthalingam”) had served as amicus curiae in Saravanan, and as we had been greatly assisted by his submissions, we intimated our intentions to appoint him once again and the Prosecution did not object to this.

At the conclusion of the hearing on 26 January 2021, we maintained our holding in Saravanan as to the impermissibility of the Dual Charging Practice, and we also dismissed the appellant’s appeal against his sentence. We now set out our detailed grounds. In this judgment, we: (a) explain and clarify the basis for our decision to re-affirm the holding in Saravanan; (b) answer a query raised by the Health Sciences Authority (“HSA”) regarding its certification practice in the aftermath of our decision in Saravanan; and (c) explain our decision to dismiss the appellant’s appeal against his sentence.

The Dual Charging Practice in Saravanan The HSA’s procedure for analysing compressed blocks of cannabis in CCA 35

By CA/CM 20/2020, the Prosecution applied to admit, for the purposes of CCA 35, evidence regarding the HSA’s process of analysing, testing and certifying compressed blocks of cannabis-related plant material. The evidence sought to be disclosed was enclosed in an affidavit of the Deputy Laboratory Director of the Illicit Drugs Division, Merula d/o M Mangudi (“DLD Merula”), who conducted the analysis of the drug exhibits in CCA 35. We granted the order sought by the Prosecution pursuant to s 408A(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”). Given that the Prosecution did not contend that we had erred in Saravanan in our narration of the relevant facts, there is no need for us to repeat at length the process by which the HSA conducts its analysis and certification, because that has all been set out at length in Saravanan. Nevertheless, for present purposes, we briefly summarise this process.

To begin, the HSA analyst uses a weighing device to determine the gross weight of the compressed block. The analyst will then prise apart the compressed block and conduct a macroscopic (meaning visual) examination of all its components. The analyst takes note of: (a) the colour; (b) the presence of different plant parts (such as cannabis stalks or stems, leaves, flowering branches, fruiting branches, flowers and fruits); (c) the uniformity of the type of plant material; and (d) the presence of non-cannabis plant material. Based on the macroscopic examination, the analyst then separates the components into three different groups: (a) individual plant branches (“Group 1”); (b) fragments of plant parts (“Group 2”); and (c) observable extraneous matter (“Group 3”). Indicia for determining whether any given vegetable matter falls within each group, under macroscopic examination, are set out in the table below:

Group 1 Individual plant branches	Group 2 Fragments of plant parts	Group 3 Observable extraneous matter
Must be at least 2cm in length	Includes bare branches with no leaves, flowers or fruits attached.	Includes non-cannabis vegetable matter
Possesses sufficient botanical features of cannabis to meet the criteria for cannabis under the macroscopic examination	Includes detached leaves, flowers or fruits	Includes non-vegetable matter such as strings and paper
Each fragment is typically between 2cm and 0.5mm in length
May possess some botanical features, but these are insufficient to meet the criteria for cannabis under the macroscopic examination.

Once the plant matter has been separated into the three groups, the analyst will record the weight of each group. After completing the macroscopic examination, the analyst then conducts a microscopic examination in order to establish the presence of the characteristic botanical features of cannabis. These include: (a) the bear claw-shaped unicellular trichomes (trichomes are outgrowth akin to hairs) on the upper surface of leaves; (b) long slender unicellular trichomes on the lower surface of leaves; (c) multicellular stalked glandular trichomes and long curved unicellular trichomes on the outer surface of bracts or female flowers; (d) long unicellular upwards-pointing trichomes on stems; and (e) reticulate (meaning marked like a network) patterns on fruits. The process of the microscopic examination in respect of Group 1 material and Group 2 material can be summarised as follows:

	Group 1 Individual plant branches	Group 2 Fragments of plant parts
Microscopic examination procedure	The analyst views each branch under the microscope for the characteristic microscopic features of cannabis.	The analyst scans the plant fragments under the microscope at low magnification to observe their general appearance.
The analyst then zooms in to microscopically examine some of these fragments at a higher magnification to detect the characteristic botanical features of cannabis.
Outcome of microscopic examination	Branches that do not exhibit microscopic features of cannabis are removed from Group 1 and placed in Group 3. The analyst subtracts the weight of non-cannabis branches from Group 1.	Extraneous matter observed is removed from Group 2 and placed in Group 3. The analyst subtracts the weight of extraneous matter from Group 2.

Following both the macroscopic and the microscopic examinations, the analyst then conducts two chromatography tests: (a) Thin Layer Chromatography; and (b) Gas Chromatography-Mass Spectrometry. These tests are used to determine the presence of cannabinol (“CBN”) and tetrahydrocannabinol (a cannabinol derivative) (“THC”), which are the chemical markers for cannabis. In each test sample, CBN and THC are extracted with a solvent. The analyst will then use Gas Chromatography-Flame Ionisation Detection to estimate the amount of CBN and THC in Group 1.

Created Fragmented Vegetable Matter

We turn now to Saravanan at [174], where we referred to a step in the HSA’s testing and analysis process that generated what we termed “Created Fragmented Vegetable Matter”: 174 As we have explained above at [56]−[64], the HSA has a comprehensive testing mechanism for the certification of cannabis and cannabis mixture. To recap, the testing procedure results in three groups of material emanating from a single compressed block of cannabis-related plant material:...