Adeeb Ahmed Khan s/o Iqbal Ahmed Khan v Public Prosecutor

JurisdictionSingapore
JudgeSundaresh Menon CJ
Judgment Date12 September 2022
Neutral Citation[2022] SGCA 61
CourtCourt of Appeal (Singapore)
Hearing Date07 September 2022
Docket NumberCriminal Motion No 10 of 2022
Plaintiff CounselThe applicant (in person)
Defendant CounselAnandan Bala, Jamie Pang and Bharat Punjabi (Attorney-General's Chambers)
Subject MatterCriminal Procedure And Sentencing,Appeal,Out of time
Published date15 September 2022
Sundaresh Menon CJ (delivering the grounds of decision of the court): Introduction

The ordinary way in which the merits of a decision are reviewed is by way of appeal. In many instances, a dissatisfied litigant has a right of appeal, as long as this is invoked and exercised in accordance with the applicable rules and limits. Where a litigant fails to invoke its right of appeal in a timely way, as long as the court is satisfied that this stemmed from some oversight rather than because of an election to accept the merits of the first instance decision, it may exercise its discretion to extend the time for the appeal to be filed. In the criminal context, this will be subject to the analytical framework set out in Lim Hong Kheng v Public Prosecutor [2006] 3 SLR (R) 358 (“Lim Hong Kheng”) and later approved by this court in Bachoo Mohan Singh v Public Prosecutor and other applications [2010] SLR 966 (“Bachoo Mohan Singh”). We will examine that framework later in these grounds of decision.

Where, however, because of the inordinate length of time by which any applicable time limit for filing an appeal has been exceeded, or because of the absence of any explanation to account for the failure to invoke the right of appeal in a timely way, or because of a combination of these and/or other factors, the court concludes that the applicant had elected to accept the merits of the original decision, then the more demanding threshold that was laid down in Public Prosecutor v Pang Chie Wei and other matters [2022] 1 SLR 452 (“Pang Chie Wei”) (where we clarified the circumstances under which the court may reopen a previous decision) will have to be crossed before permission will be given to bring an appeal despite the passage of time.

In Pang Chie Wei, we explained that the starting point of the analysis is that every judgment of the court is final and cannot be reopened on the merits. Certainly, this applies with greater force to decisions in concluded appeals. However, as explained above at [2], this can also apply in the context of a first instance decision. The judicial reluctance to undo concluded decisions is grounded principally in respect for the finality of judgments, and the notion that litigation must at some definite point be brought to an end. Once the trial or appellate process has run its course, a presumption of finality and legality attaches to the conviction and sentence (Pang Chie Wei at [7]–[8]). A high threshold is therefore required to persuade the court to allow the presumptive interest in finality to be displaced.

CA/CM 10/2022 (“CM 10”) was a criminal motion filed by the applicant, Adeeb Ahmed Khan s/o Iqbal Ahmed Khan, on 21 April 2022 seeking an extension of time to file a notice of appeal against the sentence that was meted out to him by the General Division of the High Court on 30 August 2021.

The applicant had been charged for several offences in two sets of proceedings before the District Court and the High Court, and did not contest either set of proceedings. In the proceedings before the District Court, he was convicted on 24 August 2021 of two charges, one each under ss 8(a) and 8(b)(ii) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) punishable under ss 33(1) and 33A(1) of the MDA respectively. He was sentenced in the aggregate to five years’ imprisonment with effect from 3 May 2017 and three strokes of the cane. In the proceedings before the High Court, the applicant was convicted by the High Court judge (“the Judge”) some days later on 30 August 2021 of a separate charge of abetting possession for the purpose of trafficking in not less than 166.99g of methamphetamine under s 5(1)(a) read with ss 5(2) and 12 of the MDA punishable under s 33(4A)(i) of the MDA and was sentenced to 15 years’ imprisonment and 14 strokes of the cane. The term of imprisonment for the latter proceedings was to commence after the sentence imposed by the District Court. Another charge of conspiring to possess 329.99g of cannabis for the purpose of trafficking was taken into consideration when the High Court sentenced the applicant. His aggregate sentence arising from the two sets of proceedings was 20 years’ imprisonment (backdated to the date of his arrest on 3 May 2017) and 17 strokes of the cane.

The applicant did not seek to disturb the decision of the District Court. Indeed, he could not. The District Court sentenced him to the mandatory minimum sentence for one of the two proceeded charges, ordered the sentence for the second proceeded charge to run concurrently, and made no adjustment for seven other charges that the applicant consented to being taken into consideration for the purpose of sentencing. While this might have appeared to suggest undue leniency on the part of the District Court, the fact was that the District Court was aware that the applicant was shortly thereafter to face separate charges in the High Court. As noted in the preceding paragraph, the applicant did not contest the charges in the High Court and also did not contest the sentence that was imposed for almost eight months. He then filed this motion, seeking permission to bring an appeal against the sentence imposed by the High Court despite being well out of time.

After considering the parties’ submissions, we were satisfied that the application was wholly without merit and fell far short of the threshold required to justify the grant of permission to appeal out of time in the present circumstances. We therefore summarily dismissed the application without fixing the matter for an oral hearing pursuant to ss 238A and 238B of the Criminal Procedure Code 2010 (2020 Rev Ed). We explain our decision below after setting out the relevant facts.

Facts

On 2 May 2017, the applicant ordered a consignment of drugs from a Malaysian-based supplier and was to receive the said consignment from one Muhamad Azmi bin Kamil (“Azmi”). On the same day, a vehicle driven by Azmi was stopped at Woodlands Checkpoint and some 677.5g of methamphetamine was recovered from the vehicle. After Azmi’s arrest, he was allowed to receive and make calls to assist the authorities with the arrest of the intended recipients of the drugs seized. Azmi made and received multiple calls to the applicant. The applicant expected that Azmi was to deliver not less than 166.99g of methamphetamine to him and he intended to traffic in the drugs he would receive.

On 3 May 2017, at about 1.08am, the applicant was arrested at the loading and unloading bay of Vista Point located in Woodlands. A sachet containing not less than 1.59g of methamphetamine was found in his car. After the applicant was arrested, a urine sample was taken from him and this was found to contain evidence of methamphetamine consumption.

These events were the subject of the two proceedings before the District Court and the High Court. As a result of the events on 3 May 2017 summarised at [0] above, the applicant was charged with two offences: (a) one of possession of not less than 1.59g of methamphetamine under s 8(a) of the MDA and (b) one of consumption of methamphetamine under s 8(b)(ii) of the MDA. The applicant pleaded guilty to both charges. He also consented to seven other charges under the MDA and the Prisons Act (Cap 247, 2000 Rev Ed) being taken into consideration for the purpose of sentencing. The applicant was sentenced by the District Court to five years’ imprisonment with effect from 3 May 2017 and three strokes of the cane for the consumption charge and eight months’ imprisonment for the possession charge with both charges to be run concurrently. Because of his antecedents, the sentence imposed for the consumption charge had been enhanced and he was sentenced to the mandatory minimum.

As a result of the events on 2 May 2017 summarised at [8] above, the applicant was charged with one charge of abetment by conspiring with Azmi to possess for the purpose of trafficking in not less than 166.99g of methamphetamine under s 5(1)(a) read with ss 5(2) and 12 of the MDA. The applicant pleaded guilty to the charge. He also did not contest another charge of abetment by conspiracy for Azmi to possess for the purpose of trafficking in not less than 329.99g of cannabis and consented to that charge being taken into consideration for the purpose of sentencing. The applicant was sentenced by the High Court to 15 years’ imprisonment to commence from 3 September 2020 (which was after the completion of the sentence imposed by the District Court) and 14 strokes of the cane. The applicant did not file an appeal against his sentence.

CM 10 was filed on 21 April 2022, almost eight months after his conviction and sentence by the High Court. The applicant sought an extension of time to file a notice of appeal against his sentence. At a case management conference on 26 April 2022, the applicant confirmed that CM 10 related only to the sentence imposed by the High Court.

The parties’ cases The applicant’s case

In an attempt to explain the delay in filing the appeal at this stage, the applicant alleged that he was misled by an initial indication from the Singapore Prison Service (“SPS”) that his earliest date of release would be on 25 July 2029. He claimed that on that basis, he decided not to appeal. However, in October 2021, he was told that his earliest date of release would be 2 September 2030; this was confirmed by the SPS. During that time, there had been a lockdown in prison arising from the COVID-19 pandemic. In February 2022, his family approached the Ministry of Home Affairs (“MHA”) to seek assistance in clarifying the date of release. The Superintendent of the SPS subsequently saw the applicant and explained the error in the earlier indication by the SPS as to his earliest date of release; this meeting, which took place on 13 April 2022, was also confirmed by the SPS. The applicant claimed he was told his case was unique because he had first been sentenced...

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