Chander Kumar a/l Jayagaran v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang JCA
• Judgment Date: 18 January 2021
• Neutral Citation: [2021] SGCA 3
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Motion No 37 of 2020
• Published date: 21 January 2021
• Year: 2021
• Hearing Date: 23 December 2020,06 January 2021
• Plaintiff Counsel: The applicant in person
• Defendant Counsel: Francis Ng Yong Kiat, SC (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Criminal review,Leave for review
• Citation: [2021] SGCA 3

Tay Yong Kwang JCA: Introduction

On 23 December 2020, Mr Chander Kumar a/l Jayagaran (“the applicant”) filed this application in person under ss 405 and 407 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) stating the relief sought as “New evidence my case”. Sections 405 and 407 of the CPC are provisions relating to criminal motions generally and do not provide for any specific relief. However, from the applicant’s supporting affidavit, I understand his application to be one made under s 394H of the CPC for leave of the court to make a review application in respect of his appeal in CA/CCA 58/2017 (“CCA 58”). CCA 58 was dismissed by the Court of Appeal on 15 March 2019 in its decision reported in Ramesh a/l Perumal v Public Prosecutor and another appeal [2019] 1 SLR 1003 (“Ramesh (CA)”).

Under s 394H(6)(a) of the CPC, such an application for leave of the court is to be heard by a single Judge sitting in the Court of Appeal in any case where the appellate court in question is the Court of Appeal. It is on this basis that I deal with this leave application.

Factual and procedural background

The Court of Appeal in Ramesh (CA) comprised Sundaresh Menon CJ, Andrew Phang Boon Leong JA and me. The facts relevant to the applicant’s appeal are set out in Ramesh (CA) at [5]–[20]. Briefly, the applicant claimed trial to three charges: Possession of two bundles containing not less than 14.79g of diamorphine for the purpose of trafficking, a non-capital offence under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). Trafficking in not less than 19.27g of diamorphine by delivering three bundles of drugs to Harun bin Idris, a capital offence under s 5(1)(a) of the MDA. Trafficking in not less than 29.96g of diamorphine by giving four bundles of drugs to his co-accused, Ramesh a/l Perumal (“Ramesh”), a capital offence under s 5(1)(a) of the MDA.

The drugs that formed the subject matter of the charges were brought from Malaysia into Singapore in a lorry driven by the applicant, with Ramesh as the passenger. The drugs were contained in nine separate bundles.

The applicant was convicted on all the three charges. On the question of sentence, the High Court found that the applicant satisfied the requirements for alternative sentencing set out in s 33B(2) of the MDA. The High Court imposed on the applicant the minimum sentence of life imprisonment and 15 strokes of the cane for each of the capital charges and 26 years’ imprisonment and 15 strokes of the cane for the non-capital charge. The aggregate sentence for the applicant was therefore life imprisonment and 24 strokes of the cane (the maximum number of strokes of the cane allowed by law).

Ramesh was convicted on one charge of possession of drugs containing not less than 29.96g of diamorphine. The High Court also held that he satisfied the requirements for alternative sentencing set out in s 33B(2) of the MDA. He was sentenced to life imprisonment and 15 strokes of the cane.

The applicant and Ramesh appealed against their respective convictions and sentences. The applicant’s position on appeal was “essentially the same as that which he took at the trial below”: Ramesh (CA) at [34]. He claimed that he had been told that the bundles that he was to deliver contained betel nuts, not drugs. The Court of Appeal rejected this argument and his appeal in CCA 58. Ramesh’s appeal was allowed. He was convicted on an amended charge of possession of drugs under s 8(a) of the MDA and was sentenced to ten years’ imprisonment.

As mentioned earlier, the judgment in Ramesh (CA) was delivered on 15 March 2019. On 23 December 2020, the applicant filed the present application. His supporting affidavit (which was largely handwritten) sets out various grounds on why he believes the decision in Ramesh (CA) should be reviewed.

On 6 January 2021, the Prosecution filed its written submissions in response to the application. The Prosecution relies on the principles set out in the recent Court of Appeal decision in Syed Suhail bin Syed Zin v Public Prosecutor [2020] SGCA 101 and submits that the application is “so lacking in merit” (quoting the words of the court at [16]) that it warrants summary dismissal, pursuant to s 394H(7) of the CPC.

The parties’ cases The applicant’s case

The applicant’s affidavit advances many issues which I summarise in six main points. The first five relate to his conviction and the sixth relates to his sentence. First, the applicant argues that there were issues with the recording of his cautioned statements. The applicant was not asked if he was physically and mentally sound and able to be interviewed. When the applicant admitted that he brought the bundles to Singapore, it was not his intention to admit to trafficking in heroin. When the applicant was informed that the bundles contained heroin, it was his intention to help CNB with its investigations and the arrest of “the actual traffickers”. He was not aware of the contents of the bundles. There was miscommunication because of the jargon used. The applicant’s statements indicated clearly that he said “pakku” but the CNB claimed that this meant heroin. The interpreter said the colour of the drugs was “brownish and similar to diamorphine”. To the Applicant at the time of questioning, it was still “pakku” to him, being a known herb taken in Asian countries. The interpreter spoke in Tamil. The applicant was not familiar with a lot of the words used by the interpreter. The interpreter’s evidence was doubtful and inaccurate as he changed his testimony. The applicant said “jamma” but the interpreter said that he mentioned “bothai porul”. At no point during the recording of the cautioned statements was the word diamorphine interpreted to the applicant in Tamil as heroin. The first time that he heard the word diamorphine being interpreted in Tamil was in court during the trial. Second, the applicant’s DNA was not found on the drug bundles but Ramesh’s DNA was. Ramesh therefore “clearly had knowledge” of the nature of the bundles that contained the drugs. Third, Ramesh lied in his statements and in court. Ramesh was well aware of the bundles and had himself taken four bundles, which were kept in the passenger side compartment. Ramesh did this when the applicant was driving the lorry. Fourth, this was the second time that the applicant delivered such bundles to Singapore for one “Roy”. The applicant was under the impression that he was delivering betel nuts. None of the evidence proved that the applicant was aware of the contents of the bundles. Fifth, insufficient weight was given to the applicant’s willingness to co-operate with the CNB. Despite the co-operation of the applicant and his family, the CNB did not follow up on the information provided by them, preferring to push the entire blame on him. Sixth, the applicant takes issue with the fact that he received a heavier sentence than Ramesh. Ramesh had “equal part” in the offence “yet he is getting off on a lighter sentence and charge”. The applicant had only “a small role” in the supply chain, as shown by the amount of payment that he received for his delivery service.

In addition, the applicant states several matters in mitigation to ask for a “lighter sentence”. This appears to be the only “new evidence”...