Chander Kumar a/l Jayagaran v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang JCA
• Judgment Date: 31 October 2023
• Neutral Citation: [2023] SGCA 35
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Motion No 40 of 2023
• Hearing Date: 06 October 2023
• Citation: [2023] SGCA 35
• Year: 2023
• Plaintiff Counsel: The applicant in person.
• Subject Matter: Criminal law,Statutory offences,Misuse of Drugs Act,Criminal procedure and sentencing,Criminal review
• Published date: 31 October 2023

Tay Yong Kwang JCA (delivering the judgment of the court): Introduction

CA/CM 40/2023 (“CM 40”) is an application by Chander Kumar a/l Jayagaran (“the applicant”) under s 394H(1) of the Criminal Procedure Code 2010 (2020 Rev Ed) (the “CPC”) for permission to make an application to review an earlier decision of the Court of Appeal in Ramesh a/l Perumal v Public Prosecutor and another appeal [2019] 1 SLR 1003 (“Ramesh (CA)”). Previous to CM 40, the applicant filed CA/CM 37/2020 (“CM 37”), also an application under s 394H(1) of the CPC for permission to review Ramesh (CA). On 18 January 2021, I dismissed CM 37 summarily: see Chander Kumar a/l Jayagaran v Public Prosecutor [2021] SGCA 3 (“Chander (Permission)”). CM 40 is therefore the applicant’s second application for permission to review Ramesh (CA).

The facts relevant to this application are set out in Ramesh (CA) at [5]–[20]. They are summarised briefly below.

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 (“Harun”), 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’s position, both at the trial and on appeal, was that he had been told by one “Roy”, a Malaysian Indian man living in his estate, that the bundles that the applicant was to deliver contained betel nuts and not controlled drugs.

The High Court rejected the applicant’s defence and convicted the applicant on all three charges. On the issue of sentence, the High Court found that the applicant satisfied the requirements of the alternative sentencing regime 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 held that Ramesh also satisfied the requirements set out in s 33B(2) of the MDA and sentenced him to life imprisonment and 15 strokes of the cane.

The applicant and Ramesh appealed against their respective convictions and sentences. In its judgment delivered on 15 March 2019 (Ramesh (CA)), the Court of Appeal dismissed the applicant’s appeal and upheld the sentence imposed upon him by the High Court. In relation to Ramesh, the Court of Appeal amended the trafficking charge to one of possession of drugs under s 8(a) of the MDA. Ramesh was convicted on the amended charge and sentenced to ten years’ imprisonment.

On 23 December 2020, the applicant filed CM 37. CM 37 was placed before me. While CM 37 was filed under ss 405 and 407 of the CPC, I regarded it as an application under s 394H of the CPC for permission to make a review application in respect of Ramesh (CA) based on the contents of the applicant’s supporting affidavit in CM 37: see Chander ( Permission) at [1]. I dismissed CM 37 summarily on 18 January 2021 as none of the matters raised by the applicant in CM 37 satisfied the requirement of “sufficient material” within the meaning of s 394J of the CPC. No new evidence was adduced in CM 37. The applicant’s contentions advanced in CM 37 concerned matters which had been canvassed or could have been raised at the trial or at the appeal: see Chander ( Permission) at [15].

On 6 October 2023, the applicant filed the present application in CM 40. In his supporting affidavit, the applicant raises various issues which I summarise in six points below. The first fiverelate to the manner in which the Prosecution conducted the criminal proceedings against the applicant. The applicant alleges that the Prosecution: failed to “thoroughly analyse” certain documents, such as the phone records and travel movement records of Ramesh. The applicant claims that if the Prosecution had done so, it would have established Ramesh’s “greater involvement” in the drug trafficking scheme and would possibly have preferred less serious charges against the applicant; failed to identify that Ramesh had told ‘Lucas lies’ in the course of giving evidence at the trial and out of court (see Regina v Lucas (Ruth) [1981] QB 720) and had sought to “push the blame” to the applicant regarding the drug bundles; failed to put to the applicant the elements of “all 3 charges [against him], separately”; erred in taking the applicant’s statements in his three cautioned statements as “confession[s]” within the meaning of s 17(2) of the Evidence Act (Cap 97, 1997 Rev Ed); and failed to disclose the statements made by the applicant’s sister and father in breach of the disclosure obligations set out in Muhammad Nabill bin Mohd Fuad v Public Prosecutor [2020] 1 SLR 984 (“Nabill”).

The applicant submits that these failures led both the High Court and the Court of Appeal to find wrongly that the applicant failed to rebut the presumption of knowledge under s 18(2) of the MDA. In addition, the Prosecution’s alleged errors caused the Court of Appeal to amend the charge against Ramesh wrongly from a charge of trafficking to simple possession. This led the Court of Appeal to impose a heavier sentence on the applicant than on Ramesh, despite Ramesh’s allegedly greater role in the drug transaction. The applicant alleges that these ‘unequal’ sentences constitute a breach of Art 12(1) of the Constitution of the Republic of Singapore (2020 Rev Ed).

The sixth point is that the trial judge had engaged in excessive judicial interference.

The decision of the court Applicable principles

To obtain permission under s 394H(1) of the CPC to make a review application, the application must disclose a “legitimate basis for the exercise of the [appellate court’s] power of review”: Kreetharan s/o Kathireson v Public Prosecutor and other matters [2020] 2 SLR 1175 at [17]. To show a legitimate basis for the appellate court’s exercise of its power of review, the applicant must satisfy the requirements set out in s 394J of the CPC: Roslan bin Bakar and others v Public Prosecutor [2022] 1 SLR 1451 at [21].

Section...