Datchinamurthy a/l Kataiah v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin SJ
• Judgment Date: 05 April 2021
• Neutral Citation: [2021] SGCA 30
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Motion No 9 of 2021
• Year: 2021
• Published date: 08 April 2021
• Hearing Date: 22 March 2021,03 February 2021
• Plaintiff Counsel: Ravi s/o Madasamy (Carson Law Chambers)
• Defendant Counsel: Anandan Bala, Marcus Foo and Lee Zu Zhao (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Review of concluded criminal appeals
• Citation: [2021] SGCA 30

Chao Hick Tin SJ:

This is an application by Datchinamurthy a/l Kataiah (“the Applicant”) for leave under s 394H(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) to make an application to review an earlier decision of the Court of Appeal in CA/CCA 8/2015, Datchinamurthy a/l Kataiah v Public Prosecutor (“Datchinamurthy (CA)”), in which this court had dismissed the Applicant’s appeal against his conviction of one charge under s 5(1)(a) punishable under s 33 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). For the reasons below, I find that the Applicant has not shown a legitimate basis for the exercise of this court’s power of review, and accordingly dismiss the application.

Factual and procedural background

The facts relating to the Applicant’s case were summarised by the trial judge (“the Trial Judge”) at [2]–[17] of Public Prosecutor v Christeen d/o Jayamany and another [2015] SGHC 126 (“Datchinamurthy (HC)”).

The Applicant had entered Singapore on 18 January 2011 on his motorcycle and travelled to a fruit stall at Woodlands Central, where he met an unknown Indian man. The Applicant told that man that he was supposed to deliver five packets of drugs for one “Rajah”. The Indian man told the Applicant that there were two packets in a red plastic bag in the front basket of a motorcycle bearing registration plate number JJS 2021 which was parked in the vicinity, and three more packets stuffed under its seat. The Applicant retrieved the three packets from under the seat and placed them with the two other packets. He then contacted Christeen d/o Jayamany (“Christeen”) and arranged to meet her at Depot Close. The Applicant travelled there on JJS 2021 and met Christeen. Christeen passed him a brown sling bag, and the Applicant placed something red into the sling bag and returned it to Christeen. They then parted ways. Officers from the Central Narcotics Bureau arrested both of them. A red plastic bag containing five packets of brown granular substance was retrieved from the sling bag. The substance was later found to contain not less than 44.96g of diamorphine. The Applicant faced a single charge under s 5(1)(a) punishable under s 33 of the MDA as follows:

That you, 2. DATCHINAMURTHY A/L KATAIAH,

on 18 January 2011, at or about 9.05 a.m., along Depot Close, Singapore, did traffic in a controlled drug specified in Class A of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, by giving to one Christeen D/O Jayamany (NRIC No.: [xxx]) five (5) packets of granular/powdery substances, which were analyzed and found to contain not less than 44.96 grams of diamorphine, without any authorization under the said Act or the Regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) of the Misuse of Drugs Act, Chapter 185, which punishable under section 33 of the Misuse of Drugs Act, Chapter 185, or you may alternatively be liable to be punished under section 33B of the Misuse of Drugs Act, Chapter 185.

[emphasis in original]

The Trial Judge convicted the Applicant of the single charge. The Applicant’s defence was that he did not know the nature of the contents of the packets that he had delivered – he claimed that he thought he was carrying illegal Chinese medicine and not diamorphine: Datchinamurthy (HC) at [15]–[18]. The Judge’s main findings were as follows: The Applicant had delivered drugs to Christeen on three separate occasions, including the last occasion on the date of his arrest, viz, 7, 14 and 18 January 2011: at [19]. The presumption of knowledge under s 18(2) of the MDA (“the s 18(2) presumption”) applied to the Applicant, as it was not disputed that he was in physical possession of the bag containing the five packets of diamorphine prior to delivery: at [20]. The Trial Judge found that the Applicant “had at least a strong suspicion that he was carrying diamorphine and that he turned a blind eye to it”: at [35]. First, the Applicant was rewarded “rather generously” for collecting and delivering the drugs: at [36]. Second, the Applicant’s claim to have trusted Rajah’s assurance that the drugs were not serious was incredible, since the evidence “show[ed] at most an arms-length relationship” between them: at [37]. Third, the Applicant had “no real basis to conclude that the drugs were ‘illegal Chinese medicine’”, as he had no real knowledge about such medicine: at [38]. Fourth, the “scale of the operations” and surreptitious nature of the transactions would have suggested to the Applicant that what he was carrying was more illegal and serious than illegal Chinese medicine: at [39]. Fifth, the Applicant had done two prior transactions and he had ample time to check what the drugs were, but the fact that he did not do so suggested that he was willing to ferry whatever drugs they were: at [40]. On the basis of the same evidence, the Trial Judge also found that the Applicant had not rebutted the s 18(2) presumption: at [43]. The Trial Judge found that the Applicant was more than a mere courier: at [87]. In any event, the Prosecution did not provide a certificate of substantive assistance: at [47]. Therefore, the Trial Judge passed the mandatory death sentence on the Applicant: at [88].

The Applicant appealed against his conviction and sentence. On 5 February 2016, the Court of Appeal, consisting of Andrew Phang Boon Leong JA, Kan Ting Chiu SJ and myself, dismissed the Applicant’s appeal in Datchinamurthy (CA), with oral decisions recorded in the Minute Sheet dated 5 February 2016. I set out the oral grounds here in full:

This is the decision of the court. The issue in this case is whether the presumption under s 18 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) has been rebutted. For the reasons set out in [36] to [42] of the Grounds of Decision, we agree with the finding of the trial judge that the appellant has not rebutted the presumption.

We note the arguments of counsel for the appellant that there was no wilful blindness on the part of the appellant. On the facts of the case, we do not think that we need to take that route. The burden is on the appellant to rebut the presumption on the balance of probabilities and taking the entire evidence before the court we are satisfied that the presumption has not been rebutted. Accordingly, the appeal is dismissed.

On 21 January 2020, the President of the Republic of Singapore ordered the sentence of death imposed on the Applicant to be carried out on 12 February 2020. On 31 January 2020, the President ordered a respite of the execution pending any further order. For completeness, I would add that the Applicant has also been involved in a series of other proceedings that dealt with various other issues surrounding his execution. None of those other proceedings touch on the question of his conviction and they are thus not relevant to the present proceedings.

On 3 February 2021, the Applicant filed the present criminal motion. The Prosecution sought and was granted an extension of time to file its written submissions by 22 February 2021, which it did. Subsequently, the Applicant sought leave to submit a written reply, and I granted leave for him to do so. I state here for the avoidance of doubt that the Applicant did not have a right to file written reply submissions. The granting of leave in this case should not be taken as an indication that such leave will be granted as a matter of course in future applications of a similar nature.

On 15 March 2021, I also directed the parties to address the court, if they wished, on the Court of Appeal’s reasoning in Datchinamurthy (CA) as recorded in the Minute Sheet dated 5 February 2016, which both the Applicant and Prosecution had omitted to refer to in their submissions. I received their respective further submissions on 22 March 2021 and considered them in coming to my conclusions.

The parties’ cases The Applicant’s case

The Applicant’s position was based essentially on the Court of Appeal’s decision in Gobi a/l Avedian v Public Prosecutor [2021] 1 SLR 180 (“Gobi”), in which the Court of Appeal held that the s 18(2) presumption did not include wilful blindness, and that wilful blindness as such should not “feature in the analysis of whether the s 18(2) presumption has been rebutted”: Gobi at [56]. Mr Ravi s/o Madasamy (“Mr Ravi”), counsel for the Applicant, deposed that the legal arguments relied upon in the application were the following:¹ a. There was a failure by the prosecution at trial to distinguish between actual knowledge and wilful blindness in both fact and law. b. The Applicant had been wrongly presumed to be wilfully blind under s 18(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed). c. The burden had been wrongly placed on the Applicant to rebut wilful blindness on a balance of probabilities. d. There was limited, if any, evidential and legal analysis into each of the mixed questions of fact and law that must be proved in order to establish wilful blindness. e. Consequently, the trial judge had wrongly found that the Applicant was guilty because he had not rebutted the ‘presumption of wilful blindness’ pursuant to s 18(2) of the MDA.

In his submissions, the Applicant took the position that the Prosecution’s case against him at trial was one of “actual knowledge”.² Indeed, he submitted that the Prosecution did not make reference to wilful blindness proper (as clarified in Adili Chibuike Ejike v Public Prosecutor [2019] 2 SLR 254 (“Adili”) and Gobi). However, in the alternative, if the Prosecution’s case was not one of actual knowledge, but included wilful blindness as an alternative, the Applicant submitted that the procedural safeguards were not met as there was no distinct inquiry into whether the facts were sufficient to establish wilful blindness.³

The Applicant also submitted that the Trial Judge’s legal analysis would differ significantly in the light of Gob...