Ilechukwu Uchechukwu Chukwudi v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 02 August 2017
• Neutral Citation: [2017] SGCA 44
• Plaintiff Counsel: Eugene Singarajah Thuraisingam and Suang Wijaya (Eugene Thuraisingam LLP)
• Date: 02 August 2017
• Docket Number: Criminal Motion No 4 of 2017
• Hearing Date: 04 May 2017
• Subject Matter: Criminal Procedure and Sentencing,Power to reopen concluded criminal appeals,Court of Appeal,Courts and Jurisdiction,Adducing fresh evidence
• Published date: 10 November 2017
• Defendant Counsel: Ng Cheng Thiam and Chin Jincheng (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Citation: [2017] SGCA 44
• Year: 2017

Chao Hick Tin JA (delivering the judgment of the court): Introduction

In Kho Jabing v Public Prosecutor [2016] 3 SLR 135 (“Kho Jabing”) at [2], this court established that in exceptional cases, it would review its previous decision in a concluded criminal appeal where it was necessary to correct a miscarriage of justice. In recent years, applications to review concluded criminal appeals have arisen on several occasions (see Kho Jabing, Ramalingam Ravinthran v Attorney-General [2012] 2 SLR 49 (“Ramalingam”), Yong Vui Kong v Public Prosecutor [2012] 2 SLR 872 (“Yong Vui Kong (Prosecutorial Discretion)”) and Quek Hock Lye v Public Prosecutor [2015] 2 SLR 563 (“Quek Hock Lye”)). These applications were all based on new legal arguments.

The present criminal motion (“the Present Motion”) differs from these cases in that the sole basis for review relied upon by the applicant, Ilechukwu Uchechukwu Chukwudi (“the Applicant”), is fresh evidence. The question before us is whether the Applicant’s case is sufficiently exceptional to warrant a review under the principles set out in Kho Jabing.

The facts

On 13 November 2011, the Applicant, a Nigerian national, flew from Lagos, Nigeria to Singapore. Prior to his departure from Lagos, he checked in a black luggage bag (“the Black Luggage”), which he collected upon his arrival in Singapore. That night, the Applicant passed the Black Luggage to one Hamidah Binte Awang (“Hamidah”). Hamidah placed the Black Luggage in her car and drove to Woodlands Checkpoint. At Woodlands Checkpoint, Hamidah’s car was searched. The Black Luggage was cut open at the sides and drugs were discovered therein.

The Applicant was subsequently charged with trafficking in not less than 1,963.3g of methamphetamine under s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). Hamidah was charged with attempting to export not less than 1,963.3g of methamphetamine, an offence under s 7 read with s 12 of the MDA and punishable under either s 33 or s 33B of the MDA. Both the Applicant and Hamidah claimed trial.

On 21 June 2013, the Applicant was asked by ASP Deng Kaile (“ASP Deng”), the Investigating Officer handling the investigations into his case, if he wished to be sent for a psychiatric evaluation.¹ The Applicant indicated that he did not want a psychiatric evaluation.

The trial took place in late 2014. The main issue before the trial judge (“the Judge”) was whether the Applicant and Hamidah had knowledge of the drugs concealed in the Black Luggage. At the end of the trial, the Judge acquitted the Applicant but convicted Hamidah (see Public Prosecutor v Hamidah Binte Awang and another [2015] SGHC 4).

The Prosecution appealed against the Applicant’s acquittal by way of Criminal Appeal No 10 of 2014 (“CCA 10/2014”). On 29 June 2015, we allowed the appeal and convicted the Applicant of the charge preferred against him (see Public Prosecutor v Ilechukwu Uchechukwu Chukwudi [2015] SGCA 33 (“CA (Conviction)”)). We should point out that one of our reasons for allowing the appeal was that we found that the Judge had failed to properly consider the impact of the Applicant’s lies and omissions in his statements to the Central Narcotics Bureau (“CNB”) (CA (Conviction) at [88]).

The matter was remitted to the Judge for sentencing. Given the quantity of drugs trafficked, the Applicant could be sentenced to suffer the penalty of death. On 18 September 2015, with a view to considering whether the Applicant had grounds to argue that he should instead be sentenced to life imprisonment under s 33B(3)(b) of the MDA on the basis of diminished responsibility, the Applicant’s lawyer, Mr Eugene Thuraisingam (“Mr Thuraisingam”), requested Changi Prison’s Complex Medical Centre for a psychiatric report on the Applicant.² The Complex Medical Centre issued its report (“the CMC Report”) on 30 November 2015.³

To secure a second opinion, Mr Thuraisingam also obtained a psychiatric report dated 28 March 2016 from Dr Ung Eng Khean (“Dr Ung”), a psychiatrist in private practice.⁴ Dr Ung’s report (“the Private Report”) was served on the Prosecution on 25 April 2016.⁵

The Prosecution then arranged for the Applicant to be assessed by the Institute of Mental Health (“IMH”), which subsequently issued a report dated 6 March 2017 (“the IMH Report”). That report was prepared by Dr Jaydip Sarkar (“Dr Sarkar”).

On 5 April 2017, the Applicant filed the Present Motion requesting (in the main) this court to rehear the Prosecution’s appeal in CCA 10/2014 against the Judge’s acquittal of the Applicant.⁶ In support of his motion, the Applicant relied on the IMH Report as fresh evidence of his innocence.

The law on reopening concluded criminal appeals

The law on reopening concluded criminal appeals was extensively reviewed by a five-judge coram of this court in Kho Jabing (at [10]–[24]), where we traced the “gradual shift” in this court’s attitude towards reopening concluded criminal appeals over the years. This court had in the past considered itself functus officio in such situations, as held in four cases decided in the 1990s and early 2000s. A limited exception was later recognised in Koh Zhan Quan Tony v Public Prosecutor and another motion [2006] 2 SLR(R) 830, which is not relevant for present purposes. In Yong Vui Kong v Public Prosecutor [2010] 2 SLR 192, this court expressed obiter support for a wider jurisdiction to reopen concluded criminal appeals. Following that decision, concluded criminal appeals were reviewed in three cases (namely, Ramalingam, Yong Vui Kong (Prosecutorial Discretion) and Quek Hock Lye), all of which involved questions of constitutional law that had not been considered at the hearing of the respective appeals.

In Kho Jabing, after tracing the developments in Singapore in this area of law, this court examined the position in several foreign jurisdictions before restating the test for determining whether it would review a concluded criminal appeal as follows (at [44]) – there had to be “sufficient material on which the court can say that there has been a miscarriage of justice”. The court went on to elaborate on this test in these terms (likewise at [44]):

… Analytically, we see this test as comprising two essential components: (a) The first is the evidential requirement of “sufficient material”. The court must be satisfied that the material adduced in support of the application for review is both “new” and “compelling” before it will consider the application. If the material presented does not satisfy these two indicia, then the application fails in limine and the inquiry stops there. The burden of production rests on the applicant. (b) The second is the substantive requirement that a “miscarriage of justice” must have been occasioned. This is the threshold which must be crossed before the court will consider that a concluded criminal appeal ought to be reopened. The burden of proving this likewise rests on the applicant.

The test laid down in Kho Jabing represents this court’s perception of the right balance between the prevention of error on the one hand and the according of proper respect to the principle of finality of proceedings on the other. We also discussed in Kho Jabing the policy tension in a case involving the death penalty such as the Present Motion (at [50]):

In our judgment, the principle of finality is no less important in cases involving the death penalty. There is no question that as a modality of punishment, capital punishment is different because of its irreversibility. For this reason, capital cases deserve the most anxious and searching scrutiny. This is also reflected in our laws. … But, once the processes of appeal and/or review have run their course, the legal process must recede into the background, and attention must then shift from the legal contest to the search for repose. We do not think it benefits anyone – not accused persons, not their families nor society at large – for there to be an endless inquiry into the same facts and the same law with the same raised hopes and dashed expectations that accompany each such fruitless endeavour.

With these policy considerations in mind, we now proceed to apply the test set out in Kho Jabing to the Present Motion. Should this court’s decision in CA (Conviction) be reopened?

Our analysis of the Present Motion The IMH Report

The only fresh evidence relied on by the Applicant in the Present Motion is the IMH Report. Given its central importance, we begin by elaborating on its genesis and its contents.

It will be recalled that in March 2016, the Applicant obtained the Private Report from Dr Ung (see [9] above). For this report, Dr Ung was instructed to opine on whether the Applicant “was (on the balance of probabilities) suffering from an abnormality of mind as would substantially impair his mental responsibility for his acts and omissions in respect to the offence”.⁷ In the Private Report, Dr Ung stated that the Applicant suffered from Attention Deficit Hyperactivity Disorder (“ADHD”) at the time of the offence, and that the Applicant’s ADHD had “substantially impaired” his mental responsibility for the offence.⁸

In response, the Prosecution arranged for the Applicant to be assessed by Dr Sarkar, culminating in the IMH Report. The instructions given to Dr Sarkar were more general than those given to Dr Ung (which focused on the Applicant’s state of mind at the time of the offence). Dr Sarkar was “provided no specific instructions other than to carry out a ‘psychiatric assessment of the [Applicant]’”⁹ [emphasis in original]. In the IMH Report, Dr Sarkar disagreed with Dr Ung and opined that the Applicant did not suffer from ADHD. Instead, he diagnosed the Applicant as suffering from Mild Neurocognitive Disorder (“MND”) which was “extant at the time of [the] commission of [the] offence”,¹⁰ but concluded that the Applicant’s MND had not substantially...