Imran bin Mohd Arip v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 23 September 2021
• Neutral Citation: [2021] SGCA 91
• Docket Number: Criminal Appeal Nos 22 and 24 of 2019
• Subject Matter: Alteration,Charge,Criminal Procedure and Sentencing
• Published date: 28 September 2021
• Hearing Date: 13 July 2021
• Defendant Counsel: Wong Woon Kwong and Chin Jincheng (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Daniel Chia Hsiung Wen and Ker Yanguang (Morgan Lewis Stamford LLC) (instructed), Prasad s/o Karunakarn (K Prasad & Co),Eugene Singarajah Thuraisingam, Johannes Hadi and Koh Wen Rui Genghis (Eugene Thuraisingam LLP)

Steven Chong JCA (delivering the grounds of decision of the court): Introduction

The two appeals before us are a sequel to our decision in Imran bin Mohd Arip v Public Prosecutor and other appeals [2020] SGCA 120 (“CA Judgment”) in which we acquitted one of three co-accused persons, Pragas Krissamy (“Pragas”), of a capital charge under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). This sequel concerns the appellant in CA/CCA 22/2019 (“CCA 22”), Imran bin Mohd Arip (“Imran”), and the appellant in CA/CCA 24/2019 (“CCA 24”), Tamilselvam a/l Yagasvranan (“Tamil”).

As a result of Pragas’s acquittal; our findings in the CA Judgment against Imran and Tamil; the fact that the charge against Imran refers to a conspiracy between Tamil and Pragas; and the fact that the charge against Tamil refers to a shared common intention with Pragas, it became necessary to consider the appropriate amendments that should be made to Imran’s and Tamil’s charges (“the Amendment Query”).

After hearing the parties, we exercised our powers under s 390(4) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) to frame amended charges against both Imran and Tamil. We ordered a joint retrial of both amended charges before a different judge of the General Division of the High Court pursuant to s 390(7)(a) of the CPC. We now furnish our grounds of decision.

Facts and background

The detailed factual background pertaining to Imran’s and Tamil’s charges can be found at [3]–[13] of the CA Judgment. We lay out only the most salient portions relevant to the Amendment Query.

On 8 February 2017, at about 7.05am, Tamil and Pragas entered the carpark of Block 518A Jurong West St 52, after parking their motorcycle at the motorcycle lots behind Block 517 Jurong West St 52. Tamil and Pragas walked towards Block 518 Jurong West St 52 (“Block 518”), with Pragas carrying a black haversack (CA Judgment at [7]). When they arrived at Blk 518, Tamil took the lift up (without Pragas).

At about 7.09am, Tamil came out of the lift on the fourth floor of Block 518 and met Imran who came out of #04-139 of Block 518 (“the Unit”). Tamil then called Pragas, who answered with a handphone that Tamil had passed to him prior to entering the lift. Pragas then walked up the staircase to the fourth floor of Block 518 (CA Judgment at [7]–[8]).

Pragas met Imran, opened his black haversack, and took out a white plastic bag which he handed over to Imran. Pragas and Tamil then walked down the staircase of the block and headed back to their parked motorcycles where they were arrested by officers from the Central Narcotics Bureau (“CNB”) (CA Judgment at [9]–[10]).

The CNB officers seized $6,700 from Tamil, amongst other things. After searches of the Unit, they also seized a white plastic bag (marked “D1”) and a black plastic bag containing two bundles which in turn each contained a packet of granular/powdery substance. The two packets collectively contained 894.2g of granular/powdery substance which was analysed and found to collectively contain not less than 19.42g of diamorphine (“the Drugs”) (CA Judgment at [3], [10]–[13]).

Imran was charged under s 5(1)(a) read with s 12 of the MDA for abetment by conspiracy with Pragas and Tamil to traffic the Drugs. Pragas and Tamil were charged under s 5(1)(a) of the MDA read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed) for delivering the Drugs. After a joint trial before the High Court judge (“the Judge”), all three co-accused persons were convicted of their capital charges (CA Judgment at [3]–[4]).

The findings in the CA Judgment

On 18 December 2020, we released the CA Judgment, allowing Pragas’s appeal and acquitting him on the basis that the Judge had erred in finding that it was proven beyond a reasonable doubt that Pragas was wilfully blind as to the nature of the Drugs (CA Judgment at [105]–[126]). Numerous findings were also made in relation to Imran and Tamil.

In respect of Imran, we held that: The first six statements given by Imran (“the Six Statements”) were voluntarily made and contained highly textured confessions which possessed a ring of truth (CA Judgment at [49]). Imran’s only defence, ie, that he had only intended to order one pound of heroin (the street name for diamorphine) and not two pounds, ought to be rejected in the light of the contents of the Six Statements (reproduced below at [12]) and objective evidence in the form of the sum of $6,700 which was passed from Imran to Tamil and found on Tamil following his arrest. This reflected the market price for two pounds of heroin at the time of the offence (CA Judgment at [50]–[53]). Imran’s explanation that the $6,700 was partly a loan to Tamil and partly payment for an earlier delivery of one pound of heroin ought to be rejected as this was: (i) a belated explanation that emerged only in his fifth (and final) investigative statement dated 18 December 2017; and (ii) blatantly contradicted by his consistent account in the Six Statements that he had ordered two pounds of heroin and knew that this was exactly what he was getting in exchange for the sum of $6,700 (CA Judgment at [53]).

The Six Statements showed that Imran had intended to order two pounds of heroin from Tamil in exchange for a sum of $6,700 (CA Judgment at [51]): (a) In Imran’s contemporaneous statement recorded on 8 February 2017, Imran admitted that Tamil had delivered two bundles of heroin to him, and that he paid Tamil $6,700 for the heroin. (b) In his cautioned statement recorded on the following day, Imran admitted, without qualification, to an initial charge of trafficking three bundles and 30 packets of granular/powdery substance believed to contain heroin. (c) In his investigative statements recorded on 10 February 2017, Imran explained in some level of detail that he was to meet Tamil and Pragas as they were supposed to pass him ‘2 pounds’ of heroin in exchange for a sum of $6,700. Significantly, Imran admitted to knowing that the white plastic bag would contain two bundles of heroin when Pragas passed it to him. More specifically, Imran’s account was that Tamil had called him the day before, on 7 February 2017. While Imran had initially informed Tamil that he did not want to buy any more heroin, he eventually agreed to do so as Tamil claimed that he had no place to store the heroin. The investigative statements also reveal that although Imran had initially agreed to take only ‘1 carton’ (a term used to disguise the delivery of ‘bundles’ of heroin), he eventually agreed to buy ‘2 cartons’ for $6,700. (d) In the investigative statement recorded on 11 February 2017, Imran identified the $6,700 seized and marked as ‘E1’ as the sum of money which he had passed to Tamil before his own arrest. According to Imran, this was the money that was meant to pay Tamil for two pounds of heroin.

[emphasis in original omitted]

In respect of Tamil, we found that: The Six Statements could be relied on against Tamil and ought to be given significant weight as they essentially implicated its maker (ie, Imran) in a capital charge and only incidentally implicated Tamil in relation to the Drugs (CA Judgment at [62]–[65]). The white plastic bag that Pragas had passed to Imran contained the Drugs, not contraband cigarettes. As such, the Drugs were delivered to Imran on 8 February 2017 (CA Judgment at [76]–[79]). The $6,700 (representing the market price for two pounds of heroin in 2017) was found on Tamil shortly after the white plastic bag marked “D1” was delivered to Imran (CA Judgment at [61] and [78]).

The events subsequent to the CA Judgment

In the CA Judgment, we invited the parties to tender submissions on the Amendment Query. After the Prosecution filed its submissions, the Defence for Imran and Tamil sought a three-week extension of time till 26 February 2021 to file their submissions in response. In particular, Eugene Thuraisingam LLP (“ET LLP”) had just been instructed to act for Tamil on 22 January 2021 and needed some time to get up to speed on Tamil’s case. This request was granted.

On 25 February 2021, a day before ET LLP’s submissions were due, ET LLP sought a further four-week extension of time on the basis that Tamil had given them instructions regarding the Amendment Query which had to be investigated. ET LLP foreshadowed that as Tamil’s instructions “relate to allegations against [Tamil’s] previous solicitors, [ET LLP] may also need to write to his previous solicitors for clarification” [emphasis added]. A final three-week extension of time was granted and ET LLP eventually filed its submissions on 19 March 2021 (“ET LLP Submissions”).

The ET LLP Submissions contained grave allegations against Tamil’s counsel at the original trial before the Judge (“the Allegations”), Mr Dhanaraj James Selvaraj and by implication, his assisting counsel, Mr Mohammad Shafiq bin Haja Maideen and Mr Sheik Umar bin Mohamed Bagushair (collectively “the Original Counsel”). The relevant paragraphs therein stated as follows: 34. Tamilselvam instructs that he had aligned himself with Pragas and taken those positions at trial for reasons of litigation strategy and because the charge preferred against him at trial was one of common intention. 35. Further, in the course of preparing these submissions, Tamilselvam instructs that: - a) When Tamilselvam instructed his previous counsel, Mr. James Selvaraj (‘Mr. Selvaraj’), that he wishes to call one ‘Prakash’ – the supplier of the two cartons of cigarettes – as a defence witness, Mr. Selvaraj informed Tamilselvam that there was no need to implicate the supplier and that ‘we don’t have time for all that’; b) Mr. Selvaraj had prepared a document containing the answers to possible Examination-In-Chief (‘EIC’) questions and told Tamilselvam [to] answer all the possible questions [in the] EIC in accordance with what Mr. Selvaraj had prepared for Tamilselvam; c) Mr....