Jumaat bin Mohamed Sayed and others v Attorney-General

• Jurisdiction: Singapore
• Judge: Steven Chong JCA
• Judgment Date: 25 May 2023
• Neutral Citation: [2023] SGCA 16
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 2 of 2023 (Summons No 8 of 2023)
• Hearing Date: 28 April 2023
• Citation: [2023] SGCA 16
• Year: 2023
• Plaintiff Counsel: The applicants in person
• Defendant Counsel: Hay Hung Chun, Claire Poh and Theong Li Han (Attorney-General's Chambers)
• Subject Matter: Civil Procedure,Extension of time,Filing documents out of time
• Published date: 29 May 2023

Steven Chong JCA: Introduction

CA/SUM 8/2023 (“SUM 8”) is an application seeking: (a) the reinstatement of the appeal in CA/CA 2/2023 (“CA 2”); and (b) an extension of time to file the Appellants’ Case, the Record of Appeal, Core Bundle and all other relevant documents (the “Documents”) pursuant to O 19 r 30(4) of the Rules of Court 2021 (“ROC”) to no later than eight weeks following the date on which the Foreign Counsel Applications of Mr Edward Fitzgerald KC (“Mr Fitzgerald KC”) and Mr Theodoros Kassimatis KC (“Mr Kassimatis KC”) to represent the applicants in CA 2 (the “Admission Applications”) are decided and all consequential matters arising from the Admission Applications are addressed. Notwithstanding that the extension of time is sought with reference to the outcome of the Admission Applications, to date, the Admission Applications have not been filed.

CA 2, which SUM 8 seeks to restore, is an appeal against the decision of Justice Valerie Thean (the “Judge”) to dismiss the application in HC/OA 480/2022 (“OA 480”). In OA 480, the applicants applied for permission to seek the following reliefs: (a) a declaration that the presumptions in “[ss] 18(1) and 18(2) of the Misuse of Drugs Act 1973” ought to be “read down” and “given effect as imposing an evidential burden only in [c]ompliance with” Articles 9(1) and 12(1) of the Constitution of the Republic of Singapore (2020 Rev Ed) (the “Constitution”) and the common law presumption of innocence; (b) alternatively, a declaration that the presumptions are unconstitutional for violating Articles 9(1) and 12(1) of the Constitution; and (c) a prohibiting order against the execution of death sentences upon the applicants. On 25 November 2022, the Judge provided her reasons for dismissing OA 480 in Jumaat bin Mohamed Sayed and others v Attorney-General [2022] SGHC 291 (the “Judgment”).

I note that while the applicants have applied for declaratory relief in respect of the present version of the Misuse of Drugs Act 1973 (2020 Rev Ed), the version of the Act in force at the time of their respective trials and appeals was the Misuse of Drugs Act (Cap 185, 2008 Rev Ed). For the purposes of this judgment, I shall refer to the current Act and the previous Act in force interchangeably and abbreviate this as the “MDA”, as there is no change to the relevant provision of the Act, ie, section 18.

The applicants filed the Notice of Appeal against the Judge’s decision on 23 December 2022. By a letter dated 17 January 2023, the Supreme Court Registry (the “Registry”) informed the applicants that the Record of Proceedings (“ROP”) was available and the time to file the Documents would run from the date of the notice.

Thereafter, a series of correspondence ensued between one of the applicants, Datchinamurthy a/l Kataiah (“Datchinamurthy”), and the Registry in relation to the applicants’ intended Admission Applications including a request for a waiver of the filing fees for the Admission Applications. On 14 March 2023, the time for the filing of the Documents in CA 2 lapsed. This was communicated to the parties at the Case Management Conference (“CMC”) on 20 March 2023 and by letter on 21 March 2023. Consequently, CA 2 was deemed withdrawn on 14 March 2023 pursuant to O 19 r 30(6). On 31 March 2023, SUM 8 was filed.

The principal reason relied on by the applicants in support of SUM 8 is that their non-compliance with the filing and service timelines under O 19 r 30(4) of the ROC was due to the administrative hurdles in relation to the filing of the Admission Applications.

To understand SUM 8 in its proper context, it is necessary to explain how and why SUM 8 came to be filed by the applicants. As SUM 8 is an application for the restoration of CA 2 and for an extension of time to file the Documents, it is necessary to examine the merits of the underlying matter, ie, CA 2, pursuant to which the reliefs are sought. This would necessarily entail an examination of the true substance of the reliefs sought in OA 480 which will in turn determine whether the applicants were correct to have proceeded by way of judicial review under O 24 r 5 of the ROC instead of seeking permission under s 394H of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”) to review their concluded criminal appeals. Identifying the correct procedure is significant because the relevant tests for granting leave under these two separate regimes are quite different.

Background facts

The applicants are Jumaat bin Mohamed Sayed, Lingkesvaran Rajendaren, Datchinamurthy, and Saminathan Selvaraju. They have previously been convicted and sentenced to the mandatory death penalty under s 33(1) read with the Second Schedule to the MDA. Their appeals against their convictions were separately dismissed by this court in the period spanning between February 2016 and May 2020.

Procedural history OA 480 The applicants’ case in OA 480

In OA 480, the applicants proceeded by way of judicial review under O 24 r 5 of the ROC and argued that Articles 9 and 12 of the Constitution protect the fundamental rules of natural justice, which are procedural rights aimed at securing a fair trial. This included the presumption of innocence. The applicants contended that ss 18(1) and 18(2) of the MDA violate the constitutionally-protected presumption of innocence. On their case, the presumption of innocence mandates that the prosecution proves each and every element of the offence beyond a reasonable doubt. The presumptions in ss 18(1) and 18(2), however, shift the legal burden of proof in respect of certain key elements of the offence in question to the accused person. The applicants also submitted that the presumptions in ss 18(1) and 18(2) can “stack”, in that the presumption under s 18(1) operates to shift the burden of proof in respect of possession to an accused person, and also triggers the presumption of knowledge under s 18(2).

In the alternative, the applicants argued that the presumptions should be “read down” to impose only an evidential (rather than legal) burden on the accused. This was the applicants’ main submission at the hearing below.

Further, the applicants submitted that because an accused person is required to rebut the presumptions on the balance of probabilities, an accused person can be convicted even though he has raised a reasonable doubt to rebut the presumptions. In other words, the applicants contemplate a situation where an accused person is able to raise some reasonable doubt in relation to either his knowledge or possession, but is nonetheless convicted because he is unable to rebut the presumptions on the balance of probabilities. This, the applicants argued, would be contrary to the presumption of innocence.

The applicants emphasised that the presumption of innocence should be given added weight when interpreting ss 18(1) and 18(2) of the MDA by virtue of the severity of the offence of drug trafficking as the courts should be slower to derogate from an individual’s constitutional rights when the penalties are severe.

The applicants proposed interpreting ss 18(1) and 18(2) of the MDA such that they may be rebutted where the accused is able to raise a reasonable doubt. They submitted that this was consistent with the Parliamentary intention in relation to ss 18(1) and 18(2), and contended that Parliament did not intend to seriously infringe the presumption of innocence.

The respondent’s case in OA 480

The Attorney-General (“AG”) raised several preliminary procedural issues, including the fact that the application was time-barred under O 24 r 5(2) of the ROC, given that more than three months had elapsed since the final determinations of the applicants’ respective criminal proceedings.

The AG submitted that the proper mode for the reliefs sought by the applicants should be by way of a review application under s 394H of the CPC.

There was no serious dispute that ss 18(1) and 18(2) of the MDA place a legal burden of proof on accused persons to rebut the presumptions on a balance of probabilities and that the presumptions may operate together. The AG argued, however, that the presumptions under ss 18(1) and 18(2), being presumptions of fact, do not detract from the need for the prosecution to prove its case beyond reasonable doubt. Consequently, the presumptions do not contravene Articles 9(1) or 12(1) of the Constitution. Further, the AG submitted that while the presumption of innocence is a bedrock principle of the criminal justice system, Parliament may nonetheless legislate statutory provisions which shift the burden of proof to the accused under certain circumstances, per Ong Ah Chuan and another v Public Prosecutor [1979–1980] SLR(R) 710 at [27]–[29] (“Ong Ah Chuan”).

The AG also contended that the foreign cases relied on by the applicants are unhelpful because they were decided under different constitutional contexts.

Decision below in OA 480

The Judge dismissed OA 480 for the following reasons: The application for permission to seek a prohibiting order against the execution of their death sentences which were meted out in respect of drug offences for which they were convicted amounted to a collateral attack on the earlier criminal decisions. If proper reason existed to reconsider their convictions, the proper mode for such reconsideration would be a review application under ss 394F to 394K of the CPC: Judgment at [19] and [20]. In that regard, the Judge found that the applicants were unable to satisfy a...