Khartik Jasudass and another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang JCA
• Judgment Date: 25 February 2021
• Neutral Citation: [2021] SGCA 13
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Motion No. 19 of 2020
• Published date: 02 March 2021
• Year: 2021
• Hearing Date: 11 December 2020,29 January 2021
• Plaintiff Counsel: Suang Wijaya (Eugene Thuraisingam LLP)
• Defendant Counsel: Anandan Bala, Marcus Foo, Sarah Siaw (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Criminal motion,Review of concluded appeal
• Citation: [2021] SGCA 13

Tay Yong Kwang JCA: Introduction

This Criminal Motion (“this CM”) is an application made pursuant to s 394H(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) by Khartik Jasudass (the “First Applicant”) and Puniyamurthy A/L Maruthai (the “Second Applicant”) (collectively, the “Applicants”) for leave to apply for a review of the Court of Appeal’s decision in CA/CCA 26/2015 (“CCA 26”) and CA/CCA 27/2015 (“CCA 27”). In that decision, the Court of Appeal dismissed the Applicants’ appeals against conviction in the circumstances described below.

This CM was filed by the Applicants on 27 July 2020. On 29 July 2020, the Prosecution wrote to the Supreme Court Registry stating the following:

…

2. Pursuant to r 11(5) and r 11(6) of the Criminal Procedure Rules 2018, the respondent may file written submissions and an affidavit in relation to CM 19 within three days after the date on which it was filed (ie, by 30 July 2020). Pursuant to r 11(1) of the said Rules, CM 19 must be fixed for hearing within 21 days after the date on which it was filed (ie, by 17 August 2020). 3. We write to respectfully request that CM 19 be held in abeyance pending the Court of Appeal’s delivery of judgment in CA/CM 3/2020 (“CM 3”), Gobi A/L Avedian v Public Prosecutor. 4. We have spoken with counsel for the applicants on 29 July 2020 and parties are in agreement that the judgment in CM 3 may have implications on CM 19. The submissions filed by the applicants on 27 July 2020 (in support of CM 19) make reference to CM 3 as one of the cases constituting a “change in the law” for the purposes of s 394J(4) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed): see the applicant’s submissions at [9.4], [43], [46.4] and [48]. It would therefore be useful to wait for the guidance of the Court of Appeal in CM 3, before deciding if and how CM 19 should be proceeded with. 5. Suspending the application and related timelines in CM 19, until judgment has been delivered in CM 3, would better allow parties to formulate their respective positions and possibly come to agreed positions and/or narrow the issues for adjudication. 6. In the circumstances, we respectfully request that this Honourable Court suspend the timelines for the filing of the respondent’s submissions, and the hearing of CM 19, until after judgment is delivered in CM 3. After the said judgment has been delivered, if the applicants are still minded to proceed with CM 19 at that stage, we will seek the court’s directions on the filing of submissions in CM 19 and the hearing thereof (including any directions pertaining to amendment of applicants’ submissions). 7. A copy of our e-mail correspondence with counsel for the applicants, recording the parties’ agreement as mentioned above, is enclosed for reference.

…

[emphasis in original]

On 19 October 2020, the five-Judge Court of Appeal delivered its reserved judgment in Gobi a/l Avedian v Public Prosecutor [2020] SGCA 102 (“Gobi”). Thereafter, a Case Management Conference (“CMC”) was held on 30 October 2020 before an Assistant Registrar (“AR”). At the CMC, the parties agreed that this CM did not have to proceed on an expedited basis as both Applicants are serving life imprisonment sentences. The parties also agreed on the proposed timelines for submissions and these were incorporated in the Court's directions communicated to the parties through the Registry's letter dated 5 November 2020. Pursuant to the Court's directions, the Applicants filed an affidavit affirmed by their counsel, Mr Suang Wijaya and their revised submissions on 11 December 2020 and the Prosecution filed its submissions on 29 January 2021.

Facts and procedural history

At the joint trial in the High Court in 2015, the Applicants claimed trial to one charge each of trafficking in diamorphine in furtherance of their common intention, an offence under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (the “MDA”) and read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”). On 3 August 2015, they were convicted by the High Court and each was subsequently sentenced to life imprisonment and 15 strokes of the cane. The decision of the High Court judge (the “Judge”) is found in Public Prosecutor v Khartik Jasudass and Puniyamurthy A/L Maruthai [2015] SGHC 199 (the “Judgment”).

Briefly, the facts are as follows. On 27 August 2012, the Applicants rode into Singapore on a motorcycle which had three bundles of drugs hidden in it. They delivered one bundle to a male Malay and collected S$2,500 from him in exchange. Before they could deliver the other two bundles, officers from the Central Narcotics Bureau arrested them. These two bundles were found to contain a total of 26.21g of diamorphine and they formed the subject matter of the charges against the Applicants.

The charges stated that on 27 August 2012, at about 6.20pm, the accused persons had in their possession for the purpose of trafficking, two packets of granular or powdery substances weighing a total of 454.6g which were analysed and found to contain not less than 26.21g of diamorphine. The Judge found that the Prosecution had not proved beyond reasonable doubt that the Applicants knew or were wilfully blind to the nature of the drug that they were trafficking: [59] and [73] of the Judgment. However, the Judge held that the presumption in s 18(2) of the MDA was not rebutted by either of them. On sentence, the Judge found that the Applicants satisfied the requirements under s 33B(2) of the MDA. Accordingly, the Judge imposed on the Applicants the sentence of life imprisonment and 15 strokes of the cane.

The Applicants appealed against their convictions and sentences. The Second Applicant’s petition of appeal indicated that he was appealing only on the ground that his sentence was manifestly excessive although his notice of appeal was an appeal against both conviction and sentence.

On 9 September 2016, the Court of Appeal (comprising Chao Hick Tin JA, Judith Prakash JA and me) delivered its brief oral judgment in the following terms:

The law on the interpretation and application of s 18(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) has been well explored and ruled upon in previous cases, one of the latest being Dinesh Pillai a/l Raja Retnam v Public Prosecutor [2012] 2 SLR 903. The facts of this case show that both appellants knew that they were carrying illegal drugs. They did not bother to ascertain or make further enquiries as to what nature of the drug it was. In these circumstances, the trial judge held that the appellants had failed to rebut the presumption prescribed in s 18(2). We do not see how we could disturb that finding. A mere assertion by the appellants that they did not in fact know the exact nature of the drug is not good enough when they made no efforts at all to ascertain what exact drug they were carrying.

Accordingly, we will dismiss the appeals of both appellants.

The Applicants’ arguments

In seeking leave to file a review application, the Applicants make three main arguments which are summarised below: First, the Prosecution did not challenge the Applicants’ evidence at the trial that they did not know the type of drugs that they were carrying.¹ The Prosecution’s case focussed on the Applicants not caring or bothering to find out what type of drugs they were carrying. It followed from this that the presumption under s 18(2) of the MDA was rebutted. Second, the Judge erred in her reasoning.² The Judge did not state expressly whether the Applicants had proved successfully that they did not actually know the nature of the drugs. Instead, the Applicants were required to go further to prove that they could not reasonably be expected to have known the nature of the drugs, with an objective inquiry imposed on the reasonableness of the Applicants’ actions. Third, the Judge erred by applying the doctrine of wilful blindness to determine whether the Applicants had rebutted the presumption under s 18(2) of the MDA.³

The above indicated collectively that CCA 26 and CCA 27 were decided incorrectly because the law has developed significantly after the appeals were dismissed.⁴ The Applicants point specifically to the decisions of Masoud Rahimi bin Mehrzad v Public Prosecutor and another appeal [2017] 1 SLR 257, Obeng Comfort v Public Prosecutor [2017] 1 SLR 633 (“Obeng”), Adili Chibuike Ejike v Public Prosecutor [2019] 2 SLR 254 (“Adili”) and Gobi.

The Prosecution’s arguments

The Prosecution argues that none of the arguments raised by the Applicants is sufficient to justify the re-opening of the concluded criminal appeals. The Prosecution’s response to the Applicants’ arguments is as follows: First, the Applicants had misconstrued the Prosecution’s case, which was one of actual knowledge as established by the presumption in s 18(2) of the MDA.⁵ Second, the Applicants had read the Judge’s findings wrongly.⁶ The Judge did not accept that they had proved on a balance of probabilities that they did not know the nature of the drugs. Third, the Applicants mischaracterised the Judge’s reasoning when they claimed that she applied the doctrine of wilful blindness in determining whether the s 18(2) presumption was rebutted.⁷

The Prosecution also argues, on the basis of the evidence at the trial, that the Applicants could not possibly rebut the presumption in s 18(2) of the MDA.⁸ No positive belief was asserted and their concessions on cross-examination showed that they were indifferent as to the items that they were carrying.

The Prosecution relies on Gobi at [26] which stated that the mere fact that there has been a change...