Moad Fadzir Bin Mustaffa v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang JA
• Judgment Date: 12 October 2020
• Neutral Citation: [2020] SGCA 97
• Plaintiff Counsel: Ravi s/o Madasamy (Carson Law Chambers)
• Date: 12 October 2020
• Docket Number: Criminal Motion No 29 of 2020
• Hearing Date: 22 September 2020,25 September 2020
• Subject Matter: Criminal motion,Criminal Procedure and Sentencing,Leave for review
• Published date: 20 October 2020
• Defendant Counsel: Wong Woon Kwong, Muhamad Imaduddien bin Abd Karim, Li Yihong, Sarah Siaw (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Citation: [2020] SGCA 97
• Year: 2020

Tay Yong Kwang JA: The Criminal Motion

On 22 September 2020, Mr Moad Fadzir Bin Mustaffa (“the applicant”) filed this application under s 394H of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) for leave to make a review application to the Court of Appeal under s 394I of the CPC. The application is supported by an affidavit by his present counsel, Mr Ravi s/o Madasamy (“Mr M Ravi”).

Under s 394H(6)(a) of the CPC, such a leave application is to be heard by a single Judge of Appeal in any case where the appellate court in question is the Court of Appeal. It is on this basis that I am dealing with this leave application.

Summary of the factual background

The intended review application seeks to review an earlier decision of the Court of Appeal (comprising Sundaresh Menon CJ, Judith Prakash JA and me) in Moad Fadzir bin Mustaffa v Public Prosecutor and other appeals [2019] SGCA 73 (“the earlier CA judgment”) delivered on 25 November 2019. The detailed facts of the applicant’s criminal case are set out in the earlier CA judgment.

Briefly, the applicant was tried jointly with Zuraimy bin Musa (“Zuraimy”) in the High Court on the following respective capital charges under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”):

Moad Fadzir bin Mustaffa

You, Moad Fadzir bin Mustaffa, are charged that you, on 12th April 2016, at or about 12.15 a.m., at the vicinity of Blk 623 Woodlands Drive 52, Singapore, together with one Zuraimy bin Musa, NRIC No. XXXXXXXXX, in furtherance of the common intention of both of you, did traffic in a controlled drug specified in Class ‘A’ of the First Schedule to the Misuse of Drugs Act (Cap 185, 2008, Rev Ed), to wit, by having in your possession for the purpose of trafficking, four packets of granular substances that were analysed and found to contain not less than 36.93 grams of diamorphine, without any authorization under the said Act or Regulations made thereunder and you have thereby committed an offence under section 5(1)(a) read with section 5(2) of the Misuse of Drugs Act read with section 34 of the Penal Code (Cap 224, 2008 Rev Ed) which offence is punishable under section 33(1) of the Misuse of Drugs Act.

Zuraimy bin Musa

You, Zuraimy bin Musa, are charged that you, on 12th April 2016, at or about 12.15 a.m., at the vicinity of Blk 623 Woodlands Drive 52, Singapore, together with one Moad Fadzir bin Mustaffa, NRIC No. XXXXXXXXX, in furtherance of the common intention of both of you, did traffic in a controlled drug specified in Class ‘A’ of the First Schedule to the Misuse of Drugs Act (Cap 185, 2008, Rev Ed), to wit, by having in your possession for the purpose of trafficking, four packets of granular substances that were analysed and found to contain not less than 36.93 grams of diamorphine, without any authorization under the said Act or Regulations made thereunder and you have thereby committed an offence under section 5(1)(a) read with section 5(2) of the Misuse of Drugs Act read with section 34 of the Penal Code (Cap 224, 2008 Rev Ed) which offence is punishable under section 33(1) of the Misuse of Drugs Act.

The applicant and Zuraimy claimed trial with each alleging that the four packets of drugs belonged to the other. The High Court found the applicant guilty on his charge and convicted him. As the applicant did not satisfy any of the requirements for alternative sentencing under s 33B(2) of the MDA, the mandatory death penalty was imposed. In respect of Zuraimy, the High Court amended his charge to one of abetting the applicant’s possession of diamorphine, convicted him on the amended charge and sentenced him to the maximum term of ten years’ imprisonment.

The applicant appealed against his conviction and sentence, disputing the elements of knowledge of the nature of the drugs and possession of the drugs for the purpose of trafficking. Zuraimy appealed against his sentence on the amended charge while the Prosecution appealed against Zuraimy’s acquittal on the original trafficking charge.

In the earlier CA judgment (at [106]), we amended the charge against the applicant by deleting all references to common intention as necessitated by the findings of the High Court and affirmed his conviction and the mandatory death sentence based on the charge as amended and reproduced below.

You, Moad Fadzir bin Mustaffa, are charged that you, on 12th April 2016, at or about 12.15 a.m., at the vicinity of Blk 623 Woodlands Drive 52, Singapore, did traffic in a controlled drug specified in Class ‘A’ of the First Schedule to the Misuse of Drugs Act (Cap 185, 2008, Rev Ed), to wit, by having in your possession for the purpose of trafficking, four packets of granular substances that were analysed and found to contain not less than 36.93 grams of diamorphine, without any authorization under the said Act or Regulations made thereunder and you have thereby committed an offence under section 5(1)(a) read with section 5(2) of the Misuse of Drugs Act which offence is punishable under section 33(1) of the Misuse of Drugs Act.

We therefore dismissed the applicant’s appeal. We also dismissed Zuraimy’s and the Prosecution’s appeals.

Events after the earlier CA judgment

For more than nine months after the appeals were dealt with in the earlier CA judgment of 25 November 2019, there was no application to the court. On 15 September 2020, the President of the Republic of Singapore (“the President”) issued her order that the death sentence on the applicant be carried into effect on Thursday, 24 September 2020 between 6.00am and 6.00pm. In the afternoon of Tuesday, 22 September 2020, barely two days before the date of execution, the applicant filed the present Criminal Motion for leave to make a review application to the Court of Appeal. This was accompanied by Mr M Ravi’s affidavit and his written submissions. On 23 September 2020, the President ordered a respite of the execution pending further order.

On Friday, 25 September 2020, the Prosecution filed an affidavit by DPP Muhamad Imaduddien bin Abd Karim (the lead counsel for the Prosecution in the abovementioned trial in the High Court), an affidavit by DPP Sarah Siaw Ming Hui (one of three DPPs who conducted the appeal in the earlier CA judgment, none of whom was involved in the trial in the High Court) and the Prosecution’s written submissions in response to and in objection to the application.

The decision of the court

The principles governing the stringent threshold for a review application have been reiterated in the recent decision of the Court of Appeal in Kreetharan s/o Kathireson v Public Prosecutor and other matters [2020] SGCA 91 (“Kreetharan”) (at [17]–[20])....