Mohd Akebal s/o Ghulam Jilani v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang JCA
• Judgment Date: 23 March 2023
• Neutral Citation: [2023] SGCA 11
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Motion No 11 of 2023
• Hearing Date: 03 March 2023
• Citation: [2023] SGCA 11
• Year: 2023
• Plaintiff Counsel: The applicant in person
• Defendant Counsel: Mark Jayaratnam, Chin Jincheng and Chong Yong (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Criminal review,Permission for review
• Published date: 27 March 2023

Tay Yong Kwang JCA: Introduction

This is an application under s 394H(1) of the Criminal Procedure Code 2010 (2020 Rev Ed) (the “CPC”) for permission to make a review application in respect of this court’s judgment in Mohd Akebal s/o Ghulam Jilani v Public Prosecutor and another appeal [2020] 1 SLR 266 (the “Appeal Judgment”). The applicant was convicted on one charge of trafficking not less than 29.06g of diamorphine under s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (the “MDA”) punishable under s 33(1) or s 33B of the MDA (the “Charge”) and sentenced to the mandatory death penalty on 27 February 2019. His appeal against his conviction was dismissed by this court on 28 November 2019 in the Appeal Judgment.

In this application, the applicant claims that he was wrongly identified as the individual involved in the drug transaction that gave rise to the Charge. He criticises the trial judge’s factual findings and argues that he should be given permission to make an application for this court to review the Appeal Judgment.

The trial

The applicant was tried in a joint trial with two others: one Mohammed Rusli Bin Abdul Rahman (“Rusli”) and one Andi Ashwar bin Salihin (“Andi”). The trial judge convicted the applicant on the Charge in Public Prosecutor v Andi Ashwar bin Salihin and others [2019] SGHC 44 (the “Trial Judgment”). The trial judge found the facts to be as follows.

Between 21 August 2014 and the morning of 22 August 2014, Rusli instructed Andi to collect diamorphine for him. On 22 August 2014 at about 9.06am, Rusli gave a mobile phone number (the “Phone Number”) to Andi and, in a phone call, instructed Andi to make arrangements with the user of the Phone Number as to when and where to pick up the diamorphine.

At about 10.20am on 22 August 2014, Andi drove to the service road near Block 716 Woodlands Avenue 7 (“Block 716”). Earlier that day, at about 9.00 am, Senior Station Inspector David Ng (“SSI Ng”) had received information about Andi. SSI Ng and his officers tailed Andi’s car until it ended up at the service road near Block 716. SSI Ng was dropped off and walked to the void deck of Block 716. There, he spotted an Indian male who was carrying an orange plastic bag. The Indian male was standing about 5–10 metres away from SSI Ng and SSI Ng observed his face for about 30 seconds.

A few minutes later, a CNB officer who was observing Andi’s car reported that an Indian male carrying an orange plastic bag (the “Orange Bag”) had approached Andi’s car and placed that Orange Bag on the passenger seat. The Indian male then walked away and Andi drove off. I will refer to this as the “drug transaction”.

Shortly thereafter, SSI Ng saw the same Indian male at a sheltered walkway leading towards the main road. He observed the Indian male boarding bus No. 964. He reported this over his communications set, describing the Indian male as wearing a grey T-shirt with blue jeans. He instructed Staff Sergeant Goh Jun Xian Eric (“SSgt Goh”) to tail the Indian male.

SSgt Goh tailed bus No. 964 till it reached Woodlands Bus Interchange where he saw the Indian male wearing a grey T-shirt and blue jeans alight and wait for bus No. 913. When the Indian male boarded bus No. 913, SSgt Goh boarded as well and sat two rows in front of him. When the Indian male alighted, SSgt Goh followed. However, SSgt Goh lost sight of him at Block 1 Marsiling Road.

SSgt Goh then returned to the Woodlands area to continue looking for the Indian male. At about 8.25pm, he reported that he had spotted the same Indian male wearing a grey T-shirt and blue jeans. The Indian male was arrested and he turned out to be the applicant. A Nokia mobile phone which was using the Phone Number (the “Mobile Phone”) was found in a grass patch next to the applicant when he was arrested.

Separately, CNB officers had continued tailing Andi’s car after it left Block 716. CNB officers arrested Andi and his car was searched. The Orange Bag was recovered. There were two black-taped bundles in the Orange Bag. Immediately after Andi’s arrest, at about 1.30pm, a statement was recorded from him. When shown a photoboard with photographs of 13 individuals, Andi identified the photograph of the applicant as the one showing the person who had given him the Orange Bag earlier. In his long statement taken on 26 August 2014, Andi repeated that the applicant was the one who had passed him the Orange Bag.

The two black-taped bundles that were found in the Orange Bag were found to contain 14.60g and 14.46g of diamorphine respectively.

The applicant’s defence

The applicant’s defence was that he was not involved in the drug transaction at all and that he had been wrongly identified: the Trial Judgment at [17]. The Prosecution relied on the identification evidence of SSI Ng, SSgt Goh and Andi to establish that the applicant was the Indian male involved in the drug transaction. The applicant argued that the identification evidence was insufficient for the following reasons: First, he was not wearing a grey T-shirt at the material time on 22 August 2014. He was wearing a long-sleeved white shirt with blue sleeves because he was reporting for a urine test that day and had to cover up the tattoos on his arms: the Trial Judgment at [18] and [60]. Second, the Prosecution’s witnesses gave inconsistent testimony on the attire worn by the applicant during the drug transaction: the Trial Judgment at [61]. Third, Andi was suffering from drug withdrawal during the recording of his statements in which he identified the applicant: the Trial Judgment at [19].

The applicant also claimed that while he had the Mobile Phone at the time of his arrest, he was not in possession of the Mobile Phone during the drug transaction. He claimed that he had passed it to a “Bala” at 11.00 pm on 21 August 2014 and it was returned to him shortly before he was arrested on 22 August 2014: the Trial Judgment at [71].

The trial judge’s findings

In rejecting the applicant’s defence, the trial judge made the following key findings. The urine test was almost two hours after the drug transaction and the applicant could have easily changed his attire after the drug transaction and before his urine test: the Trial Judgment at [63]. The inconsistent testimony on the applicant’s attire did not diminish the veracity of the identification evidence because SSI Ng and Andi would have been focused on the applicant’s face rather than his attire. Further, three to four years had passed between the drug transaction and the witnesses’ evidence in court, so allowance had to be given for human fallibility in recollection: the Trial Judgment at [62]. The applicant’s own medical expert accepted that by the time...