Muhammad Abdul Hadi bin Haron v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Steven Chong JCA
• Judgment Date: 03 February 2023
• Neutral Citation: [2023] SGCA 4
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Motion No 27 of 2022
• Hearing Date: 18 January 2023
• Citation: [2023] SGCA 4
• Year: 2023
• Plaintiff Counsel: The applicant in person
• Defendant Counsel: Marcus Foo and Rimplejit Kaur (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Criminal review,Leave for review,Criminal Law,Statutory offences,Misuse of Drugs Act
• Published date: 08 February 2023

Steven Chong JCA: Introduction

This is an application by Muhammad Abdul Hadi bin Haron (“the Applicant”) for leave under s 394H(1) of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”) to review an earlier judgment of the Court of Appeal in CA/CCA 36/2019 (“CCA 36”), which was reported in Muhammad Abdul Hadi bin Haron v Public Prosecutor and another appeal [2021] 1 SLR 537 (“Hadi (CA)”). This application is premised on the change in the law brought about by the decision of Gobi a/l Avedian v Public Prosecutor [2021] 1 SLR 180 (“Gobi”) in respect of the proper treatment of the concept of wilful blindness in the context of the presumption under s 18(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) (the “s 18(2) presumption”). In Gobi, the Court of Appeal held that the knowledge that is to be presumed under s 18(2) is confined to actual knowledge. The Prosecution is thus not permitted to invoke the s 18(2) presumption to presume wilful blindness.

The present application is yet another addition to the litany of applications for leave to review a concluded criminal appeal inspired by the change of the law in Gobi. In three prior applications, Khartik Jasudass and another v Public Prosecutor [2021] SGCA 13 (“Khartik”), Datchinamurthy a/l Kataiah v Public Prosecutor [2021] SGCA 30 (“Datchinamurthy”) and Rahmat bin Karimon v Public Prosecutor [2021] 2 SLR 860 (“Rahmat”), the applicants brought leave applications on the basis that following Gobi, the presumption of knowledge under the s 18(2) presumption was not open to the Prosecution as the Prosecution’s case at the trial had purportedly been based on wilful blindness rather than on actual knowledge. Those leave applications all failed for the same reason: that the Prosecution’s cases and the court’s decisions were in fact based on actual knowledge and not wilful blindness. Those applicants also regrettably all failed to appreciate the specific circumstances of Gobi that caused prejudice to the accused in question – that the Prosecution’s case at the trial was one of wilful blindness, but on appeal, its case had changed to one of actual knowledge.

The present application is unfortunately, no different. Similar to the applicants in Khartik, Datchinamurthy and Rahmat, the Applicant submits the Prosecution ran an alternative case of wilful blindness which it sought to establish through s 18(2) of the MDA, which was clarified to be impermissible in the decision of Gobi. For the reasons below, I find that the Prosecution’s case throughout the proceedings had in fact been based on actual knowledge, and that the Applicant has therefore failed to demonstrate any legitimate basis for the exercise of the court’s power of review.

Factual and procedural background Background facts

The Applicant was instructed by the second appellant in CCA 36, Muhammad Salleh bin Hamid (“Salleh”) to collect two black-taped bundles from one “Kakak” in Johor Bahru, Malaysia. On 22 July 2015 at about 10.27am, the Applicant entered Johor Bahru on his motorcycle. The Applicant picked up two bundles wrapped in black tape from a woman known as “Kakak” and hid the two bundles in his motorcycle. After the Applicant collected the drugs, he sent Salleh messages (in Malay) stating: “total I have 2 pack only”; and “250 each”.

The Applicant returned to Singapore on the same day. Later that evening, at about 7.10pm, officers from the Central Narcotics Bureau (“CNB”) arrested the Applicant at his residence. During questioning, the Applicant told one of the CNB officers that the two bundles that he had collected from Johor Bahru were in his motorcycle. The Applicant led the CNB officers to his motorcycle where the two bundles were recovered.

Several statements were recorded from the Applicant. On 22 July 2015 at 8.15pm, the Applicant was served a notice regarding s 33B of the MDA. The Applicant provided a response which was recorded in writing, stating that he did not know the contents of the bundles, only that it was an “illegal thing”. Two further contemporaneous statements were recorded on the same night, and the Applicant’s cautioned statement was recorded the next day, on 23 July 2015. The Applicant’s long statement was recorded on 27 July 2015, five days after his arrest. The Applicant raised his defence for the first time in this statement, that he thought that the bundles contained “gold and cash”. At the trial, the Applicant did not challenge the admissibility of his statements.

Procedural history

The Applicant was jointly tried with Salleh. At the trial, the Prosecution’s case in relation to the Applicant was that he had actual knowledge that the two bundles contained methamphetamine, and that in the alternative, s 18(2) of the MDA applied to presume that the Applicant had actual knowledge of the nature of the drugs, and the Applicant was unable to rebut this presumption. The Applicant’s defence was that he thought that the bundles contained gold and cash, as he had collected them in the course of his work as a courier for Salleh, whom he knew to be a gold and currency investor.

On 10 January 2020, the trial judge (“the Trial Judge”) found that the Applicant had failed to rebut the s 18(2) presumption on a balance of probabilities and convicted the Applicant of the charge against him. The Trial Judge’s primary findings were: that the Applicant’s defence was an afterthought as he had only raised it five days after his arrest; that the Applicant gave internally inconsistent explanations that affected the credibility of his account; and that the Applicant told deliberate lies on a material issue, which led to the irresistible conclusion that he was jointly involved with Salleh in drug trafficking (Public Prosecutor v Muhammad Abdul Hadi bin Haron and another [2020] 5 SLR 710 (“Hadi (HC)”) at [56]–[63]).

The Applicant appealed against his conviction and sentence. On 23 November 2020, this court dismissed the Applicant’s appeal. This court agreed with the Trial Judge’s finding that the Applicant failed to rebut the s 18(2) presumption. As there was no scope to reduce the sentence any further, the Applicant’s appeal on sentence was also dismissed. On 2 December 2022, the Applicant filed the present criminal motion. The Prosecution sought and was granted an extension of time to file its written submissions by 19 January 2023.

Applicable law

As this court stated in Kreetharan s/o Kathireson v Public Prosecutor and other matters [2020] 2 SLR 1175 at [17], only an application that discloses a “legitimate basis for the exercise of this court’s power of review” should be allowed to proceed. To determine if such a legitimate basis exists, the court hearing the leave application would have to consider the requirements for a review application stipulated in s 394J of the CPC.

Under s 394J(2) of the CPC, the applicant in a review application has to demonstrate to the appellate court that there is (a) sufficient material on which (b) the appellate court may conclude that there has been a miscarriage of justice in the criminal matter in respect of which the earlier decision was made (see also Gobi at [24]).

The requirement of sufficiency is set out in s 394J(3) of the CPC. For the material to be “sufficient”, it must satisfy all the requirements set out in ss 394J(3)(a)–(c) of the CPC: (a) before the filing of the application for leave to make the review application, the material has not been canvassed at any stage of the proceedings in the criminal matter in respect of which the earlier decision was made; (b) even with reasonable diligence, the material could not have been adduced in court earlier; (c) the material is compelling, in that the material is reliable, substantial, powerfully probative, and capable of showing almost conclusively that there has been a miscarriage of justice in the criminal matter in respect of which the earlier decision was made.

Crucially, where an applicant is relying on a change in the law, the text of s 394J(4) of the CPC also provides an additional requirement that the legal arguments are based on a change in the law that arose after the conclusion of all proceedings relating to the criminal matter in respect of which the earlier decision was made (see also Rahmat at [16]).

To determine whether there was a miscarriage of justice, the appellate court has to consider if the decision in the criminal appeal that is sought to be reopened is “demonstrably wrong” by considering whether it is apparent, based only on the evidence tendered in support of the review application and without any further inquiry that “there is a powerful probability that the earlier decision is wrong” (see ss 394J(5)(a) and 394J(6)(a)–(b) of the CPC). In the alternative, the court may conclude that there has been a miscarriage of justice if the earlier decision is “tainted by fraud or a breach of the rules of natural justice” (see s 394J(5)(b) of the CPC).

The parties’ cases in this application

The Applicant accepts that the Prosecution’s main case was one of actual knowledge. However, the Applicant submits that the Prosecution sought to establish an alternative case of wilful blindness using s 18(2) of the MDA. Given the clarifications made on the law of wilful blindness in Gobi, the Applicant submits that this court erred in finding that the Applicant failed to rebut the s 18(2) presumption.

The Prosecution submits that it never ran a case of wilful blindness at any point of time. Instead, the s 18(2) presumption was relied on to presume actual knowledge. Further, there was no risk of any miscarriage of justice to the...