Muhammad Nabill bin Mohd Fuad v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 31 March 2020
• Neutral Citation: [2020] SGCA 25
• Date: 31 March 2020
• Docket Number: Criminal Appeal No 40 of 2018
• Published date: 03 April 2020
• Plaintiff Counsel: Andre Darius Jumabhoy and Priscilla Chia Wen Qi (Peter Low & Choo LLC)
• Defendant Counsel: Kow Keng Siong, Lau Wing Yum, Sarah Ong, Chan Yi Cheng, Desmond Chong and Wu Yu Jie (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Hearing Date: 19 August 2019,23 December 2019
• Subject Matter: Administrative Law,Natural justice,Disclosure,Misuse of Drugs Act,Statutory offences,Criminal Law,Criminal Procedure and Sentencing

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

The appellant, Muhammad Nabill bin Mohd Fuad (“the Appellant”), claimed trial to two capital charges of trafficking in a controlled drug under s 5(1)(a) read with s 5(2), and punishable under s 33(1) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). The first charge was for having in his possession for the purpose of trafficking 64 packets containing 1,827.21g of granular/powdery substance, which was analysed and found to contain not less than 63.41g of diamorphine (“the diamorphine”). The second charge was for having in his possession for the purpose of trafficking nine blocks containing not less than 2,251.90g of vegetable matter, which was analysed and found to be cannabis (“the cannabis”).

At the trial, the Appellant disputed all the elements for both charges. The High Court judge (“the Judge”) convicted the Appellant of both charges. She also found that the Appellant was not a courier, and in any case, the Public Prosecutor had not issued a Certificate of Substantive Assistance. Accordingly, she imposed the mandatory death sentence on the Appellant: see Public Prosecutor v Muhammad Nabill bin Mohd Fuad [2018] SGHC 268 (“GD”) at [2].

The Appellant has appealed against his conviction as well as his sentence. On appeal, the Appellant does not dispute that he had possession of the diamorphine and that he knew what it was. The sole issue in relation to the first charge is whether the Appellant possessed the diamorphine for the purpose of trafficking. As for the second charge, the Appellant accepts that he was in possession of the cannabis, but contends that he did not have the requisite knowledge of the nature of the drugs; nor did he possess the cannabis for the purpose of trafficking.

In the present case, an issue which is of central importance is the Prosecution’s duty in relation to witnesses who can be expected to confirm or, conversely, contradict an accused person’s defence in material respects (“material witnesses”). Given the Prosecution’s overarching duty of fairness, we were troubled that statements recorded from four such witnesses were not disclosed to the Defence in the present case; neither were these witnesses called by the Prosecution to rebut the Appellant’s defence if, indeed, their accounts of the events supported the Prosecution’s case. At the end of the hearing of this appeal, we therefore directed the parties to tender further submissions on what, if anything, was the Prosecution’s duty in these circumstances.

This appeal also presents us with the opportunity to examine the issue of excessive judicial interference in the specific context of criminal proceedings, as that was a further point taken by the Appellant. We are satisfied, having reviewed the record of the proceedings and considered the entirety of the context, that the complaint of excessive judicial interference is not made out. Nonetheless, we take this opportunity to examine and reiterate the need for judges to exercise especial prudence, caution and restraint in criminal proceedings, where the consequences of excessive judicial interference on an accused person’s life and liberty may be severe indeed.

Background facts The events leading to the Appellant’s arrest

We begin our narrative by setting out the events leading to the Appellant’s arrest. In doing so, we largely use the account given by the Appellant at the trial, which was generally consistent with the contents of the last four of his ten statements to the Central Narcotics Bureau (“CNB”). The Appellant admitted that the account reflected in his first six statements, in which he referred to the involvement of someone called “Danish”, was essentially untrue, a point to which we will return below (at [83]–[88]).

At the material time, the Appellant lived with his wife, Mashitta binte Dawood (“Mashitta”), their children and their domestic helper (“the Helper”) in their flat at Fernvale Link (“the Flat”). The Appellant’s cousin, Sheikh Sufian bin Sheikh Zainal Abidin (“Sufian”), also stayed with them in the Flat. The Appellant and Mashitta occupied the master bedroom, the children and the Helper occupied one bedroom, while Sufian occupied another bedroom (“Bedroom 1”).

The Appellant would smoke methamphetamine in the Flat daily. Sometimes he would do so alone, and several times a week, he would do so with other individuals in Bedroom 1. These individuals included Sufian and two of the Appellant’s friends, Muhammad Faizal bin Mohd Shariff (“Faizal”) and Mohammad Khairul bin Jabar (“Khairul”). Faizal, in particular, provided the Appellant with his supply of methamphetamine.

On 26 January 2016, at around 8.20pm, Faizal brought a trolley bag (“the trolley bag”) to the Flat, and the Helper let him into the Flat. The Appellant claimed that unknown to him at the time, the trolley bag was placed in the storeroom of the Flat by the Helper.

A key issue that was raised in this case was whether the Appellant knew that Faizal would be bringing the trolley bag to the Flat on 26 January 2016, and that the trolley bag contained drugs. The Prosecution’s case is that the Appellant knowingly received the trolley bag, which contained both the diamorphine and the cannabis, from Faizal. The diamorphine was found in Bedroom 1 after the Appellant’s arrest, while the cannabis was found in the trolley bag (see [16]–[17] below).

The Appellant, however, testified that he did not know that Faizal would be bringing the trolley bag to the Flat on 26 January 2016. He claimed that he had been asleep from about 7.00pm until about 10.00pm on the night of 26 January 2016, and after he woke up, he left the Flat with Faizal at about 10.20pm. It was only on the next day, 27 January 2016, that he discovered the diamorphine and the trolley bag in the Flat. According to the Appellant, on 27 January 2016, at about 2.00pm, he noticed several packets of diamorphine laid out on the bed in Bedroom 1. He got into a quarrel with his wife, Mashitta, who was angry that the Appellant allowed people to come to the Flat to “do ‘drugs’” and “make use of [him]”. The Appellant then placed the packets of diamorphine into an “Akira” fan box (“the Akira box”) which was in Bedroom 1. He suspected that it was Sufian, the occupier of Bedroom 1, who had laid out the diamorphine on the bed.

Shortly thereafter, at about 4.00pm, the Appellant discovered the trolley bag in the storeroom. He was informed by Mashitta, who in turn had been told by the Helper, that Faizal had brought the trolley bag to the Flat. According to the Appellant, the diamorphine must have been taken out of the trolley bag as there had been no drugs in the Flat on the previous day, apart from some drugs in the master bedroom which were for his own consumption.

On the same afternoon, the Appellant called Sufian and Faizal and asked them to return to the Flat to “clear the stuff”. They both agreed to do so. The Appellant testified that he called Faizal “straightaway” upon discovering the trolley bag. While the Appellant initially suspected that the trolley bag might contain drugs, Faizal apparently informed him that it contained cigarettes instead, and the Appellant did not check whether this was true. He evidently trusted Faizal. He claimed that Faizal had previously left drugs of various types and in various quantities, as well as cigarettes, in the Flat. On those occasions, the Appellant would call Faizal to ask him to retrieve the relevant items and he would do so.

The Appellant’s iPhone call records were not referred to at the trial to identify the phone calls that he claimed he had made to Sufian and Faizal on the afternoon of 27 January 2016 after discovering the trolley bag and the diamorphine in the Flat. On appeal, we were referred to these call records, which corroborated the Appellant’s claim. These call records showed that on 27 January 2016, the Appellant called Sufian at 4.38pm (for 53 seconds), 5.10pm (for 34 seconds) and 5.20pm (for 61 seconds). The Appellant also called Faizal at 5.47pm (for 47 seconds). While the Appellant testified that he called Faizal “straightaway” after discovering the trolley bag at around 4.00pm, nothing turns on this slight discrepancy in timing, especially given that the Appellant was never referred to his call records either in the course of the investigations or at the trial.

The events following the Appellant’s arrest

On the night of 27 January 2016, at around 7.00pm, CNB officers began observing the Flat because of the Appellant’s suspected involvement in drug activities. At that time, the Appellant, Mashitta, their children, the Helper and Khairul were in the Flat. The Appellant was arrested at about 8.00pm as he was leaving the Flat.

The CNB officers proceeded to search the Flat in the Appellant’s presence, beginning with Bedroom 1. From Bedroom 1, Staff Sergeant Richard Chua Yong Choon (“SSgt Chua”), assisted by Sergeant Muhammad Farhan bin Sanusi (“Sgt Farhan”), seized the 64 packets of diamorphine that formed the subject matter of the first charge. Sixty-three packets were found in the Akira box, and the last packet was found in a “Mintek” bag (“the Mintek bag”) on the bed. The search of Bedroom 1 concluded at around 8.40pm.

Later, at around 9.45pm, Senior Staff Sergeant Ika Zahary bin Kasmari (“Senior SSgt Ika”) asked the Appellant a question. The precise terms of the question were disputed and will be discussed later. In response to the question, the Appellant answered “storeroom”. Senior SSgt Ika then escorted the Appellant to the storeroom, and SSgt Chua seized the trolley bag, which contained all the nine blocks of vegetable matter constituting the cannabis that was the subject matter of the second charge. He also seized a black plastic bag containing 40 cartons of contraband cigarettes which, according to the Appellant, had been placed in the storeroom a few...