Muhammad Ridzuan bin Mohd Ali v AG

• Jurisdiction: Singapore
• Court: Court of Three Judges (Singapore)
• Judgment Date: 05 October 2015
• Date: 05 October 2015
• Docket Number: Civil Appeal No 131 of 2014

Muhammad Ridzuan bin Mohd Ali

Plaintiff

and

Attorney-General

Defendant

[2015] SGCA 53

Sundaresh Menon CJ

,

Chao Hick Tin JA

and

Andrew Phang Boon Leong JA

Civil Appeal No 131 of 2014

Court of Appeal

Administrative Law—Judicial review—Public Prosecutor's discretion to certify that person had substantively assisted Central Narcotics Bureau in disrupting drug trafficking activities within or outside Singapore—Meaning of bad faith—Whether Public Prosecutor had acted in bad faith—Whether Public Prosecutor's decision made in procedurally improper manner—Sections 33 (2) (b) and 33 B (4) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Administrative Law—Judicial review—Public Prosecutor's discretion to certify that person had substantively assisted Central Narcotics Bureau in disrupting drug trafficking activities within or outside Singapore—Whether Public Prosecutor's decision unconstitutional—Article 12 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

The appellant, Muhammad Ridzuan bin Mohd Ali (‘the Appellant’), and Abdul Haleem bin Abdul Karim (‘Abdul Haleem’) were involved in the same criminal enterprise to traffic in diamorphine. The Appellant arranged for the drugs to be delivered to them in Singapore. There were two drug deliveries. Abdul Haleem collected the drugs from a courier. The same courier made both deliveries. Both the Appellant and Abdul Haleem were arrested following the second delivery. They faced two charges of trafficking in diamorphine under s 5 (1) (a) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘MDA’) read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed). The first charge involving not less than 72.05 g of diamorphine was a capital charge punishable under s 33, or alternatively, s 33 B of the MDA (‘the Capital Charge’). The second charge involving not more than 14.99 g of diamorphine was a non-capital charge (‘the Second Charge’). They were convicted of both charges. The Public Prosecutor (‘the PP’) only granted Abdul Haleem a certificate of substantive assistance pursuant to s 33 B (2) (b) of the MDA. This resulted in the two offenders receiving different sentences. Abdul Haleem was sentenced to life imprisonment and 24 strokes of the cane. The Appellant was given the mandatory death sentence. The Appellant appealed against his conviction on the Capital Charge. His appeal was dismissed.

The Appellant filed for leave to commence judicial review proceedings against the PP's decision not to grant him a certificate of substantive assistance pursuant to s 33 B (2) (b) of the MDA (‘the non-certification decision’). The High Court Judge (‘the Judge’) dismissed the application. The Appellant appealed against the Judge's decision. On appeal, the Appellant argued that the PP should have granted him a substantive assistance certificate on the basis that he had provided the Central Narcotics Bureau (‘CNB’) with ‘sufficient information’. Second, he submitted that the fact that Abdul Haleem was granted the substantive assistance certificate while he was not, notwithstanding the fact that they were in ‘apparently the same or similar circumstances’, was prima facie evidence suggesting that the non-certification decision was in breach of Art 12 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (‘the Constitution’). In this connection, he argued that Abdul Haleem could not have given any more information to CNB than he had since Abdul Haleem's level of participation in the drug trafficking offences was ‘same or similar’ to his. Third, he argued that the non-certification decision was made in bad faith because he was not invited to provide CNB with information after the criminal trial. However, it seemed the Appellant had in fact provided CNB with additional information following his conviction for drug trafficking on three occasions. The Appellant's third argument turned on the meaning that should be ascribed to the term ‘bad faith’ in s 33 B (4) of the MDA.

The court was not privy to the full details of all the information that both offenders gave CNB over the course of the matter proceeding through the justice system. Only a selection of the information both offenders gave CNB had been placed before the court. In the course of the hearing of the appeal, the Attorney-General (‘the Respondent’), stated that it was prepared to make an affidavit affirming that there were material differences between the information that the two offenders gave and further that the information that Abdul Haleem gave had enhanced CNB's enforcement effectiveness whereas the Appellant's information did not result in similar outcomes. Three affidavits were filed on behalf of the Respondent wherein it was stated that (a) all the information the Appellant had given CNB had been put before the PP; (b) having considered all the information, the PP was satisfied that there was a material difference between the information given by Abdul Haleem as compared to that furnished by the Appellant; and (c) the Appellant had not substantively assisted CNB in disrupting drug trafficking activities within or outside Singapore.

Held, dismissing the appeal:

(1) In addition to the two grounds set out in s 33 B (4) of the MDA, the PP's decision on whether an offender should be given a certificate of substantive assistance could also be challenged on the ground that it was unconstitutional: at [35] .

(2) In general, a person who challenged an executive decision based on an alleged breach of one or more of the fundamental liberties enshrined in the Constitution or based on other grounds of review established in administrative law had to establish a prima facie case of reasonable suspicion of breach of the relevant standard. He would be granted leave to commence judicial review proceedings only if he satisfied that threshold requirement. This was because decisions of constitutional office holders and other officials were presumed to be made in conformity with the law. It fell upon the applicant to adduce prima facie evidence of breach of the relevant standard in order to rebut the presumption. The decision-maker was not required to justify his decision until the applicant had crossed that threshold: at [36] .

(3) An applicant who took out an application to commence judicial review proceedings to challenge the PP's decision not to grant him a certificate of substantive assistance had to establish a prima facie case of reasonable suspicion that the PP had breached the relevant standard before he would be granted leave. The PP was not required to justify his decision until that threshold was crossed: at [39] .

(4) An applicant who sought leave to commence judicial review proceedings to challenge the PP's decision not to grant him a substantive assistance certificate was not required to produce evidence directly impugning the propriety of the PP's decision-making process (eg, records of meetings that showed that the decision was motivated by malice, bad faith, unconstitutional considerations). He could discharge the evidentiary burden he bore by highlighting circumstances that established a prima facie case that the decision was made in breach of relevant standards. The court could draw inferences from objective facts: at [40] and [43] .

(5) It was abundantly clear from the Parliamentary debates at the Second Reading of the Misuse of Drugs (Amendment) Bill (No 27 of 2012) (‘the Bill’), which was when the new s 33 B of the MDA was debated in Parliament, that an offender's good faith cooperation with CNB was not a necessary or sufficient basis for the PP to grant him a certificate of substantive assistance. Rather, the certificate would only be granted when the offender's assistance yielded actual results in relation to the disruption of drug trafficking. Therefore the Appellant's first argument was rejected: at [45] and [48] .

(6) In the context of executive actions, the equal protection clause in Art 12 would be breached if there was deliberate and arbitrary discrimination against a particular person. Arbitrariness implied the lack of any rationality: at [49] .

(7) An applicant who alleged that the PP's decision declining to grant him a certificate of substantive assistance was made in breach of Art 12 of the Constitution would have satisfied the evidentiary burden he bore if he could show two things - first, that his level of involvement in the offence and the consequent knowledge he acquired of the drug syndicate he was dealing with was practically identical to a co-offender's level of involvement and the knowledge the co-offender could have acquired, and second, and more importantly, that he and his co-offender had provided practically the same information to CNB - yet only his co-offender had been given the certificate of substantive assistance. This would have been enough to raise a prima facie case of reasonable suspicion that the PP had acted arbitrarily in choosing to grant only one co-offender the certificate of substantive assistance: at [51] .

(8) The co-offenders' level of involvement in the crime was not identical. The Appellant and Abdul Haleem were involved in different capacities. The Appellant was the one who arranged the drug deliveries. Abdul Haleem, on the other hand, had interacted first-hand with the courier who delivered the drugs. It was entirely conceivable that Abdul Haleem could have given some valuable information to CNB which they did not already have. Additionally, the court could not hold that the Appellant had discharged the evidentiary burden he bore just by comparing the statements that he and Abdul Haleem had given the police following their arrest. This was because those statements were only a part of all the information they gave CNB. However, the three affidavits that were filed on behalf of the Respondent were dispositive as far as the question of whether the Appellant and Abdul Haleem had given practically identical...