Muhammad Ridzuan bin Mohd Ali v Attorney-General

• Judge: Tay Yong Kwang J
• Judgment Date: 12 September 2014
• Neutral Citation: [2014] SGHC 179
• Citation: [2014] SGHC 179
• Docket Number: Originating Summons No 348 of 2014
• Published date: 07 October 2015
• Hearing Date: 17 July 2014
• Plaintiff Counsel: Masih James Bahadur (James Masih & Company), Rajan Supramaniam (Hilborne Law LLC) and Dr Chuang Wei Ping (WP Chuang & Co)
• Date: 12 September 2014
• Defendant Counsel: Francis Ng and Ailene Chou (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Constitutional Law,Administrative Law,Judicial Review,Equality before the Law

Tay Yong Kwang J: Introduction

This is an application by Muhammad Ridzuan bin Mohd Ali (“the Applicant”) for leave to commence judicial review proceedings against the Public Prosecutor (“PP”). This application arose out of the PP’s decision not to grant the Applicant a certificate of substantive assistance pursuant to s 33B(2)(b) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). As a result, the Applicant sought leave to apply for the following orders: a declaration that the PP had acted in bad faith in not granting the Applicant a certificate under s 33B(2)(b) of the MDA; a mandatory order for the PP to grant the Applicant a certificate under s 33B(2)(b) of the MDA; an order for the case to be remitted to the trial judge to re-consider and pass the appropriate sentence under s 33B(1) of the MDA; and that the stay of execution granted by the Court of Appeal continue until the final determination of this application. The Attorney-General (“the AG”) opposed the application.

As I was the trial judge in the criminal trial involving the Applicant and his co-accused, I instructed the registry to ask both parties in this case before the date of hearing whether they had any objections to me hearing this application. Both parties had no objections. At the hearing on 17 July 2014, I dismissed this application. The Applicant has appealed to the Court of Appeal against my decision.

The facts The offence

The background facts to the Applicant’s drug trafficking convictions have been set out in both the first instance judgment (see Public Prosecutor v Abdul Haleem bin Abdul Karim and another [2013] 3 SLR 734 (“PP v Abdul Haleem”)) and the Court of Appeal’s judgment in respect of the Applicant’s appeal against conviction (see Muhammad Ridzuan bin Md Ali v Public Prosecutor and other matters [2014] 3 SLR 721 (“Muhammad Ridzuan v PP”)). I will therefore set out only such background facts as are necessary for giving the context for this application.

The Applicant and Abdul Haleem bin Abdul Karim (“Abdul Haleem”) previously worked as bouncers in the same night club. They had known each other for about a year prior to the date of their arrest. Initially, the Applicant befriended one Rosli in Johor Bahru, who wanted to know if the Applicant was interested in trafficking drugs. Subsequently, one Afad, who identified himself as Rosli’s friend, called the Applicant to see if he was interested in purchasing heroin.

The Applicant asked Abdul Haleem if he was interested in selling heroin together as partners and they subsequently agreed to purchase one “ball” of heroin to repack and sell. The arrangement was for the Applicant to deal with the supplier and provide the capital to purchase the heroin. Both of them would then repack the heroin together and look for customers. The profit would then be split equally. The Applicant did not tell Abdul Haleem about the source of heroin or when the heroin would be delivered.

On 4 May 2010, the Applicant agreed to purchase one “ball” of heroin from Afad for $7,000. Afad told the Applicant to wait for a phone call from one Gemuk, who would then tell him when he could collect the heroin from a jockey (ie, a courier). On 5 May 2010 at about 2.00pm, Gemuk called the Applicant and informed him that a jockey would be delivering half a “ball” of heroin that day and the other half subsequently. The Applicant passed $7,000 in cash to Abdul Haleem and instructed him to collect half a “ball” of heroin from the jockey as instructed by Gemuk.

After Abdul Haleem collected the half “ball” of heroin, he returned to the Applicant’s flat where they proceeded to repack the heroin into 20 small plastic sachets, each containing about eight grams of heroin. There was a small amount of heroin left over which they intended to repack after receiving the other half “ball” of heroin.

At about 5.00pm on 6 May 2010, Gemuk called the Applicant and informed him to prepare to collect the remaining half “ball” of heroin. During the trial, there was a dispute as to whether the Applicant was specifically informed by Gemuk that they would be receiving additional bundles of heroin. Nothing turns on that dispute in the present leave application. It is undisputed that Abdul Haleem eventually met the jockey and received additional bundles of heroin over and above the remaining half “ball” of heroin that they had purchased. The additional bundles of heroin were intended to be handed over to other persons. After collecting the bundles of heroin from the jockey, Abdul Haleem returned to the Applicant’s flat where they were both arrested by officers from the Central Narcotics Bureau (“CNB”).

The conviction

At the conclusion of the criminal trial, I convicted both the Applicant and Abdul Haleem on two charges of trafficking in diamorphine under s 5(1)(a) of the MDA read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed). The first charge (“the first charge”) involved not less than 72.50g of diamorphine and was thus a capital charge punishable under s 33, or alternatively, s 33B of the MDA. The subject matter of the capital charge was the heroin found in the additional seven bundles that Abdul Haleem had collected from the jockey on 6 May 2010.

The second charge (“the second charge”) involved not more than 14.99g of diamorphine and was thus a non-capital charge punishable with a minimum sentence of 20 years’ imprisonment and 15 strokes of the cane and a maximum sentence of 30 years’ imprisonment or imprisonment for life and 15 strokes of the cane. The subject matter of the second charge was the heroin found in the one bundle that Abdul Haleem had collected from the jockey and in the 21 plastic sachets that had been repacked by both the Applicant and Abdul Haleem.

The sentence

While both the Applicant and Abdul Haleem were arrested on 6 May 2010, the trial only commenced on 18 February 2013. This is significant as the date of commencement of the new s 33B of the MDA was 1 January 2013. In this regard, s 27(1) of the Misuse of Drugs (Amendment) Act 2012 (No 30 of 2012) states that:

Where, on or after the appointed day [ie, 1 January 2013], a person is convicted of a relevant offence committed before that day, he may be sentenced in accordance with section 33B of the [MDA] if the court determines that the requirements referred to in that section are satisfied.

[emphasis added]

Therefore, having convicted both the Applicant and Abdul Haleem on the first charge (ie, the capital charge), I had to deal with the issue of whether they could avail themselves of the alternative sentencing regime pursuant to s 33B(1)(a) of the MDA. After reviewing the evidence and hearing the parties’ arguments, I found that both the Applicant and Abdul Haleem satisfied the requirements under either ss 33B(2)(a)(ii) or 33B(2)(a)(iii) of the MDA as it was their uncontroverted evidence that they planned to sell only the one “ball” of heroin that they had purchased, which was the subject matter of the second charge (ie, the non-capital charge). In relation to the seven bundles of heroin which were the subject matter of the first charge, I accepted their evidence that they had received the bundles for the sole purpose of handing them over to other customers of the drug supplier. They were therefore “couriers” for the purposes of s 33B(2)(a), a convenient term that was used in the Parliamentary debates on the legislative amendments to the MDA but which does not appear in the section.

Abdul Haleem also satisfied s 33B(2)(b) of the MDA as the PP certified that he had substantively assisted the CNB in disrupting drug trafficking activities within or outside Singapore. Exercising the discretion under s 33B(1)(a) of the MDA, I sentenced Abdul Haleem to life imprisonment and to receive the minimum 15 strokes of the cane for the first charge. As the Applicant could not fulfil all the requirements in s 33B(2), he was given the mandatory death sentence as the PP did not issue him the certificate under s 33B(2)(b) of the MDA.

In relation to the second charge (ie, the non-capital charge), I sentenced both Abdul Haleem and the Applicant to the mandatory minimum sentence of 20 years’ imprisonment and 15 strokes of the cane, with Abdul Haleem being subject to a maximum of 24 strokes. With regard to the Applicant, I further ordered that he was not to undergo any caning as long as the conviction and sentence for the first charge stood.

The appeal

The Applicant appealed against his conviction and sentence in respect of the first charge (ie, the capital charge). At the hearing of the appeal on 27 January 2014, three different matters were before the Court of Appeal: Criminal Motion No 69 of 2013 (“CM 69/2013”), which was an application for leave by the Applicant to amend his petition of appeal to include two additional grounds of appeal; Criminal Appeal No 3 of 2013 (“CCA 3/2013”), which was the substantive appeal against the Applicant’s conviction and sentence in relation to the first charge; and Criminal Motion No 68 of 2013 (“CM 68/2013”), which was an application to challenge the PP’s decision not to issue a certificate of substantive assistance to the Applicant pursuant to s 33B(2)(b) of the MDA.

The prosecution did not object to the amendments to the petition of appeal and CM 69/2013 was allowed accordingly. In relation to CCA 3/2013, the appeal was dismissed and the Applicant’s conviction on the first charge was upheld. The Court of Appeal dismissed CM 68/2013 on the basis that the Applicant had adopted the wrong procedure. It was held that the proper forum to decide the matters in CM 68/2013 was the High Court and not the Court of Appeal (Muhammad Ridzuan v PP at [102]). The Applicant was directed to file a fresh application for a mandatory order, if any, in the High Court within two months, ie, by 26 April 2014.

The present application

In accordance with the directions of the...