Nagaenthran a/l K Dharmalingam v Public Prosecutor and another appeal

• Court: Court of Appeal (Singapore)
• Judge: Sundaresh Menon CJ
• Judgment Date: 27 May 2019
• Neutral Citation: [2019] SGCA 37
• Citation: [2019] SGCA 37
• Hearing Date: 24 January 2019
• Published date: 04 June 2019
• Plaintiff Counsel: Eugene Singarajah Thuraisingam, Suang Wijaya and Johannes Hadi (Eugene Thuraisingam LLP)
• Defendant Counsel: Francis Ng SC, Randeep Singh Koonar, Elaine Liew, Senthilkumaran Sabapathy and Andre Chong (Attorney-General's Chambers),Wong Woon Kwong and Tan Wee Hao (Attorney-General's Chambers)
• Docket Number: Criminal Appeal No 50 of 2017 and Civil Appeal No 98 of 2018
• Date: 27 May 2019
• Subject Matter: Ambit,Constitutional Law,Criminal Law,Judicial Power,Administrative Law,Misuse of Drugs Act,Judicial review,Statutory offences

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

On 14 November 2012, Parliament passed the Misuse of Drugs (Amendment) Act 2012 (No 30 of 2012) (“the Amendment Act”), which introduced s 33B of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). The amendment brought about two significant changes to the legal framework governing the sentencing of certain groups of those convicted of drug trafficking. First, it conferred upon a court the discretion to sentence an offender convicted of a drug trafficking offence that would ordinarily attract the imposition of the mandatory death penalty, to life imprisonment instead if the offender’s involvement in the offence was merely as a courier, as described in s 33B(2)(a), and the Public Prosecutor (“PP”) had issued a certificate of substantive assistance under s 33B(2)(b) in respect of the offender. Second, it made it mandatory for the court to sentence an offender convicted of such an offence to life imprisonment if the offender’s involvement in the offence was merely as a courier, as described in s 33B(3)(a), and the offender was suffering from an abnormality of mind within the meaning of s 33B(3)(b).

The appellant in these appeals, Nagaenthran a/l K Dharmalingam, had been charged under s 7 of the MDA with importing not less than 42.72g of diamorphine on 22 April 2009. He was convicted after trial and his conviction was upheld by this court on appeal: see Public Prosecutor v Nagaenthran a/l K Dharmalingam [2011] 2 SLR 830 (“Nagaenthran (Trial)”); Nagaenthran a/l K Dharmalingam v Public Prosecutor [2011] 4 SLR 1156 (“Nagaenthran (CA)”). This was before the introduction of s 33B. The appellant was therefore sentenced to the mandatory death penalty which was applicable at the time.

In Prabagaran a/l Srivijayan v Public Prosecutor and other matters [2017] 1 SLR 173 (“Prabagaran”), a motion was filed by the appellant, among other applicants, challenging the constitutionality of various subsections of s 33B. We noted there, at [8], that execution of the mandatory death sentence that had been imposed on the appellant had been stayed in view of the fact that the Government was, at the time of the appellant’s conviction and initial appeal, undertaking a review of the mandatory death penalty in relation to drug offences. That review eventually led to the enactment of the Amendment Act. Alongside the introduction of s 33B, the Amendment Act also provided a transitional framework for persons who had been convicted and sentenced to death under the MDA as it stood prior to the amendment, and had their appeal dismissed, to be resentenced under s 33B. The appellant accordingly filed Criminal Motion No 16 of 2015 (“CM 16”) on 24 February 2015, seeking to be re-sentenced to life imprisonment under s 33B(1)(b) read with s 33B(3) of the MDA. It was common ground that the appellant met the requirements under s 33B(3)(a) in that he was found to be a mere courier. The matter was heard before a High Court judge (“the Judge”) who dismissed CM 16 however, on the basis that the appellant was not suffering from an abnormality of mind within the meaning of s 33B(3)(b): see Nagaenthran a/l K Dharmalingam v Public Prosecutor [2017] SGHC 222 (“Nagaenthran (Criminal Motion)”). Criminal Appeal No 50 of 2017 (“CCA 50”) is the appellant’s appeal against the dismissal of CM 16.

Separately, on 10 December 2014, the PP had informed the court and the appellant’s counsel at the time that he would not be issuing a certificate of substantive assistance under s 33B(2)(b) of the MDA in respect of the appellant (“the non-certification decision”). On 27 March 2015, the appellant filed Originating Summons No 272 of 2015 (“OS 272”) seeking leave to commence judicial review proceedings against the PP’s non-certification decision. This too was dismissed by the judge: see Nagaenthran a/l K Dharmalingam v Attorney-General [2018] SGHC 112 (“Nagaenthran (Judicial Review)”). Civil Appeal No 98 of 2018 (“CA 98”) is the appellant’s appeal against the dismissal of OS 272.

Facts The appellant’s conviction

We do not propose to restate all the facts relating to the appellant’s conviction. Much of this has been set out in Nagaenthran (CA) at [5]–[15] (reproduced in Nagaenthran (Criminal Motion) at [9]). Very briefly, after officers from the Central Narcotics Bureau (“CNB”) apprehended the appellant on 22 April 2009 as he was entering Singapore from Malaysia at the Woodlands Checkpoint, the appellant stated quite unequivocally in his contemporaneous statements to the CNB officers that the bundle that was found strapped to his thigh contained heroin. When asked why the bundle had been strapped to his thigh, the appellant answered that a friend, who he called “King”, had done this so that no one else would find it.

At trial however, the appellant denied having knowledge of the contents of the bundle. He claimed instead that King had only told him that the bundle contained “company spares” or “company product”: see Nagaenthran (Trial) at [10]. The appellant also advanced another assertion in his defence – that he had delivered the bundle under duress with King having put him under pressure. According to this version of the appellant’s case, King had slapped and punched the appellant when the latter tried to resist King’s attempts to strap the bundle onto his thigh. King had allegedly also threatened to kill the appellant’s girlfriend if he did not do as he was told and bring the bundle into Singapore: Nagaenthran (Trial) at [10]. Notably, however, these allegations were not in the contemporaneous statement he made after he was first arrested on 22 April 2009.

At the conclusion of the trial, on 22 November 2010, the appellant was found guilty and accordingly sentenced to death. The trial Judge made a number of findings including the following: The appellant’s contemporaneous statements to the CNB officers had been provided voluntarily and recorded accurately: Nagaenthran (Trial) at [33]. The appellant’s allegations that King had assaulted him and threatened to kill his girlfriend if he did not deliver the drugs into Singapore were fabricated. He therefore failed to establish the defence of duress: Nagaenthran (Trial) at [18]–[19]. The appellant had actual knowledge of the contents of the bundle he had been tasked with delivering, namely, that it contained diamorphine: Nagaenthran (Trial) at [33]. This finding was based largely on the appellant’s contemporaneous statement to the CNB officers, where he had stated unequivocally that the bundle strapped to his thigh contained heroin.

On appeal, we affirmed all of the aforementioned findings: see Nagaenthran (CA) at [18]–[19]. The mandatory death sentence was therefore upheld.

The appellant files CM 16

After his conviction, while awaiting execution of his sentence, the appellant was referred in March 2013 to Dr Kenneth Koh of the Institute of Mental Health for a forensic psychiatric evaluation. This was for the purpose of assessing the appellant’s suitability for resentencing under s 33B(1)(b) read with s 33B(3) of the MDA. In his report dated 11 April 2013, Dr Koh noted the appellant’s account that King had assaulted him and threatened to kill his girlfriend if he did not deliver the bundle of drugs into Singapore. Dr Koh took the view that the appellant “had no mental illness at the time of the offence” and was “not clinically mentally retarded”. Dr Koh also acknowledged that the appellant’s “borderline range of intelligence” might have caused him to be more susceptible than a person of normal intelligence to over-estimating the reality of King’s alleged threat to kill his girlfriend. That said, Dr Koh concluded that the appellant’s borderline range of intelligence “would not have diminished his ability to appreciate that the package that was taped to his thigh would most likely have contained drugs and that bringing this to Singapore was illegal”.

The appellant was subsequently referred to a psychiatrist in private practice, Dr Ung Eng Khean, for a psychiatric assessment in support of the appellant’s re-sentencing application in CM 16. Dr Ung assessed the appellant on 19 April and 19 July 2016. In his report of 22 August 2016, Dr Ung noted the appellant’s claim that he had lied to Dr Koh when the latter had assessed him in March 2013. The appellant’s account to Dr Ung was that he had agreed to deliver the drugs for King, whom he referred to as his “boss”, because he was desperate for money and felt compelled to obey King out of a mixture of loyalty, awe, fear and gratitude. The appellant did not mention that King had threatened to kill his girlfriend.

In the light of Dr Ung’s 22 August 2016 report, Dr Koh referred the appellant to Dr Patricia Yap, principal clinical psychologist at the Institute of Mental Health, for a neuropsychological assessment to explore whether the appellant could have been suffering from Attention Deficit Hyperactivity Disorder (“ADHD”). Dr Yap assessed the appellant between November 2016 and January 2017, and issued a report dated 1 February 2017. What is relevant for the present purposes is the appellant’s account to Dr Yap of the reasons for his offending. This took the form of his claim that he was a member of a gang, and that he had volunteered to transport the drugs on behalf of a fellow gang member who was reluctant to do so, and that he had done so out of a misguided sense of gang loyalty and gratitude to his “boss”. He stressed that he had not been coerced into delivering the drugs; he had acted voluntarily. The appellant also recounted that he had reason to believe that the package he was tasked to carry contained drugs, and that he had known, at the time, of the death penalty for drug trafficking in Singapore. Nonetheless, although he did not know the specific quantity of drugs that would attract the death penalty, he did not think that the amount of drugs he was carrying was...