Nagaenthran a/l K Dharmalingam v Attorney-General

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 04 May 2018
• Neutral Citation: [2018] SGHC 112
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 272 of 2015
• Year: 2018
• Published date: 04 June 2019
• Hearing Date: 20 November 2017
• Plaintiff Counsel: Eugene Singarajah Thuraisingam, Suang Wijaya and Genevieve Pang (Eugene Thuraisingam LLP)
• Defendant Counsel: Francis Ng Yong Kiat SC, Randeep Singh Koonar and Andre Chong (Attorney-General's Chambers)
• Citation: [2018] SGHC 112

Chan Seng Onn J: Introduction

By Originating Summons No 272 of 2015, Nagaenthran a/l K Dharmalingam (“the applicant”) applies for leave pursuant to O 53 r 1 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“the ROC”) to commence judicial review proceedings against the Public Prosecutor (“the judicial review leave application”). The applicant challenges, in particular, the Public Prosecutor’s determination not to certify to a court pursuant to s 33B(2)(b) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”) that the applicant has substantively assisted the Central Narcotics Bureau (“the CNB”) in disrupting drug trafficking activities within or outside Singapore (“the non-certification determination”). To this end, the applicant seeks, amongst other things, a quashing order against the non-certification determination and a mandatory order enjoining the Public Prosecutor to reconsider and review his determination not to grant the applicant a certificate of substantive assistance under s 33B(2)(b).¹

The controversy that lies at the very heart of the present application revolves around the ambit of s 33B(4) of the MDA, which reads as follows:

Discretion of court not to impose sentence of death in certain circumstances

33B.— …

(4) The determination of whether or not any person has substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities shall be at the sole discretion of the Public Prosecutor and no action or proceeding shall lie against the Public Prosecutor in relation to any such determination unless it is proved to the court that the determination was done in bad faith or with malice. In essence, this provision narrowly circumscribes any challenge that may be brought against the Public Prosecutor’s determination not to issue a certificate of substantive assistance pursuant to s 33B(2)(b) to only the grounds that “the determination was done in bad faith or with malice”. Section 33B(4) has also been interpreted to permit a challenge on the ground that the Public Prosecutor’s determination was unconstitutional: see Muhammad Ridzuan bin Mohd Ali v Attorney-General [2015] 5 SLR 1222 (“Ridzuan”) at [35]; see also Cheong Chun Yin v Attorney-General [2014] 3 SLR 1141 (“Cheong Chun Yin”) at [31].

But while this construction of s 33B(4) of the MDA brooks no dispute, an issue that has thus far remained shrouded in uncertainty is the question of whether s 33B(4) permits the judicial review of the Public Prosecutor’s determination regarding whether to issue a certificate of substantive assistance on grounds beyond merely bad faith, malice and unconstitutionality. In the High Court decision of Cheong Chun Yin, Tay Yong Kwang J (as he then was) held in no uncertain terms that s 33B(4) does not permit of a separate ground of judicial review on the basis of a “jurisdictional error of law” (at [31]). But in Ridzuan, the Court of Appeal, when urged to review the Public Prosecutor’s determination on the ground of procedural impropriety, declined to express concluded views on this issue and opined that whether s 33B(4) effectively limits the court’s power of review to only bad faith, malice and unconstitutionality remains an “open question” (at [76]). The apex court also declined to rule conclusively in Ridzuan on whether the court is precluded from reviewing the Public Prosecutor’s determination where the evidence shows that the Public Prosecutor had disregarded relevant considerations or had considered irrelevant considerations in coming to his decision (at [72]). Further, in Prabagaran a/l Srivijayan v Public Prosecutor and other matters [2017] 1 SLR 173 (“Prabagaran”), the Court of Appeal, when faced with submissions from the applicants in that case (one of whom was the present applicant) that s 33B(4) is contrary to the rule of law in that it ousts the jurisdiction of the court to review justiciable matters, acknowledged that the scope of this provision has been left open by the court in Ridzuan and considered it premature to rule on the constitutionality of s 33B(4) on the ground raised by the applicants (at [98]–[99]).

Presently, the applicant indeed seeks to challenge the non-certification determination on grounds of judicial review that extend beyond the grounds provided for under s 33B(4) of the MDA. Accordingly, I reserved judgment following the hearing. I now take this opportunity, as I furnish my decision for this application, to articulate my views on the proper construction of the scope of s 33B(4).

Background Facts relating to the offence

On 22 April 2009, the applicant was stopped while entering Singapore from Malaysia at about 7.45pm at the Woodlands Checkpoint on a motorcycle together with one Kumarsen, with the applicant riding pillion. They were each taken to an office for a strip search to be conducted by CNB officers. During the strip search, the CNB officers discovered a bundle wrapped in newspaper strapped on the applicant’s left thigh. On further inspection, it was revealed that the bundle contained a transparent plastic bag with white granular substance, which was subsequently analysed and found to contain not less than 42.72g of diamorphine. The applicant was arrested and subsequently charged under s 7 of the MDA for importing not less than 42.72g of diamorphine into Singapore.

At the time of the applicant’s arrest, he claimed in his contemporaneous statement that on that very day, he had met a Chinese man by the name of “King” at a coffee shop in Johor Bahru, Malaysia. He claimed that King had passed him a packet wrapped in brown paper, which he genuinely believed to be a packet of food, together with a transparent plastic packet of curry, and instructed him to deliver those items to a person in Woodlands, Singapore. King gave the applicant a SIM card, and asked him to use the SIM card to contact a hand phone number that King had provided upon entering Singapore. King also told the applicant to wait in front of a designated “7-Eleven” convenience store when at Woodlands, and to pass the items to a Chinese man who would be wearing a blue-coloured pair of spectacles and driving a dark blue Toyota Camry. The applicant claimed that he had agreed to perform this delivery because he had owed King money, and he also wanted to borrow another RM500 from King, which King would lend only after the delivery was complete.

But as part of the applicant’s account at trial, he further gave evidence that as he was about to leave to deliver the said items, King brought him into King’s car and instructed him to deliver the bundle wrapped in newspaper instead. King apparently told him that the bundle contained “company products” or “company spares”, and instructed him to secure the bundle to his thigh for the delivery. When the applicant initially resisted King’s request, King slapped him on his face and punched him two to three times on his chest, threatening that if he refused to deliver the Bundle, King would kill one Shalini, who was the applicant’s girlfriend. The applicant thus allowed King to strap the bundle to his left thigh with yellow tape. King then arranged for the applicant to return to his apartment to prepare for the delivery. Back at his apartment, the applicant asked Kumarsen to give him a ride on his motorcycle, telling him that he had to take some money to Singapore. The applicant also changed into a bigger pair of trousers, which belonged to one Tamilselvan, who is Kumarsen’s nephew and was the applicant’s roommate.

Procedural history

On 22 November 2010, I found, following a trial, the applicant guilty of the charge, convicted him accordingly, and sentenced him to death as mandated by s 33 read with the Second Schedule to the MDA: see Public Prosecutor v Nagaenthran a/l K Dharmalingam [2011] 2 SLR 830. In particular, I rejected the applicant’s claim that King had assaulted him and threatened to kill his girlfriend if he had refused to let King strap the Bundle to his thigh and deliver the bundle to the person at Woodlands in Singapore (at [34]). I thus rejected the applicant’s defence of duress (at [18]–[19]). I also found that the applicant had actual knowledge of the contents of the Bundle at the time of the offence (at [33]).

The applicant appealed against his conviction and sentence, but his appeal was dismissed by the Court of Appeal on 27 July 2011: see Nagaenthran a/l K Dharmalingam v Public Prosecutor [2011] 4 SLR 1156 (“Nagaenthran (CA)”).² The apex court affirmed all of the findings that I had made at trial (at [18]–[19]).

Subsequently, on 14 November 2012, Parliament passed the Misuse of Drugs (Amendment) Act 2012 (Act No 30 of 2012) (“the Amendment Act”), which came into force on 1 January 2013.³ The Amendment Act introduced s 33B of the MDA, which provides that the court: may sentence an offender convicted of a capital drug charge to life imprisonment with caning, instead of the mandatory death penalty, if the offender proves on a balance of probabilities that his involvement in the offence was merely as a courier as described under s 33B(2)(a) and the Public Prosecutor certifies to the court pursuant to s 33B(2)(b) that the offender has substantively assisted the CNB in disrupting drug trafficking activities within or outside Singapore (s 33B(1)(a) read with s 33B(2) of the MDA) (“the substantive assistance provision”); and shall sentence an offender to life imprisonment, instead of the mandatory death penalty, if the offender proves on a balance of probabilities that his involvement in the offence was merely as a courier described under s 33B(3)(a) and he was suffering from an abnormality of mind within the meaning of s 33B(3)(b) (s 33B(1)(b) read with s 33B(3) of the MDA) (“the abnormality of mind provision”).

Under the Amendment Act, persons who have been convicted and sentenced to death under the MDA prior to the amendments, and had their appeals dismissed...