Nazeri bin Lajim v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang JCA
• Judgment Date: 20 April 2021
• Neutral Citation: [2021] SGCA 41
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Motion No 12 of 2021
• Published date: 24 April 2021
• Year: 2021
• Hearing Date: 05 April 2021,09 March 2021
• Plaintiff Counsel: Ravi s/o Madasamy (Carson Law Chambers)
• Defendant Counsel: Anandan Bala, Tan Wee Hao and Rimplejit Kaur (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Criminal review,Leave for review
• Citation: [2021] SGCA 41

Tay Yong Kwang JCA: Introduction

The applicant was convicted in 2017 by the High Court on a capital charge of possessing two bundles of drugs containing not less than 33.39g of diamorphine for the purpose of trafficking. He was sentenced to the mandatory death penalty pursuant to s 33(1) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). His appeal against his conviction and sentence was dismissed by the Court of Appeal in CA/CCA 42/2017 (“CCA 42/2017”) on 4 July 2018.

In this criminal motion, the applicant seeks the court’s leave pursuant to s 394H of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) to file an application for review of the Court of Appeal’s decision in CCA 42/2017. Pursuant to s 394H(6)(a) of the CPC, such a leave application is to be heard by a single Justice of the Court of Appeal.

The applicant raises several grounds in support of his application, including purportedly new legal arguments based on changes in the law, allegations of inadequate legal assistance from his former defence counsel and new evidence in the form of a psychiatric report obtained after the appeal was concluded.

Background facts and procedural history

The applicant claimed trial to the following charge:

That you … on 13 April 2012, at about 5.05 a.m., at the junction of Anguilla Park and Orchard Road, Singapore, along the pavement near Far East Shopping Centre, did traffic in a Controlled Drug specified in Class ‘A’ of the First Schedule of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘the Act’), to wit, by having in your possession for the purpose of trafficking, two (2) bundles containing a total of 906.4 grams of granular/powdery substance which was analysed and found to contain not less than 35.41 grams of diamorphine, without any authorisation under the Act or the regulations made thereunder, and you have thereby committed an offence under s 5(1)(a) read with 5(2) and punishable under s 33(1) of the Act, and further upon your conviction under s 5(1)(a) of the Act, you may alternatively be liable to be punished under s 33B of the Act.

The applicant was tried jointly with one Dominic Martin Fernandez (“Dominic”). Dominic was charged with trafficking the drugs in question by delivering the two bundles to the applicant.

The applicant did not dispute possession of the two bundles or that the bundles contained diamorphine. He also did not dispute that some of the drugs in the bundles were meant to be repackaged and sold. The applicant’s primary defence was that he had ordered only a 400g bundle of heroin (a street name for diamorphine) but Dominic delivered the two bundles weighing 453g and 453.4g respectively to him. He also claimed that a portion of the drugs in the 400g bundle was meant for his own consumption and that he had intended to sell only about 13.318g of the diamorphine. If so, the amount of diamorphine that was in his possession for the purpose of trafficking was below the threshold amount of 15g for a capital offence.

The High Court (“the Judge”) convicted both the applicant and Dominic in Public Prosecutor v Dominic Martin Fernandez and another [2017] SGHC 226 (“the Judgment”). The Judge found that the applicant had ordered the two bundles of heroin that he received from Dominic. Although the Judge rejected the applicant’s testimony at trial that he would have kept ten or 12 packets, each containing 8g of diamorphine, for his own consumption, the Judge accepted the applicant’s admission in his investigation statement that he would have kept five such packets for his own consumption. The Judge held that based on the evidence, the two bundles would have yielded at least 116 such packets. Deducting five packets from the total, 111 packets would have been meant for trafficking. Calculating from the total diamorphine content as stated in the charge, the 111 packets would have contained about 33.89g of diamorphine (35.41g x 111 ÷ 116). There was a mistake in an earlier computation during the trial which arrived at the amount of 33.39g instead of the correct amount of 33.89g. The Judge held that the use of the incorrect lower weight did not prejudice the applicant. The Judge therefore convicted the applicant of trafficking in the lower amount of 33.39g of diamorphine by having the drugs in his possession for the purpose of trafficking (the Judgment at [51]–[54]).

The mandatory death penalty was imposed on the applicant because he could not fulfil any of the requirements for alternative sentencing under s 33B of the MDA. However, Dominic fulfilled the requirements under s 33B(2) of the MDA and was sentenced to life imprisonment and 15 strokes of the cane.

On 4 July 2018, the Court of Appeal (comprising Andrew Phang JCA, Chao Hick Tin SJ and me) dismissed the applicant’s appeal against his conviction and sentence by way of an oral judgment in CCA 42/2017. The Court of Appeal upheld the Judge’s finding that the applicant had ordered two bundles of drugs. The Court of Appeal agreed with the Judge that the applicant would have kept, at best, only five packets for his own consumption and that the claim of 12 packets was a belated attempt at inflating his drug consumption. The Court of Appeal also found it unbelievable that the applicant would have consumed so much of the drugs given his lack of financial means which drove him to drug-trafficking in the first place. It opined that even if the applicant had ordered only one bundle of drugs and assuming that bundle was the one with the lower diamorphine content of 17.11g instead of the other with 18.3g, the defence of consumption would not have reduced the weight of the diamorphine trafficked to below 15g.

The parties’ arguments The applicant’s arguments

In this application, the applicant raises four main grounds which are summarised as follows: The applicant contends that the Judge relied erroneously on Dominic’s confession in finding that he had ordered two bundles of drugs. The applicant highlights that the Judge was not permitted to do so under s 258(5) of the CPC then in force and asserts that Ramesh a/l Perumal v Public Prosecutor and another appeal [2019] 1 SLR 1003 (“Ramesh”) occasioned a change in the law in this regard. The applicant cites Ramesh and argues that he had intended to traffic only one bundle of drugs as he had intended to return the second bundle to his supplier. The applicant alleges that his former defence counsel at the trial and at the appeal, Mr James Masih (“Mr Masih”), provided inadequate legal assistance, thereby resulting in a miscarriage of justice. The applicant seeks to adduce a new medical report from a psychiatrist, Dr Ken Ung (“Dr Ung”), to support his claim that he would have kept 12 rather than five packets of heroin for his own consumption.

The Prosecution’s arguments

The Prosecution submits that the application should be dismissed as the applicant has not shown that there is sufficient material on which this court may conclude that there has been a miscarriage of justice in respect of the decision in CCA 42/2017. The Prosecution’s arguments in respect of each of the grounds raised by the applicant can be summarised as follows: Ramesh did not give rise to a change in the law but simply affirmed the proper construction of s 258(5) of the CPC. In any event, even if Dominic’s confession were to be disregarded, there was still sufficient evidence to show that the applicant had ordered two bundles of drugs. There is no evidence to show that the applicant had intended to return any of the bundles to his supplier. Accordingly, his reliance on the bailment defence set out in Ramesh is misplaced. The applicant’s allegations of inadequate legal assistance are not based on any change in the law. Moreover, the alleged deficiencies in Mr Masih’s conduct of the applicant’s defence were not the result of egregious incompetence on Mr Masih’s part. Instead, Mr Masih had made various strategic decisions in cross-examination so as to minimise the damage caused by the applicant’s own inconsistent evidence. Further, Mr Masih’s conduct of the trial did not prejudice the applicant in any way. Dr Ung’s report is of limited utility as it was prepared some eight years after the applicant’s arrest. More importantly, Dr Ung’s report is not “compelling” material as it is devoid of reasoning and rests heavily on the veracity of the account provided by the applicant.

The applicable legal principles

For leave to be granted, the applicant must show a “legitimate basis for the exercise of the court’s power of review” (see Kreetharan s/o Kathireson v Public Prosecutor and other matters [2020] 2 SLR 1175 at [17] and Moad Fadzir bin Mustaffa v Public Prosecutor [2020] 2 SLR 1364 at [10]). Such a legitimate basis will only be disclosed if the following stringent requirements in s 394J of the CPC are met: (2) The applicant in a review application must satisfy the appellate court that there is sufficient material (being evidence or legal arguments) on which the appellate court may conclude that there has been a miscarriage of justice in the criminal matter in respect of which the earlier decision was made. (3) For the purposes of subsection (2), in order for any material to be ‘sufficient’, that material must satisfy all of the following requirements: (a) before the filing of the application for leave to make the review application, the material has not been canvassed at any stage of the proceedings in the criminal matter in respect of which the earlier decision was made; (b) even with reasonable diligence, the material could not have been adduced in court earlier; (c) the material is compelling, in that the material is reliable, substantial, powerfully probative, and capable of showing almost conclusively that there has been a miscarriage of justice in the criminal matter in respect of which the earlier decision was made. (4) For the purposes of...