Public Prosecutor v Chum Tat Suan and another
Jurisdiction | Singapore |
Court | Court of Three Judges (Singapore) |
Judge | Chao Hick Tin JA |
Judgment Date | 28 November 2014 |
Neutral Citation | [2014] SGCA 59 |
Citation | [2014] SGCA 59 |
Docket Number | Criminal Reference Nos 5 and 6 of 2013 |
Date | 28 November 2014 |
Subject Matter | Misuse of Drugs Act,Criminal law,Statutory offences |
Plaintiff Counsel | Aedit Abdullah, SC, Wong Woon Kwong and Suhas Malhotra (Attorney-General's Chambers) |
Defendant Counsel | Manoj Nandwani Prakash, Eric Liew Hwee Tong and Dew Wong Li-Yen (Gabriel Law Corporation),Johan Ismail (Johan Ismail & Co) and Abdul Rahman bin Mohd Hanipah (Abdul Rahman Law Corporation) |
Published date | 02 December 2014 |
Hearing Date | 30 May 2014 |
The present criminal references, Criminal Reference Nos 5 and 6 of 2013 (hereafter referred to separately as “CRF 5/2013” and “CRF 6/2013”) arise out of two criminal cases heard by the High Court in the exercise of its original criminal jurisdiction. The two cases involve trafficking and importation offences under ss 5(1) and 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”) respectively, for which the punishment was, until very recently, death.
From 1 January 2013, following amendments to the MDA, s 33B of the MDA (“s 33B”) allows a person convicted of an offence under ss 5(1) and 7 of the MDA to avoid the mandatory death penalty if two conditions are met. The first condition, pursuant to s 33B(2), is that the person convicted must prove, on a balance of probabilities, that:
Even if the two conditions are met, s 33B(1) gives the court the discretion to decide if the person convicted should nevertheless be given the death penalty. If the court decides that the death penalty is not warranted, the court may sentence the person convicted to imprisonment for life and caning of not less than 15 strokes.
It suffices to note that Parliament’s objective in amending the law was specifically to provide a less harsh sentence for drug couriers who are willing and able to assist the Central Narcotics Bureau (“CNB”) in disrupting drug trafficking activities within or outside Singapore.
In the two criminal cases before the High Court, the judge there (“the Judge”) was asked to determine if the persons convicted in the two cases were couriers within the meaning of s 33B(2)(
The two cases decided by the Judge are
The parties in
If the Judge found that Chum was
Should the Public Prosecutor certify that Chum has substantively assisted the CNB, the court may then exercise its discretion to sentence Chum to life imprisonment and caning. However, the defence counsel indicated that should the Public Prosecutor decline to issue a s 33B certificate despite a finding that Chum was a courier, Chum’s defence would be that he was suffering from an abnormality of mind, which is yet another new exception to the mandatory death penalty pursuant to s 33B(1) read with s 33B(3).
The Judge found the evidence-gathering procedure for the purposes of applying s 33B to be fraught with difficulty. On the one hand, if he allowed new evidence to be introduced, there was a possibility of evidence emerging that might undermine the findings of fact that he had made earlier in convicting Chum. On the other hand, if he did not allow the introduction of new evidence, and premised his decision exclusively on his findings of fact which had resulted in the conviction, Chum might be prejudiced in that his earlier defence for the purposes of conviction might have been conducted in a manner which furnished no occasion for evidence of his being no more than a courier to emerge at trial.
In the end, the Judge did not have to resolve the dilemma that he presented as the parties proceeded on the basis that no new evidence would be introduced on the question of whether Chum was no more than a courier. The remaining course open to him, therefore, was to scrutinise the evidence that was adduced at trial. He held (at [7] of
The outcome in
Nevertheless, the Judge thought it more likely that Parliament had not intended to exclude ancillary acts such as re-packing from the type of acts that define a courier. On that basis, the Judge thought that Abdul Kahar should be given the benefit of the doubt at least until the law on “transporting, delivering or sending”, which informs whether or not an accused is a courier, is expressed more clearly.
Questions for this court The questions raised by the Prosecution in both criminal references are identical. They are:
Although the questions refer to both ss 33B(2)(
As the sentences for both cases have not yet been pronounced, there is an issue of whether the criminal references are prematurely brought. Mr Aedit Abdullah, SC (“Mr Abdullah”), on behalf of the Prosecution, explained that the criminal references were brought pursuant to s 59(4) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“2007 SCJA”) even before sentence was meted out because the difficulties in the application of s 33B mentioned by the Judge had a broad impact, particularly in relation to other pending cases. A clarification from the apex court was therefore desirable.
It is true that s 59(4) of the 2007 SCJA does not mandate that a reference may only be brought after sentence has been passed....
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