Public Prosecutor v Chum Tat Suan and another

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 28 November 2014
• Neutral Citation: [2014] SGCA 59
• Date: 28 November 2014
• Docket Number: Criminal Reference Nos 5 and 6 of 2013
• Published date: 02 December 2014
• Plaintiff Counsel: Aedit Abdullah, SC, Wong Woon Kwong and Suhas Malhotra (Attorney-General's Chambers)
• Hearing Date: 30 May 2014
• 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)
• Court: Court of Appeal (Singapore)
• Subject Matter: Misuse of Drugs Act,Criminal law,Statutory offences

Chao Hick Tin JA: Introduction

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: (a) … his involvement in the offence under section 5(1) or 7 was restricted — (i) to transporting, sending or delivering a controlled drug; (ii) to offering to transport, send or deliver a controlled drug; (iii) to doing or offering to do any act preparatory to or for the purpose of his transporting, sending or delivering a controlled drug; or (iv) to any combination of activities in sub-paragraphs (i), (ii) and (iii) … A person convicted who satisfies the court that he falls within one of sub-paragraphs (i) to (iv) will be considered a courier. This mitigating scheme under s 33B(2) shall be referred to, for convenience, as “the statutory relief of being a courier”, the relief being that the death penalty is not mandatory if the person convicted also meets the second condition, which is: (b) the Public Prosecutor certifies to any court that, in his determination, the person [ie, the courier] has substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities within or outside Singapore. For ease of reference, this will be referred to as the “s 33B certificate”.

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)(a). Although the Judge held that they were, he observed that there were certain difficulties with the application of that provision. Those observations prompted the Public Prosecutor to seek clarification from this court on three questions of law by way of the present criminal references.

Facts Background

The two cases decided by the Judge are Public Prosecutor v Chum Tat Suan [2013] SGHC 221 (“Chum Tat Suan”) and Public Prosecutor v Abdul Kahar bin Othman [2013] SGHC 222 (“Abdul Kahar”). The issue before the Judge in both cases was extremely narrow, namely, whether the person convicted in each case (collectively, “the Respondents”) was a courier within the meaning of s 33B(2)(a). It is important to note that at this stage, the Respondents have already been convicted by the Judge of their respective charges of importation and trafficking in controlled drugs.

Chum Tat Suan

The parties in Chum Tat Suan agreed that the only issue for the Judge to determine at that stage was whether the person convicted (“Chum”) was a courier.

If the Judge found that Chum was not a courier, s 33B(1) read with s 33B(2)(a) would not apply to exempt Chum from the mandatory death penalty. If, however, the Judge found the converse (ie, that Chum was a courier), then the Prosecution would take a further statement from Chum for the purposes of determining whether he meets the requirements of s 33B(2)(b), that is, whether Chum has substantively assisted the CNB such that the s 33B certificate is deemed by the Public Prosecutor to be justified.

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 Chum Tat Suan) that the evidence adduced as to whether Chum was no more than a courier was not unequivocal. Furthermore, there was the possibility that Chum could have but did not give evidence which would have supported a finding that he was no more than a courier. In the circumstances, it was unsafe to rely on the available evidence to find that Chum was more than a courier, and Chum should be given the benefit of the doubt.

Abdul Kahar

The outcome in Abdul Kahar, which was decided after Chum Tat Suan, was the same, namely, that the person convicted (“Abdul Kahar”) was found to be no more than a courier. The Judge’s reasoning, however, was different. In fact, he found (at [3] of Abdul Kahar) that the evidence showed that Abdul Kahar was more than a courier in that his “involvement went beyond transporting, sending or delivering [the drugs]”. However, the Judge held (at [4] of Abdul Kahar) that Abdul Kahar was effectively a “re-packer” – someone who re-packed drugs into smaller packets – and it was unclear from the wording of s 33B whether Parliament intended for such persons not to have the same benefit as couriers.

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: Whether a person convicted of an offence of drug trafficking or importation under ss 5(1) or 7 of the MDA bears the burden of proving on a balance of probabilities that he satisfies the requirements under ss 33B(2)(a) and 33B(3)(a) (see [2] above). This shall be referred to as “Question 1”. Whether the court must take into account evidence that had been adduced at the trial leading to a conviction under ss 5(1) or 7 of the MDA to determine whether the person convicted satisfies the requirements under ss 33B(2)(a) and 33B(3)(a). This shall be referred to as “Question 2”. Whether an accused person, who had intended to sell the controlled drugs which form the subject matter of a charge under ss 5(1) or 7 of the MDA for which he had been convicted, satisfies the requirements under ss 33B(2)(a) and 33B(3)(a). To paraphrase, the issue is whether an accused person who intended to sell the controlled drugs and is convicted on that basis can nevertheless be considered a courier (that is, his involvement in the offence can be described as falling under one of the grounds in ss 33B(2)(a) and 33B(3)(a)). This shall be referred to as “Question 3”.

Although the questions refer to both ss 33B(2)(a) and 33B(3)(a), the two subsections are identical. Section 33B(3)(a) applies to persons convicted who can show that they have such abnormality of mind that substantially impaired their mental responsibility for the offending acts. Hence, unless the context otherwise requires, the remainder of this judgment will make reference to only s 33B(2)(a) even though the same interpretation and consequences obviously apply equally to s 33B(3)(a).

My decision Preliminary question of jurisdiction

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...