Punithan a/l Genasan v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 13 December 2021
• Neutral Citation: [2021] SGHC 284
• Court: High Court (Singapore)
• Hearing Date: 30 July 2021,14 September 2021
• Docket Number: Criminal Appeal No 12 of 2020
• Plaintiff Counsel: Terence Chua, Wuan Kin Lek Nicholas and Sunil Nair (Attorney-General's Chambers)
• Defendant Counsel: Narayanan Sreenivasan SC, Periowsamy Otharam and Jerrie Tan Qiu Lin (K&L Gates Straits Law LLC)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act
• Published date: 16 December 2021

Chan Seng Onn J: Introduction

On 15 May 2020, I convicted the accused, Punithan a/l Genasan, of the following charge (the “Charge”) under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) and s 34 of the Penal Code (Cap 224, 2008 Rev Ed):¹

That you, PUNITHAN A/L GENASAN,

on 28 October 2011, in Singapore, together with one V Shanmugam a/l Veloo and Mohd Suief bin Ismail, in furtherance of the common intention of you all, did traffic in a Class A controlled drug listed in the First Schedule to the Misuse of Drugs Act (Cap. 185,2008 Rev. Ed.) ("the Act"), to wit, that on 12 October 2011, at the West Coast McDonald's carpark you had introduced the said V Shanmugam A/L Veloo to one Mohd Suief Bin Ismail to facilitate an impending drug transaction, and pursuant to this meeting between the three of you, on 28 October 2011, V Shanmugam A/L Veloo, acting under your direction, came into Singapore driving a motor vehicle JLT8467 and met up with Mohd Suief Bin Ismail, and V Shanmugam A/L Veloo did have in his possession, with your knowledge and consent, 10 packets of granular/powdery substance which were analysed and found to contain not less than 28.50g of diamorphine, which is a Class A controlled drug listed in the First Schedule to the Act, for the purposes of trafficking in the said controlled drug with Mohd Suief Bin Ismail, and the possession and intended transaction of the said controlled drug was without authorisation under the said Act or the Regulations made thereunder, and you have thereby committed an offence under section 5(l)(a) of the Act read with section 5(2) of the Act and section 34 of the Penal Code (Cap 224, 2008 Rev Ed), and the offence is punishable under s 33(1) of the Act.

The accused filed an appeal against my decision, and in the process obtained leave to adduce fresh evidence. On hearing the appeal, the Court of Appeal remitted the matter to me to consider the following two questions: Whether the finding in my decision that there was a meeting (the “Alleged Introductory Meeting”) between the accused, one V Shanmugam a/l Veloo (“Shanmugam”) and one Mohd Suief bin Ismail (“Suief”) (in the morning of 12 October 2011) is affected by the new evidence? If so, would this affect the accused’s conviction?

Having reviewed the accused’s new evidence along with the evidence which was before me at trial, I answer the first question in the negative. Counsel for the accused acknowledged at the remittal hearing before me that such an outcome would render the second question moot.²

I set out my reasons below.

Background

The underlying facts of this matter are set out in my judgment. I summarise them briefly here.

On 28 October 2011, Shanmugam and Suief (collectively, the “Couriers”) trafficked in not less than 28.50g of diamorphine in furtherance of their common intention. After a joint trial in 2014 (the “2014 trial”), they were convicted; Shanmugam was sentenced to life imprisonment and 15 strokes of the cane, while Suief was sentenced to death. Their convictions and respective sentences were upheld on appeal.

In the course of investigations, Shanmugam implicated the accused as the mastermind behind the drug transaction on 28 October 2011. The accused was arrested in Malaysia and extradited to Singapore in 2016.

The accused was tried on the Charge in 2018. Following the trial (the “2018 trial”), I convicted him of the Charge. In my judgment, I found inter alia that the Prosecution had proven beyond a reasonable doubt that the accused had indeed introduced Shanmugam to Suief at West Coast McDonald’s on 12 October 2011 for the purpose of facilitating an impending drug transaction (at [111]–[112]). I considered that the Couriers’ accounts were consistent in all material aspects, including the timing and location of the meeting, the purpose of the meeting and how the introduction took place (at [89]).

The new evidence

The accused filed two criminal motions seeking leave to adduce fresh evidence for his appeal, which the Court of Appeal granted. The new evidence thus adduced consists of:³ Statements made by Suief in 2011, namely: A contemporaneous statement recorded on 28 October 2011; A cautioned statement recorded on 28 October 2011; A long statement recorded on 30 October 2011; A long statement recorded on 31 October 2011; and A cautioned statement recorded on 20 December 2011; Statements made by Shanmugam in 2011, namely: The contemporaneous statement recorded on 28 October 2011; The long statement recorded on 31 October 2011; The long statement recorded on 2 November 2011; and The cautioned statement recorded on 20 December 2011; The SingTel Call Trace Report for “B2-HP2” (ie Suief’s mobile phone 98944870) (the “Call Trace Report”); and Travel movement records from the Immigration Checkpoint Authority (“ICA”), for: G Mathan Genasan from 1 January 2011 to 12 October 2011; Shanmugam from 1 January 2011 to 12 October 2011; Shanmugam’s mother for the month of October 2011; and Shanmugam’s daughter for the month of October 2011.

At the appeal hearing before the Court of Appeal on 30 June 2021, the Court of Appeal remitted the matter to me to consider the two questions set out at [2] above.⁴

For the remittal, both the Defence and the Prosecution tendered substantially the same submissions that they had made to the Court of Appeal, notwithstanding that the questions posed by the Court of Appeal were specific and limited in scope. I heard oral submissions from the Defence and the Prosecution on 30 July 2021. To facilitate the evidential analysis and a comparison of the new evidence with the trial evidence, I requested the parties to prepare an agreed Excel spreadsheet based on a specific format containing all the evidence material to the questions to be answered. The parties’ Agreed Table of Evidence was submitted to me on 14 September 2021.

Whether the new evidence affects my finding concerning the Alleged Introductory Meeting

Although the first question posed by the Court of Appeal asks me to evaluate whether the new evidence affects my finding concerning the Alleged Introductory Meeting, the Defence has woven that new evidence together with the trial evidence which was previously before me into a number of arguments against my finding. I will therefore consider each of these arguments in turn, taking into account both the previously available and the new evidence.

The arguments made by the Defence in relation to the Alleged Introductory Meeting may be summarised as follows: My finding that the Alleged Introductory Meeting had taken place on 12 October 2011 ran against the grain of the evidence, as both Suief and Shanmugam had testified that the Alleged Introductory Meeting had taken place in the afternoon or evening.⁵ Yet, in the afternoon and evening of 12 October 2011, the accused and Shanmugam were not even in Singapore.⁶ The Alleged Introductory Meeting could not have taken place then. Instead, the evidence indicates that the meeting at which the Couriers first met each other must have been around 24 October 2011 instead, a time when the accused was not in Singapore.⁷ Further, it is extremely unlikely that the Alleged Introductory Meeting could have taken place on 12 October 2011 as recounted by the Couriers, as Shanmugam was only in Singapore on that day for a relatively brief period (from 7.24am to 9.36am).⁸

The time of day at which the Alleged Introductory Meeting took place

The Defence points out that the Couriers had consistently stated that the Alleged Introductory Meeting took place in the afternoon or the evening. The Agreed Table of Evidence⁹ sets out the positive statements made by the Couriers in relation to the time of day at which the Alleged Introductory Meeting was said to have taken place. I set out below an extract from that table:

	Shanmugam’s evidence	Suief’s evidence
2011 statements	Between “1 plus in the afternoon” and “3 plus in the afternoon”10	Around “5 plus in the evening”11
2014 trial	-	Around 4pm to 5pm12
Additional statements before 2018 trial	Between “1 plus in the afternoon” and “sometimes at 3.00pm”13	“in the evening”14
2018 trial	It was “[t]hereabout in the evening” when Shanmugam drove back to Malaysia15	About 2pm to 3pm16

The Defence places particular emphasis on the newly adduced 2011 statements from the Couriers. It argues that these statements were recorded within three weeks of the alleged 12 October 2011 meeting. At such close proximity, the time of day would have been fresh in the Couriers’ minds. There was also no reason at the time for Shanmugam and Suief to admit to the Alleged Introductory Meeting but lie about the timing.¹⁷

I do not think that these statements are as “extremely critical” and dispositive as the Defence makes them out to be in relation to the time of the Alleged Introductory Meeting.¹⁸ At the outset, I observe that the 2011 statements suffer from the same issues of credibility that I attributed to the Couriers’ evidence at the 2014 trial (see [71]–[73] of my judgment). In 2011, as in 2014, the Couriers would have been attempting to avoid incriminating themselves. These statements must be taken with the proverbial pinch of salt.

However, even if I were to take the 2011 statements at face value, I note that there is a considerable difference between Shanmugam’s evidence and Suief’s evidence in relation to the time of the Alleged Introductory Meeting. If the time of the Alleged Introductory Meeting were to be so fresh in their minds, I would have expected their evidence to be much more similar. Moreover, neither Suief nor Shanmugam were individually consistent in the times they gave, from their 2011 statements up to the 2018 trial.

Accordingly, I do not find Suief and Shanmugam’s evidence in relation to the time of the...