Punithan a/l Genasan v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 31 October 2022
• Neutral Citation: [2022] SGCA 71
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeal No 12 of 2020
• Published date: 03 November 2022
• Year: 2022
• Hearing Date: 30 June 2022
• Plaintiff Counsel: Narayanan Sreenivasan SC, Murugiah Rajaram, Periowsamy Otharam, Jerrie Tan Qiu Lin and Carmen Lee Jia Wen (K&L Gates Straits Law LLC)
• Defendant Counsel: Terence Chua Seng Leong, Nicholas Wuan Kin Lek and Sunil Nair (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act
• Citation: [2022] SGCA 71

Tay Yong Kwang JCA (delivering the grounds of decision of the court): Introduction

The appellant, Punithan a/l Genasan, faced one charge of trafficking in diamorphine, in furtherance of the common intention of himself, V Shanmugam a/l Veloo (“Shanmugam”) and Mohd Suief bin Ismail (“Suief”). We refer to Shanmugam and Suief collectively as the “Couriers”. The appellant and Shanmugam are Malaysians and they resided in Malaysia. Suief, a Singaporean, resided in Singapore.

The appellant was tried and convicted on 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) (“MDA”) and s 34 of the Penal Code (Cap 224, 2008 Rev Ed) (“PC”):¹

That you, Punithan a/l Genasan, on 28 October 2011, in Singapore, together with one [Shanmugam] and [Suief], in furtherance of the common intention of you all, did traffic in a Class A controlled drug listed in the First Schedule to the [MDA], to wit, that on 12 October 2011, at the West Coast McDonald’s carpark you had introduced the said [Shanmugam] to one [Suief] to facilitate an impending drug transaction, and pursuant to this meeting between the three of you, on 28 October 2011, [Shanmugam], acting under your direction, came into Singapore driving a motor vehicle JLT8467 and met up with [Suief], and [Shanmugam] 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 [MDA], for the purposes of trafficking in the said controlled drug with [Suief], and the possession and intended transaction of the said controlled drug was without authorisation under the [MDA] or the Regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) of the [MDA] read with section 5(2) of the [MDA] and section 34 of the [PC], and the offence is punishable under s 33(1) of the [MDA].

It was not disputed that the transaction on 28 October 2011 involving the Couriers took place. That was a matter determined after a joint trial of the Couriers before Choo Han Teck J on 3 February 2015 (see Public Prosecutor v Shanmugam a/l Veloo and another [2015] SGHC 33 (respectively, the “2014 Trial” and the “Trial Judgment on the Couriers”)). The Couriers were convicted at the 2014 Trial. Shanmugam was sentenced to life imprisonment and 15 strokes of the cane while Suief was sentenced to death. This Court upheld the convictions and respective sentences of the Couriers in Mohd Suief bin Ismail v Public Prosecutor [2016] 2 SLR 893 (the “Appellate Judgment on the Couriers”).

In the course of investigations, Shanmugam identified the appellant as the mastermind behind the drug transaction that took place on 28 October 2011. The appellant was arrested in Malaysia subsequently and extradited to Singapore on 21 January 2016. His trial proceeded in 2018 before another Judge of the General Division of the High Court (the “Judge”) and he was eventually convicted on the Charge (see Public Prosecutor v Punithan a/l Genasan [2020] SGHC 98 (respectively, the “2018 Trial” and the “Judgment”)). The Judge found that the Prosecution had proved beyond reasonable doubt that the appellant introduced Shanmugam to Suief at West Coast McDonald’s on 12 October 2011 for the purpose of facilitating the impending drug transaction (at [111]–[112]). The appellant was sentenced to suffer the mandatory death penalty. CA/CCA 12/2020 (“CCA 12”) is the appellant’s appeal against his conviction and sentence.

In this appeal, we were not concerned about the events that took place on 28 October 2011 in relation to the Couriers. Those matters have already been dealt with in the Trial Judgment on the Couriers and in the Appellate Judgment on the Couriers. Based on the Charge against the appellant, the appellant’s involvement in the drug transaction on 28 October 2011 was that he had introduced the Couriers to each other at the West Coast McDonald’s carpark on 12 October 2011 (the “Alleged Introductory Meeting”). The central question in this appeal was whether there was such a tripartite meeting on 12 October 2011 because that was the link alleged between the appellant and the drug transaction involving the Couriers that took place on 28 October 2011. As is evident from the Charge set out above, the Prosecution alleged that it was “pursuant to this meeting” that the Couriers carried out the said drug transaction. It was therefore incumbent on the Prosecution to prove beyond reasonable doubt that the Alleged Introductory Meeting did take place as alleged in the Charge in order to prove the common intention of the appellant and the Couriers to traffic in the drugs.

There were discrepancies in evidence as to the date and the time of day of the Alleged Introductory Meeting at the 2014 Trial and the 2018 Trial. Before the substantive hearing of CCA 12 before us, the appellant filed two criminal motions. CA/CM 35/2020, filed on 9 December 2020, and CA/CM 8/2021, filed on 29 January 2021, were the appellant’s applications for leave to adduce the following fresh evidence: the investigation statements recorded from Suief between October and December 2011; the investigation statements recorded from Shanmugam between October and December 2011; the Singtel call trace report for Suief’s mobile phone; the Immigration and Checkpoints Authority (“ICA”) travel movement records of Shanmugam from 1 January to 12 October 2011; and the ICA travel movement records of Shanmugam’s foster mother, foster daughter (for the month of October 2011) and the appellant’s brother, Mathan Genasan (for 1 January to 12 October 2011) (“Mathan”) (collectively, the “New Evidence”).

On 10 May 2021, we heard both applications and allowed the New Evidence to be adduced for the appeal. This case was then remitted by us to the Judge for him to consider whether the New Evidence would affect his earlier decision in the 2018 Trial that the Alleged Introductory Meeting took place in the morning of 12 October 2011.

The ICA travel movement records of Shanmugam from 1 August to 28 October 2011 were admitted in evidence at the 2018 Trial.² For the month of October 2011, Shanmugam was in Singapore on 1, 12, 18, 24, 25 and 28. It was not disputed that the records showed that Shanmugam was in Singapore from 7.24am to 9.36am on 12 October 2011, having entered and later exited through the Woodlands Checkpoint. Similarly, the ICA travel movement records of the appellant from 1 August 2011 to 22 January 2016 were admitted in evidence at the 2018 Trial and these showed that for the month of October 2011, the appellant was in Singapore on only 11 October 2011 between 3.10pm and 10.47pm and on 12 October 2011 from 7.04am to 12.19pm.³ The appellant’s next entry into Singapore was on 21 January 2016 when he was repatriated here by the Malaysian authorities. Therefore, what was particularly pertinent to the appeal before us was how Suief’s and Shanmugam’s 2011 investigation statements, which were not in evidence at the 2018 Trial and in which they asserted at various times that the Alleged Introductory Meeting took place in the afternoon or in the evening of a day sometime in October 2011, would fit with the objective ICA travel movement records of Shanmugam and of the appellant which showed that the only common date when both these men were in Singapore was 12 October 2011 and on that day, Shanmugam had exited Singapore by 9.36am and the appellant had left Singapore by 12.19pm.

After reviewing the New Evidence and the evidence which was adduced at the 2018 Trial, the Judge concluded in his further judgment of 13 December 2021 (Punithan a/l Genasan and Public Prosecutor [2021] SGHC 284 (“Remittal Judgment”)) that his earlier decision was not affected by the New Evidence. In his opinion, the appellant did not raise a reasonable doubt as to the correctness of his earlier finding that the Alleged Introductory Meeting took place in the morning of 12 October 2011.

After considering the Judge’s Remittal Judgment and hearing the parties further in this appeal, we decided to allow the appellant’s appeal and to acquit him on the Charge. We now set out our reasons.

Background The Couriers’ convictions and sentences

On 28 October 2011, officers from the Central Narcotics Bureau (“CNB”) saw Suief carrying a haversack to a bus stop outside the Haw Par Villa at Pasir Panjang Road at about 11.25am. About five minutes later, Shanmugam drove a vehicle bearing Malaysian registration number JLT8467 (“Kenari car”) to the bus stop and Suief got into the Kenari car. Shanmugam drove along Pasir Panjang Road, stopped at a hilltop car park at the National University of Singapore, before proceeding to an Esso petrol station along Pasir Panjang Road. The Kenari car left the petrol station at about 12.12pm and went along Pasir Panjang Road and West Coast Highway. It arrived and stopped at Block 405 Pandan Gardens (“Block 405”) (Trial Judgment on the Couriers at [3]–[5]).

Suief was seen leaving the Kenari car and walking to Block 405, carrying a black plastic bag. Subsequently, CNB officers arrested both Suief (who was then outside his mother’s apartment at Block 405) and Shanmugam (who was still in the Kenari car). The haversack that Suief carried when he first entered the Kenari car was found on the floor mat of the front passenger seat. It contained three black plastic bundles, two plastic bags and one bundle wrapped in newspaper. The bundles were found to contained granular substances. The black plastic bag that Suief carried when he went up Block 405 was found among some flowerpots on the staircase landing between the seventh and eighth floors. It contained three newspaper wrapped bundles containing granular substances. The granular substances in all of the drug exhibits were analysed and found to...