Rahmat bin Karimon v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Steven Chong JCA
• Judgment Date: 05 August 2021
• Neutral Citation: [2021] SGCA 74
• Published date: 11 August 2021
• Docket Number: Criminal Motion No 17 of 2021
• Year: 2021
• Hearing Date: 12 July 2021
• Plaintiff Counsel: Chan Tai-Hui Jason SC, Leong Yi-Ming, Zeslene Mao Huijing, Tan Xue Yang (Allen & Gledhill LLP)
• Citation: [2021] SGCA 74
• Defendant Counsel: Muhamad Imaduddien and Chin Jincheng (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Subject Matter: Statutory offences,Criminal Procedure and Sentencing,Criminal Law,Misuse of Drugs Act,Leave for review,Criminal review

Steven Chong JCA: Introduction

This is an application by Rahmat bin Karimon (“Rahmat”) for leave under s 394H(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) to review an earlier judgment of the Court of Appeal in CA/CCA 49/2017, which was reported in Zainal bin Hamad v Public Prosecutor and another appeal [2018] 2 SLR 1119 (“Rahmat (CA)”). This application is premised on the change of the law brought about by the Court of Appeal’s decision in Gobi a/l Avedian v Public Prosecutor [2021] 1 SLR 180 (“Gobi”) as regards the proper treatment of the concept of wilful blindness in the context of the presumption under s 18(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”) that any person who is proved or presumed to possess a controlled drug shall be presumed to have known the nature of the drug. In particular, the Court of Appeal held in Gobi that the s 18(2) presumption cannot be invoked to presume wilful blindness. Thus, following Gobi, the Prosecution cannot rely on the s 18(2) presumption to presume wilful blindness. In this application, Rahmat submits that the Prosecution’s case in the trial below and on appeal was “in substance” based on wilful blindness rather than on actual knowledge. Consequently, the Prosecution could not have relied on the s 18(2) presumption, and the trial judge’s (the “Judge”) and the Court of Appeal’s findings that Rahmat could not rebut the s 18(2) presumption thus cannot stand.

This is not the first application for leave to review a concluded criminal appeal on the basis of the change of law in Gobi. In Datchinamurthy a/l Kataiah v Public Prosecutor [2021] SGCA 30 (“Datchinamurthy”) and Khartik Jasudass and another v Public Prosecutor [2021] SGCA 13 (“Khartik”), the applicants in those cases similarly brought leave applications on the basis that the s 18(2) presumption was not open to the Prosecution as the Prosecution’s case at the trial had purportedly been based on wilful blindness rather than on actual knowledge. Both of those leave applications failed because this court found in those cases that the Prosecution’s cases and the court’s decisions were in fact based on actual knowledge and not on wilful blindness.

To succeed in a leave application under s 394H of the CPC, the application must disclose a legitimate basis for the exercise of this court’s power of review. The court hearing such a leave application would have to consider the requirements set out in s 394J of the CPC. In particular, under s 394J(2), there must be (a) “sufficient material on which the appellate court may conclude” that (b) there has been “a miscarriage of justice” (Datchinamurthy at [21]–[22]). These have come to be known as the “sufficiency” and “miscarriage of justice” requirements respectively, and I shall refer to them in this judgment as such. The present case presents a suitable opportunity for this court to examine and clarify the contours of these requirements and the respective roles they play in the leave application.

Factual and procedural background Background facts

The factual background of Rahmat (CA) is relatively straightforward. At the material time, Rahmat was employed as a runner for one “Kanna Gila” (“Kanna”) who was in the business of illegal money-lending. Rahmat had known Kanna for a period of less than two months prior to his arrest.

On 27 May 2015, sometime before 6.51pm, Rahmat entered Singapore from Malaysia via the Woodlands Checkpoint in a car. He was with his wife and their three children. Pursuant to Kanna’s earlier instructions, after entering Singapore, Rahmat drove to Rochor Road where he met up with a male subject known as “Bai”, who instructed Rahmat to meet Zainal bin Hamad (“Zainal”) at the IKEA store located in Tampines, Singapore (“IKEA”). Rahmat was known to Zainal as “Abang” and Zainal was known to Rahmat as “26”.

Rahmat and Zainal then met at the staircase on the second level of IKEA. At about 8.35pm, Zainal passed S$8,000 to Rahmat. After which, Rahmat placed a green bag (“Bag”) at the staircase landing in front of Zainal before leaving IKEA. Rahmat then met up with his wife and children and drove the car with his family to Woodlands Checkpoint. At the checkpoint, Rahmat and his wife were arrested by officers of the Central Narcotics Bureau (“CNB”). Rahmat’s wife was searched, and S$8,000 was found concealed in her brassiere. Rahmat had passed the S$8,000 he received from Zainal to his wife and had told her to conceal it in her brassiere whilst they were en route to Woodlands Checkpoint.

Zainal thereafter picked up the Bag and placed it in a warehouse located on the second floor of IKEA. At about 9.25pm, CNB officers entered the warehouse and arrested Zainal. The Bag was found to contain one red coloured plastic bag containing three plastic packets of 1381.7g of granular/powdery substance (the “Drugs”). The Drugs were subsequently found to contain not less than 53.64g of diamorphine, a controlled drug. Neither Rahmat nor Zainal were authorised under the MDA or the Regulations made thereunder to traffic or be in possession of a controlled drug.

The trial and the trial judge’s decision

Rahmat was jointly tried with Zainal before the Judge. Zainal was charged with having not less than 53.64g of diamorphine in his possession for the purpose of trafficking under s 5(l)(a) read with s 5(2) and punishable under s 33(1) of the MDA, while Rahmat was charged with trafficking in not less than 53.64g of diamorphine under s 5(1)(a) and punishable under s 33(1) of the MDA.

At the trial, the Prosecution had run three arguments in its closing submissions: (a) Rahmat could not rebut the s 18(2) presumption of knowledge; alternatively, (b) Rahmat was either wilfully blind or (c) had actual knowledge that the Bag contained diamorphine. Rahmat’s defence was that he believed that he was carrying medicine.

The Judge convicted Zainal and Rahmat of their respective charges and imposed the mandatory sentence of death on them, as no certificate of substantive assistance was provided. The Judge’s decision is reported in Public Prosecutor v Rahmat bin Karimon and another [2018] 5 SLR 641 (“Rahmat (HC)”). The Judge noted that the Prosecution’s primary case was that Rahmat could not rebut the s 18(2) presumption of knowledge (Rahmat (HC) at [15]). The Judge also noted that the Prosecution had run an “alternative” case that Rahmat was “either wilfully blind or had actual knowledge of the nature of the Drugs” (Rahmat (HC) at [16]). The Judge found that Rahmat failed to rebut the s 18(2) presumption (Rahmat (HC) at [60]); and that actual knowledge and wilful blindness had been separately proven beyond a reasonable doubt (Rahmat (HC) at [61] and [65] respectively).

The appeal and the Court of Appeal’s decision

On 11 September 2018, the Court of Appeal dismissed both Zainal’s and Rahmat’s appeals against conviction, and delivered its grounds of decision (“GD”) in Rahmat (CA) on 3 October 2018. There is no suggestion in this application that the Court of Appeal’s GD in Rahmat (CA) had inaccurately recorded the parties’ respective cases. While Rahmat challenged all three aspects of the Judge’s findings in his written submissions, for the appeal hearing, he chose, as it was his prerogative, to focus on his sole defence that the s 18(2) presumption of knowledge had been rebutted. This was explicitly noted in Rahmat (CA) at [30]. On this basis, the Court of Appeal held that Rahmat had failed to rebut the s 18(2) presumption of knowledge (Rahmat (CA) at [36]).

Subsequent events

On 21 January 2020, an order under s 313(f) of the CPC was issued by the President of the Republic of Singapore for the sentence of death pronounced on Rahmat to be carried into effect on 14 February 2020. Pursuant to s 313(g) of the CPC, a warrant was then issued by the Chief Justice authorising and requiring the Commissioner of Prisons to carry the sentence of death into execution. On 11 February 2020, the President of the Republic of Singapore, in accordance with Art 22P(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) and s 313(h) of the CPC, ordered a respite of the execution of the said warrant pending any further order.

On 20 February 2020, the Court of Appeal granted leave to the applicant in Gobi to make a criminal review application. On 19 October 2020, the Court of Appeal’s decision on the criminal review application in Gobi was delivered. Following the Court of Appeal’s decision in Gobi, the Attorney-General’s Chambers wrote to Rahmat’s counsel, Mr Jason Chan SC (“Mr Chan”), on 2 December 2020, stating that, in view of Gobi, the Prosecution was of the view that it would be “prudent” for Rahmat to “undertake [his] own review of the record of proceedings” to consider how, if at all, the decision in Gobi could affect him. Rahmat then filed the present criminal motion on 21 April 2021. Under s 394H(6)(a) of the CPC, such a leave application is to be heard by a single Judge sitting in the Court of Appeal where the appellate court in question is the Court of Appeal. It is on this basis that I am determining this leave application.

Applicable law

It first bears emphasis that the review process is directed at the earlier decision of the appellate court, ie, the decision of the Court of Appeal in Rahmat (CA): see ss 394F(1), 394G(1) and 394J(5) of the CPC. The focus of any application for leave to commence a review application should, thus, be on the relevant appellate court’s decision, which is the decision that must be shown to be demonstrably wrong to establish a miscarriage of justice (Datchinamurthy at [25]).

Following the seminal decision in Kreetharan s/o Kathireson v Public Prosecutor and other matters [2020] 2 SLR 1175 at [17], it is now settled that an application for leave to commence a review application under s 394H of the CPC must disclose a “legitimate basis” for the exercise of...