Ramalingam Ravinthran v AG

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 10 January 2012
• Neutral Citation: [2012] SGCA 2
• Year: 2012
• Date: 10 January 2012
• Published date: 17 January 2012
• Hearing Date: 09 November 2011
• Plaintiff Counsel: M Ravi (L F Violet Netto)
• Citation: [2012] SGCA 2
• Defendant Counsel: Mavis Chionh, Teo Guan Siew and Zhuo Wenzhao (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Motion No 60 of 2011

Chan Sek Keong CJ (delivering the judgment of the court): Introduction

The applicant, Ramalingam Ravinthran (“the Applicant”), was convicted after a trial before a High Court judge (“the Trial Judge”) of two charges of trafficking in controlled drugs under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“the MDA”) (see Public Prosecutor v Ramalingam Ravinthran [2009] SGHC 265 (“Ramalingam (HC)”)). Both charges carried the mandatory death penalty under s 33 of, read with the Second Schedule to, the MDA. The Applicant subsequently appealed to this court, which dismissed his appeal (see Ramalingam Ravinthran v Public Prosecutor [2011] SGCA 14 (“Ramalingam (CA)”)).

The Applicant has now applied to this court, by way of Criminal Motion No 60 of 2011 (“this Motion”), to re-open our judgment in Ramalingam (CA) so as to enable him to argue that the prosecution leading to his conviction in Ramalingam (HC) was unconstitutional. The specific ground relied on by the Applicant is the alleged violation of Art 12(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”) which occurred when the Attorney-General, in his capacity as the Public Prosecutor, decided to charge the Applicant with capital offences while charging one Sundar Arujunan (“Sundar”), who was involved in the same criminal enterprise, with non-capital offences. The Applicant seeks the following orders to remedy this alleged breach of Art 12(1): (a) that the capital charges against him be amended to non-capital charges; and (b) that the sentence imposed by the Trial Judge be set aside and replaced with a suitable non-capital sentence, such that there is no difference in punitive treatment between him and Sundar.

Factual background

The factual background to this Motion is set out in Ramalingam (HC) and Ramalingam (CA). For present purposes, the material facts are as follows. On 13 July 2006 at around 5.15pm, the Applicant drove his car to Sri Arasakesari Sivan Temple at Sungei Kadut Avenue. He met Sundar in the compound of the temple. Sundar placed a sports bag on the back seat of the Applicant’s car. The Applicant then drove off with Sundar seated in the front passenger seat. After a while, Sundar alighted from the car at a bus stop, and the Applicant drove on towards his destination. Both men were separately arrested shortly afterwards by officers of the Central Narcotics Bureau (“CNB”) in a planned operation. The sports bag in the Applicant’s car was found to contain eight blocks of vegetable matter wrapped in aluminium foil and transparent plastic cling wrap. Analysis done by the Health Sciences Authority showed that the blocks contained 5,560.1g of cannabis and 2,078.3g of cannabis mixture. In statements taken from the Applicant and Sundar that were adduced at the Applicant’s trial, both men admitted to having been previously involved in similar suspicious activities, but claimed that they had no knowledge that the “things” which they had delivered on those previous occasions were drugs.

The charges against the Applicant and Sundar

The Applicant and Sundar were charged separately with drug trafficking. Sundar was charged on 20 June 2007 (in Criminal Case No 17 of 2007) with two offences. The first charge against him stated:

[O]n the 13th day of July 2006 at about 5.20 p.m., at the Sri Arasakesari Sivan Temple, No. 25 Sungei Kadut Avenue, Singapore, [you] did traffic in a controlled drug specified in Class ‘A’ of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, by delivering to one Ramalingam Ravinthran not less than 499.99 grams of vegetable matter which was analysed and found to be cannabis, without any authorisation under the said Act or the regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) and punishable under section 33 of the Misuse of Drugs Act, Chapter 185. [emphasis added]

The second charge against Sundar stated:

[O]n the 13thday of July 2006 at about 5.20 p.m., at the Sri Arasakesari Sivan Temple, No. 25 Sungei Kadut Avenue, Singapore, [you] did traffic in a controlled drug specified in Class “A” of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, by delivering to one Ramalingam Ravinthran not less than 999.99 grams of vegetable matter which was analysed and found to contain tetrahydrocannabinol and cannabinol, without any authorisation under the said Act or the regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) and punishable under section 33 of the Misuse of Drugs Act, Chapter 185. [emphasis added]

The quantities of controlled drugs stated in the charges against Sundar were just below the threshold at which they would carry the mandatory death penalty on conviction. On 6 July 2007, Sundar pleaded guilty to both charges in the High Court and was sentenced to a total of 20 years’ imprisonment and 24 strokes of the cane.

The Applicant was charged on 9 October 2007 (in Criminal Case No 29 of 2007), likewise with two offences. In contrast to the charges against Sundar, the quantities of controlled drugs stated in the charges against the Applicant met the threshold which would carry the mandatory death penalty on conviction. The first charge against him stated:

[O]n the 13th day of July 2006 at about 5.40 p.m., in a motorcar bearing registration number SBR 4484S along Pioneer Road, Singapore, [you] did traffic in a controlled drug specified in Class “A” of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, by having in your possession for the purpose of trafficking eight blocks containing 5560.1 grams of vegetable matter which was analysed and found to be cannabis, without any authorisation under the said Act or the regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) read with section 5(2) and punishable under section 33 of the Misuse of Drugs Act, Chapter 185.

The second charge against the Applicant stated:

[O]n the 13th day of July 2006 at about 5.40 p.m., in a motorcar bearing registration number SBR 4484S along Pioneer Road, Singapore, [you] did traffic in a controlled drug specified in Class “A” of the First Schedule to the Misuse of Drugs Act, Chapter 185, to wit, by having in your possession for the purpose of trafficking eight blocks containing 2078.3 grams of fragmented vegetable matter which was analysed and found to contain tetrahydrocannabinol and cannabinol, without any authorisation under the said Act or the regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) read with section 5(2) and punishable under section 33 of the Misuse of Drugs Act, Chapter 185.

At the Applicant’s trial, the Prosecution called Sundar as a witness. Although Sundar turned hostile on the witness stand, the Prosecution successfully applied under s 147(3) of the Evidence Act (Cap 97, 1997 Rev Ed) to admit a previous inconsistent statement which he had made to the CNB and substituted it for his oral evidence. That statement implicated the Applicant as to his knowledge that there was cannabis in the sports bag placed in his car. The Trial Judge convicted the Applicant on the basis of Sundar’s statement as well as the Applicant’s own statements as recorded by various CNB officers.

The Applicant’s judicial review proceedings

After the Applicant’s appeal against conviction and sentence was dismissed on 7 September 2010, the Applicant applied (via Originating Summons No 234 of 2011) for leave to commence judicial review proceedings seeking a quashing order to quash his conviction, a prohibiting order to prohibit the Director of Prisons from executing the death sentence against him and an order that the same charges be preferred against him as the charges that were preferred against Sundar. The Applicant’s leave application was heard by a High Court judge as a substantive application. At the hearing, the Applicant withdrew his application for a quashing order. After hearing the parties, the High Court judge dismissed the Applicant’s application for judicial review on 31 May 2011 (see Ramalingam Ravinthran v Attorney-General [2011] 4 SLR 196). The Applicant then filed this Motion on 9 September 2011.

The issues in this Motion

This Motion involves two issues – one procedural and the other substantive. The procedural issue is whether this court should hear this Motion at this stage of the proceedings, when the Applicant has already exhausted his right of appeal. The substantive issue is whether, in the circumstances of this case, the Attorney-General violated the Applicant’s constitutional right to equality before the law, as guaranteed by Art 12(1) of the Constitution, by prosecuting him for two capital offences of drug trafficking while prosecuting Sundar for two non-capital offences of drug trafficking, even though both of them were involved in the same criminal enterprise. We deal with these two issues below, beginning with the procedural issue.

The procedural issue: the functus officio principle and the finality principle Overview of the applicable principles

The procedural issue concerns the applicability of two general principles to this case: the principle of functus officio and the principle of finality. The first principle raises the question of whether this court is functus officio and no longer has any jurisdiction to rehear or re-open any issue relating to the Applicant’s conviction and sentence vis-à-vis the charges brought against him (as set out at [6] above). The functus officio principle, as enunciated in Lim Choon Chye v Public Prosecutor [1994] 2 SLR(R) 1024 at [8], Abdullah bin A Rahman v Public Prosecutor [1994] 2 SLR(R) 1017 at [10] and Vignes s/o Mourthi v Public Prosecutor [2003] 4 SLR(R) 518 at [4]–[8] (which cases will hereafter be called “the Vignes line of decisions”), is that once this...