Roslan bin Bakar v PP

• Jurisdiction: Singapore
• Judge: Judith Prakash JCA,Belinda Ang Saw Ean JAD,Woo Bih Li JAD
• Judgment Date: 07 March 2022
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Motion No 6 of 2022

Roslan bin Bakar and others

and

Public Prosecutor

[2022] SGCA 18

Judith Prakash JCA, Belinda Ang Saw Ean JAD and Woo Bih Li JAD

Criminal Motion No 6 of 2022

Court of Appeal

Criminal Procedure and Sentencing — Criminal review — Leave for review — Malaysian non-governmental organisation applying for leave — Whether non-party to decision sought to be reviewed could be applicant — Section 394H Criminal Procedure Code 2010 (2020 Rev Ed)

Criminal Procedure and Sentencing — Criminal review — Leave for review — Whether conditions for leave for review satisfied — Section 394H Criminal Procedure Code 2010 (2020 Rev Ed)

Held, dismissing the application as against all three applicants:

(1) The third applicant's position of being against the imposition of the death penalty did not qualify the third applicant, or give it standing, to be a party to an application under s 394H of the CPC. Since a criminal proceeding was the prosecution by the State of an alleged offender charged with breaking its laws, it was against the whole purpose and tenor of criminal proceedings to allow third parties to participate in them: at [6] and [10].

(2) Section 394H(1) provided that before making a review application, the applicant had to apply to the appellate court for, and obtain, the leave of that court to do so. Section 394H of the CPC appeared within Div 1B of Pt 20 thereof, entitled “Review of earlier decision of appellate court”. The term “review application” was defined in s 394F to mean “an application to review an earlier decision of an appellate court”. As a matter of statutory interpretation, the “applicant” had to be one of the parties to the decision of the appellate court which the applicant wanted to have reviewed. As the CPC applied to criminal cases and appeals, the parties to an application under s 394H could only be the Prosecution and the person against whom the original criminal case had been brought. The context of s 394H within the CPC and its purpose clearly supported such interpretation. In contrast, a broader interpretation which would include any person who desired a different result in a concluded appeal was against Parliament's intention to limit the scope of review and weed out unmeritorious cases: at [7] to [9].

(3) The leave stage allowed only those applications which disclosed a legitimate basis for the court's power of review to proceed. Such legitimate basis was informed by s 394J of the CPC, which set out the requirements for exercise of the power of review under Div 1B. An applicant in a review application had to satisfy the appellate court that there was sufficient material (being evidence or legal arguments) on which the appellate court could conclude that there had been a miscarriage of justice in the criminal matter in respect of which the earlier decision was made. The material had to be either evidence or legal arguments that had not previously been canvassed and could not, with reasonable diligence, have been adduced in court earlier. The material had to be compelling in that it was capable of showing almost conclusively that there had been a miscarriage of justice. Additionally, where the material comprised legal arguments, it had to be based on a change in the law that had arisen from any decision made by a court after the conclusion of all proceedings relating to the criminal matter in respect of which the earlier decision was made: at [19] and [20].

(4) In a leave application under s 394H, the applicant had to show the court that the material it relied on in the review proper was almost certain to satisfy the s 394J requirements. If the material produced could not meet that standard, there would be no legitimate basis on which to grant leave. While the standard might appear to be set high, a criminal review proceeding, which was intended to reopen a final decision of an appellate court after the applicant had been accorded all due process rights, was an extraordinary proceeding and could only be initiated in rare and extraordinary circumstances: at [21].

(5) The first and second applicants sought leave for the court to review the decisions in CCA 59 and CCA 26. In CCA 59 and CCA 26, the applicants had produced evidence that the first applicant had an IQ of 74 while the second applicant had an IQ of 67, while the Prosecution had adduced evidence to establish their mental responsibility for their actions. The Court of Appeal had, in the appeals, upheld the High Court's finding that neither of the applicants had suffered from an abnormality of mind that impaired his responsibility for the offence that he committed. At the application for leave for review, the applicants did not produce any new evidence regarding their mental states. There was thus no evidential material at all, much less compelling material, which could found a criminal review of either CCA 59 or CCA 26: at [22], [23] and [25].

(6) There was also no material in the form of legal arguments that could support a review. There was no change in the law that arose from any decision made by a court after the conclusion of all proceedings relating to CCA 59 and CCA 26. The four “reasons” raised by counsel for the applicants were based on alleged principles that assumed that the death penalty was to be carried out on persons who were subject to “mental disorder” or “substantial impairment” of their mental facilities and such principles, even if they existed, were unavailable to the applicants. The applicants had been found as a matter of fact to have no mental disorder or substantial mental impairment: at [26] and [27].

(7) The applicants did not adduce any material to establish the existence of any rule of customary international law prohibiting the execution of intellectually disabled persons or that the execution of such persons amounted to inhuman punishment. In any event, such arguments were wholly theoretical since neither of the applicants was so impaired: at [28] and [29].

Case(s) referred to

Iskandar bin Rahmat v PP [2021] 2 SLR 1151 (refd)

Kho Jabing v PP [2016] 3 SLR 135 (refd)

Kreetharan s/o Kathireson v PP [2020] 2 SLR 1175 (folld)

Pitman v State of Trinidad and Tobago [2018] AC 35 (refd)

S v Taanorwa 1987 (1) ZLR 62 (SC) (refd)

Tan Cheng Bock v AG [2017] 2 SLR 850 (folld)

Yong Vui Kong v PP [2010] 3 SLR 489 (refd)

Facts

The first and second applicants were convicted, in separate cases, of drug trafficking and sentenced to death on 22 April 2010. Their appeals against conviction and sentence were dismissed on 17 March 2011. In June 2016, following amendments to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (the “MDA”), the first applicant filed a criminal motion to apply for re-sentencing to life imprisonment on the basis that he was a courier within the meaning of s 33B(3)(a) of the MDA and that he suffered from an abnormality of mind that substantially impaired his mental responsibility for his acts and omissions within the meaning of s 33B(3)(b) of the MDA. The second applicant made a similar application in July 2016. The applications were heard together. In November 2017, the High Court dismissed the applications, finding that only the second applicant was a courier (but the first applicant was not) and that neither the first applicant nor the second applicant suffered from an abnormality of mind. The applicants appealed vide CA/CCA 59/2017...