Roszaidi bin Osman v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 01 December 2022
• Neutral Citation: [2022] SGCA 75
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeal No 2 of 2019
• Published date: 06 December 2022
• Year: 2022
• Hearing Date: 12 April 2022
• Plaintiff Counsel: Eugene Singarajah Thuraisingam, Johannes Hadi (Eugene Thuraisingam LLP), Shobna Chandran and Thaddaeus Aaron Tan Yong Zhong (Tan Rajah & Cheah)
• Defendant Counsel: Hay Hung Chun and Zhou Yang (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act,Special exceptions,Diminished responsibility
• Citation: [2022] SGCA 75

Sundaresh Menon CJ (delivering the judgment of the majority consisting of Judith Prakash JCA, Belinda Ang Saw Ean JCA and himself): Introduction

The accused, Mr Roszaidi bin Osman (“Roszaidi”), was charged with trafficking in a controlled drug under s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”) by handing two packets containing not less than 32.54g of diamorphine (“the Drugs”) to his wife, Ms Azidah binte Zainal (“Azidah”). Roszaidi was convicted by a judge of the General Division of the High Court (“the Judge”) and accordingly sentenced to death. His conviction was upheld by this court in Mohammad Azli bin Mohammad Salleh v Public Prosecutor and another appeal and other matters [2020] 1 SLR 1374 (“Azli”). In his appeal against his sentence, however, Roszaidi sought to have his capital sentence reduced to imprisonment for life under the alternative sentencing regime in s 33B(1)(b) of the MDA. When the matter was remitted to the Judge, the Judge held that Roszaidi was not eligible for the alternative sentencing regime (see Public Prosecutor v Roszaidi bin Osman [2021] SGHC 22 (“the Remittal Judgment”)). This is Roszaidi’s appeal against the Judge’s decision.

The alternative sentencing regime in s 33B(1)(b) of the MDA is available only if the two conjunctive requirements in s 33B(3)(a) and s 33B(3)(b) are met. In Azli (at [28]), we held that Roszaidi was a courier within the meaning of s 33B(3)(a) of the MDA, and this is now common ground between the parties. Accordingly, whether Roszaidi ought to be re-sentenced to life imprisonment turns on whether the requirements set out in s 33B(3)(b) of the MDA are satisfied. Under the three-limb test set out by this court in Nagaenthran a/l K Dharmalingam v Public Prosecutor and another appeal [2019] 2 SLR 216 (“Nagaenthran”) at [21] (“the Nagaenthran test”), Roszaidi must establish the following cumulative requirements on a balance of probabilities in order to satisfy s 33B(3)(b): first, that he was suffering from an abnormality of mind (“the First Limb”); second, that the abnormality of mind: (i) arose from a condition of arrested or retarded development of mind; (ii) arose from any inherent causes; or (iii) was induced by disease or injury (“the Second Limb”); and third, that the abnormality of mind substantially impaired his mental responsibility for his acts and omissions in relation to his offence (“the Third Limb”).

It is not in dispute between the parties that the First Limb is satisfied as Roszaidi was suffering from major depressive disorder (“MDD”) and substance use disorder (“SUD”) at the material time. This was also common ground between the two psychiatric experts who examined Roszaidi and gave expert evidence in the proceedings, namely: the Prosecution’s expert, Dr Bharat Saluja (“Dr Saluja”), and the Defence’s expert, Dr Jacob Rajesh (“Dr Rajesh”). The issues in this appeal therefore pertain only to the Second and Third Limbs of the Nagaenthran test.

In our judgment, both the Second Limb and the Third Limb are satisfied in Roszaidi’s case. The Second Limb is satisfied by Roszaidi’s MDD and his SUD, which operated together in a “synergistic” manner at the time of the offence (a term used by Dr Rajesh, which is explained at [39] and [69] below). As for the Third Limb, we are satisfied that Roszaidi’s mental responsibility for his acts and omissions in relation to his offence was indeed substantially impaired by the combination of his MDD and SUD at the material time. We set out the applicable legal principles and explain our reasons in full below. Where relevant, we also make reference to the dissenting judgment of Andrew Phang Boon Leong JCA and Steven Chong JCA (“the Minority Judgment”).

Facts

We begin with the relevant facts pertaining to Roszaidi’s abnormalities of mind, and the background to the present appeal. It will be observed that the facts set out below span a long period of time and include a relatively granular chronology of the relevant events in Roszaidi’s life. These can be divided into four stages: (a) his drug consumption from a very young age; (b) his drug-related treatments and criminal records; (c) the events occurring after his release from prison; and (d) the circumstances surrounding his commission of the present offence. Such a full chronology of the salient events is necessary, in our view, in order to appreciate the degree and impact of Roszaidi’s abnormalities of mind, and the context within which the present offence must be viewed. For the avoidance of doubt, we sometimes refer to “diamorphine” and “methamphetamine” as “heroin” and “ice” respectively, these being their street names and/or how Roszaidi referred to them.

Roszaidi’s drug consumption from a young age

Roszaidi’s exposure to drugs began very early in his life. He started consuming cannabis at the young age of 10 with his friends, using the money given to him by his mother and grandmother for buying food, to buy cannabis instead.

The age at which Roszaidi began consuming other drugs is not consistently recorded in the experts’ reports. Dr Saluja’s first report dated 13 November 2015 (“Dr Saluja’s 1st Report”) recorded that Roszaidi began consuming heroin, erimin and dormicum from the age of 17. In contrast, Dr Rajesh’s second report dated 27 February 2020 (“Dr Rajesh’s 2nd Report”) records that Roszaidi started using heroin when he was just 12 years old; his father was a regular heroin user, and he would smoke heroin taken from his father’s stocks at home. He smoked heroin about three times a week with his friends. Dr Rajesh also records that Roszaidi started consuming erimin and dormicum tablets from the age of 12, and he consumed these once or twice a week. However, nothing turns on this difference because on either account, it is clear that Roszaidi was a heavy user of drugs from a young age.

Roszaidi’s drug-related treatments and criminal records

A perusal of Roszaidi’s treatment records at the Drug Rehabilitation Centre (“DRC”) and his criminal records reveals that he was subsequently plagued by drug-related problems for most of his adult life. These criminal records were tendered by the Prosecution on 26 April 2022, upon our request and without objection from either party.

On 1 March 1990, when Roszaidi was around 18 years old, he was ordered to undergo treatment at the DRC for six months on account of his drug consumption. On 28 May 1990, he was placed under drug supervision for 24 months. On 26 June 1990, he was again ordered to undergo treatment at the DRC for six months. On 14 June 1991, when he was around 19 years old, he was again placed under drug supervision for 24 months. On 24 January 1992, when Roszaidi was around 20 years old, he was yet again ordered to undergo treatment at the DRC for six months. And on 16 January 1995, when Roszaidi was around 23 years old, he was once again placed under drug supervision for 24 months.

Just over a week later in the same year, on 24 January 1995, Roszaidi was convicted on a charge of unauthorised possession of a controlled drug and sentenced to six months’ imprisonment. A few months later, on 24 July 1995, he was again ordered to undergo treatment at the DRC for six months.

On 16 July 1997, when Roszaidi was around 25 years old, he was placed under drug supervision for 24 months. On 4 October 1997, he was ordered to undergo treatment at the DRC for six months for his consumption of morphine. In 1999, when Roszaidi was around 27 years old, he started injecting heroin. This went on until 2006 (see [13] below).

On 23 February 2000, when Roszaidi was around 28 years old, he was convicted on another charge of unauthorised possession of a controlled drug (morphine), as well as a charge of smoking, self-administering or consuming morphine. For these two offences, he was sentenced to two years’ imprisonment and five years and three weeks’ imprisonment respectively, both to run concurrently. A further charge of consumption of cannabinol derivatives was taken into consideration.

On 28 July 2003, when Roszaidi was around 31 years old, he was placed under drug supervision for 24 months for his consumption of morphine. In 2006, when Roszaidi was around 34 years old, he stopped injecting heroin when he had to undergo an operation. He went to the Institute of Mental Health (“IMH”)’s addiction department for the “Subutex” (or buprenorphine) programme. However, even then, he continued to smoke heroin regularly. The longest period for which Roszaidi had held a job until this point was three years from 2003 to 2006, when he was between the ages of 31 and 34. During this time, he worked as a Production Officer in Jurong Island.

On 2 February 2007, when Roszaidi was around 35 years old, he was convicted of trafficking in a controlled drug (buprenorphine) and sentenced to five years’ imprisonment with five strokes of the cane. He was also convicted of smoking, self-administering or consuming buprenorphine and was sentenced to seven years and six months’ imprisonment with six strokes of the cane. These two sentences ran concurrently. Two further charges were taken into consideration: one charge of trafficking in buprenorphine, and one charge of smoking, self-administering or consuming buprenorphine. It is likely that it was when Roszaidi was serving this imprisonment term that he became acquainted with one “Is Cangeh”. In Roszaidi’s third long statement dated 17 October 2015 (“Roszaidi’s 3rd Long Statement”), he stated that he “saw [Is Cangeh] in prison when [he] was serving [the] sentence for [his] Subutex trafficking offence”.

After his release from prison in 2011, Dr Rajesh’s 2nd Report records that Roszaidi “stayed away from drugs for 1 year until 2012, when he was arrested for possession of heroin”. It is likely that this period of abstinence from drugs in fact ended before the end of 2011, given that – on 3 December 2011, when...