Syed Suhail bin Syed Zin v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 16 October 2020
• Neutral Citation: [2020] SGCA 101
• Plaintiff Counsel: Ravi s/o Madasamy (Carson Law Chambers)
• Docket Number: Criminal Motion No 28 of 2020
• Date: 16 October 2020
• Hearing Date: 22 September 2020,25 September 2020
• Subject Matter: Review application,Criminal Procedure and Sentencing
• Published date: 21 October 2020
• Defendant Counsel: Francis Ng Yong Kiat SC, Wuan Kin Lek Nicholas and Chin Jincheng (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Citation: [2020] SGCA 101
• Year: 2020

Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction

Finality is a fundamental part of the legal system. Without it, dissatisfied litigants could (and probably would) bring repeated applications to the courts. Judicial decisions must confer certainty and stability and it is impossible to have a properly functioning legal system if legal decisions are open to “constant and unceasing challenge” (see the decision of this court in Kho Jabing v Public Prosecutor [2016] 3 SLR 135 (“Kho Jabing”) at [47]). Finality, however, is not desired for its own sake. When we speak of finality, we refer to finality that is achieved after due process, during which a just and fair decision has been arrived at by the court of first instance as well as by the appellate court concerned in accordance with the applicable legal principles. Put simply, justice and fairness in both procedure as well as substance is – and will always be – the ultimate aim of the courts and the law. This applies to both civil and criminal proceedings alike. Indeed, it cannot be the case that a dissatisfied litigant could bring repeated applications until the desired outcome is achieved. If so, that would be the very perversion of justice and fairness and would make a mockery of the rule of law. Counsel should act in the best traditions of the bar and discourage litigants from repeatedly bringing patently unmeritorious applications before the court.

In support of the fundamental principle of justice enunciated above, there are legal doctrines that prevent civil cases from being re-litigated after the court has arrived at a final decision (see, in particular, the decision of this court in The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd (nTan Corporate Advisory Pte Ltd and others, other parties) and another appeal [2015] 5 SLR 1104). Likewise, such re-litigation is also proscribed in the criminal sphere. Nevertheless, as justice and fairness are the ultimate aims of the legal system, there exists an extremely limited legal avenue to review decisions even after the accused person has been afforded his or her due process under the law. This is not surprising as life or liberty is at stake. However, such review will only be granted in rare cases (in accordance with the legal criteria which we will elaborate upon below). Put simply, even a right to review in this context will be the exception rather than the rule. This is one end of the spectrum. At the other (and extreme) end of the spectrum, dissatisfied convicted persons may be tempted to (and, in all probability would succumb to the temptation to) utilise this legal process to bring repeated applications for review which will not only undermine the spirit and substance of the review process, but also bring us back full circle by undermining the very finality that we referred to at the outset of this judgment. As we shall see, therefore, the existing law provides a filtering or sifting process by way of an application for leave that allows applications that are without merit (and which therefore constitute an abuse of the process of court) to be dismissed either summarily or after an oral hearing.

Background facts

We first set out the relevant facts that led to this application.

The applicant, Syed Suhail bin Syed Zin, was convicted and sentenced to the mandatory death penalty for trafficking in not less than 38.84g of diamorphine (commonly known as “heroin”) under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). In the applicant’s bedroom, four plastic packets containing brownish granular substances (“the packets”) and a white metal container which contained a brownish granular substance (“the bowl”) were found. The contents of the packets and the bowl were analysed and found to contain at least 38.84g of heroin, which quantity formed the subject of the trafficking charge (see Public Prosecutor v Syed Suhail bin Syed Zin [2016] SGHC 8 (“the GD”) at [4]–[6]).

In the applicant’s statements, he claimed that he had collected two packets of heroin from his drug supplier. Shortly before his arrest, he sold one packet and poured the second packet into the bowl with the intention of packing it later. He denied knowledge of the four plastic packets and stated that he could not have afforded the heroin found in them. The applicant explained that he sold drugs sometime in May 2011 to pay for his daily expenses and rental, and ordered one to two “batu” of heroin per week from his drug supplier (see the GD at [11]–[16]).

The applicant’s case at the trial was starkly different. His case was that all the drugs found in his possession (ie, those in the packets and bowl) were for his personal consumption. He sought to persuade the court that he was a heavy user who consumed roughly 12g to 18g of heroin per day and had the financial capability to sustain his consumption. Regarding his financial means, he asserted that he had obtained a cash advance of about $20,000 from one Ami Aziz, his uncle in Malaysia (the “uncle”), and had earned $8,400 from April to July 2011 (see the GD at [26] and [29]–[30]). The applicant claimed that he did not inform the Central Narcotics Bureau (“CNB”) that the drugs were for his own consumption when giving his statements as: (a) he was in a state of panic and confusion and had experienced drug withdrawal symptoms; (b) he wanted to distance himself from the packets; (c) he was in shock from the sheer amount of heroin that he had been caught with; and (d) he had fabricated parts of the statements to put across the story that he had ordered only two packets of heroin (see the GD at [36]–[38]).

The trial judge (“the Judge”) was not persuaded that the applicant had the financial capability to sustain his alleged consumption. The applicant had irregular jobs. His bank account balances and the text messages between him, his family and his girlfriend revealed an individual who was constantly in need of money. There was also no evidence that the applicant had secured the $20,000 advance from his uncle. Further, the applicant had not informed CNB that the drugs in his possession were for personal consumption despite having had multiple opportunities to do so. In the circumstances, the Judge held that the applicant had failed to prove on a balance of probabilities that the heroin in his possession was for personal consumption and, as a consequence, had failed to rebut the presumption under s 17 of the MDA (see the GD at [45]–[52]).

In so far as sentencing was concerned, the Judge considered the applicability of the alternative sentencing regime under s 33B of the MDA. The Judge held that the applicant was not a mere courier and ss 33B(2)(a) and 33B(3)(a) of the MDA were not satisfied. The Prosecution informed the Judge that it would not be issuing a certificate of substantive assistance under s 33B(2)(b) of the MDA. Finally, the Judge held that s 33B(3)(b) of the MDA did not apply as the applicant “did not claim that he was suffering from such abnormality of mind as would have substantially impaired his mental responsibility at the time of the offence”. In the circumstances, the Judge imposed the mandatory death penalty on the applicant (see the GD at [53]).

On 18 October 2018, the applicant’s appeal in CA/CCA 38/2015 (“CCA 38”) against his conviction and sentence was dismissed by this court for the following reasons. First, the applicant had never mentioned in his statements that the drugs found in his possession were for his own consumption. Second, the medical evidence could not corroborate the alleged level of consumption. Third, there was no evidence of the $20,000 advance that the applicant had allegedly received from his uncle. Finally, the text messages found in the applicant’s phone revealed a person who was desperately scrambling for small loans to tide him over financially. This court affirmed the Judge’s decision and found that the applicant had failed to raise even a reasonable doubt (let alone prove on the balance of probabilities) that the entire consignment of drugs found in his possession was for his personal consumption.

On 20 January 2020, acting pursuant to s 313(f) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”), the President of the Republic of Singapore (“the President”) ordered the sentence of death imposed on the applicant to be carried into effect on 7 February 2020. On 5 February 2020, the President ordered a respite of the execution pending any further order. On 8 September 2020, the President ordered the sentence of death imposed on the applicant to be carried into effect on 18 September 2020.

On 17 September 2020, the applicant applied for leave under s 394H of the CPC to make a review application under s 394J of the CPC on two grounds: (a) that the issue of whether he had suffered from an abnormality of mind under s 33B(3)(b) of the MDA had not been sufficiently canvassed at the trial or appeal stages (“the Abnormality of Mind Ground”); and (b) that his trial counsel did not make the necessary inquiries to adduce evidence in relation to his uncle, in particular, on the alleged $20,000 advance which would have shown that he had the financial means to sustain his alleged level of consumption (“the Inheritance Ground”). The applicant wished to reopen his case for resentencing under s 33B(3)(b) of the MDA, as well as to reopen his appeal against his conviction. On 19 September 2020, this court granted the applicant leave to make his review application under s 394H(7) of the CPC.

We heard the review application on 22 September 2020. At the outset of the hearing, the applicant’s counsel, Mr M Ravi (“Mr Ravi”) sought to disqualify Mr Francis Ng SC (“Mr Ng”) and his team from representing the Public Prosecutor on the basis that the Public Prosecutor had come into contact with privileged or confidential information in the...