Tangaraju s/o Suppiah v PP
Jurisdiction | Singapore |
Judge | Steven Chong JCA |
Judgment Date | 23 February 2023 |
Docket Number | Criminal Motion No 25 of 2022 |
Court | Court of Appeal (Singapore) |
[2023] SGCA 8
Steven Chong JCA
Criminal Motion No 25 of 2022
Court of Appeal
Criminal Procedure and Sentencing — Criminal review — Leave for review — Applicant seeking leave to reopen concluded criminal appeal on basis that Prosecution had failed to comply with its disclosure obligations under Muhammad Nabill bin Mohd Fuad v PP[2020] 1 SLR 984 by failing to disclose certain witness statements and phone records to him — Whether there was legitimate basis for exercise of court's power of review — Whether there was sufficient material on which appellate court might conclude that there had been miscarriage of justice — Sections 394H, 394J(2) and 394J(3)(c) Criminal Procedure Code 2010 (2020 Rev Ed)
Held, dismissing the application:
(1) Under s 394H of the CPC, only an application that disclosed a legitimate basis for the exercise of the Court of Appeal's power of review would be allowed to proceed. To determine if such a legitimate basis existed, the court hearing the leave application would have to consider the requirements for a review application stipulated in s 394J(2) of the CPC, ie, whether there was sufficient material on which the appellate court may conclude that there had been a miscarriage of justice in the criminal matter in respect of which the earlier decision was made: at [28] and [29].
(2) Where an applicant was relying on a change in the law, s 394J(4) of the CPC provided an additional requirement that the legal arguments had to be based on a change in the law that arose after the conclusion of all proceedings relating to the criminal matter in respect of which the earlier decision was made. This requirement was not in issue in this application, given that the Court of Appeal's decision in Nabill post-dated the trial and the appeal: at [31] and [33].
(3) The requirements of sufficiency and miscarriage of justice were a composite requirement under s 394J(2) of the CPC. As per s 394J(3)(c) of the CPC, the new material was only sufficient if it was capable of showing almost conclusively that there had been a miscarriage of justice. Section 394J(3)(c) of the CPC also had a relevancy threshold, which required that the change in the law had to be prima facie relevant to show that the appellate court's decision was demonstrably wrong: at [36] and [37].
(4) The non-disclosure of Mogan's and Suresh's statements did not constitute a breach of the Prosecution's disclosure obligations under Nabill because both Mogan and Suresh were called as Prosecution witnesses during the trial. The Court of Appeal in Nabill left open the issue of whether the Prosecution is required to disclose the statements of material witnesses who are the Prosecution's witnesses. In any event, the Court of Appeal in CCA 38 did consider the non-disclosure of Mogan's and Suresh's statements but took the view that the absence of their statements did not affect the correctness of the Applicant's conviction in light of the other evidence against him: at [39] and [41].
(5) Shashi would be considered a “material witness” because Suresh testified that Shashi was within hearing distance when he was on the phone with the Applicant. Since Shashi was not called as a Prosecution witness, following Nabill, the Prosecution would be required to disclose Shashi's statements to the Applicant. However, the non-disclosure of Shashi's statements was insufficient to show that the Court of Appeal's earlier decision in CCA 38 was demonstrably wrong. The Court of Appeal in CCA 38 did examine the non-disclosure of Shashi's statements but found that the absence of Shashi's statements did not affect the correctness of the Applicant's conviction given that there was objective evidence and Mogan's evidence linking him to the first number: at [42] and [47].
(6) The non-disclosure of Salina's statements did not constitute a breach of the Prosecution's disclosure obligations under Nabill because Salina was not a “material witness” in relation to the Applicant's trial. There was no evidence at the trial that Salina overheard any phone conversation between Mogan and the Applicant in Mogan's car, or that she had any knowledge of the Applicant's role (or lack thereof) in the trafficking of the Drugs: at [51].
(7) The non-disclosure of the phone records of the first and second numbers did not engage the Court of Appeal's holding in Nabill because the Prosecution's disclosure obligations under Nabill pertained only to witness statements. In any event, Inspector Ng Pei Xin had tried to apply for the call records after she interviewed the Applicant, but the call records were no longer available by then: at [55] and [56].
Datchinamurthy a/l Kataiah v PP [2021] SGCA 30 (folld)
Gobi a/l Avedian v PP [2021] 1 SLR 180 (refd)
Kreetharan s/o Kathireson v PP [2020] 2 SLR 1175 (folld)
Muhammad Nabill bin Mohd Fuad v PP [2020] 1 SLR 984 (refd)
PP v Tangaraju s/o Suppiah [2018] SGHC 279 (refd)
Rahmat bin Karimon v PP [2021] 2 SLR 860 (folld)
Roshdi bin Abdullah Altway v PP [2022] 1 SLR 535 (refd)
The applicant, Tangaraju s/o Suppiah (the “Applicant”), was charged with abetting one Mogan Valo (“Mogan”) by engaging in a conspiracy with him to traffic in cannabis by delivering 1,017.9g of cannabis (the “Drugs”) to himself, an offence under s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), read with s 5(2) and s 12 of the MDA (the “Charge”).
Mogan was the courier in this case. Sometime prior to his arrest on 6 September 2013, a man known as “Selva” gave Mogan the contact number of a person whom “Selva” said could help Mogan find a job in Singapore (the “first number”). Mogan saved the first number as “India”. Subsequently, “India” gave Mogan a second number to contact him at (the “second number”), which Mogan saved as “India.jus”.
On 5 September 2013, “Selva” instructed Mogan to deliver the Drugs from Malaysia to “India” in Singapore. On 6 September 2013, Mogan collected the Drugs and drove into Singapore with his girlfriend, one Salina Binte Salim (“Salina”). He cleared the Woodlands Checkpoint at around 9.00pm but was arrested by officers from the Central Narcotics Bureau (“CNB”) at 10.10pm.
Upon his arrest, Mogan agreed to assist in a follow-up operation against “India”. Under the direction of the CNB officers, Mogan arranged to meet “India” at the toilet of the McDonald's outlet at West Coast Park (the “McDonald's cafe”) through a series of phone calls with the first number. Subsequently, one Suresh s/o Subramaniam (“Suresh”) was arrested whilst walking out of the toilet.
Suresh was the Applicant's childhood friend. According to Suresh, sometime in July 2013, the Applicant gave him two phone numbers, which corresponded with the first and second numbers which were provided to Mogan. On 6 September 2013, Suresh met his friend, one Shashi Kumar (“Shashi”), who had the use of a car. The two drove to the McDonald's cafe to buy dinner at around 9.00pm. Throughout the night, the Applicant called Suresh several times using the first number to check if he had seen a car with a certain description. On 7 September 2013, at 1.19am, the Applicant asked Suresh to check if there was anyone in the toilet. Subsequently, Suresh was arrested by CNB officers when he was leaving the toilet.
The trial judge (“the Judge”) found that the Applicant was the user of the first and second numbers and that he used the first number on 6 and 7 September 2013. to co-ordinate the delivery of the Drugs by Mogan and the receipt of the Drugs by Suresh. The Judge convicted the Applicant of the Charge and imposed the mandatory death sentence on him. The Applicant appealed his conviction in CA/CCA 38/2018 (“CCA 38”). The Court of Appeal dismissed his appeal with brief oral grounds on 14 August 2019.
The Applicant filed the present criminal motion for leave under s 394H(1) of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”) to review the earlier judgment of the Court of Appeal in CCA 38. This application was premised on the change in the law brought about by the decision in Muhammad Nabill bin Mohd Fuad v Public Prosecutor[2020] 1 SLR 984 (“Nabill”), as regards the Prosecution's duty to disclose the statements of material witnesses who were not called as Prosecution's witnesses to the Defence. The Applicant submitted that the Prosecution failed to comply with its disclosure obligations under Nabill by failing to disclose: (a) the phone records for the first number and the second number; and (b) the police statements of Mogan, Shashi, Salina and Suresh.
Criminal Procedure Code 2010 (2020 Rev Ed) ss 394H(1), 394H(7), 394J(2), 394J(3)(a), 394J(3)(b), 394J(3)(c), 394J(4), 394J(5)(a), 394J(5)(b), 394J(6)(a), 394J(6)(b)
Misuse of Drugs Act (Cap 185, 2008 Rev Ed) ss 5(1)(a), 5(2)
Applicant in person;
John Lu and Chong Kee En (Attorney-General's Chambers) for the respondent.
23 February 2023
Steven Chong JCA:
1 This is an application by Tangaraju s/o Suppiah (the “Applicant”) under s 394H(1) of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”) for permission to review an earlier judgment of the Court of Appeal in CA/CCA 38/2018 (“CCA 38”). This application is premised on the change in the law brought about by the decision of Muhammad Nabill bin Mohd Fuad v Public Prosecutor[2020] 1 SLR 984 (“Nabill”), as regards the Prosecution's duty to disclose a material witness' statement to the Defence. The decision in Nabill was delivered on 31 March 2020, after the decision in CCA 38 on 14 August 2019.
2 In the present application, the Applicant argues that following Nabill, the Prosecution should have, but failed to, disclose to him the statements of certain witnesses and certain phone records. On that basis, the Applicant argues that he should be granted permission to review the Court of Appeal's decision in CCA 38.
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