Tangaraju s/o Suppiah v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Steven Chong JCA
• Judgment Date: 23 February 2023
• Neutral Citation: [2023] SGCA 8
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Motion No 25 of 2022
• Hearing Date: 26 January 2023
• Citation: [2023] SGCA 8
• Year: 2023
• Plaintiff Counsel: The applicant in person
• Defendant Counsel: John Lu and Chong Kee En (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Criminal review,Leave for review,Criminal Law,Statutory offences,Misuse of Drugs Act
• Published date: 28 February 2023

Steven Chong JCA: Introduction

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.

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.

To succeed in an application for permission under s 394H of the CPC, the application must disclose a legitimate basis for the exercise of this court’s power of review. The court hearing such an application for permission would have to consider the requirements set out in s 394J of the CPC. In particular, under s 394J(2), there must be: (a) “sufficient material on which the appellate court may conclude” that (b) there has been “a miscarriage of justice” (Datchinamurthy a/l Kataiah v Public Prosecutor [2021] SGCA 30 at [21]–[22]).

It is important to bear in mind that a change in the law is not a licence to review concluded appeals. The Court of Appeal’s decision in Gobi a/l Avedian v Public Prosecutor [2021] 1 SLR 180 generated multiple unsuccessful applications to obtain leave to review. Those applications failed because the applicants did not properly appreciate the statutory requirements to obtain leave to review a concluded appeal. Change in the law per se does not constitute “sufficient material”.

In the present case, in the context of the change in the law brought about by the decision in Nabill, it is also crucial to bear in mind that if permission to review is granted, all that would happen is that the new material in the form of additional witness statements and phone records would be placed before the Court of Appeal to review its decision in dismissing CCA 38. However, if independent of the decision in Nabill, the Court of Appeal had, in dismissing the appeal, already examined the impact of the non-disclosures, then it would serve no purpose to place the same material before the Court of Appeal again. Similarly, if the new material is presently not available and therefore cannot be placed before the Court of Appeal in a review application, a review application premised on that material would serve no purpose.

For the reasons below, I find that the non-disclosure of the witness statements and the phone records does not constitute “sufficient material” to show that there has been a “miscarriage of justice”. In fact, the impact of the non-disclosure of most of the witness statements was specifically considered by the Court of Appeal when it decided to dismiss CCA 38. The Applicant has therefore failed to demonstrate any legitimate basis for the exercise of the court’s power of review. Pursuant to s 394H(7) of the CPC, I dismiss this criminal motion summarily without setting it down for hearing.

Factual and procedural background Background facts

The complete facts are set out in the trial judge’s (the “Judge”) grounds of decision in Public Prosecutor v Tangaraju s/o Suppiah [2018] SGHC 279 (“the GD”). I briefly summarise the salient facts below.

The Applicant was charged with abetting one Mogan Valo (“Mogan”) by engaging in a conspiracy with him to traffic in cannabis by delivering 1017.9g 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 Malaysian man known to Mogan as “Selva” gave Mogan the contact number of a person whom “Selva” said could help Mogan find a job in Singapore. That person’s contact number was xx39 (the “first number”), which Mogan saved as “India”. Subsequently, “India” gave Mogan a second number to contact him at, xx93 (the “second number”), which Mogan saved as “India.jus”.

On 5 September 2013, “Selva” instructed Mogan to deliver “ya lei” (which translates to “leaves” in Tamil, and which Mogan understood to mean cannabis) from Malaysia to “India” in Singapore at the carpark of PSA Vista, or, failing which, the McDonald’s outlet at West Coast Park (“the McDonald cafe”).

On 6 September 2013, Mogan collected the Drugs from a runner of “Selva” and drove into Singapore with his girlfriend, one Salina Binte Salim (“Salina”), carrying the Drugs. He cleared the Woodlands Checkpoint at around 9pm. At around 9.25pm, Mogan received a call from “India”, using the first number. He informed “India” that he was on his way to PSA Vista. Before he could deliver the Drugs, Mogan was arrested by officers from 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 Station Inspector Tay Cher Yeen (“SI Tay”), Mogan arranged to meet “India” at the toilet of the McDonald cafe through a series of phone calls with the first number.

On 7 September 2013 at 1.14am, Mogan received a call from “India” and was told that “India” was waiting at the toilet of the McDonald cafe. Shortly after, at around 1.19am, one Suresh s/o Subramaniam (“Suresh”) was arrested whilst walking out of the toilet.

After Suresh’s arrest, Mogan then made two further calls to “India” under the direction of SI Tay, and informed “India” that he was at the toilet of the McDonald cafe. At 1.38am, “India” told Mogan that he was no longer at the McDonald cafe, and that he had asked his friend, whom “India” described as a “fat Indian”, to collect the “ya lei” from Mogan.

Suresh was the Applicant’s childhood friend and knew him as “Appu”. According to Suresh, sometime in July 2013, the two exchanged phone numbers. The Applicant gave him two phone numbers, which corresponded with the first and second numbers given to Mogan. Suresh saved the first and second numbers as “Appu bro” and “Apu2” respectively.

According to Suresh, sometime in the evening on 6 September 2013, he met the Applicant by chance at the void deck of Block 34 Dover Road. After the two parted ways, Suresh met his friend, one Shashi Kumar (“Shashi”), who had the use of a car. At 7.57pm, Suresh sent a text message to the Applicant at the second number, stating “car stan by [sic] ready”.

On 6 September 2013 at around 8pm, using Shashi’s car, Suresh and Shashi drove to Clementi to obtain medical certificates to excuse themselves from attending urine tests that they were due to go for. They then bought dinner at the McDonald cafe at around 9pm.

From 12.05am to 1.16am on 7 September 2013, Suresh spoke with the Applicant on the first number in a series of nine phone calls. According to Suresh, the Applicant informed him that the Applicant’s friend would be arriving at the McDonald cafe, and he asked Suresh to call him if he were to see a silver car bearing a certain vehicle registration number. Over the course of the night, the Applicant called Suresh repeatedly to check if he had seen a car matching the description. At 1.19am, Suresh received a call from the Applicant, who asked him if there was anyone in the toilet. Suresh replied in the negative and was walking out from the toilet when he was arrested by officers from CNB.

The Applicant was not apprehended along with Mogan and Suresh on 6 and 7 September 2013. He was first placed under arrest on 23 January 2014 for failing to report for a urine test and for drug consumption. Sometime in March 2014, the Applicant was identified as a person potentially linked to Mogan’s and Suresh’s arrests. By that time, the Applicant was already in remand and none of his mobile phones could be recovered for analysis.

The trial and the Judge’s decision

At the trial, the crux of the Prosecution’s case was that the Applicant used the first number to communicate with both Mogan and Suresh to coordinate the delivery of the Drugs to himself. The crux of the defence was that the Applicant had nothing to do with the first number and was not involved in the transaction at all.

The Judge found that the Applicant was the user of the first number on 6 and 7 September 2013 to coordinate the delivery of Drugs. The Judge relied on: (a) Suresh’s testimony that the Applicant was the person who used both the first and second numbers and in particular, the person who used the first number to contact him on 6 and 7 September 2013; (b) Mogan’s testimony that the first and second numbers belonged to the same person; and (c) the Applicant’s own admission in his statement recorded on 24 April 2014 that he was the user of the second number. Although the Applicant sought to explain that he had lost his mobile phone bearing the second number on 7 August 2013, the Judge was not persuaded by his explanation because it was only mentioned in his statement of 23 May 2014 instead of his earlier statement which was recorded on 24 April 2014.

The Judge also rejected the Applicant’s argument that Suresh was the person who had coordinated the transaction using the first number. Suresh’s mobile phone which was seized upon his arrest at the McDonald cafe showed that his phone number was xx32. Furthermore, after Suresh’s arrest at around 1.20am on 7 September 2013, Mogan spoke to “India” on five further occasions from 1.20am to 2am, which suggested that Suresh could not have been “India”.

The Judge therefore found that the Applicant did engage in a conspiracy to...