Tangaraju s/o Suppiah v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Steven Chong JCA
• Judgment Date: 25 April 2023
• Neutral Citation: [2023] SGCA 13
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Motion No 19 of 2023
• Hearing Date: 24 April 2023
• Citation: [2023] SGCA 13
• Year: 2023
• Plaintiff Counsel: The applicant in person
• Defendant Counsel: Anandan Bala, Selene Yap and Tan Zhi Hao (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: 26 April 2023

Steven Chong JCA: Introduction

In 2018, Tangaraju s/o Suppiah (the “applicant”) was convicted on a capital charge and sentenced to the mandatory death penalty. On 24 April 2023, two days before his scheduled execution on 26 April 2023, the applicant filed another criminal motion (“CM 19”) seeking: an order that leave be granted to the applicant pursuant to s 394H of the Criminal Procedure Code 2010 (2020 Rev Ed) (the “CPC”) or the court’s inherent jurisdiction to make a review application in respect of the Court of Appeal’s decision in CA/CCA 38/2018 (“CCA 38”); a stay of the execution scheduled for 26 April 2023, pending the determination of this leave application; and at the conclusion of any substantive appeal, that the sentence of death imposed by the High Court Judge (the “Judge”) be set aside.

Background

The complete facts are set out in the Judge’s grounds of decision in Public Prosecutor v Tangaraju s/o Suppiah [2018] SGHC 279 (“Tangaraju (HC Conviction)”) at [6]–[37]. I briefly summarise the procedural history of this matter below.

On 9 October 2018, the applicant was convicted by a Judge of the General Division of the High Court (the “Judge”) on a capital charge of abetting with one Mogan Valo (“Mogan”) by engaging in a conspiracy to traffic in cannabis by delivering 1017.9g of cannabis to himself, an offence under s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (the “MDA”), read with s 5(2) and s 12 of that same Act (see Tangaraju (HC Conviction) at [2] and [81]). As the applicant did not fulfil any of the criteria in the alternative sentencing regime under s 33B(1) of the MDA, he was sentenced to the mandatory death penalty pursuant to s 33(1) of the MDA (Tangaraju (HC Conviction) at [82]–[83]).

The applicant’s appeal against his conviction and sentence was dismissed by this court in CA/CCA 38/2018 (“CCA 38”) on 14 August 2019 with brief oral grounds. This court agreed with the Judge that the applicant had abetted Mogan by engaging in a conspiracy to traffic in cannabis and that he used a phone bearing the first number to communicate with Mogan.

On 7 November 2022, the applicant filed CA/CM 25/2022 (“CM 25”) under s 394H of the CPC for permission to apply to review the concluded appeal in CCA 38. On 23 February 2023, this court summarily dismissed CM 25 (see Tangaraju s/o Suppiah v Public Prosecutor [2023] SGCA 8).

The parties’ arguments The applicant’s case

The applicant seeks permission to review pursuant to s 394H of the CPC or to invoke the court’s inherent jurisdiction to re-open the appeal.

In particular, the applicant states that this application concerns “important issues” of: first, whether the Prosecution bears the burden of proving beyond a reasonable doubt the elements of possession and trafficking for the purposes of proving a charge of abetment by engaging in a conspiracy of trafficking to himself; and second, whether in sentencing the applicant to the death penalty, the Judge was satisfied beyond reasonable doubt, in circumstances where the applicant had neither seen nor received the drugs, and in the circumstances where the co-conspirator gave no evidence of an agreement as to the weight of the drugs, that the applicant was aware of: the quantity of the cannabis being trafficked; and that the quantity was pursuant to the agreement he had with Mogan.

The applicant’s submissions in CM 19 mainly concern his knowledge of the quantity of the drugs being trafficked. In particular, the applicant submits that the Prosecution had failed to prove beyond a reasonable doubt that he and Mogan had an agreement to traffic 1017.9g of cannabis. The applicant claims that there was no evidence that the applicant and Mogan had an agreement to traffic a specific quantity. The applicant submits that the quantity of the drugs trafficked is an essential element which needs to be agreed between the parties to the conspiracy and proved beyond a reasonable doubt by the Prosecution. In this regard, the applicant also points to Mogan’s evidence, including his statement dated 10 February 2016 and his evidence at the trial, as well as one Suresh s/o Subramaniam’s (“Suresh”) testimony in court. The applicant submits that there was a lack of any discussion about the quantity of cannabis to be trafficked. As such, the applicant submits that the Judge erred in sentencing the applicant on the basis that he had conspired with Mogan to traffic in 1017.9g of cannabis and that the applicant was liable to be sentenced to the mandatory death penalty.

The applicant also submits that the cannabis was never actually in the applicant’s possession and therefore, the Judge was not entitled to draw an adverse inference against the applicant based on the weight of the drugs found in Mogan’s possession.

The Prosecution’s case

The Prosecution submits that this application is impermissible as the applicant has already filed one previous s 394H application and he has therefore exhausted his rights of review of his conviction and sentence, as s 394K(1) of the CPC does not allow an applicant to make more than one application for leave under s 394H of the CPC.

Notwithstanding this procedural irregularity, the applicant has not met the statutory requirement under s 394J(3) of the CPC to show that there is sufficient material on which this court may conclude that there is a miscarriage of justice. The Prosecution highlights three reasons for this: The allegation that the Prosecution has failed to prove that, pursuant to the conspiracy, he and Mogan had agreed to traffic a specific quantity of drugs is a belated challenge to a finding of fact by the Judge and has been raised without any fresh evidence to suggest the absence of such an agreement. There has also been no change in the law since the conclusion of the trial and the appeal which requires a fresh look at this finding of fact. The applicant has not shown how the defence could not have been adduced in court earlier with reasonable diligence. He could have raised this at the trial or the appeal, where he was represented by counsel on both occasions. In any event, this defence is unmeritorious, as there was ample evidence before the Judge and this court to conclude that the applicant did engage in a conspiracy with Mogan to deliver 1017.9g of cannabis to himself.

The Prosecution submits that this application should be summarily dismissed without a hearing under s 394H(7) of the CPC as it is without any merit and is an abuse of process.

Issues to be determined

The issues to be determined are: whether there is a legitimate basis for this court to exercise its power of review under s 394H of the CPC; or whether this court should exercise its inherent jurisdiction to make a review application in respect of the decision in CCA 38.

Section 394H of the CPC

Under s 394H(1) of the CPC, an applicant must first obtain leave from the appellate court before making a review application. Only an application that discloses a “legitimate basis for the exercise of this court’s power of review” should be allowed to proceed under s 394H of the CPC (Kreetharan s/o Kathireson v Public Prosecutor and other matters [2020] 2 SLR 1175 (“Kreetharan”) at [17]). To determine if such a legitimate basis exists, the court hearing the leave application would...