Yunani bin Abdul Hamid v Public Prosecutor

• Judge: V K Rajah JA
• Judgment Date: 11 April 2008
• Neutral Citation: [2008] SGHC 58
• Citation: [2008] SGHC 58
• Defendant Counsel: Lawrence Ang Boon Kong, Lau Wing Yum and Christopher Ong Siu Jin (Attorney-General's Chambers)
• Published date: 22 May 2008
• Subject Matter: Exercise of revisionary powers where there is a plea of guilty,Presence of serious injustice if additional evidence before reviewing court casting serious doubts as to guilt of accused,Courts and Jurisdiction,Sections 266, 267, 268, 269, 270 Criminal Procedure Code (Cap 68, 1985 Rev Ed),Revision of proceedings,Criminal Procedure and Sentencing,High court,Whether there was serious injustice which would warrant exercise of revisionary power,Section 23 Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed),Appropriate course of action after exercise of revisionary powers,Exercise of revisionary powers,Whether matter should be remitted back for trial or stayed,Presence of serious injustice if pressures faced by accused to plead guilty are such that accused did not genuinely have freedom to choose between pleading guilty and pleading not guilty
• Plaintiff Counsel: Abraham S Vergis and Darrell Low Kim Boon (Drew & Napier LLC)
• Court: High Court (Singapore)
• Year: 2008

11 April 2008 Judgment reserved.

V K Rajah JA:

Introduction

1 This was an application for criminal revision in which Yunani bin Abdul Hamid (“the Applicant”) sought to set aside a conviction based on what appeared to be an unqualified plea of guilty that he had earlier tendered through counsel in the District Court on 26 November 2007. The Applicant’s guilty plea related to an amended charge (“the Amended Charge”) of trafficking in not less than 329g of cannabis, a Class A controlled drug under the First Schedule of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“MDA”), together with one Abdul Aziz bin Idros (“Aziz”). The Amended Charge read as follows:

You [the Applicant] …

are charged that you, on or about 12 August 1992, at about 3.20 p.m., at the Port of Singapore Authority Gate No. 1 off Keppel Road, Singapore, together with … [Aziz] and in furtherance of the common intention of you both, did traffic in a controlled drug specified in Class A of the First Schedule to the Misuse of Drugs Act (Cap 185), to wit, by having in your possession not less than 329 grams of cannabis for the purpose of trafficking, without any authorisation under the Misuse of Drugs Act (Cap 185) or the regulations made thereunder, and you have thereby committed an offence under section 5(1)(a) read with section 5(2) of the Misuse of Drugs Act (Cap 185) and section 34 of the Penal Code (Cap 224) and punishable under section 33 of the Misuse of Drugs Act (Cap 185).

Pursuant to s 33 (read with the Second Schedule) of the MDA, the offence set out in the Amended Charge is punishable with a minimum sentence of five years’ imprisonment and five strokes of the cane and a maximum sentence of 20 years’ imprisonment and 15 strokes of the cane.

2 The Applicant was sentenced in the District Court on 27 November 2007 to nine years’ imprisonment and six strokes of the cane. Dissatisfied with the sentence, the Applicant initially appealed against the sentence to the High Court (via Magistrate’s Appeal No 249 of 2007). Upon receiving further advice, however, the Applicant subsequently filed the present application for criminal revision and sought to quash his conviction (and, thus, the sentence). At the end of the hearing, I set aside the Applicant’s conviction and ordered that the case should be remitted to the Subordinate Courts for re-trial on the Amended Charge on an urgent basis. The appeal against sentence was then withdrawn. I now set out the detailed grounds for my decision, having earlier provided only brief grounds at the hearing.

The facts of the case

3 At the time of the alleged offence, the Applicant and Aziz were both working as lashers at the Port of Singapore Authority (“PSA”) Container Port.

4 On 12 August 1992 at about 3.20pm, the Applicant (then aged 18) was riding out of the PSA Container Port Gate No 1 on his motorcycle when he was stopped for a routine check. At that time, Aziz (then aged 25), the Applicant’s pillion passenger, was carrying a knapsack. The inspection was conducted by one Corporal Nasiran bin Somadi (“Cpl Nasiran”). When Cpl Nasiran examined the knapsack which Aziz was carrying, he found, concealed in a side compartment of the knapsack, a block of what was described as “greenish vegetable matter”[note: 1] wrapped in a transparent polythene bag (that substance was subsequently found to be cannabis (see [7] below)). Immediately after the discovery, the Applicant suddenly sped off on his motorcycle with Aziz, leaving the knapsack and the block of greenish vegetable matter behind in the hands of Cpl Nasiran.

5 Eventually, the Applicant stopped at Telok Blangah Rise, where he parted company with Aziz and abandoned the motorcycle. The Applicant subsequently returned home, where he recounted the incident to his parents. The Applicant’s father later called the Central Narcotics Bureau (“CNB”) at about 5.00pm, claiming that the Applicant had not been aware of the presence of the greenish substance found in the knapsack carried by Aziz. In due course, the Applicant decided to heed his parents’ advice and duly surrendered himself at the PSA police station on the same day at about 6.30pm. Upon turning himself in, the Applicant was arrested and handed over, together with the block of greenish vegetable matter, to CNB Investigating Officer John Cheong (“IO Cheong”) at CNB’s headquarters. The Applicant’s urine was promptly tested and was found to be negative for controlled substances. Various items were also seized from the Applicant’s residence, including a pair of blue overalls, a pair of brown shoes and two motorcycle helmets.

6 On 13 August 1992, IO Cheong recorded a statement from the Applicant pursuant to s 122(6) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”) with the assistance of a Malay interpreter. In that statement, the Applicant denied being involved in any drug trafficking offence and vigorously asserted his innocence. He claimed that Aziz had asked him for a lift. At the PSA Container Port Gate No 1, the Applicant panicked and sped off when he saw the greenish substance in the knapsack that was searched. He eventually stopped at the junction of Telok Blangah Road and Mount Faber Road after hitting a kerb and chided Aziz for getting him involved in a drug offence. He then abandoned his motorcycle and took a taxi home. He also said that he did not know Aziz’s address or contact details.

7 On 14 August 1992, the Applicant was produced in Court No 26 of the Subordinate Courts and formally charged with the capital offence of trafficking in approximately 933g of cannabis “together with an unknown male Malay”[note: 2]. This was the weight of the cannabis as recorded in the Applicant’s presence on the day of his arrest. A report (dated 31 August 1992) of an analysis done by the Department of Scientific Services later showed that the block of greenish vegetable matter discovered by Cpl Nasiran contained approximately 913.1g of cannabis. No bail was offered as the Applicant was facing a capital charge.

8 On 17 August 1992, IO Cheong recorded a statement from the Applicant pursuant to s 121 of the CPC with the assistance of a Malay interpreter. In the statement, the Applicant maintained his innocence. He stated that he had only agreed to give Aziz a lift to a bus stop and had no knowledge whatsoever of the block of cannabis in the knapsack that Aziz had been carrying. He had sped off upon seeing Cpl Nasiran find the block of cannabis inside the knapsack as he was frightened. He further explained that after he returned home on 12 August 1992, his mother had accompanied him to retrieve his abandoned motorcycle (which he rode back to his flat, where it was later seized by CNB’s officers) before he turned himself in at the PSA police station.

9 On 19 August 1992, IO Cheong recorded a further statement from the Applicant pursuant to s 121 of the CPC with the assistance of a Malay interpreter. Continuing his statement of 17 August 1992, the Applicant stated that he knew Aziz on a casual basis and had given Aziz a lift on three previous occasions. He maintained that he would not have given Aziz a lift on the day of the incident if he had known that the latter had cannabis in his possession. He explained that he knew what “ganja” looked like as his brother had previously been arrested for drug consumption and he had also seen it on television. He reiterated that he had been frightened when he saw Cpl Nasiran holding the block of cannabis and had sped off without thinking.

10 In the meantime, efforts were made to apprehend Aziz. Based on particulars obtained from PSA, CNB’s officers raided Aziz’s home on 12 August 1992 at about 8.40pm. However, Aziz was nowhere to be found. A second raid was conducted a week later, but this too was to no avail. Aziz’s parents subsequently lodged a police report on 18 August 1992 claiming that Aziz had been missing since 12 August 1992. On 20 August 1992, IO Cheong applied for the issuance of a police gazette for the arrest of Aziz. This was issued on 27 August 1992.

11 On 2 October 1992, representations to the Prosecution were made on behalf of the Applicant by his then solicitor, Mr Mahadi Abu Bakar (“Mr Mahadi”) of M/s Mahadi Abu Bakar & Partners. The representations requested the withdrawal of the charge against the Applicant and emphasised both the innocence of the Applicant as well as his ignorance of the cannabis in the knapsack carried by Aziz. The representations were rejected. Notwithstanding that, the Prosecution accepted, at that juncture, that it was unjust to keep the Applicant in remand, given the apparent disappearance of Aziz and the gaps in the case against the Applicant. On the other hand, the Applicant’s involvement in the offence could not be entirely dismissed given that he was the rider of the motorcycle at the material time and had promptly fled upon the discovery of the cannabis. As a compromise, a discharge not amounting to an acquittal was acceded to by the Prosecution on 11 December 1992.

12 After his release, the Applicant recommenced work as a lasher at the PSA Container Port and started a family. In the ensuing years, he kept a clean record. Routine urine tests, to which he was periodically subjected, proved negative. When his marriage broke down, he was awarded care and control of his elder son. He was just about to remarry when his life and his peace of mind were suddenly shattered, without warning, some 15 years after the incident of 12 August 1992. It is common ground that during the intervening 15 years, the Applicant maintained a blemish-free record, behaved responsibly and held a steady job.

13 On 10 April 2007 at about 4.25am, Aziz was stopped at a police roadblock along Newton Road for a routine check. When stopped, he produced a driver’s licence belonging to one Hamzah bin Harith. The police officers manning the roadblock noticed that Aziz was not the person pictured in the licence and placed him under arrest for giving false...