Rosman bin Abdullah v Public Prosecutor [2016] SGCA 62

Introduction

The Appellant had been convicted of the capital charge of trafficking in not less than 57.43g of diamorphine in 2010 (see Public Prosecutor v Rosman bin Abdullah [2010] SGHC 271). The Appellant then appealed against the conviction and sentence and this court dismissed the appeal in April 2011. On 25 July 2011, the Appellant also submitted a petition for clemency to the President, which was rejected.

Subsequently, on 14 November 2012, the Singapore Parliament passed the Misuse of Drugs (Amendment) Act 2012 (Act 30 of 2012) which introduced the new s 33B into the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). We set out the relevant provisions of s 33B of the MDA (“s 33B”) below:

The enactment of s 33B, in particular s 33B(2), led the Appellant to commence Criminal Motion No 17 of 2015 (“CM 17/2015”) where he sought a re-sentencing on the basis that he fulfilled the requirements stated therein. In short, s 33B(2) of the MDA (“s 33B(2)”) read with s 33B(1)(a) of the same allows the court to sentence a convicted drug trafficker to life imprisonment instead of the death penalty if he proves on a balance of probabilities that: (a) his involvement in the offence was limited to that stated in s 33B(2)(a) of the MDA (ie, he was merely a “courier”); and (b) if the Public Prosecutor issues a certificate to affirm that he has substantively assisted the Central Narcotics Bureau (“CNB”) in disrupting drug activities. In Rosman bin Abdullah v Public Prosecutor [2015] SGHC 287 (“the GD”), the High Court judge (“the Judge”) held that the Appellant had not fulfilled the two requirements, and therefore affirmed the death sentence which he had imposed on the Appellant earlier at the trial. The present appeal is an appeal against this particular decision.

Before proceeding to set out the relevant background, it would be appropriate to note a couple of (significant) preliminary points that were raised.

Preliminary points

The first preliminary point relates to an issue that was raised in the Appellant’s Petition of Appeal but which his counsel, Mr Low Cheong Yeow (“Mr Low”), stated he was not pursuing on behalf of his client, viz, the alleged unconstitutionality of s 33B(4) of the MDA (“s 33B(4)”) inasmuch as it violated Art 93 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“Art 93”).

Secondly, in his written submissions, the Appellant advanced a new point that was not raised in the court below: that he was suffering from an abnormality of mind at the material time within the meaning of s 33B(3)(b) of the MDA (“s 33B(3)(b)”) and that this court therefore ought to remit this particular issue to the High Court for its decision. The significance of his bringing this new point is that, if the Appellant succeeds in establishing the requirements in s 33B(3) of the MDA (“s 33B(3)”), the court must, pursuant to s 33B(1)(b) of the MDA (“s 33B(1)(b)”), sentence him to life imprisonment instead of the death penalty. Notwithstanding the fact that Mr Low was not counsel for the Appellant in the court below, we find it disturbing that the Appellant is only raising this issue on appeal. This smacks of a drip-feed approach that might result in an abuse of the process of court. Henceforth, all applicants pursuant to the re-sentencing procedure under s 33B must indicate whether they intend to rely upon s 33B(2) or s 33B(3) of the MDA – or both provisions – at first instance. This court will not hesitate to exercise its discretion to reject any belated reliance on either of these provisions should they only arise on appeal.

Mr Low sought to explain to this court during oral submissions the reasons for raising s 33B(3) on behalf of the Appellant only at this stage of the proceedings. Upon taking instructions from the Appellant, Mr Low stated that the Appellant had indicated that he felt that he was suffering from some mental condition at the time of the commission of the offence. It should be noted that a Report from the Institute of Mental Health (“IMH”) dated 13 February 2013 (“the IMH Report”) had, in fact, already been filed and served on the Appellant much earlier (on 6 May 2013), a point which Mr Low candidly acknowledged in his written submissions. More importantly, the IMH Report stated clearly that the Appellant was not suffering from any symptoms of mental disorder at the time of the commission of the offence. Nevertheless, Mr Low sought, on behalf of the Appellant, a review and assessment of the Appellant by Dr Munidasa Winslow (“Dr Winslow”), whose report (in Mr Low’s view) had (contrary to the IMH Report) stated that the Appellant was in fact suffering from an abnormality of mind at the time of the commission of the offence. He is now therefore asking this court to remit the issue of the Appellant’s mental state at the time of the commission of the offence to the High Court for determination.

Mr Low also argues that this court should not render any ruling on whether or not the Appellant was merely a courier until after the Judge had considered evidence of as well as determined the issue of the Appellant’s mental state at the time of the commission of the offence, although he (Mr Low) was prepared to argue on the courier issue at the hearing before us. However, as we pointed out to Mr Low during the hearing, the issue as to whether or not the Appellant was a courier is a threshold issue and that if this particular issue is decided against the Appellant, the present appeal would have to be dismissed, regardless of whether or not the Appellant is able to bring himself within the ambit of s 33B(3)(b) in relation to his mental state at the time of the commission of the offence (see above at [2]).

It bears repeating that, in order for the applicant concerned to avail himself or herself of s 33B(3), the applicant must satisfy both limbs therein (viz, s 33B(3)(a) and (b)) cumulatively. Put simply, a failure to satisfy any one of the limbs would disentitle the applicant from obtaining the benefit in s 33B(1)(b) (see above at [6]). This is clear not only from the express wording of s 33B(3) but also from the Parliamentary debates surrounding the enactment of this new provision where the following was stated (Singapore Parliamentary Debates, Official Report (12 November 2011) vol 89 (“the 12 November Parliamentary Debates”) (Teo Chee Hean, Deputy Prime Minister and Minister for Home Affairs (“Mr Teo”)):

It follows that even if the applicant is able to bring himself or herself within the second limb of this provision (viz, s 33B(3)(b)), this would not be sufficient to invoke s 33B(1)(b) successfully if he or she were unable to satisfy the first limb (viz, s 33B(3)(a)) by demonstrating that he or she was merely a courier. Indeed, Mr Low candidly admitted during oral submissions before this court that that was why he had not filed a second criminal motion for re-sentencing pursuant to s 33B as he was aware that the determination of the threshold issue pursuant to s 33B(3)(a) (viz, whether the Appellant was a courier) might well be determinative of the present appeal in the manner just stated.

In the circumstances, it was, in our view, appropriate to proceed with hearing the arguments with regard to the threshold issue as to whether or not the Appellant was a “courier” within the meaning of s 33B(3)(a) because his mental condition would be relevant, pursuant to s 33B(3)(b), if (and only if) this threshold issue is decided in his favour.

We should also note that counsel for the Respondent, Mr Ng Cheng Thiam (“Mr Ng”), objected strenuously to the admission of the report by Dr Winslow (“Dr Winslow’s Report”) on the basis that it was irrelevant, inadmissible and unreliable. We will deal with this objection in a later part of this judgment.

This would be an appropriate juncture at which to turn to the facts as well as the decision in the court below.

The facts

On 20 March 2009, CNB officers raided the Appellant’s hotel room in Bencoolen Street and five packets of heroin were seized. This formed the subject matter of the capital charge which was brought against the Appellant.

Prior to his arrest, the Appellant had already been involved in one drug transaction which did not form the subject matter of the charge brought against him (“the First Transaction”). The facts surrounding the First Transaction are as follows. Three to four days before his arrest, the Appellant had been asked by one Mahadhir bin Chari (also known as “Mayday”) to source for heroin. The Appellant complied and contacted a Malaysian supplier known as Ah Yong, who agreed to sell two pounds of heroin for $18,000. When Mayday told the Appellant that he only had $16,900, the Appellant informed Ah Yong of the same and it was subsequently agreed that Mayday would be given a three-day credit to pay the remaining $1,100. On the night of the transaction, the Appellant met Ah Yong’s associate at a coffee shop and paid him the $16,900 while another associate concurrently passed Mayday the heroin at a housing block in Simei. Subsequently, the Appellant went to Mayday’s flat in Simei where they used a weighing scale and empty packets to pack the heroin into 8g packets. The Appellant helped Mayday to arrange the heroin deal and pack the drugs as he owed Mayday money after a failed deal to buy methamphetamine. The Appellant also took two packets of heroin for sale after the First Transaction. According to the Appellant, he would receive the drugs at a cheaper price from Mayday and this would allow him “to get more profit and repay everything which [he] owe[d] ‘Mayday’ faster”.

After the First Transaction, on 19 March 2009, Mayday again asked the Appellant to source for two pounds of heroin (“the Second Transaction”). Again, the Appellant called Ah Yong who quoted $8,500 for one pound of heroin. The Appellant relayed a series of messages between Mayday and Ah Yong and a price of $16,600 was eventually agreed upon. This time, however, the Appellant collected the heroin personally as Mayday was not feeling well. The Appellant, after collecting the money from Mayday, proceeded to a shopping centre in Bukit Timah where the Appellant passed the money to Ah Yong’s associate in exchange for the heroin. The Appellant then went to Mayday’s flat but there was no response at the door or to the Appellant’s calls. He therefore returned to the hotel in Bencoolen with the drugs and it was there that he was arrested.

The decision below

The Judge first held that the Appellant was not simply a courier and therefore did not meet the first requirement encapsulated in s 33B(2)(a) of the MDA. The Judge found that the Appellant’s conduct went beyond transporting, sending or delivery of drugs from one point to another. In this regard, the Judge took into account the Appellant’s course of conduct in the First Transaction where he had sourced for the heroin and brokered the deal between Ah Yong and Mayday. Further, the Judge noted that the Appellant would assist Mayday in repacking the heroin and would also take heroin from Mayday to sell (see the GD at [17]−[18]).

In the Judge’s view, the facts pertaining to the First Transaction were relevant to his evaluation of the role of the Appellant in the Second Transaction, in so far as the context and purpose surrounding both Transactions were similar. The Judge considered that in the Second Transaction, the Appellant was similarly asked to source for the heroin and he similarly brokered the deal between Ah Yong and Mayday as well. In this regard, the Judge noted (see the GD at [21]) that “it was clear that the second transaction started in the same way as the first” and that “there was no evidence that his personal circumstances had changed such that he would have no further reason to help [Mayday] in the same way”. The Judge also took into account that the Appellant had stated in his long statement that the reason he helped Mayday in the Second Transaction was likewise to get a discount when he received drugs from Mayday to sell (see the GD at [20]−[22]).

The Judge further found that even if the facts of the Second Transaction were examined in isolation, they still showed that the Appellant’s role had exceeded that of a mere courier given that he played an active part in sourcing for the heroin and played the role of a middleman in the negotiations between Mayday and Ah Yong (see the GD at [23]).

In so far as the second requirement of having substantively assisted the CNB as encapsulated in s 33B(2)(b) of the MDA (“s 33B(2)(b)”) was concerned, the Judge found that this was for the Public Prosecutor to decide and that the Public Prosecutor’s determination in this regard could only be challenged on the basis of bad faith, malice or unconstitutionality, which had not been raised by the Appellant (see the GD at [29]).

The Judge also declined to accede to the Appellant’s request to define the meaning of “substantively assisted” so that the Public Prosecutor could decide if the Appellant could receive a certificate of assistance after applying the elucidated meaning to the facts. The Judge noted that by providing a definition of “substantively assisted”, the courts would in effect be interfering with the decision-making process of the Public Prosecutor (see the GD at [31]). Further, the Judge found that there was no basis to accept the particular interpretation of “substantive assistance” which was advocated for by the Appellant (ie, there would be “substantive assistance” where an accused person provides information which is of “potential value” and it need not be assessed on the actual effectiveness of the information) (see the GD at [36]).

Accordingly, the Judge affirmed the death sentence imposed on the Appellant.

The parties’ arguments

The Appellant’s arguments

As already noted, at the hearing before us, the Appellant did not pursue the argument to the effect that s 33B(4) was unconstitutional as it violated Art 93. He has three principal arguments which were pursued in both his written and oral submissions to this court.

The first (and most crucial) argument is that the Appellant was only a “courier” within the meaning of s 33B (“Issue 1”). In particular, Mr Low argues, on behalf of the Appellant, that the Judge should not have taken into account the First Transaction in finding that the Appellant was not a courier. He submits that because the Appellant had not been charged for the First Transaction, it had no relevance in determining the Appellant’s role in the Second Transaction, which was the subject matter of the proceeded charge. He takes the position that the Judge should not have assumed that the Appellant’s purpose in carrying out the First and Second Transactions were the same (ie, that after collecting the drugs, he would help Mayday repack the drugs before taking some of the drugs for himself). He argues further that, taking into account only the facts of the Second Transaction (which constituted the charge against the Appellant), the Appellant was merely a courier.

The second argument is that the court can – and should – define the phrase “substantively assisted” in s 33B(2)(b) (“Issue 2”).

The third argument is one that we have already referred to earlier in this judgment: that this court should remit the issue as to whether the Appellant was suffering from an abnormality of mind at the time of the commission of the offence within the meaning of s 33B(3)(b) to the Judge for his decision (“Issue 3”). As also noted above, this particular argument will be of no avail to the Appellant if Issue 1 is decided against him.

The Respondent’s arguments

The Respondent argues that the Appellant was clearly not a courier. In particular, during oral submissions before this court, Mr Ng stated that, even if the First Transaction was not taken into account, there was more than sufficient evidence for this court to conclude that the Appellant was not simply a courier in so far as the Second Transaction was concerned.

The Respondent argues further that the Judge was correct in declining to provide a definition of “substantive assistance” within the meaning of s 33B(2)(b) as the determination as to whether or not “substantive assistance” had in fact been provided by the accused lay solely within the discretion of the Public Prosecutor. Citing from the relevant Parliamentary Debates, Mr Ng argues that it was Parliament’s intention that such an approach was necessary to ensure the operational effectiveness of the CNB. He also argues (again citing from the relevant Parliamentary Debates) that acceding to the Appellant’s argument would give rise to a floodgate of future applications to the court (which was never Parliament’s intention in the first place).

In so far as the Appellant’s third argument is concerned, the Respondent highlights, first, that the Appellant had never raised any allegation of any abnormality of mind during the hearing below, notwithstanding the fact that he had been represented by counsel at the time. Further, the Respondent submits that, in any event, the court should not accept the Appellant’s contention that he was suffering from an abnormality of mind as Dr Winslow’s Report was inadmissible and irrelevant (see above at [12]).

Our decision

Issue 1

The decision as to whether or not an applicant is a courier within the meaning of s 33B is a fact-sensitive one in which the court must pay close attention to both the facts as well as the context of the case at hand. In this regard, the Judge laid down the following guidelines at [15]−[16] of the GD:

We agree with the Judge’s observations as cited in the preceding paragraph. In the nature of things, it is impossible to lay down more specific guidelines simply because of the myriad permutations of fact situations that could possibly arise. In this regard, we also agree with the Judge that the list of relevant factors cannot be closed.

As is often the case, however, the difficulty lies in the application of the relevant guidelines to the facts at hand. In this regard, we will take the Appellant’s case at its highest and disregard the facts as well as effect(s) of the First Transaction. Indeed, at the hearing before us, Mr Low pointed to the thorny difficulties surrounding the admissibility as well as probative value of what has been termed “similar fact evidence”. However, it is well-established that there is no blanket rule against the admission of “similar fact evidence”; such evidence may be utilised in the limited manner envisaged within a strict application of, for example, ss 14 and 15 of the Evidence Act (Cap 97, 1997 Rev Ed) (see Jeffrey Pinsler SC, Evidence and the Litigation Process (LexisNexis, 5th Ed, 2015) at para 3.001). That this is so is evident from, for example, the decision of this court in Tan Meng Jee v Public Prosecutor [1996] 2 SLR(R) 178. Hence, for example, in so far as the present appeal is concerned, it could possibly have been argued that it was appropriate for the court to take the First Transaction into account for the limited purpose of demonstrating a specific state of mind on the part of the Appellant to the effect that (as the Judge found at [22] of the GD) he did intend to assist Mayday in repacking the heroin for sale in the Second Transaction as well, especially when regard is also had to the fact that the First Transaction and the Second Transaction were just a few days apart. In this regard, s 14 of the Evidence Act and (in particular) Explanation 1 thereof are potentially relevant. Explanation 1 reads as follows:

However, as we have already reiterated, we will take the Appellant’s case at its highest and, to this end, will disregard the facts of the First Transaction and its possible effect(s) altogether. Indeed, the Judge himself was of the view that, even if he did not consider the facts as well as effect(s) of the First Transaction and had considered only the Second Transaction in isolation, he would still have found the Appellant’s involvement in the Second Transaction to have gone beyond that of a mere “courier” within the meaning of s 33B. In this regard, it is imperative to, inter alia, examine closely the Judge’s reasoning when considering the Second Transaction in isolation. He reasoned as follows (at [23]−[25] of the GD):

It will be immediately apparent from the paragraphs of the GD quoted above that the key paragraph is para 23, which does not refer, whether directly or indirectly, to the First Transaction. Indeed, it should be noted that the Judge himself commenced that particular paragraph by noting that “[i]n any event, [the Appellant’s] role had exceeded that of a courier even if the second transaction was examined by itself” [emphasis added in bold italics and underlined bold italics]. It will also be immediately apparent from that particular paragraph that what prompted the Judge to find that the Appellant’s conduct had made him more than a mere courier was, in the main, the fact that he had both sourced for the heroin concerned and had played an active part as a middleman or go-between with regard to negotiations between Mayday and Ah Yong. In our view, the Judge was wholly justified in arriving at these findings. In this particular regard, Mr Ng helpfully brought our attention to the very pertinent paragraphs in the cautioned statement of the Appellant himself, which read as follows:

In our view, it is clear, from the Appellant’s own words as quoted in the preceding paragraph that he did (as the Judge found at [23] of the GD) not only actively source for the heroin in question but also actively participated in negotiations as a middleman or go-between with regard to the price to be paid for the heroin as well as the terms of delivery of the heroin between Ah Yong as seller and Mayday as buyer.

It is true that, on a literal reading of the aforementioned paragraphs of his cautioned statement, the Appellant had simply been involved in passing messages. However, in our judgment, he was no mere conduit pipe. Bearing in mind the need to strictly construe the question of whether a particular act is necessary for the work of a “courier” (see above at [30]), in our view, it could not be said that he was performing acts which were merely incidental in the course of transporting, sending or delivery of drugs. On the present facts, not only did he suggest, and initiate contact with, the drug supplier (ie, Ah Yong), he was also systematically involved in helping to negotiate the terms of the Second Transaction. This clearly went beyond the role of a “courier” as envisaged under s 33B.

In the circumstances, the Appellant’s arguments with regard to Issue 1 are without merit and he therefore fails to meet the threshold requirement of demonstrating that he was merely a courier.

Issue 2

As already noted, this particular issue relates to the Appellant’s argument that the court can – and should – define what the phrase “substantively assisted” in s 33B(2)(b) means. It is important at the outset to note that this concept of “substantive assistance” pertains to assisting the CNB “in disrupting drug trafficking activities within or outside Singapore”. The plain language of s 33B(2)(b) could not, in our view, be clearer in its context and import. Indeed, it is of the first importance to point out, right at the outset, that this particular provision relates to subject matter that is clearly beyond the jurisdiction and power of the courts. Put simply, it concerns the extra-legal situation relating to the CNB’s disruption of drug trafficking activities both within as well as outside Singapore. Such a situation pertains to quintessentially operational matters that concern the CNB, and the CNB alone. Looked at in this light, it would, in our view, be wholly inapposite for the courts, in the exercise of their judicial power, to even attempt to define what the phrase “substantively assisted” in s 33B(2)(b) should be. Indeed, as the language of s 33B(2)(b) makes clear, whether or not substantive assistance has, in fact, been rendered to the CNB within the meaning and scope of that particular provision is to be determined by the Public Prosecutor. This is the short – and in our view – definitive response to the Appellant’s argument that is, with respect, a non-starter in the circumstances.

At this juncture, we pause to make an obvious point. However, it is necessary to do so because, towards the end of oral submissions before this court, the Appellant, through Mr Low, made the point most strenuously to the effect that he had furnished substantive assistance to the CNB and was therefore entitled to receive a certificate pursuant to s 33B(2)(b). Whilst we understand that the Appellant might subjectively believe that he had rendered substantive assistance to the CNB pursuant to this particular provision, this would not necessarily entitle him to a certificate of substantive assistance if the Public Prosecutor was of the view that there was, in fact, no substantive assistance rendered within the meaning of s 33B(2)(b). Indeed, as this court has observed in Muhammad Ridzuan bin Mohd Ali v Attorney-General [2015] 5 SLR 1222 at [44]−[48]:

To return to the reasoning encapsulated above at [39], such reasoning was, in fact, elaborated upon in more detail by the Judge in the court below. In particular, the Judge referred to the relevant Parliamentary Debates during the Second Reading of the Misuse of Drugs (Amendment) Bill (No 27 of 2012). He referred, first (in the GD at [28]), to the following observations by Mr Teo in the 12 November Parliamentary Debates, where Mr Teo had stated that it was for the Public Prosecutor to determine if substantive assistance had in fact been provided in a particular case:

The issue as to whether the courts should decide on, or provide criteria for determining, whether an accused person had provided “substantive assistance” was canvassed in the Parliamentary debates. The Minister for Law, Mr K Shanmugam, made the following observations (see Singapore Parliamentary Debates, Official Report (14 November 2012) vol 89 (“the 14 November Parliamentary Debates”)):

The observations cited in the preceding paragraph underscore the point made earlier to the effect that it is for the Public Prosecutor to determine whether substantive assistance has been provided in the case concerned. More importantly, the Judge also elucidated the negative developments which could result if the courts attempted to define “substantive assistance” (see the GD at [32]−[35]):

We agree with the reasoning of the Judge as set out above as well as with the manner in which he distinguished the Singapore position from that in the United States and New Zealand (see the GD at [36]−[40] and [41]−[43], respectively).

For the reasons set out above, we find no merit in the Appellant’s arguments in so far as Issue 2 is concerned.

Issue 3

As already noted above, in light of our decision with regard to Issue 1, Issue 3 is moot inasmuch as evidence of the Appellant’s mental condition at the time of commission of the offence will not suffice to avail the Appellant of s 33B(1)(b) as he has not demonstrated that he satisfies the threshold requirement set out in s 33B(3)(a).

However, even if the Appellant satisfies the threshold requirement set out in s 33B(3)(a), we are of the view that he would not, in any event, satisfy the requirement set out in s 33B(3)(b). At this juncture, it would be apposite for us to make certain observations about the exception under s 33B(3)(b). Section 33B(3)(b) is, in substance, a reproduction of what is the doctrine of diminished responsibility to a charge of murder pursuant to Exception 7 to s 300 of the Penal Code (Cap 224, 2008 Rev Ed). However, s 33B(3)(b) must be read and applied within the context of s 33B in general and s 33B(3) in particular. Put simply, s 33B(3)(b) is not, in and of itself, of general or (more precisely) standalone application (unlike a general defence) inasmuch as the mere demonstration that the applicant possessed an abnormality of mind within the meaning of this provision will not avail the applicant, as noted above, except to (and only to) the extent that his involvement in the offence concerned was as a “courier” within the meaning of s 33B(3)(a). In this regard, s 33B(3)(b) is not unlike Exception 7 to s 300 of the Penal Code which similarly does not operate as a general defence. In other words, s 33B(3) encompasses a very limited exception inasmuch as Parliament was not minded, as a matter of policy , to extend the benefit of s 33B(1)(b) to applicants whose involvement in the offence concerned went beyond that of a courier, regardless of their mental condition. It should also be noted that the exception should be construed narrowly, as is evident from the observations made by Mr Teo during the Parliamentary debates surrounding the enactment of s 33B(3)(b) (see the 14 November Parliamentary Debates):

With the above considerations in mind, we turn now to consider the content of Dr Winslow’s Report. Dr Winslow’s Report states that “[the Appellant’s] results indicated that he likely meets diagnostic criteria for ADHD [viz, Attention Deficit Hyperactivity Disorder]” [emphasis added] and that the results “also indicated significant problems with self-concept, learning difficulties, inattentive symptoms, and restlessness consistent with his self-report”. However, notwithstanding the fact that it was initially stated that the Appellant only “likely meets diagnostic criteria for ADHD”, the Report proceeds (in the very next paragraph) to state a definitive diagnosis for ADHD as follows:

The Report proceeds to state, with reference to the Appellant’s history of drug abuse, as follows:

Dr Winslow’s Report then concludes as follows:

Leaving aside the point (as noted above at [47]) that there appears to be an inconsistency in the level of definitiveness in the diagnosis by Dr Winslow of the Appellant with regard to ADHD, even accepting that particular diagnosis, there is, first, no clear connection established between the diagnosis of ADHD on the one hand and the diagnosis of Stimulant Use Disorder as well as Sedative Use Disorder on the other. Put simply (and with respect), the connection (if any) is extremely general and vague.

More importantly, perhaps, the conclusion of the Report (reproduced above at [49], and which, by its very nature, is of crucial importance) is, with respect, also extremely general and vague – at least in so far as it purports to be relevant to the satisfaction of the criterion laid down in s 33B(3)(b).

In so far as the Appellant’s alleged ADHD condition is concerned, it is true that the phrase “contributed to” is used in Dr Winslow’s Report in relation to the commission of the offence for which he was charged. However, in our judgment, the use of this particular phrase does not sufficiently explain how and to what extent this condition contributed to the commission of the offence; put simply, we fail to see a causal link between the Appellant’s alleged ADHD condition and the offences which he committed. In our view, such a broad and sweeping conclusion does not come close to controverting the more contemporaneous IMH Report, wherein it was concluded that first, the Appellant “does not have any mental disorder currently or at around the material time [ie, the time of the offence]” and secondly, “he does not have an abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease, or injury) that substantially impaired his mental responsibility for his act of drug trafficking”. It should be noted that the latter finding was framed in terms of the legal test for establishing whether a defence of diminished responsibility may be made out which, as noted above (at [46]), is similar to the inquiry under s 33B(3)(b).

More specifically, whilst there is also a subsequent reference to the Appellant’s drug use and dependence in Dr Winslow’s Report, the conclusion drawn is that “[i]t is also likely that his [the Appellant’s] heavy methamphetamine use and dependence at the time of the offenses [sic] would have impacted his judgement [sic] and impulse control” [emphasis added in bold italics and underlined bold italics]. This last-mentioned conclusion is, with respect, not only extremely general and vague but is also speculative in nature. Indeed, this is why the Respondent (in relation to the point made in the report with regard to the Appellant’s drug use and dependence) argues in his Supplementary Submissions – and we agree – that Dr Winslow’s Report is irrelevant.

The Respondent also argues – persuasively, in our view − that the IMH Report and the Appellant’s own investigation statements as well as the evidence adduced at his trial clearly demonstrate that the Appellant exhibited clarity of mind at or around the time of the commission of the offence. For example, the Respondent points to certain excerpts of the Appellant’s testimony under cross-examination where he explained his decision not to implicate Mayday in a cautioned statement he had given to a CNB officer shortly after his arrest:

The Respondent further relies on the awareness of the Appellant as to what was transpiring when he agreed to be involved in the Second Transaction:

In addition to the above, we note in his further statement, dated 23 March 2009, his thought process in deciding to embark on his criminal behaviour:

In our judgment, the above shows that the Appellant did weigh the costs and benefits of embarking on this criminal conduct and made the conscious and informed decision to do so, notwithstanding that he was fully apprised of the consequences of his actions. It should also be noted that the debt which the Appellant owed to Mayday did not arise as a result, for example, of the Appellant having to satiate his drug addiction but was as a result of a botched deal in early 2009 when the Appellant went to Malaysia to source Ice for both him and Mayday.

We note that in the recent Singapore High Court decision of Phua Han Chuan Jeffery v Public Prosecutor [2016] 3 SLR 706 (“Jeffery Phua”), Choo Han Teck J held (at [15]) that even if the applicant knew that what he was doing was wrong and risky, he may still lack the will to resist the commission of the offence and a man may know what he is doing and intend to do it and yet suffer from such abnormality of mind as substantially impairs his mental responsibility. In that case, Choo J found (at [16]) that although the accused person knew that he was committing an illegal act, he still fell within the ambit of s 33B(3)(b) because the abnormality of mind had “an influence on the applicant’s ability to resist the act in question”. It should be noted, however, that the medical experts in that case had both diagnosed the accused person with a Persistent Depressive Disorder and a Ketamine Dependence and it was on this basis that Choo J had found (at [17]) that the accused person was probably incapable of implementing any internal rationality that might have dissuaded him from committing the offence.

In our view, what separates the present case from that of Jeffery Phua is that Dr Winslow’s Report is, at best, as noted above, neutral and does not even support the assertion that the Appellant was suffering from such abnormality of mind that impaired his mental responsibility for his criminal act.

More importantly, given the nature of the findings in Dr Winslow’s report, we find that it cannot even be said that they are inconsistent with those in the IMH Report. There was therefore nothing substantive that could, in fact, have been remitted to the High Court in order for (as the Appellant requested) further evidence to be taken. Indeed, it was not even new evidence that could pass muster under the established legal principles – not least because it would not, as already explained, have had an important influence on the outcome of the case.

To summarise, Issue 3 is moot in light of our decision on Issue 1. In any event, Dr Winslow’s Report is, at best, neutral and is of no avail to the Appellant as it is not inconsistent with the IMH Report.

Conclusion

For the reasons set out above, the appeal is dismissed.