Abdul Kahar bin Othman v P ublic Prosecutor [2018] SGCA 70

In 2013, the applicant, Abdul Kahar bin Othman, now 62 years old, was convicted on two capital charges of drug trafficking (“the Charges”) and subsequently sentenced to the mandatory death penalty. In 2015, this court heard and dismissed his appeal against conviction and sentence. By the present Criminal Motion No 1 of 2018 (“CM 1”), the applicant applied for his appeal to be reopened and reviewed on the principal grounds that a previous decision of this court was decided wrongly and the sentencing regime in s 33B of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”), under which he was sentenced, is unconstitutional.

Facts

On 6 July 2010, the applicant was driving a car when he was arrested by officers of the Central Narcotics Bureau (“the CNB”). The officers searched the car and found a packet containing 26.13g of diamorphine. This was the subject matter of the first charge against the applicant: see Public Prosecutor v Abdul Kahar bin Othman [2013] SGHC 164 (“Abdul Kahar (Conviction)”) at [1].

The CNB officers escorted the applicant to his home. They searched his room and found a total of not less than 40.64g of diamorphine in a sachet and two packets. This resulted in the second charge against the applicant: see Abdul Kahar (Conviction) at [2]. Besides the drugs, the officers also found paraphernalia that indicated that the applicant was repacking and selling drugs (numerous plastic sachets, a stained spoon, a weighing scale and a packet of rubber bands): see Abdul Kahar (Conviction) at [2]–[3].

On 27 August 2013, the applicant was convicted by a High Court Judge (“the Judge”) on the Charges. The Judge noted that the drug paraphernalia “indicated that [the applicant] was re-packing and selling the diamorphine that he had received” and it “could also be inferred … that [the] diamorphine was not intended for personal consumption”: see Abdul Kahar (Conviction) at [15].

On 24 October 2013, the Judge decided that the applicant was a courier for the purpose of s 33B(2)(a) of the MDA: see Public Prosecutor v Abdul Kahar bin Othman [2013] SGHC 222 (“Abdul Kahar (Sentencing)”) at [5].

The Prosecution then brought two criminal references on issues of law to this court, one of which arose out of Abdul Kahar (Sentencing). On 28 November 2014, we held that a person who intended to sell drugs forming the subject matter of a charge was not a courier for the purpose of ss 33B(2)(a) and 33B(3)(a) of the MDA: see Public Prosecutor v Chum Tat Suan and another [2015] 1 SLR 834 (“Chum Tat Suan”) at [62]. We therefore held that the Judge was wrong to have found that the applicant was a courier, set aside that finding and remitted the case to the Judge: see Chum Tat Suan at [70], [72] and [73].

On 4 February 2015, the Judge found that the applicant was not a courier for the purpose of s 33B(2)(a) of the MDA. The Prosecution informed the Judge that the applicant would not be granted a certificate of substantive assistance (“CSA”) under s 33B(2)(b) of the MDA (“the CSA Decision”). Accordingly, the Judge passed the death sentence on the applicant in accordance with the law.

The applicant filed an appeal against his conviction and sentence (“CA 4”). In that appeal, he was also represented by Mr Seah, his counsel in the present application. On 1 October 2015, we heard and dismissed CA 4 and issued our grounds of decision thereafter: see Abdul Kahar bin Othman v Public Prosecutor [2016] SGCA 11. We held at [98] that the applicant could not avail himself of s 33B(2)(a) of the MDA and we found “no reason to interfere with the Judge’s finding that the [applicant] was actively involved in purchasing, re-packaging and selling drugs”.

On 11 February 2016, the applicant filed Originating Summons No 134 of 2016 (“OS 134”) in the High Court for leave to commence judicial review in respect of the CSA Decision. The hearing of OS 134 was adjourned pending the delivery of our judgment in Prabagaran a/l Srivijayan v Public Prosecutor and other matters [2017] 1 SLR 173 (“Prabagaran”).

On 2 December 2016, we delivered our judgment in Prabagaran. On 11 July 2017, the High Court heard OS 134 and dismissed it. The applicant did not appeal against the dismissal of OS 134. Subsequently, the applicant filed CM 1.

The parties’ submissions on the merits of CM 1

The applicant’s submissions

The applicant’s preliminary submission was that the test for reopening a concluded criminal appeal set out in Kho Jabing v Public Prosecutor [2016] 3 SLR 135 (“Kho Jabing”) did not apply to CM 1 as it should be confined to the facts in that case. He stressed that Kho Jabing involved an application brought very soon before the convicted person’s death sentence was to be carried into effect and which traversed largely the same grounds that had been raised in the concluded appeal. However, CM 1 raised points that had not been ventilated in CA 4 and was not a last-ditch effort to avoid the death sentence. The applicant submitted that prior to Kho Jabing, this court had reopened concluded criminal appeals simply because they raised constitutional issues of public importance. Accordingly, this court should also reopen CA 4 given that CM 1 raised important constitutional issues.

The applicant presented arguments relating to the constitutionality and interpretation of s 33B of the MDA. In respect of the constitutionality of s 33B, he submitted the following:

(a) First, the role of the Public Prosecutor (“the PP”) in determining whether an accused has provided substantive assistance to the CNB under s 33B(2)(b) of the MDA is unconstitutional, for two reasons:

(i) The PP’s role amounts to a usurpation of judicial power, and thus violates the principle of separation of powers which is part of the basic structure of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). This court’s reasoning in Prabagaran rejecting a similar argument was flawed. We will refer to this argument as the “Judicial Power Argument”.

(ii) The PP’s role under s 33B(2)(b) of the MDA is ultra vires the PP’s constitutional role under the Constitution (“the Constitutional Role Argument”).

(b) Second, s 33B(4) of the MDA is unconstitutional because:

(i) it is “self-referentially inconsistent and is consequently self-defeating in purpose”; and

(ii) it infringes the rules of natural justice, and thus breaches Arts 9(1) and 12 of the Constitution.

(c) Third, s 33B(2)(a) of the MDA is unconstitutional. There is an “inherent confusion” in this provision that has manifested itself in its evolving interpretation. This has led to “possible unfair discrimination between [prisoners awaiting capital punishment] who are of the same class in legal guilt”. Section 33B(2)(a) therefore breaches Art 12(1) of the Constitution. The applicant emphasised that he was first found to be a courier by the High Court in Abdul Kahar (Sentencing), and then found not to be a courier by the Court of Appeal in Chum Tat Suan.

In his written submissions, the applicant raised two arguments on the interpretation of s 33B of the MDA. First, the applicant contended that he should be reclassified as a courier in the light of our decision in Zainudin bin Mohamed v Public Prosecutor [2018] 1 SLR 449 (“Zainudin”). Second, he submitted that the substantive assistance condition under s 33B(2)(b) of the MDA should be construed as requiring only that an accused person try his best to assist the CNB (“the Best Effort Interpretation”), even if this does not lead to desired outcomes.

Finally, in his written submissions, the applicant invited us to sever the allegedly unconstitutional parts of ss 33B(2)(b) and 33B(4) of the MDA from the rest of s 33B, by “deleting” s 33B(4) and substituting the court in place of the PP in s 33B(2)(b) as the authority which determines whether a CSA is granted. However, Mr Seah accepted at the hearing that the law did not permit the court to take this approach and therefore, if s 33B of the MDA was found to be unconstitutional, the law prior to the introduction of this provision would make it mandatory for the applicant to be sentenced to death.

The PP’s submissions

The PP submitted that the Kho Jabing test applied to CM 1. The applicant did not satisfy the Kho Jabing test because none of the applicant’s arguments was “new” and “compelling”.

The PP emphasised in particular that even if the applicant was found to be a courier and succeeded in establishing the unconstitutionality of the relevant portions of s 33B of the MDA, the law prior to the introduction of this provision would still require him to be sentenced to death. Therefore, the court should not exercise its inherent power of review since the success of the applicant’s arguments could not affect the outcome of the case.

The issues

Three issues arose in this application:

(a) First, did the Kho Jabing test apply to CM 1 and if so, was that test satisfied such that this court should reopen CA 4 (“Issue 1”)?

(b) Second, was there merit in the applicant’s arguments as to the constitutionality and interpretation of s 33B of the MDA (“Issue 2”)?

(c) Third, should this court make the costs orders that the PP sought against Mr Seah (“Issue 3”)?

Issue 1: The Kho Jabing test

In our judgment, the Kho Jabing test applied to CM 1 and the test was not satisfied. There was thus no basis for this court to reopen CA 4.

The applicability of the Kho Jabing test

The applicant submitted that the Kho Jabing test did not apply to CM 1 because CM 1 raised points that had not been raised in CA 4, was not filed close to his scheduled execution and raised constitutional issues (see [12] above). We rejected this submission.

In Kho Jabing, a five-judge court held that this court, as the final appellate court in Singapore, has the power to reopen and review a concluded criminal appeal: see Kho Jabing at [77(a)]. However, this power would only be exercised in exceptional cases. In this connection, the court laid down the following propositions of law:

(a) The general test: This court will only exercise its power of review if the applicant satisfies the court that “there is sufficient material on which it may conclude that there has been a miscarriage of justice”. Further, “the mere fact that the material relied on by the applicant consists of new legal arguments involving constitutional points does not, without more, suffice”: see Kho Jabing at [77(b)].

(b) Sufficient material: To be “sufficient”, the material put forward by the applicant has to be “new” and “compelling”. We elaborated on these two conditions in Kho Jabing at [77(d)] as follows:

(i) New: There are two requirements for the material to be “new”. First, it “must not previously have been canvassed at any stage of the proceedings prior to the filing of the application for review”. Second, “it must be something which could not, even with reasonable diligence, have been adduced in court earlier” (“the Non-Availability Requirement”). Notably, we explained in Kho Jabing at [58] that in respect of new legal arguments, the Non-Availability Requirement would “ordinarily be satisfied only if the legal arguments concerned are made following a change in the law”.

(ii) Compelling: The material would only be compelling if it is “reliable, substantial, powerfully probative, and therefore, capable of showing almost conclusively that there has been a miscarriage of justice”.

(c) Miscarriage of justice: A court would only find a miscarriage of justice if its earlier decision is “demonstrably wrong”, or is “tainted by fraud or a breach of natural justice, such that the integrity of the judicial process is compromised”: see Kho Jabing at [77(e)(i)]–[77(e)(ii)].

In laying down this test, the court in Kho Jabing clearly intended to lay down a universal test applicable to all applications for the court to review a concluded criminal appeal. The court did not limit the test to applications made at the eleventh hour before the scheduled execution of a convicted person. No such limitation was intended or alluded to in the judgment. The court also did not limit the test to applications raising grounds that had been raised before. On the contrary, the fact that the court laid down the Non-Availability Requirement shows that it intended that the Kho Jabing test would apply to applications that raised points that had not been raised in earlier proceedings. The court in Kho Jabing also stated expressly that it would not suffice that the application raised “legal arguments involving constitutional points”. Thus, Kho Jabing did not support the applicant’s contention that the test laid down in that case did not apply to CM 1.

Any doubt as to whether the Kho Jabing test applied to CM 1 should have been dispelled by Prabagaran. The facts in that case were very similar to the facts here. In Prabagaran, four applicants, like the applicant here, were convicted of offences under the MDA and sentenced to death. This court dismissed their appeals. The Public Prosecutor did not issue any CSA to the applicants. They then brought criminal motions challenging the constitutionality of ss 33B(2)(b) and 33B(4) of the MDA. In dismissing the criminal motions, this court applied the Kho Jabing test, holding that three applications did not satisfy the Non-Availability Requirement and there was no “miscarriage of justice” with regard to any of the applications because the applicants’ sentences would remain unchanged even if ss 33B(2)(b) and 33B(4) of the MDA were unconstitutional: see Prabagaran at [18] and [20]. Given the similarity between CM 1 and the applications in Prabagaran, it should have been clear that the Kho Jabing test applied to CM 1 in the same way that it applied in Prabagaran.

To the extent that Mr Seah’s submission was that we should depart from Kho Jabing, by ruling that the test laid down in that case did not apply to all applications to this court to review a concluded criminal appeal, we rejected this submission as well. In our judgment, there is no reason to restrict the scope of Kho Jabing. In that case, this court considered carefully our earlier decisions, the law in other jurisdictions and the relevant policy factors before laying down the test: see Kho Jabing at [10]–[51]. Mr Seah could not convince us that any aspect of the test in Kho Jabing was inappropriate or that we should limit its scope. We affirm that the test in Kho Jabing is applicable to all applications to this court for the review of a concluded criminal appeal.

For these reasons, we decided that the Kho Jabing test applied to CM 1.

Application of the Kho Jabing test

For reasons similar to those which we gave in Prabagaran, we found that CM 1 did not meet the Kho Jabing test.

First, besides the argument based on Zainudin (see [14] above), which as we explain below had no merit at all, none of the applicant’s arguments met the Non-Availability Requirement. His arguments were legal arguments that could all have been raised at the hearing of CA 4 if reasonable diligence was exercised.

We noted in Kho Jabing at [58] that the Non-Availability Requirement would usually only be satisfied in respect of legal arguments following a change in the law (see [21(b)(i)] above). Faced with this obstacle, Mr Seah tried to persuade us that his constitutional arguments could only have been raised after Prabagaran. He explained that when he acted for the applicant in CA 4, it did not dawn on him that he could challenge the constitutionality of s 33B of the MDA. He realised this only after reading Prabagaran. However, in our view, it was immaterial that Mr Seah did not realise subjectively that he could have challenged the constitutionality of s 33B of the MDA until he read Prabagaran. This is because the Non-Availability Requirement sets out an objective test of whether the arguments could have been advanced earlier with reasonable diligence. As noted above, the constitutional arguments in CM 1 did not meet that test.

Some portions of Mr Seah’s arguments challenged parts of the reasoning of this court in Prabagaran. We recognise of course that those portions could not have been raised until after we released our decision in Prabagaran. However, as we pointed out to Mr Seah, this could not suffice to satisfy the Non-Availability Requirement. Otherwise, whenever this court gives reasons for dismissing legal arguments in an application by convicted person A to reopen a concluded criminal appeal, another convicted person B will be able to bring a subsequent application in another case to challenge the reasoning of this court. Thereafter, would another convicted person C or even A be entitled to challenge the reasoning in B’s application? This would result in absurd, never-ending applications and nothing would ever be final.

For these reasons, we held that the Non-Availability Requirement was not satisfied in respect of all but one of the applicant’s arguments. Those arguments were not “new” material under the Kho Jabing test.

Second, in respect of the applicant’s arguments that parts of s 33B of the MDA were unconstitutional, we decided that the applicant could not establish a “miscarriage of justice” even if these arguments succeeded. This is because, as we noted in Prabagaran at [15], if s 33B was ruled to be unconstitutional, we would then have to disregard s 33B as if it had never been enacted and the applicant would have to be sentenced under the Second Schedule to the MDA to undergo the mandatory death penalty. We reached this view in Prabagaran after considering and rejecting several arguments raised there. One of those arguments was the very argument raised by the applicant in his written submissions – that s 33B could be “cured” by “deleting” s 33B(4) and reading s 33B(2) to provide that the court, not the Public Prosecutor, decides whether an accused person has provided substantive assistance: see Prabagaran at [40]. When we put this issue to Mr Seah during the hearing, he did not challenge the reasoning in Prabagaran on this point. On the contrary, he accepted that even if parts of s 33B of the MDA were unconstitutional, the law would still require the applicant to be sentenced to death (see [15] above).

This point was vital because, as we explained in Prabagaran at [17]–[18], [20] and [54], material would only establish a “miscarriage of justice” under the Kho Jabing test if it would affect the outcome of the case. Given that the applicant’s constitutional arguments would not have affected the outcome of his case even if they were successful, those arguments could not establish a miscarriage of justice that would justify the exercise of our power of review.

Third, for the reasons given below, we were satisfied that none of the applicant’s arguments had any merit. The arguments were not “compelling” material upon which we could find that there was a miscarriage of justice.

For these reasons, we held that the Kho Jabing test applied to CM 1 and that the test was not fulfilled in this case. There was therefore no basis for us to exercise our inherent power of review to reopen the criminal appeal.

Issue 2: The merits of the substantive arguments

Although we held that CM 1 did not meet the Kho Jabing test, we allowed Mr Seah to advance his substantive arguments. In the end, we found again that there was no merit in those arguments.

The constitutionality of s 33B of the MDA

It was a struggle to identify what argument Mr Seah was advancing on many points. Mr Seah asserted boldly that parts of s 33B of the MDA were unconstitutional without explaining how that was so. A mere assertion that a law is unconstitutional without giving proper reasons for that assertion surely cannot amount to a constitutional argument.

Section 33B(2)(b) of the MDA

(1) The Judicial Power Argument

The applicant argued that s 33B(2)(b) of the MDA is unconstitutional on the ground that the PP’s role in that provision amounts to a usurpation of the judicial power to sentence accused persons. This is unconstitutional, the applicant submitted, because it violates the principle of the separation of powers which is part of the basic structure of the Constitution.

In Prabagaran, we rejected a version of the Judicial Power Argument. We began by identifying the judicial power in relation to sentencing, observing at [60] that “the power to prescribe punishment is part of the legislative power while the courts’ power is to exercise its sentencing discretion as conferred by statute to select the appropriate punishment”. In other words, the judicial power in sentencing is the power to “determine the appropriate punishment for a particular offender”: see Prabagaran at [61].

We then reasoned at [65], [72] and [76] as follows:

A central reason why we rejected a version of the Judicial Power Argument in Prabagaran is that under s 33B(2)(b) of the MDA, the PP cannot issue or withhold a CSA and thus affect the sentence imposed on an accused, based on his view of what the appropriate punishment is. The PP cannot issue or withhold a CSA simply because he considers that an accused person deserves to suffer the death penalty or life imprisonment. The sole basis on which a CSA may be issued is that the accused has provided substantive assistance to the CNB and the only ground on which a CSA may be withheld is that such substantive assistance was not provided. Even when a CSA is issued, the discretion whether to impose the death penalty or the alternative sentence still remains with the court. Hence, s 33B(2)(b) of the MDA does not give the PP the power to decide the appropriate punishment for a particular offender. It follows that s 33B(2)(b) does not amount to a usurpation of judicial power.

We noted in Prabagaran at [72] that the limitation on the PP’s power under s 33B(2)(b) of the MDA distinguished that provision from the provisions found to be unconstitutional in the cases cited by the applicant. In Moses Hinds v The Queen [1977] AC 195, the impugned Jamaican law “effectively allowed the Review Board”, an arm of the Executive, to “determine the duration of the offender’s custodial term”: see Prabagaran at [68]. In Mohammed Muktar Ali v The Queen [1992] 2 AC 93, the Mauritian legislation, which gave the Director of Public Prosecutions (“the Mauritius DPP”) the discretion to choose the court where an accused would be tried for drug trafficking, “effectively allowed a member of the Executive to select the punishment to be imposed … since the sentencing court had no discretion to determine the appropriate sentence upon the decision of the Mauritius DPP”: see Prabagaran at [71]. The Executive there was effectively deciding the appropriate sentence for accused persons.

During the hearing, we invited Mr Seah to identify specific errors in the reasoning in Prabagaran on this point. He submitted that in Prabagaran, this court rejected a version of the Judicial Power Argument on the basis that s 33B(2)(b) of the MDA provides for the PP to make a subjective assessment of the objective requirement of whether an accused person has given substantive assistance to the CNB. Mr Seah argued that “a subjective assessment is unconstitutional”.

Mr Seah did not cite any case or advance any argument of principle for the proposition that “a subjective assessment is unconstitutional”. More importantly, he did not address the reasoning in Prabagaran. In particular, he did not address the critical point that the PP’s subjective assessment under s 33B(2)(b) of the MDA is constrained by the objective condition to which it pertains and thus, in granting or withholding a CSA, the PP cannot be said to be wielding the judicial power of determining the appropriate punishment (see [40] above).

In his written submissions, the applicant appeared to claim that the mere fact that the PP’s decision on whether to grant a CSA has an impact on the sentence imposed on an accused person renders the PP’s role under s 33B(2)(b) of the MDA a usurpation of judicial power. He relied on a classification of cases (“the Classification”) where legislative provisions were found to have violated the separation of powers. The Classification derives from Chan Sek Keong CJ’s judgment in Mohammad Faizal bin Sabtu v Public Prosecutor [2012] 4 SLR 947 (“Faizal”) at [51], and was endorsed in Prabagaran at [62] where we stated as follows:

The applicant contended that the PP’s discretion [under s 33B(2)(b)] is “dangerously identical” with the decisions under class (c) of the Classification, namely, “executive decisions not directly related to any charges ‘but which had an impact on the actual sentence eventually imposed by a court’”.

We could not accept this submission. In our judgment, Chan CJ did not intend to convey, in describing class (c) of the Classification in Faizal, that any legislation enabling the Executive to make decisions that affected an accused person’s sentence would amount to a usurpation of the judicial power in sentencing. This cannot be what Chan CJ meant given his decision in Faizal itself. In Faizal, Chan CJ held that ss 33A(1)(a), 33A(1)(d) and 33A(1)(e) of the MDA – which required the court to impose enhanced minimum sentences on accused persons who were directed by the Director of the CNB, a member of the Executive, to be admitted to an approved institution – did not intrude into the judicial power in sentencing. The decision of the Director of the CNB to order an accused to be admitted to an approved institution is a decision of the Executive, which undoubtedly may impact the sentence imposed on an accused under s 33A of the MDA. Yet Chan CJ did not think that that sufficed to render ss 33A(1)(a), 33A(1)(d) and 33A(1)(e) of the MDA an intrusion into the judicial power.

In our judgment, in describing class (c) of the Classification, Chan CJ was broadly delineating a residual category of cases. Class (c) (“administrative decisions which were not directly related to any charges”) was defined in wide terms, in contradistinction to class (b) (“administrative decisions which were directly related to the charges”). Not all provisions falling within the description of class (c) amount to an intrusion into the judicial power in sentencing.

Further, as we noted in Prabagaran at [77], the facts of the case cited by Chan CJ in Faizal as a case in class (c) of the Classification - State of South Australia v Totani (2010) 242 CLR 1 – are far removed from the facts here. We repeat the following observations of this court in Prabagaran at [77]:

For the above reasons, we rejected the applicant’s submissions that the PP’s role under s 33B(2)(b) of the MDA in determining whether to grant a CSA or not constitutes a usurpation of the judicial power to sentence accused persons.

(2) The Constitutional Role Argument

The applicant argued that the PP’s role under s 33B(2)(b) of the MDA is ultra vires the PP’s proper role under the Constitution. Article 35(8) of the Constitution states that the Attorney-General (“the AG”), who is also the PP, “shall have power … to institute, conduct or discontinue any proceedings for any offence”. The applicant emphasised that Art 35(8) does not refer to the PP exercising any role in relation to the sentencing of accused persons.

We agreed with the PP that this argument was unmeritorious. Article 35(7) of the Constitution states:

Article 35(7) recognises that the AG’s constitutional role is not confined to that of instituting, conducting or discontinuing prosecutions. The AG also has the role of “[discharging] the functions conferred on him … under … any other written law”. The PP’s role under s 33B(2)(b) of the MDA is a function conferred on the PP under “written law”. Thus, the PP’s role under s 33B(2)(b) cannot be said to be ultra vires his constitutional role.

Section 33B(4) of the MDA

The applicant submitted that s 33B(4) of the MDA is unconstitutional because it is “self-referentially inconsistent and is consequently self-defeating in purpose”. The submission appeared to be as follows:

(a) the aim of s 33B(4) of the MDA is to provide an avenue for accused persons to challenge the PP’s exercise of his discretion under s 33B(2)(b) on the grounds of bad faith or malice;

(b) however, it is extremely difficult for an accused person to establish bad faith and malice on the PP’s part; and

(c) therefore, s 33B(4) of the MDA is unconstitutional.

We rejected this argument. We accepted that it would only be in a rare case that an accused person would be able to adduce sufficient evidence to obtain leave to commence judicial review in respect of the PP’s decision to withhold a CSA on the ground that it was made in bad faith or with malice. However, in our judgment, the difficulty faced by an accused person in impugning the PP’s decision to withhold a CSA is not so extreme that it renders s 33B(4) inconsistent and self-defeating in purpose. In Muhammad Ridzuan bin Mohd Ali v Attorney-General [2015] 5 SLR 1222 (“Ridzuan”), we held at [43] that an accused person does not have to produce evidence directly impugning the process by which the PP reaches his decision not to grant a CSA, eg, records of meetings, to meet his evidentiary burden in challenging the PP’s decision. Inferences may be made from the objective facts. For example, we held at [51] that in relation to an alleged breach of Art 12 of the Constitution, an accused person need only show that (1) his involvement in the offence and knowledge was practically identical to that of a co-offender and (2) both he and his co-offender gave the same information to the CNB. The PP would then have to justify its decision to grant a CSA to the co-offender but not to the accused.

The applicant also argued that s 33B(4) of the MDA is unconstitutional because it violates the rules of natural justice. The premise of this submission was that s 33B(4) ousts judicial review.

In our judgment, this submission did not assist the applicant. We begin by noting that in Ridzuan at [76] and Prabagaran at [98], this court expressly left open the question of whether s 33B(4) of the MDA effectively ousts judicial review on all grounds except bad faith, malice and unconstitutionality. The High Court has now held in Nagaenthran a/l K Dharmalingam v Attorney-General [2018] SGHC 112 (“Nagaenthran”) at [69] that s 33B(4) of the MDA is a constitutionally valid ouster clause that ousts judicial review except on the basis of bad faith, malice and unconstitutionality, although s 33B(4) may, in principle, be circumvented where the PP’s decision is tainted by a jurisdictional error of law. Nagaenthran is now pending appeal to this court.

In our judgment, it was unnecessary to determine the point addressed in Nagaenthran in this application. Any alleged breach of natural justice in an application for this court to reopen a concluded criminal appeal can be relevant only if it is shown that it could have led to a different outcome. Here the applicant had to but failed to articulate (1) what it was that he could or would have put to the PP, (2) how he was not allowed to do so and (3) how, if he had been able to do so, it could, would or even might reasonably have led to a different outcome in terms of what the PP decided. This is not an unreasonable standard. The Court of Appeal has applied it in the context of attempts to set aside arbitration awards and adjudication determinations. Absent this, no argument on natural justice has any hope. It would be a purely theoretical point. At the same time, if an applicant could prove these elements, he might have a case.

Section 33B(2)(a) of the MDA

The applicant argued that the “evolving interpretation” of s 33B(2)(a) reflected an inherent confusion in the provision which violated his rights under Art 12 of the Constitution. He emphasised that in his case, he was first found to be a courier by the Judge but this finding was then overturned by this court.

This argument was without basis and we rejected it accordingly. First, the “evolving interpretation” of s 33B(2)(a) was simply the unremarkable result of the incremental development of case law relating to that provision. There was no basis to conclude that it reflected an “inherent confusion” in s 33B(2)(a), let alone that the provision violated the applicant’s rights under Art 12 of the Constitution. Second, the sequence of events in relation to the applicant’s case was the natural consequence of this court disagreeing with the Judge as to the interpretation of s 33B(2)(a) and thus, whether the applicant fell within the scope of that provision. It was not a basis on which we could find a breach of the applicant’s rights under Art 12 of the Constitution.

The interpretation of s 33B of the MDA

In his written submissions, apart from submitting that s 33B of the MDA is unconstitutional, the applicant also raised arguments as to the interpretation of s 33B. We will now address these arguments briefly.

First, the applicant argued that he should be reclassified as a courier in the light of our decision in Zainudin. We rejected this submission. The High Court found that the applicant possessed the diamorphine that formed the subject matter of his charges for repacking and sale (see [5] above). This finding was affirmed by this court on appeal (see [9] above). In this light, the applicant was plainly not a mere courier of the drugs he was found in possession of since he intended to sell them. Nothing in Zainudin suggested otherwise. On the contrary, in Zainudin, this court held at [112(d)] that one who divided and packed drugs “to enable the original quantity of drugs to be transmitted to a wider audience” would not fall within s 33B(2)(a)(iii) of the MDA. As the applicant was repacking the drugs for sale, he intended to transmit them to a wider audience. Hence, under Zainudin, the applicant could not be considered a mere courier.

Second, the applicant argued that this court should adopt the Best Effort Interpretation of s 33B(2)(b) of the MDA. We were not persuaded. We rejected the Best Effort Interpretation in Ridzuan, holding at [45] that Parliament’s intent was that “an offender’s good faith cooperation with the CNB is not a necessary or sufficient basis for the PP to grant him a [CSA]”; rather, a CSA would only be granted where “the offender’s assistance yields actual results in relation to the disruption of drug trafficking”. The applicant could not convince us that the reasoning in Ridzuan was incorrect. We therefore rejected this submission.

Conclusion

For the reasons set out above, we decided that the substantive arguments advanced in CM 1 were without merit and rejected them. Accordingly, we dismissed CM 1.

Issue 3: Costs

The parties’ submissions

(a) First, the court has the inherent power to order defence counsel to bear the costs of the Prosecution directly. At common law, the court had the inherent power to order a solicitor to bear personally the costs of litigation in civil and criminal proceedings: see Zhou Tong and others v Public Prosecutor [2010] 4 SLR 534 (“Zhou Tong”) at [22]–[24]. This power was not excluded impliedly or limited by the enactment of s 357 of the CPC. In this regard, the Prosecution argued against the decision of the High Court in Arun Kaliamurthy and others v Public Prosecutor and another matter [2014] 3 SLR 1023 (“Arun Kaliamurthy”) which held at [14]–[15] that Parliament had excluded the court’s inherent power to order defence counsel to pay the costs of the Prosecution, in the absence of a costs order being made against an accused person.

(b) Second, the court should make the proposed costs orders against Mr Seah because he conducted CM 1, which was “a hopeless foray”, in an extravagant and unnecessary manner and that led to costs being incurred improperly and unreasonably. Mr Seah also did not conduct proceedings with reasonable competence and expedition and it was therefore just that the proposed costs order be made.

(a) First, he argued that the court did not have the inherent power to order defence counsel to bear the costs of the Prosecution directly. He submitted that Arun Kaliamurthy was decided by the High Court correctly.

(b) Second, although he did not deny the mistakes in the making of this application, this court should not award costs against him in the circumstances of this case. He submitted that he did not conduct the application in an extravagant and unnecessary manner, the application was “not of zero legal basis or of nil prospects” and he did not incur costs unreasonably or improperly.

Our decision

In his affidavit, Mr Seah stated the following:

(a) After the High Court dismissed OS 134, he visited the applicant and advised him not to appeal against the dismissal of OS 134. However, the applicant wanted to appeal and asked Mr Seah to write to LASCO to request another counsel to represent him. Mr Seah did so by a letter to the Registry.

(b) The Registry replied by a letter noting that Mr Seah had been discharged as counsel and requested him to inform the applicant that LASCO would not appoint another counsel to represent him. Mr Seah informed the applicant’s family about this. At this stage, he was no longer acting for the applicant.

(c) Subsequently, the applicant’s family contacted Mr Seah. He was told that the applicant wished to make a fresh application to the court “on psychiatric grounds”. Mr Seah advised that there was no merit in such an application but that “a possible real issue which [was] not plainly or obviously bound to fail [was] the constitutionality of [s 33B of the MDA]”. The applicant knew, however, that it was not likely that the application would succeed – he was “hoping against hope”.

(d) Mr Seah advised the applicant’s family to appoint another lawyer to represent the applicant. However, they returned to him and he acceded eventually to their request to represent the applicant because the applicant was facing the death penalty.

Conclusion