Moad Fadzir bin Mustaffa v Public Prosecutor [2024] SGCA 20

Mr Moad Fadzir bin Mustaffa (“the applicant”) filed the present application in CA/CM 15/2024 (“CM 15”) on 19 April 2024 under s 394H of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”) for permission to make a review application to the Court of Appeal pursuant to s 394I of the CPC. He seeks to review an earlier decision of the Court of Appeal (which comprised Sundaresh Menon CJ, Judith Prakash JCA and Tay Yong Kwang JCA) in Moad Fadzir bin Mustaffa v Public Prosecutor and other appeals [2019] SGCA 73 (“the first CA Judgment”) which was delivered on 25 November 2019.

The applicant filed an earlier application for permission in CA/CM 29/2020 (“CM 29”) on 22 September 2020. I dismissed CM 29 summarily on 12 October 2020 in Moad Fadzir bin Mustaffa v Public Prosecutor [2020] SGCA 97 (“the second CA Judgment”). CM 15 is therefore the applicant’s second application for permission to make a review application in respect of the first CA Judgment.

Applications for permission under s 394H(1) in respect of decisions where the appellate court is the Court of Appeal are heard by a single Judge sitting in the Court of Appeal (see s 394H(6)(a) of the CPC). It was on this basis that I dealt with CM 29 and it is also on this basis that I now deal with CM 15, the present application for permission to review the first CA Judgment.

The applicant also applied recently in CA/CM 20/2024 (“CM 20”) that I disqualify myself from hearing CM 15 on the ground there were “circumstances that would give rise to a reasonable suspicion or apprehension of bias in the fair-minded and informed observer”. For the reasons set out in the recent judgment in Moad Fadzir Bin Mustaffa v Public Prosecutor [2024] SGCA 18 (“the third CA Judgment”), on 17 May 2024, CM 20 was dismissed by the Court of Appeal (comprising Tay Yong Kwang JCA, Steven Chong JCA and Woo Bih Li JAD).

Facts

The applicant was tried jointly with Mr Zuraimy bin Musa (“Zuraimy”) in the High Court on the following respective capital charges under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”):

The detailed facts of the applicant’s criminal case are set out in the first CA Judgment. I set out a brief summary of the facts here for context. On the night of 11 April 2016, the applicant drove a car, with Zuraimy in the front passenger seat, to Block 157 Toa Payoh. After the car was parked at the loading/unloading bay there, an unknown Indian man walked to the driver’s side and threw a white plastic bag through the front window and it landed on the applicant’s lap. The applicant passed the white plastic bag to Zuraimy. The white plastic bag was subsequently placed in the applicant’s sling bag in the car. The applicant then drove to Commonwealth Avenue West where Zuraimy alighted and walked towards Holland Close. Thereafter, the applicant drove the car, with the sling bag inside, to his home in Woodlands Drive 52.

Officers from the Central Narcotics Bureau (“CNB”) arrested the applicant when he alighted from the car at Woodlands Drive 52. When the applicant was arrested, he was carrying the sling bag with four bundles of drugs which were later established to contain 36.93g of diamorphine. CNB officers arrested Zuraimy at Holland Close the next day when he came down from his residence.

Both the applicant and Zuraimy claimed trial to the charges against them, with each alleging that the four bundles of drugs belonged to the other. The High Court found the applicant guilty on his charge and convicted him. The mandatory death penalty was imposed as the applicant did not satisfy any of the requirements for alternative sentencing under s 33B(2) of the MDA. In Zuraimy’s case, the High Court amended his charge to one of abetting the applicant’s possession of diamorphine, convicted Zuraimy on the amended charge and sentenced him to the maximum term of ten years’ imprisonment.

The applicant appealed against his conviction and sentence. He disputed the elements of knowledge of the nature of the drugs and possession of the drugs for the purpose of trafficking. Zuraimy also appealed against his sentence on the amended charge while the Prosecution appealed against Zuraimy’s acquittal on the original trafficking charge.

In the first CA Judgment (at [106]), the court amended the charge against the applicant by deleting all references to common intention as necessitated by the High Court’s findings and affirmed the applicant’s conviction and the mandatory death sentence based on the charge as amended. The amended charge read:

The Court of Appeal dismissed the applicant’s appeal, as well as the appeals brought by Zuraimy and the Prosecution.

On 22 September 2020, the applicant filed CM 29 for permission to make an application under s 394H of the CPC for the Court of Appeal to review the first CA Judgment. This was done two days before his original scheduled date of execution on 24 September 2020. Following his application, the President of the Republic of Singapore (“the President”) ordered a respite of the execution pending further order on 23 September 2020.

The applicant raised the following points in CM 29:

(a) the failure of prosecutorial duty to call material witnesses;

(b) the court’s failure to consider the applicability of s 33B(2) of the MDA prior to sentencing;

(c) the court’s failure to correctly classify the applicant’s role in the offending;

(d) the failure of the CNB officers to caution the applicant on the applicant’s right to silence; and

(e) the lack of clarity as to the standard applied by the trial judge when considering the applicant’s state of mind to rebut the presumption of knowledge under s 18(2) of the MDA.

For the reasons set out in the second CA Judgment, I found that none of the above grounds disclosed a legitimate basis for the exercise of the Court of Appeal’s power of review. I therefore dismissed CM 29 summarily.

On 12 April 2024, the President issued his order that the death sentence on the applicant be carried into effect on Friday, 26 April 2024. On 19 April 2024, the applicant filed the present application in CM 15 which was accompanied by a supporting affidavit by his counsel, Mr Ong Ying Ping, and written submissions.

On 23 April 2024, the Prosecution sought an extension of time to review some of the issues raised by the applicant and to file its written submissions and supporting affidavit. On this basis, the Prosecution requested a stay of execution of the death penalty and asked that the urgent hearing date for CM 15 (Thursday, 25 April 2024) be vacated. On 24 April 2024, the Court of Appeal (comprising Tay Yong Kwang JCA, Steven Chong JCA and Woo Bih Li JAD) granted the Prosecution’s requests.

Subsequently, on 10 May 2024, the Prosecution filed its affidavit and submissions for CM 15. I did not proceed to deal with CM 15 in the meantime because of the applicant’s further application in CM 20 that I disqualify myself from hearing CM 15. As explained at [4] above, CM 20 was dismissed recently by the Court of Appeal in the third CA Judgment.

The decision of the court

Applicable principles

The principles governing the requirements for a review application are well-established by recent case law. An application for permission to bring such an application must disclose a legitimate basis for the exercise of the court’s power of review (Kreetharan s/o Kathireson v Public Prosecutor and other matters [2020] 2 SLR 1175 at [17]). This means that the applicant must demonstrate that there is sufficient material (being evidence or legal arguments) on which the court may conclude that there has been a miscarriage of justice in the criminal matter in respect of which the earlier decision was made (s 394J(2) of the CPC). For material to be deemed “sufficient”, the applicant must show that (s 394J(3) of the CPC):

(a) the material has not been canvassed at any stage of the criminal proceedings;

(b) the material could not have been adduced earlier even with reasonable diligence; and

(c) the material is compelling, in that it is reliable, substantial, powerfully probative and capable of showing almost conclusively that there has been a miscarriage of justice in the criminal matter in respect of which the earlier decision was made.

In assessing whether there was a miscarriage of justice, the appellate court must consider if the earlier decision that is sought to be reopened is “demonstrably wrong”. In order for an earlier decision on conviction to be “demonstrably wrong”, it must be apparent, based only on the evidence tendered in support of the review application and without any further inquiry, that there is a powerful probability that the earlier decision is wrong (s 394J(6)(b) of the CPC).

These are cumulative conditions and “[t]he failure to satisfy any of these requirements will result in the dismissal of the review application” [emphasis in original]: Syed Suhail bin Syed Zin v Public Prosecutor [2021] 1 SLR 159 at [18]. Where the material consists of legal arguments, s 394J(4) imposes an additional requirement that it must be based on a change in the law that arose from any decision made by a court after the conclusion of all proceedings relating to the said criminal matter.

Parties’ cases

In the present application, the applicant submits that there is new material on which the Court of Appeal may conclude that there has been a miscarriage of justice in the first CA judgment. This new material takes the form of a statement by a man named “Kishor”, whom the applicant claims is a material witness whose evidence was not made available to the applicant or the court in the first CA judgment. Kishor is a convicted prisoner. The applicant and Kishor became acquainted with each other in prison. Both men are facing the death penalty for drug offences.

According to the applicant, Kishor was the “unknown Indian man” who threw the white plastic bag containing the four packets of drugs through the front window of the car which the applicant and Zuraimy were in on the night of 11 April 2016. In his statement (see [30] below), Kishor claims that a person named “Boy Kejr” had asked him to pass certain drugs to Zuraimy and to collect money from Zuraimy. Kishor had also allegedly collected money from Zuraimy for Boy Kejr on previous occasions. The applicant submits that Kishor’s evidence corroborates his case that Zuraimy was the intended recipient of the drugs and that the applicant was not aware that the drug transaction was going to happen.

The applicant also contends that the Prosecution knew who the “unknown Indian man” was but failed to produce him as a witness even when the applicant first applied for permission to review in CM 29. This is based on Kishor’s evidence that his DNA was found on two of the four packets of drugs and that he had, at an unspecified time, been interviewed by an officer from the CNB in relation to the drugs. This was a breach of the Prosecution’s disclosure obligations.

In response, the Prosecution argues that CM 15 should be dismissed because:

(a) s 394K(1) of the CPC expressly disallows the making of more than one review application;

(b) there has been no breach of disclosure obligations by the Prosecution; and

(c) Kishor’s belated claims do not constitute sufficient grounds to warrant a review.

With respect to the alleged breach of the Prosecution’s disclosure obligations, the Prosecution submits that this allegation is unsupported by any evidence apart from Kishor’s statement adduced by the applicant. While the Prosecution confirms that the CNB had recorded a statement from Kishor in relation to the applicant’s case on 5 January 2017, its position is that there was insufficient evidence to establish Kishor as a material witness who could be expected to confirm or contradict the applicant’s defence. The Prosecution therefore took the view that it was under no obligation to disclose Kishor’s statement to the applicant on the basis of its disclosure obligations set out in Muhammad Nabill bin Mohd Fuad v Public Prosecutor [2020] 1 SLR 984 (“Nabill”).

The CNB recorded a further statement from Kishor on 6 May 2024 to investigate the claims made in his statement adduced by the applicant in CM 15. Having reviewed this further statement, the Prosecution maintains that it is not obliged to disclose Kishor’s statements recorded by the CNB on 5 January 2017 and on 6 May 2024.

The Prosecution also argues that Kishor’s statement does not constitute sufficient material demonstrating that there has been a miscarriage of justice. First, the applicant cannot show that the material could not have been adduced earlier with reasonable diligence. He has not specified when he came to know of Kishor’s involvement in his case despite the fact that both the applicant and Kishor have been in prison since April and July 2016 respectively. Second, the material is not compelling as Kishor’s statement is in essence an unsworn statement which comes eight years after the event. There are also concerns regarding Kishor’s credibility. Third, Kishor’s claims in his statement do not show almost conclusively that the decision in the first CA Judgment was demonstrably wrong.

The general prohibition against repeat applications for permission

The present application is an attempt to make a second application for review and this is clearly prohibited by s 394K(1) of the CPC. This provision states unequivocally that an applicant cannot make more than one review application in respect of any decision of an appellate court. As I observed in Mohammad Yusof bin Jantan v Public Prosecutor [2021] 5 SLR 927 (“Yusof”) at [13], it follows logically that an applicant cannot make more than one application for permission to review since that is the necessary prelude to a review application. Since the present application is the second application for permission in respect of the first CA judgment (CM 29 being the first such application), it is disallowed by law and can be dismissed on this ground alone.

While s 394J(1)(b) of the CPC provides that the section does not affect the court’s inherent power to review, on its own motion, an earlier decision of the appellate court, invoking the court’s inherent power would generally not affect the substance of the review application. This is because the requirements in the statutory route of review mirror the requirements for the exercise of the court’s inherent power. The court’s inherent power to review concluded criminal appeals must not be used to justify repeat applications lest the very instrument for ensuring that there is no miscarriage of justice becomes perverted into an instrument for the abuse of the process of justice. The inherent power should only be invoked as a last resort and only in the most exceptional of cases. For instance, a person convicted on a murder charge who has already failed in his appeal and in an earlier review application may invoke the inherent power of the court should credible evidence surface subsequently that the alleged murder victim is actually alive (Chander Kumar a/l Jayagaran v Public Prosecutor [2023] SGCA 35 (“Chander”) at [23]–[24]).

Specifically, the exercise of the court’s inherent power under s 394J(1)(b) of the CPC will only be warranted where the material put forth by the applicant renders the relevant facts practically irrefutable and those facts show conclusively that there has been a miscarriage of justice on the face of the record. The court’s inherent power will therefore never be invoked simply because an applicant puts forward a different factual narrative or claims that certain allegations should be examined further. To allow for anything less stringent will be to encourage completely unmeritorious attempts to re-open concluded matters repeatedly and endlessly. That will certainly destroy the balance between the prevention of error and the principle of finality which the court’s inherent power to review seeks to strike (Kho Jabing v Public Prosecutor [2016] 3 SLR 135 at [49]).

In the present application, Kishor’s subjective intended testimony, as will become apparent in the discussions that follow below, can never demonstrate that there has been an obvious miscarriage of justice in the first CA Judgment. It is far from being an appropriate case for the exercise of the court’s inherent power under s 394J(1)(b) of the CPC.

Whether Kishor’s statement amounts to sufficient material under s 394J(2) of the CPC

Leaving aside the legal hurdle posed by s 394K(1) for the time being, Kishor’s intended testimony cannot amount to “sufficient material” under s 394J(2) of the CPC on which the court may conclude that there has been a miscarriage of justice. Kishor’s intended testimony, in his handwritten statement to the applicant’s counsel, states the following:

Even if we assume that Kishor is telling the truth in this statement, his intended evidence will not detract from the findings made by the Court of Appeal in the first CA Judgment.

The Court of Appeal concluded (at [86] of the first CA Judgment) that Zuraimy acted as the middleman and the contact point between the applicant and the third party, “Benathan”, and that it was the applicant who transacted in the drugs. This finding is not inconsistent with Kishor’s statement. The thrust of Kishor’s intended evidence is that Boy Kejr had asked him to deal with Zuraimy on 12 April 2016. However, Kishor did not know the source of the money which was to be paid for the bundles of drugs. He also did not know whether Zuraimy was arranging this particular drug transaction in his own capacity or was merely acting as the middleman for some other party or parties. Kishor’s statement also sheds no light on what Zuraimy intended to do with the drugs after delivery. The mere fact that Boy Kejr had told Kishor to pass the drugs to Zuraimy and to collect money from him cannot by itself indicate that Zuraimy was in fact the principal in the drug transaction. This is especially so since both the applicant and Zuraimy were in the car when Kishor threw the bundles of drugs through the car’s window. Kishor was therefore not a material witness who was able to confirm the applicant’s defence in material aspects.

The fact remains that the drugs were in the applicant’s possession and other drugs and drug paraphernalia were found in his flat after his arrest. There was however nothing incriminating found in Zuraimy’s uncle’s flat in Holland Close where Zuraimy was residing or at Zuraimy’s official home address. These facts, along with the other inconsistencies in the applicant’s evidence, were relied upon by the Court of Appeal in arriving at its conclusions in the first CA Judgment. The assertions in Kishor’s statement will have no bearing whatsoever on these matters.

In any event, Kishor can hardly be called a credible witness. In his statement, Kishor states that, in his interview with the CNB officer, he denied delivering any drugs to Zuraimy or to the applicant at Block 157 because he had in fact met them at Block 156A instead and did not know if they had met other persons at Block 157 and collected drugs from them. This account clearly indicates that Kishor is a person who is not keen to tell the whole truth. He could have easily informed the CNB officer that on that night, he passed the drugs to two men at Block 156A instead of the neighbouring Block 157. Instead, he chose to deny all involvement in the matter on the basis of a supposed factual technicality. This was a clear attempt to mislead the CNB officer and to misrepresent what had actually happened. On this basis, Kishor can hardly be considered a credible witness.

I also agree with the Prosecution that, given Kishor’s denial of any involvement in the drug transaction with the applicant and Zuraimy, there was insufficient evidence for the Prosecution to identify Kishor as a material witness. Further, the applicant failed to identify Kishor as the unknown Indian man when he was shown a colour photograph of Kishor during the recording of his statement on 31 August 2016. His answer to the CNB recording officer was, “I do not recognise this person. I don’t know who he is. I also cannot be sure if he is the male Indian that threw the white plastic bag onto my lap in the car”. Accordingly, the Prosecution’s duties of disclosure, pursuant to Nabill, were not engaged and were certainly not breached.

For completeness, Zuraimy also denied knowing Kishor when he was shown a colour photograph of Kishor during the recording of his statement on 31 August 2016. Zuraimy’s answer was, “I do not recognise this person. I have never seen him before”.

In the first CA Judgment, the Court of Appeal found that, on the totality of the evidence, it was the applicant who was transacting in the drugs and that Zuraimy was acting as the middleman for that transaction. With or without Kishor’s evidence, that narrative remains unchanged. There was therefore no miscarriage of justice whatsoever.

Conclusion

Under s 394H(7) of the CPC, an application for permission may, without being set down for hearing, be dealt with summarily by a written order of the appellate court. Before refusing such an application summarily, the appellate court must consider the applicant’s written submissions (if any) and may, but is not required to, consider the respondent’s written submissions (if any) (s 394H(8) of the CPC).

Having considered both parties’ affidavits and written submissions, I dismiss the applicant’s second application for permission to review on the basis that a second application is prohibited by s 394K(1) of the CPC. In any event, CM 15 does not disclose any legitimate basis whatsoever under s 394J for the exercise of the Court of Appeal’s power of review. Accordingly, CM 15 is dismissed summarily.