Yunani bin Abdul Hamid v Public Prosecutor

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

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

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

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

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

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

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

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

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

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

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

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

[13] On 10 April 2007 at about 4.25am, Aziz was stopped at a police roadblock along Newton Road for a routine check. When stopped, he produced a driver’s licence belonging to one Hamzah bin Harith. The police officers manning the roadblock noticed that Aziz was not the person pictured in the licence and placed him under arrest for giving false particulars under s 16(1)(b)(i) of the National Registration Act (Cap 201, 1992 Rev Ed) and for fraudulent possession of the licence under s 35(1) of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed). Aziz was brought to Tanglin Police Division Headquarters, where it was discovered that he was “wanted” for drug trafficking. His urine, when tested, was found to be positive for cannabis. He was subsequently handed over to CNB Investigating Officer Hasshim bin Hassan (“IO Hasshim”) on the same day at about 5.15pm.

[14] IO Hasshim immediately proceeded to record a statement relating to the events of 12 August 1992 from Aziz pursuant to s 121 of the CPC. In the statement, Aziz admitted his role and implicated the Applicant as well. He stated that when he learnt that the Applicant had turned himself in, he (Aziz) became a fugitive and managed to evade arrest for 15 years. He had secretly procured his brother-in-law’s identity card and had used it to hide his true identity. He also used a false name when necessary and relied on part-time jobs to support himself.

[15] Aziz professed unequivocally that the knapsack which he had been carrying on 12 August 1992, including the cannabis discovered inside, belonged to the Applicant. This was effectively the first time that evidence explicitly implicating the Applicant in the offence had emerged in the course of the investigations. Aziz further stated that he was prepared to testify against the Applicant. For completeness, Aziz’s statement made on 11 April 2007 pursuant to s 122(6) of the CPC is reproduced here. It states:

As a result of these developments, the Applicant was re-arrested at his home on 10 April 2007 at about 11.25pm. His urine, when tested, was once again found to be negative for controlled drugs.

[16] On 11 April 2007 at about 9.00am, both the Applicant and Aziz were produced in Court No 26 of the Subordinate Courts and formally charged with the capital offence of trafficking in cannabis, in furtherance of their common intention, by reason of possessing approximately 913.1g of cannabis. Because this was a capital charge, no bail was offered. While the Applicant was in remand, his family engaged Mr Noor Mohamed Marican (“Mr Marican”) of M/s Marican & Associates on his behalf.

[17] After a consideration of all the circumstances of the case – including the length of time that had elapsed since 12 August 1992 – a decision was made by the Prosecution, in concurrence with recommendations by CNB, to amend both the charge against the Applicant and that against Aziz to a non-capital charge, viz, that of trafficking in not less than 499g of cannabis, which would be punishable upon conviction with a minimum sentence of 15 strokes of the cane and 20 years’ imprisonment and a maximum sentence of 15 strokes of the cane and 30 years’ imprisonment. The Prosecution informed the court, Mr Marican and counsel for Aziz of this decision at a pre-trial conference in the High Court on 4 September 2007. As a consequence, the cases against the Applicant and Aziz were de-listed from the High Court. The reduced charges (of trafficking in not less than 499g of cannabis) were formally tendered in Court No 26 of the Subordinate Courts on 11 September 2007. Aziz, in addition, was charged with the offence of consumption of controlled drugs under s 8(b) of the MDA as a result of his positive urine test for cannabis after his arrest (see [13] above). Thereafter, subsequent pre-trial conferences were held in the Subordinate Courts.

[18] On 3 October 2007, Mr Marican made representations to the Prosecution on behalf of the Applicant to withdraw the charge against him. As the Applicant was unable to recollect the precise events pertaining to the incident on 12 August 1992, Mr Marican decided to base his representations entirely on the Applicant’s previous representations made by Mr Mahadi dated 2 October 1992 (in which the Applicant’s alleged innocence had been unequivocally declared (see [11] above)). The Prosecution rejected all such representations in a reply dated 29 October 2007.

[19] At this stage of the proceedings, both the Applicant and Aziz indicated that they would be claiming trial. However, after a further consideration of the circumstances of the case, including the fact that both the Applicant and Aziz had not committed any further crimes in the intervening 15 years (apart from Aziz having remained on the run), the Prosecution once again decided to amend both the charge against the Applicant and that against Aziz further to one of trafficking in not less than 329g of cannabis provided that they pleaded guilty. This amendment would have brought the charge within the lowest sentencing bracket for the offence of trafficking in cannabis.

[20] At a pre-trial conference on 1 November 2007, the Prosecution’s offer was conveyed to counsel for Aziz (who was also mentioning on behalf of Mr Marican on that occasion). Thereafter, counsel for Aziz made written representations (dated 9 November 2007) in which he requested that the Prosecution proceed against Aziz only on the drug trafficking charge (to which Aziz would plead guilty), with the drug consumption charge to be taken into consideration for the purpose of sentencing. The Prosecution eventually acceded to this request in a reply to Aziz’s counsel dated 13 November 2007. At a subsequent pre-trial conference on 14 November 2007, a date was fixed for Aziz to plead guilty. The Applicant, however, maintained his decision to claim trial. His case was fixed for trial from 26 November 2007 to 28 November 2007.

[21] On 15 November 2007, Aziz pleaded guilty before a district judge and admitted unreservedly to the statement of facts tendered by the Prosecution. According to the statement of facts:

(a) On or about 11 August 1992, the Applicant, who was in need of cash, had approached Aziz for help.

(b) Aziz told the Applicant that he might be able to help the latter, but that it would involve dealing with drugs. The Applicant told Aziz that he did not mind so long as he was able to get money.

(c) Aziz then introduced the Applicant to a male Malay, who also worked at the PSA Container Port, known as “Pa Hitam”. Aziz was aware that “Pa Hitam” dealt in cannabis as he had previously purchased cannabis from the latter for his own consumption.

(d) On or around 12 August 1992, while Aziz was taking a nap, the Applicant went to meet “Pa Hitam” and later returned to the workplace carrying a knapsack.

(e) Aziz knew that the knapsack contained cannabis and agreed to help the Applicant transport the cannabis out of the PSA Container Port.

(f) The Applicant passed the knapsack to Aziz to carry. The two men then proceeded on the Applicant’s motorcycle to the PSA Container Port Gate No 1, where the cannabis was discovered by Cpl Nasiran.

I need say no more about this particular version of events save to observe that it may not be internally consistent.

[22] In Aziz’s plea in mitigation, defence counsel emphasised that Aziz had no antecedents and regretted his involvement in the matter as well as his failure to turn himself in earlier. Counsel also made reference to the statement which Aziz had made to CNB pursuant to s 122(6) of the CPC (set out earlier at [15] above) and stated that the statement reflected “the fear in [Aziz’s] mind all these years”[note: 3]. Counsel emphasised that when the drugs were discovered, the Applicant rode off suddenly and Aziz, as a pillion passenger, had no choice but to follow. When the Applicant and Aziz went their separate ways later, Aziz’s instincts were that the Applicant would put all the blame on him. Aziz feared that the Applicant would be believed in this regard as the latter was younger than him, and this caused him to panic and lie low. Counsel also elaborated in the mitigation plea on how Aziz had become acquainted with the Applicant. According to counsel, although both Aziz and the Applicant worked at the PSA Container Port, they worked at separate areas and only became acquainted with each other about three months before the incident of 12 August 1992 through the introduction of another worker. As the Applicant had a motorcycle, Aziz would sometimes ask him for a lift home, but did not do so on a regular basis. Aziz, so his counsel emphasised, was not part of any syndicate and had agreed to be a witness for the Prosecution (in the criminal proceedings against the Applicant) as he wanted to “put the record straight”[note: 4].

[23] After considering Aziz’s plea in mitigation, the district judge sentenced him to 12 years’ imprisonment and eight strokes of the cane. No appeal against sentence was filed by Aziz.

[24] On the first day scheduled for his trial, the Applicant decided to plead guilty to the Amended Charge pursuant to the Prosecution’s offer. This was despite the fact that he had steadfastly maintained his innocence for the previous 15 years. In pleading guilty, the Applicant also admitted unreservedly to the statement of facts tendered by the Prosecution. According to that statement of facts:

(a) The Applicant and Aziz were former colleagues who, in August 1992, were working as lashers at the PSA Container Port.

(b) Investigations revealed that, on 12 August 1992, the Applicant had approached Aziz for help in transporting cannabis out of the PSA Container Port. When Aziz agreed to help the Applicant, the latter passed the knapsack containing the cannabis to Aziz to carry. The Applicant and Aziz then boarded the Applicant’s motorcycle and proceeded to the PSA Container Port Gate No 1, where the cannabis was discovered by Cpl Nasiran.

[25] After considering the Applicant’s plea in mitigation, the district judge sentenced him to nine years’ imprisonment and six strokes of the cane. In her grounds of decision (PP v Yunani bin Abdul Hamid [2007] SGDC 345 (“the GD”)), the district judge explained that she could not ignore the fact that a large quantity of drugs had been involved, and that it was the Applicant who had played a central role in the matter by asking Aziz to help him transport the cannabis out of the PSA Container Port and by initiating the getaway when the cannabis was discovered by Cpl Nasiran (see the GD at [23]). The district judge noted, however, that there were some strong mitigating factors in the Applicant’s favour and emphasised two points in particular (at [27] of the GD). The first was that the Applicant had kept out of trouble with the law since his discharge not amounting to an acquittal in December 1992, and the second was that it was not the Applicant’s fault that his prosecution had been delayed for 15 years. The district judge also considered the Applicant’s youth at the time of the offence, the fact that the Applicant had pleaded guilty and the fact that it was prejudicial for the Applicant to have been re-arrested, charged and tried after the long lapse of time, having carried on with his life after his discharge (see the GD at [27]–[28]). For these reasons, the district judge took the view that the Applicant’s situation was sufficiently distinguishable from Aziz’s situation such that a sentence similar in severity to that meted out to Aziz need not be imposed. She also held, however, that the mandatory minimum sentence was not warranted due to the Applicant’s role and the quantity of cannabis involved, and thus sentenced the Applicant to nine years’ imprisonment and six strokes of the cane.

[26] The Applicant subsequently appealed against the sentence imposed by the district judge. The appeal was scheduled to be heard on 12 February 2008. The Applicant, by the date of the hearing, had discharged Mr Marican as his counsel due to a lack of funds and was to appear in person.

[27] At the hearing of the appeal on 12 February 2008, Mr Abraham S Vergis (“Mr Vergis”) of M/s Drew & Napier LLC, at the request of the court, offered his services pro bono to the Applicant. The Applicant agreed to instruct Mr Vergis and the matter was adjourned to 28 March 2008. At the hearing on 12 February 2008, I also made certain observations and raised certain queries. In particular, I wanted to know why the matter had not been proceeded with for 15 years despite the fact that the Applicant had surrendered himself a few hours after the incident of 12 August 1992. In this regard, the Prosecution was asked to explain the sequence of events that led to the Applicant’s eventual renewed prosecution in 2007. Further, I observed that the matter had been treated rather mechanically by those involved – both the Defence as well as the Prosecution. Finally, I emphasised that all the relevant facts – both positive and negative – should be placed on record.

[28] At a pre-hearing conference on 4 March 2008, Mr Vergis informed me that there were sufficient grounds for seeking a quashing of the Applicant’s conviction. As such, an application for criminal revision seeking the quashing of the conviction (ie, the present application) had been duly filed a day earlier (on 3 March 2008). This application was scheduled to be heard together with the appeal against sentence on 28 March 2008. I informed the Prosecution that if it intended to refute any of the facts put forth by the Defence in the affidavits filed in support of the application for criminal revision, it ought to file an affidavit in response. Liberty was given to the Prosecution to file an affidavit by 11 March 2008. However, the Prosecution chose not to file an affidavit. Instead, by written submissions filed on 24 March 2008, the Prosecution provided what it said was “a full account of the circumstances relating to the prosecution of the [Applicant]”[note: 5] as well as its reply to the Applicant’s application for criminal revision, contending “there [was] no basis in law or in fact for the [Applicant’s] conviction to be quashed”[note: 6].

[29] The main issue vis-à-vis the application for criminal revision was whether I should exercise the High Court’s revisionary power and quash the Applicant’s conviction despite his earlier plea of guilty in the lower court. Both the Prosecution and the Applicant (in particular) raised a myriad of arguments in their respective written submissions and at the hearing on 28 March 2008. While I appreciate the effort made by both sides, upon closer analysis, I am of the view that I need only distil and address the more salient arguments.

[30] The Applicant, through Mr Vergis, argued (essentially) that he had steadfastly maintained his innocence for 15 years – right from the day when he was first arrested up to the day of his trial in the District Court – and that he had a full and convincing explanation for his eventual plea of guilty. Mr Vergis, at the hearing on 28 March 2008, explained that the Applicant had unwillingly decided to plead guilty on the first day of the trial in the District Court for two main reasons. I quote from the written submissions tendered by Mr Vergis:[note: 7]

Mr Vergis reiterated time and again during the hearing that the Applicant had consistently maintained his innocence from the beginning of the matter in 1992 up to the day when he pleaded guilty, and that the Applicant had been entirely consistent and unwavering in his version of the material events. Mr Vergis also argued that the Prosecution, apart from the Applicant’s guilty plea, possessed no real evidence implicating the Applicant vis-à-vis the block of cannabis found in the knapsack carried by Aziz at the material time, except for “a flimsy film of uncorroborated allegations by a co-accused [ie, Aziz] who had been arrested by chance after being a fugitive from the law for 15 years”[note: 8]. Mr Vergis summed up that the combined effect of all these circumstances would clearly render the Applicant’s conviction, if it was based solely on his plea of guilty, unsafe.

[31] The Prosecution, on the other hand, forcefully maintained that the Applicant’s plea of guilty should stand as the records clearly indicated that it had been an unequivocal and informed plea. The Applicant, as the Prosecution took pains to emphasise, had been advised by counsel (Mr Marican) when making his plea of guilty and had acknowledged the veracity of the statement of facts tendered by the Prosecution without any qualification. Quite fairly, the Prosecution stated that it would “make no comments on the truth or falsity”[note: 9] of the various statements which the Applicant had given CNB. It also accepted that if the matter had gone for trial in 1992, it would have “relied substantially”[note: 10] on Aziz’s testimony in its case against the Applicant.

[32] I felt that it was more appropriate to evaluate the factual allegations made by both parties at the outset to clarify the circumstances in which the High Court’s revisionary power was being invoked in the instant case. In fairness, it must be pointed out that most of the additional facts produced before me by the Applicant and the Prosecution were not brought to the district judge’s attention when she accepted the Applicant’s plea of guilty. At the time of the trial in the District Court, the Applicant’s plea of guilty would have appeared to be totally informed and unequivocal, therefore amply justifying its acceptance by the court. It is, however, abundantly clear, based on the evidence that has since surfaced, that each and every one of the factual allegations made by the Applicant through Mr Vergis (see [30] above) has been made out.

[33] Turning firstly to the affidavits filed by the Defence in support of the present application, the following passage from the affidavit filed by the Applicant is especially pertinent:

[35] The affidavit evidence given by the Applicant, his mother and Mr Marican amply corroborated every material point of fact made by Mr Vergis in his arguments on why a conviction based solely on the Applicant’s plea of guilty would be unsafe (see [30] above). Mr Marican, in particular, could be seen to have confirmed that even though the Applicant had eventually agreed to plead guilty and had admitted unreservedly to the statement of facts tendered by the Prosecution, the Applicant had continued to vehemently insist (to Mr Marican) that he was innocent.

[37] The Prosecution further confirmed, as Mr Vergis had pointed out, that the Applicant had consistently maintained his innocence from the beginning of the matter in 1992 right up to the day when he had pleaded guilty in the District Court, and that the Applicant had been consistent and unwavering in his version of the material events. Not once did the Prosecution attempt to cast aspersions or doubts over the Applicant’s unequivocal denial of his involvement in the offence. Indeed, as pointed out at [31] above, the Prosecution in its written submissions for this application “ma[d]e no comments on the truth or falsity”[note: 11] of the Applicant’s various statements to CNB.

[38] Nor was the Prosecution at all able to rebut Mr Vergis’s argument that apart from the Applicant’s plea of guilty, the Prosecution had no objective evidence implicating the Applicant vis-à-vis the block of cannabis found by Cpl Nasiran on 12 August 1992, except for uncorroborated allegations by Aziz, the alleged accomplice and a fugitive from the law for 15 years who had been arrested entirely by chance. Not a single shred of objective evidence to pin the Applicant to the offence was placed before me. The polythene bag which contained the block of cannabis was dusted for fingerprints, but revealed only smudges. Neither the polythene bag nor the knapsack were sent by CNB for deoxyribonucleic acid (“DNA”) analysis, despite the fact that DNA laboratories at the predecessor body of the present Health Sciences Authority (“HSA”) had been set up in 1990. Indeed, the Prosecution acknowledged that it was only in 2006 that CNB began regularly sending the packaging in which drugs were found (eg, plastic bags) to HSA for DNA analysis, even though the police had already been regularly sending items for DNA analysis for more than a decade before that.

[39] It became incontrovertible, in the course of the hearing on 28 March 2008, that the Prosecution’s entire case against the Applicant rested lock, stock and barrel on Aziz’s testimony. Ex facie, however, the evidence of Aziz, as reflected in the statement of facts which he accepted when he pleaded guilty on 15 November 2007 (see [21] above), was far from watertight. For example, turning to the passage from that statement of facts where it is stated that Aziz knew that the knapsack contained cannabis and agreed to help the Applicant when the latter asked for assistance in transporting the cannabis out of the PSA Container Port, one might enquire why Aziz’s help was required to transport the cannabis if the knapsack could just as easily have been carried by the Applicant himself. Further, it seemed odd and dubious that Aziz was entreated to do nothing other than carry the knapsack; how could one, for instance, be entirely certain that Aziz was not going to be roped in to sell the cannabis as well? If the Applicant did not even know where to get cannabis, how would he know how to dispose of it so as to raise the money which he allegedly needed? Suffice to (simply) say that Aziz’s evidence, as it was placed before me, was clearly far from irreproachable and compelling. It could not by any account establish a case against the Applicant beyond a reasonable doubt.

[40] That aside, the guilt of the Applicant was questionable simply on a cursory scrutiny of the other materials before me. For instance, the Applicant, in his affidavit filed in support of the present application, stated that upon his arrest at CNB’s headquarters, the contents of the knapsack which Aziz had carried were removed in front of him. The knapsack contained one set of overalls and a cap. The Applicant told CNB’s officers at that time that the overalls could not be his, given that he was still wearing his own overalls when he was detained at the PSA Container Port Gate No 1. This strikes one as plausibly being the truth when one considers the statement in the Prosecution’s written submissions that the Applicant, following his arrest on 12 August 1992, was brought back to his family home, where various items, including a pair of overalls, were seized. The logical inference to be drawn in regard to this would be that the knapsack belonged to Aziz and not to the Applicant. Unfortunately, CNB, from what the Prosecution stated in court, appeared to have made no real efforts to ascertain the actual owner of the overalls and the cap found in the knapsack. CNB could have, but did not, for example, send the overalls and the cap for DNA analysis. Another telling fact was that the Applicant’s urine was tested periodically during the 15-year intervening period and was found to be consistently negative for controlled substances. Aziz, however, tested positive for cannabis when he was arrested in 2007. This can quite plausibly allow for the inference that it was Aziz, and not the Applicant, who was an abuser of cannabis and who would therefore have been familiar with the trade of cannabis. Who, then, of the two was more likely to be involved in the trafficking of cannabis? Finally, there was nothing at all in the statement of facts which the Applicant accepted when he pleaded guilty (see [24] above) that referred to the source of the cannabis. If the Applicant was the primary trafficker, where did he obtain the cannabis from? It is to be noted that Aziz, in contrast, admitted in the statement of facts tendered by the Prosecution in his case that he had previously obtained cannabis from “Pa Hitam” (see [21] above).

[41] Returning to the Applicant’s plea of guilty, all in all, I was satisfied that the Applicant had, at the time of making that plea, faced very real and substantial pressures created by very exceptional circumstances. One stark illustration would be the lapse of 15 years between his first arrest (on 12 August 1992) and his re-arrest (on 10 April 2007), which would have contributed in no small measure to both the uncertainty regarding the strength of his defence as well as the serious paucity of evidence in support of his case. This, in all likelihood, coalesced and culminated in the Applicant’s ultimate plea of guilty on 26 November 2007. Given the circumstances, the Applicant had, in my opinion, given a plausible and reasonable explanation for making such a plea. Moreover, the totality of the evidence (or rather the lack thereof) raised serious doubts in my mind relating to the Applicant’s guilt.

[42] That having been said, the next issue, then, was whether the pressures faced by the Applicant to plead guilty and the doubts relating to his guilt could justify and warrant the exercise of the High Court’s power of revision to quash his conviction. This would involve a legal evaluation, viz, a consideration of whether it would be correct in law for this court, given the two factors just mentioned, to exercise its power of revision.

[43] In Ng Kim Han v PP [2001] 2 SLR 293 (“Ng Kim Han”), Yong Pung How CJ held (at [15]) that the fact that an accused applying for criminal revision had pleaded guilty of his own accord ought not to be a bar to the exercise of the High Court’s revisionary power. Rather, the fact that a plea of guilty had been entered simply meant that the accused had lost his right to appeal against his conviction pursuant to s 244 of the CPC. In such a situation, an application by way of criminal revision would be the only means by which the accused could have a wrongful conviction set aside.

[44] The High Court’s power of criminal revision is provided for in s 23 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed), which states:

23. The High Court may exercise powers of revision in respect of criminal proceedings and matters in subordinate courts in accordance with the provisions of any written law for the time being in force relating to criminal procedure.

This provision is supplemented by ss 266–270 of the CPC, which are as follows:

Power to call for records of subordinate courts.

Power to order further inquiry.

Power of court on revision.

Permission for parties to appear.

Orders on revision.

The superior courts of Malaysia and India are accorded similar revisionary jurisdiction by their respective criminal procedure codes (see ss 323–327 of the Criminal Procedure Code (FMS Cap 6) (M’sia) and ss 397–405 of India’s Code of Criminal Procedure 1973 (Act No 2 of 1974)).

[45] Essentially, the High Court’s revisionary jurisdiction can be described as a kind of paternal or supervisory jurisdiction. In Tan Yock Lin, Criminal Procedure (LexisNexis, 2007) (“Criminal Procedure”), the object of this jurisdiction is described as such (at vol 2, para XIX.3904):

[46] At first blush, it would appear that the CPC confers an extraordinarily wide power of revision upon the High Court as a superior court and, thus, judges should not seek to lay down “rules which confine that discretion in a manner in which the legislature has not seen fit to confine it” (per Beaumont CJ in the Bombay High Court in Shankarshet Ramshet Uravane v Emperor 1933 AIR Bombay 482 at 482.) Nonetheless, “while it is not desirable to crystallise or restrict the revisional powers of a [superior court], these powers are to be exercised with circumspection and care” [emphasis added] (per Lobo JC in the Sind Judicial Commissioner’s Court in Emperor v Jumo Machhi (1940) 41 Cr LJ 568 at 570). The revisionary jurisdiction is undoubtedly discretionary in its nature, but “that discretion has to be exercised on judicial principles” [emphasis added] (per Rahman J in the Lahore High Court in Siraj Din v The Crown (1950) 51 Cr LJ 773 at 775). As astutely noted in Mallal’s Criminal Procedure (Andrew Christopher Simon ed) (Malayan Law Journal Sdn Bhd, 6th Ed, 2001) at p 5084:

The revisionary jurisdiction must not be exercised in such a way that a right of appeal may practically be given whenever such right is definitely excluded by the statutory provisions on criminal procedure (per Piggott J in the Allahabad High Court in Ahsan-ullah Khan v Mansukh Ram 1914 (36) ILR Allahabad 403 at 405). It is not the purpose of criminal revision to become a convenient form of “backdoor appeal” against conviction for accused persons who have pleaded guilty to the charges against them (per Yong CJ in Teo Hee Heng v PP [2000] 3 SLR 168 at [7]). The courts have therefore formulated certain principles to guide the prudent exercise of this extraordinary power.

[47] The starting point in Singapore, according to Yong CJ in Ma Teresa Bebango Bedico v PP [2002] 1 SLR 192 (“Ma Teresa”), is that the High Court’s power of revision is to be exercised “sparingly” (at [8]), viz, not all errors by a lower court should lead to a revision of that court’s decision. The threshold requirement, according to Yong CJ in Ma Teresa, is that of “serious injustice” (ibid). This proposition was earlier stated in Ang Poh Chuan v PP [1996] 1 SLR 326 (“Ang Poh Chuan”) at 330, [17] as follows:

In Ang Poh Chuan (which was approved by the Court of Appeal in Ng Chye Huey v PP [2007] 2 SLR 106), Yong CJ distilled the above approach from, inter alia, dicta found in a trinity of Indian cases. In State of Orissa v Nakula Sahu 1979 (66) AIR SC 663, Jaswant Singh J, who delivered the judgment of the Supreme Court of India, stated the following (at 666):

In Akalu Ahir v Ramdeo Ram 1973 (60) AIR SC 2145, I D Dua J, who delivered the judgment of the Supreme Court of India, stated the following (at 2147):

And, in Amar Chand Agarwala v Shanti Bose 1973 (60) AIR SC 799, C A Vaidialingam J, who delivered the judgment of the Supreme Court of India, stated the following (at 804):

[48] According to the learned author of Criminal Procedure ([45] supra), the requirement of “some serious injustice … something palpably wrong in the decision that strikes at its basis as an exercise of judicial power” laid down in Ang Poh Chuan (at 330, [17]) is a higher standard for the exercise of the High Court’s revisionary power in comparison to the approach taken by the Malaysian courts, whose recent statements of principle indicate that the power of criminal revision is to be “sparingly exercised and only when there is a miscarriage of justice or a perverse and unreasonable decision or sentence” (see Criminal Procedure at vol 2, para XIX.4405).

[49] I agree with the cautious and limited exercise of the High Court’s revisionary power as stated in [46]–[47] above. This extraordinary judicial power must not be regarded or exercised as an alternative appellate route (a point which I mentioned earlier at [46] above). However, it also has to be kept in mind that Parliament has conferred this power on the High Court so as to ensure that no potential cases of serious injustice are left without a meaningful remedy or real redress. A court would fail in its constitutional duty to oversee the administration of criminal justice if it remains impassive and unresponsive to what may objectively appear to be a potentially serious miscarriage of justice. With the general legal principles on criminal revision having been set out, the legal principles on criminal revision which are specifically relevant to the Applicant’s case will now be addressed.

[50] The requirement of serious injustice likewise applies in cases where criminal revision is sought to overturn a conviction flowing from a plea of guilty. In Ng Kim Han ([43] supra), where Yong CJ held (at [15]) that the fact that an accused had pleaded guilty of his own accord would not be a bar to the exercise of the High Court’s revisionary power, it was also emphasised (at [6]) that this power was to be exercised sparingly and only if the court was satisfied that there had been some serious injustice which warranted the exercise of its power of revision. The crucial question for present purposes would thus be whether the pressures faced by the Applicant to plead guilty and/or the doubts raised as to truth of the Applicant’s guilt should be construed as “serious injustice” which would warrant an exercise of the High Court’s power of revision.

[51] Some initial guidance can be found in the decision of Mohamed Hiraz Hassim v PP [2005] 1 SLR 622, where Yong CJ gave illustrations of situations where “serious injustice” could be found. These included (at [9]):

None of the examples set out above apply to the present case, where the circumstances now show that the Applicant felt pressurised to plead guilty and, furthermore, that serious doubts now exist as to the Applicant’s guilt. There are other local cases, nevertheless, which indicate that the presence of these two factors could justify this court’s exercise of its power of revision in the instant case.

[52] On the issue of the presence of pressure on an accused to plead guilty as a basis for criminal revision, the case of Chua Qwee Teck v PP [1991] SLR 857 (“Chua Qwee Teck”) is instructive. That case involved an offender who had pleaded guilty to two charges of cheating, admitting without qualification to the statement of facts presented to the court, and who had then been convicted and sentenced to a term of five months’ imprisonment. The offender subsequently filed a petition for revision of his conviction, claiming, inter alia, that his counsel had put him under pressure to plead guilty and had advised him erroneously that if he pleaded guilty and made restitution, the court would only impose a fine. Chan Sek Keong J dismissed the petition as the offender was unable to demonstrate that he had been under pressure at the material time or that the circumstances surrounding the pressure which he allegedly faced were such that he could not genuinely make a choice on how to plead. In respect of the former, Chan J held that the offender had not established that he had been under any pressure to plead guilty in the first place. He gave two reasons for this finding. Firstly, the offender did not think that the alternative to pleading guilty was a heavier sentence (at 865, [21]):

Secondly, the offender could have discharged his counsel and there was nothing preventing him from doing so (ibid):

[53] The approach taken by Chan J is similar to the approach taken by the English courts in the exercise of their appellate power to quash convictions following from pleas of guilty. The cases in which this appellate power has been considered have some value for the purposes of this application in so far as this power serves a similar objective to that which underlies the High Court’s revisionary power under the CPC. It has been emphasised similarly that this appellate power of the English courts should be exercised with the same circumspection as that applicable to the revisionary jurisdiction which I am being asked to exercise in the present application (see Walter Lucas (1908) 1 Crim App R 61 and Eric Henry Dodd (1982) 74 Crim App R 50 at 57, amongst others). It has also been observed in England that the court has an inherent jurisdiction to order a new trial if the pressure which an offender faces when he makes his plea of guilty causes him to lose his power to make a voluntary and deliberate choice (see Regina v Turner [1970] 2 QB 321). John Sprack, Emmins on Criminal Procedure (Blackstone Press Limited, 8th Ed, 2000) notes (at para 16.3.3):

As stated in the above extract, pressure on an accused to plead guilty may come from a number of sources: the court, defence counsel or even other sources (see Blackstone’s Criminal Practice 2008 (Meredith Hooper & David Ormerod eds) (Oxford University Press, 2007) at para D12.93). Whether there has been sufficient pressure on an accused for his guilty plea to be considered a nullity in a particular case would depend on the particular facts and circumstances (see R v Peace [1976] Crim LR 119). The English courts, it would seem, quite rightly take the view that this is not an area of law where it would serve any useful purpose in strait-jacketing the exercise of judicial discretion.

[54] A broadly similar view has also been adopted by the courts in Canada in their (also cautious) exercise of their appellate power to quash convictions following guilty pleas. In Lamoureux v R (1984) 40 CR (3d) 369; 13 CCC (3d) 101 (“Lamoureux”), a decision of the Court of Appeal of Quebec, the accused pleaded guilty to a charge of theft in the lower court. At the sentencing hearing which followed soon after, defence counsel acknowledged that he had pressured the accused to plead guilty and moved to withdraw the latter’s plea of guilty. The trial judge, however, felt that the accused had not been taken by surprise, that he had known what was happening and that his plea of guilty had been made freely and voluntarily. Represented by different counsel, the accused then appealed to the Court of Appeal of Quebec. The court allowed the appeal for the following reasons (per Rothman JA):

Unfortunately, the court in Lamoureux did not elaborate on the details of the pressure exerted by counsel on the accused. Lamoureux, however, was applied in R v Sampson (1993) 112 Nfld & PEIR 355; 350 APR 355, a decision of the Newfoundland Supreme Court, where the accused pleaded guilty to a charge of sexual assault. The accused subsequently applied, before sentence, to have the conviction set aside, his plea changed to not guilty and a new trial ordered. O’Regan J allowed the accused’s application, observing as follows:

Another relevant case in which Lamoureux was cited is R v Ceballo (1997) 14 CR (5th) 15 (“Ceballo”), a decision of the Ontario Court of Justice (Provincial Division). The accused in that case had pleaded guilty to assaulting his former girlfriend and threatening her with death. He was represented by counsel when he pleaded guilty. The accused subsequently denied having assaulted the victim in the pre-sentence report prepared by a probation officer and indicated on the date set for sentencing that he wished to withdraw his guilty pleas. He retained new counsel, who filed an application to strike down the accused’s guilty pleas on the grounds that the accused’s understanding of the consequences of his pleas had been “clouded by other considerations” (id at [12]) and that the available evidence brought into question the accused’s guilt. The accused testified that he originally intended to claim trial. However, as the trial date approached, he simply “gave up” (id at [14]) in the face of the pessimism of his previous counsel concerning the likely outcome of the trial, the latter’s dismissal of the material which he (the accused) had presented to prove his innocence and the latter’s complaints about working on a legal aid certificate. According to the accused, his previous counsel had pushed him into pleading guilty, telling him that because domestic violence was such a “hot issue” (ibid), he would not have a fair trial and the best solution would be to “work out a deal” (ibid). Fairgrieve Prov J, in allowing the accused’s application to have his guilty pleas struck out, held:

[55] In Ceballo, a further reason given by Fairgrieve Prov J as justifying the setting aside of the accused’s guilty pleas was that the evidence adduced before the court showed that there was serious reason to doubt the accused’s guilt (at [41]):

The view of the court in Ceballo might, at first blush, appear to go further than what Yong CJ stated in Knight Glenn Jeyasingam v PP [1999] 3 SLR 362 (“Glenn Knight”) at [19] and [22]:

The approach evinced by Yong CJ in Glenn Knight could be said to suggest that the High Court should not intervene if there was no defect in procedure or jurisdiction in the court below even if a different view of the evidence on record could have been taken. However, in the present case, as was mentioned earlier (see [32] above), it has to be emphasised that the evidence on record before me was fundamentally different from the evidence before the lower court (that appears to have been the position in Ceballo as well in terms of the evidence tendered in support of the accused’s application to withdraw his guilty pleas as compared to the (earlier) evidence available when the accused pleaded guilty). The approach taken in Glenn Knight should not be taken as precluding the exercise of the High Court’s power of revision where there is a serious doubt as to the accused’s guilt if the evidence giving rise to such doubt has not been placed before the lower court. At the end of the day, it must be emphatically declared that criminal revision is an area of law that requires the eschewing of technicalities for robust common sense. In every application for criminal revision that seeks to set aside an earlier plea of guilty, the reviewing court ought to ask itself this question: Are the circumstances such that the reviewing court entertains a serious doubt as to the guilt of the applicant, the latter’s guilty plea notwithstanding? In short, the actual attainment of substantive justice always trumps the consideration of complying with procedural justice in cases such as this.

[56] It would be helpful, for the purposes of giving clearer guidance to the legal community, to now draw the various threads of analysis together and set out the principles for criminal revision which are relevant to the present application. I must caution, however, that this is not an attempt to exhaustively restate the law on criminal revision; the principles which I shall go on to set out below are confined to the ones which are salient in the present context. These principles are as follows. Firstly, the High Court’s power of revision is to be exercised sparingly and the possible existence of a serious injustice must be present before the High Court will exercise such power (Ang Poh Chuan ([47] supra)). Secondly, there would be a serious injustice if the pressures faced by an offender to plead guilty are such that the offender did not genuinely have the freedom to choose between pleading guilty and pleading not guilty (see Chua Qwee Teck ([52] supra), as well as the English and the Canadian cases cited in [53]–[54] above). Whether the requisite pressure is present would of course depend on all the particular facts and circumstances of the case (R v Peace ([53] supra)). Furthermore, it stands to reason that if the evidence before the High Court indicates that the applicant’s defence if the matter goes to trial is hopeless or is doomed to fail, the court ought to decline to exercise its power of revision. This brings me to the third principle, viz, even where a plea of guilty is made without any operative pressures on the accused, there would be a serious injustice if the additional evidence before the reviewing court casts serious doubts as to the guilt of the accused (see Ceballo ([54] supra) at [41]).

[57] The facts and circumstances of the present case establish that the Applicant, unlike the offender in Chua Qwee Teck, faced real, concrete and, indeed, overwhelming pressures which culminated in his plea of guilty. To recapitulate, the following factors featured in this case:

(a) the Applicant, after a lapse of 15 years, was faced with the stark choice of either pleading guilty and facing a lower mandatory minimum sentence on the one hand, or, on the other hand, not pleading guilty and facing a far higher mandatory minimum sentence if convicted;

(b) due to the time which had lapsed since the date of the alleged offence (ie, 12 August 1992), the Applicant’s lawyer was not confident about his client’s chances of securing an acquittal;

(c) the Applicant had no independent witness’s testimony or physical evidence to support his defence and his chances of obtaining any such evidence had diminished greatly as 15 years had passed since the time of the alleged offence; and

(d) the Applicant had insufficient finances to secure legal representation if the case proceeded to trial.

All these would undoubtedly have placed the Applicant under overwhelming pressures that plainly vitiated his ability to make a genuine, free and informed decision to plead guilty. Also, the Applicant, unlike the offender in Chua Qwee Teck, could not discharge his counsel (Mr Marican) and instruct a new counsel as he did not have sufficient funds. He was in no position to seek a second opinion on the advice given to him by Mr Marican. Indeed, the Applicant could not even afford to retain Mr Marican to act for him in his appeal against sentence (see [26] above); the court had to arrange for counsel to represent him.

[58] Moreover, the totality of the evidence (or the lack thereof) before me (as mentioned earlier at [33]–[40] above) raised serious doubts as to the Applicant’s guilt.

[59] For the foregoing reasons, I was persuaded that I should set aside the Applicant’s conviction. It is plain that, in substance, the Applicant’s plea of guilty was not unequivocal – his mind could not and did not follow that plea. Further, it must be stressed, as has been rightly pointed out in, inter alia, Ng Kim Han ([43] supra), that the presence of a plea of guilty (and the accused’s acceptance of the Prosecution’s statement of facts) is not always conclusive and is not an immovable obstacle blocking the path of a reviewing court. In PP v Liew Kim Choo [1997] 3 SLR 699, Yong CJ explained the procedural (as opposed to substantive) nature of a guilty plea and a statement of facts in criminal proceedings as follows (at [84]):

Yong CJ also noted at [89] that:

[60] The circumstances set out above are by no means exhaustive, but they do helpfully illustrate that a multitude of considerations may prevail in any matter and eventually precipitate a plea of guilty by an accused. Harking back to first principles, viz, that the power of revision has been conferred on the High Court for the purpose of ensuring that justice is not only seen to be done but actually done, it was plain to me that the Applicant’s plea of guilty ought not to be allowed to stand in this instance.

[61] In the present case, the exceptional circumstances highlighted earlier (at [57] above) unfortunately conspired to pressurise the Applicant to plead guilty. All of these factors culminated in fashioning an overwhelming and irresistible pressurising force which inexorably influenced the Applicant’s plea of guilty. I should add that, save in extraordinary cases, alleged pressure on an accused to plead guilty will be difficult to establish. The restrained exercise of the High Court’s power of revision to quash a conviction following a plea of guilty will not lead to a glut of criminal revision applications. In this regard, the legal fraternity should always be mindful that this power will be exercised only sparingly.

[62] The same principles apply in cases where serious doubts exist as to an accused’s guilt. This factor similarly affords a basis for criminal revision. In the present case, the serious doubts as to the Applicant’s guilt were not brought about by dint of the fact that the testimony of an accomplice (ie, Aziz) was being relied upon to implicate the Applicant in the offence (which is a common occurrence). Instead, the serious doubts were engendered by the cumulative effect of the lack of objective real evidence implicating the Applicant coupled with the many questions, contradictions, and blemishes present in the evidence that was placed before me (see the earlier discussion at [33]–[41] above).

[63] The next issue would be the appropriate course of action to be taken. Specifically, the question was whether the prosecution of the Applicant in respect of the incident of 12 August 1992 should be stayed or whether the matter should be remitted back to the Subordinate Courts for a re-trial. Mr Vergis invited me to stay further prosecution, relying on the decision in PP v Saroop Singh [1999] 1 SLR 793. In that case, the court, following English, Australian and Privy Council authorities, stayed further criminal proceedings because of the prejudicial effect occasioned by the lapse of time between the date of the alleged offence (which occurred in 1981) and the date of the Prosecution’s appeal against the accused’s acquittal of that offence (which appeal was heard in 1998). I note, however, that the court in that case did not consider whether Art 35(8) of the Constitution of the Republic of Singapore (1999 Rev Ed) (“the Constitution”), under which “[t]he Attorney-General … [has] power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence”, precluded such an approach. There is no similar provision in England or the other jurisdictions from which the authorities cited in PP v Saroop Singh emanated from. It can be said, with some force, that the Constitution, by expressly conferring absolute prosecutorial discretion on the Attorney-General, does not contemplate any judicial oversight over the exercise of such discretion. This is a matter of such fundamental constitutional importance that I prefer to leave it open for further argument and consideration at a more appropriate juncture, given that the Prosecution, in responding to Mr Vergis, failed to even raise this as a relevant legal consideration in the present proceedings.

[64] While I appreciate that there are real difficulties standing in the way of the presentation of the Applicant’s defence after the lapse of time in the present case, these are also difficulties which now stand squarely in the way of the Prosecution, which bears the burden of proving the Applicant’s guilt beyond a reasonable doubt. While, quite possibly, the Applicant’s position may have been prejudiced by the delay, the fact remains that there is a strong public interest in prosecuting all drug offences regardless of the lapse of time. In the final analysis, I am not satisfied that the delay in the present case will cause irreversible or irremediable prejudice to the Applicant if a re-trial were to take place. Indeed, it is also in his interest, if he is truly innocent, to have this Damocles’ sword that has been hanging over him all these years permanently sheathed. I am confident that the judge hearing the matter will give serious and anxious consideration to the issues of delay and prejudice in determining whether the Prosecution can establish the ingredients of the offence by relying primarily on the uncorroborated evidence of Aziz.

[65] The prejudicial effect that the delay in this case will have on the reliability of the oral testimony, as opposed to the objective evidence, placed before the trial court cannot be downplayed. I can do no better than reproduce the incisive remarks of Lord Salmon in Birkett v James [1978] AC 297 at 327, as follows:

In a similar vein, Lord Hailsham of St Marylebone LC in Regina v Lawrence (Stephen) [1982] AC 510 observed (at 517):

The lack of reliability of oral testimony as time passes is one of the principal considerations underpinning the formulation of limitation periods in civil claims. As correctly noted in the Law Reform Committee, Singapore Academy of Law, Report on the Review of the Limitation Act (Cap 163) (February 2007) at para 41 (Chairman: Charles Lim Aeng Cheng):

The wider public interests dictate that limitation periods currently have no place in the criminal justice system in Singapore. Despite unavoidable delays, matters can often be prosecuted because of the availability of objective and/or corroborative evidence. Unfortunately, there are also, from time to time, matters in respect of which the Prosecution can only rely on the oral testimony of a single witness whose evidence cannot be objectively calibrated. In the latter scenario, there is no gainsaying that there is an iron rule that the greater the delay, regardless of how it has been occasioned, the less reliable the witness’s oral testimony will be; hence, my emphasis on not just the desirability, but also the pressing need for objective evidence in cases such as the present.

[66] In the result, I directed that the conviction of the Applicant by the District Court on 26 November 2007 be set aside and that he be re-tried in the Subordinate Courts on the same charge (ie, the Amended Charge).

[67] Having considered the Prosecution’s explanation for the lengthy period taken to proceed with the prosecution of the Applicant in respect of the incident on 12 August 1992, I accept without qualification that there has been no undue delay on the Prosecution’s part. What concerns me about this case, nevertheless, is that although the Prosecution now claims that it acceded in 1992 to granting the Applicant a discharge not amounting to an acquittal on the basis that “CNB was confident that it would secure incriminating evidence against the [Applicant]”[note: 12], there was absolutely no evidence before me as to what steps were taken at that point in time to secure objective evidence of the Applicant’s guilt or, just as importantly, proof of absence of the evidence just described. I reiterate that despite my invitation to file an affidavit setting out all the relevant circumstances of what had transpired, the Prosecution declined to file any affidavit, let alone fully explain what had been done in 1992 to thoroughly investigate the offence.

[68] The Prosecution also stated that to charge only Aziz but not the Applicant in the present matter would have been a “purely arbitrary decision”[note: 13]. That is one way of approaching and assessing the matter. On the other hand, it could perhaps also be fairly said that to charge both men without properly sifting through the evidence was merely a mechanical decision on the part of the Prosecution. The trauma that the initiation of a prosecution will cause to an accused and those close to him is palpably real and often severe. While this may not create legitimate concerns vis-à-vis the factually guilty, it does raise serious issues and considerations apropos those who may be innocent, and all the more so if a prosecution is launched 15 years after an alleged offence, when the likelihood of the Defence securing relevant evidence would have all but vanished. The Prosecution asserts that its decision to prosecute both Aziz and the Applicant was “just and correct”[note: 14]. My short response to this, on the basis of the submissions before me, is that the apparent omission on the investigating authorities’ part to secure as much relevant objective evidence as possible in 1992 cannot make the decision to prosecute the Applicant in 2007 “just and correct”. Given also the lapse of time, I reiterate that the Applicant has been quite palpably disadvantaged in procuring evidence that might support his version of the material events.

[69] One final point: the same unbending rules on evidence apply to both the Prosecution and the Defence alike in all criminal revision proceedings. When either party intends to rely on additional facts in criminal revision proceedings, that party must file affidavits attesting to those facts. I found it quite surprising that, in the instant case, the Prosecution seemed to view this obligation as dispensable or perhaps even inapplicable to it. Given the urgency in resolving the Applicant’s status, I did not press this issue during the hearing. I cannot, however, in fairness to the Applicant, let this issue pass without further comment. Having invited the Prosecution to file an affidavit to attest to the relevant circumstances, I remain puzzled as to why it declined to accept the invitation and instead sought to rely solely on facts alleged in its written submissions for the present application. When, therefore, the re-trial takes place in the Subordinate Courts, I have to assume that the Prosecution will rely on the same facts. This would serve to ensure that the Applicant is not unduly disadvantaged at the re-trial by the omission of the Prosecution to file any affidavit in the present proceedings.

[note: 1]See para 2 of the statement of facts dated 26 November 2007.

[note: 2]See the charge dated 12 August 1992.

[note: 3]See para 8 of the mitigation plea dated 15 November 2007 by Aziz’s counsel.

[note: 4]See para 11 of the mitigation plea dated 15 November 2007 by Aziz’s counsel.

[note: 5]See para 3 of the Prosecution’s written submissions dated 24 March 2008.

[note: 6]Ibid.

[note: 7]See para 104 of the Defence’s written submissions dated 25 March 2008.

[note: 8]See para 103 of the Defence’s written submissions dated 25 March 2008.

[note: 9]See para 21 of the Prosecution’s written submissions dated 24 March 2008.

[note: 10]See para 78 of the Prosecution’s written submissions dated 24 March 2008.

[note: 11]Supra n 9.

[note: 12]See para 28 of the Prosecution’s written submissions dated 24 March 2008.

[note: 13]See para 37 of the Prosecution’s written submissions dated 24 March 2008.

[note: 14]See para 45 of the Prosecution’s written submissions dated 24 March 2008.