Case Summaries

Abdul Kahar bin Othman v Public Prosecutor [2018] SGCA 70

SUPREME COURT OF SINGAPORE

25 October 2018

Case summary

Abdul Kahar bin Othman v Public Prosecutor [2018] SGCA 70
Criminal Motion No 1 of 2018

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Decision of the Court of Appeal (delivered by Judge of Appeal Tay Yong Kwang):

Outcome: CoA dismisses application by convicted person to reopen concluded criminal appeal on basis of alleged unconstitutionality of sentencing regime in the Misuse of Drugs Act.

Pertinent and significant points of the judgment

  • The Court of Appeal affirms that the test for reopening a concluded criminal appeal set out in Kho Jabing v Public Prosecutor [2016] 3 SLR 135 applies to all applications to the Court of Appeal for the review of a concluded criminal appeal (at [24]).

  • The Court of Appeal holds that the court has the inherent power to order defence counsel to pay costs to the Prosecution directly, that is, without making a costs order against the accused (at [77]–[80]).

Background to the application

1 Criminal Motion No 1 of 2018 (“CM 1”) was an application by Abdul Kahar bin Othman (“the applicant”) to reopen his concluded criminal appeal on the principal grounds that a previous Court of Appeal decision, Prabagaran a/l Srivijayan v Public Prosecutor and other matters [2017] 1 SLR 173 (“Prabagaran”), was decided wrongly and the sentencing regime in s 33B of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”) is unconstitutional.

The facts

2 In 2013, the applicant was convicted on two capital charges of drug trafficking and thereafter sentenced to the mandatory death penalty. In 2015, the Court of Appeal heard and dismissed his appeal against conviction and sentence (“CA 4”).

3 Subsequently, the applicant filed CM 1 for the Court of Appeal to reopen CA 4.

The decision

4 The Court of Appeal dismissed CM 1.

5 The court first held that the test for reopening a concluded criminal appeal set out in Kho Jabing v Public Prosecutor [2016] 3 SLR 135 (“Kho Jabing”) applied to CM 1. The test in Kho Jabing was applicable to all applications to the Court of Appeal for the review of a concluded criminal appeal (at [24]).

6 The court then held that CM 1 did not meet the Kho Jabing test. First, apart from one argument which was unmeritorious, all of the applicant’s arguments could have been raised at the hearing of CA 4 if reasonable diligence was exercised (at [27]). Those arguments were not “new” material (at [30]). Second, the applicant’s arguments that parts of s 33B of the MDA were unconstitutional would not have affected the outcome of the case, and therefore could not establish a “miscarriage of justice” justifying the reopening of CA 4. If s 33B was ruled to be unconstitutional, the court would have to disregard s 33B as if it had never been enacted and the applicant would have to be sentenced to the mandatory death penalty (at [31]–[32]). Third, none of the applicant’s arguments had any merit. They were therefore not “compelling” material upon which the court could find a miscarriage of justice (at [33]). There was therefore no basis for the court to reopen CA 4 (at [34]).

7 The court then found that there was no merit in the applicant’s substantive arguments (at [35]). The argument that the role of the Public Prosecutor (“the PP”) in s 33B(2)(b) of the MDA amounted to a usurpation of the judicial power to sentence accused persons had been rejected in Prabagaran (at [38]). The applicant did not address the reasoning in Prabagaran (at [43]). Further, not all provisions that enabled the Executive to make administrative decisions that had an impact on the sentence imposed on an accused person amounted to an intrusion into the judicial power in sentencing (at [47]).

8 The PP’s role under s 33B(2)(b) of the MDA was not ultra vires his constitutional role (at [52]). Section 33B(4) of the MDA was not inconsistent and self-defeating in purpose (at [54]). The applicant’s argument that s 33B(4) of the MDA violated the rules of natural justice was rejected, because he 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 (at [57] ). The “evolving interpretation” of s 33B(2)(a) of the MDA did not reflect an “inherent confusion” in the provision that violated the applicant’s rights under Art 12 of the Constitution (at [59]).

9 The argument that the applicant should be reclassified as a courier in the light of the decision in Zainudin bin Mohamed v Public Prosecutor [2018] 1 SLR 449 was rejected. The applicant was plainly not a mere courier of the drugs he was found in possession of since he intended to sell them (at [61]). Finally, the argument that s 33B(2)(b) of the MDA should be construed as only requiring that an accused person try his best to assist the Central Narcotics Bureau was rejected (at [62]).

10 In relation to costs, the court held that it had the power to order defence counsel to pay costs to the Prosecution directly, that is, without making a costs order against the accused (at [77]–[80]). However, the court decided not to make a costs order against Mr Seah. It appeared that Mr Seah had believed in good faith that a challenge to the constitutionality of s 33B of the MDA was not bound to fail, although he was mistaken. Mr Seah had advised the applicant’s family and agreed to act only after they returned to seek his help (at [70]).

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

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