Case Summaries

Muhammad Nabill bin Mohd Fuad v Public Prosecutor [2020] SGCA 25

SUPREME COURT OF SINGAPORE

31 March 2020

Case summary

Muhammad Nabill bin Mohd Fuad v Public Prosecutor [2020] SGCA 25
Criminal Appeal No 40 of 2018

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Decision of the Court of Appeal (delivered by Sundaresh Menon CJ):

Outcome: CoA allows appellant’s appeal against conviction and sentence for two capital drug trafficking charges and convicts appellant on amended charge of possession. 

Pertinent and significant points of the judgment:

  • The Prosecution is under a duty to disclose to the Defence the statement of a witness who can be expected to confirm or, conversely, contradict the accused person’s defence in material respects (a “material witness”) (at [39]).
  • While the Prosecution has no duty to call a material witness, in appropriate circumstances, the failure to call a material witness might mean that the Prosecution has failed to discharge its evidential burden to rebut an accused person’s defence. In addition, the court may in certain circumstances be entitled to draw an adverse inference that the evidence of a material witness who could have been but was not called by the Prosecution would have been unfavourable to the Prosecution (at [67]).
  • The Court of Appeal provides guidance on the applicable principles which ought to guide a judge’s conduct in the specific context of criminal proceedings (at [169]-[180]).

 

Background to the appeal

1 The appellant, Muhammad Nabill bin Mohd Fuad (“the Appellant”), claimed trial to two capital drug trafficking charges under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). The first charge was for having in his possession for the purpose of trafficking 64 packets containing not less than 63.41g of diamorphine (“the diamorphine”). The second charge was for having in his possession for the purpose of trafficking nine blocks containing not less than 2,251.90g of cannabis (“the cannabis”).

2 At the material time, the Appellant lived with, among others, his wife, Mashitta binte Dawood (“Mashitta”), and their domestic helper (“the Helper”) in a flat (“the Flat”). The Appellant’s cousin, Sheikh Sufian bin Sheikh Zainal Abidin (“Sufian”), also stayed with them in the Flat in one of the bedrooms (“Bedroom 1”). The Appellant was a consumer of methamphetamine and received his supply from his friend, Muhammad Faizal bin Mohd Shariff (“Faizal”). On 26 January 2016, at about 8.20pm, Faizal brought a trolley bag (“the trolley bag”) to the Flat. The Prosecution’s case was that the Appellant knowingly received the trolley bag, which contained both the diamorphine and the cannabis, from Faizal, and had these drugs in his possession for the purpose of trafficking.

3 The Appellant, however, claimed that he did not know that Faizal would be bringing the trolley bag to the Flat on 26 January 2016, and that he had been asleep when Faizal arrived at the Flat with the trolley bag. The trolley bag had been placed in the storeroom by the Helper while he was asleep. It was only on the afternoon of the next day, 27 January 2016, that he saw several packets of diamorphine laid out on the bed in Bedroom 1 and also discovered the trolley bag in the storeroom. He suspected that it was Sufian, the occupier of Bedroom 1, who had laid out the diamorphine on the bed. He was also informed by Mashitta, who had in turn been told by the Helper, that Faizal had brought the trolley bag to the Flat. On that same afternoon, the Appellant called Sufian and Faizal and asked them to return to the Flat to “clear the stuff”. Both men agreed to do so. In addition, the Appellant claimed that Faizal told him that the trolley bag contained cigarettes.

4 At around 8.00pm on 27 January 2016, the Appellant was arrested by officers from the Central Narcotics Bureau (“CNB”). The diamorphine was seized from Bedroom 1 by the CNB officers. Thereafter, in response to a question from one of the CNB officers (“Senior SSgt Ika”), the Appellant directed the CNB officers to the storeroom, where the trolley bag was seized. The cannabis was found in the trolley bag. Forty cartons of contraband cigarettes were also seized from the storeroom.

5 The High Court judge (“the Judge”) convicted the Appellant of both trafficking charges. She found that the Appellant was not a courier, and in any case, the Public Prosecutor had not issued a Certificate of Substantive Assistance. She thus imposed the mandatory death sentence on the Appellant. The Appellant appealed against both his conviction and his sentence. He also raised a complaint of excessive judicial interference at the trial.

6 In the course of reviewing the record of the proceedings, the Court of Appeal (“the Court”) was troubled that the Prosecution had not disclosed to the Defence the statements recorded from Sufian, Faizal, Mashitta and the Helper, all of whom were witnesses who could be expected to confirm or, conversely, contradict the Appellant’s defence in material respects (“material witnesses”); neither were these witnesses called by the Prosecution to rebut the Appellant’s defence if, indeed, their accounts of the events supported the Prosecution’s case. The parties were therefore directed to tender further submissions on the following question (“the Question”):

Where a witness has had a statement taken from him by the police or the CNB and where the defence can be expected to be confirmed or contradicted in material respects by such a witness, is there a duty on the Prosecution either to call such a witness or to make available to the Defence copies of any statement that has been taken from that witness or both?

The Court’s decision

The Question

7 The Court agreed with the parties that the Prosecution ought to be under a duty to disclose a material witness’s statement to the Defence (the “additional disclosure obligations”). The Court made the following points in relation to this duty:

(a) For the purposes of the additional disclosure obligations, it did not matter whether the statement in question was favourable, neutral, or adverse to the accused person (at [41(a)]).

(b) The additional disclosure obligations did not require the Prosecution to carry out a prior assessment of whether the statement in question was prima facie credible and relevant to the guilt or innocence of the accused person (at [41(b)]).

(c) The additional disclosure obligations did not affect the operation of any ground for non-disclosure recognised by law (at [42]).

(d) The Prosecution ought to satisfy its additional disclosure obligations either when it filed and served the Case for the Prosecution on the accused person (if the statutory disclosure procedure applied), or at the latest, before the trial began (if the statutory disclosure procedure did not apply). As the Prosecution’s additional disclosure obligations continued until the proceedings against the accused person (including any appeal) had been completely disposed of, if the relevance of a particular material witness’s evidence only became apparent after the accused person had testified at the trial, then that witness’s statement should be disclosed to the Defence at that juncture (at [50]).

(e) The Court left open the issue of whether the Prosecution was required to disclose the statement of a material witness who was a prosecution witness as that issue did not arise in the appeal, since none of the material witnesses concerned was a prosecution witness (at [50]).

8 The Court held that the Prosecution had no duty (in the sense of a legal duty) to call a material witness. However, in appropriate circumstances, the Prosecution’s failure to call a material witness might mean that it had failed to discharge its evidential burden to rebut an accused person’s defence. In this regard, the Court clarified that the Prosecution would not need to call material witnesses if it were satisfied that it could rely on other evidence to discharge its evidential burden, or if the accused person’s defence was patently and inherently incredible to begin with (at [67] and [71]). 

9 In addition, the Court held that the Prosecution’s failure to call a material witness might entitle the court in certain circumstances to draw an adverse inference that the evidence of that material witness would have been unfavourable to the Prosecution, if the Prosecution was unable to satisfy the court that it had good reason not to call that witness (at [67] and [72][75]).

The first charge

10 The sole issue with regard to the first charge was whether the Appellant had rebutted the presumption of trafficking under s 17 of the MDA. The Appellant made two key assertions in his defence. The first was that he did not know that Faizal would be bringing the trolley bag (which contained both the diamorphine and the cannabis) to the Flat on 26 January 2016, and only discovered the trolley bag and the diamorphine in the Flat the following day. The second was that on discovering these items, he called Faizal and Sufian asking them to return to the Flat to remove these items, and they both agreed. The Judge rejected the first assertion on the basis of: (a) what she thought was an admission by the Appellant in his ninth statement to the CNB, read in the light of his explanation during cross-examination of what he had said in that statement, that he knew that Faizal would be bringing the trolley bag to the Flat on 26 January 2016; and (b) the phone calls made from and received on the Appellant’s iPhone while he was supposedly asleep on the night of 26 January 2016 when Faizal arrived at the Flat with the trolley bag. She rejected the second assertion on the basis that the presence of the Appellant’s DNA on the exterior surface of a group of ten mini packets of diamorphine (F1D3A) showed that he was involved in packing the diamorphine.

11 In respect of the Appellant’s first key assertion, the Court held that the Prosecution ought to have called Faizal, Sufian and the Helper to discharge its evidential burden to rebut the Appellant’s defence. The Court disagreed with the Judge that the Appellant’s ninth statement, read in the light of his explanation during cross-examination of what he had said in that statement, amounted to an admission that he knew that Faizal would be bringing the trolley bag to the Flat on 26 January 2016. As for the phone calls made from and received on the Appellant’s iPhone on the night of 26 January 2016 while he was supposedly asleep when Faizal arrived at the Flat with the trolley bag, the Court was satisfied that there was a reasonable explanation for these calls, namely, Sufian could have been the one who was using the Appellant’s iPhone as it was in Bedroom 1, which was occupied by Sufian, at the time (at [105][118]).

12 In respect of the Appellant’s second key assertion, the Court held that the Prosecution could have called Sufian and Faizal to rebut the Appellant’s defence, but it failed to do so. In the circumstances, there was simply no contrary account of the contents of the Appellant’s phone calls to Sufian and Faizal on the afternoon of 27 January 2016 apart from the Appellant’s account, which was not inconsistent with his evidence as to his past interactions with Faizal (at [120][122]).

13 The Court held that the presence of the Appellant’s DNA on the exterior surface of F1D3A did not point irresistibly to the conclusion that he was involved in packing the diamorphine as there were at least two other reasonable explanations for this DNA evidence. There was therefore no basis for rejecting the Appellant’s claim that he possessed the diamorphine solely for the purpose of returning it to Sufian and/or Faizal (at [126][132]).

14 The Court held that the Prosecution had failed to discharge its evidential burden to rebut the Appellant’s defence where the first charge was concerned, and that the Appellant had rebutted the presumption of trafficking. Accordingly, the Court set aside the Appellant’s conviction on this charge, but amended the charge to one of possession of the diamorphine under s 8(a) of the MDA. After obtaining the Appellant’s confirmation that he did not intend to contest the amended charge, the Court convicted the Appellant on that charge and sentenced him to eight years’ imprisonment, backdated to the date of his remand (at [136][140] and [182]).

The second charge

15 There were two issues with regard to the second charge. The first was whether the Appellant had rebutted the presumption of knowledge under s 18(2) of the MDA. The second was whether, if the Appellant had not rebutted the presumption of knowledge, the Prosecution had proved the element of trafficking.

16 On the first issue, the Appellant’s defence was that he thought the trolley bag contained cigarettes because that was what Faizal had told him. The Court saw no reason to disbelieve the Appellant’s defence, given that Faizal had indeed left cigarettes in the Flat previously, and given that the Prosecution could have called Faizal to rebut the Appellant’s defence but failed to do so. As for the Appellant’s directing the CNB officers to the storeroom (which was where the trolley bag was found) in response to Senior SSgt Ika’s question, the Court held that it could not be concluded solely on this basis that the Appellant knew that the trolley bag contained the cannabis. It was unclear on the evidence what the precise question asked by Senior SSgt Ika was. At the trial, the Appellant disagreed, when it was put to him, that he had understood Senior SSgt Ika to be asking whether there were any more drugs in the Flat, and consistently maintained his position that he had been directing the CNB officers to the contraband cigarettes in the storeroom in response to Senior SSgt Ika’s question. Contraband cigarettes were indeed seized from the storeroom by the CNB officers in the course of their search of the Flat (at [145][156]).

17 In the circumstances, the Court held that the Prosecution had failed to discharge its evidential burden to rebut the Appellant’s defence that he thought the trolley bag contained cigarettes, and that the Appellant had rebutted the presumption of knowledge where the second charge was concerned. The Court thus acquitted him of this charge. The Court also pointed out that since the element of knowledge had not been established, the Appellant could not be found guilty even of an offence of possession of the cannabis under s 8(a) of the MDA (at [157][158] and [183]).

Excessive judicial interference

18 The Court found that there was no excessive judicial interference at the trial. Nonetheless, given the importance of the issue, the Court highlighted six points that a judge must generally be mindful of and, more broadly, the need for a judge to exercise greater caution, prudence and restraint in conducting criminal proceedings as compared to civil proceedings. These six points related to: (a) the Prosecution’s burden to prove its case against the accused person beyond a reasonable doubt; (b) the strict rules of criminal procedure which required the Prosecution to first prove a prima facie case before the Defence could be called or even invited to set out material aspects of its position; (c) the Prosecution’s task of presenting its case at the trial; (d) the reasons why a judge should exercise considerable restraint in intervening while the accused person was giving his evidence-in-chief; (e) the tendency for an accused person to present himself as agreeably as possible to the judge so as not to upset him or her; and, finally, (f) the need for a judge to refrain from asking leading questions generally (at [167][180]).

This summary is provided to assist in the understanding of the Court’s judgment. 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 judgment.

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