Case Summaries

Nagaenthran a/l K Dharmalingam v Public Prosecutor and another appeal [2019] SGCA 37

SUPREME COURT OF SINGAPORE

27 May 2019

 

Case summary

 

Nagaenthran a/l K Dharmalingam v Public Prosecutor and another appeal [2019] SGCA 37

Criminal Appeal No 50 of 2017 and Civil Appeal No 98 of 2018

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

 

Outcome: CoA dismissed both of the appellant’s appeals against two separate High Court decisions. In the first, the CoA upheld the High Court’s dismissal of the appellant’s re-sentencing application. In the second, the CoA upheld the High Court’s dismissal of the appellant’s application seeking leave to commence judicial review proceedings of the Public Prosecutor’s decision not to issue a certificate of substantive assistance in his favour.

 

Introduction

 

1          These were two appeals by the appellant, who had been convicted and sentenced to death for drug importation, against two separate decisions of the High Court.

 

Background to the appeals

 

2          The appellant had been apprehended in 2009, as he was entering Singapore from Malaysia, with a bundle of diamorphine strapped to his thigh. When questioned by officers from the Central Narcotics Bureau (“CNB”), the appellant admitted to knowing that the bundle contained diamorphine, and explained at the time that a friend known only as “King” had strapped the bundle to his thigh so that no one would find it. The appellant’s contemporaneous statements were duly recorded by the CNB officers.

 

3          At trial however, the appellant denied having knowledge of the contents of the bundle and raised, for the first time, the defence that he had been threatened to deliver the bundle of drugs for King. The trial judge rejected these defences, finding that the appellant’s contemporaneous statements were voluntarily provided and accurately recorded. The trial judge accordingly convicted the appellant and sentenced him to the mandatory death penalty at the time.

 

4          After the appellant’s conviction and sentence were upheld on appeal, the execution of the appellant’s sentence was stayed in view of the fact that Parliament was undertaking a review of the mandatory death penalty in relation to drug offences at the material time. The appellant then applied to be re-sentenced under the new sentencing regime introduced by Parliament, seeking to show, towards that end, that he was suffering from an abnormality of mind that substantially impaired his mental responsibility for his acts at the time of his offending conduct. He provided conflicting accounts of the reasons for his offending however, in the various psychological and psychiatric reports tendered for the purposes of the re-sentencing application. The High Court Judge (“the Judge”) accordingly found that the most credible account of why he offended was that which was contained in the contemporaneous statements he had provided to the CNB officers at the time of his arrest in 2009. The appellant had stated in those statements that he knew the bundle he was delivering contained drugs, but that he was doing so because he needed money. On that basis, the Judge found that the appellant clearly understood the nature of what he was doing and his judgment as to what was right or wrong was not impaired. The Judge therefore dismissed the appellant’s application to be re-sentenced, finding that the appellant was not suffering from an abnormality of mind that substantially impaired his mental responsibility for his offence. In the first appeal, the appellant appeals against the Judge’s decision to dismiss his re-sentencing application.

 

5          Separately, the Public Prosecutor (“PP”) had informed the appellant that he would not be issuing a certificate of substantive assistance under s 33B(2)(b) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) in the appellant’s favour. The appellant sought leave from the High Court to commence judicial review proceedings against the PP’s non-certification decision. In the second appeal, the appellant appeals against the Judge’s dismissal of his leave application.

 

The court’s decision

 

6          In the first appeal, the court began by observing that the Judge was particularly troubled by the fact that the appellant had, at various points in time, provided vastly different and irreconcilable accounts of why he had committed the offence (at [35]). The court took the view that the appellant’s vacillation between various accounts of why he had offended did not aid his case at all, and that they all contradicted the original account of the reason for his offending – that which was provided in his contemporaneous statements to the CNB officers (at [37]). There was no reason to doubt the veracity of that account, as the statements were found to have been accurately recorded and given voluntarily (at [38]). On that account, the appellant’s mental responsibility for his offence could not have been substantially impaired, because he clearly understood the nature of his acts and did not lose his sense of judgment of the rightness or wrongness of what he was doing. He was unequivocal in identifying the contents of the bundle as diamorphine and took steps to conceal the bundle, as he knew that it was unlawful for him to transport drugs. Yet, he undertook the criminal endeavour for money (at [40]). In the court’s judgment, the appellant took a calculated risk which, contrary to his expectations, materialised. In the circumstances, even if his ability to assess the risk was impaired, on no basis could this amount to an impairment of his mental responsibility for his acts (at [41]). The court, accordingly, dismissed the first appeal (at [42]).

 

7          In the second appeal, the court began by considering the preliminary issue of whether s 33B(4) of the MDA had the effect of ousting the court’s power to review the PP’s non-certification decision. The court began with the observation that in a constitutional system of governance such as Singapore’s, the courts are ordinarily vested with the power to adjudicate upon all disputes; judicial review forms a part of this power to adjudicate and concerns that area of law where the courts review the legality of government actions (at [46]). The court found that s 33B(4) was not an ouster clause, as it did not purport to exclude the jurisdiction of the courts to supervise the legality of the PP’s non-certification decision; it only immunised the PP from suit save on certain exceptions as stated in s 33B(4) (at [51]). The court noted that the inquiry whether an offender had substantively assisted the CNB in disrupting drug trafficking activities within or outside Singapore entailed a wide ranging assessment going beyond the institutional competence of the courts, which was ultimately directed to the resolution of particular controversies (at [58]). In that light, it was entirely logical for Parliament to vest in the PP the responsibility for determining whether an offender had rendered substantive assistance to the CNB in disrupting drug trafficking activities and then to immunise the PP, save on excepted grounds, in respect of that determination. Without s 33B(4), an aggrieved offender might be tempted to bring suit against the PP challenging his determination, and thereby force the court into the unviable position of having to determine an issue that the court is inherently not capable of determining; yet, at the same time, the exceptions to the immunity granted by s 33B(4) serve to safeguard against abuse (at [67]).

 

8          Having found that s 33B(4) did not oust the jurisdiction of the courts to review the PP’s non-certification decision, the court proceeded to determine the merits of the appeal. The court dismissed the second appeal on both grounds of review brought by the appellant. As to the first ground, the court was of the view that the appellant had not adduced a shred of evidence to show that the PP had failed to consider the effect of the appellant’s information provided in his contemporaneous statements on the disruption of drug trafficking activities at that time (at [79]). As to the second ground, the court took the view that the PP’s determination of whether an offender had rendered substantive assistance to the CNB in disrupting drug trafficking activities both within and outside Singapore was simply not a determination involving the exercise of an executive discretion that required a precedent fact to be established (at [84]), which meant that the appellant could not impugn the PP’s non-certification decision on the ground that the decision was reached in the absence of a precedent fact being established.

 

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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