Case Summaries

Syed Suhail bin Syed Zin v Public Prosecutor

SUPREME COURT OF SINGAPORE

16 October 2020

Case summary

Syed Suhail bin Syed Zin v Public Prosecutor
[2020] SGCA 101
Criminal Motion No 28 of 2020

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Decision of the Court of Appeal (delivered by Judge of Appeal Justice Andrew Phang Boon Leong):

Outcome: CoA dismisses the applicant’s application to review its earlier decision upholding his conviction and death sentence.

Pertinent and significant points of the judgment

  • The review process is not to be invoked lightly and as officers of the court, counsel are bound not to advance grounds that are without reasonable basis, for if they do, they face the prospect of being sanctioned for abusing the process of the court: at [13] and [40].
  • The strict requirements for the exercise of the power of review by the court under s 394J of the CPC give effect to the principle of finality and reflect the fact that the review procedure concerns a situation where the case has been heard at least twice. The Court of Appeal will not hesitate to summarily dismiss patently unmeritorious applications in the future – even at the leave stage: at [20] and [41].

Background facts

1 The applicant, Syed Suhail Bin Syed Zin, was convicted and sentenced to the mandatory death penalty for trafficking in not less than 38.84g of diamorphine (commonly known as “heroin”) under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). In the applicant’s bedroom, four plastic packets and a white metal container which contained brownish granular substances (“the exhibits”) were found. The contents of the exhibits were analysed and found to contain at least 38.84g of heroin, which quantity formed the subject of the trafficking charge.

2 The applicant’s case at the trial was that all the drugs found in his possession were for personal consumption. He sought to persuade the court that he was a heavy user who consumed roughly 12g to 18g of diamorphine per day and had the financial capability to sustain his consumption. Regarding his financial means, he asserted that he had obtained a cash advance of about $20,000 from one Ami Aziz, his uncle in Malaysia (the “uncle”), and had earned $8,400 from April to July 2011.

3 The trial judge (“the Judge”) was not persuaded that the applicant had the financial capability to sustain his alleged consumption. The applicant had irregular jobs. His bank account balances and the text messages between him, his family and his girlfriend revealed an individual who was constantly in need of money. There was also no evidence that the applicant had secured the $20,000 advance from his uncle. Further, the applicant had not informed the Central Narcotics Bureau that the drugs in his possession were for personal consumption despite having had multiple opportunities to do so. In the circumstances, the Judge held that the applicant had failed to prove on the balance of probabilities that the heroin in his possession was for personal consumption and, as a consequence, had failed to rebut the presumption under s 17 of the MDA.

4 In so far as sentencing was concerned, the Judge considered the applicability of the alternative sentencing regime under s 33B of the MDA. The Judge held that the applicant was not a mere courier and ss 33(2)(a) and 33(3)(a) of the MDA were not satisfied. The Prosecution informed the Judge that it would not be issuing a certificate of substantive assistance under s 33B(2)(b) of the MDA. Finally, the Judge held that s 33B(3)(b) of the MDA did not apply as the applicant did not claim that he was suffering from such abnormality of mind as would have substantially impaired his mental responsibility at the time of the offence. In the circumstances, the Judge imposed the mandatory death penalty on the applicant.

5 On 18 October 2018, the applicant’s appeal in CA/CCA 38/2015 (“CCA 38”) against his conviction and sentence was dismissed by the Court of Appeal. The Court of Appeal affirmed the Judge’s decision and found that the applicant had failed to raise even a reasonable doubt that the entire consignment of drugs found in his possession was for his personal consumption.

6 On 8 September 2020, the President of the Republic of Singapore ordered the sentence of death imposed on the applicant to be carried into effect on 18 September 2020. On 17 September 2020, the applicant applied for leave under s 394H of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”) to make a review application under s 394J of the CPC on two grounds:

(a) First, that the issue of whether he had suffered from an abnormality of mind under s 33B(3)(b) of the MDA had not been sufficiently canvassed at the trial or appeal stages, and that Dr Ken Ung Eng Khean has stated his willingness to visit the applicant to prepare a report on this issue (“Dr Ung’s Report”). This was referred to as “the Abnormality of Mind Ground”.

(b) Second, that his trial counsel did not make the necessary inquiries to adduce evidence in relation to his uncle, in particular, on the alleged $20,000 advance which would have shown that he had the financial means to sustain his level of alleged consumption (“the Inheritance Ground”).

7 Mr M Ravi (“Mr Ravi”), counsel for the applicant, confirmed at the hearing of the review application that he would not be relying on the Inheritance Ground. Mr Ravi was granted leave to make further submissions to persuade the court that the applicant was a courier within the meaning of s 33B(3)(a) of the MDA. In Mr Ravi’s further submissions, he argued that the activities which formed the basis of the applicant’s conviction fell within the ambit of s 33B(3)(a) of the MDA and that Parliament had intended only to impose the mandatory death penalty on traffickers and manufacturers of drugs (“the Courier Argument”). The Abnormality of Mind Ground, Courier Argument and Dr Ung’s Report were collectively referred to as “the materials”.

The Court’s decision

8 The review process was not to be invoked lightly and as officers of the court, counsel were bound not to advance grounds that were without reasonable basis, for if they did, they faced the prospect of being sanctioned for abusing the process of the court: at [13] and [40].

9 An applicant in a review application must satisfy the court that there was sufficient material, either evidential or of a legal nature, on which the appellate court might conclude that there had been a miscarriage of justice in the criminal matter in respect of with the earlier decision was made. For the material to be “sufficient”, the applicant must show that: (a) it had not been canvassed at any stage of the criminal proceedings; (b) it could not have been adduced with reasonable diligence; and (c) it was compelling. The failure to satisfy any of these requirements would result in the dismissal of the review application. In respect of new legal arguments, there was an additional requirement that the legal arguments must be based on a change in the law that arose from any decision made by the court after the conclusion of the applicant’s criminal proceedings: at [18].

10 As part of the court’s consideration of whether the material was sufficient, it must consider whether the material is “capable of showing almost conclusively that there has been a miscarriage of justice” (s 394J(3)(c) of the CPC). This might be shown in two ways: (a) that the earlier decision was demonstrably wrong (ss 394J(5)(a) and s 394J(6)–(7) of the CPC); or (b) that the earlier decision was tainted by fraud or a breach of the rules of natural justice such that the integrity of the judicial process was compromised (s 394J(5)(b) of the CPC): at [19].

11 These strict requirements gave effect to the principle of finality and reflected the fact that the review procedure concerned a situation where the case had been heard at least twice. The Court of Appeal would not hesitate to summarily dismiss patently unmeritorious applications in the future – even at the leave stage: at [20] and [41].

12 The applicant failed to show that the materials could not have been adduced in the criminal proceedings with reasonable diligence. The applicant had ample opportunity to introduce the materials, but he chose not to do so. The applicant was queried, twice, by the Judge, on whether he sought to raise any issues pertaining to being a courier or in relation to an abnormality of mind at the trial. The applicant had confirmed before the Judge, through his trial counsel, that he would not be raising these issues. In so far as the applicant wished to introduce Dr Ung’s Report as new evidence, the Court of Appeal had, in CCA 38, afforded the applicant ample opportunity to consider whether a further psychiatric report was required on appeal and the applicant had decided not to adduce such evidence: at [23]–[24].

13 The applicant failed to also satisfy the court that the legal arguments, ie, the Abnormality of Mind Ground and the Courier Argument, were based on a change in the law that arose from any decision made by a court after the conclusion of the applicant’s criminal proceedings. The Court of Appeal found that there had been no change in the law in respect of either of these arguments: at [25] and [28].

14 The Abnormality of Mind Ground and the Courier Argument did not in any way demonstrate that there had been a miscarriage of justice in the applicant’s criminal proceedings. To qualify for the alternative sentencing regime, the applicant’s involvement in the trafficking offence must have been restricted to being a courier within the circumstances defined under s 33B(3)(a) of the MDA. The Judge had made a finding of fact (which was not reversed on appeal) that the applicant “was not a mere courier of drugs [and] had the intention and the means of repacking the drugs he had obtained from [his supplier] for sale to third parties”. Further, the crux of the applicant’s defence at the trial was simply that all the drugs found in his possession were for his personal consumption and he had not advanced the case that he was merely a courier. The applicant had also not introduced any new evidence in this application to justify reopening the Judge’s finding of fact: at [32].

15 The medical evidence adduced at the trial suggested that the applicant was not suffering from an abnormality of mind which substantially impaired his mental responsibility for the offence. In any event, given the Judge’s finding that the applicant was not a mere courier of drugs and the Court of Appeal’s rejection of the Courier Argument in the present proceedings, the Abnormality of Mind Ground was ultimately immaterial: at [33]–[35] and [37].

16 The Inheritance Ground was a non-starter as it was neither a legal argument nor evidence that fell within the ambit of s 394J(2) of the CPC. In particular, the Court of Appeal had furnished ample opportunities in CCA 38 for the applicant to explore this avenue and to adduce further evidence in relation to his uncle, but the applicant chose not to do so: at [39].

 

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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