SUPREME COURT OF SINGAPORE
[21 May 2024]
Case summary
Moad Fadzir bin Mustaffa v Public Prosecutor [2024] SGCA 20
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Decision of the Court of Appeal (delivered by Justice of the Court of Appeal Tay Yong Kwang):
Outcome: The Court of Appeal summarily refused a second application for permission under s 394H of the Criminal Procedure Code 2010 (2020 Rev Ed) to review its earlier decision which upheld the conviction and sentence of the applicant with respect to a capital charge under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed).
Pertinent and significant points of the judgment
• The making of a second application for permission is not allowed in law.
• The exercise of the court’s inherent power under s 394J(1)(b) of the CPC will only be warranted where the material put forth by the applicant renders the relevant facts practically irrefutable and those facts show conclusively that there has been a miscarriage of justice on the face of the record: at [28].
Background
1 The applicant, Mr Moad Fadzir bin Mustaffa, was tried jointly with Mr Zuraimy bin Musa (“Zuraimy”) in the High Court on the respective charges of possessing a common intention to traffic in a controlled drug under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed).
2 The High Court convicted the applicant of the charge against him and imposed the mandatory death sentence. For Zuraimy, the High Court amended his charge to one of abetting the applicant’s possession of diamorphine, convicted Zuraimy on the amended charge and sentenced him to the maximum term of ten years’ imprisonment.
3 The applicant appealed against his conviction and sentence. Zuraimy also appealed against his sentence on the amended charge while the Prosecution appealed against Zuraimy’s acquittal on the original trafficking charge.
4 On appeal, the court amended the charge against the applicant by deleting all references to common intention as necessitated by the High Court’s findings and affirmed the applicant’s conviction and the mandatory death sentence based on the charge as amended. The court therefore dismissed the applicant’s appeal, as well as the appeals brought by Zuraimy and the Prosecution.
5 On 22 September 2020, the applicant filed CA/CM 29/2020 (“CM 29”) for permission to make an application under s 394H of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”) for the Court of Appeal to review the Court of Appeal’s decision. CM 29 was summarily dismissed by the Court of Appeal.
6 The applicant filed the present application, CA/CM 15/2024 (“CM 15”), on 19 April 2024 under s 394H of the CPC for permission to review the Court of Appeal’s decision to uphold his conviction and sentence. Specifically, he sought to rely on the evidence of one “Kishor” as sufficient material on which the court may conclude that there has been a miscarriage of justice.
Decision
CM 15 is prohibited under s 394K(1) of the CPC
7 According to s 394K(1) of the CPC, an applicant cannot make more than one review application in respect of any decision of an appellate court. This provision applies to applications for permission to bring review applications. Given that the applicant had previously brought CM 29, CM 15 could be dismissed on this ground alone: at [26].
8 The court could, nevertheless, invoke its inherent power to review, on its own motion, its earlier decision under s 394J(1)(b) of the CPC. This power should however only be invoked as a last resort and only in the most exceptional of cases. Specifically, the exercise of the court’s inherent power under s 394J(1)(b) of the CPC will only be warranted where the material put forth by the applicant renders the relevant facts practically irrefutable and those facts show conclusively that there has been a miscarriage of justice on the face of the record: at [27] to [28].
9 Kishor’s subjective intended testimony can never demonstrate that there has been an obvious miscarriage of justice in the Court of Appeal’s decision to uphold the applicant’s conviction and sentence. This therefore was not an appropriate case for the exercise of the court’s inherent power: at [29].
Kishor’s statement does not amount to sufficient material under s 394J(2) of the CPC
10 In any case, Kishor’s intended testimony cannot amount to “sufficient material” under s 394J(2) of the CPC on which the court may conclude that there has been a miscarriage of justice: at [30].
11 The Court of Appeal’s findings in its decision upholding the applicant’s conviction and sentence will not be affected even with Kishor’s intended testimony. Kishor was therefore not a material witness who was able to confirm the applicant’s defence in material aspects: at [31].
12 Kishor’s statement had no bearing whatsoever on the other pieces of evidence relied on by the Court of Appeal in arriving at its conclusions in its decision to uphold the applicant’s conviction and sentence. It was also evident from Kishor’s statement that he was not a credible witness: at [32] and [33].
13 There was insufficient evidence for the Prosecution to identify Kishor as a material witness. The Prosecution’s duties of disclosure were therefore not engaged and not breached: at [34].
14 Having considered both parties’ affidavits and written submissions, the court summarily refused CM 15 without setting it down for hearing pursuant to ss 394H(7) and (8) of the CPC: at [37] to [38].
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.