TANGARAJU S/O SUPPIAH v PUBLIC PROSECUTOR

Facts

Tangaraju s/o Suppiah was convicted in 2018 by the High Court of abetting one Mogan Valo, by engaging in a conspiracy, to traffic in cannabis by delivering 1017.9g of cannabis to himself, an offence under s 5(1)(a) read with s 5(2) and s 12 of the Misuse of Drugs Act. As he did not meet the criteria for alternative sentencing, he received the mandatory death penalty. The Court of Appeal dismissed his appeal in CA/CCA 38/2018 on 14 August 2019. His first application for permission to review that decision, CA/CM 25/2022, was summarily dismissed on 23 February 2023.

On 24 April 2023, two days before his scheduled execution on 26 April 2023, he filed Criminal Motion No 19 of 2023. He sought permission under s 394H of the Criminal Procedure Code 2010, or under the court's inherent jurisdiction, to apply to review the appeal decision, a stay of execution, and ultimately the setting aside of the death sentence. He argued that the Prosecution had not proved that he and Mogan agreed to traffic that specific quantity of cannabis, and that because the drugs were never in his possession the trial judge could not draw an adverse inference from their weight. The Prosecution argued that a second leave application was barred and that the application lacked merit and was an abuse of process.

Issues

1. Whether the applicant showed a legitimate basis for the court to exercise its power of review under s 394H of the Criminal Procedure Code.
2. Whether his argument on knowledge of the quantity of cannabis was new material that could not have been raised earlier and was compelling.
3. Whether a second application for permission to make a review application was permitted under s 394K(1).
4. Whether the court should exercise its inherent power to reopen the concluded appeal.

Holding

Steven Chong JCA dismissed the criminal motion without setting it down for hearing. The applicant had shown no legitimate basis for reviewing the appeal in CCA 38, and there was no basis to use the inherent power to reopen a concluded criminal appeal.

Reasoning

The material had to meet s 394J of the Code: not canvassed before, not able to be adduced earlier with reasonable diligence, and compelling enough to show almost conclusively a miscarriage of justice. The applicant had never argued at trial that the agreement concerned a smaller quantity; his defence had been a bare denial of any involvement. His argument was an attempt to re-characterise evidence already led, which Kreetharan s/o Kathireson v Public Prosecutor [2020] 2 SLR 1175 held insufficient. The Prosecution had put its case on the quantity to him at trial, so the point could have been raised before, and he gave no explanation for not doing so.

The agreement was in any event proved. Following Muhammad Ridzuan bin Md Ali v Public Prosecutor [2014] 3 SLR 721, a person who intends any amount of drugs to be delivered cannot escape liability by denying knowledge of the precise quantity. The trial judge had found that he coordinated the delivery to himself through Suresh. His assertions that Mogan did not know the quantity and that it was never put to him were contrary to the evidence. No adverse inference based on possession had been drawn; possession was not an element of the abetment offence.

Section 394K(1) bars more than one review application and so more than one leave application. Raising new grounds in successive applications amounted to an abuse of process. Since the statutory requirements were not met, the same material could not justify reopening the appeal under the inherent power.

From the judgment