JUMAAT BIN MOHAMED SAYED & 3 Ors v ATTORNEY-GENERAL

Facts

The applicants, Jumaat bin Mohamed Sayed, Lingkesvaran Rajendaren, Datchinamurthy a/l Kataiah and Saminathan Selvaraju, had been convicted of drug offences and sentenced to the mandatory death penalty, and their criminal appeals had been dismissed. In HC/OA 480/2022 they sought permission for judicial review, asking for declarations that the presumptions in ss 18(1) and 18(2) of the Misuse of Drugs Act should be read down to impose only an evidential burden, or were unconstitutional under Arts 9(1) and 12(1) of the Constitution, and a prohibiting order against their executions. The High Court dismissed the application in Jumaat bin Mohamed Sayed and others v Attorney-General [2022] SGHC 291.

They appealed in CA/CA 2/2023, but did not file the appeal documents by 14 March 2023, so the appeal was deemed withdrawn. In Summons No 8 of 2023 they asked the Court of Appeal to reinstate it and to extend time until eight weeks after applications to admit two foreign King's Counsel were decided. Those admission applications had not been filed.

Issues

1. Whether the reliefs sought were in substance a challenge to concluded criminal appeals that had to be brought by criminal review.
2. Whether the appeal had any merit.
3. Whether the length of and reasons for the delay justified reinstatement and an extension of time.

Holding

The Court of Appeal, sitting as a single judge, dismissed SUM 8 without oral arguments under s 55(1) of the Supreme Court of Judicature Act 1969, and made no order as to costs.

Reasoning

Seeking to stop the executions was in substance a challenge to the convictions, which had to be brought as a criminal review under s 394H of the CPC or by the court's inherent power, not by judicial review. Under s 394J there was no sufficient material: the constitutional argument could have been raised at trial or on appeal, rested on no later change in law, and had already been addressed by the Privy Council in Ong Ah Chuan, which held that a similar presumption did not breach Arts 9(1) and 12(1). Nor had the applicants shown that any convicting court found they had raised a reasonable doubt. One applicant would also have been barred from a second review. The applicants could not avoid the stricter review test by choosing another procedure, though judicial review remains open for remedies that do not reopen concluded appeals, as in Gobi a/l Avedian and another v Attorney-General and another appeal [2020] 2 SLR 883.

The delay of 17 days was short and would otherwise have been excused, but there was no explanation why the admission applications remained unfiled, even after earlier time had been given to engage foreign counsel. With the appeal lacking any merit, restoring it would serve no purpose and prejudice was moot.

From the judgment