TIKA PESIK v PUBLIC PROSECUTOR

Facts

Tika Pesik was convicted after a joint trial with Muhammad Farid bin Sudi and Hamzah bin Ibrahim of trafficking in 26.29g of diamorphine with common intention, under s 5(1)(a) of the Misuse of Drugs Act read with s 34 of the Penal Code, and received the mandatory death sentence. The trial Judge found that she arranged for Farid to collect the drugs and deliver them to Hamzah on 20 December 2013, and rejected her account that her then-lover had used her phone and that the two men had colluded to frame her. The Court of Appeal dismissed her appeal in CA/CCA 29/2017 on 20 August 2018.

On 17 August 2023 she filed CA/CM 37/2023 for permission to review that decision under s 394H of the Criminal Procedure Code 2010. She asserted that there might be CCTV footage at Marsiling and Jalan Kukoh, in-car footage from the car Farid drove, and immigration records showing that a person called "Kanaku" handed the drugs to Farid, and that the $1,800 found on Farid came from someone else.

Issues

1. Whether the applicant's alleged new evidence was sufficient material under s 394J(3) of the Criminal Procedure Code.
2. Whether there was any basis to conclude that a miscarriage of justice had occurred in CA/CCA 29/2017.

Holding

Tay Yong Kwang JCA dismissed the criminal motion summarily, holding that the applicant's assertions fell far short of showing a powerful probability that the decision to dismiss her appeal was wrong.

Reasoning

The court restated that a permission application must show a legitimate basis for review, namely new evidence or legal arguments that satisfy all three conditions in s 394J(3): not previously canvassed, not obtainable earlier with reasonable diligence, and compelling.

The applicant had done no more than assert that the footage and records existed, which amounted to asking the court to order further investigations. Such matters should have been raised during investigations or at trial, when she was represented by counsel. Raised close to a decade later, the material was highly unlikely to exist, and the Central Narcotics Bureau had confirmed on affidavit that none was available. The court also observed that she appeared to be changing her narrative from the trial.

In CA/CCA 29/2017 the Court of Appeal had been satisfied that the Judge relied on evidence beyond Farid's and Hamzah's testimony and analysed the facts carefully. The motion was a futile attempt to re-argue that appeal, and nothing in it suggested a miscarriage of justice.

From the judgment