MUHAMMAD SALLEH BIN HAMID v PUBLIC PROSECUTOR

Facts

Muhammad Salleh bin Hamid instructed a co-accused, Hadi, to collect bundles from a woman known as Kakak in Johor Bahru on 22 July 2015. The two bundles, hidden in Hadi's motorcycle, contained not less than 325.81g of methamphetamine. He was convicted of abetting Hadi's possession for the purpose of trafficking and sentenced to death; despite a certificate of substantive assistance, his role in recruiting and paying Hadi and coordinating with Kakak went beyond that of a courier. His defence, that he had agreed to deal only in quantities below the capital threshold, was rejected at trial and on appeal in CA/CCA 37/2019, dismissed in 2020. He then brought six other post-appeal applications.

In Criminal Motion No 51 of 2024 he sought permission under s 394H(1) of the Criminal Procedure Code 2010 to review the appeal decision. He argued that he was prejudiced by a joint trial with Hadi, whose defence conflicted with his; that the S$3,800 found on him showed he could pay only for 250g, evidence he said his trial and appeal counsel failed to raise against his instructions; that trial counsel was negligent or incompetent; and he raised other challenges to the trial findings.

Issues

1. Whether the alleged prejudice from the joint trial was sufficient material showing a miscarriage of justice
2. Whether the evidence of the money seized could found a review
3. Whether the allegations against former counsel were made out
4. Whether the remaining arguments were new material

Holding

The Court of Appeal refused permission to review the decision in CA/CCA 37/2019 and summarily dismissed the application under s 394H(7) of the Criminal Procedure Code 2010, finding it devoid of merit.

Reasoning

The joint-trial point could have been raised at trial or on appeal. In any case the judge assessed his defence on its own merits, relying on text messages and his own statements, not on Hadi's failed defence. The argument based on Ramesh a/l Perumal v Public Prosecutor and another appeal [2019] 1 SLR 1003 was a legal argument not based on any change in the law after his appeal, as that case predated his conviction.

The money evidence could have been adduced earlier. Trial counsel's account and contemporaneous notes showed no discussion of it, and the applicant's own letter to appeal counsel showed he had agreed to drop it; his later changed explanation was rejected as a convenient prevarication. Nor was it compelling: his statement said the cash was for business expenses, and neither side's case was that he was buying the drugs.

Applying Mohammad Farid bin Batra v Public Prosecutor and another appeal and other matters [2020] 1 SLR 907, nothing showed flagrant or egregious incompetence. There was no corroboration of his request to give a new statement, and the choice of witnesses was a matter for counsel. The other arguments had been considered before or could have been raised, and a review is not a forum to relitigate. The court warned that unfounded allegations against former counsel are reprehensible and may attract adverse costs.

From the judgment