JUMAAT BIN MOHAMED SAYED & 3 Ors v ATTORNEY-GENERAL

Facts

The four applicants, Jumaat bin Mohamed Sayed, Lingkesvaran Rajendaren, Datchinamurthy a/l Kataiah and Saminathan Selvaraju, are prisoners each convicted of drug trafficking under s 5 of the Misuse of Drugs Act 1973 and sentenced to the mandatory death penalty; their criminal appeals had been dismissed. On 22 August 2022 they filed Originating Application No 480 of 2022 seeking declarations that the presumptions of possession and knowledge in ss 18(1) and 18(2) of the Act should be read down to impose only an evidential burden, or were unconstitutional, as violating Arts 9(1) and 12(1) of the Constitution and the presumption of innocence. A High Court judge dismissed it as out of time and a collateral attack on their convictions, and in any case without merit.

Their appeal, Civil Appeal No 2 of 2023, was deemed withdrawn when they failed to file the required documents. A single judge of the Court of Appeal summarily dismissed their application to reinstate it (SUM 8). By Summons No 16 of 2023 they asked the Court of Appeal to set that order aside and reinstate the appeal. A five-judge court heard the matter and invited further submissions on the substantive constitutional questions.

Issues

1. What the nature and effect of the presumptions in ss 17 and 18 of the Misuse of Drugs Act 1973 are
2. Whether the presumptions are inconsistent with a fundamental rule of natural justice protected by Art 9(1) of the Constitution, or with equality under Art 12(1)
3. Whether the court has power to read the presumptions down to an evidential burden
4. Whether the single judge had jurisdiction over SUM 8 and whether permission should be granted to vary or discharge his order

Holding

The Court of Appeal dismissed SUM 16 in its entirety, declining to reinstate the appeal because the constitutional challenge had no merit. It made no order as to costs given the public interest questions raised, with the usual consequential orders.

Reasoning

The presumptions are rebuttable presumptions of law that place a persuasive burden on the accused to disprove the presumed fact on the balance of probabilities, as the court has consistently held. They do not shift the prosecution's overall legal burden: the prosecution must still prove the predicate facts beyond a reasonable doubt. Sections 18(1) and 18(2) may operate together, but s 17 cannot be combined with s 18.

The applicants relied on Lord Diplock's statement in Ong Ah Chuan that a person should not be punished unless an unbiased tribunal is satisfied he committed the offence. Read with the paragraphs that follow, that decision expressly accepted rebuttable statutory presumptions; what natural justice requires is material logically probative of facts constituting the offence. The predicate facts in s 18 are logically probative of possession and knowledge, and matters such as what a person thought he was carrying lie peculiarly within his knowledge. None of the three rules the applicants proposed, including their version of the presumption of innocence, was part of the fundamental rules of natural justice embedded at the Constitution's commencement, and the court will not read new rights into the Constitution.

On Art 12(1), the different treatment of accused persons in drug cases bore a rational relation to Parliament's object, shown in repeated debates, of giving enforcement agencies robust tools against drug trafficking given Singapore's proximity to the Golden Triangle and the profits on offer. Article 4 allows only a declaration of voidness, and there is no implied power to read legislation down; doing so would also defeat the presumptions' purpose.

Procedurally, a deemed-withdrawn appeal remained a pending matter, so the single judge had jurisdiction under s 58(1) of the Supreme Court of Judicature Act 1969 and para 3(1)(d) of the Seventh Schedule; refusing reinstatement did not dispose of an appeal that the applicants' own default had ended. Adopting the Darsan test, permission under s 58(4)(b) requires cogent reasons showing a realistic basis of error and practical utility, and neither was shown.

From the judgment