KHARTIK JASUDASS v PUBLIC PROSECUTOR

Facts

On 27 August 2012 the applicant, Khartik Jasudass, and a co-accused rode into Singapore on a motorcycle carrying three bundles of drugs. They handed one bundle to a buyer and collected $2,500 before Central Narcotics Bureau officers arrested them. The two bundles left held 26.21g of diamorphine. Both men said they had been recruited by a man called Raja, who threatened them and their families when they wanted to stop.

The applicant was convicted of trafficking and received the mandatory minimum sentence of life imprisonment and 15 strokes of the cane. The Court of Appeal dismissed his appeal in CCA 26 on 9 September 2016. His first application for permission to seek a review, CM 19, was dismissed summarily on 25 February 2021 in Khartik Jasudass v Public Prosecutor [2021] SGCA 13. In this application, CA/CM 1/2026, he again asked for permission under s 394H of the Criminal Procedure Code 2010. He raised three points: that one of the two bundles belonged to his co-accused, so the amount attributable to him was below the capital threshold; that a fellow inmate could now testify about Raja and the duress he was under; and that there was a real difference between not knowing what drug he carried and not caring. He also said he did not claim a miscarriage of justice and mainly wanted a lower sentence.

Issues

1. Whether the applicant could apply for permission to review the dismissal of his earlier permission application, CM 19.
2. Whether a second permission application to review the dismissal of his appeal in CCA 26 was barred by statute.
3. Whether his material justified the court using its inherent power to reopen the concluded appeal.

Holding

Tay Yong Kwang JCA dismissed the application summarily under s 394H of the Criminal Procedure Code 2010, without setting it down for hearing. The application was barred by statute, and none of the material put forward came close to showing a miscarriage of justice.

Reasoning

Read as a challenge to CM 19, the application was barred by s 394K(5), which does not allow a permission application against an appellate decision on a permission application. Read as a second attempt to review CCA 26, it was barred by s 394K(1), which allows only one review application per appellate decision, even if the new attempt rests on a different basis (Pausi bin Jefridin v Public Prosecutor [2024] 1 SLR 1127).

The court also considered its inherent power of review, which mirrors the statutory test in s 394J: the material must be new, must not have been obtainable earlier with reasonable diligence, and must be compelling enough to show almost conclusively that justice miscarried. The first point had appeared in the applicant's 2013 statement but was not pursued at trial or on appeal, and the third point had already been argued at every stage. As for the new witness, it was unclear when he became available or what he would say, and the applicant's own description of the evidence was not enough. In any case, duress had been conceded as unavailable at trial, because the applicant admitted he was out of Raja's reach once in Singapore, and the trial judge had found the threats did not operate on his mind at the time.

Finally, the request for a lower sentence asked for something the law did not allow. Life imprisonment with 15 strokes was the only lawful sentence on the facts, so the sentence could not be shown to be demonstrably wrong.

From the judgment