Chong Hoon Cheong v PUBLIC PROSECUTOR

Facts

Chong Hoon Cheong was convicted in 2021 of possessing not less than 25.01g of diamorphine for the purpose of trafficking, found in 27 packets in his rented room at 26B Hamilton Road. His only defence at trial was that one packet, containing 14.08g, was for his own consumption, which would have brought the rest below the capital threshold. The trial judge found that defence not proved and, as he was not merely a courier and had no certificate of substantive assistance, imposed the death sentence. The Court of Appeal dismissed his appeal (CA/CCA 28/2021) in 2022, and two clemency petitions were rejected.

Two days before his scheduled execution, he filed Criminal Motion No 11 of 2026 under s 394H of the Criminal Procedure Code seeking permission to apply for review of the appeal decision. He alleged that the prosecution had failed to disclose material evidence and had improperly accessed his correspondence, and he relied on a signed statement from a friend, Chai Kok Leong, who said he had played chess at the applicant's home and seen nothing suspicious. He also put forward a new case that the drugs were being stored for others.

Issues

1. Whether the applicant had sufficient new material or new law to justify permission to apply for review of the appeal decision
2. Whether a stay of execution should be granted

Holding

Tay Yong Kwang JCA, sitting as a single judge of the Court of Appeal, dismissed the application summarily without a hearing under s 394H(7) of the Criminal Procedure Code. It followed that there was no reason to stay the execution scheduled for the next day.

Reasoning

Permission requires material that was not canvassed before, could not have been adduced earlier with reasonable diligence, and is compelling enough to show almost conclusively a miscarriage of justice; legal arguments must also rest on a change in the law after the proceedings ended. The disclosure decisions the applicant relied on were given in 2011 and 2020, before his trial evidence closed, so they were not new law.

His allegations of non-disclosure and of intrusive access to his correspondence were unsupported and he did not explain how they affected his defence. The letter he sent to the Chief Justice was sent after the appeal had been decided and could not have affected it. The new witness was not new evidence: the applicant had identified him during investigations and at trial, and gave no reason for not calling him. In any case, the witness's observations could not help, since the applicant never disputed trafficking in the other packets. Who rented the room and paid for it did not matter, because possession and knowledge were not disputed, and a storage and safekeeping defence had never been raised at trial or on appeal.

From the judgment