Mohd Akebal s/o Ghulam Jilani v Public Prosecutor

Mohd Akebal s/o Ghulam Jilani was convicted of trafficking not less than 29.06g of diamorphine under s 5(1)(a) of the Misuse of Drugs Act and given the mandatory death penalty on 27 February 2019. His appeal was dismissed by the Court of Appeal on 28 November 2019 in Mohd Akebal s/o Ghulam Jilani v Public Prosecutor and another appeal [2020] 1 SLR 266.

The trial judge found that on 22 August 2014 a co-accused, Andi, collected an orange plastic bag containing two bundles of diamorphine from an Indian male near Block 716 Woodlands Avenue 7, after calls arranged through a particular phone number. A CNB officer watched the man's face at the void deck and saw him board a bus; another officer followed him until losing sight of him, and later that evening the applicant was arrested in the Woodlands area with a phone using that number in a grass patch beside him. Andi picked the applicant from a photoboard shortly after his own arrest and repeated the identification in a later statement. The applicant's defence was that he had been wrongly identified: he said he wore different clothes because he was going for a urine test, that witnesses described his attire inconsistently, and that Andi was in drug withdrawal. By Criminal Motion No 11 of 2023, acting in person, he sought permission under s 394H(1) of the Criminal Procedure Code 2010 to make a review application.

1. Whether the applicant had raised sufficient material under s 394J of the CPC showing a miscarriage of justice
2. Whether his challenges to the identification evidence, his alibi and the alleged conspiracy were new or already canvassed
3. Whether any change in the law since the appeal supported a review

Permission requires a legitimate basis for review, which means satisfying the cumulative requirements of s 394J: sufficient material that has not been canvassed before, could not have been adduced earlier with reasonable diligence, and is compelling; legal arguments must also rest on a change in the law after the proceedings ended. Citing Kreetharan s/o Kathireson v Public Prosecutor and other matters [2020] 2 SLR 1175, the court said that re-characterising evidence already led, or mounting fresh factual arguments on it, is not enough.

The applicant did not claim to be raising new material, and his Form B45 information sheet confirmed the evidence had been canvassed earlier. His points on attire, on Andi's withdrawal symptoms, and on being on a bus to his urine test had all been raised and rejected at trial; at trial he had even accepted that his own medical expert's evidence did not dent the reliability of Andi's statements. In any event the identification evidence was not the sole basis for conviction: on appeal the court had not relied on the officer's identification at all and had considered the phone evidence and other circumstances. The alleged conspiracy between Andi and Rusli to frame him had been rejected on appeal on the same facts.

No relevant change in the law since the appeal was cited, so no legal argument could count as sufficient material. The application was an impermissible attempt to re-argue the appeal.

The Court of Appeal dismissed the application summarily under s 394H(7) of the CPC, finding no legitimate basis for exercising its power of review.