Masri Bin Hussain v Public Prosecutor

Masri bin Hussain claimed trial to a charge of possessing not less than 23.86g of diamorphine for the purpose of trafficking under the Misuse of Drugs Act. His only defence was that all the drugs were for his own use. On 16 October 2023 the trial judge rejected that defence, convicted him and imposed the mandatory death sentence. His appeal, CA/CCA 17/2023, was pending.

In Criminal Motion No 47 of 2024 he applied to the Court of Appeal under s 392(1) of the Criminal Procedure Code 2010 to bring further evidence. He wanted to show that the drugs were mainly for his own use but that he was open to selling some (a partial consumption defence), and to have himself, three prison medical centre doctors and the officer who recorded his contemporaneous statement examined again on whether he was suffering drug withdrawal when that statement was taken. He blamed his trial counsel for running the total consumption defence against his instructions. The court gave its decision ex tempore.

1. Whether the motion was in substance an application to adduce additional evidence or a disguised request for a retrial
2. Whether evidence supporting a partial consumption defence met the Ladd v Marshall conditions, given the allegation of inadequate legal assistance by trial counsel
3. Whether the proposed evidence on drug withdrawal, including the instant urine test report, met the Ladd v Marshall conditions

The court held that the motion failed at the threshold. Apart from the urine test report, the applicant did not identify the evidence he wanted to bring. The partial consumption defence was diametrically opposed to the defence run at trial and would require a retrial. Such a defence also needs evidence of a daily consumption rate and how long the drugs were meant to last, as explained in A Steven s/o Paul Raj v Public Prosecutor [2023] 1 SLR 637, and none was offered. Re-examining witnesses who had already testified, on unknown questions, was likewise a request for a retrial.

Even treated as a real application, the evidence failed Ladd v Marshall. The claim of inadequate legal assistance had to meet the test in Mohammad Farid bin Batra v Public Prosecutor and another appeal and other matters [2020] 1 SLR 907, and it failed at the first step. A letter of representation he had confirmed in August 2021, notes of several meetings, and the Case for the Defence he endorsed all showed his instructions were for the total consumption defence. His references at trial to the drugs being mainly for his use were an afterthought.

On withdrawal, he had known of his positive urine test long before trial, and the screening report added nothing to the confirmatory test reports already in evidence. The doctor who examined him closest in time had testified that the interval was too short for withdrawal symptoms, and the recording officer had testified to the contrary at trial. The court repeated its warning against baseless attacks on former counsel and reminded counsel of their duty not to pursue applications contradicted by their client's own evidence.

The Court of Appeal dismissed Criminal Motion No 47 of 2024 in its entirety as an abuse of process. It made no personal costs order against the applicant's counsel because none had been sought, but warned that similar conduct in future may attract one.