IN THE COURT OF APPEAL OF THE REPUBLIC OF SINGAPORE

[2023] SGCA 15

Criminal Motion No 23 of 2023

Between

Muhammad Faizal Bin Mohd

Shariff
… Applicant
And

Public Prosecutor
… Respondent

JUDGMENT

[Criminal Procedure and Sentencing — Criminal review — Permission for

review]
[Criminal Law — Statutory offences — Misuse of Drugs Act]
 TABLE OF CONTENTS

INTRODUCTION............................................................................................ 1

THE PRESENT APPLICATION................................................................... 2

FACTUAL BACKGROUND ................................................................................. 3

THE APPLICANT’S SUBMISSIONS ........................................................... 5

FAIZAL (HC) FINDINGS ............................................................................... 6

FAIZAL (CA) FINDINGS................................................................................ 8

MY DECISION .............................................................................................. 10

CONCLUSION .............................................................................................. 16

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 This judgment is subject to final editorial corrections to be approved by
the court and/or redaction pursuant to the publisher’s duty in
compliance with the law, for publication in LawNet and/or the Singapore
Law Reports.

Muhammad Faizal Bin Mohd Shariff

v
Public Prosecutor

[2023] SGCA 15

Court of Appeal — Criminal Motion No 23 of 2023

Tay Yong Kwang JCA
15 May 2023

16 May 2023

Tay Yong Kwang JCA:

Introduction

1 In January 2019, the applicant, Muhammad Faizal Bin Mohd Shariff,

was convicted by Chan Seng Onn J (“the trial Judge”) in the High Court on a
charge of possessing drugs (cannabis) for the purpose of trafficking (see Public
Prosecutor v Muhammad Faizal Bin Mohd Shariff [2019] SGHC 17 (“Faizal
(HC)”)). As the Public Prosecutor did not issue the applicant a Certificate of
Substantive Assistance, he was sentenced to undergo the mandatory death
penalty.

2 In CA/CCA 3/2019 (“CCA 3”), the applicant appealed against the High
Court’s decision. In conjunction with his appeal, he applied to the Court of
Appeal by way of CA/CM 13/2019 (“CM 13”) for an order that the Prosecution
disclose copies of the report(s) of any analyses performed on the mobile phones
Muhammad Faizal Bin Mohd Shariff v PP [2023] SGCA 15

and/or SIM cards that were in the possession of the applicant and Kow Lee Ting
Serena (“Serena”) (whose role in this case will be explained later in this
judgment) shortly before or upon their arrest on 14 February 2016, pertaining
in particular to any incoming calls that day, and that any documents ordered to
be disclosed be admitted as further evidence at the appeal. In August 2019, the
Court of Appeal (comprising Sundaresh Menon CJ, Judith Prakash JA and Chao
Hick Tin SJ) dismissed CM 13 as well as CCA 3. An oral judgment was
delivered by the Court of Appeal (“Faizal (CA)”).

3 On 10 May 2023, the applicant’s family was informed by the Singapore

Prison Service that the death sentence passed on the applicant would be carried
out on 17 May 2023. On 11 May 2023, the applicant filed the present
application supported by an affidavit by the applicant’s counsel and written
submissions. On 15 May 2023, the Prosecution filed its written submissions in
response.

4 Before the present application, the applicant was involved as one of the
applicants/claimants in related civil proceedings in the High Court. The
proceedings were in HC/OS 975/2020, HC/OS 825/2021, HC/OS 1025/2021
and HC/OC 166/2022. All these proceedings were either dismissed or struck out
by various Judges in the High Court. There was no appeal against the High
Court’s decisions in the first three cases. The fourth case went on appeal to the
Court of Appeal and that appeal was dismissed in August 2022.

The present application

5 The present application seeks permission under s 394H of the Criminal

Procedure Code 2010 (2020 Rev Ed) (“CPC”) to make a review application in

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Muhammad Faizal Bin Mohd Shariff v PP [2023] SGCA 15

respect of Faizal (CA). The outcome that the applicant seeks is “a reduced
sentence of life imprisonment or a reduced charge to a non-capital offence”. 1

6 The applicant submits that there has been a change in the law on
disclosure brought about by the Court of Appeal’s decision in Muhammad
Nabill bin Mohd Fuad v Public Prosecutor [2020] 1 SLR 984 (“Nabill”), a
decision delivered after Faizal (CA) was decided. The applicant also contends
that additional evidence has “come to light” and that such evidence ought to
have been disclosed by the Prosecution pursuant to the principles enunciated in
Nabill.

7 The Prosecution submits that the applicant has failed to raise “sufficient
material”, as defined in ss 394J(2) and (3) of the CPC, on which this court may
conclude that there has been a miscarriage of justice. The Prosecution argues
that every issue raised in the present application (a) has been addressed in Faizal
(HC) and/or Faizal (CA); (b) is irrelevant; or (c) even contradictory to
submissions made by the applicant in earlier proceedings. It also contends that
the present application is nothing more than an impermissible attempt to make
a second appeal against the decision in Faizal (HC) and it therefore invites the
court to dismiss the present application summarily pursuant to s 394H(7) of the
CPC.

Factual background

8 On 14 February 2016, the applicant and Serena were arrested by the

Central Narcotics Bureau (“CNB”) in relation to another case. They were
staying in a condominium apartment at 95 Pasir Ris Grove #06-41, NV
Residences, Singapore 518912. The apartment was rented by Serena from the

1
Applicant’s written submissions, para 33.

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landlady, Ong Bee Leng (“Ong”), on a short-term basis from 1 to 15 February

2016. Serena had informed Ong that she would be staying in the apartment with
the applicant. Serena also told Ong that Muhammad Hizamudin Bin Sheik
Allahudin (“Arab”) and Leonard Cheng Lee Siang (“Leo”) would also come to
the apartment occasionally. Apart from these four persons, no one else had
access to the unit.

9 On 15 February 2016, one day after the applicant’s and Serena’s arrest,
when Ong could not contact Serena at the end of the short-term rental, she went
to the apartment with her husband. In the apartment, Ong gathered the
belongings of the temporary occupants and left them with the condominium’s
security for safekeeping.

10 The next day, on 16 February 2016, Ong returned to the apartment to

clean it. She found three big blocks and three smaller blocks of substance
wrapped in cling wrap in the drawer of the television console in the master
bedroom. This was an area she had not checked the night before. She placed
these six blocks in a plastic bag and passed them to the condominium’s security
supervisor to be placed with the belongings handed over the day before. Later
that day, the security supervisor informed Ong and her husband that there was
a strong smell coming from the plastic bag and that he suspected that it
contained illegal drugs. Ong’s husband then called the police.

11 CNB officers arrived subsequently and seized the six blocks (marked E1
to E6). The six blocks were analysed by the Health Sciences Authority to
contain the following:

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Exhibit Cannabis (g) Cannabis Total weight (g)

mixture (g)

E1 328.80 507.90 836.70

E2 412.90 478.40 891.30

E3 426.40 434.50 860.90

E4 89.77 138.80 228.57

E5 108.70 152.10 260.80

E6 196.40 265.40 461.80

Total 1562.97 1977.10 3540.07

These six blocks were the subject of the charge on which the applicant was
convicted in Faizal (HC). The charge alleged that the applicant had in his
possession for the purpose of trafficking, the six blocks containing not less than
3,540.07g of vegetable matter which was found to contain 1,562.97g of
cannabis.

The applicant’s submissions

12 It was not disputed at the trial and at the appeal that on 9 February 2016,
the applicant collected four blocks of cannabis, that he referred to as
“storybooks”, himself and brought them to the apartment. There, he cut and
repacked one of the four blocks into the three smaller blocks E4, E5, and E6.
The applicant claimed that he placed the three big blocks and the three small
blocks of cannabis in the refrigerator. In his defence at the trial, the applicant

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asserted that the blocks of cannabis were jointly owned by him, Serena, Arab
and Leo. He testified that the big blocks E1, E2 and E3 were not part of the four
blocks that he had collected. According to his evidence, when he looked into
the refrigerator a few days later, only the small blocks E4, E5 and E6 were still
inside. He accepted that the three small blocks belonged to him. From the above
table, it can be seen that the cannabis content in the three small blocks would
not have attracted the death penalty. He claimed that he did not know how the
six blocks of cannabis (which included E4, E5 and E6) came to be in the drawer
in the master bedroom.

13 The applicant argued that there was reasonable doubt as to whether he

was in possession of the big blocks E1, E2 and E3 because his fingerprints and
DNA were not found on them. He was arrested on 14 February 2016 and the
drugs were found only on 16 February 2016. There were others who had access
to the apartment.

14 Where the allegation of trafficking was concerned, the applicant claimed

that he possessed E4, E5 and E6 for the purpose of consumption and that only
a small portion was meant for sale. However, he also testified that he had never
smoked cannabis before and that the cannabis was for “future use”. He had
never tried cannabis before and so he wanted to do it “bit by bit”.

Faizal (HC) findings

15 The trial Judge held that the applicant had actual possession and
knowledge of the nature of all six blocks of cannabis. He based his decision on
the following main findings:

(a) The applicant had admitted that E4, E5 and E6 belonged to him
and that he knew the nature of the drugs.

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(b) The objective and circumstantial evidence, considered together,

led to the irresistible inference that E1, E2 and E3 were the other three
blocks that the applicant collected on 9 February 2016. The applicant
had also admitted in a statement recorded from him on 21 February 2016
(the “21 February 2016 statement”) that E1, E2 and E3 were three of the
four blocks that he had collected.

(c) The applicant was the person who placed the six blocks in the
drawer in the master bedroom.

(d) The blocks of cannabis were not jointly owned by Serena, Arab,
Leo and the applicant. Instead, they were owned solely by the applicant.
Although Serena was a prosecution witness at the trial, the applicant did
not even put to her that she owned the blocks jointly. Further, the
applicant did not request that Arab and Leo be called to testify in order
for him to put his assertion of joint ownership to them. None of the six
blocks contained Arab’s or Leo’s DNA.

(e) Serena, Arab and Leo did not have possession or knowledge of
the nature of the cannabis.

16 The trial Judge also held that the applicant possessed all six blocks of
cannabis for the purpose of trafficking. Further, the applicant failed to rebut the
presumption of trafficking under s 17 of the Misuse of Drugs Act (Cap 185,
2008 Rev Ed) (the “MDA”). This finding was supported by the following:

(a) The applicant admitted in his 21 February 2016 statement that

the cannabis was meant for sale.

(b) The applicant dealt with the cannabis in a manner consistent with
a person intending to traffic in it. He had weighed one of the blocks and

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cut it into three smaller portions. He used cling wrap to wrap each
portion and then weighed each of the three portions individually. This
was to ensure that their weights were correct in order to facilitate their
future sale or distribution.

(c) The cannabis could not have been intended for the applicant’s
own consumption. Such a large quantity of cannabis must have been for
the purpose of trafficking. The applicant had stated in his 21 February
2016 statement and in his oral testimony in court that he had never
smoked cannabis before. It was incredible that someone who had never
tried cannabis before would have spent so much money to purchase such
a large amount for his own consumption. One block would have cost
about $9,500.

(d) Given the large quantity of cannabis and the fact that the
applicant was heavily in debt, it was unlikely that he would have been
supplied with so much cannabis on credit if it was indeed meant for his
own consumption.

17 As noted above at [1], the trial Judge convicted the applicant on the
trafficking charge and the mandatory death penalty was imposed.

Faizal (CA) findings

18 At the appeal, the applicant contended that his 21 February 2016

statement (which was admitted at the trial without challenge) did not amount to
an admission that he knew anything about the three big blocks of cannabis (E1,
E2 and E3). He maintained that he only knew about the three small blocks of
cannabis (E4, E5 and E6) which belonged to him. The applicant submitted that

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he had merely identified E1, E2 and E3 in his statement as blocks of cannabis

and it was not an admission that they were the actual blocks collected by him.

19 In its oral judgment, the Court of Appeal held that the applicant’s
21 February 2016 statement was an admission. He was asked, by reference to
photographs of the six bundles marked E1 to E6, whom they belonged to.
Nowhere did the applicant say that he did not know if E1 to E3 were the bundles
that he had collected. The applicant had also proceeded to say that he had
divided the fourth big block (or “storybook”) into three smaller bundles. The
Court of Appeal held that this admission was fatal to the applicant’s case. The
applicant’s admission was also corroborated strongly by other facts:

(a) The very bundles of cannabis that he had admitted to collecting

and repacking were precisely what were found in the apartment.

(b) It was wholly improbable that the remaining three big blocks that
the applicant admitted that he had collected had somehow inexplicably
gone missing but then were replaced by three other similar blocks that
some other person had inexplicably placed there. It should be noted that
the three blocks cost around $30,000.

(c) The blue packaging of E4 matched the blue packaging used for
E1, E2 and E3. The applicant’s former Defence counsel accepted that
the applicant had reused the blue packaging from the fourth big block
that he collected to repack one of the three small bundles.

20 The Court of Appeal was satisfied that the applicant was in possession
of the bundles and that he knew they contained cannabis. On the element of
trafficking, it held that the Prosecution was entitled to rely on the presumption

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in s 17 of the MDA and that the presumption was not rebutted. Accordingly, the
Court of Appeal dismissed the applicant’s appeal and his application in CM 13.

My decision

21 In Rahmat bin Karimon v Public Prosecutor [2021] 2 SLR 860, the

Court of Appeal held that an application under s 394H of the CPC must disclose
a legitimate basis for the exercise of the court’s power of review. The court
hearing such an application has to consider the requirements in s 394J of the
CPC, in particular, the requirement that there is sufficient material on which the
appellate court may conclude that there has been a miscarriage of justice.

22 The relevant provisions in s 394J of the CPC state:

(2) The applicant in a review application must satisfy the

appellate court that there is sufficient material (being evidence
or legal arguments) on which the appellate court may conclude
that there has been a miscarriage of justice in the criminal
matter in respect of which the earlier decision was made.
(3) For the purposes of subsection (2), in order for any material
to be ‘sufficient’, that material must satisfy all of the following
requirements:
(a) before the filing of the application for permission to make
the review application, the material has not been canvassed
at any stage of the proceedings in the criminal matter in
respect of which the earlier decision was made;
(b) even with reasonable diligence, the material could not
have been adduced in court earlier;
(c) the material is compelling, in that the material is reliable,
substantial, powerfully probative, and capable of showing
almost conclusively that there has been a miscarriage of
justice in the criminal matter in respect of which the earlier
decision was made.
(4) For the purposes of subsection (2), in order for any material
consisting of legal arguments to be ‘sufficient’, that material
must, in addition to satisfying all of the requirements in
subsection (3), be based on a change in the law that arose from
any decision made by a court after the conclusion of all

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proceedings relating to the criminal matter in respect of which

the earlier decision was made.
(5) For the purposes of subsection (2), the appellate court may
conclude that there has been a miscarriage of justice in the
criminal matter in respect of which the earlier decision was
made, only if —
(a) the earlier decision (being a decision on conviction or
sentence) is demonstrably wrong; or
(b) the earlier decision is tainted by fraud or a breach of the
rules of natural justice, such that the integrity of the judicial
process is compromised.
(6) For the purposes of subsection (5)(a), in order for an earlier
decision on conviction to be ‘demonstrably wrong’ —
(a) it is not sufficient that there is a real possibility that the
earlier decision is wrong; and
(b) it must be apparent, based only on the evidence tendered
in support of the review application and without any further
inquiry, that there is a powerful probability that the earlier
decision is wrong.

23 In Kreetharan s/o Kathireson v Public Prosecutor and other matters

[2020] 2 SLR 1175, the Court of Appeal observed at [21]:

21 It was apparent that nothing raised by the applicants in

their affidavits or submissions met the conjunctive
requirements in s 394J of the CPC based on any standard and
that no legitimate basis for the court to exercise its power of
review had been disclosed. In this regard, it is clear from the
foregoing that it is insufficient for an applicant to attempt to re-
characterise the evidence already led below or to mount fresh
factual arguments on the basis of such evidence. To a large
extent, this was what the applicants sought to do before us. Any
new points raised by the applicants were either unhelpful or
could have been raised earlier with reasonable diligence.
[emphasis in original]

Where an application merely rehashes the submissions made at the trial and on
appeal, permission to file a review application will not be granted (Sinnappan
a/l Nadarajah v Public Prosecutor [2021] SGCA 10 at [33]). A review
application is certainly not a second appeal. It is also not an opportunity for

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further arguments if there is no new law or new evidence within the meaning of
s 394J of the CPC.

24 The present application relies on “new” material. The applicant claims

that the conviction is unsafe because:

(a) There was a change in the law brought about by the Court of
Appeal’s decision in Nabill.

(b) The Prosecution failed to disclose the statements of Arab and

Leo and also failed to disclose the forensic phone records and phone
conversations relating to Serena, Arab and Leo. The disclosure of the
forensic phone records and conversations “would undoubtedly prove
that Arab was involved in the transaction, as well as the involvement
and participation in joint ownership” of the drugs by Serena and Leo.
The entire blame for the drugs should not be pinned solely on the
applicant.

(c) There has been “proliferation” of CCTV and the applicant

remembers that in Nabill, the investigators produced a photograph from
the CCTV cameras in Nabill’s home to establish that he had brought a
luggage bag into his home. The investigators in the present case “should
also have carried out the same exercise to establish if the Applicant or
someone else brought the Drugs” into the apartment. If the relevant
footage were retrieved, it would show whether Arab or Leo went to the
apartment and would “in all likelihood” show that Arab carried the drugs
into the apartment. This would corroborate the applicant’s version of the
events that he drove the car while Arab handled the drugs.

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(d) If reliance is placed on the applicant’s admission that he

collected all the drugs by himself, there is no reasonable explanation
why his fingerprints or DNA were not found on the big bundles E1 to
E3.

(e) Legal possession of the drugs should be attributed to Serena as

she was the tenant of the apartment.

25 In Tangaraju s/o Suppiah v Public Prosecutor [2023] SGCA 8

(“Tangaraju”), the application under s 394H of the CPC was premised on the
decision in Nabill constituting “new material” that could form the basis for
review. While the Court of Appeal found that Nabill represented a change in the
law, this did not mean by itself that such a change constituted “sufficient
material” (Tangaraju at [4]). The impact, if any, that this change in the law has
brought about must be considered.

26 The applicant submits that Arab’s and Leo’s statements would shed light
on their involvement in the drugs. However, although the applicant asserted in
Faizal (HC) that the drugs were owned jointly by himself, Serena, Arab and
Leo, the trial Judge noted that this assertion was never put to Serena (who
testified as a prosecution witness) and that the applicant did not ask that Arab
and Leo be called as witnesses in order that this assertion could be put to them.
The accused’s conviction was based on his admission in his 21 February 2016
statement and the applicant did not challenge its voluntariness or its accuracy.
On appeal, the applicant sought to cast a different light on the statement and, as
stated earlier, that was rejected in Faizal (CA) where the Court of Appeal said
that the admission was fatal to the applicant’s case.

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27 The applicant now says that “I was always told to not incriminate anyone
else if arrested, whether it be Nabil[l], or Arab. [This was the main reason why
I admitted to trafficking blocks E4, E5 and E6. I would otherwise not be able to
get hold of the drugs which I was dependent on.]”. The applicant is therefore
suggesting that he took the blame for the cannabis in question without
implicating the others because otherwise he would not be able to have the drugs
that he was dependent on. This makes hardly any sense. He was already under
arrest and accused of trafficking in a large quantity of cannabis. Would his self-
restraint in not incriminating the others have helped him obtain drugs from any
of them?

28 The applicant’s allegation of joint ownership of the cannabis was

rejected by the trial Judge. Arab’s and Leo’s accounts would therefore be of
limited value. As the Prosecution has submitted, if those statements could aid
the applicant’s defence, they would have been disclosed for the trial under the
Prosecution’s obligations on disclosure as set out in Muhammad bin Kadar and
another v Public Prosecutor [2011] 3 SLR 1205.

29 Further, the applicant’s allegations relating to Arab’s and Leo’s

involvement in the drugs were also canvassed in his application in CM 13 to
adduce further evidence. As noted earlier in this judgment, that too has been
dismissed by the Court of Appeal. His new claim that Arab accompanied him
in the collection of the four big bundles was never brought up at the trial or at
the appeal. Instead, his account at the trial was that he arranged, collected and
transported the four bundles of drugs to the apartment by himself. Deciding to
change or to add to his evidence after his appeal failed does not create new
evidence that satisfies the requirements for a review application under the CPC.

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30 The applicant admitted that bundles E4, E5 and E6 belonged to him. The
issue relating to his possession and knowledge of bundles E1, E2 and E3 has
already been examined in both Faizal (HC) and Faizal (CA). In so far as the
present application attempts to raise the same arguments or to recast some or all
of them regarding this issue, that is not allowed in an application for permission
to review a concluded appeal. I repeat here that a review under the CPC is
neither a second appeal nor an opportunity for further arguments on the same
evidence.

31 The applicant’s request for disclosure of forensic phone records was

made in CM 13 which was dismissed by the Court of Appeal. In the applicant’s
affidavit filed in support there, he claimed that he had received two phone calls
from Arab on 14 February 2016 before his arrest. Arab was said to have asked
the applicant where he was. On both occasions, the applicant replied that he
“was not able to talk” and that he “want to kena already”. On the applicant’s
account, his conversations with Arab did not mention the cannabis. In the
present application, the applicant also states that he did not give any evidence
about the alleged phone calls at the trial because “I was never asked, and it was
never thought that this was a significant point at all.” In any case, at the hearing
of the appeal in Faizal (CA), the Court of Appeal was aware of the applicant’s
affidavit in CM 13 and found that it had no bearing on the outcome of the appeal.
This issue should not therefore be revived and argued again.

32 The applicant also refers to CCTV footage that will “in all likelihood”
corroborate his account. However, no CCTV footage was adduced at the trial
and, according to the Prosecution, no such footage exists. The applicant’s
contentions about CCTV footage therefore appear to assume that there is
footage available because of a “proliferation” of CCTV and because the

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applicant remembers the investigators in Nabill did obtain CCTV footage, the
investigators in this case ought to have done the same.

33 The applicant’s contention that because Serena was the tenant of the
apartment, legal possession of the drugs should be attributed to her, appears to
be an argument on legal principle. However, in whatever way it is framed, the
argument on this issue has been considered. Serena was a prosecution witness
at the trial and, as the trial Judge noted, the applicant did not even put to her as
a fact that she was in joint ownership or possession of the drugs. If the applicant
is now seeking to invoke some legal presumption against her, she was not given
an opportunity to rebut it. In any case, the findings of the trial Judge and of the
Court of Appeal in this case contradict completely the applicant’s contentions.

Conclusion

34 The present application is clearly an impermissible attempt at re-

opening and re-arguing the appeal in Faizal (CA). There is no new evidence that
will satisfy the requirements of a review application and while there is new law
in Nabill, the principles enunciated there have no application to or impact on
the facts in this case. I therefore dismiss summarily the present application for

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permission to make a review application without setting it down for hearing,

pursuant to this court’s powers under s 394H(7) of the CPC.

Tay Yong Kwang

Justice of the Court of Appeal

Ong Ying Ping (Ong Ying Ping Esq) for the applicant;
Terence Chua, Stephanie Koh and Chong Yong (Attorney-General’s
Chambers) for the respondent.

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