Case Details
- Citation: [2023] SGCA 9
- Title: A Steven s/o Paul Raj v Public Prosecutor
- Court: Court of Appeal of the Republic of Singapore
- Date of Decision: 28 February 2023
- Procedural Posture: Criminal Motion No 26 of 2022; application for permission to make a review application under s 394H(1) of the Criminal Procedure Code (2010) (2020 Rev Ed)
- Judges: Steven Chong JCA
- Applicant: A Steven s/o Paul Raj
- Respondent: Public Prosecutor
- Legal Areas: Criminal Procedure; Criminal Review; Misuse of Drugs Act offences; Misuse of Drugs Act presumptions and apportionment/deduction principles
- Statutes Referenced: Criminal Procedure Code 2010 (2020 Rev Ed) (notably ss 394H(1), 394J, 22); Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (notably ss 5(1)(a), 5(2), 17(c))
- Earlier Decision Reviewed/Relied Upon: A Steven s/o Paul Raj v Public Prosecutor [2022] 2 SLR 538 (“A Steven (CA)”), arising from CA/CCA 24/2021
- Trial/High Court Reference: Public Prosecutor v A Steven s/o Paul Raj [2021] SGHC 218 (“GD”)
- Key Defence Theory: “Total consumption” defence; Apportionment Argument that, even if total consumption is rejected, the court must deduct a quantity meant for the accused’s own consumption
- Judgment Length: 25 pages; 7,210 words
- Cases Cited (as provided): [2005] SGCA 11; [2009] SGHC 202; [2021] SGHC 218; [2023] SGCA 9
Summary
This Court of Appeal decision concerns a criminal review permission application brought by A Steven s/o Paul Raj (“the Applicant”) under s 394H(1) of the Criminal Procedure Code (“CPC”). The Applicant sought permission to make a review application against an earlier Court of Appeal judgment in CA/CCA 24/2021 (“CCA 24”), reported as A Steven (CA) [2022] 2 SLR 538. The central theme of the application was the “Apportionment Argument”: that where an accused person is charged with drug trafficking but claims the drugs were intended for personal consumption, the court must apportion and deduct a quantity meant for the accused’s own consumption even if the court rejects the accused’s “total consumption” defence.
The Court of Appeal rejected the Applicant’s attempt to reopen CCA 24 on the basis that the earlier court allegedly failed to engage in an apportionment exercise. The Court held, in substance, that the review permission framework under the CPC requires the applicant to satisfy stringent non-availability and miscarriage of justice requirements. The Applicant’s arguments did not meet those thresholds, and the Court declined to treat the alleged omission as a demonstrable error warranting review.
What Were the Facts of This Case?
On 23 October 2017, the Applicant ordered two “batu” (bundles) of “panas” (a street name for diamorphine) from a Malaysian supplier known as “Abang”. He received the drugs on 24 October 2017 and was arrested by officers from the Central Narcotics Bureau (“CNB”) on the same day. The CNB searches resulted in the seizure of drugs and drug-related paraphernalia from the Applicant’s person and flat.
First, two packets of granular/powdery substances containing diamorphine were seized from the basket of the Applicant’s bicycle. The total weight of the granular/powdery substance was 901.5g, containing not less than 35.85g of diamorphine (the “Relevant Drugs”). Second, the CNB found multiple items consistent with drug preparation and use: a yellow cut straw stained with diamorphine, an assortment of empty zip lock bags, stained aluminium foil, an improvised smoking utensil, stained spoons, two lighters, and four digital weighing scales. These items were found beneath the kitchen sink in the Applicant’s flat.
At trial, the Applicant was charged under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (“MDA”) with one charge of trafficking in a controlled drug. Importantly, the Applicant did not dispute possession of the Relevant Drugs or knowledge that the drugs were diamorphine. The statutory presumption of trafficking under s 17(c) of the MDA was therefore triggered, shifting the burden to the Applicant to prove that the Relevant Drugs were not in his possession for that purpose.
The Applicant’s defence was confined to rebutting the presumption by asserting that the Relevant Drugs were meant solely for his own consumption (and, occasionally, to give friends under reciprocal arrangements), not for trafficking to others. He claimed to be a heavy user of diamorphine and gave evidence of his daily consumption rate. The trial judge rejected the defence on the balance of probabilities, concluding that the Applicant failed to establish his claimed consumption rate and that the surrounding circumstances—particularly the large quantity of drugs and the presence of trafficking-type paraphernalia—undermined the defence.
What Were the Key Legal Issues?
The principal legal issue was procedural and remedial: whether the Applicant should be granted permission under s 394H(1) CPC to make a review application against CCA 24. This required the Applicant to satisfy the CPC’s review permission requirements, including the non-availability requirements and the miscarriage of justice requirements under s 394J CPC.
Substantively, the Applicant’s review theory depended on the “Apportionment Argument”. He contended that the Court of Appeal in CCA 24 erred by failing to apportion and deduct a quantity meant for his own consumption from the total quantity of drugs in the charge, even though the court rejected his “total consumption” defence. The Applicant relied on Muhammad bin Abdullah v Public Prosecutor and another appeal [2017] 1 SLR 427 (“Muhammad bin Abdullah”) to argue that apportionment is required where the court accepts that the accused intended to consume more than a de minimis amount.
Accordingly, the Court of Appeal had to consider whether the alleged failure to apportion constituted a reviewable error in the specific context of s 394H(1) and whether the Applicant’s arguments could satisfy the stringent thresholds for review permission, rather than amounting to a re-argument of matters already decided.
How Did the Court Analyse the Issues?
The Court began by framing the question in a precise way: in drug trafficking cases where an accused’s defence is that he intended to consume the entirety of the drugs in his possession, must the court apportion and deduct a quantity meant for personal consumption even if it rejects the total consumption defence? The Court also clarified an important evidential point: references to the “rate of consumption of diamorphine” in the judgment should be understood as referring to the weight of the granular/powdery substance containing diamorphine, rather than the weight of pure diamorphine. This clarification mattered because apportionment calculations depend on the measurement basis used by the court and the evidence.
On the factual foundation, the Court of Appeal reiterated that the Applicant’s total consumption defence had been rejected in both the High Court and CCA 24. In CCA 24, the Court affirmed findings that the Applicant failed to establish his claimed daily consumption rate. The Applicant’s consumption rate recorded in a statement taken under s 22 CPC on 30 October 2017 (“First Long Statement”) was significantly higher than the rates recorded by doctors who examined him. The doctors’ evidence included a prison medical officer’s assessment of 4g per day and a certified report countersigned by another doctor, as well as a psychiatrist’s report recording the Applicant’s claimed consumption as “one packet of heroin daily” of about 8g each. The Court found the Applicant’s explanations for the inconsistencies unconvincing, and it also noted that the Applicant did not put certain challenges to the doctors, while the trial judge had found that his mental state did not affect his communications.
Beyond consumption rate, CCA 24 had also relied on objective indicators that the drugs were meant for trafficking. These included the presence of paraphernalia normally associated with preparation for sale, such as numerous empty zip lock bags and weighing scales, as well as admissions that the Applicant sold small quantities to friends on a regular basis. The Court also treated the Applicant’s explanation that he purchased a larger quantity to avoid supply disruptions during Deepavali as a belated afterthought, emerging only in a later statement recorded under s 22 CPC on 22 February 2018 (“Second Long Statement”). In short, the earlier court’s rejection of the total consumption defence was not merely a narrow credibility finding; it was supported by multiple strands of evidence.
Against this backdrop, the Court of Appeal in the present application focused on the review permission framework. The Court examined the “non-availability requirements” and “miscarriage of justice requirements” under the CPC. The Applicant argued that the Apportionment Argument could not have been adduced earlier because it would have undermined his total consumption defence at trial and on appeal. The Court, however, treated this as insufficient to satisfy the statutory requirements for review permission. Review is not a vehicle to relitigate issues or to introduce an alternative argument that could have been raised with reasonable diligence, particularly where the underlying evidential and legal issues were already canvassed in the earlier proceedings.
On miscarriage of justice, the Applicant contended that CCA 24 was “demonstrably wrong” for failing to apportion. He relied on Muhammad bin Abdullah to argue that apportionment is required when the court accepts that the accused intended to consume more than a de minimis amount, even if it rejects the accused’s total consumption defence. The Court analysed whether, on the facts, there was a basis for the court in CCA 24 to accept any personal consumption quantity at all. The Court’s reasoning indicates that apportionment presupposes a finding (or at least an acceptance on a balance of probabilities) that a meaningful portion was intended for personal consumption. Where the court rejects the accused’s consumption narrative as unproven and where objective evidence points strongly to trafficking, the apportionment exercise may not be triggered.
In addition, the Court assessed consistency with relevant authorities. The Applicant’s proposed calculation—based on an assumed consumption rate over a period of 69 days—was rejected as speculative in the absence of reliable findings on the consumption rate and the intended duration of use. The Court’s approach underscores that apportionment is not a mechanical arithmetic exercise; it depends on the court’s acceptance of the factual premise that some portion was meant for personal consumption, and on the reliability of the consumption evidence.
What Was the Outcome?
The Court of Appeal dismissed the Applicant’s application for permission to make a review application under s 394H(1) CPC. The Court held that the Applicant did not satisfy the statutory requirements for review permission, including the non-availability and miscarriage of justice requirements. As a result, the Applicant was not granted leave to proceed with a review of CCA 24.
Practically, the dismissal means the earlier convictions and sentence affirmed in CCA 24 remained undisturbed. The decision also clarifies that the Apportionment Argument, even if conceptually available in some cases, will not automatically succeed where the accused’s personal consumption narrative is rejected and where the statutory review thresholds are not met.
Why Does This Case Matter?
This case is significant for two overlapping reasons: first, it addresses the boundaries of apportionment in Misuse of Drugs Act trafficking cases; second, it reinforces the strict procedural gatekeeping function of the criminal review permission regime under the CPC.
Substantively, the decision signals that apportionment is not an automatic consequence of raising a personal consumption defence. Where the court rejects the accused’s claimed consumption rate and where objective evidence (such as trafficking-type paraphernalia and admissions) undermines the personal consumption theory, there may be no factual basis for apportionment. For practitioners, this means that the evidential work supporting personal consumption must be robust and consistent; otherwise, the court may treat the entire quantity as attributable to trafficking purposes, leaving no room for deduction.
Procedurally, the case is a reminder that review permission is not a second appeal. Even where an applicant frames the argument as a legal error in the earlier decision, the applicant must still satisfy the CPC’s statutory requirements. Lawyers should therefore carefully assess whether the “non-availability” requirement can genuinely be met and whether the alleged error can amount to a miscarriage of justice in the sense contemplated by the CPC. The decision will likely influence how future applicants structure review permission applications in drug cases, particularly those relying on apportionment principles.
Legislation Referenced
- Criminal Procedure Code 2010 (2020 Rev Ed) — s 394H(1); s 394J; s 22 [CDN] [SSO]
- Misuse of Drugs Act (Cap 185, 2008 Rev Ed) — s 5(1)(a); s 5(2); s 17(c) [CDN] [SSO]
Cases Cited
- Muhammad bin Abdullah v Public Prosecutor and another appeal [2017] 1 SLR 427
- Public Prosecutor v A Steven s/o Paul Raj [2021] SGHC 218
- A Steven s/o Paul Raj v Public Prosecutor [2022] 2 SLR 538
- [2005] SGCA 11
- [2009] SGHC 202
Source Documents
This article analyses [2023] SGCA 9 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.