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: 28 February 2023
- Case Type: Criminal Motion (permission to review)
- Criminal Motion No: 26 of 2022
- Judges: Steven Chong JCA
- Applicant: A Steven s/o Paul Raj
- Respondent: Public Prosecutor
- Legal Areas: Criminal Procedure and Sentencing; Criminal review; Criminal Law—Statutory offences (Misuse of Drugs Act)
- Statutes Referenced: Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”); Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”)
- Key Procedural Provision: s 394H(1) CPC (permission for review)
- Key Substantive Provision: s 5(1)(a) read with s 5(2) MDA (trafficking offence); s 17(c) MDA (presumption of trafficking)
- Related Prior Decisions: A Steven s/o Paul Raj v Public Prosecutor [2022] 2 SLR 538 (“A Steven (CA)”); Public Prosecutor v A Steven s/o Paul Raj [2021] SGHC 218 (“GD”)
- Cases Cited (as provided): [2005] SGCA 11; [2009] SGHC 202; [2021] SGHC 218; [2023] SGCA 9
- Judgment Length: 25 pages, 7,038 words
Summary
This Court of Appeal decision concerns an application for permission to make a criminal review application under s 394H(1) of the Criminal Procedure Code (“CPC”). The applicant, A Steven s/o Paul Raj, sought review of an earlier Court of Appeal judgment (CA/CCA 24/2021, reported as A Steven (CA) in [2022] 2 SLR 538) in which his conviction for drug trafficking was upheld. The central theme of the present application was an “Apportionment Argument”: even if the court rejected his defence that the drugs in his possession were meant solely for his own consumption, the court should still apportion and deduct a quantity that was meant for personal consumption.
The Court of Appeal rejected the application. It held that the applicant had not satisfied the stringent requirements for permission to review. In particular, the court emphasised that apportionment is not a mechanical exercise that automatically follows from a rejected “total consumption” defence. Rather, it depends on what the court can properly accept on the evidence, and whether the non-acceptance of the defence means there is no reliable basis for concluding that any portion was intended for personal use. The court also found that the applicant’s attempt to reframe the case through apportionment did not demonstrate that the earlier Court of Appeal decision was “demonstrably wrong” or that there was a miscarriage of justice.
What Were the Facts of This Case?
The applicant was arrested on 24 October 2017, shortly after ordering two “batu” (bundles) of “panas” (a street name for diamorphine) from a Malaysian supplier known as “Abang”. CNB officers searched the applicant’s person and flat and seized, among other items, two packets of granular/powdery substances from a bicycle basket. These packets contained a total of 901.5g of granular/powdery substance containing not less than 35.85g of diamorphine (the “Relevant Drugs”).
In addition to the drugs, the CNB found drug-related paraphernalia in the applicant’s flat. This included a cut straw stained with diamorphine, a large assortment of empty zip lock bags, stained aluminium foil, an improvised smoking utensil, stained spoons, two lighters, and four digital weighing scales. The presence of weighing scales and packaging materials became significant at trial and on appeal because such items can be consistent with preparation for distribution rather than solely for personal consumption.
At trial, the applicant was charged under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act with one charge of trafficking in a controlled drug. The prosecution relied on the statutory presumption of trafficking under s 17(c) of the MDA. The applicant did not dispute possession of the Relevant Drugs or knowledge that they were diamorphine. His defence was confined to rebutting the presumption by claiming that the Relevant Drugs were meant solely for his own consumption (and occasionally to friends as part of reciprocal arrangements), and not for trafficking to others.
The applicant claimed he was a heavy user of diamorphine, stating that he smoked two to three packets of 8g (16–24g) of diamorphine per day. The trial judge rejected this “total consumption” defence on a balance of probabilities. The judge found that the applicant’s evidence on his claimed daily rate of consumption was contradicted by medical evidence from doctors who examined him before and after the applicant’s recorded statement. The judge also considered the large quantity of drugs and the paraphernalia found in the flat as undermining the claimed personal-use narrative.
What Were the Key Legal Issues?
The principal legal issue in the present motion was procedural but grounded in substantive drug-law reasoning: whether the applicant should be granted permission under s 394H(1) CPC to pursue a review of the earlier Court of Appeal decision. This required the applicant to satisfy the statutory threshold for review permission, including demonstrating that the earlier decision was demonstrably wrong and that a miscarriage of justice might result.
Substantively, the motion turned on the scope and consequences of the “Apportionment Argument”. The applicant contended that, even if the court rejected his total consumption defence, the court must still apportion and deduct a quantity of drugs that, on the evidence, was meant for his own consumption. He relied on Muhammad bin Abdullah v Public Prosecutor and another appeal [2017] 1 SLR 427 (“Muhammad bin Abdullah”) to argue that apportionment can be required where the court accepts that the accused intended to consume more than a de minimis amount, even if the accused’s total consumption defence is not accepted in full.
Accordingly, the Court of Appeal had to decide whether the earlier Court of Appeal in A Steven (CA) erred by failing to conduct an apportionment exercise after rejecting the applicant’s total consumption defence, and whether any such alleged error met the high bar for review permission.
How Did the Court Analyse the Issues?
The Court of Appeal began by framing the question as one about the consequences of pursuing an unsuccessful total consumption defence in the context of criminal review permission. The court treated the Apportionment Argument as the applicant’s attempt to obtain a different outcome by recalculating quantities—potentially affecting whether the diamorphine content would cross the relevant capital threshold for sentencing. However, the court stressed that review is not an avenue for re-litigating the same factual contestation under a different label. Permission to review is exceptional and requires more than disagreement with the earlier court’s evaluation of evidence.
On the evidential core, the earlier Court of Appeal (A Steven (CA)) had found that the applicant failed to establish his claimed rate of consumption. The medical evidence recorded consumption rates of about 4g of diamorphine per day, while the applicant’s statements suggested much higher daily consumption. The Court of Appeal in the present motion noted that the applicant’s explanations for the inconsistencies were unconvincing and that he had not put certain alleged recording errors to the doctors. The earlier court also found that the applicant’s mental state did not explain the discrepancies. These findings were central because apportionment depends on what the court can accept as a reliable basis for concluding that any portion of the drugs was intended for personal use.
Against that background, the Court of Appeal addressed the applicant’s reliance on Muhammad bin Abdullah. The applicant’s position was that once the court accepts that the accused intended to consume more than a de minimis amount, it must apportion and deduct the personal-use quantity even if the total consumption defence is rejected. The Court of Appeal’s analysis, however, implicitly turned on the distinction between (i) a case where the court can accept a portion for personal consumption and (ii) a case where the accused’s personal-use narrative is rejected in substance because the evidence does not support it. Where the court rejects the accused’s claimed consumption rate and the overall personal-use story, there may be no evidential foundation for apportionment.
In the present motion, the Court of Appeal considered that the applicant’s attempt to infer a consumption period (for example, by calculating the time between purchase and arrest) and then derive a personal-use quantity was not consistent with the earlier findings. The earlier Court of Appeal had already rejected the applicant’s claimed consumption rate and treated the large quantity of drugs and the paraphernalia as objective indicators of trafficking. The applicant’s belated explanation about why he purchased a larger quantity during Deepavali was also characterised as an afterthought. In such circumstances, the court reasoned that apportionment could not be performed as a matter of course; it would require a credible acceptance of personal-use intent and quantity, which the earlier courts had not found.
The Court of Appeal also examined whether the earlier decision in A Steven (CA) was “demonstrably wrong”. This is a demanding standard. The applicant needed to show that the earlier Court of Appeal’s approach to apportionment and its rejection of the total consumption defence were clearly erroneous in law or in the application of legal principles. The court found that the applicant’s arguments did not establish such demonstrable wrongness. Instead, the applicant was effectively seeking to revisit the factual evaluation of consumption evidence and the inferences drawn from the quantity of drugs and paraphernalia.
Finally, the Court of Appeal considered whether there was a miscarriage of justice. The court’s reasoning indicates that miscarriage of justice is not established merely because an alternative calculation might have been possible. The question is whether the earlier outcome is unsafe or unjust in a legal sense. Given the earlier findings on consumption rates, the lack of convincing explanations, and the objective evidence consistent with trafficking, the Court of Appeal concluded that the applicant had not shown that the earlier conviction and sentence were the product of a miscarriage of justice.
What Was the Outcome?
The Court of Appeal dismissed the applicant’s motion for permission to make a review application under s 394H(1) CPC. Practically, this meant that the applicant could not proceed to a full review of the earlier Court of Appeal decision in A Steven (CA). The dismissal therefore preserved the earlier conviction and sentence.
The decision also clarifies that the Apportionment Argument, while grounded in authority, does not operate as an automatic deduction mechanism whenever a total consumption defence fails. Permission to review will not be granted where the applicant cannot demonstrate demonstrable error and cannot show that the earlier decision resulted in a miscarriage of justice.
Why Does This Case Matter?
This case is significant for practitioners because it addresses the interaction between (i) the evidential rejection of a total consumption defence and (ii) the availability of apportionment in drug trafficking cases. While Muhammad bin Abdullah recognises that apportionment may be required in appropriate circumstances, A Steven (CA) and the present decision underscore that apportionment is contingent on what the court can accept on the evidence. Where the court rejects the accused’s claimed consumption rate and the overall personal-use narrative, apportionment may not be available because there is no reliable basis to identify a personal-use portion.
From a criminal procedure perspective, the decision also illustrates the high threshold for review permission under s 394H(1) CPC. Applicants cannot treat review as a second appeal. Instead, they must show demonstrable wrongness and a miscarriage of justice. This is particularly important in drug cases where the factual record—such as medical evidence of consumption rates and objective paraphernalia—often drives the outcome. If those findings are already firmly established by the Court of Appeal, it becomes difficult to reframe the case through calculations that depend on disputed facts.
For defence counsel, the case highlights the importance of evidential consistency and procedural completeness at trial and appeal. The earlier courts’ reliance on the applicant’s failure to put alleged recording errors to doctors, and their acceptance that mental state did not affect communication, demonstrates how credibility and procedural fairness can determine whether any apportionment argument can later be sustained. For prosecutors, the decision supports the view that objective indicators of trafficking and rejected personal-use narratives will generally defeat apportionment attempts.
Legislation Referenced
- Criminal Procedure Code 2010 (2020 Rev Ed) (CPC), s 394H(1)
- Criminal Procedure Code 2010 (2020 Rev Ed) (CPC), s 22 (statements recorded)
- Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (MDA), s 5(1)(a) read with s 5(2)
- Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (MDA), s 17(c) (presumption of trafficking)
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
- [2021] SGHC 218
- [2023] SGCA 9
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.