Case Details
- Citation: [2025] SGHC 15
- Court: General Division of the High Court of the Republic of Singapore
- Decision Date: 23 January 2025
- Coram: Chua Lee Ming J
- Case Number: Criminal Case No 32 of 2019; CA/CM 12/2023
- Hearing Date(s): 26–27, 29 November 2024
- Accused Persons: Muhammed Izwan bin Borhan; Ahmad Suhaimi bin Ismail
- Counsel for the Prosecution: Kumaresan Gohulabalan and Stephanie Koh (Attorney-General’s Chambers)
- Counsel for the First Accused: Cheong Jun Ming Mervyn and Lim Yi Zheng (Advocatus Law LLP); Chooi Jing Yen (Chooi Jing Yen LLC)
- Counsel for the Second Accused: Vergis S Abraham SC and Loo Yinglin Bestlyn (Providence Law Asia LLC); Suang Wijaya and Jordan Kow (Eugene Thuraisingam LLP)
- Practice Areas: Criminal Procedure and Sentencing — Taking additional evidence
Summary
The judgment in Public Prosecutor v Muhammed Izwan bin Borhan and another [2025] SGHC 15 represents a significant procedural milestone in the Singapore criminal justice system, specifically concerning the remittal of a capital case for the taking of additional evidence under Section 392(1) of the Criminal Procedure Code 2010. This supplemental judgment follows the original conviction and death sentences handed down in [2022] SGHC 40, where the High Court found Muhammed Izwan bin Borhan ("Izwan") and Ahmad Suhaimi bin Ismail ("Suhaimi") guilty of trafficking in significant quantities of diamorphine (heroin) and methamphetamine ("Ice").
The core of the dispute at this stage revolved around whether new evidence, surfacing after the trial, could cast a reasonable doubt on the Prosecution's central thesis: that the accused persons had made a joint order for five "biji" (packets) of heroin. The defence had long maintained that while five packets were delivered, the actual order had been reduced to a single packet, and the remaining four were "wrongly delivered" and intended for return to the Malaysian supplier. The Court of Appeal, in CA/CM 12/2023, directed the trial judge to take additional evidence from two new witnesses, Sumardi bin Sjahril Habibie ("Sumardi") and Eddie Lee Zhengda ("Eddie"), whose testimonies purportedly supported the "reduction of order" narrative.
The High Court's task was to evaluate the weight and credibility of this additional evidence, which included not only the oral testimonies of Sumardi and Eddie but also digital forensic evidence from Mr. Wang Sidao ("Wang") and further testimony from Suhaimi himself. The court was required to determine if this new material, which largely consisted of hearsay accounts from the criminal underworld, could displace the findings of fact made during the initial trial. The doctrinal contribution of this judgment lies in its rigorous application of the "reasonable doubt" standard to post-conviction evidence, particularly where such evidence relies on the statements of third parties who were not present during the commission of the offence.
Ultimately, Chua Lee Ming J concluded that the additional evidence failed to disturb the original verdict. The court found that the testimonies of Sumardi and Eddie, even if accepted as truthful regarding their interactions with a supplier named "Arvin" or "Kelvin," did not prove that the drug order had been reduced prior to the arrest. Instead, the court viewed the supplier's post-arrest attempts to recover the drugs as entirely consistent with a scenario where the drugs had been seized by the authorities. Consequently, the High Court re-affirmed the convictions and the mandatory death sentences, underscoring the high threshold required for additional evidence to overturn a settled judicial finding in a capital case.
Timeline of Events
- 29 September 2017 (12:46 PM): Izwan collects five packets of heroin (approx. 450g each) and one packet of methamphetamine (approx. 500g).
- 29 September 2017 (Afternoon): Suhaimi is informed by the supplier, Arun, that a person would be sent to collect money from him that night.
- 30 September 2017: Izwan and Suhaimi are arrested in connection with the drug collection at Block 27 New Upper Changi Road.
- 30 October 2017: Sumardi receives photographs of Suhaimi’s charges from an individual named Ashuk.
- 25 February 2022: Chua Lee Ming J delivers the Trial Judgment in [2022] SGHC 40, convicting both accused.
- 21 March 2022: The court passes the mandatory sentence of death on both Izwan and Suhaimi.
- 6 March 2023: The Court of Appeal issues an order in CA/CM 12/2023 remitting the matter to the trial judge for additional evidence to be taken.
- 28 June 2024: The Court of Appeal clarifies the scope of the remittal to include evidence from Wang and Suhaimi.
- 26–27, 29 November 2024: Substantive hearings are held before Chua Lee Ming J to take the additional evidence.
- 23 January 2025: The High Court delivers the supplemental judgment re-affirming the original verdict.
What Were the Facts of This Case?
The factual matrix of this case centers on a large-scale drug transaction that took place on 29 September 2017. The first accused, Izwan, was observed collecting a significant quantity of controlled substances from an electrical box located on the 11th floor of Block 27 New Upper Changi Road. The haul consisted of five "biji" (packets) of heroin, with each packet weighing approximately 450g, and one packet of "Ice" (methamphetamine) weighing approximately 500g. Following the collection, Izwan proceeded to repack the drugs as instructed by the second accused, Suhaimi. A portion of the methamphetamine was subsequently placed back in the electrical box for one of Suhaimi's customers.
The Prosecution's case, as established in the initial trial, was that Izwan and Suhaimi had entered into a joint enterprise to order and distribute these drugs. Specifically, the Prosecution alleged that of the five packets of heroin, two were intended for Izwan to sell to his own clientele, while the remaining three were for Suhaimi's customers. This arrangement formed the basis of the charges: Izwan was charged with trafficking in diamorphine and methamphetamine, while Suhaimi was charged with abetting those offences.
The defence raised a "wrongful delivery" argument. They contended that although five packets of heroin were found in their possession, the actual order placed with their Malaysian supplier, "Arun," had been reduced to just one packet of heroin. According to the accused, the delivery of five packets was a mistake by the supplier. They claimed that upon discovering the surplus, arrangements were being made to return the four extra packets to Arun. This defence was critical because it went to the mens rea and the specific quantity of drugs for which they could be held liable for trafficking.
In the original trial judgment, [2022] SGHC 40, the court rejected this defence, finding the "reduction of order" story to be an afterthought. The court noted that Izwan had already begun repacking the drugs and that there was no objective evidence of an attempt to return the surplus heroin at the time of the arrest. Both men were convicted and sentenced to death.
The case took a turn during the appellate process when two new witnesses, Sumardi and Eddie, came forward. Sumardi, a fellow drug offender, claimed that in late 2017, his own supplier in Malaysia, a man he knew as "Arvin," had contacted him with a specific request. Arvin allegedly told Sumardi that a man named Suhaimi had "taken" four packets of drugs and had not returned them or paid for them. Arvin asked Sumardi to help locate Suhaimi to facilitate the return of these drugs. Sumardi testified that he contacted a mutual acquaintance, Ashuk, who informed him that Suhaimi had already been arrested. Ashuk then sent Sumardi photographs of Suhaimi's charge sheets, which Sumardi forwarded to Arvin to prove that the drugs had been seized by the police.
Eddie, another witness, provided a corroborative account. He claimed that in 2018 or 2019, his supplier (whom he knew as "Kelvin" but believed to be the same "Arvin" mentioned by Sumardi) showed him a photograph of Suhaimi. The supplier allegedly told Eddie that Suhaimi was "holding" four packets of drugs and asked for help in finding him. This evidence was intended to show that the supplier himself recognized that four packets were not part of the intended final sale and were supposed to be returned.
To support these claims, the defence engaged Wang, a digital forensic expert. Wang examined a Samsung mobile phone (Exhibit P293) belonging to Sumardi. His analysis confirmed the presence of photographs of Suhaimi (Exhibit 2D-8) and images of Suhaimi's charge sheets. The metadata indicated these images were received on 30 October 2017. However, Wang's search for contacts named "Arun" or "Arvin" was unsuccessful, though Sumardi explained he used different phones and SIM cards for his drug dealings.
Finally, Suhaimi himself gave further evidence regarding a brief encounter with Sumardi in prison in 2018 or 2019. Suhaimi claimed that during this encounter, Sumardi mentioned that "Arvin" had sent him a photo of Suhaimi. Suhaimi also testified about hearing from another inmate, "AP," that Eddie had similarly been approached by the supplier regarding the four missing packets. This complex web of hearsay and digital footprints formed the basis of the remittal hearing.
What Were the Key Legal Issues?
The primary legal issue was whether the additional evidence taken during the remittal hearing raised a reasonable doubt regarding the original convictions of Izwan and Suhaimi. This required the court to address several sub-issues:
- The Admissibility and Weight of Hearsay Evidence: The testimonies of Sumardi and Eddie relied heavily on statements allegedly made by a third party (the supplier "Arvin/Kelvin"). The court had to determine the weight to be accorded to these statements, especially since the supplier was not available for cross-examination.
- The "Reduction of Order" Defence: Whether the supplier's post-arrest efforts to recover four packets of heroin necessarily implied that the original order for five packets had been reduced to one before the arrest occurred.
- Corroboration via Digital Forensics: To what extent the forensic recovery of photographs on Sumardi's phone (Exhibit P293) corroborated the narrative that the supplier was actively seeking the return of the drugs.
- Credibility of Underworld Witnesses: The court had to assess the reliability of witnesses who were themselves involved in the drug trade and whose recollections surfaced years after the events in question.
These issues are framed by Section 392(1) of the Criminal Procedure Code 2010, which empowers the court to take additional evidence if it is "necessary" in the interests of justice. The legal threshold is not merely whether the evidence is "new," but whether its inclusion would likely have led to a different verdict by creating a reasonable doubt in the Prosecution's case.
How Did the Court Analyse the Issues?
The court’s analysis proceeded in two main stages: first, an evaluation of the credibility and factual findings regarding the new witnesses, and second, an assessment of the legal effect of that evidence on the original verdict.
Analysis of Sumardi’s Evidence
Sumardi testified that Arvin contacted him in late 2017 regarding four packets of drugs held by Suhaimi. The court examined Sumardi's claim that he received photos of Suhaimi's charges from Ashuk on 30 October 2017. While the digital forensic expert, Wang, confirmed that these photos were indeed on Sumardi's phone and were received on that date, the court noted a significant gap. Sumardi could not produce any direct communication with "Arvin" or "Arun" on that phone. Sumardi’s explanation was that he used multiple phones and SIM cards, and the phone examined (Exhibit P293) was his "personal" phone, not his "work" phone.
The court found Sumardi to be a generally credible witness regarding the fact that he received the photos and that he had been asked by a supplier to look for Suhaimi. However, the court highlighted that Sumardi’s knowledge of the "reduction of order" was entirely derivative. He only knew what "Arvin" had told him. At paragraph [12], the court noted that Sumardi’s evidence was "hearsay" and that its value depended entirely on the truth of Arvin's alleged statements.
Analysis of Eddie’s Evidence
Eddie’s testimony mirrored Sumardi’s but occurred later, in 2018 or 2019. He claimed "Kelvin" (Arvin) showed him a photo of Suhaimi and complained about four missing packets. The court found Eddie’s evidence even less impactful than Sumardi’s. The timing of the supplier’s request to Eddie—at least a year after the arrest—suggested a persistent but ultimately futile attempt by a supplier to account for lost inventory. Like Sumardi, Eddie had no personal knowledge of the transaction between Arun and Suhaimi on 29 September 2017.
The Digital Forensic Evidence
The court accepted Wang’s expert findings that the photographs of Suhaimi and the charge sheets were on Sumardi’s phone. This provided an objective anchor for Sumardi’s claim that he was investigating Suhaimi’s whereabouts in October 2017. However, the court observed that the existence of these photos only proved that Sumardi had them; it did not prove why the supplier wanted the drugs back. It was equally plausible that the supplier wanted the drugs back because they had been "lost" to the police, regardless of whether the original order was for one or five packets.
The "Reasonable Doubt" Assessment
The most critical part of the court's reasoning was the logical link between the supplier's post-arrest actions and the pre-arrest state of the drug order. The defence argued that if the supplier was asking for "four packets" back, it must mean the order was for only one. The court rejected this inference. At paragraph [17], the court reasoned:
"The fact that the supplier might have wanted the four packets of heroin back after the arrests did not mean that the order for five packets had been reduced to one before the arrests. If the five packets had been delivered but not paid for, the supplier would naturally want them back (or the money for them) once he realized they had not been distributed as planned."
The court further noted that Suhaimi himself admitted that Arun told him on the afternoon of 29 September 2017 that someone would be sent to collect money that night (referencing NE, 27 November 2024, at 23:7–12). This was inconsistent with a "wrongful delivery" where the parties were still negotiating the return of the surplus. If the delivery was truly a mistake and the order had been reduced, there would be no reason for the supplier to expect payment for the full amount that same night.
Furthermore, the court pointed out that the additional evidence did not explain why Izwan had already begun the process of repacking the drugs. In the original trial, the court found that the act of repacking was indicative of an intention to distribute the entire quantity. The hearsay evidence from Sumardi and Eddie did nothing to rebut this physical evidence of trafficking intent.
The court also addressed the discrepancy in the names "Arun," "Arvin," and "Kelvin." While the defence argued these were all aliases for the same supplier, the court found that even if they were the same person, it did not change the fundamental weakness of the evidence. The supplier's statements to Sumardi and Eddie were self-serving or at least unverified accounts from a person who had every motive to distance himself from a botched delivery that led to a major police seizure.
In conclusion, the court found that the additional evidence was "at best, neutral." It was consistent with both the Prosecution's theory (that the supplier wanted his property back after a failed joint venture) and the Defence's theory (that the supplier wanted his property back because it was never meant to be sold by Suhaimi). Because it was consistent with the Prosecution's case, it could not, as a matter of law, raise a reasonable doubt.
What Was the Outcome?
The High Court determined that the additional evidence provided by Sumardi, Eddie, Wang, and the further testimony of Suhaimi did not alter the court's original findings of fact or its ultimate conclusion on the guilt of the accused. The court maintained that the Prosecution had proven beyond a reasonable doubt that Izwan and Suhaimi were involved in a joint enterprise to traffic in the full quantity of drugs seized.
The operative conclusion of the court was stated as follows:
"I find that the additional evidence has no effect on my previous verdict, which I re-affirm." (at [29])
As a result of this re-affirmation:
- The convictions of Muhammed Izwan bin Borhan for trafficking in diamorphine and methamphetamine were upheld.
- The convictions of Ahmad Suhaimi bin Ismail for abetting Izwan’s trafficking offences were upheld.
- The mandatory sentences of death imposed on both individuals remain in force.
The court did not make any new orders regarding costs, as is standard in such criminal proceedings. The matter was essentially returned to the procedural track for the final determination of the appeal by the Court of Appeal, with the trial judge’s supplemental findings now forming part of the record.
Why Does This Case Matter?
This case is a significant study in the limits of post-conviction evidence in capital cases. It underscores several critical principles for practitioners and legal scholars in Singapore:
1. The High Threshold for Additional Evidence: The judgment illustrates that even when the Court of Appeal remits a case for additional evidence—a relatively rare occurrence—the trial judge will subject that evidence to the same rigorous "reasonable doubt" standard as the original trial evidence. The mere existence of "new" witnesses is insufficient; their testimony must be capable of fundamentally undermining the Prosecution's case. Here, the hearsay nature of the evidence was its fatal flaw.
2. The Logic of Post-Arrest Conduct: The court’s reasoning at paragraph [17] provides a useful template for analyzing the conduct of third parties (like drug suppliers) after an arrest. The court clarified that a supplier’s desire to recover "wrongly delivered" drugs is not logically distinct from a supplier’s desire to recover "seized" drugs. This distinction is vital for defence counsel when attempting to build a "wrongful delivery" or "reduced order" defence.
3. Digital Forensics as Corroboration, Not Proof: The role of Mr. Wang Sidao’s evidence highlights the increasing importance of digital forensics in criminal trials. However, the judgment also shows the limitations of such evidence. While Wang could prove when a photo was received, he could not prove the truth of the conversation that led to the photo being sent. Practitioners must ensure that forensic evidence is tied to a credible narrative of the underlying facts.
4. Credibility in the "Underworld" Context: The court’s treatment of Sumardi and Eddie shows a pragmatic approach to witnesses who are themselves involved in crime. The court did not dismiss them outright because of their criminal backgrounds but rather focused on the inherent logical weaknesses and the hearsay nature of their claims. This suggests that "underworld" testimony can be accepted as credible in parts, yet still be legally insufficient to raise a reasonable doubt.
5. Finality and the Safety of Convictions: In the broader Singapore legal landscape, this case reinforces the principle of finality. Once a trial judge has heard the primary witnesses and examined the physical evidence (like the repacking of drugs), subsequent attempts to introduce peripheral hearsay accounts will face an uphill battle. The "safety of the conviction" remains the paramount concern, and the court will not easily disturb a verdict based on indirect accounts of a supplier's grievances.
Practice Pointers
- Hearsay Limitations: When relying on Section 392(1) of the CPC to introduce additional evidence, counsel must be prepared to address the hearsay hurdles. If the "new" evidence relies on what a third party (like a supplier) said, its weight will be minimal unless that third party can be produced or the statement falls under a specific hearsay exception.
- Logical Consistency: A defence based on "wrongful delivery" must be supported by conduct at the time of the delivery. Post-arrest attempts by a supplier to recover drugs are often seen by the court as "neutral" and consistent with the Prosecution's case.
- Forensic Metadata: Digital forensic evidence is most effective when it corroborates a witness's timeline. In this case, the metadata on Exhibit P293 was helpful in establishing *when* Sumardi became involved, but it could not bridge the gap to the *intent* of the accused on the day of the offence.
- Early Disclosure: The court noted that the "reduction of order" defence was viewed as an afterthought in the original trial. Practitioners should emphasize the importance of early and consistent instructions from clients to avoid the "afterthought" label.
- Witness Preparation for Remittal: Witnesses in remittal hearings face intense scrutiny regarding why they did not come forward earlier. Counsel should ensure that the explanation for the delay is robust and supported by the witness's circumstances (e.g., being in custody or fearing repercussions).
- Managing Multiple Aliases: In drug cases involving Malaysian suppliers, the use of multiple aliases (Arun, Arvin, Kelvin) is common. Counsel should attempt to provide as much identifying information as possible to link these aliases, though as seen here, even successful linking may not overcome hearsay issues.
Subsequent Treatment
As this is a supplemental judgment following a remittal from the Court of Appeal, its primary function is to provide the factual findings requested by the higher court. The Court of Appeal will now consider these findings in the final determination of the accused persons' appeals. The re-affirmation of the verdict by Chua Lee Ming J reinforces the original findings in [2022] SGHC 40, making it highly likely that the convictions will be upheld unless the Court of Appeal finds a significant error in the trial judge's assessment of the additional evidence's weight.
Legislation Referenced
- Criminal Procedure Code 2010 (2020 Rev Ed), Section 392(1)
Cases Cited
- Considered: Public Prosecutor v Muhammed Izwan bin Borhan and another [2022] SGHC 40
- Referred to: Public Prosecutor v Muhammed Izwan bin Borhan and another [2025] SGHC 15