Case Details
- Citation: [2022] SGCA 18
- Title: Roslan bin Bakar and others v Public Prosecutor
- Court: Court of Appeal of the Republic of Singapore
- Date of decision: 7 March 2022
- Procedural hearing date: 15 February 2022
- Criminal Motion No: Criminal Motion No 6 of 2022
- Judges: Judith Prakash JCA, Belinda Ang Saw Ean JAD and Woo Bih Li JAD
- Applicants: (1) Roslan bin Bakar; (2) Pausi bin Jefridin; (3) Lawyers for Liberty
- Respondent: Public Prosecutor
- Legal areas: Criminal Law — Statutory offences; Criminal Procedure and Sentencing — Criminal review
- Statutes referenced: Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”); Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”)
- Key CPC provisions: ss 394F and 394H (Div 1B of Part 20: Review of earlier decision of appellate court)
- Key MDA provisions: s 5(1)(a) read with s 33 (trafficking offences); s 33B (re-sentencing framework)
- Outcome: Application for leave to review earlier Court of Appeal decisions dismissed; third applicant dismissed for lack of standing; first and second applicants failed to meet statutory requirements for review
- Sentence status at filing: Death sentences scheduled to be carried out on 16 February 2022
- Length of judgment: 15 pages, 4,058 words
- Cases cited (as provided): Iskandar bin Rahmat v Public Prosecutor [2021] 2 SLR 1151; Tan Cheng Bock v Attorney-General [2017] 2 SLR 850; Pitman v State of Trinidad and Tobago; Hernandez v State of Trinidad and Tobago [2018] AC 35
Summary
In Roslan bin Bakar and others v Public Prosecutor [2022] SGCA 18, the Court of Appeal dismissed an urgent application for leave to seek a criminal review of two earlier Court of Appeal decisions (CCA 59 and CCA 26) concerning the first and second applicants’ drug trafficking convictions and death sentences. The application was brought under s 394H of the Criminal Procedure Code (CPC), which requires leave before an application to review an earlier appellate decision can be made.
The court held that the first and second applicants did not satisfy the statutory requirements for a review under the CPC and had no material—legal or evidential—capable of supporting a review. In addition, the third applicant, Lawyers for Liberty, was dismissed at the preliminary stage because it lacked standing to participate in a review application under s 394H. The court adopted a narrow interpretation of “applicant” in the CPC review framework, limiting it to the parties to the original criminal proceedings: the Public Prosecutor and the accused.
What Were the Facts of This Case?
The first and second applicants were each charged with capital and non-capital drug trafficking offences under the Misuse of Drugs Act (MDA). In separate cases, they were charged with trafficking in not less than 96.07g of diamorphine (a capital offence) and trafficking in not less than 76.37g of methamphetamine (a non-capital offence), pursuant to s 5(1)(a) read with s 33 of the MDA. Both applicants claimed trial, were convicted, and were sentenced to death on 22 April 2010.
Following conviction and sentence, both applicants appealed against their convictions and sentences. Their appeals were dismissed by the Court of Appeal on 17 March 2011. As a result, their death sentences remained in place. Later, amendments to the MDA introduced a re-sentencing framework in s 33B, allowing certain convicted offenders to apply to be re-sentenced to life imprisonment with caning or life imprisonment alone, depending on whether statutory criteria were met.
Both applicants availed themselves of the s 33B procedure. The first applicant filed a criminal motion in June 2016 seeking re-sentencing on the basis that he was a “courier” within the meaning of s 33B(3)(a) and that he suffered from an “abnormality of mind” that substantially impaired his mental responsibility for his acts and omissions under s 33B(3)(b). The second applicant made a similar application in July 2016. The two applications were heard together and dismissed in November 2017.
On the re-sentencing applications, the High Court found that the second applicant was a courier, but the first applicant was not. The High Court further found that neither applicant suffered from an abnormality of mind within the meaning of s 33B(3)(b). The applicants then appealed to the Court of Appeal: the first applicant’s appeal was CA/CCA 59 and the second applicant’s appeal was CA/CCA 26. Those appeals were dismissed in September 2018.
In late January 2022, the President ordered that the death sentences pronounced on the applicants were to be carried into effect on 16 February 2022. Against that backdrop, the present application was filed on the evening of 14 February 2022. It sought leave under s 394H of the CPC to review the earlier Court of Appeal decisions in CCA 59 and CCA 26. The urgency was underscored by the fact that the scheduled execution date was the following day.
What Were the Key Legal Issues?
The Court of Appeal faced two main issues. First, it had to determine whether Lawyers for Liberty (the third applicant) had standing to be an applicant in a review application under s 394H of the CPC. This was a threshold question because the court could not proceed to the merits of the review application if the applicant lacked the legal capacity required by the statute.
Second, the court had to decide whether the first and second applicants met the requirements for leave to seek a review of earlier appellate decisions. Section 394H(1) requires an applicant to obtain leave from the appellate court before making a review application. The court therefore had to assess whether the applicants had material—whether legal or evidential—capable of meeting the statutory threshold for review, and whether the application fell within the narrow scope Parliament had set for criminal review.
Underlying both issues was the proper interpretation of the CPC review provisions, particularly the meaning of “applicant” in the context of Div 1B of Part 20 (“Review of earlier decision of appellate court”). The court’s approach to statutory interpretation would determine both standing and the scope of who may participate in review proceedings.
How Did the Court Analyse the Issues?
Standing of the third applicant was addressed first. The affidavit in support of the application was affirmed by counsel for the applicants, Mr Charles Yeo. The affidavit’s reasons for review focused entirely on the death penalty imposed on the first and second applicants. It did not mention any basis for the third applicant’s participation. When the hearing began, the court asked Mr Yeo to explain who the third applicant was and why it was entitled to be a party to a s 394H application.
Mr Yeo explained that Lawyers for Liberty is a Malaysian non-governmental organisation that campaigns against the death penalty and provides legal assistance to the applicants. He also confirmed that the third applicant would pay the disbursements incurred by the applicants in the proceedings. However, when asked about the third applicant’s interest in the proceedings, counsel’s response was essentially that it was interested in assisting the applicants because it opposed the death penalty.
The court held that such an interest did not confer standing. It reasoned that the CPC review framework is located within Div 1B of Part 20, which is specifically concerned with “Review of earlier decision of appellate court.” The court emphasised that the statutory scheme is designed to regulate a limited category of persons who may seek review. It noted that s 394F defines a “review application” as an application to review an earlier decision of an appellate court, and s 394G sets out conditions for making such an application. Section 394H(1) then requires leave before the review application can be made.
Crucially, the term “applicant” was not defined in s 394H or elsewhere in Div 1B. The court therefore applied statutory interpretation principles. It agreed with the Public Prosecutor that, as a matter of statutory interpretation, “applicant” in this context must refer to one of the parties to the decision of the appellate court sought to be reviewed. Since the CPC governs criminal cases and appeals, the parties to a criminal case are the Public Prosecutor and the accused. Accordingly, the only persons who could be “applicants” in a s 394H application were the Public Prosecutor and the person against whom the original criminal case had been brought.
The court rejected a broader interpretation that would allow any person with a desire for a different outcome in a concluded appeal to file a review application. It reasoned that such a broad reading would undermine Parliament’s intention to limit the scope of review and would allow unmeritorious cases to flood the system. The court also relied on the purposive approach to statutory interpretation endorsed in Tan Cheng Bock v Attorney-General [2017] 2 SLR 850, concluding that the context and purpose of s 394H support a narrow interpretation.
Beyond textual and purposive reasoning, the court grounded its conclusion in the nature of criminal proceedings. It stated that criminal proceedings are the prosecution by the State of an alleged offender charged with breaking its laws. Therefore, the parties throughout the process are the prosecution and the accused. While other persons may have an interest in outcomes, they are not and cannot be parties to the criminal case. This principle was reinforced by reference to Iskandar bin Rahmat v Public Prosecutor [2021] 2 SLR 1151, where the court dismissed an application by an unrelated third party seeking to intervene in a different criminal appeal. The Court of Appeal in Iskandar had rejected the proposition that a third party’s common interest in a legal issue could justify intervention, emphasising that such a broad approach would be wrong in principle.
Applying Iskandar, the court in the present case dismissed the third applicant’s participation as a preliminary matter. Whatever Lawyers for Liberty’s interest in opposing the death penalty, it had no right to appear as a party to a s 394H application.
Merits of the first and second applicants’ leave application were then considered. The court noted that the application was filed on the evening of 14 February 2022, in an attempt to set aside death sentences scheduled to be carried out on 16 February 2022. The court heard the application on 15 February 2022 and dismissed it, stating that the applicants were not able to meet the requirements for a review set down by s 394H and had no material—legal or evidential—with which to do so.
Although the extract provided truncates the remainder of the judgment, the court’s approach is clear from its introduction and the structure of its reasoning. The applicants’ grounds, as deposed by counsel, were framed around the relationship between mental disorder and the constitutional prohibition against cruel and inhuman punishment in the context of capital punishment. The affidavit asserted, in substance, that mental disorder (as distinct from “abnormality of mind”) may operate at any stage of a capital case as a bar to trial, conviction, the imposition of a death sentence, or the carrying out of a death sentence. The affidavit also relied on the Privy Council decision in Pitman v State of Trinidad and Tobago; Hernandez v State of Trinidad and Tobago [2018] AC 35, which had confirmed that executing offenders suffering from substantial mental impairment would violate constitutional prohibitions.
However, the Court of Appeal held that the applicants did not satisfy the statutory requirements for leave under s 394H. The court’s reasoning indicates that s 394H is not a mechanism for re-litigating matters already decided, nor a general “second bite” at the review of earlier appellate decisions. Instead, it is a tightly constrained procedure requiring the applicant to demonstrate the existence of material capable of supporting a review. In the court’s view, the applicants did not have such material, whether legal (for example, a relevant change in law or a persuasive legal basis not previously considered) or evidential (for example, new evidence that could materially affect the outcome).
Accordingly, the court did not grant leave. It treated the statutory threshold as a gatekeeping function, consistent with Parliament’s intention to limit criminal review to appropriate cases and to weed out unmeritorious applications at the leave stage.
What Was the Outcome?
The Court of Appeal dismissed the application for leave to review the earlier Court of Appeal decisions in CCA 59 and CCA 26. For the first and second applicants, the court concluded that they did not meet the requirements under s 394H of the CPC and had no material—legal or evidential—sufficient to justify a review.
For the third applicant, Lawyers for Liberty, the court dismissed the application as a preliminary matter for lack of standing. It held that only the parties to the original criminal proceedings—namely the Public Prosecutor and the accused—could be “applicants” in a s 394H review application, and that a third party’s interest in opposing the death penalty did not confer procedural standing.
Why Does This Case Matter?
This decision is significant for criminal practitioners because it clarifies the procedural architecture of criminal review under the CPC. First, it confirms that the leave requirement in s 394H is a strict threshold designed to prevent broad or speculative attempts to reopen concluded appellate decisions. The court’s emphasis on the absence of “material (whether legal or evidential)” underscores that applicants must come prepared with a concrete basis for review, not merely arguments that repackage issues already determined.
Second, the case provides authoritative guidance on standing in criminal review proceedings. By adopting a narrow interpretation of “applicant” in Div 1B of Part 20, the Court of Appeal limited review participation to the parties to the original criminal case. This has practical implications for NGOs, victims, and other interested persons: even where their interest is principled or humanitarian, they cannot assume a procedural role in criminal review unless the statute confers it.
Third, the decision reinforces the court’s broader approach to intervention and participation in criminal proceedings. The reliance on Iskandar bin Rahmat signals that the criminal justice system is not structured for third-party submissions in unrelated cases, even where the third party seeks to assist the accused or support a legal position. For lawyers, this means that strategic litigation planning must account for statutory standing rules and cannot rely on general notions of public interest or advocacy to overcome procedural limits.
Legislation Referenced
- Criminal Procedure Code (Cap 68, 2012 Rev Ed), Div 1B of Part 20, including ss 394F and 394H
- Misuse of Drugs Act (Cap 185, 2008 Rev Ed), s 5(1)(a) read with s 33
- Misuse of Drugs Act (Cap 185, 2008 Rev Ed), s 33B
Cases Cited
- Tan Cheng Bock v Attorney-General [2017] 2 SLR 850
- Iskandar bin Rahmat v Public Prosecutor [2021] 2 SLR 1151
- Pitman v State of Trinidad and Tobago; Hernandez v State of Trinidad and Tobago [2018] AC 35
- Roslan bin Bakar and others v Public Prosecutor [2022] SGCA 18 (the present case)
Source Documents
This article analyses [2022] SGCA 18 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.