Case Details
- Citation: [2023] SGCA 44
- Title: Tika Pesik v Public Prosecutor
- Court: Court of Appeal of the Republic of Singapore
- Date: 30 November 2023
- Case Type: Criminal Motion
- Court Reference: Criminal Motion No 37 of 2023
- Prior Appeal Reference: CA/CCA 29/2017 (dismissed on 20 August 2018)
- Applicant: Tika Pesik
- Respondent: Public Prosecutor
- Judges: Tay Yong Kwang JCA
- Legal Area: Criminal Procedure and Sentencing — Criminal review
- Statutes Referenced: Criminal Procedure Code (CPC); Misuse of Drugs Act (MDA)
- Specific Statutory Provisions: s 394H CPC (permission to review appellate decision); s 394J(3) CPC (requirements for “sufficient” material); s 5(1)(a) MDA read with s 34 Penal Code (common intention); s 33B(2) MDA (alternative sentencing regime)
- Charging Offence: Trafficking in 26.29g of diamorphine with common intention
- Sentence Imposed: Mandatory death sentence (for applicant and Hamzah); Farid received life imprisonment and 15 strokes under the alternative sentencing regime
- Representation: Applicant in person; Wong Woon Kwong SC and Chan Yi Cheng (Attorney-General’s Chambers) for the respondent
- Judgment Length: 9 pages, 1,758 words
- Cases Cited: Kreetharan s/o Kathireson v Public Prosecutor and other matters [2020] 2 SLR 1175
Summary
In Tika Pesik v Public Prosecutor [2023] SGCA 44, the Court of Appeal dismissed an application for permission to review its earlier decision dismissing the applicant’s appeal against conviction and sentence for drug trafficking. The applicant, Tika Pesik, sought review under s 394H of the Criminal Procedure Code, alleging that “new evidence” would prove her innocence. The court held that the application did not meet the statutory threshold for “sufficient” material capable of demonstrating a miscarriage of justice.
The applicant’s proposed new evidence consisted of assertions that CCTV footage and immigration records existed (or might exist) in relation to the drug transaction in December 2013, as well as possible in-car footage. She also suggested that money found on a co-accused did not originate from the drug transaction as the prosecution alleged. However, she did not adduce the footage or records, and the Central Narcotics Bureau (CNB) filed an affidavit confirming that no such video recordings were available. The Court of Appeal characterised the motion as a futile attempt to re-argue the factual case already decided, and as an attempt to shift her narrative after conviction.
What Were the Facts of This Case?
The applicant was convicted of trafficking in 26.29g of diamorphine with common intention. The charge was brought under s 5(1)(a) of the Misuse of Drugs Act (MDA), read with s 34 of the Penal Code, reflecting that the prosecution case was not merely that the applicant was present, but that she shared a common intention with others to traffic the controlled drug. The mandatory death sentence was imposed on the applicant.
The drug transaction occurred between 19 and 20 December 2013. The prosecution alleged that the applicant arranged for Muhammad Farid bin Sudi (“Farid”) to collect controlled drugs and deliver them to Hamzah bin Ibrahim (“Hamzah”). Farid delivered two packets containing not less than 26.29g of diamorphine to Hamzah in the afternoon of 20 December 2013 while they were in a car driven by Farid. The applicant was arrested months later, and she denied any involvement in the transaction.
At trial, the applicant was tried jointly with Farid and Hamzah in the High Court. Farid testified that he was recruited by the applicant to deliver drugs for her. Hamzah, for his part, admitted that he had arranged with the applicant to purchase drugs. The applicant’s defence was a denial of involvement, coupled with an account that she had been “played out” by her then-lover, K Saravanan A/L Kuppusamy (“Saravanan”), who was said to have been selling drugs. According to her, Saravanan must have used her mobile phone to contact Farid about the transaction without her knowledge. She further claimed that Farid and Hamzah colluded to implicate her falsely.
The trial judge rejected the applicant’s account. The judge found that Farid’s evidence on how he was instructed by the applicant to collect and deliver the drugs to Hamzah was corroborated by Hamzah. By contrast, the applicant’s denial was described as vague, unsatisfactory, and unbelievable. The judge also found that there was no reason for Farid to frame the applicant. The conviction was supported not only by the testimony of Farid and Hamzah, but also by objective evidence from Farid’s mobile phone records and by the applicant’s implausible account. The Court of Appeal later affirmed these findings.
What Were the Key Legal Issues?
The central legal issue in the 2023 application was whether the applicant had established a legitimate basis for the Court of Appeal to exercise its power of review under s 394H of the Criminal Procedure Code. This required the applicant to show that there was “sufficient material” in the form of new evidence or new legal arguments, such that the court could conclude that there had been a miscarriage of justice.
More specifically, the court had to determine whether the applicant’s asserted “new evidence” satisfied the statutory requirements in s 394J(3)(a) to (c) of the CPC. These conditions include that the material must not have been canvassed at any stage before the filing of the review application; must not have been adducible earlier even with reasonable diligence; and must be “compelling” in the sense of being reliable, substantial, powerfully probative, and capable of showing almost conclusively that a miscarriage of justice occurred.
A related issue was whether the applicant’s motion was, in substance, an attempt to re-litigate factual findings already assessed by the trial judge and affirmed by the Court of Appeal in the earlier appeal (CCA 29). The court also considered whether the applicant’s review narrative was consistent with her sworn testimony at trial, or whether it represented an impermissible attempt to change her account after conviction.
How Did the Court Analyse the Issues?
The Court of Appeal began by restating the threshold for review permission. Drawing on Kreetharan s/o Kathireson v Public Prosecutor and other matters [2020] 2 SLR 1175, the court emphasised that an application for permission to review an appellate decision must show a legitimate basis for the exercise of the court’s power. The applicant must demonstrate that there is sufficient material—either new evidence or new legal arguments—on which the court may conclude that there has been a miscarriage of justice. The court then linked this to the statutory “sufficient material” test in s 394J(3) CPC.
Applying s 394J(3), the court focused on whether the applicant’s purported new evidence was actually capable of meeting the “compelling” standard. The applicant’s first category of alleged new evidence related to possible CCTV footage at Marsiling, possible in-car footage from the vehicle Farid was driving, and immigration entry records of a person known as “Kanaku” who arrived in Singapore on 20 December 2013. The applicant’s theory was that “Kanaku” was the person who passed the plastic bag containing the drugs to Farid. The court found that the applicant did not adduce any of the video footage or records. Instead, she relied on her own hearsay assertions about what such footage might show.
Crucially, the prosecution responded with an affidavit from CNB stating that there were no such video recordings available. The court accepted this as undermining the premise that the alleged footage could be produced and relied upon as “compelling” evidence. Even if the applicant’s assertions were treated as indicating possible existence, the court considered it highly unlikely that such evidence would still be available nearly a decade after the events in December 2013. The court therefore concluded that the applicant’s first category of “new evidence” did not satisfy the reliability and probative requirements inherent in the “compelling” standard.
The second category of alleged new evidence concerned possible CCTV footage at Jalan Kukoh, which the applicant argued would show that the $1,800 found in Farid’s possession during arrest did not come from Hamzah as payment for the drugs. Instead, she claimed it had been given to Farid by “Maren” in the morning of 20 December 2013. Again, the court noted that the applicant did not produce the footage or any documentary records. The court also observed that the applicant’s narrative in the review application contradicted her sworn testimony at trial about her communication with Farid and Saravanan on 20 December 2013. This inconsistency suggested that the review procedure was being used to change her narrative rather than to present genuinely new, reliable, and probative evidence.
Beyond the evidential shortcomings, the court addressed the procedural fairness and diligence aspects implicit in s 394J(3)(b). The court reasoned that the applicant had not explained why the alleged CCTV footage and immigration records could not have been sought earlier. The applicant had been represented by two sets of defence counsel at trial and on appeal, yet there was no attempt to obtain and adduce the alleged evidence at those stages. The court characterised the motion as effectively seeking further investigations and production of evidence from CNB, rather than presenting material that had already been discovered and could meet the statutory threshold. This approach was inconsistent with the purpose of criminal review, which is not meant to provide a second opportunity to conduct a new evidential search years after conviction.
Finally, the court considered the relationship between the earlier appellate decision (CCA 29) and the present application. In CCA 29, the Court of Appeal had already held that the applicant’s innocence theory—namely that she was a victim of a conspiracy between Farid and Hamzah acting under Saravanan’s direction—was without merit. The earlier court had also noted that the prosecution’s position had always been that Hamzah was not a courier and that Hamzah had every reason to expect he would not qualify for the alternative sentencing regime. Yet Hamzah did not attempt to retract his evidence incriminating the applicant. In the present motion, the applicant’s assertions did not provide a basis to disturb the earlier factual conclusions. The Court of Appeal therefore concluded that there was “absolutely nothing” suggesting a miscarriage of justice in CCA 29.
What Was the Outcome?
The Court of Appeal dismissed CM 37 summarily. It held that the applicant’s assertions did not come close to satisfying the requirement of “sufficient material” under s 394J(3) CPC. In particular, the applicant failed to demonstrate that the alleged new evidence was reliable, substantial, powerfully probative, and capable of showing almost conclusively that the earlier dismissal of her appeal was wrong.
Practically, the dismissal meant that the applicant’s conviction and the mandatory death sentence imposed by the trial court (and affirmed by the Court of Appeal in 2018) remained undisturbed. The court’s refusal to grant permission to review also signalled that the review mechanism would not be used to re-argue factual issues or to introduce speculative, unproduced, or inconsistent “new evidence” long after the conclusion of the appellate process.
Why Does This Case Matter?
This case is significant for practitioners because it illustrates the strict gatekeeping function of the criminal review regime in Singapore. The Court of Appeal reaffirmed that permission to review is not granted merely because an applicant asserts that “new evidence” exists. Instead, the applicant must satisfy the statutory conditions in s 394J(3) CPC, including the demanding “compelling” threshold. The decision underscores that speculative assertions, hearsay claims about possible footage, and unproduced materials will not meet the standard.
From a defence perspective, the case highlights the importance of evidential diligence. The court’s reasoning indicates that where CCTV footage or documentary records could reasonably have been sought during investigations, trial, or appeal, an applicant will face difficulty in arguing that the material could not have been adduced earlier with reasonable diligence. This is especially relevant in drug cases where objective evidence (such as mobile phone records and contemporaneous documentation) often plays a central role in the prosecution’s case.
For prosecutors and counsel advising on review applications, the decision provides a clear framework for responding to review claims. The prosecution’s affidavit evidence that the alleged CCTV recordings were not available was treated as highly relevant to the “sufficient material” analysis. The court also considered internal consistency—particularly whether the review narrative contradicts the applicant’s sworn testimony at trial—as a factor that can undermine the reliability and probative value of the purported new evidence.
Legislation Referenced
- Criminal Procedure Code 2010 (2020 Rev Ed) (CPC), including:
- s 394H (permission to review a decision of an appellate court)
- s 394J(3)(a)–(c) (requirements for “sufficient” material: not canvassed earlier; could not have been adduced earlier with reasonable diligence; and must be compelling)
- Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (MDA), including:
- s 5(1)(a) (trafficking offence)
- s 33B(2) (alternative sentencing regime for certain offenders)
- Penal Code (Cap 224, 2008 Rev Ed), including:
- s 34 (common intention)
Cases Cited
Source Documents
This article analyses [2023] SGCA 44 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.