Case Details
- Citation: [2023] SGCA 44
- Court: Court of Appeal (Criminal Motion)
- Case Number: Criminal Motion No 37 of 2023
- Title: Tika Pesik v Public Prosecutor
- Date of Judgment: 14 November 2023
- Date of Decision/Version: 30 November 2023
- Judges: Tay Yong Kwang JCA
- Applicant: Tika Pesik
- Respondent: Public Prosecutor
- Procedural History: Applicant previously convicted and sentenced to death; Court of Appeal dismissed her conviction and sentence appeal in CA/CCA 29/2017 (“CCA 29”) on 20 August 2018
- Charge: Trafficking in diamorphine (26.29g) with common intention
- Statutory Basis of Charge: Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) s 5(1)(a) read with Penal Code (Cap 224, 2008 Rev Ed) s 34
- Sentence: Mandatory death sentence
- Earlier Appeal: CCA 29 dismissed on 20 August 2018
- Current Application: Permission to review the Court of Appeal’s decision under s 394H of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”)
- Ground of Review: Alleged “new evidence” (possible CCTV/in-car footage and immigration entry records) purportedly proving innocence
- Outcome of Motion: Criminal Motion No 37 of 2023 dismissed summarily
- Judgment Length: 9 pages, 1,822 words
Summary
Tika Pesik v Public Prosecutor [2023] SGCA 44 concerns a criminal review application seeking permission to revisit a prior Court of Appeal decision that had upheld the applicant’s conviction for trafficking in diamorphine and the mandatory death sentence. The applicant, Tika Pesik, filed Criminal Motion No 37 of 2023 under s 394H of the Criminal Procedure Code, alleging that there was “new evidence” capable of proving her innocence and demonstrating a miscarriage of justice.
The Court of Appeal (Tay Yong Kwang JCA) dismissed the application summarily. The court held that the applicant failed to satisfy the statutory threshold for “sufficient material” under s 394J(3) of the CPC. In particular, the alleged new evidence was not substantiated by actual documentary or video material; it was framed as assertions that such footage or records might exist, with CNB having confirmed by affidavit that the relevant recordings were not available. The court also found the application to be, in substance, a futile attempt to re-argue the factual case already considered in the earlier appeal, and even to shift the applicant’s narrative.
What Were the Facts of This Case?
The applicant was convicted on one charge 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 (Cap 185, 2008 Rev Ed), read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed). The prosecution’s case was that the applicant shared a common intention with another accused, Muhammad Farid bin Sudi (“Farid”), to traffic in a controlled drug, and that arrangements were made for Farid to collect and deliver the drugs to a third accused, Hamzah bin Ibrahim (“Hamzah”), between 19 and 20 December 2013.
On the afternoon of 20 December 2013, Farid delivered two packets containing not less than 26.29g of diamorphine to Hamzah while they were in a car driven by Farid. The applicant was not present at the handover in the prosecution’s narrative; rather, her involvement was established through the evidence of the other accused and corroborating objective material. The applicant was arrested months after the transaction, and she denied any involvement in the drug transaction.
At trial, the applicant was tried jointly with Farid and Hamzah in the High Court. Farid testified that he had been 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 trial judge accepted the prosecution’s account. Farid’s evidence on how he was instructed by the applicant to collect and deliver the drugs to Hamzah was corroborated by Hamzah. The trial judge found the applicant’s denial to be vague, unsatisfactory, and unbelievable, and concluded that her account was contradicted by Farid, Hamzah, and also by Saravanan (the applicant’s then-lover, K Saravanan A/L Kuppusamy (“Saravanan”)).
The applicant’s defence was that she had been “played out” by Saravanan, who was allegedly selling drugs. She claimed that Saravanan must have used her mobile phone to contact Farid about the drug transaction without her knowledge. She further claimed that Farid and Hamzah colluded to implicate her falsely. The trial judge rejected this account, finding that there was no reason for Farid to frame the applicant and that the objective evidence, including Farid’s mobile phone records, together with the implausibility of the applicant’s explanation, showed that she was guilty as charged.
Sentencing followed the statutory framework under the MDA. Farid qualified for the alternative sentencing regime under s 33B(2) of the MDA and received life imprisonment and 15 strokes of the cane. The alternative sentencing regime did not apply to the applicant and Hamzah because they were not couriers. As a result, the mandatory death sentence was imposed on the applicant and Hamzah. The applicant appealed against her conviction and sentence in CCA 29, and the Court of Appeal dismissed her appeal on 20 August 2018.
What Were the Key Legal Issues?
The central legal issue in the 2023 application was whether the applicant had met the statutory requirements for permission to review a prior appellate decision under s 394H of the CPC. This required the applicant to show a legitimate basis for the exercise of the court’s power of review, and to present “sufficient material” that could lead the court to conclude that there had been a miscarriage of justice.
More specifically, the court had to determine whether the alleged “new evidence” satisfied the conditions in s 394J(3)(a) to (c) of the CPC. These conditions require, among other things, that the material must not have been canvassed at any stage before the review application, could not have been adduced earlier 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 application was, in substance, an attempt to re-litigate matters already decided on the merits in the earlier appeal. The court also had to consider whether the applicant’s review narrative was consistent with her earlier sworn testimony, or whether it amounted to an impermissible attempt to change her evidence under the guise of “new evidence”.
How Did the Court Analyse the Issues?
The Court of Appeal began by restating the governing legal framework for criminal review applications. An application for permission to review an appellate court’s decision must show a legitimate basis for the exercise of the court’s power of review. The court referred to Kreetharan s/o Kathireson v Public Prosecutor and other matters [2020] 2 SLR 1175 at [17] for the proposition that the applicant must demonstrate sufficient material—whether new evidence or new legal arguments—on which the court may conclude that there has been a miscarriage of justice.
The court then focused on the statutory definition of “sufficient” material in s 394J(3) of the CPC. The court emphasised that the material must satisfy all three conditions: it must not have been canvassed earlier; it must not have been capable of being adduced earlier with reasonable diligence; and it must be compelling—reliable, substantial, powerfully probative, and capable of showing almost conclusively that a miscarriage of justice occurred. This is a high threshold, reflecting the exceptional nature of review proceedings and the strong interest in finality of litigation.
Applying these principles, the court concluded that the applicant’s motion was futile and essentially sought to re-argue CCA 29 on the facts. The applicant’s alleged new evidence consisted of 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 allegedly arrived in Singapore on 20 December 2013. The applicant asserted that “Kanaku” was the person who passed the plastic bag containing the drugs to Farid. She also alleged possible CCTV footage at Jalan Kukoh that would show that the $1,800 found in Farid’s possession during his arrest did not come from Hamzah as payment for the drugs, but instead had been given to Farid by another person, “Maren”, in the morning of 20 December 2013.
Critically, the applicant did not adduce the footage or records themselves. The court treated her submissions as hearsay assertions about the possible existence and contents of such evidence. The prosecution responded that there was no legitimate basis for review because the applicant had not suggested any material miscarriage of justice. The prosecution further submitted that CNB had filed an affidavit confirming that no such video recordings were available. The court accepted that the applicant had not produced any actual evidence to support her claims, and that the review application was effectively asking the court to order further investigations and production of evidence rather than relying on material that already existed and met the statutory threshold.
The court also addressed the timing and diligence aspects. The alleged events occurred in December 2013, and the review application was filed in August 2023—close to a decade later. The court found it highly unlikely that such evidence would still be available after such a long period, even if it had existed at the time. More importantly, the court reasoned that the applicant should have pursued these lines of evidence during the investigations or at least during the trial and appeal. The court noted that the applicant had been represented by two sets of defence counsel at both trial and appeal and that she did not seek to obtain and adduce the alleged evidence then.
In addition, the court considered consistency and credibility concerns. The applicant’s account in the review application appeared to contradict her own sworn testimony at trial regarding her communication with Farid and Saravanan on 20 December 2013. The court characterised the review procedure as being used to change the applicant’s narrative. This reinforced the court’s view that the application was not genuinely grounded in new, reliable, and compelling evidence, but rather in an attempt to revisit factual findings already carefully assessed by the trial judge and affirmed by the Court of Appeal in CCA 29.
Finally, the court relied on the earlier appellate reasoning. In CCA 29, the Court of Appeal had been satisfied that the trial judge relied on other evidence apart from Farid’s and Hamzah’s testimony, and that the trial judge had analysed the facts carefully. The earlier Court of Appeal had also rejected the applicant’s argument that she was innocent and that she was a victim of a conspiracy between Farid and Hamzah acting under Saravanan’s direction. In the present motion, the Court of Appeal found “absolutely nothing” suggesting a miscarriage of justice, particularly in light of the absence of actual evidence and the lack of compelling probative value.
What Was the Outcome?
The Court of Appeal dismissed Criminal Motion No 37 of 2023 summarily. The court held that the applicant’s assertions did not come close to satisfying the requirement of “sufficient material” under s 394J(3) of the CPC. The applicant failed to demonstrate a powerful probability that the earlier decision dismissing her appeal in CCA 29 was wrong.
Practically, the dismissal meant that the applicant’s conviction and mandatory death sentence, as upheld in CCA 29, remained undisturbed. The review application did not reopen the factual findings or the legal conclusions already affirmed by the Court of Appeal in 2018.
Why Does This Case Matter?
This decision is significant for practitioners because it illustrates the strict and structured gatekeeping role of s 394H and s 394J of the CPC. Review is not a second appeal and not a mechanism for re-litigating factual disputes. The court’s analysis underscores that applicants must do more than speculate about the possible existence of evidence; they must present material that is reliable, substantial, and powerfully probative, and that meets the statutory conditions on novelty and diligence.
For defence counsel, the case highlights the importance of evidence management and investigative follow-through at the earliest stages. Where a defendant believes CCTV, in-car footage, or other records exist, the defendant must pursue them promptly. The court’s reasoning suggests that long delays, coupled with failure to obtain and adduce the evidence at trial or appeal, will severely undermine any later attempt to characterise such material as “new evidence” for review purposes.
For prosecutors, the case confirms that affidavits from investigative agencies (such as CNB) regarding the non-existence or unavailability of recordings can be decisive in defeating review applications. For law students and researchers, the judgment provides a clear application of the “compelling” threshold in s 394J(3)(c) and demonstrates how courts assess whether a review application is genuinely grounded in new, probative material or is instead an attempt to change the narrative after adverse findings.
Legislation Referenced
- Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”), ss 394H and 394J(3) [CDN] [SSO]
- Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), s 5(1)(a) and s 33B(2) [CDN] [SSO]
- Penal Code (Cap 224, 2008 Rev Ed), s 34 [CDN] [SSO]
Cases Cited
- Kreetharan s/o Kathireson v Public Prosecutor and other matters [2020] 2 SLR 1175
- Tika Pesik v Public Prosecutor [2018] (referenced as CCA 29; Court of Appeal decision dismissing conviction and sentence appeal on 20 August 2018)
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.