Abdul Kahar bin Othman v Public Prosecutor: Reopening of Criminal Appeal & Constitutionality of Misuse of Drugs Act

Abdul Kahar bin Othman applied to the Court of Appeal of the Republic of Singapore in Criminal Motion No 1 of 2018 to reopen his concluded criminal appeal against his conviction and sentence for drug trafficking. The court, comprising Sundaresh Menon CJ, Judith Prakash JA, Tay Yong Kwang JA, Chao Hick Tin SJ, and Belinda Ang Saw Ean J, dismissed the application on 16 August 2018, with detailed grounds issued on 25 October 2018. The court found no merit in Abdul Kahar's arguments regarding the constitutionality and interpretation of section 33B of the Misuse of Drugs Act. The court also declined to make a costs order against his counsel.

1. Case Overview

1.1 Court

Court of Appeal of the Republic of Singapore

1.2 Outcome

Criminal Motion Dismissed

1.3 Case Type

Criminal

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

The Court of Appeal dismissed Abdul Kahar's application to reopen his criminal appeal, finding no merit in his arguments regarding the constitutionality of the Misuse of Drugs Act.

1.7 Decision Date

24 October 2018

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Public Prosecutor	Respondent	Government Agency	Motion Dismissed	Won	Lim Jian Yi of Attorney-General’s Chambers Ho Lian-Yi of Attorney-General’s Chambers Senthilkumaran s/o Sabapathy of Attorney-General’s Chambers Francis Ng of Attorney-General’s Chambers
Abdul Kahar bin Othman	Applicant	Individual	Application Dismissed	Lost	Rupert Seah Eng Chee of Rupert Seah & Co.

3. Judges

Judge Name	Title	Delivered Judgment
Sundaresh Menon	Chief Justice	No
Judith Prakash	Justice of the Court of Appeal	No
Tay Yong Kwang	Justice of the Court of Appeal	Yes
Chao Hick Tin	Senior Judge	No
Belinda Ang Saw Ean	Judge	No

4. Counsels

Counsel Name	Organization
Lim Jian Yi	Attorney-General’s Chambers
Ho Lian-Yi	Attorney-General’s Chambers
Senthilkumaran s/o Sabapathy	Attorney-General’s Chambers
Francis Ng	Attorney-General’s Chambers
Rupert Seah Eng Chee	Rupert Seah & Co.

4. Facts

The applicant was convicted on two capital charges of drug trafficking in 2013.
The applicant's appeal against conviction and sentence was dismissed in 2015.
The applicant applied to reopen his appeal on grounds of a wrongly decided previous decision.
The applicant challenged the constitutionality of section 33B of the Misuse of Drugs Act.
The applicant argued that the Public Prosecutor's role under section 33B is unconstitutional.
The applicant argued that section 33B(4) of the Misuse of Drugs Act is unconstitutional.
The applicant argued that he should be reclassified as a courier.
The applicant argued for the Best Effort Interpretation of section 33B(2)(b) of the MDA.

5. Formal Citations

Abdul Kahar bin Othman v Public Prosecutor, Criminal Motion No 1 of 2018, [2018] SGCA 70
Public Prosecutor v Abdul Kahar bin Othman, , [2013] SGHC 164
Public Prosecutor v Abdul Kahar bin Othman, , [2013] SGHC 222
Public Prosecutor v Chum Tat Suan and another, , [2015] 1 SLR 834
Abdul Kahar bin Othman v Public Prosecutor, , [2016] SGCA 11
Prabagaran a/l Srivijayan v Public Prosecutor and other matters, , [2017] 1 SLR 173
Kho Jabing v Public Prosecutor, , [2016] 3 SLR 135
Zainudin bin Mohamed v Public Prosecutor, , [2018] 1 SLR 449
Mohammad Faizal bin Sabtu v Public Prosecutor, , [2012] 4 SLR 947
Muhammad Ridzuan bin Mohd Ali v Attorney-General, , [2015] 5 SLR 1222
Nagaenthran a/l K Dharmalingam v Attorney-General, , [2018] SGHC 112
Zhou Tong and others v Public Prosecutor, , [2010] 4 SLR 534
Arun Kaliamurthy and others v Public Prosecutor and another matter, , [2014] 3 SLR 1023

6. Timeline

Date	Event
2010-07-06	Applicant arrested by Central Narcotics Bureau officers
2013-08-27	Applicant convicted on drug trafficking charges
2013-10-24	Judge decided that the applicant was a courier
2014-11-28	Court held that a person who intended to sell drugs was not a courier
2015-02-04	Judge found that the applicant was not a courier
2015-10-01	Court dismissed applicant's appeal against conviction and sentence
2016-02-11	Applicant filed Originating Summons No 134 of 2016
2016-12-02	Court delivered judgment in Prabagaran a/l Srivijayan v Public Prosecutor
2017-07-11	High Court dismissed Originating Summons No 134 of 2016
2018-08-16	Court heard and dismissed Criminal Motion No 1 of 2018
2018-09-07	Court decided not to make any costs order against Mr. Seah
2018-10-25	Detailed grounds of decision issued

7. Legal Issues

Reopening of Concluded Criminal Appeal
- Outcome: The court held that the Kho Jabing test applied and was not satisfied, thus the appeal could not be reopened.
- Category: Procedural
- Sub-Issues:
  - Application of the Kho Jabing test
  - New and compelling evidence
  - Miscarriage of justice
- Related Cases:
  - [2016] 3 SLR 135
  - [2017] 1 SLR 173
Constitutionality of Section 33B of the Misuse of Drugs Act
- Outcome: The court held that section 33B of the Misuse of Drugs Act is constitutional.
- Category: Substantive
- Sub-Issues:
  - Separation of powers
  - Judicial power
  - Public Prosecutor's role
  - Natural justice
  - Ultra vires
  - Right to fair trial
  - Ouster of judicial review
- Related Cases:
  - [2017] 1 SLR 173
  - [2012] 4 SLR 947
  - [1977] AC 195
  - [1992] 2 AC 93
  - (2010) 242 CLR 1
  - [2015] 5 SLR 1222
  - [2018] SGHC 112
Interpretation of Section 33B of the Misuse of Drugs Act
- Outcome: The court rejected the applicant's interpretation of section 33B of the Misuse of Drugs Act.
- Category: Substantive
- Sub-Issues:
  - Definition of courier
  - Substantive assistance
  - Best effort interpretation
- Related Cases:
  - [2018] 1 SLR 449
  - [2015] 1 SLR 834
  - [2015] 5 SLR 1222

8. Remedies Sought

Reopening of criminal appeal
Review of conviction and sentence
Declaration of unconstitutionality of legislation

9. Cause of Actions

Unconstitutional application of legislation
Reopening of concluded criminal appeal

10. Practice Areas

Criminal Appeals
Constitutional Litigation

11. Industries

Law Enforcement

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Public Prosecutor v Chum Tat Suan and another	Court of Appeal	Yes	[2015] 1 SLR 834	Singapore	Cited to establish that a person who intended to sell drugs is not a courier under ss 33B(2)(a) and 33B(3)(a) of the MDA.
Kho Jabing v Public Prosecutor	Court of Appeal	Yes	[2016] 3 SLR 135	Singapore	Cited for the test for reopening a concluded criminal appeal.
Prabagaran a/l Srivijayan v Public Prosecutor and other matters	Court of Appeal	Yes	[2017] 1 SLR 173	Singapore	Cited for the court's reasoning on the constitutionality of s 33B of the MDA and the application of the Kho Jabing test.
Zainudin bin Mohamed v Public Prosecutor	Court of Appeal	Yes	[2018] 1 SLR 449	Singapore	Cited by the applicant to argue that he should be reclassified as a courier.
Mohammad Faizal bin Sabtu v Public Prosecutor	High Court	Yes	[2012] 4 SLR 947	Singapore	Cited for the classification of cases where legislative provisions were found to have violated the separation of powers.
Moses Hinds v The Queen	Judicial Committee of the Privy Council	Yes	[1977] AC 195	Jamaica	Cited as an example of legislation that enabled the Executive to determine the duration of an offender's custodial term.
Mohammed Muktar Ali v The Queen	Judicial Committee of the Privy Council	Yes	[1992] 2 AC 93	Mauritius	Cited as an example of legislation that enabled the Executive to select the punishment to be imposed.
State of South Australia v Totani	High Court of Australia	Yes	(2010) 242 CLR 1	Australia	Cited as an example of legislation that enabled the Executive to make administrative decisions that impacted the sentence imposed.
Muhammad Ridzuan bin Mohd Ali v Attorney-General	Court of Appeal	Yes	[2015] 5 SLR 1222	Singapore	Cited for the evidentiary burden in challenging the Public Prosecutor's decision not to grant a certificate of substantive assistance.
Nagaenthran a/l K Dharmalingam v Attorney-General	High Court	Yes	[2018] SGHC 112	Singapore	Cited for the High Court's holding that s 33B(4) of the MDA is a constitutionally valid ouster clause.
Zhou Tong and others v Public Prosecutor	High Court	Yes	[2010] 4 SLR 534	Singapore	Cited for the court's inherent power to order defence counsel to bear the costs of the Prosecution directly.
Arun Kaliamurthy and others v Public Prosecutor and another matter	High Court	Yes	[2014] 3 SLR 1023	Singapore	Cited for the High Court's holding that Parliament had excluded the court's inherent power to order defence counsel to pay the costs of the Prosecution.
Public Prosecutor v Abdul Kahar bin Othman	High Court	Yes	[2013] SGHC 164	Singapore	Cited for the facts of the case regarding the applicant's conviction.
Public Prosecutor v Abdul Kahar bin Othman	High Court	Yes	[2013] SGHC 222	Singapore	Cited for the Judge's decision that the applicant was a courier for the purpose of s 33B(2)(a) of the MDA.
Abdul Kahar bin Othman v Public Prosecutor	Court of Appeal	Yes	[2016] SGCA 11	Singapore	Cited for the Court of Appeal's dismissal of the applicant's appeal against conviction and sentence.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
Misuse of Drugs Act (Cap 185, 2008 Rev Ed)	Singapore
Criminal Procedure Code (Cap 68, 2012 Rev Ed)	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Drug trafficking
Misuse of Drugs Act
Section 33B
Constitutionality
Judicial power
Separation of powers
Public Prosecutor
Courier
Substantive assistance
Kho Jabing test
Reopening of criminal appeal

15.2 Keywords

Criminal appeal
Drug trafficking
Constitutionality
Misuse of Drugs Act
Singapore
Judicial review
Separation of powers

17. Areas of Law

Area Name	Relevance Score
Misuse of Drugs Act	80
Constitutional Law	75
Reopening of concluded criminal appeal	70
Sentencing Regime	65
Criminal Law	60
Criminal Procedure	50
Administrative Law	40
Appellate Practice	40
Civil Procedure	30
Penal Code	20

16. Subjects

Constitutional Law
Criminal Law
Drug Trafficking
Criminal Procedure