Reviewing Sustainability of Convictions and Sentences After Amendment to Legislation

Mr Murali Pillai asked the Minister for Law what steps are taken by the Government to review the sustainability of convictions and sentences imposed against persons arising from a change in the applicable law as determined by a court of law.

Under the law, the correctness of a decision is generally determined by reference only to the legal position as it stood at the time of the decision, and will not be affected by subsequent changes in the law. However, in exceptional cases, the Courts may take into account subsequent changes in the law to reassess previously made decisions, even if they were correct at the time they were made.

In 2018, we amended the Criminal Procedure Code to introduce a new statutory framework under which accused persons may apply to reopen concluded criminal appeals. Such applications will only be allowed in exceptional cases, where an accused person shows that there is sufficient material on which the appellate court may conclude that there has been a miscarriage of justice. Such material may include legal arguments based on a change in the law after the appeal had been concluded. This is necessary to strike the right balance between preventing miscarriages of justice and the need for finality in criminal proceedings where all appeals have already been exhausted.

Accused persons who wish to reopen their concluded criminal appeals after a change in the law may apply under this statutory framework. In the recent decision of Gobi a/l Avedian v PP [2020] SGCA 102 (Gobi (Review)), the applicant successfully applied under the statutory framework to reopen his concluded criminal appeal, after a change in the law. The Court of Appeal set aside the applicant’s conviction on the capital charge, and convicted him instead on a non-capital charge.

a. In PP v Gobi a/l Avedian [2019] 1 SLR 113 (Gobi (Appeal)), the applicant was convicted of importing diamorphine. The Court of Appeal held that he failed to rebut the presumption under s 18(2) of the Misuse of Drugs Act (MDA), which presumed that he knew the nature of the drugs. At the time of this decision, the law stated that the presumption under s 18(2) encompassed the doctrine of wilful blindness.

b. In a subsequent decision in Adili Chibuike Ejike v PP [2019] 2 SLR 254 (Adili), the Court of Appeal held that wilful blindness was a mental state falling short of actual knowledge, and therefore was incompatible with a presumption of knowledge. This decision was made in relation to the presumption under s 18(1) of the MDA i.e. that the accused had the drug in his possession and knew of the existence of the drug. The Court expressly declined to decide on the implications of its decision for the separate presumption under s 18(2) i.e. that the accused knew the nature of the drug. The Court noted that in two earlier decisions, it had previously decided that the presumption under s 18(2) encompassed the doctrine of wilful blindness.

c. In Gobi (Review), the Court of Appeal asked parties to submit on whether the reasoning in Adili extended to the presumption under s 18(2), and if so, what the implications were for Gobi (Appeal). The Attorney-General's Chambers (AGC) submitted that the reasoning in Adili could extend to the presumption under s 18(2). The Court agreed, and departed from its two earlier decisions by finding that wilful blindness was not compatible with the presumption under s 18(2).

d. The AGC submitted that there was no miscarriage of justice in Gobi (Appeal) because the AGC's case at trial and the appeal was consistently one of actual knowledge, and not wilful blindness. However, the Court ultimately characterised the case at trial as one of wilful blindness, and reversed its previous decision.

The AGC studies every decision issued by the Courts in criminal matters, to determine if the decision affects previously decided cases. For instance, where a change in the law could potentially affect prior decided cases, the AGC will assess how the change may affect those cases. Where necessary, the AGC will take the appropriate action to surface these cases to the Courts.

For example, in 2007, the CEO of AirOcean, Mr Thomas Tay, pleaded guilty to, and was convicted on, two charges under the Securities and Futures Act for non-disclosure and misleading statement offences. After the High Court overturned the convictions of three other AirOcean directors involved in the case, the AGC reviewed Mr Tay’s conviction and concluded that his conviction was not safe in the light of the High Court’s findings. On its own motion, the AGC applied to the High Court to set aside Mr Tay’s conviction on the ground that a serious injustice might have been occasioned. The court set aside Mr Tay’s conviction and ordered his fine of $240,000 to be refunded to him.

The AGC is studying the decision in Gobi, and undertaking a review of how the decision may affect previous cases and cases that are currently before the courts.