IN THE COURT OF APPEAL OF THE REPUBLIC OF SINGAPORE [2020] SGCA 80 Criminal Motion No 6 of 2020 Between Yuen Ye Ming … Applicant And Public Prosecutor … Respondent GROUNDS OF DECISION [Criminal Law] — [Statutory offences] — [Misuse of Drugs Act] [Criminal Procedure and Sentencing] — [Criminal references] — [Extension of time] [Criminal Procedure and Sentencing] — [Criminal references] — [Leave to refer questions of law of public interest] This judgment is subject to final editorial corrections to be approved by the court and/or redaction pursuant to the publisher’s duty in compliance with the law, for publication in LawNet and/or the Singapore Law Reports. Yuen Ye Ming v Public Prosecutor [2020] SGCA 80 Court of Appeal — Criminal Motion No 6 of 2020 Sundaresh Menon CJ, Judith Prakash JA, Tay Yong Kwang JA 12 August 2020 19 August 2020 Tay Yong Kwang JA (delivering the grounds of decision of the court): Introduction 1 The applicant, Yuen Ye Ming (“the Applicant”) is a 31-year-old British national. He pleaded guilty in a District Court and was convicted on two separate occasions on two sets of offences under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) committed in 2016 and 2018. He was sentenced by the District Court to a total of 20 years’ imprisonment and 25 strokes of the cane. By virtue of s 328 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”), the aggregate sentence of caning was capped at 24 strokes. 2 The Applicant appealed to the High Court against the sentences. On 5 November 2018, his appeal was dismissed (see Yuen Ye Ming v Public Prosecutor [2019] 5 SLR 225 (“Yuen Ye Ming”)). The High Court Judge (“the Judge”) upheld the District Court’s decision that the Applicant was liable for Yuen Ye Ming v PP [2020] SGCA 80 enhanced punishment under the MDA for his second set of offences. He also held that the Applicant’s individual and global sentences were not manifestly excessive. The Criminal Motions under s 397 of the CPC 3 On 22 February 2019, the Applicant filed Criminal Motion No 1 of 2019 (“CM 1/2019”) to seek leave under s 397 of the CPC to refer to the Court of Appeal three questions of law of public interest relating to the MDA’s enhanced punishment provisions. All three questions related to whether an offender could be convicted under the enhanced sentencing provisions in the MDA if the offender had not been sentenced yet for trafficking, consuming or possessing drugs. On 19 August 2019, this court delivered an oral judgment refusing the leave sought and dismissing CM 1/2019, essentially on the ground that the facts did not give rise to questions of law of public interest. The Applicant was represented by Mr Eugene Singarajah Thuraisingam (“Mr Thuraisingam”) and two other lawyers in that application. 4 On 23 March 2020, some 13 months after filing CM 1/2019, the Applicant filed the present application, Criminal Motion No 6 of 2020, through Mr Ravi s/o Madasamy (“Mr Ravi”) of Carson Law Chambers. In this application, the Applicant seeks an extension of time to apply to the Court of Appeal for leave to refer three questions of law of public interest. The three questions (collectively, “the Questions”) and the background facts relating to the Applicant’s convictions are set out later in our judgment. Application for extension of time for a second application 5 We deal now with the application for extension of time. Section 397(3) of the CPC provides that an application to refer any question of law of public 2 Yuen Ye Ming v PP [2020] SGCA 80 interest that has arisen in a criminal matter determined by the High Court “shall be made within one month, or such longer time as the Court of Appeal may permit, of the determination of the matter to which it relates”. The application before us was filed on 23 March 2020, more than 16 months after the Judge made his decision to dismiss the appeal from the District Court. We note that the Applicant’s first application in CM 1/2019 was also filed out of time. In the present application, the Applicant urges this court to exercise its power under s 397(1) read with s 397(3) and s 380 of the CPC to grant him an extension of time. The grounds that he relies on are that he had “only recently secured the benefit of fresh legal advice, and the public interest in the issues raised” in the present application. He also asserted that his new lawyers have acted with all due dispatch to file the present application. 6 Section 380(1) of the CPC empowers an appellate court to permit an appeal against any judgment, sentence or order despite non-compliance with the provisions in the CPC. In the Applicant’s written submissions, he referred to the present application as an appeal. This is obviously incorrect as an application for leave to refer questions of law of public interest is clearly not an appeal to the Court of Appeal and therefore s 380 does not apply to the present application. The application for extension of time should rightly be under s 397(3) of the CPC although the principles for such extension are similar to those which apply to s 380 of the CPC. 7 In considering whether to grant an extension of time, the court will have regard to matters such as the length of the delay in making the relevant application and the reasons given for the delay. Generally, the longer the delay, the greater will be the importance accorded to the accompanying explanation (Bachoo Mohan Singh v Public Prosecutor and other applications [2010] 1 SLR 966 at [65]–[66]). 3 Yuen Ye Ming v PP [2020] SGCA 80 8 As stated above, there was a delay of more than 16 months in the filing of the present application. While the long delay is an impediment to the grant of extension of time, it may not necessarily be fatal by itself. However, it must be emphasised that the application for extension of time in this case was in respect of a second attempt to refer questions of law to the Court of Appeal after the first was dismissed. The Applicant’s explanation is that he received new legal advice after CM 1/2019 was dismissed. He was represented by lawyers in CM 1/2019 and there is no assertion whatsoever that his previous counsel did not provide adequate legal advice and assistance. In this context, we refer to this court’s decision in Mohammad Farid bin Batra v Public Prosecutor and another appeal and other matters [2020] 1 SLR 907 (at [135]–[136]) on the high threshold required for a convicted person to make such an assertion against his previous counsel successfully. The court stated that the previous counsel’s conduct of the case must be fairly capable of being described “as flagrant or egregious incompetence or indifference”. Nothing of this nature has been alleged against the Applicant’s previous counsel. Before us, Mr Ravi confirmed that he was not saying that Mr Thuraisingam was incompetent or ignorant. In the circumstances, there is no good reason to grant the Applicant an extension of time to file a second application under s 397 of the CPC. 9 In our view, to grant an extension of time in these circumstances would also result in an abuse of the s 397 CPC procedure. In Chew Eng Han v Public Prosecutor [2017] 2 SLR 935 at [3], this court held that an applicant seeking leave to refer questions of law of public interest “cannot be allowed to drip-feed his questions through multiple applications of this nature. The principle of finality in the judicial process would be defeated if an accused person were allowed to spin out applications for leave to refer questions ad infinitum”. In the present application, with the benefit of legal advice, the Applicant applied in 4 Yuen Ye Ming v PP [2020] SGCA 80 CM 1/2019 for leave to refer three legal questions on the enhanced punishment provisions in the MDA. Having failed in that first application, he is not entitled to return to court with a new lawyer with new questions. Otherwise, the legal process may never end or at least will go on for an unjustifiably long time because, with a bit of ingenuity, each successive new lawyer can easily craft some purported question of law for the Court of Appeal to consider. Our decision on the extension of time 10 We therefore would not grant the extension of time sought for the filing of the present application. Nevertheless, we will discuss briefly the factual background out of which the Questions in the present application are said to arise and state our views on the Questions to show that they have no merit in any event. Factual background of the Applicant’s offences 11 On 5 August 2016, the Applicant was arrested for drug offences. After claiming trial initially, he pleaded guilty to four drug offences on 17 January 2018. This was the first of the two sets of offences mentioned in [1] above. Subsequently, the Prosecution applied for a discharge not amounting to an acquittal for one of these charges. The Applicant’s case was adjourned for sentencing and the Applicant was released on bail. On 20 February 2018, about two weeks before he was due back in court, the Applicant was arrested a second time for drug trafficking activities. He eventually pleaded guilty to an additional four charges on 18 July 2018 and these formed the second set of offences referred to earlier.