Singapore Court of Appeal: The applicant, a prisoner awaiting capital punishment, was scheduled to be executed on 21 August 2026. On 17 August 2026, he filed the present application seeking permission to commence a review application in respect of an earlier decision that had upheld his conviction and affirmed the mandatory death sentence imposed on him. Kannan Ramesh JAD, held that the applicant had failed to satisfy the requirements of Section 394J of Criminal Procedure Code 2010 (Criminal Procedure Code), as the material relied upon was neither new nor capable of constituting “sufficient material” for the purposes of a criminal review. In particular, the Court found that the applicant’s allegations concerning the chain of custody of the drug exhibits did not amount to new evidence. Rather, they represented an attempt to put a “new spin” on evidence that had already been canvassed and considered during the criminal proceedings. As the applicant failed to demonstrate any basis for concluding that a miscarriage of justice had occurred, the proposed review application had no reasonable prospect of success. Accordingly, the Court summarily dismissed the application.
Background
In the present case, the applicant was convicted following a joint trial with his co-accused on charges relating to the trafficking of not less than 37.95g of diamorphine. On 25 February 2020, officers from the Central Narcotics Bureau (CNB) arrested the co-accused, who was found in possession of a recycle bag containing the drugs. Shortly thereafter, the applicant was arrested while driving his vehicle in the vicinity.
At trial, the applicant did not seriously dispute that he had delivered the drugs to the co-accused. His defence was that he believed he was delivering only “ice” and was unaware that the bundles contained diamorphine. The Prosecution relied on the presumption of knowledge under Section 18(2) of the Misuse of Drugs Act, and the trial judge found that the applicant had failed to rebut that presumption. Accordingly, the trial judge was satisfied that the charge had been proved beyond a reasonable doubt. The applicant was subsequently convicted and sentenced to the mandatory death penalty.
Thereafter, the applicant appealed against both his conviction and sentence, but the Court of Appeal dismissed the appeal. Significantly, the applicant did not challenge the chain of custody of the drug exhibits either at trial or on appeal. On 17 August 2026, shortly before his scheduled execution on 21 August 2026, the applicant filed the present application seeking permission to commence a review application pursuant to Section 394H of the Criminal Procedure Code.
Analysis, Law, and Decision
A. What must an applicant establish before a criminal review application may be filed?
The Court stated that, under Section 394H of the Criminal Procedure Code, an applicant must first obtain permission from the appellate court before commencing a review application. In deciding whether to grant such permission, the Court must consider, among other matters, whether the requirements set out in Sections 394G, 394J, and 394K of the Criminal Procedure Code have been satisfied, and whether the proposed review application has a reasonable prospect of success. The Court should also consider any delay in filing the application for permission and the reasons for such delay. In addition, it must consider whether the applicant has complied with the procedural requirements under Section 394H of the Criminal Procedure Code, including the filing of written submissions and any other prescribed documents within the time limits stipulated by the relevant procedural rules.
As to what constitutes “sufficient material” under Section 394J(2) of the Criminal Procedure Code, the Court explained that a miscarriage of justice may be established where the earlier decision is demonstrably wrong, or where it is tainted by fraud or a breach of the rules of natural justice such that the integrity of the judicial process has been compromised.
The Court further observed that, for material to qualify as “sufficient”, all three conditions set out in Section 394J(3) of the Criminal Procedure Code must be satisfied. First, the material must not have been canvassed during the earlier criminal proceedings. Second, it must be shown that the material could not, even with reasonable diligence, have been adduced during those proceedings. Third, the material must be compelling, in the sense that it is reliable, substantial, highly probative, and capable of demonstrating, almost conclusively, that a miscarriage of justice has occurred.
B. Did the applicant rely on any new evidence?
The Court held that the applicant’s allegations concerning the chain of custody of the drug exhibits did not amount to new evidential material. Rather, they consisted of assertions aimed at casting doubt on evidence that had already been considered by both the trial judge and the Court of Appeal.
The Court observed that the applicant had failed to identify any genuinely new evidence. Instead, he sought to raise suspicions regarding matters that already formed part of the evidential record. Indeed, the applicant expressly acknowledged in his supporting affidavit that his concerns were based on suspicions about the handling of the drug exhibits. In these circumstances, the Court held that mere suspicion could not constitute “sufficient material” for the purposes of a criminal review application.
C. Allegations concerning the drug exhibits, recorded statements, and defence counsel
The applicant raised several allegations concerning the handling of the drug exhibits. Among other things, he contended that the exhibits had not been properly exhibited in the unit searched by the CNB, that his DNA was absent from the drug bundles, that he did not witness the exhibits being processed at CNB headquarters, and that a CNB officer had not stored the exhibits in a locked cupboard as claimed.
The Court held that these allegations did not constitute new evidential material. It observed that evidence relating to each of these matters had already been placed before the trial judge. The conditioned statements of the CNB officers set out in detail how the exhibits were seized, handled, transported, stored, and processed. Likewise, the DNA evidence relied upon by the applicant had already been considered at trial. The Court further noted that the applicant had never disputed that he delivered the drug bundles to the co-accused. Evidence concerning his presence at the Exhibit Management Room and the subsequent handling of the exhibits had also been adduced during the trial. In addition, the applicant’s present assertions were inconsistent with the evidence of several CNB officers and with his own acknowledgment, evidenced by his signature against the recorded drug weights in the investigating officer’s diary.
The Court also considered the applicant’s allegations relating to the recording of his statements. In particular, he alleged that a CNB officer had threatened him during the recording process and that his statements had not been properly interpreted to him. The Court found that these issues had already been raised and considered at trial and therefore could not constitute new material for the purposes of a criminal review application.
As for the allegations made against the counsel who represented the applicant at trial and on appeal, the Court held that these complaints likewise did not amount to new material relevant to either his conviction or sentence. Rather, they were matters concerning the applicant’s relationship with his former counsel and were therefore incapable of supporting a review application under the Criminal Procedure Code.
D. Attempt to put a “new spin on old evidence” and failure to satisfy Section 394J of Criminal Procedure Code
The Court held that the applicant’s arguments amounted to an attempt to “put a new spin on old evidence which has already been considered by the court” or to advance “a new position on material which has already been analysed by the court.” Such material does not satisfy the requirements of Section 394J of the Criminal Procedure Code, which is directed at genuinely new and sufficient material rather than fresh arguments based on evidence that has already been considered.
The Court further observed that the applicant had consciously chosen not to challenge the chain of custody of the drug exhibits at trial and had maintained the same position on appeal. Against that background, the Court regarded the applicant’s attempt to raise the issue years later, and only shortly before his scheduled execution, as a clear afterthought. Accordingly, the Court concluded that the applicant had failed to satisfy the requirement in Section 394J(3)(a) Criminal Procedure Code, that the material relied upon must not have been canvassed in the earlier proceedings. As the three requirements under Section 394J(3) operate cumulatively, the failure to satisfy Section 394J(3)(a) was fatal to the application. In those circumstances, it was unnecessary for the Court to consider whether the remaining requirements under Sections 394J(3)(b) and 394J(3)(c) Criminal Procedure Code had been met.
The Court noted that the applicant’s allegations were without merit. The evidence demonstrated an unbroken chain of custody of the drug exhibits, while the various allegations advanced by the applicant were unsupported by any new evidence and were contradicted by the trial record.
Thus, the Court held that the applicant had failed to place before it any new evidence or other sufficient material capable of supporting a conclusion that a miscarriage of justice had occurred. Therefore, the applicant’s application failed to satisfy the requirements of Section 394J of Criminal Procedure Code and had no reasonable prospect of success. Accordingly, the Court summarily dismissed the application without directing that it be set down for an oral hearing.
[Dineshkumar Sambusivam v. Public Prosecutor, 2026 SCC OnLine SGCA 2, decided on 20-08-2026]
Advocates who appeared in this case:
For the Respondent: Wong Woon Kwong SC, Ronnie Ang and Joelle Loy (Attorney-General’s Chambers).
