1 This is an application by Rahmat bin Karimon (“Rahmat”) for leave under s 394H(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) to review an earlier judgment of the Court of Appeal in CA/CCA 49/2017, which was reported in Zainal bin Hamad v Public Prosecutor and another appeal [2018] 2 SLR 1119 (“Rahmat (CA)”). This application is premised on the change of the law brought about by the Court of Appeal’s decision in Gobi a/l Avedian v Public Prosecutor [2021] 1 SLR 180 (“Gobi”) as regards the proper treatment of the concept of wilful blindness in the context of the presumption under s 18(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”) that any person who is proved or presumed to possess a controlled drug shall be presumed to have known the nature of the drug. In particular, the Court of Appeal held in Gobi that the s 18(2) presumption cannot be invoked to presume wilful blindness. Thus, following Gobi, the Prosecution cannot rely on the s 18(2) presumption to presume wilful blindness. In this application, Rahmat submits that the Prosecution’s case in the trial below and on appeal was “in substance” based on wilful blindness rather than on actual knowledge. Consequently, the Prosecution could not have relied on the s 18(2) presumption, and the trial judge’s (the “Judge”) and the Court of Appeal’s findings that Rahmat could not rebut the s 18(2) presumption thus cannot stand.

2 This is not the first application for leave to review a concluded criminal appeal on the basis of the change of law in Gobi. In Datchinamurthy a/l Kataiah v Public Prosecutor [2021] SGCA 30 (“Datchinamurthy”) and Khartik Jasudass and another v Public Prosecutor [2021] SGCA 13 (“Khartik”), the applicants in those cases similarly brought leave applications on the basis that the s 18(2) presumption was not open to the Prosecution as the Prosecution’s case at the trial had purportedly been based on wilful blindness rather than on actual knowledge. Both of those leave applications failed because this court found in those cases that the Prosecution’s cases and the court’s decisions were in fact based on actual knowledge and not on wilful blindness.

3 To succeed in a leave application under s 394H of the CPC, the application must disclose a legitimate basis for the exercise of this court’s power of review. The court hearing such a leave application would have to consider the requirements set out in s 394J of the CPC. In particular, under s 394J(2), there must be (a) “sufficient material on which the appellate court may conclude” that (b) there has been “a miscarriage of justice” (Datchinamurthy at [21]–[22]). These have come to be known as the “sufficiency” and “miscarriage of justice” requirements respectively, and I shall refer to them in this judgment as such. The present case presents a suitable opportunity for this court to examine and clarify the contours of these requirements and the respective roles they play in the leave application.

4 The factual background of Rahmat (CA) is relatively straightforward. At the material time, Rahmat was employed as a runner for one “Kanna Gila” (“Kanna”) who was in the business of illegal money-lending. Rahmat had known Kanna for a period of less than two months prior to his arrest.

5 On 27 May 2015, sometime before 6.51pm, Rahmat entered Singapore from Malaysia via the Woodlands Checkpoint in a car. He was with his wife and their three children. Pursuant to Kanna’s earlier instructions, after entering Singapore, Rahmat drove to Rochor Road where he met up with a male subject known as “Bai”, who instructed Rahmat to meet Zainal bin Hamad (“Zainal”) at the IKEA store located in Tampines, Singapore (“IKEA”). Rahmat was known to Zainal as “Abang” and Zainal was known to Rahmat as “26”.

6 Rahmat and Zainal then met at the staircase on the second level of IKEA. At about 8.35pm, Zainal passed S$8,000 to Rahmat. After which, Rahmat placed a green bag (“Bag”) at the staircase landing in front of Zainal before leaving IKEA. Rahmat then met up with his wife and children and drove the car with his family to Woodlands Checkpoint. At the checkpoint, Rahmat and his wife were arrested by officers of the Central Narcotics Bureau (“CNB”). Rahmat’s wife was searched, and S$8,000 was found concealed in her brassiere. Rahmat had passed the S$8,000 he received from Zainal to his wife and had told her to conceal it in her brassiere whilst they were en route to Woodlands Checkpoint.

7  Zainal thereafter picked up the Bag and placed it in a warehouse located on the second floor of IKEA. At about 9.25pm, CNB officers entered the warehouse and arrested Zainal. The Bag was found to contain one red coloured plastic bag containing three plastic packets of 1381.7g of granular/powdery substance (the “Drugs”). The Drugs were subsequently found to contain not less than 53.64g of diamorphine, a controlled drug. Neither Rahmat nor Zainal were authorised under the MDA or the Regulations made thereunder to traffic or be in possession of a controlled drug.

8 Rahmat was jointly tried with Zainal before the Judge. Zainal was charged with having not less than 53.64g of diamorphine in his possession for the purpose of trafficking under s 5(l)(a) read with s 5(2) and punishable under s 33(1) of the MDA, while Rahmat was charged with trafficking in not less than 53.64g of diamorphine under s 5(1)(a) and punishable under s 33(1) of the MDA.

9 At the trial, the Prosecution had run three arguments in its closing submissions: (a) Rahmat could not rebut the s 18(2) presumption of knowledge; alternatively, (b) Rahmat was either wilfully blind or (c) had actual knowledge that the Bag contained diamorphine. Rahmat’s defence was that he believed that he was carrying medicine.

10 The Judge convicted Zainal and Rahmat of their respective charges and imposed the mandatory sentence of death on them, as no certificate of substantive assistance was provided. The Judge’s decision is reported in Public Prosecutor v Rahmat bin Karimon and another [2018] 5 SLR 641 (“Rahmat (HC)”). The Judge noted that the Prosecution’s primary case was that Rahmat could not rebut the s 18(2) presumption of knowledge (Rahmat (HC) at [15]). The Judge also noted that the Prosecution had run an “alternative” case that Rahmat was “either wilfully blind or had actual knowledge of the nature of the Drugs” (Rahmat (HC) at [16]). The Judge found that Rahmat failed to rebut the s 18(2) presumption (Rahmat (HC) at [60]); and that actual knowledge and wilful blindness had been separately proven beyond a reasonable doubt (Rahmat (HC) at [61] and [65] respectively).

11 On 11 September 2018, the Court of Appeal dismissed both Zainal’s and Rahmat’s appeals against conviction, and delivered its grounds of decision (“GD”) in Rahmat (CA) on 3 October 2018. There is no suggestion in this application that the Court of Appeal’s GD in Rahmat (CA) had inaccurately recorded the parties’ respective cases. While Rahmat challenged all three aspects of the Judge’s findings in his written submissions, for the appeal hearing, he chose, as it was his prerogative, to focus on his sole defence that the s 18(2) presumption of knowledge had been rebutted. This was explicitly noted in Rahmat (CA) at [30]. On this basis, the Court of Appeal held that Rahmat had failed to rebut the s 18(2) presumption of knowledge (Rahmat (CA) at [36]).

12 On 21 January 2020, an order under s 313(f) of the CPC was issued by the President of the Republic of Singapore for the sentence of death pronounced on Rahmat to be carried into effect on 14 February 2020. Pursuant to s 313(g) of the CPC, a warrant was then issued by the Chief Justice authorising and requiring the Commissioner of Prisons to carry the sentence of death into execution. On 11 February 2020, the President of the Republic of Singapore, in accordance with Art 22P(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) and s 313(h) of the CPC, ordered a respite of the execution of the said warrant pending any further order.

13 On 20 February 2020, the Court of Appeal granted leave to the applicant in Gobi to make a criminal review application. On 19 October 2020, the Court of Appeal’s decision on the criminal review application in Gobi was delivered. Following the Court of Appeal’s decision in Gobi, the Attorney-General’s Chambers wrote to Rahmat’s counsel, Mr Jason Chan SC (“Mr Chan”), on 2 December 2020, stating that, in view of Gobi, the Prosecution was of the view that it would be “prudent” for Rahmat to “undertake [his] own review of the record of proceedings” to consider how, if at all, the decision in Gobi could affect him. Rahmat then filed the present criminal motion on 21 April 2021. Under s 394H(6)(a) of the CPC, such a leave application is to be heard by a single Judge sitting in the Court of Appeal where the appellate court in question is the Court of Appeal. It is on this basis that I am determining this leave application.

14 It first bears emphasis that the review process is directed at the earlier decision of the appellate court, ie, the decision of the Court of Appeal in Rahmat (CA): see ss 394F(1), 394G(1) and 394J(5) of the CPC. The focus of any application for leave to commence a review application should, thus, be on the relevant appellate court’s decision, which is the decision that must be shown to be demonstrably wrong to establish a miscarriage of justice (Datchinamurthy at [25]).

15 Following the seminal decision in Kreetharan s/o Kathireson v Public Prosecutor and other matters [2020] 2 SLR 1175 at [17], it is now settled that an application for leave to commence a review application under s 394H of the CPC must disclose a “legitimate basis” for the exercise of the court’s power of review. This requires a consideration of the requirements set out in s 394J of the CPC, including the sufficiency and miscarriage of justice requirements.

16 For the material to be “sufficient”, it must satisfy all the requirements set out in ss 394J(3)(a) to 394J(3)(c): (a) before the filing of the application for leave to make the review application, the material has not been canvassed at any stage of the said criminal matter; (b) the material could not have been adduced in court earlier even with reasonable diligence; and (c) the material is compelling, in that it is reliable, substantial, powerfully probative and capable of showing almost conclusively that there has been a miscarriage of justice in the said criminal matter. Where the material consists of legal arguments, s 394J(4) imposes an additional requirement that it must be based on a change in the law that arose from any decision made by a court after the conclusion of all proceedings relating to the said criminal matter (see also Datchinamurthy at [21] to [22]). It is not disputed in this case that the decision in Gobi was made after the conclusion of Rahmat (CA) (see [11] and [13] above).

17 It should, however, be highlighted that the mere fact that there has been a change in the law does not, in and of itself, justify the reopening of a concluded criminal appeal (Gobi at [26]). This is where the miscarriage of justice requirement is material. It is not necessary for the court to conclude that there has in fact been a miscarriage of justice. There only needs to be sufficient material on which the court “may” conclude that there has been a miscarriage of justice. That being said, the court may only come to that conclusion if the decision in the criminal appeal that is sought to be reopened is “demonstrably wrong” (see s 394J(5)(a), CPC), in that the court finds it apparent, based only on the evidence tendered in support of the review application and without any further inquiry, that there is a “powerful probability” – and not just a “real possibility” – that that decision is wrong (see ss 394J(6)(a) and 394J(6)(b), CPC). Alternatively, the court may conclude that there has been a miscarriage of justice if the earlier decision is “tainted by fraud or a breach of the rules of natural justice” (see s 394J(5)(b), CPC).

18 Rahmat submits that the Prosecution’s entire case at the trial, including its arguments on the s 18(2) presumption, was “in substance” based on wilful blindness in the “extended” sense, which is a mental state that is factually short of actual knowledge because the accused did not in fact know the true position but sufficiently suspected it and deliberately refused to investigate, even though he could have done so, in order to avoid confirmation of his own suspicions. This is to be contrasted with wilful blindness in the “evidential” sense, which is inferred actual knowledge (see Adili Chibuike Ejike v Public Prosecutor [2019] 2 SLR 254 (“Adili”) at [41]–[50] in the context of s 18(1) of the MDA, which was subsequently applied to s 18(2) of the MDA in Gobi at [98(c)]). In this judgment, I shall refer to wilful blindness in the “extended” sense simply as “wilful blindness”.

19 Rahmat submits that, following Gobi, the Prosecution’s case on Rahmat’s wilful blindness must be proven beyond reasonable doubt, and the Prosecution could not have recourse to the s 18(2) presumption. Rahmat submits that this is because the Court of Appeal in Gobi held at [56] that “the doctrine of wilful blindness … should not feature in the analysis of whether the s 18(2) presumption has been rebutted” [emphasis added]. Rahmat’s case is that this change in the law brought about by Gobi is not confined to only preclude the Prosecution from relying on the s 18(2) presumption to presume wilful blindness. Rahmat’s counsel, Mr Chan, seeks to persuade this court that the holding in Gobi at [56] extends to preclude the doctrine of wilful blindness from featuring in the analysis on the applicability of the presumption irrespective of whether the presumption was in fact relied on to presume wilful blindness.

20 The Prosecution submits that its case at the trial and on appeal was based on actual knowledge. The s 18(2) presumption was relied on to presume actual knowledge. Likewise, wilful blindness was relied on in the “evidential sense”, ie, inferred actual knowledge, to demonstrate that Rahmat had actual knowledge of the drugs.

21 The principal issue in this application is whether there is a legitimate basis for the court to exercise its power of review. To determine this, it is necessary to examine whether the sufficiency and miscarriage of justice requirements have both been satisfied. The present application provides an apt occasion to clarify the sufficiency requirement under s 394J(2) of the CPC.

22 The first important point to note regarding s 394J(2) of the CPC is that, while it is conceptually neat to analyse the sufficiency and miscarriage of justice requirements as two discrete elements, it is also important to bear in mind that, ultimately, s 394J(2) lays down a composite requirement. This is why s 394J(3)(c) mandates that the new material is only sufficient if it is “capable of showing almost conclusively that there has been a miscarriage of justice” [emphasis added].

23 This leads to the next important question: how does the court assess if a change in the law is “capable of showing” that there has been a miscarriage of justice in any given case? It appears from the earlier cases that the court has taken different paths to address this issue.

24 In Gobi, Tay Yong Kwang JCA summarily allowed the leave application without written grounds. As such, his specific approach to the twin requirements is not apparent from his decision. However, in Gobi, it was clear that the Court of Appeal’s decision in Adili in relation to the doctrine of wilful blindness under s 18(1) of the MDA would be relevant, at least prima facie, to show that the Prosecution should not have been permitted to invoke the presumption under s 18(2) at the trial when its case there was run on the basis of wilful blindness, and so it was never put to the accused that he did not believe that the drugs in his possession were “disco drugs” mixed with chocolate and not diamorphine. By the time of the appeal, the Prosecution ran its case on the basis of actual knowledge but it was not pointed out to the court either by the Prosecution or the Defence at the appeal that the accused had not been challenged at the trial on this point. Therefore, in Gobi, the change in the law brought about by Adili was clearly prima facie relevant to affect the decision in the original appeal in Gobi and thus capable of showing almost conclusively that there has been a miscarriage of justice.

25 In Khartik, the applicant only challenged the trial judge’s, as opposed to the Court of Appeal’s, findings. This was perhaps understandable since the Court of Appeal did not issue a judgment. As pointed out in Khartik at [8], the Court of Appeal in dismissing the appeal merely stated that there was no reason to disturb the trial judge’s finding that the accused had failed to rebut the s 18(2) presumption. In opposing the leave application, the Prosecution submitted that the sufficiency requirement was not satisfied (Khartik at [11]). Tay JCA found the applicant’s attempt to “recast” the judge’s finding to be one of wilful blindness to be unmeritorious. Tay JCA found that the Prosecution’s case at the trial was one of actual knowledge of the nature of the drugs and held at [28] and [32] of Khartik that the miscarriage of justice requirement was not satisfied.

26 In Datchinamurthy, Chao Hick Tin SJ explicitly noted that the Prosecution did not dispute that the legal principles articulated in Gobi would constitute “sufficient” material” (Datchinamurthy at [26]). In other words, it was common ground between the parties that the sufficiency requirement was satisfied. On this basis, Chao SJ considered that the “central issue” was whether there was a miscarriage of justice. To determine this issue, Chao SJ considered (a) the Prosecution’s case at the trial; (b) the trial judge’s decision; and (c) the Court of Appeal’s decision, though Chao SJ stressed that the miscarriage of justice must arise from the Court of Appeal’s decision, rather than the decision of the trial judge (Datchinamurthy at [34]). Chao SJ dismissed the leave application as he found that the Prosecution’s case at the trial, the trial judge’s decision, and the Court of Appeal’s decision had all been based on actual knowledge (specifically, the s 18(2) presumption to presume actual knowledge) rather than wilful blindness short of actual knowledge (Datchinamurthy at [28], [40], [43] and [49]). In short, the application was dismissed for failing to satisfy the “miscarriage of justice” requirement.

27 Khartik and Datchinamurthy share one significant common denominator with the present application. They all claimed that the Prosecution’s case at the trial and the ensuing decisions were premised on the reliance of the s 18(2) presumption to presume wilful blindness.

28 In my judgment, it is clear from the text of s 394J(3)(c) of the CPC that the sufficiency requirement has a relevancy threshold, ie, the change in the law must be prima facie relevant to show that the appellate court’s decision is demonstrably wrong. This is because s 394J(3)(c) mandates that the new material must be “capable of showing almost conclusively that there has been a miscarriage of justice” [emphasis added]. This must be so because, if the new material is not relevant to the application, it would necessarily be incapable of showing conclusively that there has been a miscarriage of justice. Mr Chan accepted this at the hearing before me. The sufficiency requirement is not limited to examine the probative weight of the new material because, if it were otherwise, any change of law would invariably satisfy the sufficiency requirement since any such change would by definition be “reliable” and “powerfully probative”. This can be illustrated, for instance, by considering hypothetically if Rahmat had relied on the change in the law brought about by Ramesh a/l Perumal v Public Prosecutor and another appeal [2019] 1 SLR 1003 (“Ramesh”), which held that a bailee’s act of returning drugs to a supplier would not be considered drug trafficking. Since Rahmat (CA) did not concern a bailee situation at all, the change of the law brought about by Ramesh would have no prima facie relevance to the leave application. In my view, Rahmat has to show that the change in law brought about by Gobi is prima facie relevant to affect or disturb the appellate court’s findings in Rahmat (CA). It is thus imperative for Rahmat to demonstrate that the Judge and the Court of Appeal had relied on the s 18(2) presumption to presume wilful blindness in finding that the presumption had not been rebutted.

29 In my judgment, Rahmat has failed to show any prima facie relevance of the decision in Gobi to affect the decision in Rahmat (CA). To determine if Gobi is relevant, it is of vital importance to examine the Court of Appeal’s decision in Rahmat (CA). In particular, did the Court of Appeal rely on s 18(2) of the MDA to presume wilful blindness, which is now impermissible following Gobi?

30 In this connection, it is essential to examine how Rahmat has relied on Gobi to mount his leave application. He relies principally on [56] of Gobi, which I shall set out below in full:

31 The key holding at [56] of Gobi is that s 18(2) cannot be used to presume wilful blindness. Mr Chan submits that [56] of Gobi also imports a separate prohibition in that wilful blindness “should not feature” in the analysis of whether the s 18(2) presumption has been rebutted. However, the point that wilful blindness should not “feature” in the analysis of whether s 18(2) is rebutted is merely a corollary of the main holding that s 18(2) cannot be invoked to presume wilful blindness. In other words, [56] of Gobi holds that, if the Prosecution cannot rely on s 18(2) to presume wilful blindness, then wilful blindness should not feature in its analysis of s 18(2). These two points are, essentially, two sides of the same coin. This is why that sentence at [56] of Gobi is preceded with the observation that the doctrine of wilful blindness “is therefore irrelevant to and should not feature” in the s 18(2) analysis [emphasis added].

32 Bearing this in mind, this application can only succeed if Rahmat can show that the Court of Appeal had relied on s 18(2) to presume wilful blindness. However, a plain review of Rahmat (CA) will reveal that the Court of Appeal’s dismissal of Rahmat’s appeal was based on its finding that the s 18(2) presumption of actual knowledge had not been rebutted:

33 Unlike Gobi, where the trial was run on the basis of wilful blindness while the case on appeal was run on the basis of actual knowledge, here the Judge found that the presumption of actual knowledge under s 18(2) had not been rebutted by Rahmat in addition to wilful blindness. Tellingly, Rahmat had approached his appeal on the basis that he had rebutted the s 18(2) presumption of knowledge, as is clear from [30] of the GD in Rahmat (CA). Thus, this application is a non-starter and Rahmat’s arguments on the potential application of Gobi to Rahmat (CA) are entirely misconceived.

34 It bears mention that the Prosecution’s case on appeal was in response to Rahmat’s case, which focused on the Judge’s findings that the s 18(2) presumption of actual knowledge had not been rebutted (Rahmat (CA) at [30]; see [32] above). As explained above, it is of paramount importance to first identify what the presumption was used for. As it was relied on by the Prosecution to presume actual knowledge and not wilful blindness, the change in the law in Gobi would have no relevance at all to the leave application.

35 Consistent with Rahmat’s case on appeal in seeking to rebut the presumption of knowledge, the Prosecution in response submitted that Rahmat could not rebut the s 18(2) presumption (which was used to presume actual knowledge) or that Rahmat had actual knowledge of the nature of the drug. This is evident from the following paragraphs of the Prosecution’s appeal submissions:

36 Paragraphs 121 and 122 of the Prosecution’s appeal submissions are of particular significance as they clearly show that the Prosecution’s primary case was based on actual knowledge: the Prosecution’s acceptance that Rahmat did not check the contents of the bag was not to show that Rahmat did not know what was in the bag; on the contrary, the Prosecution’s case was that Rahmat did not check the contents of the bag because he already knew what it contained, viz, diamorphine. Paragraph 132 also shows that the Prosecution had submitted that Rahmat’s claim that he had turned a blind eye was “inherently incredible”, ie, the Prosecution did not accept this as the truth, and that the Judge was right to reject Rahmat’s account.

37 Therefore, it is clear that the Court of Appeal’s decision in Rahmat (CA) was based on the appellant’s failure to rebut the s 18(2) presumption of actual knowledge, and that both the Prosecution and Rahmat had approached the appeal on the same basis.

38 In this application, as was the case in Khartik, Rahmat devotes his focus to the Prosecution’s case at the trial. However, as was emphasised recently in Datchinamurthy (see [14] above), it should not be overlooked that the decision being challenged in a criminal review application is the appellate court’s decision. The Prosecution’s case at the trial and the trial judge’s decision are only relevant to the extent that they inform the context behind the appellate court’s decision. The Prosecution’s case at the trial and the trial judge’s holding would bear significance where the Prosecution had changed its case from the trial to appeal, as was the case in Gobi, because the change in the Prosecution’s case (from one of wilful blindness at the trial to actual knowledge on appeal) might prejudice the accused person. This was not the case here as shown below.

39 The Prosecution’s primary case at the trial was likewise based, inter alia, on actual knowledge, specifically, that the s 18(2) presumption of knowledge had not been rebutted.

40 In Adili and Gobi, as the Prosecution had accepted at the trial that the accused did not know that the delivered package contained drugs or had not challenged the accused on his claim that he did not know the nature of the drug, it followed that it was no longer open to the Prosecution to either prove actual knowledge or rely on the presumption to presume actual knowledge. In that situation, the Prosecution was limited to only one remaining basis to prove the charge – proof of wilful blindness and, in that respect, reliance on the presumption was precluded.

41 Mr Chan, in his effort to draw a parallel with Adili and/or Gobi, relied on the Prosecution’s put to Rahmat that “all [his] statements to IO Shafiq [ie, the investigation officer who took Rahmat’s statements] were accurately recorded”, and, in Rahmat’s cautioned statement recorded by IO Shafiq, Rahmat had stated that “[he] really [did not] know what was inside the bag.” However, unlike Adili and Gobi, the put question was to the effect that Rahmat’s statements were accurately recorded and not that his statements were true. I agree with the Prosecution that the main reason it was put to Rahmat that his statements were recorded accurately was because Rahmat had claimed at the trial that there were inaccuracies in the statement recording and that his court testimony should be preferred. It was in that context that the Prosecution put to Rahmat that he had, inter alia, lied in his contemporaneous statements about receiving S$8,000 from Kanna, instead of Zainal, so as to distance himself from the transaction. The put question to Rahmat that he had lied in his contemporaneous statement would put paid to Rahmat’s submission that the Prosecution had accepted his statements to be true. It was thus misleading for Rahmat to suggest that, because it was put to Rahmat that the statements were accurately recorded, the Prosecution had therefore accepted the truth of his statements in particular that he did not know the contents in the bag.

42 The Prosecution’s trial submissions also make it clear that its primary case was that the s 18(2) presumption of knowledge had not been rebutted, and that its case on wilful blindness (which was not based on the s 18(2) presumption) was an alternative case.

(a) At paragraph 24, the Prosecution’s case was that “Rahmat had failed to rebut the presumption of knowledge given the suspicious circumstances surrounding the collection and subsequent delivery of the Drugs to Zainal” [emphasis added].

(b) At paragraph 32, the Prosecution submitted that “Rahmat has given wildly inconsistent accounts” and his “bare allegation” that he was delivering medicine “is insufficient to surmount the threshold to rebut the s 18(2) MDA presumption” and “close scrutiny of the suspicious circumstances of the transaction will reveal that he was either wilfully blind or had in fact, actual knowledge of the heroin that was delivered to Zainal” [emphasis added]. The emphasised portion of the foregoing line shows clearly, as the Judge had pointed out (see [10] above), that the Prosecution’s case on wilful blindness was alternative to its primary case relying on s 18(2) to presume actual knowledge.

43 Notwithstanding the clear direction of the Prosecution’s submissions at the trial, Rahmat submits that the Prosecution had “featured” wilful blindness in its analysis on s 18(2) in its trial closing submissions at paragraph 36:

44 Mr Chan focused on the fact that the Prosecution had approached its analysis on s 18(2) “in conjunction with the arguments pertaining to the display of wilful blindness”. However, this sentence has to be seen in its proper context. The line immediately preceding states that “[t]he veracity of Rahmat’s bare assertion is highly suspect given the apparent and callous disregard as to the nature of the items he was carrying” [emphasis added]. The Prosecution’s submissions on wilful blindness were focused on Rahmat’s inconsistent and unbelievable accounts. Therefore, the allusion to the Prosecution’s arguments on wilful blindness at [43] above was made with reference to Rahmat’s incredible and inconsistent defence. Indeed, this was also how the Judge approached the s 18(2) analysis, as he found that Rahmat was unable to rebut the s 18(2) presumption of knowledge because his account was inconsistent and incredible (see Rahmat (HC) at [49] and [58]). The Judge’s analysis in this regard was also explicitly noted by the Court of Appeal in Rahmat (CA) at [32].

45 It appears to me that Rahmat’s application is essentially mounted on an ill-conceived argument by selectively choosing one aspect of the Prosecution’s case at the trial, ie, proof of wilful blindness, and thereafter juxtaposing that argument against another separate and independent argument based on the presumption of knowledge under s 18(2). In so doing, he conflated two distinct arguments into one. This juxtaposition is fatally flawed because the Prosecution’s reliance on the s 18(2) presumption was, in any event, to presume actual knowledge and not wilful blindness. What Rahmat has effectively sought to do is to reconstruct the Prosecution’s case at the trial and in so doing recast the decision of the Judge in order to invoke the change of the law in Gobi so as to persuade this court that there is compelling new material to demonstrate a miscarriage of justice. As alluded to at [33] above, Rahmat was clearly cognisant that s 18(2) was relied on to presume actual knowledge and, significantly, he had sought to rebut the s 18(2) presumption of knowledge at the trial and on appeal.

46 In the circumstances, there can be no basis to show that Gobi is “capable” of showing almost conclusively that there has been a miscarriage of justice in the court’s decision in Rahmat (CA).

47 Accordingly, I find that the sufficiency requirement has not been satisfied. There is thus no question of any miscarriage of justice. Consequently, the application is dismissed.