Criminal Procedure, Evidence and Sentencing

AuthorLEE Lit Cheng LLB (Hons) (National University of Singapore), LLM (London); Advocate and Solicitor (Singapore); Deputy Senior State Counsel/Deputy Public Prosecutor, The Attorney-General’s Chambers.
Published date01 December 2008
Date01 December 2008
Vexatious litigant

12.1 The Attorney-General in AG v Tee Kok Boon[2008] 2 SLR 412 made an unprecedented application pursuant to s 74(1) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (‘SCJA’) for an order to restrain the respondent from instituting legal proceedings without the leave of the High Court.

12.2 The respondent had been convicted in the District Court of a charge of giving false evidence under s 193 of the Penal Code (Cap 224, 1985 Rev Ed) and was sentenced to ten months” imprisonment. He had filed a magistrate”s appeal against his conviction to the High Court. By the time his appeal was heard, he had also filed two criminal motions: the first was an application to amend his original petition of appeal to include an additional ground, and the other was an application to adduce fresh evidence at the appeal. His appeal was heard and dismissed.

12.3 After the respondent had served his sentence, he filed a criminal motion for an extension of time to apply for certain questions of law of public interest to be reserved for the decision of the Court of Appeal pursuant to s 60(1) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed). As it turned out, the respondent sought to refer 11 alleged points of law which were subdivided into almost 40 alleged questions of law, none of which was of public interest. In fact, many of the questions raised were questions of fact relating to the charge which he was convicted of and the issues had already been dealt with at his trial and the appeal which was dismissed by the High Court. That application was dismissed by the Court of Appeal.

12.4 The respondent had also filed a criminal revision in the High Court seeking a revision of his conviction and sentence by the District Court. This was dismissed by the High Court on the ground that it does not have revisionary power over a decision of the subordinate courts

which has already been upheld by the High Court on appeal. Notwithstanding the dismissal of his application for revision, the respondent promptly proceeded to file another application in the High Court, once again, seeking a revision of his conviction and sentence as well as to cause the Attorney-General to investigate a certain aspect of the case. When this was also dismissed by the High Court, the respondent attempted to file an appeal against the dismissal of the second criminal revision but it was not processed due to a defect with the notice of appeal. Thereafter, the respondent filed yet another criminal motion to seek leave to appeal to the Court of Appeal (‘CM 10/2007’).

12.5 The High Court allowed the Attorney-General”s application and exercised its powers under s 74(1) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) and ordered that:

no criminal legal proceedings shall, without the leave of the High Court, be instituted by [the respondent] with respect to his conviction for an offence under s 193 of the Penal Code and any criminal legal proceedings instituted by him in any court with respect to the said conviction before the making of this order, including CM 10/2007 filed in the High Court, shall not be continued by him without such leave, and such leave shall not be given unless the High Court is satisfied that the proceedings are not an abuse of the process of the court and that there is prima facie ground for the proceedings.

12.6 Justice Woo Bih Li agreed with the then Solicitor-General, Professor Walter Woon, that s 74(1) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) applied to criminal proceedings and to interlocutory proceedings. It was also held that the provision covered proceedings in the Court of Appeal.

12.7 Section 74(1) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) comes into play only when the litigant has ‘habitually and persistently and without any reasonable ground instituted vexatious legal proceedings’. Woo Bih Li J (AG v Tee Kok Boon[2008] 2 SLR 412 at [105]) accepted the following definitions adopted by Hoeben J in Attorney-General v Betts[2004] NSWSC 901:

Habitually suggests that the institution of such proceedings occurs as a matter of course, or almost automatically when the appropriate conditions (whatever they may be) exist;

Persistently suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness.

12.8 As for the meaning of ‘vexatious’, Woo Bih Li J accepted (AG v Tee Kok Boon[2008] 2 SLR 412 at [105]) that proceedings are vexatious ‘if they are instituted with the intention of annoying or embarrassing the person against whom they are brought’. They are also vexatious ‘if

they are brought for collateral purposes and not for the purpose of having the court adjudicate on the issues to which they give rise’ and ‘if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless’: at [105].

12.9 In the present case, looking at the proceedings that the respondent has undertaken after the dismissal of his Magistrate”s appeal, Woo Bih Li J held that the respondent has habitually and persistently and without any reasonable ground instituted vexatious proceedings. He had simply refused to accept the finality of the decision in the Magistrate”s appeal. It was irrelevant whether the respondent sincerely believed in the justice and correctness of his cause.

Judicial interference — Descending into the arena

12.10 It appears that the complaint about judges ‘descending into the arena’ gained some prominence following Menon JC”s decision in Re Shankar Alan s/o Anant Kulkarni[2007] 1 SLR 85. Hot on the heels of that case came Ng Chee Tiong Tony v PP[2008] 1 SLR 900 where Lee Seiu Kin J quashed a conviction on the basis that the trial court had failed to discharge its judicial function because it had assumed an inquisitorial role by descending into the arena as to impair its judgment and ability to properly evaluate and weigh the evidence as to render the trial unfair: see (2007) 8 SAL Ann Rev 205 at 205—206, paras 12.1—12.5.

12.11 Lest it be thought that judicial interference can become ‘an avenue … for unsuccessful litigants to attempt to impugn the decision of the judge concerned’, the Court of Appeal in Mohammed Ali bin Johari v PP[2008] 4 SLR 1058 at [175] sounded the timely reminder that the court will only find that there has been excessive judicial interference if the situation is an egregious one and such cases will necessarily be rare. Parties and their counsel should only invoke such an argument where it is clearly warranted on the facts. Any attempt to rely on excessive judicial interference as a ground to challenge the decision of a judge without sound basis is a flagrant abuse of process and will not be tolerated by the court.

12.12 Mohammed Ali bin Johari v PP [2008] 4 SLR 1058 (‘Nonoi”s case’) involved the killing of a two-year-old girl, known as Nonoi, by her stepfather. The appellant appealed against his conviction for a charge of murder. One of the grounds of appeal was that the trial judge had engaged in excessive judicial interference by descending into the arena frequently to express his views on how the Prosecution should conduct its case and the evidence required by the Prosecution to prove its case. In particular, counsel for the appellant relied on various parts of the notes of evidence showing that the trial judge had urged the

Prosecution to call certain witnesses to deal with the other possible causes of death proffered by the Defence.

12.13 The Court of Appeal”s judgment contains a detailed and excellent survey of the relevant local and foreign cases, as well as academic articles and speeches by judges on the topic of judicial interference. The applicable principles were distilled and summarised at Mohammed Ali bin Johari v PP[2008] 4 SLR 1058 at [175]. Given that our system under the common law is an adversarial one, examination and cross-examination of witnesses are primarily the responsibility of counsel. However, the judge is not obliged to remain silent. It is recognised that there are benefits to having the judge ask questions of witnesses and counsel, for example, to clarify a point that has been overlooked, to enable the judge to follow the points made by counsel, to exclude irrelevancies or repetitions, to prevent undue evasion by witnesses, or to allow counsel to be aware of what is troubling the judge. Ultimately, the critical question to be asked in each case is ‘whether or not there has been the possibility of a denial of justice to a particular party (and, correspondingly, the possibility that the other party has been unfairly favoured)’: at [175(d)].

12.14 Applying the principles to the present case, the Court of Appeal found that the trial judge was largely concerned that all possible causes of death were explored and that evidence was admitted in a proper manner. The Court of Appeal found that it was beyond the shadow of a doubt that the trial judge did not conduct the proceedings in a manner which suggested that there had been the possibility of a denial of justice to a particular party. It was, therefore, held that the appeal against the conviction on the ground of excessive judicial interference failed.

Criminal revision

12.15 It is well established that the High Court”s power of revision under s 266 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) is to be exercised sparingly where there is a glaring defect in the procedure or where there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice: Ang Poh Chuan v PP[1996] SLR 326 (approved by the Court of Appeal in Ng Chye Huey v PP[2007] 2 SLR 106).

12.16 The requirements of an error coupled with grave and serious injustice were also highlighted in Knight Glenn Jeyasingam v PP[1999] 3 SLR 362. Yong Pung How CJ in that case further elaborated that...

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