Criminal Procedure, Evidence and Sentencing

Citation(2006) 7 SAL Ann Rev 221
Published date01 December 2006
Date01 December 2006
CRIMINAL PROCEDURE
Jurisdiction of the Court of Appeal

12.1 A number of interesting cases went before the Court of Appeal that necessitated the consideration by the court of the scope of its jurisdiction. In the first case, Koh Zhan Quan Tony v PP[2006] 2 SLR 830, the Court of Appeal considered the issues relating to the circumstances under which it is functus officio and the scope of its appellate jurisdiction. In the next two cases, Kiew Ah Cheng David v PP[2007] 1 SLR 1188 and Ng Chye Huey v PP[2007] 2 SLR 106, the court examined the extent of its appellate and revisionary jurisdiction.

12.2 The applicants in Koh Zhan Quan Tony v PP were charged with murder under s 302 read with s 34 of the Penal Code (Cap 224, 1985 Rev Ed). At the close of the trial, the High Court convicted them under the lesser charge of robbery with hurt (s 394 of the Penal Code) (see [2005] 2 SLR 130). On appeal by the Prosecution (Criminal Appeal No 2 of 2005), they were convicted by the Court of Appeal of the original murder charges and sentenced to death.

12.3 After the appeal was over, the applicants filed motions to the Court of Appeal arguing that their conviction of the lesser charges of robbery with hurt did not amount to an acquittal and therefore the Court of Appeal did not have jurisdiction under s 44(3) of the Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed) (‘SCJA’) to hear the appeal.

12.4 At the motion, the prosecution took preliminary objection to the application on the ground that the Court of Appeal had no jurisdiction to hear the motion since, having dealt with the appeal in Criminal Appeal No 2 of 2005, the court was functus officio.

12.5 On the first issue whether the Court of Appeal had jurisdiction to hear the motion after it had already dealt with the substantive merits of the appeal, the court held that it did. The issue raised by the applicants in the

motion ought to have been raised and considered as a preliminary point of law in Criminal Appeal No 2 of 2005. If that had been done, it was clear that the Court of Appeal had the jurisdiction to determine the issue of whether it had the jurisdiction under s 44(3) of the SCJA to hear the appeal. As the issue was not raised and the court had not made a ruling on it at the appeal, the Court of Appeal held that it was not functus officio in so far as this issue of jurisdiction was concerned. In addition, the principle of estoppel does not apply to bar the applicants from raising the argument that the earlier proceedings were conducted in excess of the jurisdiction of the court. This is because as a matter of general principle, estoppel cannot be pleaded to ‘cure’ a decision by a court without jurisdiction as such a decision is essentially a nullity.

12.6 In addition, the Court of Appeal also found that it had the power to hear the motion by virtue of s 29A(4) of the SCJA.

12.7 It appears that the Court of Appeal regarded the hearing of the motion as a continuation of the earlier appeal as the court observed at [28] that the hearing of the motion was, ‘in substance, an integral part of the proceedings before [the Court of Appeal] in Criminal Appeal No 2 of 2005’ and ‘continue[d] to constitute “a case before the Court”’. Therefore, in relation to the issue of the Court of Appeal”s jurisdiction to hear the appeal, it was held that the Court of Appeal was not functus officio and could still deal with it even after the appeal was over. However, in relation to the substantive merits of the case, the court emphasised that it was functus officio and had no jurisdiction to review its previous decision.

12.8 It is trite law that once the Court of Appeal has heard and rendered judgment in an appeal, it is functus officio as far as that appeal is concerned: see Lim Choon Chye v PP[1994] 3 SLR 135 at [8], Abdullah bin A Rahman v PP[1994] 3 SLR 129 at 132 and Vignes s/o Mourthi v PP (No 3)[2003] 4 SLR 518 at [4] to [8]. The reason given in those judgments as to why the Court of Appeal cannot re-open a case is that there are no express statutory provisions which afford the Court of Appeal the jurisdiction to do so. The Court of Appeal has on many occasions acknowledged that it is a creature of legislation and that its jurisdiction must necessarily be defined solely by and limited to the provisions of the SCJA: see, for example, Wong Hong Toy v PP[1984—1985] SLR 293 (‘Wong Hong Toy (No 1)’) at 304, Mohamed Razip v PP[1987] SLR 142 at 143, Wong Hong Toy v PP[1994] 2 SLR 396 (‘Wong Hong Toy (No 2)’) at 405, Abdullah bin A Rahman v PP[1994] 3 SLR 129 at 132 and Microsoft Corporation v SM Summit Holdings[2000] 2 SLR 137 at [16]. In Ng Chye Huey v PP, the Court of Appeal also emphasised at [17] that

‘[a] jurisdiction-conferring provision, whether derived from the SCJA or elsewhere, is an essential and indispensable prerequisite that an applicant before this court must have as a legal basis upon which to canvass the substantive merits of his or her application’ so as to ensure ‘the orderly conduct of litigation in our courts’.

12.9 While the cases above dealt with attempts to re-open the appeal to consider the substantive merits of the case and may be distinguished on that ground, it may be argued that one must still find the legislative provisions that confer upon the Court of Appeal the jurisdiction to re-open an appeal to consider the issue of its jurisdiction to hear the appeal. It is not clear from the judgment in Koh Zhan Quan Tony v PP what the statutory basis is for deciding that the Court of Appeal has the jurisdiction to re-open an appeal to determine the issue of its jurisdiction to hear the appeal.

12.10 Moving on to the second issue as to whether the Court of Appeal had jurisdiction under s 44(3) of the SCJA to hear the appeal in Criminal Appeal No 2 of 2005, the spotlight fell on the meaning of the phrase ‘the acquittal of an accused person’ in the subsection. In this regard, the applicants argued that they had in fact not been acquitted but convicted of the charges of robbery with hurt.

12.11 The applicants” argument did not go far as the court held that the fact that the applicants had been convicted of the lesser charges of robbery with hurt did not detract from the fact that they had been acquitted of the charges of murder. In the circumstances, the Prosecution”s appeal was clearly within the scope of s 44(3) of the SCJA and there was no doubt that the Court of Appeal had the jurisdiction to hear the appeal in Criminal Appeal No 2 of 2005. The application was accordingly dismissed.

12.12 In the next case, Kiew Ah Cheng David v PP, the appellant was tried and convicted in a Magistrate”s Court for an offence of driving a motor vehicle without due consideration to other road users. He filed an appeal against sentence only and the appeal lapsed after he failed to lodge a petition of appeal within ten days after the grounds of decision had been served on him. Subsequently, the appellant filed a criminal motion in the High Court for leave to file an appeal against conviction out of time (Criminal Motion No 22 of 2006). The High Court refused leave and dismissed the motion. The appellant then appealed to the Court of Appeal against the High Court”s decision not to grant leave.

12.13 The Court of Appeal first determined whether it had the jurisdiction to hear the appeal. In this regard, the court examined s 29A of the SCJA, which sets out its appellate criminal jurisdiction, and considered whether the motion in the High Court was an exercise by the High Court of its ‘original criminal jurisdiction’. On this point, the court opined at [3] that ‘it is only in the narrowest sense that the proceedings before the judge in Criminal Motion No 22 of 2006 can be regarded as proceedings by a judge exercising his original jurisdiction’. However, following its earlier decision in Wong Hong Toy v PP[1994] 2 SLR 396 (‘Wong Hong Toy (No 2)’), the court held that the application before the High Court in Criminal Motion No 22 of 2006 was ‘so intertwined with the appeal’— referring to the appeal against conviction that the appellant was seeking leave to file — that the High Court was in fact exercising its appellate jurisdiction and not its original jurisdiction. The Court of Appeal therefore had no jurisdiction to hear the appeal (against the dismissal of Criminal Motion No 22 of 2006) in this case.

12.14 It is pertinent to note that in Wong Hong Toy (No 2), there was in fact an appeal against the decision of a District Court that had already been heard by the High Court. Following the dismissal of the appeal in the High Court, the applicants filed a criminal motion seeking leave to refer a question of law of public interest to the Court of Appeal pursuant to s 60 of the SCJA (Criminal Motion No 59 of 1986). Such leave was refused by the High Court and the applicants filed an appeal against the refusal. The Court of Appeal opined that s 60 of the SCJA did not confer original jurisdiction on the High Court judge because an application under s 60 could be made only after an appeal had been determined by the High Court; the application must be to ‘the judge’ who heard the appeal and not any other judge; and the application must relate to questions of law of public interest that arose in the course of the appeal and the determination of which had affected the appeal. On that basis, the Court of Appeal held (at 404) that the application under s 60 of the SCJA was ‘so intertwined with the appeal that it cannot be logical to say that while the determination of the appeal [was] in exercise of its appellate criminal jurisdiction, the determination of the application [was] in exercise of the High Court”s original criminal jurisdiction. Whilst acknowledging that no appeal had yet been heard and determined by the High Court in the case of Kiew Ah Cheng David v PP, the Court of Appeal regarded the circumstances as no different from those in Wong Hong Toy (No 2). The...

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