Criminal Procedure, Evidence and Sentencing

Published date01 December 2013
AuthorLEE Jwee Nguan LLB (Hons) (National University of Singapore), LLM (NYU), LLM (National University of Singapore); Advocate and Solicitor (Singapore); Director (Legal & Enforcement), Competition Commission of Singapore. MOHAMED FAIZAL Mohamed Abdul Kadir LLB (Hons) (National University of Singapore), LLM (Harvard); Attorney and Counsellor-at-Law (New York); General Counsel & Director (Legal), Singapore Medical Council.
Date01 December 2013
Citation(2013) 14 SAL Ann Rev 302
Criminal revision and amendment of charges

14.1 Public Prosecutor v Shaik Alaudeen s/o Hasan Bashar[2013] 2 SLR 538 (‘Shaik Alaudeen’) involved the matter of a criminal revision filed by the Public Prosecutor pursuant to s 256(b) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (‘old CPC’) seeking the High Court to exercise its revisionary power to amend a charge which the respondent had pleaded guilty to in 2002 (‘the original charge’) under the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (‘old MDA’). In May 2002, the respondent pleaded guilty to a charge of consumption of morphine under the old MDA. The charge, however, erroneously alluded to morphine being a controlled drug (viz, listed under the First Sched, and simultaneously not listed under the Fourth Sched, to the old MDA) when it was, in fact, a ‘specified’ drug (viz, listed under the Fourth Sched to the old Act). This was significant because the respondent was sometime thereafter arrested again and charged with several counts of consuming a specified drug under s 8(b)(ii) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘MDA’), read with s 33A(1) of the said Act (‘the present charges’), an offence which attracted enhanced punishment and which, in the circumstances, was predicated upon the conviction in 2002 for the consumption of a specified (as opposed to controlled) drug. In advancing its application, the Prosecution, applying the test enunciated by the Court of Appeal in Garmaz s/o Pakhar v Public Prosecutor[1996] 1 SLR(R) 95 (‘Garmaz’), contended that the respondent would not be prejudiced by the amendment in so far as the proceedings in 2002 would have taken the same course and the evidence recorded at the time would have been substantially unchanged. The respondent opposed the application.

14.2 In dismissing the application, Choo Han Teck J noted that although the original charge was erroneously preferred in 2002 since there was no such offence in law (in so far as morphine was a specified rather than controlled drug, so a charge which alleged that an individual had consumed the controlled drug of morphine was necessarily erroneous), it was not self-evident that the requirements set out in Garmaz were satisfied. For one, Choo J noted that, save for a situation where the respondent did not object to the application, he was not in a position to assume that the respondent would necessarily have pleaded guilty to an amended charge: Shaik Alaudeen at [4]. For another, the learned High Court judge opined that the matter of prejudice had to be assessed in a practical way that is filial to the context of the exercise of revisionary powers. Adopting a broad approach to the question of prejudice, the High Court concluded that the effect intended by the Prosecution was for the respondent to be liable for an enhanced sentence if convicted for the present charges, a state of affairs that, in the court's view, plainly amounted to prejudice in so far as it placed him in a position where his potential legal liability was increased: Shaik Alaudeen at [5]. In the final analysis, the High Court observed, especially in light of the fact that the application had been taken some ten years after the event, the Prosecution failed to discharge the onus placed upon it to satisfy the court that there was some palpable wrong or injustice occasioned that had to be remedied through the court's revisionary powers notwithstanding any prejudice to be suffered by the respondent: Shaik Alaudeen at [6].

Criminal references on a question of law of public interest

14.3 Much like the preceding year, the question of the threshold that had to be satisfied before leave to allow a criminal reference on a question of law of public interest to be filed before the Court of Appeal was revisited by the Court of Appeal in 2013, though the extensive discussion by the court of the interplay between the various provisions allowing for a question to be posed to a supervisory forum (ie, ss 395–397 of the Criminal Procedure Code 2010 (Act 15 of 2010) (‘CPC 2010), which is in pari materia with the latest edition of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (‘CPC’)) in Mohammad Faizal bin Sabtu v Public Prosecutor[2013] 2 SLR 141 (‘Mohammad Faizal’) nonetheless makes it necessary reading. The genesis of Mohammad Faizal was an unsuccessful petition to the High Court contending that the various sub-provisions of s 33A of the MDA violated the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (‘Constitution’) (a discussion of the High Court proceedings which these proceedings represent the progeny of can be found at (2012) 13 SAL Ann Rev 266 at 277–279, paras 14.26–14.30). In the proceedings before the High Court, the applicant, who had been charged with an offence under the provision in question, had contended that s 33A of the MDA was unconstitutional for violating the principle of separation of powers in requiring the court to impose a mandatory minimum sentence on an individual in part because it was predicated upon an admission to the Drug Rehabilitation Centre as opposed to a previous court-recorded conviction. Dissatisfied with the High Court's decision in the matter, the applicant applied by way of criminal motion under s 397 of the CPC 2010 for leave to be given to refer the very same questions adjudicated upon by the High Court to the Court of Appeal on the premise that such reference was in the public interest.

14.4 The Court of Appeal took a dim view of the application, concluding (at [28]) that the criminal motion applications before it were tantamount to being close to an abuse of process as they were little more than ‘thinly disguised attempts at appealing against the High Court's decisions’. The Court of Appeal observed that the discretion to grant leave ought to be exercised sparingly as to liberally allow a reference to the Court of Appeal would seriously undermine the system of one-tier appeal. In this regard, the Court of Appeal impressed the point that a question of law is not elevated to one of public interest purely because the point was a novel one, its resolution possessed serious consequences for the applicant or because it involved the construction or interpretation of a statutory provision which could also apply to other members of the public. Having regard to the fact that the High Court, in its determination of the matter, had accorded the questions that had been posed holistic and comprehensive treatment, the Court of Appeal took the view that justice and public interest would not be served by affording them another opportunity to persuade it of the merits of their views: at [20] and [21].

14.5 Furthermore, in relation to the requirement under s 397 of the CPC 2010 that the determination of the question of law by the High Court ought to have affected the outcome of the case, given that the matter was brought before the High Court before the conclusion of the first instance proceedings in the Subordinate Courts and that no sentence had yet been passed on either applicant, the Court of Appeal surmised that the granting of leave would lead to an unnecessary and unacceptable disruption to the final disposal of both matters: at [25]–[27]. In the premises, the Court of Appeal found (at [30]) that the applications were ‘utterly without merit’ and remitted the matters back to the District Court for them to take their normal course.

14.6 The Court of Appeal also provided some useful insights into the proper interplay between ss 395, 396 and 397 of the CPC 2010. As the very raison d'être of s 396 (which allows a question posed from the Subordinate Courts to ‘leapfrog’ the High Court directly to the Court of Appeal) was to save the parties' and courts' time and costs, where it is felt by an applicant that a genuine question of law of public interest had arisen that warranted a leapfrog such that the matter ought to be placed before the Court of Appeal as opposed to the High Court, recourse ought to be had to s 396 rather than to first state the matter to the High Court under s 395, only to apply to the Court of Appeal for relief under s 397 should the result in the High Court be deemed to be unfavourable (as was done in this case): at [28].

Proper particularisation of charges

14.7 The appellant in Liew Cheong Wee Leslie v Public Prosecutor[2013] 4 SLR 170 was an engineer who had been employed by a subcontractor to set up and install a sophisticated computer system for managing and controlling digitally controlled equipment in the Marina Bay Sands Integrated Resort (‘the resort’). After investigations were undertaken in relation to a well-publicised blackout that transpired on 12 May 2010 at the resort, the appellant, who was found to have caused the blackout in question, was charged with five counts of knowingly causing a computer to perform a function for the purpose of securing access without authority to any program or data held in another computer under s 3(1) of the Computer Misuse Act (Cap 50A, 2007 Rev Ed) (‘CMA’) (collectively, ‘the first five charges’) and a further count of doing so, and thereby causing damage under s 3(1) read with s 3(2) of the CMA (‘the sixth charge’). At the conclusion of the trial before the District Court, the appellant was convicted of all the charges, and was sentenced to a fine of $3,000 for each of the first five charges and a fine of $15,000 for the sixth charge. The appellant filed an appeal against both his convictions and the sentences imposed, and the Prosecution cross-appealed against the sentences imposed.

14.8 The appeal against conviction and sentence vis-à-vis the first five charges was dismissed. In relation to the sixth charge, it was noted by Choo Han Teck J that there had been no particularisation of the damage that had been ostensibly caused. Given that the forms of damage were defined explicitly under the CMA, Choo J was of the view that it was incumbent upon the Prosecution to...

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