Abdul Salam bin Mohamed Salleh v Public Prosecutor (No 2)

• Jurisdiction: Singapore
• Judge: Chan Sek Keong J
• Judgment Date: 01 March 1990
• Neutral Citation: [1990] SGHC 15
• Date: 01 March 1990
• Subject Matter: Whether issue of public interest,Disappearance of evidence,No local authority on what constituted disappearance of evidence,Documents other than record of appeal,Criminal Procedure and Sentencing,Evidence,Discretion of court to refer questions to Court of Criminal Appeal where application brought by accused,Issue whether certified record of a trial should be allowed to be corrected and to what extent,Finality of proceedings,Questions of law of public interest,Reference to Court of Appeal,s 60 Supreme Court of Judicature Act (Cap 322),Important issue pertaining to administration of justice and of public concern,Taking cognizance of by appellate Court
• Docket Number: Criminal Motion No 60 of 1989
• Published date: 19 September 2003
• Defendant Counsel: Bala Reddy (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: Mohideen MP Haja Rubin (Amarjit Rubin & Partners)

Cur Adv Vult

On 5 October 1989, I delivered judgment in Magistrate`s Appeal No 185 of 1987 dismissing an appeal by the appellant (who was an investigator of drug offences at the Tanglin Police Station) against his conviction for an offence under s 201 of the Penal Code. [See [1990] 1 MLJ 136 .] The district judge had found that the appellant had caused evidence (an admissible statement (P4) made by Razali under s 120 of the Criminal Procedure Code (the CPC) of the commission of an offence by one Razali bin Bakar confessing to possession of cannabis) to disappear by not including P4 in the investigation papers file.

In this motion which is made under s 60 of the Supreme Court of Judicature Act (Cap 322) (the SCJA), counsel for the appellant has applied for an order that the following questions which, he claims, are questions of law of public interest (and which have arisen in the course of Magistrate`s Appeal No 185 of 1987 and the determination of which affected the event of the appeal) be reserved for the decision of the Court of Criminal Appeal:

(1) whether the conviction of the appellant can be sustained on a record that cannot be relied on in its original form;

(2) whether in the proper exercise of judicial discretion, the court can take cognizance of extraneous correspondence (ie letters exchanged between the Registrar of the Subordinate Courts and the trial judge) which formed no part of the record? Alternatively, whether there was legal power in the court to take cognizance of documents other than the record;

(3) whether a magistrate or district judge could add, supplement, clarify or correct his written grounds of decision after a complaint had been lodged in the petition of appeal as to the propriety of the record and the grounds;

(4) whether such additions, supplements, clarifications or corrections could be done by way of letters;

(5) whether the failure by the trial judge to explain as to how he had come to record a purported application by the DPP whilst in fact there was none [such failure read with the trial judge`s earlier explanation to the court in his letter dated 18 June 1988 where he said that: `from the notes of evidence and my grounds of decision it is quite clear that at the conclusion of the prosecution case, I had in mind amending the charge from one under s 201 to one under s 204 of the Penal Code], contravenes the principles of fair hearing, ie justice must be manifestly seen to be done;

(6) whether the aforesaid failure by the trial judge is or is not a relevant question for the determination of the appeal;

(7) whether the direction by the learned trial judge as encapsulated by me at pp 18 and 19 of my grounds of decision [ie that `the trial judge did not proceed on the basis that he preferred the evidence of Razali to that of the appellant and of DW2. He proceeded on the basis that the appellant, as the investigating officer, had to explain why he did not include P3 in the IP as was his duty to do so as an investigating officer.` ... `The appellant was convicted because he could not give a satisfactory reason for not including P3 in the IP.`] runs counter to and is in conflict with the well-established tenet of law that it is for the prosecution to prove its case beyond reasonable doubt and whoever has the function of deciding facts at the trial of a criminal offence should keep an open mind and assess to what extent (if any) that witness`s evidence has been confirmed, explained or contradicted by the evidence of other witnesses - Haw Tua Tau v PP [1981] 2 MLJ 49 at p 51 letters H and I;

(8) in the light of the averment in the charge that the accused `caused the evidence of the offence to disappear by deliberately not enclosing the statement ` (emphasis added),

(a) is not `deliberateness` an essential element to be proved by the prosecution;

(b) what is the meaning of the word `disappear`; and

(c) can it be said that the evidence in this case did not disappear particularly when it has been kept by the accused in his office drawer and produced to the authorities when asked about it.

The DPP has submitted that none of these questions of law is of public interest and that this application is an attempt to appeal against a conviction which has been finally determined under the law.

The relevant provisions of s 60 of the SCJA are as follows:

(1) When an appeal from a decision of a subordinate court in a criminal matter has been determined by the High Court, the judge may on the application of any party and shall on the application of the public prosecutor reserve for the decision of the Court of Criminal Appeal any question of law of public interest which has arisen in the course of appeal and the determination of which by the judge has affected the event of the appeal.

...

(5) For the purposes of this section but without prejudice to the generality of its provisions -

(a) any question of law regarding which there is a conflict of judicial authority shall be deemed to be a question of public interest; and

(b) the reservation of a question of law for the consideration of the High Court under the provisions of any written law relating to criminal procedure or the exercise by the High Court of any power of revision under any such written law shall be deemed to be an appeal from a decision of a subordinate court in a criminal matter.

It is plain from the terms of the provision that even if a question satisfies all the prescribed conditions, the court has discretion whether or not to refer it to the Court of Criminal Appeal, where it is invoked by a party other than public prosecutor.

The relevant condition to be met is whether the questions were of public interest. What is a question of law of public interest? Counsel for the appellant has referred me to a number of authorities decided under s 60 and the corresponding s 66 of the Malaysian Courts of Judicature Act 1964 (the CJA).

In Tan Yin Yen v PP [1976] 2 MLJ 143 , the Federal Court of Malaysia refrained from answering the question referred to it by the High Court (the question being whether the magistrate had properly exercised his discretion in making an order of confiscation of a fishing vessel and net under s 16(1) of the Fisheries Act 1963) on the ground that the public prosecutor had agreed that the forfeiture was wrong. However, Suffian ACJ in his oral judgment said:

It is to be observed that questions of law which may be referred to us under s 66 should not be questions that are of personal interest only to the accused or the public prosecutor, but should be questions that are of public interest, and it seems to us better if the High Court were to exercise their discretion under s 66 sparingly, so that the references are not used as an in direct way of appealing against matters that under the law have been finally determined by the High Court. (Emphasis of court.)

In emphasizing the word `public`, his Lordship seemed to be suggesting that the relevant question of law was not of public interest. On the other hand, he might have meant that although the question of law was one of public interest, the High Court should have exercised its discretion sparingly in order that that procedure should not be used as a means of appeal. This judgment throws little light on what is a question of law of public interest.

In A Ragunathan v PR [1982] 1 MLJ 139 , Raja Azlan Shah Ag LP delivered a more substantial judgment on the issue. The question in that case was whether the appellant was a `public officer` within the meaning of that expression in s 18(1) of the Public Service Tribunal Act 1977. He was charged for the offence of communicating with the press in regard to proceedings of the tribunal and his defence was called. The questions were:

(1) What ingredients must the respondent prove to establish a prima facie case in a prosecution against a defendant on a charge under s 18(1) of the Public Service Tribunal Act 1977 read with para 7 of the Schedule to the said Act?

(2) In a prosecution under s 18(1) of the Public Service Tribunal Act 1977, is it sufficient for the respondent to establish that a defendant is a public officer within the meaning of the said Act by leading evidence to show that he (the defendant) is a member of a trade union consisting of government servants?

His Lordship said (at pp 141 and 142):

But it is not sufficient that the question raised is a question of law. It must be a question of law of public interest. What is public interest must surely depend upon the facts and circumstances of each case. We think that the proper test for determining whether a question of law raised in the course of the appeal is of public interest would be whether it directly and substantially affects the right of the parties and if so whether it is an open question in the sense that it is not finally settled by this court or the Privy Council or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles in determining the question are well settled and it is a mere question of applying those principles to the facts of the case the question would not be a question of law of public interest.

It was urged upon us that in at least two previous cases (see PP v D`Fonseka [1958] MLJ 102 ; Yap Ee Kong v PP [1981] 1 MLJ 144 ) the applicants had successfully obtained a reference, and that we should follow those cases and determine the questions referred to us. It was further said that the questions are of general importance upon which further argument and a decision of this court would be to the public advantage (see Buckle v Holmes [1926] 2 KB 125). A short answer is that the two cases referred above involved misdirections in law and this court had no hesitation to intervene because they called for discussion of alternative views.

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