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

JurisdictionSingapore
JudgeChua F A J
Judgment Date08 August 1991
Neutral Citation[1991] SGCA 27
Docket NumberCriminal Motion No 60 of 1989
Date08 August 1991
Year1991
Published date19 September 2003
Plaintiff CounselMPH Rubin and Sharon Thomas (Amarjit Rubin & Partners)
Citation[1991] SGCA 27
Defendant CounselSowaran Singh (Deputy Public Prosecutor)
CourtCourt of Appeal (Singapore)
Subject MatterAppeal,Documents,s 60 Supreme Court of Judicature Act (Cap 322),ss 201 & 204 What amounts to 'disappear',Words and Phrases,Whether signed copy of record could be corrected by reference to the original manuscript,'Disappear',Penal Code (Cap 224),Criminal Procedure and Sentencing,Causing disappearance of evidence,Clerical mistake,Record,Offences,Whether omission of trial judge to explain entry in record sufficient to vitiate verdict,Principles to be applied in allowing application,Questions of law of public interest,Criminal Law,ss 201 & 204 Penal Code (Cap 224),Trials,ss 249 & 396 Criminal Procedure Code (Cap 68)

Cur Adv Vult

In May 1984 the appellant, who was a police sergeant attached to the Tanglin Police Station, was charged in a district court under s 201 of the Penal Code (Cap 224) (the Code) for causing evidence of the commission of an offence by one Razali to disappear by deliberately not submitting with the investigation papers a statement by one Razali which he had recorded, with the intention of screening Razali from legal punishment.

What happened was that in the course of investigating a criminal case against Razali, the appellant took two statements from Razali.
In his first statement (P3), Razali said that one stick of cannabis found in a cupboard in his house belonged to him; in his second statement (P4), which was made only ten minutes later, he said that the cannabis did not belong to him, and he explained that his earlier statement (P3) and an earlier admission to CNB officers that the cannabis did belong to him were made because of his fear that the CNB officers might assault him. The appellant, believing the second statement, P4, to be correct, submitted it to his superior with the investigation papers but retained the first statement, P3. The appellant kept P3 at all times in his desk drawer and produced it to the Corrupt Practices Investigation Bureau (CPIB) as soon as he was asked about it. At the conclusion of the trial in the district court, the appellant was convicted and sentenced to four months` imprisonment.

The appellant appealed to the High Court against his conviction and sentence.
[See [1990] 1 MLJ 136 .] After the notice of appeal was filed, the grounds of decision of the district judge together with his notes of evidence were made available in the usual way to the appellant. It was found from p 51 of the typewritten copy of the notes of evidence that the district judge had recorded this note after the close of the prosecution`s case:

DPP: Applies under s 163 CPC to amend charge under s 204 Penal Code.

Court: Defence called on amended charge (emphasis added).

Two courses explained to accused in ordinary language.

Elects to give evidence from the witness box.



The grounds of decision included the following passage by the district judge, in explaining what he did after receiving the evidence and the submissions of counsel and the deputy public prosecutor:

In the circumstances I called on him to make his defence on an amended charge (emphasis added) under s 204 of the Penal Code. He elected to give evidence from the witness box.



After considering the evidence of the appellant, the district judge found as follows:

The court considered his evidence carefully and was satisfied that he had not raised a reasonable doubt on the prosecution`s case. He had given a host of reasons which I rejected. In the circumstances I found him guilty of the amended charge (emphasis added) and convicted him accordingly.



There had in fact been no application for any amendment by anyone.
In his petition of appeal, the appellant complained that the amendment was false and consequently there had been prejudice and grave miscarriage of justice occasioned to him. The appellant`s other principal complaint was that the district judge made a grave error in coming to a positive conclusion as to the appellant`s guilt at the end of the prosecution`s case.

While the appeal was in train before the High Court, extraneous correspondence ensued between the deputy public prosecutor, the officers of the subordinate courts and the district judge, who had by then become the Registrar of Trade Marks.
In his first letter, as he was not then in a position to contradict the typewritten notes of evidence, the district judge was unfortunately led to explain that, at the conclusion of the prosecution`s case, he had in mind to amend the charge from one under s 201 to one under s 204 of the Code but had inadvertently failed to amend the charge. At the hearing of the appeal in the High Court, the appellant`s counsel therefore contended that a compelling inference should be drawn from that letter that when the district judge was writing his grounds, he was in fact addressing the ingredients of the charge under s 204 and not under s 201 of the Code.

After arguments in the appeal were completed in the High Court and judgment was reserved, further correspondence took place between the officers of the subordinate courts and the district judge.
It was then suggested that the district judge should reconsider his explanation since it was thought that his handwritten manuscript notes and the typewritten version of them which had been certified as his notes of evidence did not correspond in respect of the word `amended`. On checking his manuscript notes, the district judge then realized what had happened. In his second letter, he explained that there was a typographical error in the typewritten notes of evidence in that the word `original` in the manuscript notes had been misread by the typist as `amended`. He did not, however, offer any explanation as to the ghost entry `DPP: Applies under s 163 CPC to amend charge under s 204 Penal Code`. Chan Sek Keong J held that the handwriting in the manuscript notes was legible and the word was in fact `original` and not `amended`. He was satisfied therefore that the s 201 charge to which the appellant had claimed trial had never been amended, that the defence was called on that charge, and that after the appellant and his witness gave evidence in connection with that charge, he was convicted on that charge. He described the district judge`s failure to explain `the so-called application by the DPP` as an aberration. All the same, he concluded that such an aberration did not constitute a miscarriage of justice. He, therefore, dismissed the appeal against conviction and sentence.

After the appeal was dismissed, the appellant took out a motion under s 60 of the Supreme Court of Judicature Act (Cap 322) (the SCJA) for an order that eight questions of law of public interest, which had arisen in the course of the appeal, and the determination of which by the judge had affected the event of the appeal, be reserved for the decision of the Court of Criminal Appeal.
Four of these questions, as amended by the learned judge, were stated to the Court of Criminal Appeal [see [1990] 3 MLJ 275 ] and were argued before us.

Before dealing with the four questions, it would not be inappropriate for us to review the application for the reference itself, in view of the manner in which the application was argued and decided in the court below.
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 the 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 clear from the terms of s 60 that the court has discretion whether or not to refer a question to the Court of Criminal Appeal when the application to the court is made by a party other than the public prosecutor, even if the question satisfies all the prescribed conditions.
It is equally clear that the reference must be of a question of law of public interest, which has arisen in the course of the appeal, and the determination of which by the judge has affected the event of the appeal. The crucial condition in the present case was whether these were questions of law of public interest. There is a paucity of published authorities in Singapore on s 60, but in applying the section Singapore courts have always had regard to the authorities decided under the corresponding s 66 of the Malaysian Courts of Judicature Act 1964. In delivering an oral judgment on a reference to the Federal Court in Tan Yin Yen v PP [1973] 2 MLJ 143 , Suffian ACJ 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 indirect way of appealing against matters that under the law have been finally determined by the High Court.



This statement was endorsed in two oral judgments in the High Court, by Hashim Yeop A Sani J in Sivalingam v PP [1974] 2 MLJ 27 and by Abdoolcader J in Ibrahim bin Haji Karim v PP [1976] 1 MLJ 280 , in both of which applications for questions of law to be referred to the Federal Court for determination were dismissed.
(See also Cecil Rajah v PP [1981] 1 MLJ 147 .)

Section 66 was considered at greater length in Ragunathan v PR [1982] 1 MLJ 139 in which Raja Azlan Shah ALP said on 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 on 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
...

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9 cases
  • Bridges Christopher v Public Prosecutor
    • Singapore
    • High Court (Singapore)
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    ... ... I made no such distinction in Jusri bin Mohamed Hussain v PP [1996] 3 SLR 29 , when I applied the principle ... ...
  • Bridges Christopher v Public Prosecutor
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    ...at [28].] Abdul Salam bin Mohamed Salleh v PP [1990] 1 SLR (R) 198; [1990] SLR 301, HC (folld) Abdul Salam bin Mohamed Salleh v PP [1991] 2 SLR (R) 344; [1991] SLR 235, CA (folld) Chan Hiang Leng Colin v PP [1995] 1 SLR (R) 388; [1995] 1 SLR 687 (folld) Osman bin Ali v PP [1971-1973] SLR (R......
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    ...there is a conflict of judicial authority shall be deemed to be a question of public interest. 5 In Abdul Salam Bin Mohamed Salleh v PP [1991] SLR 235, the then Court of Criminal Appeal dealt with the then s 60 SCJA which was in similar terms as the current s 60 SCJA for present purposes. C......
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1 books & journal articles
  • A RE-EXAMINATION OF BAIL LAW IN SINGAPORE
    • Singapore
    • Singapore Academy of Law Journal No. 2005, December 2005
    • December 1, 2005
    ...Bail Pending Appeal)[1983] 1 WLR 1292. 109 Re Reid James Robert QC [1997] 2 SLR 482. 110 Abdul Salam bin Mohamed Salleh v PP (No 2) [1991] SLR 235; Lin v PP[1986] SLR 436. 111 Veerapathiran s/o Arunasalam Singaram v PP (Magistrate’s Appeal No 11 of 1994, unreported). 112 Thevarajan s/o Chel......

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