Ang Poh Chuan v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 04 December 1995
• Neutral Citation: [1995] SGHC 290
• Date: 04 December 1995
• Subject Matter: Factors to be considered,Criminal Procedure and Sentencing,Governing principles,Criminal Law,s 20 Environmental Public Health Act (Cap 95, 1988 Ed),Forfeiture of vehicle,Effect of delay,Offences,Revision of proceedings,Illegal dumping,Whether change in law after expiry of appeal period reason enough to be granted revision,Public health
• Docket Number: Criminal Revision No 19 of 1995
• Published date: 19 September 2003
• Defendant Counsel: Peter Lim Seng Lak (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: Tan Teow Yeow (Tan Teow Yeow & Co)

This was a petition for criminal revision of a decision of a subordinate court. That petition was denied and reasons are now given.

Brief facts

The petitioner for revision is the employer of one Ong Ah Kian (Ong), who was convicted and fined for an offence under s 20(1) of the Environment Public Health Act (Cap 95, 1988 Ed), namely, dumping waste in a public place. Ong had on 3 May 1994 been caught dumping refuse on vacant land opposite another piece of land, identified as No 226N Buangkok South Farmway 4, which was rented by the petitioner as housing for foreign workers hired by him.

Consequent to that conviction, the vehicle which was used by Ong, and subject to a higher purchase contract between the petitioner and a finance company, was forfeited pursuant to s 20(4) of the Act. No appeal was made by Ong. The finance company tried to obtain a disposal inquiry, but this was correctly denied by the judge below. Subsequently, the vehicle was auctioned off and the proceeds realized. No grounds were given by the judge for her decision.

The petition

The petition prayed that the forfeiture order be set aside, and the vehicle returned, or if it had been auctioned off, for the proceeds to be paid to the petitioner to enable him to pay over to the finance company, which had already obtained judgment against him. In fact, the auction had taken place on 23 June 1995 and about $40,000 was realized.

The reasons put forward for the petition were that the petitioner suffered hardship because of the forfeiture. Such hardship appeared primarily to be his having to pay off the judgment debt, amounting to about $142,000, obtained by the finance company for breach of the hire-purchase agreement on the vehicle. Additional factors which were apparently relied upon were that the petitioner was not the person charged, though he did testify for Ong, his employee; and that the ministry concerned ought not benefit financially from an illegal forfeiture. It was alleged that no appeal was made by the petitioner because he thought that he could not succeed, and it was only after the decision of Toh Teong Seng v PP [1995] 2 SLR 273 was reported in the newspapers that his counsel was approached for possible remedies. This court was further urged to consider the substantive issues to redress the injustice alleged to have been caused to the petitioner. The petitioner had in his petition admitted that he was not without fault.

Judgment below was given in February 1995, but the petition was only made in October because of delays in obtaining the records of proceedings from the subordinate courts, and in trying to persuade, fruitlessly, the finance company to make a joint petition.

The respondent`s case

The respondent made several contentions. The first was that only the finance company informed the court below of its interest, while the petitioner neither made any claim nor voiced his objections. Secondly, inexcusable delay had been displayed, for the petitioner had been informed several months before the trial that an application would be made for the forfeiture of the vehicle but he failed to do anything; nor did the petitioner take any action once judgment was obtained by the finance company against him. Additionally, the evidence of the petitioner was rejected by the judge; he should then not be allowed to appeal against the decision through a back way. More damagingly, the petitioner had shown nelsonian knowledge, or wilful disregard, of the dumping.

The respondent thought fit to argue that the petitioner had the option of applying to the ministry concerned for the funds. No further comment will be necessary on this last argument.

Consideration of the petition

The issues which arose were as follows:

(i) the principles of the exercise of the revisionary jurisdiction; and

(ii) whether that jurisdiction ought to be exercised on the facts of the case.

Principles of revision

Section 23 of the Supreme Court of Judicature Act, hereafter the SCJA (Cap 322), provides:

The High Court may exercise powers of revision in respect of criminal proceedings and matters in subordinate courts in accordance with the provisions of any written law for the time being in force relating to criminal procedure.

Reference is made to the Criminal Procedure Code (Cap 68) (CPC), the relevant provision of which is s 268(1):

The High Court may in any case, the record of the proceedings of which has been called for by itself or which otherwise comes to its knowledge, in its discretion exercise any of the powers conferred by sections 251, 255, 256 and 257.

Section 251 deals with stays of execution, s 255 with the arrest of an accused, s 256 with general powers on appeal and s 257 with the calling of further evidence.

The governing principle of revision was stated by Hepworth J in Re Radha Krishna Naidu [1962] MLJ 130 .

[The court] should only exercise revisional powers in exceptional cases when there has been a denial of the right of a fair trial or it is urgently demanded in the interest of public justice [at p 131].

Though that was said in the context of an application by a party involved in a private prosecution, it applies generally in all situations. Similar sentiments were expressed in Indian cases. In State of Orissa v Nakula Sahu AIR 1979 SC 663, Jaswant Singh J delivering the judgment of the Supreme Court of India said:

[It] is now well settled that normally the jurisdiction of the High Court under [the equivalent section] is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice. [666]

Earlier in Akalu Ahir v Ramdeo Ram AIR 1973 A 2145, Dua J, delivering the judgment of the Supreme Court, stated:

Now adverting to the power of revision conferred on a High Court by [the equivalent sections] it is an extraordinary discretionary power vested in the superior court to be exercised in aid of justice; in other words, to set right grave injustice. The High Court has been invested with this power to see that justice is done in accordance with the recognized rules of criminal jurisprudence and that the subordinate courts do not exceed their jurisdiction or abuse the power conferred on them by law. As a general rule, this power, in spite of the wide language of [the equivalent sections] Cr P C, does not contemplate interference with the conclusions of fact in the absence of serious legal infirmity and failure of justice [at p 2147].

In Amar Chand Agarwala v Shanti Bose AIR 1973 SC 799, it was noted that:

Even assuming that the High Court was exercising jurisdiction under [the equivalent section], in our opinion, the present was not a case for interference by the High Court. The jurisdiction of the High Court is to be exercised normally under [the equivalent section], Criminal Procedure Code, only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice [at p 804].

Thus various phrases may be used to identify the circumstances which would attract the exercise of the revisionary jurisdiction, but they all share the common denominator that there must be some serious injustice. Of course there cannot be a precise definition of what would constitute such serious injustice for that would in any event unduly circumscribe what must be a wide discretion vested in the court, the exercise of which would depend largely on the particular facts. But generally it must be shown that there is something palpably wrong in the decision that strikes at its basis as an exercise of judicial power by the court below.

The petitioner quoted a statement from the case of Emperor v Nasrullah & Ors 1928 A 287.

[The] object of this revisional legislation was to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice, arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment, which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand, in some undeserved hardship to individuals [at p 288].

Taken as a whole, there is nothing wanting in that statement. However, it is possible to misconstrue it as importing a requirement of something less than serious injustice, particularly in its last reference to undeserved hardship to...