Attorney General v Elite Wood Products (Australia) Pty Ltd and Another

• Jurisdiction: Singapore
• Judgment Date: 30 April 1992
• Date: 30 April 1992
• Docket Number: Civil Appeal No 45 of 1989
• Court: Court of Appeal (Singapore)

Attorney-General

Plaintiff

and

Elite Wood Products (Australia) Pty Ltd and another

Defendant

[1992] SGCA 33

Yong Pung How CJ

,

Lai Kew Chai J

and

Warren L H Khoo J

Civil Appeal No 45 of 1989

Court of Appeal

Evidence–Witnesses–Taking of evidence for purpose of criminal proceedings abroad–Whether Australia a “foreign state” or “declared Commonwealth country”–Whether Minister has power to make authorisation in taking of evidence for use in criminal proceedings in Australia–Sections 2, 3, 4, 15, 18 and 43 (1) Extradition Act (Cap 103, 1985 Rev Ed)–Interpretation Act (Cap 1, 1985 Rev Ed)–Words and Phrases–“Foreign state”–Section 43 (1) Extradition Act (Cap 103, 1985 Rev Ed)

In April 1988, the Ministry of Foreign Affairs received a request from its Australian counterpart to take the evidence of certain persons with addresses in Singapore for use in criminal proceedings in New South Wales. On 23 May 1988, the Minister for Law issued a notice under s 43 (1) of the Extradition Act (Cap 103, 1985 Rev Ed) (“the Act”) authorising the Senior District Judge “or such other District Judge or Magistrate as you may nominate” to take the evidence as requested. The respondents, who were defendants in the New South Wales criminal proceedings, challenged the Minister for Law's authorisation and applied to have it quashed. The High Court allowed the application (see [1989] 1 SLR (R) 563) and the Attorney-General (“AG”) appealed. On appeal, the issues were: (a) whether the Minister had power to make the authorisation under s 43 (1) of the Act; and (b) if he did, whether he exceeded his power by delegating the exercise of it to the Senior District Judge. In respect of the first issue, the court had to consider whether Australia was a “foreign state” for the purpose of s 43 (1) of the Act.

Held, dismissing the appeal:

(1) Australia was a Commonwealth country to which Pt IV of the Act applied and was thus incapable of being considered a “foreign state” for the purpose of s 43, any more than it could be considered a foreign state for the purpose of any other provisions of the Act. There was no basis for the suggestion that “foreign state” in any part of the Act could mean simply any sovereign state outside Singapore, whether Commonwealth or foreign. The expression “foreign state” was used throughout the Act in contrast to a Commonwealth country. As such, s 43 of the Act did not apply to Australia, which was a Commonwealth country, and there was no provision in the Act for the taking of evidence for use in criminal proceedings pending in a Commonwealth country: at [19], [21] and [26].

(2) The magistrate who was intended to take the evidence should be designated in the Minister's authorisation notice. On the facts, the Minister did not make the appointment but the Senior District Judge did, in accordance with the direction of the Minister. As such, the Minister had delegated his power to make the appointment, which was not permitted by law: at [41] and [42].

[Observation: A state did not become a “foreign state” because it had an extradition treaty with Singapore. Rather, for the purpose of the Act, a foreign state was a “foreign state”, ie a state outside the Commonwealth, which had in force an extradition treaty with Singapore. In other words, not all foreign states were “foreign states” for the purpose of the Act; only those which had extradition treaties with Singapore qualified. The same applied to Commonwealth countries. The question whether there was an extradition treaty in force between Singapore and a particular foreign state was or should be settled by the Executive. The courts should not be concerned with the question of whether a treaty subsisted between Singapore and any state: at [29], [31] and [32].]

King, The v Daye [1908] 2 KB 333 (refd)

King, The v Lord Mayor of Cardiff, ex parte Lewis [1922] 2 KB 777 (refd)

R v Burt, ex partePresburg [1960] 1 QB 625 (refd)

Evidence (Civil Proceedings in Other Jurisdictions) Act 1979 (Act 18 of1979)

Extradition Act (Cap 103,1985 Rev Ed)ss 2, 3, 4, 15, 18, 43 (1) (consd)

Interpretation Act (Cap 1,1985 Rev Ed)

Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985Rev Ed)

Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 1985Rev Ed)

Extradition (Commonwealth Countries) Act 1966 (Cth)

Extradition (Foreign States) Act1966 (Cth)

Evidence by Commission Act1885 (c 74) (UK)

Extradition Act 1870 (c 52) (UK)ss 2, 24

Extradition Act 1873 (c 60) (UK)ss 1, 5

Fugitive Offenders Act 1881 (c 69) (UK)

Lee Seiu Kin (Deputy Senior State Counsel) and Lionel Yee (State Counsel) for the appellant

Tan Sei Bee (Arthur Loke & Partners) for the respondents.

Judgment reserved.

Warren L H Khoo J

(delivering the judgment of the court):

1 In April 1988, a request to take the evidence of certain persons with addresses in Singapore for use in criminal proceedings in the local court of New South Wales exercising federal jurisdiction, was received by the Ministry of Foreign Affairs of Singapore from its counterpart in Australia. The letter of request was eventually referred to the then Minister for Law, Mr E W Barker.

2 On 23 May 1988, the Minister for Law, in purported exercise of his power under s 43 (1) of the Extradition Act (“the Act”), issued a notice to the Senior District Judge purporting to authorise the Senior District Judge “or such other District Judge or Magistrate as you may nominate” to take the evidence as requested. The District Judge nominated Mr Francis Tseng, a district judge, as the magistrate to take the evidence.

3 The respondents, who were defendants in the New South Wales criminal proceedings, challenged the authorisation of the Minister for Law. They applied by Originating Motion No 132 of 1988 in the High Court for an order of certiorari to quash the authorisation. On 15 May 1989, Chan Sek Keong J, in a carefully reasoned reserved judgment, allowed the respondents' application (see Re Letter of Request from the Court of New South Wales for the Prosecution of Peter Bazos (Deposition Proceedings) [1989] 1 SLR (R) 563). From this judgment, the Attorney-General, who was the respondent in the motion proceedings, appealed.

4 Section 43 (1) of the Act provides as follows:

The Minister may, by notice in writing, authorise a Magistrate to take evidence for the purposes of a criminal matter pending in a court or tribunal of a foreign State other than a matter relating to an offence that is, by its nature or by reason of the circumstances in which it is alleged to have been committed, an offence of a political character.

5 The issues raised in this appeal, as in the motion before Chan Sek Keong J, are: (a) whether the Minister had power to make the authorisation under s 43 (1) of the Act; and (b) if he did, whether he exceeded his power by reason of delegating the exercise of it to the Senior District Judge.

6 The short point that we have to consider in relation to the first issue is whether Australia is a “foreign state” for the purpose of s 43 (1) of the Act. This is primarily a matter of construction of the Act as a whole and of this particular provision in the context of the Act.

The scheme of the Extradition Act

7 The Act, which came into force on 1 August 1968, principally deals with the extradition...