Azman Bin Jamaludin v PP

• Jurisdiction: Singapore
• Judgment Date: 18 November 2011
• Date: 18 November 2011
• Docket Number: Criminal Motion No 48 of 2011
• Court: High Court (Singapore)

Azman Bin Jamaludin

Plaintiff

and

Public Prosecutor

Defendant

[2011] SGHC 250

Chan Sek Keong CJ

Criminal Motion No 48 of 2011

High Court

Criminal Procedure and Sentencing—Criminal references—Reservation of questions of law by trial court for consideration of High Court—Whether procedure applicable to trial court's interlocutory orders—Section 263 Criminal Procedure Code (Cap 68, 1985 Rev Ed)

Criminal Procedure and Sentencing—Trials—Power of trial court to summon and examine witnesses—Witness called by trial court suo motu after Prosecution's and Defence's closing submissions—Section 399 Criminal Procedure Code (Cap 68, 1985 Rev Ed)

The applicant (‘the Applicant’) was tried in the District Court for failing, without reasonable excuse, to provide a sample of his urine as required by a police officer. At the material time, two police officers, viz, PW5 and one Cpl Hakim, were present with the Applicant. However, only PW5 was called by the Prosecution to give evidence at the trial.

After the Prosecution and the Defence had made their respective closing submissions for the trial, the district judge (‘the District Judge’) made an order for Cpl Hakim to be called as a witness to testify (‘the District Judge's Order’). In so ordering, the District Judge dismissed Defence counsel's objection that: (a)both parties had closed their respective cases; (b) Cpl Hakim's testimony was not rebuttal evidence; and (c)in any event, further evidence should not be called unless it arose ex improviso, ie, where no human ingenuity could have foreseen it. As a result of the District Judge's Order, the Applicant made an application under s 263 (1) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (‘the CPC’) for the District Judge to refer to the High Court for determination three questions of law concerning a trial judge's power to summon and examine witnesses, but the application was rejected by the District Judge without giving any reasons. The Applicant then brought the present application (‘this Application’) for a Mandatory Order requiring the District Judge to state a special case in accordance with s 263 (1) of the CPC.

The material issues in this Application principally pertained to: (a) the scope of a trial judge's power to summon and examine witnesses under s 399 of the CPC; (b)the question of whether the procedure under s 263 of the CPC providing for the reservation of questions of law for the High Court's determination applied only to final orders made by a trial judge; and (c)the question of whether this Application was frivolous for the purposes of s 263 (3) of the CPC.

Held, dismissing the application:

(1) Section 399 of the CPC conferred on a trial judge a power to summon and examine witnesses which was of much wider scope than the corresponding power under English common law. Under s 399 of the CPC, a trial judge's discretionary power to call witnesses was not unfettered and had to be exercised with caution so as not to prejudice or cause injustice to the accused. However, where the calling of a witness was essential to the just decision of the case or the avoidance of a miscarriage of justice, the trial judge had no discretion but to call the witness in question to give evidence. This guiding principle applied regardless of whether the calling of a new witness was by the trial judge suo motu or by the Prosecution with the permission of the trial judge: at [15] to [25] and [35].

(2) The word ‘order’ in s 263 (1) of the CPC applied only to final orders, and not to interlocutory orders such as the District Judge's Order. Any miscarriage of justice caused by an interlocutory order leading to the wrongful admission of evidence could be corrected on appeal under s 396 of the CPC: at [41] to [52].

(3) This Application was frivolous for the purposes of s 263 (3) of the CPC because the questions sought to be reserved for the High Court's determination were either questions on settled law, or questions incapable of eliciting any answer that would allow the High Court to affirm, amend or reverse the determination of the District Judge in the case at hand or to state a principle of law for the guidance of trial courts in future cases involving the same legal issue in a similar factual context: at [55] to [62].

[Observation: The Court of Appeal's holding in PP v Bridges Christopher [1997] 3 SLR (R) 467 that the procedural rule on the admission of rebuttal evidence was the same in criminal proceedings and civil proceedings should be reconsidered in a future case on the basis that the point was decided per incuriam: at [32] and [33].]

Adam Aman, Re; Hoesin bin Ghani v PP [1958] MLJ 229 (refd)

Balfour v PP [1949] MLJ Supp 8 (refd)

Bridges Christopher v PP [1997] 1 SLR (R) 156; [1997] 1 SLR 406 (refd)

Chee Wee Tiong v PP [1994] 2 SLR (R) 1046; [1994] 3 SLR 499 (refd)

Jacob v PP [1948-1949] MLJ Supp 20 (refd)

Jamatraj Kewalji Govani v State of Maharashtra AIR 1968 SC 178 (refd)

Jusri bin Mohamed Hussain v PP [1996] 2 SLR (R) 706; [1996] 3 SLR 29 (refd)

Kee Seng Nee v R [1949] MLJ 210 (refd)

Knight Glenn Jeyasingam v PP [1998] 3 SLR (R) 196; [1999] 3 SLR 362 (refd)

Loke Poh Siang v PP [1957] MLJ 107 (refd)

Mohammad Ali bin Mohd Noor v PP [1996] 2 SLR (R) 692; [1996] 3 SLR 276 (refd)

Ng Chye Huay v PP [2006] 1 SLR (R) 157; [2006] 1 SLR 157 (refd)

Osman bin Ali v PP [1971-1973] SLR (R) 503; [1972-1974] SLR 106 (refd)

PP v Abdul Hamid [1969] 1 MLJ 53 (refd)

PP v Abdul Rahim bin Abdul Satar [1990] 3 MLJ 188 (refd)

PP v Bridges Christopher [1997] 1 SLR (R) 681; [1997] 2 SLR 217 (refd)

PP v Bridges Christopher [1997] 3 SLR (R) 467; [1998] 1 SLR 162 (refd)

PP v Hoo Chang Chwen [1962] MLJ 284 (refd)

PP v Knight Glenn Jeyasingam [1999] 1 SLR (R) 1165; [1999] 2 SLR 499 (refd)

PP v Ng Guan Hup [2009] 4 SLR (R) 314; [2009] 4 SLR 314 (refd)

PP v Phon Nam [1988] 3 MLJ 415 (refd)

PP v Wee Eh Tiang [1956] MLJ 120 (refd)

R v Bakar bin Sahat [1951] MLJ 202 (refd)

R v Day (Harold Norman) (1940) 27 Cr App R 168 (refd)

R v Dora Harris [1927] 2 KB 587 (refd)

R v Frost (1839) 9 Car & P 129; 173 ER 771 (refd)

R v Kansal [2002] 2 AC 69 (refd)

R v Mc Mahon (1933) 24 Cr App R 95 (refd)

Ramasamy v R [1955] MLJ 95 (refd)

Ramli bin Kechik v PP [1986] 2 MLJ 33 (refd)

Sim Cheng Hui v PP [1998] 1 SLR (R) 670; [1998] 2 SLR 302 (refd)

Yap Fook Yew v PP [1949] MLJ Supp 3 (refd)

Yap Keng Ho v PP [2007] 1 SLR (R) 259; [2007] 1 SLR 259 (refd)

Zahira Habibulla HSheikh v State of Gujarat (2004) 4 SCC 158 (folld)

Zainal bin Kuning v Chan Sin Mian Michael [1996] 2 SLR (R) 858; [1996] 3 SLR 121 (refd)

Criminal Procedure Code (Cap 21,1936 Rev Ed) ss 317, 317 (1) ,318, 318 (1)

Criminal Procedure Code (Cap 132,1955 Rev Ed)

Criminal Procedure Code (Cap 68,1985 Rev Ed) ss 263, 399 (consd) ; ss 5,241, 247 (1) ,263 (1) , 263 (3) ,263 (4) , 264,266 (1) , 396

Criminal Procedure Code 2010 (Act 15 of 2010) ss 283, 395, 397,423

Misuse of Drugs Act (Cap 185,2008 Rev Ed) ss 8 (b) ,31 (2) , 33 A

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 60

Code of Criminal Procedure (Act V of 1898) (India) s 540

Code of Criminal Procedure 1973 (Act No 2 of 1974) (India) s 311

Criminal Procedure Code (FMS Cap 6, 1927) ss 5, 425

Criminal Procedure Code (Act 593) (M'sia) s 425

Joseph Liow Wang Wu (Straits Law Practice LLC) for the applicant

GKannan and Ng Yiwen (Attorney-General's Chambers) for the respondent.

Judgment reserved.

Chan Sek Keong CJ

1 This application by way of criminal motion (‘this Application’) was filed by Azman Bin Jamaludin (‘the Applicant’) for a Mandatory Order under s 263 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (‘the CPC’) that the district judge (‘the District Judge’) reserve and refer three questions of law (‘the 3 Questions’) for determination by the High Court in the form of a special case.

Background

2 The background of this Application is set out in the affidavit of Joseph Liow Wang Wu, counsel for the Applicant, filed on 29 June 2011. The Applicant was initially charged in the District Court with two charges: (a)one under s 8 (b) read with s 33 A of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘the MDA’) for unlawful drug consumption; and (b)one under s 31 (2) of the MDA for failing, without reasonable excuse, to provide a sample of his urine as required by a police officer on 13 June 2010. At the material time, the Applicant was being treated at Changi General Hospital (‘CGH’) for head injuries. The Prosecution proceeded with the second charge after the District Court stood down the first charge of unlawful drug consumption.

3 At the trial, a prosecution witness (‘PW5’), a police officer, testified that the Applicant had refused to give a urine sample when PW5 requested for it at CGH. The Prosecution sought to rely on entries in a station diary (‘P5’) to corroborate PW5's testimony. P5 contained entries that showed that between 10.00 am and 11.30 am on 13 June 2010, the Applicant had been requested on nine occasions to provide his urine sample and had refused. An inculpatory statement that the Applicant had given to the police (‘the Inculpatory Statement’), in which he admitted to refusing to give a specimen of his urine, was also tendered and admitted in evidence.

4 The Applicant's testimony at the trial was that he had been requested to give his urine sample only once - at a time when he was unable to urinate due to a medical condition. However, the Applicant was unable to specify the time when this request was made. A defence witness (‘DW 2’), a medical doctor, gave evidence that at CGH, the Applicant had a Glasgow Coma Score (‘GCS’) of 13-14 upon admission to CGH and subsequently in the early hours of 13 June 2010. DW 2 also testified that the Applicant's GCS score was observed to be normal (at 15) at 11.00 am on 13 June 2010. His opinion was that it was possible that the Applicant might not have...