Bachoo Mohan Singh v Public Prosecutor

• Jurisdiction: Singapore
• Court: Court of Three Judges (Singapore)
• Judgment Date: 04 December 2009
• Docket Number: Criminal Motions Nos 14 and 30 of 2009; Criminal Appeal No 6
• Date: 04 December 2009

[2009] SGCA 59

Court of Appeal

Andrew Phang Boon Leong JA

,

V K Rajah JA

and

Choo Han Teck J

Andrew Phang Boon Leong JA

and

V K Rajah JA

Choo Han Teck J

(dissenting)

Criminal Motions Nos 14 and 30 of 2009; Criminal Appeal No 6 of 2009

Bachoo Mohan Singh

Plaintiff

and

Public Prosecutor and other applications

Defendant

Michael Hwang SC (Chambers of Michael Hwang SC), Ang Cheng Hock SC (Allen & Gledhill LLP) and Eugene Thuraisingam (Stamford Law Corporation) for the applicant in CM 14/2009, the appellant in CCA 6/2009 and the respondent in CM 30/2009

Jennifer Marie, Lee Sing Lit, Tan Boon Khai, Kan Shuk Weng and Kenneth Yap (Attorney-General's Chambers) for the respondent in CM 14/2009 and CCA 6/2009 and the applicant in CM 30/2009

Wong Meng Meng SC and Fay Fong (WongPartnership) for the Law Society of Singapore.

A Ragunathan v Pendakwa Raya [1982] 1 MLJ 139 (refd)

Abdul Salam bin Mohamed Salleh v PP [1990] 1 SLR (R) 198; [1990] SLR 301 (refd)

Abdul Salam bin Mohamed Salleh v PP [1991] 2 SLR (R) 344; [1991] SLR 235 (refd)

AG v Tee Kok Boon [2008] 2 SLR (R) 412; [2008] 2 SLR 412 (refd)

Ang Cheng Hai v PP [1995] 3 SLR (R) 151; [1995] 3 SLR 201 (refd)

Anuar bin Othman v PP [1990] 2 SLR (R) 619; [1990] SLR 1180 (refd)

Bulaki Ram (1890) 10 AWN 1 (refd)

Chan Hiang Leng Colin v PP [1995] 1 SLR (R) 388; [1995] 1 SLR 687 (refd)

Cigar Affair v PP [2005] 3 SLR (R) 648; [2005] 3 SLR 648 (refd)

DPP v Humphrys [1977] 1 AC 1 (refd)

Gurbachan Singh v PP [1967] 2 MLJ 220 (refd)

Harbhajan Singh v PP [1980] 1 MLJ 322 (refd)

Jeyaretnam Joshua Benjamin v Law Society of Singapore [1988] 2 SLR (R) 470; [1988] SLR 1 (refd)

Jeyaretnam Joshua Benjamin v PP [1990] 1 SLR (R) 567; [1990] SLR 594 (refd)

Kiew Ah Cheng David v PP [2007] 1 SLR (R) 1188; [2007] 1 SLR 1188 (folld)

Kulasingam v PP [1978] 2 MLJ 243 (refd)

Lim Hong Kheng v PP [2006] 3 SLR (R) 358; [2006] 3 SLR 358 (folld)

Microsoft Corp v SM Summit Holdings Ltd [2000] 1 SLR (R) 423; [2000] 2 SLR 137 (refd)

Mohamed Razip v PP [1987] SLR (R) 525; [1987] SLR 142 (refd)

Ng Ai Tiong v PP [2000] 1 SLR (R) 490; [2000] 2 SLR 358 (refd)

Ng Chye Huey v PP [2007] 2 SLR (R) 106; [2007] 2 SLR 106 (refd)

Ong Beng Leong v PP [2005] 2 SLR (R) 247; [2005] 2 SLR 247 (refd)

PP v Bachoo Mohan Singh [2008] SGDC 211 (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 Fernandez Joseph Ferdinent [2007] 4 SLR (R) 1; [2007] 4 SLR 1 (refd)

PP v Lim Joo Soon [1981] 1 MLJ 107 (refd)

R v Mahalingan [2008] 3 SCR 316; (2008) 237 CCC (3d) 417 (refd)

Ramnandan Prasad Narayan Singh v PP (1921) 22 Cr LJ 467 (refd)

Regina v Ashdown [1974] 1 WLR 270 (distd)

Regina v Grantham [1969] 2 QB 574 (distd)

Salwant Singh v PP [2005] 1 SLR (R) 36; [2005] 1 SLR 36 (refd)

Tee Kok Boon v PP [2006] SGCA 16 (refd)

Wee Soon Kim Anthony v Law Society of Singapore [1988] 1 SLR (R) 455; [1988] SLR 510 (refd)

Wong Hong Toy v PP [1985–1986] SLR (R) 371; [1984–1985] SLR 298 (refd)

Wong Hong Toy v PP [1987] SLR (R) 213; [1994] 2 SLR 396 (refd)

Court of Criminal Appeal (Amendment) Ordinance 1960 (No 24 of 1960) s 19B (1)

Criminal Procedure Code (Cap 68,1985 Rev Ed) s 250

Interpretation Act (Cap 1,2002 Rev Ed) s 2

Penal Code (Cap 224,1985 Rev Ed) s 209 (consd) ;ss 23,24, 109

Rules of Court (Cap 322,R 5, 2006 Rev Ed)

Subordinate Courts Act (Cap 321,2007 Rev Ed) ss 2, 52 (1)

Supreme Court of Judicature Act1969 (Act 24 of 1969)

Supreme Court of Judicature Act (Cap 15, 1970 Rev Ed) s 44 (1)

Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed) ss 44, 44 (1) ,60 (4)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) ss 29A (2) , 60 (1) , 60 (2) (consd) ;ss 44 (5) ,50, 60,60 (5) ,74 (1)

Court Martial Appeals Act1968 (c 20) (UK) ss 8 (1) , 9 (1) ,9 (3)

Courts of Judicature Act1964 (No 7 of 1964) (M'sia) ss 50 (2) ,66

Courts Ordinance 1948 (No 43 of 1948) (Malaya)

Criminal Appeal Act 1968 (c 19) (UK) ss 33 (2) , 34

Courts and Jurisdiction–Court of Appeal–Whether Court of Appeal could hear appeal against High Court judge's decision not to refer question of law of public interest to it–Section 29A (2) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

Criminal Procedure and Sentencing–Questions of law of public interest–What constituted question of law of public interest–Section 60 (1) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

Criminal Procedure and Sentencing–Questions of law of public interest–When court would reframe questions of law of public interest raised by applicant–Section 60 (1) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

Criminal Procedure and Sentencing–Questions of law of public interest–Whether Court of Appeal could grant extension of time where applicant had previously made application to High Court judge–Test to determine whether extension of time should be granted to applicant to apply to High Court judge to reserve question of law of public interest to Court of Appeal–Section 60 (2) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

Legal Profession–Duties–Extent of solicitor's duty to verify instructions received from clients

Statutory Interpretation–Construction of statute–Construction of provisions involving jurisdiction of court

The applicant-appellant, Bachoo Mohan Singh (“BMS”), was engaged by Koh Sia Kiang and his wife (together, the “Sellers”) in respect of a property transaction that was tainted by a cash-back arrangement. A writ of summons endorsed with a statement of claim (“SOC”) was subsequently filed by BMS's firm, on the Sellers' behalf, at the Subordinate Courts. The SOC referred to an Option to Purchase (“OTP”) for a flat and stated the selling price indicated on the OTP of $490,000, but not the agreed sale price of $390,000. The SOC did not quantify the claim for damages.

Subsequently, BMS was charged and convicted under s 209 (“s 209”), read with s 109, of the Penal Code (Cap 224, 1985 Rev Ed) (“the PC”) for abetting the making of a false claim in court and was sentenced to three months' imprisonment by the district judge (“the District Judge”). The High Court judge (“the HC Judge”) dismissed BMS's appeal on conviction but partially allowed his appeal on sentence. BMS then applied under s 60 (1) (“s 60 (1)”) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the SCJA”) to reserve questions of law of public interest for the Court of Appeal's determination. The HC Judge dismissed BMS's s 60 (1) application, taking the view that no questions of law of public interest had arisen.

BMS then applied under Criminal Motion No 14 of 2009 (“CM 14”): (a) to set aside the HC Judge's decision that there were no questions of law of public interest; (b) for the Court of Appeal to determine the question of public interest pursuant to its inherent jurisdiction; and (c) for his conviction to be set aside. In Criminal Appeal No 6 of 2009 (“CCA 6”), BMS appealed against the HC Judge's refusal to reserve the stated question of law of public interest to the Court of Appeal. During the course of the hearing, counsel for BMS applied for an extension of time to re-apply to the HC Judge to refer questions of law of public interest pursuant to s 60 (2) of the SCJA (“s 60 (2)”). After the hearing, the Prosecution applied, under Criminal Motion No 30 of 2009 (“CM 30”) for an extension of time to apply to the HC Judge to refer two questions of law of public interest to the Court of Appeal. In addition, the Prosecution opposed BMS's application for an extension of time, arguing that BMS's application was his second to the courts, and that the Court of Appeal ought not entertain a subsequent application.

Held, partially allowing CM 14 (Choo J dissenting) and unanimously allowing CM 30 and dismissing CCA 6:

Per Rajah JA:

(1) There were two limbs to s 29A (2) of the SCJA (as well as s 44 (1) of the SCJA (1985 Rev Ed)). The first was that of “any decision made by the High Court” and the second was that of the High Court's “original criminal jurisdiction”. In respect of the former, the words meant that the Court of Criminal Appeal (as it then was) was to hear appeals against orders of finality (ie, those resulting in conviction and sentence, or acquittal) and were not inserted in 1973 to include all decisions made by the High Court. In respect of the latter, the phrase “original criminal jurisdiction” referred to the trial jurisdiction of the High Court. The fact that an order made by the High Court might be considered final (though no such finding was made in respect of s 60 (1)) did not necessarily make it one that was given by the High Court in exercise of its original criminal jurisdiction: at [49].

(2) The words “an application” in s 60 (2) meant “any application” that was being made rather than the first application before either court. Under s 2 of the Interpretation Act (Cap 1, 2002 Rev Ed), unless the context indicated otherwise, words in the singular included the plural and vice versa. If it was intended that only one application could be made to the High Court (if in time) or the Court of Appeal (if out of time), Parliament could have made its intention clear by using terminology that would convey such intention. The role of the Court of Appeal was to ensure that important decisions of the High Court involving questions of law of public interest were correctly arrived at. A narrow interpretation of s 60 (2) could result in the Court of Appeal being unable to consider even obviously erroneous determinations on a question of law that was of public interest. It could not be assumed that the Public Prosecutor would always raise such a question to the Court of Appeal if it arose. Construing the jurisdiction under s 60 (2) narrowly to only first time applications would mean that there would be no available relief where...