Bachoo Mohan Singh v Public Prosecutor

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

Bachoo Mohan Singh

Plaintiff

and

Public Prosecutor and other applications

Defendant

[2009] SGCA 59

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

Court of Appeal

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 counsel had failed to properly state the questions of law of public interest. There was no question of issue estoppel arising. Further, the exercise of this discretion did not result in an appeal being heard by the Court of Appeal, as the applicant would still have to apply to the High Court for leave to refer the questions of law to the Court of Appeal, with the High Court judge having unfettered discretion in evaluating the application, unless the application was made by the Public Prosecutor. The concern about the opening of floodgates might be overstated given the various measures that could be instituted if there were any hints of abuse: at [56] and [58] to [61].

(3) Only the Court of Appeal could decide whether or not to grant an extension of time to make a s 60 (1) application to the High Court judge. The relevant factors in respect of a s 60 (2) application for an extension of time to reserve questions of law of public interest were: (a) the length of the delay in making an application under s 60 (2); (b) the explanation put forward for the delay, and, if no earlier application had been made pursuant to s 60 (1) of the SCJA, the reasons for this; and (c) the prospects of the application, taking into account the four factors that had to be satisfied before the High Court could grant leave to reserve any questions of law of public interest to the Court of Appeal, especially the significance of the public interest element in the application to be made under s 60 (1). Generally, the longer the delay, the more significant would be the consideration given to the second and third factors. However, the relative importance to be placed on each of these three factors would depend on the circumstances of each case: at [63], [65] and [66].

(4) For BMS's application, there was no delay attributable to any fault of his (ie, BMS). Further, this was the first time that an application for an extension of time under s 60 (2) had been made in similar circumstances. Furthermore, it was significant that the Prosecution's application was made soon after it had objected to BMS's application: at [68] and [69].

(5) For the Prosecution's application, the fact of delay was not a material consideration, given that its decision to frame questions of law of public interest was made in the light of the Court of Appeal's observations made during the hearing. This was especially since the Public Prosecutor himself had raised questions of law of public interest because s 60 deemed those questions to be in the public interest. Where an application for an extension of time was made by the Public Prosecutor to raise questions of public interest, in the absence of unexplainable delay that might have caused prejudice to any party, the Court of Appeal would ordinarily be slow to dismiss the application: at [71] and [72].

(6) A number of questions that could be of public interest had arisen in the present case. The legal profession required further clarification in relation to s 209 on the scope of a solicitor's duties in preparing pleadings and the extent of his or her duties when taking and acting on instructions. The lower courts' decision might have casted doubt on whether a solicitor could rely exclusively on his client's version of events in prosecuting a claim or defence when there was a factual controversy, and further, on the extent of a solicitor's duty of verification (if any) in the absence of incontrovertible evidence that entirely undermined his client's case. If an offence was committed by making a general claim in court through pleading material facts in his favour (without mention of adverse facts), there was a possible “chilling” effect on access to justice. Also, there was an issue...