Bander Yahya A Alzahrani v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Steven Chong JA
• Judgment Date: 09 November 2017
• Neutral Citation: [2017] SGHC 287
• Plaintiff Counsel: Pang Giap Oon @ Arif Peter Pang (Peter Pang & Co)
• Docket Number: Criminal Motion No 47 of 2017
• Date: 09 November 2017
• Hearing Date: 03 November 2017
• Subject Matter: Stay of execution,Criminal references,Criminal Procedure and Sentencing
• Published date: 20 February 2018
• Defendant Counsel: April Phang and Kenny Yang (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2017] SGHC 287
• Year: 2017

Steven Chong JA:

This was an application by Bander Yahya A Alzahrani (“the Applicant”) for a stay of execution on his “conviction and sentence” pending the hearing and final disposal of a separate criminal motion in which he applied for leave under s 397 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) to refer three questions to the Court of Appeal (“the Leave Application”). The Applicant was convicted of three charges under ss 354A(1) and 352 of the Penal Code (Cap 224, 2008 Rev Ed) and sentenced to a total of 26 months and one week’s imprisonment and four strokes of the cane. His appeal against the conviction and sentence was dismissed. At the time of the filing of the present application, he had already begun serving his imprisonment sentence.

The present application raised an interesting issue of law as to whether the court had the power to order a stay of execution of sentence pending the determination of a leave application to bring a criminal reference, in circumstances where an accused person had already commenced serving his sentence. I will address this issue in the course of this judgment.

Background and procedural history

The Applicant was a Saudi Arabian diplomat who was in Singapore on holiday at the time of the offences. The victim was a 20-year-old Guest Relations Officer at the Shangri-La Rasa Sentosa Resort and Spa. The Applicant faced two charges under s 354A(1) of the Penal Code for outrage of modesty while wrongfully restraining the victim, and one charge under s 352 of the same for using criminal force on the victim. The offences took place while the victim was showing the Applicant around a suite at the hotel. The Applicant claimed trial to the charges against him. At the end of the trial, the District Judge (“the DJ”) convicted him of the charges and sentenced him to a total of 26 months and one week’s imprisonment and four strokes of the cane.

The Applicant appealed against both his conviction and sentence. This led to Magistrate’s Appeal No 9033 of 2017, which came before me on 21 July 2017. I affirmed the conviction and sentence imposed by the DJ. Subsequently, the Applicant, through his counsel, made three applications to defer the commencement of his sentence: At the end of the hearing of the appeal on 21 July 2017, the Applicant’s counsel orally applied for the sentence to be deferred so that the Applicant could attend to his personal affairs. I granted a one-week deferment of sentence and ordered that he commence his sentence on 28 July 2017. On 27 July 2017, one day before the Applicant was due to commence his sentence, his counsel wrote in to court requesting for a further deferment of sentence until 11 August 2017 so that the Applicant could see his family and settle some personal affairs. I granted this second application and ordered that he start his sentence on 11 August 2017. On 10 August 2017, again one day before the Applicant was supposed to begin his sentence, his counsel submitted a further request for a third deferment of sentence on the basis that he would be filing a criminal motion for leave to refer questions of law to the Court of Appeal. His counsel also requested for the Notes of Evidence of the hearing of the appeal on an expedited basis. I rejected this third application for deferment of sentence and ordered that he begin serving his sentence on 11 August 2017. The Applicant duly began serving his sentence on that day.

On 18 August 2017, the Applicant filed the Leave Application seeking leave to refer the following three questions to the Court of Appeal:

Question 1

How does the Court deal with the question of law of public interest which arises when the solicitor having conduct of the hearing in a criminal case puts to a witness his instructions and later informs the Court that he had erred as those were not his instructions as well as informing the Court that he had erred in his instructions in what he told the Court in a previous Court appearance for application to leave jurisdiction?

Question 2

Is there a need for expert evidence to assist the Court in determining the state of mind of the Complainant, a point of law of public interest, in an outraging molesting case where the Complainant asserts that she was confused, blank and did not know what she was doing and was on "auto-pilot" mode as an explanation of her seemingly normal behaviour after the alleged offences were committed?

Question 3

Could the Judge as a matter of law of public interest accept the evidence of the Complainant on her state of mind without expert evidence asserting that she was confused, blank and did not know what she was doing and was on "auto-pilot" mode?

The first question related to two incidents which occurred during the trial below. In the first incident, the Applicant’s counsel had initially put to the victim that the Applicant had given the victim a “friendly hug”, but later informed the DJ that there was no such hug and that he had misconstrued the Applicant’s instructions. The second incident arose during a pre-trial application for the Applicant to leave jurisdiction. His counsel had informed the court that he had to accompany his wife and children to China when they had in fact already left Singapore by the time of the application. His counsel tried to take responsibility by stating that he was not aware of the change in circumstances. However, the DJ rejected his counsel’s attempt to take responsibility for both incidents. The second and third questions related to the victim’s evidence that she was “confused”, “in a blank” and went on an “auto-pilot” mode after the incident. The DJ accepted her evidence without calling for any psychiatric evidence. She found that the victim was forthright and gave a coherent, compelling and credible account of the Applicant’s acts.

The Leave Application has been fixed before the Court of Appeal on a date between 5 February 2018 and 13 February 2018.

The parties’ arguments

In the present criminal motion, the Applicant sought a stay on his “conviction and sentence” pending the hearing and final disposal of the Leave Application. As the Applicant had been temporarily certified to be unfit for caning, this application was essentially for a stay of his imprisonment sentence. In the supporting affidavit filed by the Applicant’s new counsel, the main ground for the application was the concern that the Applicant might have to unnecessarily serve a substantial part of his imprisonment sentence in the event the Leave Application ultimately resulted in the conviction and sentence being set aside. In his submissions, he relied on s 383(1) read with s 401(2) of the CPC as well as Rajendar Prasad Rai and another v Public Prosecutor and another matter [2017] SGHC 187 (“Rajendar”) to argue that the scope of the court’s power to stay execution pending appeal under s 383(1) extended to criminal reference proceedings as well.

The Prosecution opposed the criminal motion. It contended that the court did not have the jurisdiction to stay the Applicant’s sentence in the first place. In this regard, it asserted that s 383 of the CPC was inapplicable because it dealt with the stay of execution on a sentence pending appeal. The Prosecution also submitted that s 401(2) read with s 383 of the CPC was only applicable when the High Court invokes its revisionary powers to correct decisions of the State Courts, which was not the case here. As for the holding in Rajendar, it was confined to orders of the court which had not yet been executed. Instead, the Prosecution contended that the relevant provision was s 318 of the CPC, which empowers the court to direct a sentence of imprisonment to take effect on a date other than that on which it was passed. However, the Prosecution argued that s 318 was also only applicable if the accused person had not commenced serving his sentence. In the present case, the court had already exercised its power under s 318 on 21 July 2017 and 27 July 2017 when it granted the two deferments on the commencement of sentence at the Applicant’s request. In any event, the Prosecution submitted that the Applicant had no reasonable prospect of succeeding in his criminal reference. Among other things, the Prosecution claimed that the Leave Application was an “obvious backdoor appeal disguised as a criminal reference” and was an “unmeritorious” application even on a cursory examination of the questions raised.

My Decision

In light of the parties’ arguments, there were two main issues that arose for determination: first, whether the court had the power to order a stay of proceedings pending a leave application to bring a criminal reference, in respect of a conviction for which an applicant had already commenced serving sentence; and second, if so, whether the power should be exercised in the present case.

Did the court have the power to order a stay of execution pending a leave application to bring a criminal reference, if an applicant had already started serving his sentence?

While the Applicant referred to a plethora of statutory provisions that purportedly grant the...