BQG v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JCA
• Judgment Date: 09 July 2021
• Neutral Citation: [2021] SGCA 68
• Published date: 14 July 2021
• Docket Number: Criminal Motion No 19 of 2021
• Year: 2021
• Hearing Date: 15 June 2021
• Plaintiff Counsel: Wong Siew Hong, Lee Peng Khoon Edwin, Charles Ng and Clarence Cheang Wei Ming (Eldan Law LLP)
• Citation: [2021] SGCA 68
• Defendant Counsel: Kumaresan Gohulabalan, Sruthi Boppana and Tay Jia En (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Subject Matter: Criminal Procedure and Sentencing,Criminal references

Andrew Phang Boon Leong JCA (delivering the judgment of the court):

This is an application pursuant to s 397 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) seeking leave to refer a question of law of public interest to the Court of Appeal. The applicant and a co-accused claimed trial in the General Division of the High Court to charges of serious sexual offences in HC/CC 40/2019 (“CC 40”). Before the trial had even commenced, the applicant and the co-accused filed HC/CM 20/2021 and HC/CM 28/2021 respectively, seeking that the Prosecution disclose witness statements of the complainant and her boyfriend. The High Court judge (“the Judge”) refused to grant the motions. The applicant thus filed CA/CM 19/2021 (“CM 19”) pursuant to s 397(1) of the CPC (ie, the present application) seeking leave to refer a question of law of public interest to the Court of Appeal. The co-accused did not make a similar application. The question that the applicant seeks to refer is: “Whether the Public Prosecutor should disclose to the Defence the witness statements of prosecution witnesses who are also witnesses to be called at a criminal trial”. The applicant alternatively asks this court to direct the Prosecution to refer the question to the court pursuant to s 397(2) of the CPC. In response, the Prosecution argues that CM 19 should be summarily refused under s 397(3B) of the CPC.

The relevant parts of s 397 of the CPC read as follows:

Reference to Court of Appeal of criminal matter determined by General Division of High Court in exercise of its appellate or revisionary jurisdiction

397.—(1) When a criminal matter has been determined by the General Division of the High Court in the exercise of its appellate or revisionary jurisdiction, and a party to the proceedings wishes to refer any question of law of public interest which has arisen in the matter and the determination of which by the Judge has affected the case, that party may apply to the Court of Appeal for leave to refer the question to the Court of Appeal. (2) The Public Prosecutor may refer any question of law of public interest without the leave of the Court of Appeal.

…

(3B) Where — (a) a party applies under subsection (1) for leave to refer a question to the Court of Appeal; and (b) it appears to the Court of Appeal that the question is not a question of law of public interest which has arisen in the matter, and the determination of which has affected the case, to which the application relates, the application may, without being set down for hearing, be summarily refused by an order, under the hand of a presiding Judge sitting in the Court of Appeal, certifying that the Court of Appeal is satisfied that the application was made without any sufficient ground. (3C) A decision of the Court of Appeal to summarily refuse under subsection (3B) an application under subsection (1) can only be made by a unanimous decision of all the Judges sitting in the Court of Appeal.

[emphasis in bold in original; emphasis added in bold italics and underlined bold italics]

It is of the first importance to note at the outset the context in which the present application has been made. Put simply, this application has been made in the context of the exercise of the original jurisdiction of the General Division of the High Court and, indeed, has been made even prior to the commencement of the trial itself....