Case Note: REMARKS, MORE REMARKS AND A GROUNDS OF DECISION

• Published date: 01 December 2009
• Date: 01 December 2009
• Author: S Chandra MOHAN LLB (Hons), LLM (NUS), PhD (London); Advocate & Solicitor (Singapore); Practice Associate Professor, Singapore Management University.
• Citation: (2009) 21 SAcLJ 591

One Judgment too Many?

T T Durai v Public Prosecutor[2007] SGDC 334

In May 2008, the High Court dismissed the appeal of former NKF CEO, T T Durai, against his conviction and sentence. What is little known is that one of Durai’s six grounds of appeal was in fact upheld. The appellate judge subsequently devoted nine out of 12 paragraphs of his four-page Grounds of Decision, to explain his reasons for doing so. Although this ruling did not affect the final outcome of the Durai appeal, it has to some extent helped to settle a question that has vexed criminal law practitioners in recent years. This concerns the legality and propriety of writing multiple judgments in a case. Such a practice amongst subordinate court judges was revealed in the Durai case to be more widespread than was previously thought. This note discusses the usefulness of the decision in the light of the uncertainty amongst lower court judges as to the legality of this strange practice. It also examines the shortcomings of the judgment in this regard.

I. Introduction

1 On 11 June 2007, T T Durai, the former CEO of the National Kidney Foundation (“NKF”), was convicted on one charge of “knowingly” using, with intent to deceive NKF, an invoice which contained a false statement, an offence under s 6(c) of the Prevention of

Corruption Act.1 He was sentenced to three months’ imprisonment for this offence.

2 Durai’s petition of appeal to the High Court against his conviction and sentence was filed on 24 January 2008. In it he raised six grounds of appeal. The first five grounds were stated to be:2

(a) the failure of the prosecution to establish the ingredients of the charge, at the close of the prosecution case;

(b) material “intrinsic and extrinsic” contradictions in the evidence of David Tan, the main prosecution witness;

(c) failure of the trial judge to treat the evidence of David Tan, an accomplice, with customary caution;

(d) error in law and fact by the trial judge in finding there was a core of “untainted evidence” from which adverse inferences unfavourable to the appellant were drawn and, consequently, in requiring him to give an explanation; and

(e) drawing adverse inferences from the appellant’s election to remain silent when called upon to make his defence.

3 The sixth and last ground of appeal, the most relevant to this note, was against the multiple judgments written by the trial judge:3

The trial judge erred in law in issuing the Grounds of Decision dated 17 December 2007 in contravention of the Criminal Procedure Code when he had already given his reasons for his findings in writing in the form of the three written Remarks dated 28 March 2007, 11 June 2007 and 21 June 2007 comprising 45 pages.

4 This was the only ground of appeal that was allowed by Justice Tay Yong Kwang who heard the appeal. Unfortunately for the appellant, that decision in his favour did not have the slightest effect on the final result of the appeal.

II. The multiple judgments

5 What the trial judge had done in this case was to issue a total of four written judgments, which he had variously described, at different stages of the proceedings. On 28 March 2007, he issued a nine-page written judgment termed “Remarks at the Close of the Prosecution’s Case” which contained his reasons for calling on the defence. On 11 June 2007, he gave a 29-page written reasons for convicting the accused which he called “Remarks before Verdict” and on 21 June 2007, after sentencing the accused to three months’ imprisonment, he issued another nine-page written “Remarks at Sentencing”. The three “Remarks” contained a total of 47 pages. A final 63-page Grounds of Decision4 then followed on 17 December 2007, some six months after the appellant had filed his notice of appeal. This was the only judgment that the District Judge was required by law to write.5

III. The appellant’s complaint

6 The appellant’s complaint, on appeal, was that the writing of the multiple judgments by the trial judge was a clear breach of s 217(1) of the Criminal Procedure Code6 which reads:

No court other than the High Court, when it has recorded its judgment, shall alter or review the judgment.

7 Clearly, this provision embodies the principle of functus officio which is “at the very core of the principle of finality”.7 According to Spenser Wilkinson J, “[i]f a written judgment is delivered, it is perfected as soon as it is delivered and signed; if an oral judgment is delivered … it is perfected as soon as it has been pronounced and the effect thereof has been entered in the judge’s note-book and signed”.8

8 Section 217(2) confines the “limited circumstances” when an alteration or review of a judgment is permissible, to clerical errors and to “any other mistakes” which must be rectified before the court rises for the day.9 A mistake is not “mere forgetfulness”.10 It is, as Russell CJ

explained in Sandford v Beal,11“a slip made, not by design but by mischance”. Obviously, a change of heart or opinion, on further reflection, would not be a mistake sufficient to warrant an alteration or review of a previous court judgment under s 217(2) of the Code.

9 Section 217(2) does not contemplate a court hearing and deciding a disputed issue as to whether a mistake was made. It applies only if a mistake was obvious to the court or admitted by all parties. In other situations, a party aggrieved by the alleged mistake should appeal or seek criminal revision.12 A mistake within s 217(2) of the Code must be a genuine error of law or fact as, for example, in the powers of sentencing prescribed by a statute or in not allowing counsel to address the court before sentencing in accordance with prescribed procedure.13 Altering a sentence because a new fact has arisen and not because of a clerical error or mistake at the time of the sentencing process, would be an improper application of s 217(2) of the Criminal Procedure Code.14

10 It was, therefore, submitted on behalf of the appellant that the trial judge had erred in this case by supplementing his three judgments totalling some 43 pages, written six months earlier between March and June 2007, with a 63-page Grounds of Decision dated 17 December 2007 containing “critical additions”15 or embellishments. Consequently, there was a breach of s 217 of the Code to warrant appellate intervention.

11 At the conclusion of the hearing of the appeal, the judge was persuaded, to use his own words, to “agree with the appellant that the District Judge should not have supplemented his 3 remarks given at various stages of the trial, notwithstanding his qualifier and reservation of a right to give ‘full grounds’”.16 Despite the appellate judge upholding this ground of appeal or allowing this ground of appeal, it proved a pyrrhic victory for the appellant as it was held not to affect the final outcome of the appeal.

IV. Previous criticisms

12 The practice of writing multiple judgments17 by the lower courts has not been considered by the Singapore High Court since the 1964 decision of the High Court in PP v John Thien18 when Wee Chong Jin CJ allowed an application to expunge the grounds of decision from the record in view of an earlier “brief judgment” that had been read out by the trial judge. However, in view of the frequency of this practice in recent years, it was the subject of academic examination in 2007.19

13 Questions as to the propriety of delivering multiple judgments by subordinate court judges were raised as a result of two “oral” judgments delivered by a District Judge in PP v Velusamy Mathivanan.20 Better known as the CrimsonLogic case, it was concluded in the District Court in December 2006.21 In that case, the trial judge had delivered a 67-page oral judgment in open court. On the following day, he made available to the parties another 69-page written judgment which he described as an “Oral Judgment”. As in the Durai judgments entitled “Remarks”, the “oral” judgments contained a number of qualifiers or caveats by the trial judge to the effect that if there were an appeal, “he would elaborate on his reasons”. The matter did not proceed to appeal thus making the writing of a further Grounds of Decision, unlike in the Durai case, unnecessary.

14 The CrimsonLogic judgments prompted the author in September 2007 to review the applicable legislative provisions and case law in both Singapore and Malaysia and to examine both the legality

and propriety of the practice amongst lower court judges of writing multiple judgments in a case. The review concluded that existing legislation and abundant judicial authorities in both Singapore and Malaysia disapproved the writing of multiple judgments. The paper suggested some reasons for the emergence of the recent practice of delivering multiple judgments in the lower courts and expressed the hope that the High Court would remedy the situation at the earliest opportunity. This article was published in the Singapore Law Gazette in September 2007, after the three sets of “Remarks” had been delivered in Durai, but before the writing of the Grounds of Decision in December 2007. In writing his Grounds of Decision, the trial judge in Durai appears to have felt compelled to address some of these criticisms in writing multiple judgments and to explain the reasons for his writing the earlier three “Remarks” or judgments.22

V. The trial judge’s explanation

15 According to the trial judge, the writing of his three earlier “Remarks” was done “in accordance with current practice in the Subordinate Courts”.23 He also gave other reasons. As the decisions of the Singapore Court of Appeal in Goh Lai Wak v PP24 and Anyanwu v PP25 against the writing of multiple judgments were in reference to High Court decisions, “it may be possible to argue”, the judge reasoned, that these decisions applied only to the High Court. In this line of reasoning the trial judge overlooked the fact that in Goh Lai Wak v PP, the Court of...