Christanto Radius v PP

• Jurisdiction: Singapore
• Judgment Date: 24 May 2012
• Date: 24 May 2012
• Docket Number: Criminal Motion No 31 of 2012
• Court: High Court (Singapore)

Christanto Radius

Plaintiff

and

Public Prosecutor

Defendant

[2012] SGHC 114

Choo Han Teck J

Criminal Motion No 31 of 2012

High Court

Criminal Procedure and Sentencing—Extradition—Bail—Whether High Court had power to grant bail to fugitives facing extradition proceedings either under s 97 Criminal Procedure Code 2010 (Act 15 of 2010) or in exercise of its inherent jurisdiction—If so, what considerations were operative and what bail conditions should be imposed on fugitive

Mr Radius Christanto (‘Mr Christanto’) was in remand at Changi Prison pursuant to a warrant for apprehension made on 3 May 2012, upon a request made by the Australian authorities on 27 April 2012 under the Extradition Act (Cap 103, 2000 Rev Ed) (‘Extradition Act 2000’). Mr Christanto was wanted by the Commonwealth of Australia to stand trial for two charges pertaining to an alleged conspiracy to bribe a foreign public official under ss 11.5 (1) read with 70.2 (1) of the Australian Criminal Code Act 1995 (No 12 of 1995). Mr Christanto's application for bail before the learned district judge (‘District Judge’) was denied on 4 May 2012. He therefore filed this criminal motion petitioning the High Court under s 97 of the Criminal Procedure Code 2010 (Act 15 of 2010) (‘CPC 2010’) for bail pending the hearing for committal under s 28 (7) of the Extradition Act 2000. On his application on 17 May 2012, this court directed that Mr Christanto be transferred to Changi Hospital as an interim measure pending determination of the present criminal motion.

Held, allowing the criminal motion:

(1) The absence of an express statutory provision conferring a power to the magistrate/District Judge to grant bail to the fugitive apprehended under the Extradition Act 2000 was not conclusive of the question of whether such a power existed. The only reasonable conclusion to follow from this silence was that the availability of bail was assumed by Parliament. The silence of the Extradition Act 2000 should be addressed by applying the general bail provisions contained in the CPC 2010 or the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (‘the old CPC’) (particularly, ss 351 and 352), depending on the time when extradition proceedings were commenced. While the old CPC provisions made no specific mention of extradition proceedings, s 95 (1) (c) of the CPC 2010 specifically stated that bail would not be granted in extradition proceedings. Thus it appeared that reading the Extradition Act 2000 with s 95 (1) (c)of CPC 2010, the magistrate did not possess the power to grant bail in extradition proceedings. Having had the benefit of full arguments in the present application, Public Prosecutor v Lim Yong Nam [2012] 2 SLR596 should be read in light of s 95 (1) (c) of CPC2010, the governing provision on bail applications before the Subordinate Courts. However, even though the magistrate was not empowered to grant bail in extradition proceedings, the High Court had the power to grant bail throughout extradition proceedings and to review the District Judge's refusal to grant bail under s 97 of CPC 2010, and alternatively, by invoking its inherent jurisdiction: at [4] and [24].

(2) The District Judge's refusal to grant Mr Christanto's bail was not appealable. The High Court's power to consider Mr Christanto's criminal motion under s 97 of CPC 2010 operated as a statutory power of review. The alternative justification was that this power arose from the inherent jurisdiction and power of the High Court to grant bail in extradition proceedings, and this justification had been relied upon by courts in other jurisdictions: at [6] and [12] to [16].

(3) Although the court in Mohamed Hisham bin Sapandi v PP [2011] 4 SLR 868 (‘Hisham’) was dealing with s 95 (1) (a) (which related to bail for ‘offences punishable with imprisonment for a term of 20 years or more’), the reasoning behind reading s 97 as the governing provision, unfettered by s 95 (1) of CPC2010 applied to every limb under s 95 (1), including s 95 (1) (c) pertaining to the grant of bail extradition proceedings. In fact, Hisham stood for the wider proposition that to interpret s 97 as subject to any of s 95 (1)'s restrictions would be incorrect as it would be contrary to Parliament's intention and would render the High Court's jurisdiction under s 97 of CPC2010 nugatory. It was for Parliament to clearly and unequivocally oust the courts of the power to grant bail in extradition proceedings, short of which s 97 should be interpreted as inclusive of fugitives and as unfettered by s 95 (1) (c) of CPC 2010: at [7] and [17].

(4) To interpret s 97 of CPC 2010 as excluding ‘fugitives’ would result in the drastic consequence of individuals apprehended under the Extradition Act 2000 being denied the opportunity to apply for bail to any court until their committal hearing which did not, by statute, have to be convened by any specific number of days from apprehension. This interpretation would be a serious denial of the established principle of ‘innocent until proven guilty’. When a person had been charged for a crime but not yet convicted, bail was one of the strongest and sincerest tribute to the presumption of innocence. It was true that persons on bail might jump bail. When such a person did so it was usually because he knew that he was guilty or he did not trust the justice system. Adherence to the presumption of innocence therefore encouraged the innocent to have confidence in the justice system, and maintain his/her liberty and right to be heard which the statutory provisions reviewed above seek to preserve. The term ‘fugitive’ should be read as a subset of ‘any accused’ under s 97 of CPC 2010 on the basis that extradition proceedings were simply a form of criminal proceedings to which all provision of the CPC 2010, where consistent with the Extradition Act 2000, had to necessarily apply: at [9] to [11].

(5) The inherent jurisdiction of this court in criminal proceedings was recognised in s 5 of CPC 2010. Parliament thus recognised and provided that the inherent jurisdiction of the court was not to be ousted by the operation of CPC 2010. The inherent jurisdiction of the court might be a basis on which bail could be granted or refusal of bail reviewed in cases where s 97 of CPC 2010 did not, on its plain meaning, apply: at [17].

(6) The Singapore courts did not have to invoke their inherent jurisdiction to grant bail in extradition cases since s 97 of the CPC 2010 was a clear statutory basis for the High Court to exercise its power to grant bail in all criminal proceedings. Accordingly, the uniform approach treating extradition proceedings as a subset of criminal proceedings was preferred. The relevant factors for each crime (whether extraditable or not) will vary depending on the nature of the offence, unique aspects of the factual matrix of the case and the individual in question. As in domestic proceedings, the flight risk posed by the individual could be addressed by the bail conditions imposed rather than eclipsing the availability of bail. The question of whether bail was granted depended on the facts of each case: at [19].

(7) Mr Christanto was awaiting his committal hearing. The fact that he co-operated with the Corruption Prevention Investigation Bureau to the best of his abilities and complied with bail conditions imposed upon him supported the grant of his bail at this juncture. Mr Christanto had substantial assets in and family ties to Singapore and the bail conditions imposed on his travel outside of this jurisdiction would sufficiently answer the Prosecution's concerns as to any flight risk which he potentially posed. Bail would be granted to Mr Christanto at $2,000,000 in two sureties with conditions as stated: at [24].

Amand v Home Secretary [1943] AC 147 (refd)

Chong Bing Keung, Peter, Re [1998] HKCFI 351 (refd)

Extradition of Nacif-Borge, In the Matter of 829 F Supp 1210 (D Nev 1993) (refd)

Hempel v Moore (1987) 70 ALR 714 (refd)

Hong Kong Special Administrative Region v Robert Henry Cosby [1999] HKCFI 944 (refd)

Knowles v Superintendent of Her Majesty's Prison Fox Hill [2005] 1 WLR 2546 (refd)

Mitchell, Re 171 F 289 (1909) (folld)

Mohamed Hisham bin Sapandi v PP [2011] 4 SLR 868 (folld)

PP v Lim Yong Nam [2012] 2 SLR 596 (refd)

R v Rademeyer (1985) 59 ALR 141 (refd)

R v Spilsbury [1898] 2 QB 615 (refd)

Sek Kon Kim v AG [1984] 1 MLJ 60 (refd)

United States of America v Terence Damien Kirby 106 F 3d 855 (9th Cir, 1996) (refd)

United Mexican States v Cabal (2001) 209 CLR 165 (refd)

Wright v Henkel 190 US 40 (1903) (refd)

Zacharia v Republic of Cyprus [1963] AC 634 (refd)

Zoeller v Federal Republic of Germany (1989) 90 ALR 161 (refd)

Criminal Procedure Code (Cap 68,1985 Rev Ed) ss 327, 351,352

Criminal Procedure Code 2010 (Act 15 of 2010) ss 95 (1) (a) - (c) , 95 (2) - (3) , 97 (consd) ; ss 5, 94 (2) (a) - (d) , 417, 418

Extradition Act 1968 (Act 14 of 1968)

Extradition Act (Cap 103,2000 Rev Ed) ss 10 (5) (b) , 11 (1) - (2) , 11 (6) (b) , 21 (2) , 23, 24 (1) , 24 (5) (b) , 25 (1) - (2) , 25 (6) (b) , 28 (7) , 34, 35 (2) , 35 (5) (b)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Bail Act 1976 (c 63) (UK)

Bail Act 1978 (NSW) s 6

Bail (Amendment) Act 2003 (c 26) (UK)

Commonwealth of Australia Constitution Act (Cth) s 73

Criminal Code Act 1995 (Cth) ss 11.5 (1) , 70.2 (1)

Criminal Procedure Code (FMS Cap 6, enacted in 1935) s 388 (i)

Criminal Procedure Code (Act 593, 1999 Rev Ed) (M'sia) s 394

Criminal Procedure Ordinance (Cap 221) (HK) s 9 J (1)

Extradition Act 1870 (c 52) (UK) ss 9,17

Extradition Act 1992 (Act 479) (M'sia) s 44

Extradition Act 1988 (Cth) s 21

Extradition Act 2003 (c 41) (UK) ss 4 (1) , 198, 200

Extradition (Commonwealth Countries) Act 1966 (Cth)

Extradition (Foreign States) Act 1996 (Cth)

Federal Court of Australia Act 1976 (Cth) s 59 (2)

Federal Court Rules (Cth) O 53 r 35

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