Christanto Radius v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 24 May 2012
• Neutral Citation: [2012] SGHC 114
• Court: High Court (Singapore)
• Docket Number: Criminal Motion No 31 of 2012
• Published date: 05 June 2012
• Year: 2012
• Hearing Date: 09 May 2012,17 May 2012,24 May 2012
• Plaintiff Counsel: Quek Mong Hua and Julian Tay (Lee & Lee), and Hamidul Haq and Istyana Ibrahim (Rajah & Tann LLP)
• Defendant Counsel: Kow Keng Siong and Diane Tan (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and sentencing,Extradition,Bail
• Citation: [2012] SGHC 114

Choo Han Teck J:

Mr Radius Christanto (“Mr Christanto”) is 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’s application for bail before the learned District Judge (“DJ”) 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, I directed that Mr Christanto be transferred to Changi Hospital as an interim measure pending determination of the present criminal motion. Mr Christanto is 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) (“Australian Criminal Code”). The charges are as follows:

First charge

Between 17 December 1999 and on or about 6 June 2000 at Melbourne and diverse other places, Securency International Pty Ltd together with Radius Christanto, Myles Curtis, Mitchell Anderson, Hugh Brown and diverse others conspired to provide a benefit to another person, such benefit being not legitimately due to the other person, with the intention of influencing a foreign public official in the exercise of the official’s duties as a foreign public official in order to obtain or retain business.

Second charge

Between 17 December 1999 and on or about 2 February 2001 at Melbourne and diverse other places, Securency International Pty Ltd and Note Printing Australia Limited together with Radius Christanto, Myles Curtis, Mitchell Anderson, John Leckenby, Peter Hutchinson and diverse others conspired to provide a benefit to another person, such benefit being not legitimately due to the other person, with the intention of influencing a foreign public official in the exercise of the official’s duties as a foreign public official in order to obtain or retain business.

For completeness, I set out ss 11.5(1) and 70.2(1) of the Australian Criminal Code in full as follows: 11.5 Conspiracy (1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed. 70.2 Bribing a foreign public official (1) A person is guilty of an offence if: (a) the person: (i) provides a benefit to another person; or (ii) causes a benefit to be provided to another person or (iii) offers to provide or promises to provide, a benefit to another person; or (iv) causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and (b) the benefit is not legitimately due to the other person and (c) the first-mentioned person does so with the intention of influencing a foreign public official (who may be the other person) in the exercise of the official’s duties as a foreign public official in order to: (i) obtain or retain business; or (ii) obtain or retain a business advantage that is not legitimately due to the recipient, or intended recipient of the business advantage (who may be the first-mentioned person). (1A) In a prosecution for an offence under subsection (1), it is not necessary to prove that business, or a business advantage, was actually obtained or retained.

Benefit that is not legitimately due

(2) For the purposes of this section, in working out if a benefit is not legitimately due to a person in a particular situation, disregard the following: (a) the fact that the benefit may be, or be perceived to be, customary necessary or required in the situation; (b) the value of the benefit; (c) any official tolerance of the benefit.

Business advantage that is not legitimately due

(3) For the purposes of this section, in working out if a business advantage is not legitimately due to a person in a particular situation, disregard the following: (a) the fact that the business advantage may be customary, or perceived to be customary, in the situation; (b) the value of the business advantage; (c) any official tolerance of the business advantage.

Penalty for individual

(4) An offence against subsection (1) committed by an individual is punishable on conviction by imprisonment for not more than 10 years, a fine not more than 10,000 penalty units, or both.

[emphasis in original]

Mr Christanto was first contacted by the Corruption Prevention Investigation Bureau (“CPIB”) on 16 March 2012 after which he was required to attend three times at the CPIB (ie 16 March 2012, 19 March 2012 and 4 May 2012) which he did. He was initially required to post bail of $10,000 on 16 March 2012 and on the second occasion on 19 March 2012, was required to provide two sureties and the bail amount was increased to $200,000 ($100,000 per surety). Mr Christanto complied with his bail conditions until he was arrested and the warrant for apprehension was issued. The Prosecution oppose Mr Christanto’s criminal motion before the High Court on the following grounds: Bail is not available under s 95(1)(c) of CPC 2010 for fugitives who have been arrested under a warrant of apprehension issued under s 24(1) of the Extradition Act 2000; and Parliament has unequivocally spoken through s 95(1)(c) of CPC 2010 to deny bail to fugitives as the alternative may amount to a breach of Singapore’s obligations and may give a fugitive a further opportunity to flee from the reach of the requesting country. The following questions thus arise in this application: Whether the Magistrate/DJ had the power to grant bail to fugitives facing extradition proceedings under either the Extradition Act 2000 or CPC 2010; If not, whether the High Court had the power to grant bail to fugitives facing extradition proceedings either under s 97 of CPC 2010 or in exercise of its inherent jurisdiction, if any; and In the event that the High Court has the power to grant bail in extradition proceedings, what considerations are operative and what bail conditions should be imposed on the fugitive.

I turn now to the first question of the Magistrate’s power to grant bail in extradition proceedings. In order to understand the provisions governing the grant of bail in extradition proceedings, it is important to refer to the key Acts and their respective predecessors. The first is the Extradition Act 1870 (33 & 34 Vict c 52) (UK). It was later consolidated as the Extradition Acts, 1870 to 1935, henceforth termed “Extradition Act 1870” for convenience, which was passed in England as a comprehensive Act on extradition proceedings. Before the Extradition Act 1870 came into force, the law (apart from the common law) on extradition in England was in three treaties with France, US and Denmark. The three separate Acts which gave effect to the three treaties were repealed (see Sir Francis Piggott in Extradition: A Treatise on the Law relating to Fugitive Offenders (Kelly & Walsh Limited, 1910) (“Piggott”) at pp 29–30). Orders in Council were put in place to give effect to England’s extradition treaties, and the Orders in Council extended the application of the Extradition Act 1870 to the British colonies under s 17 of Extradition Act 1870 (Piggott at pp 37 and 177). Shortly thereafter, the Fugitive Offenders Act 1881 (44 & 45 Vict c 69) (UK) (“Fugitive Offenders Act 1881”) was enacted. Piggott explains the difference between the two Acts at p 189:

The object of the [Fugitive Offenders Act 1881] ... is to apply the principles of extradition to the [British Empire]. It differs from the Extradition Act [1870] in this important particular, that it applies to a much larger area of crime – to all offences punishable “either on indictment or information, by imprisonment with hard labour for a term of 12 months or more, or by any granter punishment.” It applies to all persons, subjects and aliens, who have committed offences in one part of the Empire and escaped to another part [of the Empire]. But its limitations are obvious; directly the fugitive has got beyond the dominions, it is powerless, and both subject and alien come under the Extradition Act [1870] with its limitations. This may be illustrated by the following example – If a Frenchman from Reunion were to commit an offence ... in Mauritius, and escape to Australia, he could be sent back to Mauritius under the Fugitive Offenders Act; but if he had escaped to New Caledonia he could only be dealt with under the Extradition Act ... and he is not liable to surrender if his offence is not within the treaty with France.

The Fugitive Offenders Act 1881 was intended for the extradition of fugitives who had committed offences in and then had escaped to different parts of the British empire whereas the Extradition Act 1870’s jurisdiction and operation depended, in all cases, on treaties with foreign countries. In so far as bail was concerned, under ss 5 of the Fugitive Offenders Act 1881, the Magistrate was expressly given powers to order bail for fugitives before him/her:

A fugitive when apprehended shall be brought before a Magistrate, who (subject to the provisions of this Act) shall hear the case in the same manner and have the same jurisdiction and powers, as near as may be (including the power to remand and admit to bail), as if the fugitive were charged with an offence...