Cigar Affair v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 01 July 2005
• Neutral Citation: [2005] SGHC 109
• Docket Number: Criminal Motion No 3 of 2005
• Date: 01 July 2005
• Published date: 04 July 2005
• Year: 2005
• Plaintiff Counsel: Kirpal Singh (Kirpal and Associates)
• Citation: [2005] SGHC 109
• Defendant Counsel: Christina Koh (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Whether questions amounting to questions of law of public interest or so exceptional that reference to Court of Appeal justified,Sections 60(1), 60(5) Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed),Criminal references,Application for questions to be reserved for determination of Court of Appeal,Criminal Procedure and Sentencing

1 July 2005

Woo Bih Li J:

Background

1 This was a motion by the applicant, Cigar Affair, for various questions of law alleged to be of public importance to be reserved for the determination of the Court of Appeal pursuant to s 60 of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“SCJA”). The motion arose from my decision in Criminal Motion No 23 of 2004 (“No 23”) in which I dismissed Cigar Affair’s application to quash a search warrant which had been issued and executed against it in respect of suspected offences under s 49 of the Trade Marks Act (Cap 332, 1999 Rev Ed) (“TMA”).

2 The detailed facts and my reasons for No 23 are set out in my grounds of decision for that case. Briefly, Cigar Affair was in the business of dealing in cigars and other tobacco products. As a result of certain emails sent by Cigar Affair to others, the suspicions of The Pacific Cigar Company (Singapore) Pte Ltd (“PCC Singapore”) were aroused as regards the infringement of two trade marks with the name “COHIBA” which belonged to Corporacion Habanos SA (“Habanos”). PCC Singapore was acting under a power of attorney from Habanos and had engaged private investigators to make a trap purchase from a shop operated by Cigar Affair. Consequently, a complaint was filed which led to the issue and execution of a search warrant authorising the seizure of any Cohiba cigars, any item or document bearing either of the trade marks and any document which referred to the trade marks and which was evidence that an offence under s 49 had been committed. Consequently, Cigar Affair applied to quash the search warrant and, as I have mentioned, I dismissed the application.

Questions posed by Cigar Affair

3 The questions for determination as framed by Mr Kirpal Singh, counsel for Cigar Affair, were as follows:

Question 1

Whether the form and procedure for bringing a matter of the Subordinate Courts for review to the High Court in the exercise of powers under Sections 266, 267 and 268 of the Criminal Procedure Code should be by way of a Criminal Petition to the High Court or by way of a Criminal Motion to the High Court?

Question 2

Whether it was necessary to aver to or refer to within a Complaint filed in the Subordinate Court pursuant to Section 53A of the Trade Marks Act [Cap. 332] (hereafter “TMA”) the mental element under Section 49 of the TMA prior to the issuance to a Search Warrant from the Subordinate Courts as is the case under Complaints filed under Section 136 of the Copyright Act [Cap 63]?

Question 3

Whether the scope of a Search Warrant issued from the Subordinate Courts pursuant to a Complaint filed in the Subordinate Court under Section 53A of the TMA should be confined or restricted to only the goods as set out and complained of as part of the “information given” under Section 53A(3)(a) of the TMA in the Complaint or also to goods upon which no information had been given?

Question 4

Whether the scope of a Search Warrant issued from the Subordinate Courts pursuant to a Complaint filed in the Subordinate Court under Section 53A of the TMA should be confined or restricted to only the document(s) or class of documents as set out and complained of as part of the “information given” under Section 53A(3)(c) of the TMA in the Complaint or to any document(s) regardless of whether information as to the documents had been tendered to Court within the Complaint?

Question 5

Whether there is any mechanism or procedure in determining the scope and/or relevancy of the documents being seized within the scope of a Search Warrant issued from the Subordinate Courts pursuant to a Complaint filed in the Subordinate Court under Section 53A(3)(c) of the TMA so as to prevent abuse and/or wrongful disclosure of confidential and/or sensitive information which is irrelevant to the subject matter of the Complaint and/or Search Warrants?

Question 6

Whether costs should be ordered against a respondent party who seeks to review the decision of the Subordinate Courts in exercise of its criminal jurisdiction pursuant to powers under Sections 266, 267 and 268 of the Criminal Procedure Code?

The court’s decision and reasons

4 The relevant parts of s 60 SCJA are ss 60(1) and 60(5) which state:

60.—(1) When a criminal matter has been determined by the High Court in the exercise of its appellate or revisionary jurisdiction, the Judge may on the application of any party, and shall on the application of the Public Prosecutor, reserve for the decision of the Court of Appeal 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.

(5) For the purposes of this section, any question of law which the Public Prosecutor applies to be reserved or regarding which there is a conflict of judicial authority shall be deemed to be a question of public interest.

5 In Abdul Salam Bin Mohamed Salleh v PP [1991] SLR 235, the then Court of Criminal Appeal dealt with the then s 60 SCJA which was in similar terms as the current s 60 SCJA for present purposes. Chief Justice Yong Pung How delivered the judgment of the Court of Criminal Appeal. He said at 238–240, [10]–[14]:

10 Before dealing with the four questions, it would not be inappropriate for us to review the application for the reference itself, in view of the manner in which the application was argued and decided in the court below. The relevant provisions of s 60 of the SCJA are as follows:

(1) When an appeal from a decision of a subordinate court in a criminal matter has been determined by the High Court, the Judge may on the application of any party and shall on the application of the Public Prosecutor reserve for the decision of the Court of Criminal Appeal any question of law of public interest which has arisen in the course of the appeal and the determination of which by the Judge has affected the event of the appeal.

…

(5) For the purposes of this section but without prejudice to the generality of its provisions —

(a) any question of law regarding which there is a conflict of judicial authority shall be deemed to be a question of public interest; and

(b) the reservation of a question of law for the consideration of the High Court under the provisions of any written law relating to criminal procedure or the exercise by the High Court of any power or revision under any such written law shall be deemed to be an appeal from a decision of a subordinate court in a criminal matter.

11 It is clear from the terms of s 60 that the court has discretion whether or not to refer a question to the Court of Criminal Appeal when the application to the court is made by a party other than the public prosecutor, even if the question satisfies all the prescribed conditions. It is equally clear that the reference must be of a question of law of public interest, which has arisen in the course of the appeal, and the determination of which by the judge has affected the event of the appeal. The crucial condition in the present case was whether these were questions of law of public interest. There is a paucity of published authorities in Singapore on s 60, but in applying the section Singapore courts have always had regard to the authorities decided under the corresponding s 66 of the Malaysian Courts of Judicature Act 1964. In delivering an oral judgment on a reference to the Federal Court in Tan Yin Yen v PP [1973] 2 MLJ 143, Suffian ACJ said:

It is to be observed that questions of law which may be referred to us under s 66 should not be questions that are of personal interest only to the accused or the public prosecutor, but should be questions that are of public interest, and it seems to us better if the High Court were to exercise their discretion under s 66 sparingly, so that the references are not used as an indirect way of appealing against matters that under the law have been finally determined by the High Court.

…

13 Section 66 was considered at greater length in Ragunathan v PR [1982] 1 MLJ 139 in which Raja Azlan Shah ALP said on pp 141 and 142:

But it is not sufficient that the question raised is a question of law. It must be a question of law of public interest. What is public interest must surely depend on the facts and circumstances of each case. We think that the proper test for determining whether a question of law raised in the course of the appeal is of public interest would be whether it directly and substantially affects the rights of the parties and if so whether it is an open question in the sense that it is not finally settled by this court or the Privy Council or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles in determining the question are well settled and it is a mere question of applying those principles to the facts of the case the question would not be a question of law of public interest.

It was urged upon us that in at least two previous cases (see PP v D’Fonseka [1958] MLJ 102 and Yap Ee Kong v PP [1981] 1 MLJ 144) the applicants had successfully obtained a reference, and that we should follow those cases and determine the questions referred to us. It was further said that the questions are of general importance upon which further argument and a decision of this court would be to the public advantage (see Buckle v Holmes [1926] 2 KB 125). A short answer is that the two cases referred above involved misdirections in law and this court had no hesitation to intervene because they called for discussion of...