Criminal Procedure, Evidence and Sentencing

AuthorMOHAMED FAIZAL Mohamed Abdul Kadir SC LLB (Hons) (National University of Singapore), LLM (Harvard); Attorney and Counsellor-at-law (New York); Deputy Chief Prosecutor and Senior State Counsel, Crime Division, Attorney-General's Chambers. WONG Woon Kwong LLB (Hons) (National University of Singapore); Advocate and Solicitor (Singapore); Director and Deputy Senior State Counsel, Crime Division, Attorney-General's Chambers. Sarah SHI BA (Oxon) (Hons), BCL (Oxon); Advocate and Solicitor (Singapore); Deputy Director, Prime Minister's Office, Communications Group (Strategy Unit).
Date01 December 2019
Citation(2019) 20 SAL Ann Rev 407
Published date01 December 2019
Publication year2019
I. Stood down charges

14.1 Where an accused faces multiple charges across unrelated investigations and claims trial to all of the charges, it is inevitable that the proceedings would necessarily have to straddle multiple trials by virtue of the operation of s 133 of the Criminal Procedure Code1 (“CPC”) that would only allow for a joint trial where the “offences form part or are a part of series of offences of the same or a similar character”. On a practical level, this would mean “standing down” the charges that are not the subject of the trial, and having those charges held in abeyance as the proceeded charges (that is, the charges subject to the subsisting trial) are tried.

14.2 In Lim Chit Foo v Public Prosecutor,2 as the applicant had taken issue with the Prosecution's decision to proceed on a certain number of the charges in a particular trial to be scheduled as it caused him prejudice,

the Court of Appeal had the occasion to consider the precise character of standing down such pending charges and to determine the statutory basis for doing so, as well as whether the Prosecution's decision on which charges to proceed and to stand down at any one trial would be subject to judicial scrutiny.

14.3 Sundaresh Menon CJ, writing on behalf of the Court of Appeal, opined that the discussion necessarily implicated the question of whether the practice of standing down criminal charges was something that fell within the Prosecution's discretion in its conduct of criminal prosecutions or whether it was to be properly situated within the court's duty to supervise and fairly manage criminal proceedings.3 In coming to the conclusion that it was the latter, Menon CJ observed that the standing down of charges was, in effect, a decision to postpone the proceedings for those charges to a later date and if so, the conduct of those proceedings in relation to the management of these matters, as opposed to their prosecution, would necessarily be within the purview of the court and be subject to its supervisory jurisdiction. In this connection, Menon CJ found that the statutory basis for the standing down of charges was that of s 238 of the CPC. Section 238 allows the court to “postpone or adjourn any … proceedings … if the absence of a witness or any other reasonable cause makes this necessary or advisable”. While the provision only explicated on one specific example of reasonable cause, Menon CJ noted that this did not militate against a broader interpretation of the provision given that the provision in question was framed broadly and permissively4 and should be construed in a way that situated it in the context of the court's broader duty to guard against injustices in the conduct of criminal proceedings that are before it.5

14.4 Menon CJ, however, was at pains to impress the fact that this did not mean that the court would impinge on the Public Prosecutor's prerogative to initiate, conduct or discontinue criminal prosecutions as it deemed fit and that judicial scrutiny would only be considered where it is contended that a particular course of action would give rise to a risk of injustice.6 In this regard, it was highlighted that notwithstanding its decision in this case, the court has almost always granted such applications for charges to be stood down and that this would not change even if the practice was to be grounded in the court's jurisdiction to adjourn proceedings under s 238 of the CPC.7

II. Section 370 applications

14.5 Previous iterations of this chapter8 have discussed at some length the many strands of litigation in relation to s 370 of the CPC. The year 2019 was yet another in which the s 370 process was the subject of considerable litigation, and two decisions of the High Court from 2019 — Ng Siam Cheng Sufiah v Public Prosecutor9 (“Ng Siam Cheng Sufiah”) and Lee Chen Seong Jeremy v Public Prosecutor10 (“Lee Chen Seong”) — provide further judicial illumination on specific matters vis-à-vis the s 370 process.

14.6 In Lee Chen Seong, the High Court grappled with a variety of issues, two of which are of especial significance: first, whether the report filed pursuant to s 370 of the CPC within a year of seizure (as required under the provision in question) could be supplemented by additional material that had been filed out of time by the Prosecution; and second, whether it could be allowed to attend ex parte once the inter partes proceedings have commenced pursuant to s 370.

14.7 In responding to the first question in the negative, See Kee Oon J noted that the statutory language of the provision envisioned that a singular complete report be filed within the one-year time frame, and that this was consonant with considerations of finality and fairness.11 Any allowance for additions to the report would undermine the statutory framework and effectively allow the Prosecution to extend the deadline, rendering hollow the exercise of judicial oversight.12

14.8 As for the second question, See J observed that in the interests of certainty, finality and fairness, the court should not allow ex parte hearings once the inter partes hearing had commenced. Instead, See J observed if there were concerns as to the sensitivity of any information within the report filed pursuant to the obligations under s 370 of the CPC, the Prosecution should have gone before the magistrate ex parte first to request that such part of the report not be disclosed.13 Consequently, See J noted that it would necessarily follow that the inter partes hearing under s 370 of the CPC has to be confined to the material contained within the report filed by the Prosecution, and if the report is found to

be inadequate, it should order the delivery of the property to the persons entitled to the possession of the property.14

14.9 In Ng Siam Cheng Sufiah,15 the applicant had filed a criminal revision with the High Court alleging a suite of purported procedural irregularities and improprieties that she contended impugned the validity and legality of the seizure and, inter alia, seeking the High Court to order that the continued seizure and retention of the properties by the law enforcement agency (that first effected such seizures) were invalid, illegal and illegitimate. Such application had been taken after the Prosecution had filed various reports under s 370 of the CPC and during the life of a disposal inquiry hearing ordered, and overseen, by a magistrate to facilitate the distribution of the seized proceeds to the rightful claimants. In response to the application, the respondent, inter alia, took the position that the case did not fall within the revisionary jurisdiction of the High Court as there was no order made by the magistrate to finally dispose the rights of the parties, a prerequisite as criminal revision proceedings only applied to judgments or orders of finality. The respondent also contended that there was no legal basis to contend that the continued seizure and retention of the properties were invalid as legal control and custody of the seized properties would have been vested in the magistrate once the properties were subject to a report under s 370 of the CPC.

14.10 While finding against the applicant on the premise that there was no basis for the application for revision on the merits,16 See J provided two useful clarifications in relation to the court's powers vis-à-vis such seizures. The first is that s 400 of the CPC was not, in the context of the court's revisionary powers, to be read narrowly as the High Court's revisionary jurisdiction was wide and not confined to final orders. The fact that there was a lack of finality in the magistrate's orders in this case therefore was not an obstacle for the court to exercise its revisionary jurisdiction.17 The second is that the filing of a report pursuant to s 370 does not per se mean that there was no continued seizure by the law enforcement agency which first effected the seizure of such properties. See J noted that there was a valid distinction between legal custody and control as well as continued seizure by a law enforcement agency.18 Consequently, while legal custody and control may have vested in the

magistrate, the properties in question would continue to be under seizure by the law enforcement agency.19 It thus could not be said that the matter of the legality of such continued seizure by the law enforcement agency was outside the jurisdiction of the court.
III. Qualification of plea

14.11 In Public Prosecutor v Dinesh s/o Rajantheran,20 the respondent was charged with various offences under the Employment of Foreign Manpower Act21 and had pleaded guilty halfway through trial. However, during mitigation, he sought to retract his plea on the basis of disputing various factual material allegations against him that formed the crux of the charges in question. The District Court declined to reject the respondent's plea of guilt, noting that the procedural safeguards in law were adhered to and that the respondent's attempts to resile from such plea of guilt amounted to an abuse of process. On appeal, the High Court set aside the conviction on the premise that s 228(4) of the CPC was unambiguous and mandated such a rejection of the plea when it is qualified in mitigation. The Prosecution then proceeded to file a criminal reference to the Court of Appeal seeking clarification on various questions arising from the High Court's interpretation of s 228(4) of the CPC. The questions raised by the Prosecution (as reformulated by the Court of Appeal) read as follows:22

(a) Does s 228(4) of the CPC apply to a case where an accused person seeks to qualify his plea of guilt at the mitigation stage of sentencing to such an extent that it amounts to a retraction of his plea of guilt? [(“First Question”)]

(b) Must an accused person seeking to qualify his plea of guilt in the manner aforesaid at the mitigation stage of sentencing satisfy the court that he has...

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