Criminal Procedure, Evidence and Sentencing

Publication year2017
AuthorMOHAMED FAIZAL Mohamed Abdul Kadir LLB (Hons) (National University of Singapore), LLM (Harvard); Attorney and Counsellor-at-law (New York); Deputy Chief Prosecutor and Senior State Counsel, Criminal Justice Division, Attorney-General's Chambers. WONG Woon Kwong LLB (Hons) (National University of Singapore); Advocate and Solicitor (Singapore); Director and Deputy Senior State Counsel, Criminal Justice Division, Attorney-General's Chambers. Sarah SHI BA (Oxon) (Hons), BCL (Oxon); Advocate and Solicitor (Singapore); Deputy Public Prosecutor and Deputy Senior State Counsel, Criminal Justice Division, Attorney-General's Chambers.
Date01 December 2017
Published date01 December 2017
Interplay between substantive justice and procedural requirements

14.1 It is often said that procedural laws and requirements are “ultimately handmaidens to help us achieve the ultimate and only objective of achieving justice as best we can in every case” and that consequently, they will not be allowed to “rule us to such an extent such that an injustice is done”.1 Three cases in 2017 provide an insight on how the courts weigh the interests of substantive and procedural justice to strike this balance and to determine the appropriate case-specific remedy.

14.2 In the first case, Public Prosecutor v Ong Say Kiat2 (“Ong Say Kiat”), the court dispensed with certain procedural requirements in the interests of substantive justice. In Ong Say Kiat, the Prosecution had initially filed a criminal revision to persuade the court to set aside the respondent's sentence of corrective training (“CT”) that had been imposed some three years prior. This was in the light of the decision of

Sim Yeow Kee v Public Prosecutor3 (“Sim Yeow Kee”), which was decided about 21 months after the respondent had been sentenced. Pursuant to the framework laid down in Sim Yeow Kee, the sentence of CT that was imposed on the respondent appeared to be unduly disproportionate.

14.3 However, Sundaresh Menon CJ found that criminal revision was not the correct procedure, for two reasons. First, the threshold for revision was not met, as Sim Yeow Kee represented a change in the law and there was no serious injustice at the time the respondent was sentenced.4 Secondly, s 400(2) of the Criminal Procedure Code5 (“CPC”) appeared to preclude the exercise of revisionary jurisdiction.6 The High Court thus granted the Prosecution leave to withdraw the application for criminal revision.

14.4 While the threshold for revisionary jurisdiction would not have been met, there were ample grounds for appellate intervention. In order for substantive justice to be done, Menon CJ granted the respondent leave to appeal out of time. The Prosecution also stated that it did not object to the respondent filing an appeal out of time. As no formal papers were filed, the High Court made a further order under s 380 of the CPC to dispense with the procedural requirements in the CPC to file a notice of appeal, petition of appeal, and any written submissions that might ordinarily be filed.7 The High Court then treated the appeal as having been heard and allowed it, setting aside the sentence of CT and imposing a term of imprisonment of time already served.

14.5 While the original vehicle of criminal revision was not the proper procedure to facilitate an appropriate outcome in line with the needs of justice in the case, the court exercised its power to trigger its appellate jurisdiction, including dispensing with certain procedural requirements under s 380 of the CPC in the interests of justice.

14.6 This does not mean that the courts will always waive such procedural requirements. Indeed, where the interests of substantive justice do not form a countervailing weight against procedural impropriety, the courts will be slow to dispense with procedural requirements, as it would not countenance an abuse of process. This point came to fore in the second case, Chew Eng Han v Public Prosecutor8 (“Chew Eng Han”), where the Court of Appeal found that

there was no countervailing interest of substantive justice that required the dispensation of procedural requirements. The applicant in that case had made a second application for a criminal reference out of time, after his first application had been heard and dismissed in its entirety.

14.7 The second application was filed out of time, and contained allegations that the three-judge coram of the High Court which heard his appeal against conviction and sentence was unconstitutional.

14.8 Writing on behalf of the Court of Appeal, Andrew Phang Boon Leong JA observed that the unwarranted delay in filing his second application alone would have warranted a dismissal of his application.9 Further, the applicant ought to have consolidated his questions in the first and second applications into a single application. The drip-feed questions through multiple applications were similarly an abuse of process that could not be countenanced.10 The second application was consequently dismissed.

14.9 Chew Eng Han demonstrates that where the failure to adhere to the stipulated procedure is irremediable, this may in itself result in the application being dismissed. In considering whether to dismiss procedurally irregular applications, Chew Eng Han suggests that the court will determine whether the ends of substantive justice are being served by the application. Where there is none, this will weigh in favour of the dismissal of the application.

14.10 The third and final case, Oon Heng Lye v Public Prosecutor11 (“Oon Heng Lye”), illustrates that where there is no countervailing interest of substantive justice in rectifying a procedurally defective order, an order will be allowed to stand as the revisionary threshold is not met. In Oon Heng Lye, while the forfeiture order bore procedural defects (the petitioner was not given the right to be heard, and the court had no power of forfeiture), the petitioner admitted that the property seized were the proceeds of a crime. In that case, while there was a procedural irregularity in the forfeiture order, this did not rise to a grave and serious injustice, and the forfeiture order was upheld as the court's revisionary power was not engaged.12

14.11 In Oon Heng Lye, the petitioner filed a criminal revision to quash a forfeiture order by a magistrate directing that moneys seized from him be forfeited to the State. These moneys were seized following the petitioner's arrest on suspicion of operating a business of unlicensed moneylending. While the petitioner was detained under the Criminal Law (Temporary Provisions) Act,13 the police applied for the seized funds to be forfeited to the State pursuant to s 392 of the 1985 edition of the Criminal Procedure Code14 (“CPC 1985”). The petitioner was not thereafter charged with any offence relating to unlicensed moneylending.

14.12 Menon CJ found that the forfeiture order was wrong in law for two reasons:

(a) The petitioner had a right to be heard under s 392 of the CPC 1985, and there was a requirement of notification.15 However, the petitioner had been denied the right to be heard, and the requirement of notification was not met.

(b) The magistrate had no power under s 392(1) of the CPC 1985 to forfeit the seized funds.16

14.13 However, these errors did not lead to a grave and serious injustice which warranted the exercise of revisionary powers, as the petitioner had no lawful entitlement to the moneys. The court held that reading s 392 of the CPC 1985 in context, and considering s 393(1) of the CPC 1985 in particular, a person is only “entitled to the possession” of seized property if he is in lawful possession of the seized property.17

14.14 While the petitioner had not been convicted of any offence, it was wrong to assume ipso facto that he was in lawful possession of the seized property.18 As the petitioner had admitted that the seized property was the proceeds of a crime in his statements, his possession cannot be regarded as lawful.19 It had been established beyond a reasonable doubt that the seized funds were the proceeds of the petitioner's unlicensed moneylending activities and the errors in the forfeiture order thus occasioned no substantial injustice to him.20

Use of accused persons' and co-accused persons' statements in trial

14.15 The use of an accused person's statements at trial to prove guilt, a matter that has been said to be a “complex and problem-fraught area in a legislative framework that itself is viewed by most commentators as having become overly technical”,21 continues to be the subject of multiple strands of jurisprudential development in 2017.

14.16 In Public Prosecutor v Tan Lye Heng22 (“Tan Lye Heng”), the High Court found that the trial judge has a discretion and a duty to reconsider its decision to admit a statement following a voir dire, if further or new evidence arises in the main trial, where this evidence is not tenuous.

14.17 The trial judge in Tan Lye Heng initially admitted the accused's statements following a voir dire. These statements contained the accused's admissions that the drugs belonged to him and were intended for sale or repacking. However, at the end of the proceedings, the district judge reversed his decision to admit the offender's statements. The district judge then acquitted the offender of a charge of trafficking in diamorphine.

14.18 On appeal, the High Court held that the trial judge erred in reversing his decision to admit the statements. The court then admitted the statements and reversed the acquittal. Steven Chong JA held that where a trial judge decides to admit a statement after a voir dire, he has a discretion and duty throughout the trial to reconsider this decision if further or new evidence emerges in the main trial that raises doubt about the voluntariness of the statement.23 This is the position under ss 279(7) and 279(8) of the CPC. If there is such evidence, which is not tenuous, the trial judge has the discretion to disregard the statement that was earlier admitted.24

14.19 The appellate court will apply the following test to determine whether the trial judge's discretion is rightly exercised:25 firstly, to examine what is the alleged operative threat, inducement, promise or oppression; secondly, to consider the trial judge's initial reasons for admitting the statements; thirdly, to consider the trial judge's reasons for his reversal; and finally, to examine what further evidence was raised at the main trial that was not raised during the voir dire.

14.20 The issue of when a co-accused person's statements may be used to prove the guilt of the...

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