Ee Yee Hua v Public Prosecutor

• Jurisdiction: Singapore
• Judge: A V Winslow J
• Judgment Date: 23 May 1969
• Neutral Citation: [1969] SGHC 5
• Citation: [1969] SGHC 5
• Date: 23 May 1969
• Published date: 19 September 2003
• Plaintiff Counsel: Dato' David Marshall (David Marshall)
• Docket Number: Criminal Revision No 2 of 1969
• Defendant Counsel: N Ganesan (Osborne-Jones & Co),KS Rajah (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Year: 1969

This petition for revision has been preferred by one, Ee Yee Hua, who was the complainant in respect of an offence under s 323 of the Penal Code which he alleged in his complaint before the fourth magistrate, Singapore on 30 May 1968 had been committed by an officer of the Corrupt Practices Investigation Bureau who, according to him, had assaulted him on 28 May 1968. As a result of investigations which the magistrate caused to be made into the matter, he finally decided on 29 January 1969 to issue a summons against one Fong Kei Kwong under s 325 of the Penal Code. It should be observed that, according to the Schedule to the Criminal Procedure Code, an offence under s 323 is triable by a magistrate whereas an offence under s 325 is triable by a district judge.

The summons was duly served on the said Fong Kei Kwong and came on for mention before the Ninth Magistrate on 6 March 1969 when the DPP informed the court that the prosecution had instructions to withdraw the summons and the court discharged the accused, such discharge amounting to an acquittal.

The petitioner accordingly prays that the order of discharge amounting to an acquittal may be reversed or annulled or varied on the ground that the Ninth Magistrate erred in law in granting a discharge amounting to an acquittal as he had no jurisdiction to acquit in respect of a charge under s 325 and could at most discharge him not amounting to an acquittal.

Mr David Marshall appeared at the hearing of the petition for the petitioner and Mr KS Rajah, DPP, on behalf of the Public Prosecutor.

Mr Marshall very properly drew my attention to a preliminary question as to whether a complainant such as the petitioner should be granted audience at the hearing of the petition for revision in the exercise of the court`s discretion since s 312 of the Criminal Procedure Code does not confer any right to be heard either personally or by an advocate on any party when the High Court is asked to exercise its powers of revision. The proviso to the same section empowers the court, if it thinks fit, to hear any party in such circumstances. It was conceded by Mr Marshall that the parties to the summons before the magistrate were the State and the accused.

Mr Rajah, on the other hand, whilst recognizing that the court has a discretion to hear a stranger on revision, contended that the circumstances of each particular case should control the exercise of the court`s discretion.

I indicated to counsel that I would give my decision on the preliminary question after hearing submissions on the petition and that in the meantime Mr Marshall could continue to address the court at least in the capacity of an amicus curiae.

I will now attempt to dispose of this preliminary issue before dealing with the petition itself.

Sulaiman CJ in Srimati Sailabala Devi v Emperor (1933) 34 Cr LJ 1117 held that a party to a proceeding would include the accused, the Crown or the complainant. He went on to say:

As interference in a criminal revision is discretionary, the High Court is not absolutely bound even to hear the accused or complainant much less his counsel. But it has always been the invariable practice in all courts to hear them and their counsel, if ready.

It seems to me that the complainant in this case was not a complete stranger with regard to whom Sulaiman CJ further held:

My answer to the first question, therefore, is that an application filed by a third party, who is a total stranger to the proceedings and had no locus standi to invoke the jurisdiction of the court is merely one for bringing the matter to the knowledge of the court; and that in such a proceeding, his counsel should not expect to be heard.

Mr Rajah went on further to contend that as an appeal against a magistrate`s order of acquittal could only be preferred by the Public Prosecutor and no one else, the court should not hear the complainant.

In two Indian cases, however, which were drawn to my attention, the court held that the Criminal Procedure Code did not prevent a complainant from invoking the revisionary jurisdiction of the High Court. (See Raj Kumar Paul v Amar Chand Das & Ors [1962] 1 Cr LJ 679 and Bisheshar & Ors v R AIR 1949 All 214.) In the latter case, the court went further to hold that the complainant could be heard in support of his application for revision.

Mr Marshall also cited a number of other Indian cases where the courts permitted counsel to appear on behalf of complainants in applications for revision against acquittal.

When this petition was originally submitted to me by the Registrar for directions, I was aware that the petitioner was represented by the firm of David Marshall, advocates and solicitors, and I directed that a date should be fixed for argument in open court, that all parties, including the person acquitted, and the complainant as well as the Public Prosecutor and counsel representing the various parties, should be present. In short, I had already decided to entertain the application for revision since it raised a question of some importance affecting the jurisdiction of the magistrates` courts.

We all know that where a private person makes a report at a police station of a non-seizable offence such as assault or causing hurt, it is the invariable practice for officers in charge of police stations to refer such a complainant to a magistrate`s court. In this particular case, the complainant was so referred and the Fourth Magistrate, after causing investigations to be made, and after ascertaining the identity of the person against whom the complaint was made, decided on the materials before him that an offence of voluntarily causing grievous hurt under s 325 of the Penal Code was disclosed against one Fong Kei Kwong and he accordingly issued a summons against the accused in this case.

Had the case been mentioned on 6 March 1969 before the Fourth Magistrate, perhaps that would have been an end of the matter because the Fourth Magistrate was himself a district judge. It, however, went before the Ninth Magistrate who was not.

As Shabir Ahmad J in Muhammad Ali v R (1950) 51 Cr LJ 1343/44 said:

In cases where the order of acquittal is passed by a court not having jurisdiction or is based on an incomplete record of evidence, or is against any provision of law, no difficulty arises because in such cases the order of acquittal can be set aside and a re-trial ordered without any prejudice being caused to the accused person. In cases where the order of acquittal is passed by a court of competent jurisdiction and in which the entire evidence of the prosecution has been recorded, the High Court should be reluctant to order a re-trial in revision, because such an order means practically a direction to the subordinate court to which the case is sent, to convict though, because of the absence of an appeal under s 417 of the Criminal Procedure Code, the High Court itself would not be competent to alter the acquittal into conviction.

It should be noted that s 439 of the Indian Criminal Procedure Code which is substantially the same as our s 311 goes one step further than our law and specifically provides that where an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. Moreover, in Singapore it is only the Public Prosecutor who has the power to present an appeal...