Fatimah bte Kumin Lim v AG

• Jurisdiction: Singapore
• Judgment Date: 06 November 2013
• Date: 06 November 2013
• Docket Number: Criminal Motion No 30 of 2013
• Court: High Court (Singapore)

Fatimah bte Kumin Lim

Plaintiff

and

Attorney-General

Defendant

[2013] SGHC 232

Woo Bih Li J

Criminal Motion No 30 of 2013

High Court

Criminal Procedure and Sentencing—Extradition—Applicant seeking bail while awaiting committal hearing—Whether High Court had unfettered discretion to grant bail in extradition proceedings—Sections 95 (1) (c) and 97 (1) Criminal Procedure Code (Cap 68, 2012 Rev Ed)

The Applicant was the subject of an extradition request from the United Kingdom on account of alleged offences committed by her under s 1 of the Theft Act 1968 (c 60) (UK) in December 2009. A warrant of apprehension was issued under s 24 of the Extradition Act (Cap 103, 2000 Rev Ed) (‘the Extradition Act’) on 21 May 2013, and the Applicant was arrested on the same day. She applied on 29 May 2013 to be released on bail whilst being held in remand at Changi Women's Prison to await her committal hearing.

The application for bail was made pursuant to s 97 (1) of the Criminal Procedure Code 2010 (Act 15 of 2010) (‘CPC 2010’). However, s 95 (1) (c) CPC 2010 provided that ‘ [a] n accused shall not be released on bail or on personal bond if ... he has been arrested under a warrant issued under’, inter alia, s 24 of the Extradition Act. The threshold question before the High Court was therefore whether its power to grant bail under s 97 (1) of the most recent Criminal Procedure Code (Cap 68, 2012 Rev Ed) (‘CPC 2012’) was circumscribed by s 95 (1) (c) of the same statute.

Held, dismissing the application:

(1) Sections 93 (1), 95 (1) and 95 (2) CPC 2010 (and hereinafter also CPC 2012), which variously set out the general power to grant bail for non-bailable offences and the exceptions thereto, should be construed together. Each of these provisions referred to a ‘court’ either expressly or by implication, which was defined in s 2 CPC 2010 as ‘the Court of Appeal, the High Court, a District or a Magistrate's Court, as the case may be, which exercises criminal jurisdiction’. It was clear that the High Court was included in all three provisions. This was compatible with the view expressed in SSelvamsylvester v PP[2005] 4 SLR (R) 409 in the context of the Criminal Procedure Code (Cap 68, 1985 Rev Ed). The High Court was therefore bound by the express and clear provision in s 95 (1) CPC 2010 that no bail was to be granted in the instances set out in ss 95 (1) (a) to (c) unless any of the expressed exceptions applied: at [76] , [78] , [81] , [84] and [87] .

(2) The purpose of s 97 (1) was to empower the High Court to grant or vary bail before and after an accused person was convicted in situations outside of s 95 (1), such as where an accused person was denied bail by a Subordinate Court before he was committed to trial in the High Court. Even if s 97 (1) applied to extradition proceedings, it would still be subject to s 95 (1) (c). Section 95 (1) (c) was specifically introduced in 2010 where there had previously been no express prohibition against the granting of bail in extradition proceedings. If s 95 (1) (c) did not apply to the High Court it would have been otiose as any person who was the subject of extradition proceedings would simply apply for bail in the High Court: at [43] , [69] , [86] , [136] and [145] .

(3) Even if the High Court's power to grant bail in extradition proceedings was not fettered by s 95 (1) (c) CPC 2010, bail should be granted only where there were special reasons for doing so. The Applicant accepted that she had no special reason: at [168] .

[Observation: It was unlikely that Parliament was unprepared to extend s 95 (2) (a) to the situations set out in ss 95 (1) (b) and 95 (1) (c): at [104] .

Section 95 (2) (a) applied to extradition proceedings and to the exception in s 95 (1) (b): at [106] .]

Christanto Radius v PP [2012] 3 SLR 749 (not folld)

Gurcharan Singh v State (Delhi Administration) (1978) 1 SCC 118; AIR 1978 SC 179 (refd)

H M Boudville v King Emperor AIR 1925 Rang 129 (refd)

K S Menon, Re [1946] MLJ 49 (refd)

King Emperor v Joglekar AIR 1931 All 504 (refd)

King Emperor v Nga San Htwa AIR 1927 Rang 205 (refd)

Lim Meng Suang v AG [2013] 3 SLR 118 (refd)

Mohamed Hisham bin Sapandi v PP [2011] 4 SLR 868 (not folld)

Nacif-Borge, Re the Extradition of 829 F Supp 1210 (1993) (refd)

Parretti v US 122 F 3 d 758 (9th Cir, 1997) (refd)

PP v Dato' Mat [1991] 2 MLJ 186 (refd)

PP v Lim Yong Nam [2012] 2 SLR 596 (refd)

PP v Zulkifflee bin Hassan [1990] 2 MLJ 215 (refd)

PP v Dato' Balwant Singh (No 1) [2002] 4 MLJ 427 (refd)

R v Phillips (1922) 38 TLR 897 (refd)

R v Spilsbury [1898] 2 QB 615 (refd)

S Selvamsylvester v PP [2005] 4 SLR (R) 409; [2005] 4 SLR 409 (refd)

Sek Kon Kim v AG [1984] 1 MLJ 60 (refd)

Shanmugam v PP [1971] 1 MLJ 283 (refd)

Thomas Beaulieu v James Hartigan 430 F Supp 915 (1977) (refd)

Thomas Beaulieu v James Hartigan 554 F 2 d 1 (1st Cir, 1977) (refd)

United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 (refd)

Vasiljkovic v Commonwealth of Australia [2006] HCA 40 (refd)

Wright v Henkel 190 US 40 (1903) (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) ss 352 (1) , 352 (4) , 354 (1) , 354 (2) , 327, 328

Criminal Procedure Code 2010 (Act 15 of 2010) ss 95 (1) (c) , 97 (1) (consd) ;ss 2, 93 (1) , 95 (1) (a) , 95 (1) (b) , 95 (2) , 95 (3) , 417, 417 (1) (a) , 417 (1) (b) , 418

Criminal Procedure Code (Cap 68, 2012 Rev Ed) ss 95 (1) (c) , 97 (1) (consd) ;ss 93 (1) , 95 (1) , 95 (1) (a) , 95 (1) (b) , 95 (2) (a) , 95 (2) (b) , 95 (3)

Extradition Act (Cap 103, 2000 Rev Ed) ss 24, 25, Pt IV

Interpretation Act (Cap 1, 2002 Rev Ed) ss 9 A (2) , 9 A (2) (b) (i) , 9 A (3) , 9 A (3) (c) , 9 A (3) (d)

Code of Criminal Procedure 1898 (Act No 5 of 1898) (India) ss 497, 498

Code of Criminal Procedure 1973 (Act No 2 of 1974) (India) ss 437 (1) , 439 (1)

Criminal Procedure Code (FMS Cap 6) (M'sia) ss 388 (1) , 389

Extradition Act 1988 (Cth)

Fugitive Offenders Act 1881 (c 69) (UK)

Theft Act 1968 (c 60) (UK) s 1

Thong Chee Kun, Hamidul Haq, Istyana Ibrahim and Wong Shi Yun (Rajah & Tann LLP) for the applicant

Kow Keng Siong and Luke Tan (Attorney-General's Chambers) for the respondent.

Woo Bih Li J

Introduction

1 Ms Fatimah bte Kumin Lim (‘the Applicant’) was the subject of an extradition request from the United Kingdom (‘UK’) on account of alleged offences committed by her under s 1 of the Theft Act 1968 (c 60) (UK) in December 2009. On 3 May 2012, a warrant for the arrest of the Applicant was issued by the Hammersmith Magistrates' Court. Following the extradition request from the UK, a warrant of apprehension was issued under s 24 of the Extradition Act (Cap 103, 2000 Rev Ed) (‘the Extradition Act’) on 21 May 2013. The Applicant was arrested on the same day. On 29 May 2013 the Applicant filed her application to be released on bail whilst being held in remand at Changi Women's Prison to await her committal hearing.

Background facts

2 The circumstances of the alleged theft were set out in the disposition of Mr Peter Lewis, a detective sergeant under the employ of the Metropolitan Police in the UK. The disposition was sworn at the Westminster Magistrates' Court on 11 October 2012 in support of the request for the Applicant's extradition.

3 The Applicant was initially employed by Mariam Aziz, the wealthy ex-wife of the Sultan of Brunei, as a badminton coach in January 2003. She was later appointed as Mariam Aziz's bodyguard and personal assistant. The Applicant was treated as a trusted employee and accompanied Mariam Aziz around the world.

4 In July 2009, the Applicant approached Mariam Aziz's daughter, Afifa Abdullah, to borrow two diamonds for the purpose of convincing two developers with whom she was negotiating a property deal that she was a woman with access to means. The diamonds were gifts from the Sultan of Brunei to Mariam Aziz, and were referred to in the disposition as the ‘blue diamond’ and the ‘yellow diamond’. The ‘blue diamond’ is a 12.71 carat, pear shaped, flawless, vivid blue diamond purchased for £2,501,304.00. The ‘yellow diamond’ is a cut-cornered rectangular fancy vivid diamond weighing 27.10 carats. Both diamonds were kept in a locked cabinet within Mariam Aziz's UK residence.

5 Afifa Abdullah agreed to lend the diamonds to the Applicant. The Applicant is alleged to have then arranged for copies of the diamonds to be made. The original diamonds were subsequently returned to the safe. In early December 2009, the Applicant again asked to borrow the diamonds for the same purpose. The diamonds were handed to the Applicant on 3 December 2009. It is alleged that the Applicant returned the copies to Afifa Abdullah on the same day, and flew to Geneva to sell the originals. The diamonds were purchased by a third party on 23 December 2009 for a sum of US$7,083,972.86.

6 The deception was supposedly uncovered when, in mid-December 2009, Mariam Aziz asked Afifa Abdullah to arrange for the ring containing the 'blue diamond' to be resized. The diamond was checked by staff who advised that it was counterfeit. It was subsequently confirmed that the 'yellow diamond' was also counterfeit. By this time the Applicant had tendered her resignation.

Application for bail

7 The application for bail was made pursuant to s 97 (1) of the Criminal Procedure Code 2010 (Act 15 of 2010) (‘CPC 2010’). I should mention that there is a revised edition published in August 2012 (Criminal Procedure Code (Cap 68, 2012 Rev Ed) (‘CPC 2012’)) and the application should be construed as having been made under s 97 (1) CPC 2012. For present purposes, the material provisions in CPC 2010 and CPC 2012 are substantially the same.

8 Section 95 (1) (c) CPC 2012 stood in the way of the application for bail. To facilitate an understanding of these two provisions, s 93 (1) should be considered together with them. I set out below ss 93 (1), 95 in its entirety and 97 (1) CPC 2012.

When person...