Fatimah bte Kumin Lim v Attorney-General

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 06 November 2013
• Neutral Citation: [2013] SGHC 232
• Court: High Court (Singapore)
• Docket Number: Criminal Motion No 30 of 2013
• Year: 2013
• Published date: 20 November 2013
• Hearing Date: 26 June 2013,24 July 2013,11 June 2013
• Plaintiff Counsel: Thong Chee Kun, Hamidul Haq, Istyana Ibrahim and Wong Shi Yun (Rajah & Tann LLP)
• Defendant Counsel: Kow Keng Siong and Luke Tan (Attorney-General's Chambers)
• Subject Matter: Criminal procedure and sentencing,Bail,Extradition
• Citation: [2013] SGHC 232

Woo Bih Li J: Introduction

Ms Fatimah bte Kumin Lim (“the Applicant”) was the subject of an extradition request from the United Kingdom (“the 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 2013.¹ The Applicant was arrested on the same day.² 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

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.

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.

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.

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.

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

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.

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 accused of non-bailable offence may be released on bail 93.—(1) Subject to section 95(1), if any person accused of any non-bailable offence is arrested or detained without warrant by a police officer, or appears or is brought before a court, he may be released on bail by a police officer of or above the rank of sergeant or by the court.

…

Exceptions to bail or release on personal bond 95.—(1) An accused shall not be released on bail or on personal bond if — (a) he is charged for an offence punishable with death or imprisonment for life; (b) having been previously released on bail or personal bond in any criminal proceedings, he had not surrendered to custody or made himself available for investigations or attended court, and the court believes that in view of this failure, he would not surrender to custody, or make himself available for investigations or attend court if released; or (c) he has been arrested or taken into custody under a warrant issued under section 10, 24 or 34 of the Extradition Act (Cap. 103) or endorsed under section 33 of that Act.

(2) Notwithstanding subsection (1), the court may — (a) direct that any juvenile or any sick or infirm person accused of such an offence be released on bail; or (b) release on bail an accused charged with an offence referred to in subsection (1)(a), if — (i) the offence is also punishable with an alternative punishment other than death or life imprisonment; and (ii) the offence is to be tried before a District Court or a Magistrate’s Court. (3) In this section, “accused” includes a “fugitive” as defined in the Extradition Act.

High Court’s powers to grant or vary bail 97.—(1) Whether there is an appeal against conviction or not, the High Court may grant bail to any accused before it, release him on personal bond or vary the amount or conditions of the bail or personal bond required by a police officer or a Subordinate Court, and impose such other conditions for the bail or personal bond as it thinks fit.

…

In considering whether bail could be granted to the Applicant, there was an apparent tension between ss 95(1)(c) and 97(1) CPC 2012.

The extradition process

The legal procedure for extraditing a person to a country declared as a Commonwealth country to which Part IV of the Extradition Act applies is set out under Part IV itself. The UK is such a declared country. First, following s 24(1) of the Extradition Act, a warrant of apprehension is issued by a Magistrate of the Subordinate Courts. The warrant is issued upon authorisation by the Minister via a notice under s 24(1)(a) or upon an application supported by such evidence as would justify the issuance of the warrant or the person’s apprehension without a warrant (s 24(1)(b)). Once the person has been apprehended, s 25(1) mandates that he shall “be brought as soon as practicable before a Magistrate”. Section 25(2) provides that: (2) A Magistrate may remand a person brought before him under this section, either in custody or on bail, for a period or periods not exceeding 7 days at any one time.

Thereafter, if the requirements under s 25(7) are satisfied, the Magistrate shall commit that person to prison to await the relevant warrant for his surrender to the Commonwealth country in question.

The threshold question

The threshold question was whether the High Court’s power to grant bail under s 97(1) is circumscribed by s 95(1)(c) CPC 2012 (“the Issue”). Put in another way, does the High Court have unfettered discretion to grant bail in extradition proceedings?

The Applicant’s contentions

The Applicant submitted that the purpose behind granting bail in domestic criminal cases applies equally in extradition cases, ie, that a person who is subject to extradition proceedings is innocent until proven guilty.³

The Applicant contended that the High Court has a wide power to grant bail under s 97(1) in any circumstance and this power is not fettered by s 95(1)(c). Neither is it fettered by any requirement that there ought to be special or exceptional circumstances before bail is granted to her.⁴

The Applicant also contended that if there is a lacuna in the CPC 2012, then the court has the inherent jurisdiction and a wide power to grant bail in the circumstances.⁵

The Applicant relied heavily on the decisions of the High Court in Mohamed Hisham bin Sapandi v Public Prosecutor [2011] 4 SLR 868 (“Hisham”) and Christanto Radius v Public Prosecutor [2012] 3 SLR 749 (“Christanto”) and a statement made by Mr K Shanmugam, the Minister of Law (“the Minister”) in Parliament on 18 January 2012 on the matter.

The Respondent’s contentions

The Respondent submitted that the language of s 95(1)(c) is clear in prohibiting bail to an accused who is the subject of extradition proceedings and that the High Court’s power under s 97(1) applies to domestic criminal cases only and not to extradition proceedings.

The Respondent also submitted that if the High Court’s power is not circumscribed by s 95(1)(c), the High Court should still not grant bail to the Applicant unless there were special circumstances to persuade the court to do so.⁶

The Respondent appeared to agree with Hisham (which was not a case dealing with extradition proceedings) but to disagree with Christanto (which was a case dealing with extradition proceedings) and attempted to confine the Minister’s statement in Parliament to the instances set out in s 95(1)(a) only.

The court’s reasons

On 24 July 2013 I dismissed the application for bail and now provide my reasons.

Overview of the authorities

The predecessor to CPC 2010 and CPC 2012 is the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC 1985”). The equivalent provisions of CPC 1985 were ss 352(1) and 354(1). I set out the two provisions below.

352.—(1) When any person accused of any non-bailable offence is arrested or detained without a warrant by a police officer or appears or is brought before a court, he may be released on bail by any police officer not below the rank of sergeant or by that court, but he shall not be so released if there appear reasonable grounds for believing that he has been...