Goh Kah Heng (alias Shi Ming Yi) v Public Prosecutor and Another Criminal Motion

JudgeChoo Han Teck J
Judgment Date12 March 2009
Neutral Citation[2009] SGHC 61
Docket NumberCriminal Motions Nos 4 and 8 of 2009
Date12 March 2009
Published date19 March 2009
Plaintiff CounselAndre Yeap SC, Adrian Wong Soon Peng, Hamidul Haq and Jansen Chow (Rajah & Tann LLP)
Citation[2009] SGHC 61
Defendant CounselNg Lip Chih (NLC Law Asia LLP),Jaswant Singh and David Chew (Attorney-General's Chambers)
CourtHigh Court (Singapore)
Subject MatterApplication to have trial transferred from Subordinate Courts to High Court,Judges,Transfer of cases,Trials,Senior District Judge head of Commercial Affairs Department at time when applicants charged,Section 185(1) Criminal Procedure Code (Cap 68, 1985 Rev Ed),Applicants charged by Commercial Affairs Department,Courts and Jurisdiction,Criminal Procedure and Sentencing

12 March 2009

Judgment reserved

Choo Han Teck J:

1 Goh Kah Heng @ Shi Ming Yi (“the first applicant”) was charged with various offences under the Penal Code, Cap 224, 1985 Rev Ed and the Charities Act, Cap 37, 2007 Rev Ed. Raymond Yeung Chi Hang (“the second applicant”) was charged for two offences of abetment by conspiracy with the first applicant. The trial has been scheduled to commence in the District Court from 2 April to 24 April 2009. Both applicants applied in these proceedings before me for an order transferring the trial from the District Court to the High Court. The application was made pursuant to s 185(1) of the Criminal Procedure Code, Cap 68, 1985 Rev Ed (“CPC”) the relevant portion of which provides as follows:

Whenever it is made to appear to the High Court that … a fair and impartial inquiry or trial cannot be had in any criminal court subordinate to it, it may order that … [that] criminal case shall be transferred to and tried before the High Court.

Mr Andre Yeap SC, counsel for the first applicant, submitted that this court should make the order because there is a reasonable apprehension that a fair trial would not be possible. Mr Ng Lip Chih, counsel for the second applicant agreed with Mr Yeap and submitted that the second applicant’s trial be similarly transferred to the High Court.

2 The reason for these applications under s 185(1) of the CPC was that when the applicants were charged by the Commercial Affairs Department (“CAD”) Mr Tan Siong Thye, the present Senior District Judge, was the head of the CAD. Mr Yeap contended that since the Senior District Judge assesses the overall performance of his subordinate judges such as the trial judge, there is, therefore, a reasonable apprehension that the applicants may not receive a fair trial since the trial judge may “subconsciously” be prejudiced against them, and where there are evenly balanced arguments, lean in favour of the prosecution. Mr Yeap and the Deputy Public Prosecutor Mr Jaswant Singh could not agree as to whether Mr Tan was personally involved in the investigation of the applicants. For the reasons that I shall now set out, I am of the view that this was not an issue that I needed to decide because my decision here would be the same even if Mr Tan was personally involved in the investigation.

3 Mr Yeap cited a number of cases in support of his client’s cause. In the Indian case of Narendralal Mukherjee v The State (1956) Cr LJ 974(2) Vol 57 (“Narendralal Mukherjee”), CN 354 as well as the Burmese case of Maung Than Shwe v Deputy Commissioner, Hanthawaddy (1937) 38 Cr LJ 923 (“Maung Than Shwe”), the High Court ordered the trial of the applicants there to be transferred to another court because of the apprehension that the applicants would not receive an impartial trial. In Narendralal Mukherjee the High Court was of the opinion that a magistrate who had assisted in the investigation of the accused person should not also be the same person to conduct the trial. In Maung Than Shwe the High Court was of the opinion that the magistrates from the district in which the accused was charged should not conduct the trial because the accused...

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