Goldring Timothy Nicholas and others v Public Prosecutor

• Jurisdiction: Singapore
• Judge: V K Rajah JA
• Judgment Date: 25 April 2013
• Neutral Citation: [2013] SGHC 88
• Court: High Court (Singapore)
• Hearing Date: 29 August 2012,25 October 2012,07 September 2012
• Docket Number: Criminal Revision No 17 of 2012
• Plaintiff Counsel: Wendell Wong, Choo Tse Yun and Benedict Eoon Zizhen (Drew & Napier LLC)
• Defendant Counsel: Luke Tan, Kevin Yong, Nakoorsha bin Abdul Kadir and Jeremy Yeo (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Revision of Proceedings
• Published date: 30 April 2013

V K Rajah JA: Introduction

When law enforcement authorities seize objects in the lawful exercise of their powers of investigation, what effect does such seizure have on pre-existing rights or arrangements in relation to those objects? Are law enforcement authorities required to allow access to these objects to those otherwise entitled to legal custody or control of the items? If so, in what circumstances must access be granted and what is the scope to which this access extends? These were some of the interesting questions which arose in this application.

This was an application (“the Application”) by Timothy Nicholas Goldring, Geraldine Anthony Thomas and John Andrew Nordmann (collectively, “the Applicants”) for criminal revision of the decision of the Senior District Judge (“SDJ”) at a criminal case disclosure conference (“CCDC”) held on 6 August 2012. At that CCDC, the SDJ had dismissed the Applicants’ request for the Prosecution to produce copies of documents which were in the control of the Applicants before they were lawfully seized by the Commercial Affairs Department (“CAD”).

At the conclusion of the hearing before me on 25 October 2012, I allowed the Application and directed that access should be provided to the Applicants within a reasonable time. On 23 November 2012, the Prosecution filed Criminal Reference No 4 of 2012 to reserve various questions arising from my decision for determination by the Court of Appeal.

I now set out the detailed reasons for my decision.

The facts

The Applicants were directors of Profitable Plots Pte Ltd (“the Company”). The Applicants were also the accused persons in District Arrest Cases Nos 010468 to 010725 of 2012, which involved 86 charges of abetment by conspiracy to cheat (“the Charges”). The Charges consisted of alleged cheating offences where the Applicants were accused, for example, of knowingly making untrue representations that money invested through an investment scheme offered by the Company would be used exclusively to finance the purchase of “Boron CLS Bond” products which had purportedly been pre-sold to major corporations.¹

On 11 August 2010, officers from the CAD searched the Company’s premises and seized documents pursuant to an order under s 58 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“the 1985 CPC”). The CAD seized all working documents, laptops and data storage items from the Company’s offices, amongst other documents (“the Seized Documents”).² The Seized Documents were the property of the Company. The Applicants estimated that the Seized Documents consisted of a total of 197,240 individual documents (not including documents which were electronically stored).³ The CAD concurrently issued receipts which only contained brief details of the Seized Documents (“the Receipts”).⁴

It is common ground that the CAD did not give the Applicants the opportunity to make copies of any of the Seized Documents before it took the Seized Documents away. The investigating officer in charge of the search, Assistant Superintendent Ho Ban Hsiung (“ASP Ho”), informed the Applicants on the day of the search that if they required any of the Seized Documents, they could write to the CAD to request for them.⁵

After the search, the Applicants requested the CAD on several occasions for copies of selected documents amongst the Seized Documents. The CAD acceded to these requests and the Applicants’ last successful request was made on 21 February 2012. I pause to note that the CAD consistently acceded to the Applicants’ requests for copies of their documents over a period of about one and a half years after the seizure of the Seized Documents in August 2010.

On 27 March 2012 (which was about one and a half years after the CAD searched the Company’s premises and seized the Seized Documents), the Charges (see above at [5]) were preferred against the Applicants.

On 13 April 2012, the first applicant, Timothy Nicholas Goldring, wrote to ASP Ho to request for copies of some Seized Documents (“Schedule A Documents”). On 18 April 2012, ASP Ho rejected this request, stating:⁶ 3. ... [P]lease note that, if required, [the documents] will be disclosed in due course as part of the Prosecution’s disclosure obligations under the criminal case disclosure conference (“CCDC”) regime and according to the timelines therein.

On 29 May 2012, the Case for the Prosecution was served on the Applicants. The Applicants again requested for copies of the Schedule A Documents on 1 June, 15 June and 25 June 2012. On 26 June 2012, the Prosecution rejected the Applicants’ request because it took the position that they had no legal basis for the request.

On 17 July 2012, during the second CCDC, the SDJ directed the parties to file written submissions on (a) whether the Applicants were entitled to apply to the CCDC judge for an order for production of the Schedule A Documents, and (b) whether a CCDC judge was empowered to make such an order. On 6 August 2012, the SDJ dismissed the Applicants’ application and delivered a brief oral judgment. However, I note that at that time there was a lack of clarity with respect to the legal basis on which the Applicants sought copies of the Seized Documents. The issues mentioned below at [18] only clearly crystallised during oral submissions in the course of the hearings before me.

On 13 August 2012, the Applicants filed Criminal Motion No 73 of 2012 (“CM 73/2012”). The Applicants prayed, inter alia, for the following orders: That the order by the SDJ on 6 August 2012, rejecting the Applicant’s request for the Prosecution to produce copies of the Schedule A Documents, be set aside; That the Prosecution produce copies of the documents listed in the enclosed schedules (“the Materials”) to the Applicants prior to the filing of the Case for the Defence under the Criminal Procedure Code (Act 15 of 2010) (“CPC 2010”). For completeness, it bears mentioning that a revised edition of the CPC 2010 was published in 2012.

The Materials were estimated by the Applicants to consist of 5,750 individual documents (not including documents which were electronically stored), and the Materials consisted of about 3% of the total number of Seized Documents.⁷ Broadly speaking, the Materials could be classified into the following categories:⁸ Records of the accounts of the Company’s clients; Copies of marketing material produced by the Company; and Personnel files relating to employees of the Company seized from the Company’s human resource department.

In the course of the hearings before me, the Applicants filed Criminal Revision No 17 of 2012 (“CR 17/2012”) and withdrew CM 73/2012 after the Prosecution pointed out that an application to set aside an order made by the SDJ had to be made via criminal revision. The Prosecution did not object to this development. The orders and directions which the Applicants sought in CR 17/2012 were similar to those which they sought in CM 73/2012 (see [13] above).

The Applicants’ submissions

The Applicants’ main arguments were as follows:⁹ There is a common law right for owners to obtain copies of documents seized by the police and it would be prejudicial and detrimental to the conduct of a fair trial if copies of the Materials were not produced to the Applicants. Each and all of the Materials were relevant, necessary and desirable for the purpose of the Applicants’ preparation of their defence. Alternatively, even if the Prosecution has a discretion in deciding whether to allow the Applicants to obtain copies of the Materials, the Prosecution’s duty of disclosure (as recognised under Muhammad bin Kadar and another v Public Prosecutor [2011] 3 SLR 1205 (“Kadar 1”)) ought to be followed and developed such that copies of the Materials which are relevant to the matter should be provided during the filing of the Case for the Prosecution.

The Prosecution’s submissions

The Prosecution’s main arguments were as follows:¹⁰ Under Singapore law, apart from the provisions of the CPC 2010, there is no legal right of access by accused persons to documents validly obtained and retained by the police in the course of investigations, regardless of whether the documents originated from the accused persons or from third parties. In other major common law jurisdictions, there is no common law right of access to documents seized in the course of criminal investigations based on ownership or prior possession, though statutory rights of access have been specially created by the legislature in some of those jurisdictions. On the facts of the Application, there is no basis for the creation of any new “procedure” of access via s 6 of CPC 2010 as this would create a procedure that is inconsistent with the CPC 2010, and in particular, s 166(2)(a) of the CPC 2010.

The issues before the court

There were four issues before the court: whether there was a common law right of access to objects seized by law enforcement authorities; whether, if there was such a common law right, the introduction of the CPC 2010 had affected and/or modified this common law right; whether, even if there was no such right at common law, it would be in the interests of justice to recognise the existence of such a right; and whether, on the facts, the Application should be granted.

Issue 1: Whether there was a common law right of access to objects seized by law enforcement authorities The common law right of access to documents over which an accused had ownership or legal custody or a legal right to control immediately before the lawful seizure

In the course of the proceedings, it became clear that there are three broad categories of documents that could be the subject of criminal disclosure: (a) documents over which the Applicants had ownership or legal custody or a legal right to control immediately before the lawful seizure (“Category 1 Documents”); (b) statements made by the Applicants to third...