Goldring Timothy Nicholas v PP

• Jurisdiction: Singapore
• Judgment Date: 25 April 2013
• Date: 25 April 2013
• Docket Number: Criminal Revision No17 of 2012
• Court: High Court (Singapore)

Goldring Timothy Nicholas and others

Plaintiff

and

Public Prosecutor

Defendant

[2013] SGHC 88

V K Rajah JA

Criminal Revision No17 of 2012

High Court

Criminal Procedure and Sentencing—Disclosure—Applicants requesting production of documents which they previously owned but were lawfully seized by law enforcement authorities—Applicants requesting production of seized documents having not served Case for the Defence—Prosecution intending to admit seized documents at trial having served Case for the Prosecution—Whether there existed common law right of access by accused persons to documents over which they had ownership or legal custody or a legal right to control immediately before lawful seizure—Whether Criminal Procedure Code 2010 (Act 15 of 2010) had affected and/or modified this common law right if it existed—Whether it would be in interests of justice to recognise existence of right of access to seized documents even if there was no such right at common law—Whether allowing applicants access to seized documents would be prejudicial to public interest—Sections6, 162, 166 (1) and 166 (2) (a) Criminal Procedure Code 2010 (Act 15 of 2010)

Statutory Interpretation—Construction of statute—Applicants requesting production of documents which they previously owned but were lawfully seized by law enforcement authorities—Meaning of ‘such procedures as the justice of the case may require’—Section6 Criminal Procedure Code 2010 (Act 15 of 2010)

Statutory Interpretation—Construction of statute—Applicants requesting production of documents which they previously owned but were lawfully seized by law enforcement authorities—Prosecution intending to admit seized documents at trial having served Case for the Prosecution—Applicants having not served Case for the Defence—Whether sequential process of disclosure in Pt IX Criminal Procedure Code 2010 (Act 15 of 2010) applied to documents previously owned by accused persons but were lawfully seized by law enforcement authorities—Whether Parliament had intended to exclude or restrict accused person's common law right of access to seized documents previously owned by him—Whether recognition of common law right of access to seized documents previously owned by accused persons would be inconsistent with Criminal Procedure Code 2010—Whether s166 (2) (a) Criminal Procedure Code 2010 prevented Prosecution from disclosing or allowing access to seized documents previously owned by applicants—Whether Parliament would have removed rights pre-existing in common law without express provision or clearly evinced intention to that effect—Sections162, 165 and 166 (2) (a) Criminal Procedure Code 2010 (Act 15 of 2010)

The applicants were directors of Profitable Plots Pte Ltd (‘the Company’). On 11 August 2010, officers from the CAD searched the Company's premises and seized documents pursuant to an order under s58 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (‘the 1985 CPC’). The documents seized were property of the Company and were estimated to be a total of 197,240 individual documents. After the search, the applicants requested the CAD on several occasions for copies of selected documents and the CAD had acceded to their requests up till 21 February 2012.

On 27 March 2012, the applicants were charged for abetment by conspiracy to cheat on 86 charges. On 13 April 2012, the first applicant wrote to CAD to request for copies of some of the documents seized (‘Schedule A Documents’). CAD rejected the first applicant's request, stating that 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 but the Prosecution rejected the applicants' request on 26 June 2012 on the basis that they had no legal basis for the request.

Subsequently, the applicants applied for an order for production of the Schedule A documents during the second CCDC before a senior district judge (‘SDJ’), but the SDJ dismissed their application on 6 August 2012. The applicants then applied for criminal revision of the decision of the SDJ, praying for the following orders: (a)that the order by the SDJ, rejecting the applicant's request for the Prosecution to produce copies of the Schedule A Documents, be set aside; and (b)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 2010 (Act 15 of 2010) (‘CPC 2010’).

The Materials were estimated to consist of 5,750 individual documents (not including documents which were electronically stored) and broadly speaking contained: (a)records of the accounts of the Company's clients; (b)copies of marketing material produced by the Company; and (c)personnel files relating to employees of the Company seized from the Company's human resource department.

In the course of the present proceedings, it became clear that there were three broad categories of documents that could be the subject of criminal disclosure: (a)documents over which an accused person had ownership or legal custody or a legal right to control immediately before the lawful seizure (‘Category 1 Documents’); (b)statements made by an accused person to third parties (‘Category 2 Documents’); and (c)documents belonging to third parties which do not fall under Category 1 Documents or Category 2 Documents (‘Category 3 Documents’). It was also common ground between the applicants and the Prosecution that prior to the lawful seize of the Materials by the CAD, the applicants were entitled to the same rights apropos the Materials as an owner would have been (ie, the applicants were seeking access to Category 1 Documents only).

Held, allowing the application:

(1) The key issue before the court was whether the applicants had a right to access Category 1 Documents, not Category 2 Documents or Category 3 Documents. Therefore, the principles laid down in this case were in relation to the disclosure of Category 1 Documents alone, and should not be applied to Category 2 Documents or Category 3 Documents unless there was clear justification for doing so: at [20].

(2) A common law right of access existed for Category 1 Documents seized by law enforcement authorities. The lawful seizure of objects by law enforcement authorities did not destroy or otherwise extinguish essential proprietary rights that an owner had in his property. It merely suspended the right to possession or control of the said property during the material period in the interest of the administration of criminal justice. It followed that a right of access to Category 1 Documents would only be suspended if there were reasonable concerns that allowing such access would or would be likely to prejudice the proper administration of justice. But if no such public interest concerns were present, the common law right of access to Category 1 Documents for the purpose of making copies thereof had to be respected and could not be denied to the applicants. This position was reflected in various common law jurisdictions surveyed as well: at [21], [23], [24], [33] and [35].

(3) The existence of statutory provisions in various common law jurisdictions which reflected this circumscribed right of access to Category 1 Documents did not mean that there was no prior common law right of access. No legislative material from any of these jurisdictions was cited to the court to indicate that those legislatures had taken the position that there was no prior common law right or that a new right was being statutorily created. In any event, the existence of common law rights would be a matter of interpretation of case law by the court: at [36] and [41].

(4) The existence of the common law right of access to Category 1 Documents appeared to have been accepted by the CAD itself, as its officers generally acted in a manner which was consistent with such a right: at [43].

(5) The Prosecution's arguments to the effect that the criminal disclosure framework found in Pt IX of the CPC 2010 had curtailed the applicants' common law right of access to Category 1 Documents (even if it existed) prior to them serving their Case for the Defence were rejected. The wording of s166 (2) (a) of the CPC 2010 - ‘need not serve on the defence’ - fell far short of a statutory injunction preventing the Prosecution from disclosing or allowing access to Category 1 Documents. The common law right of access to Category 1 Documents has not been modified and/or affected by the CPC 2010: at [48] to [50].

(6) Underlying the court's reasoning was the fundamental presumption of statutory interpretation that Parliament would not have removed rights pre-existing in common law if there was no express provision or clearly evinced intention to that effect. There was no indication from the relevant Parliamentary material that Parliament had intended to exclude or restrict an individual's common law right of access to Category 1 Documents when it enacted the CPC 2010: at [51] and [54].

(7) In addition, there were positive signposts indicating why Parliament could not have intended the criminal disclosure regime in the CPC 2010 to apply to Category 1 Documents. The rationale behind the sequential nature of the process of disclosure in Pt IX of the CPC 2010 was to avoid a situation where an accused person was given information before he had put his defence on record and could thereby tailor his evidence to fit the facts. While this rationale could apply meaningfully to Category 2 Documents or Category 3 Documents, it was not conceptually or practically meaningful for the accused person to be denied access (prior to him serving his Case for the Defence) to Category 1...