Hia Soo Gan Benson v PP

• Judgment Date: 15 July 2013
• Date: 15 July 2013
• Docket Number: Criminal Motions Nos 76, 78, 79 and 99 of 2012
• Court: Court of Appeal (Singapore)

Hia Soo Gan Benson

Plaintiff

and

Public Prosecutor and other matters

Defendant

[2013] SGCA 40

Chao Hick Tin JA

,

V K Rajah JA

and

Tay Yong Kwang J

Criminal Motions Nos 76, 78, 79 and 99 of 2012

Court of Appeal

Criminal Procedure and Sentencing—Appeal—High Court dismissing fugitives’ criminal motions in order for review of detention hearing against district judge’s decision committing them to be extradited—Fugitives seeking to appeal against High Court judge’s dismissal of their criminal motions—Whether Extradition Act (Cap 103, 2000 Rev Ed) vested right of appeal with fugitives against order for review of detention decision in High Court—Whether decision of High Court in order for review of detention hearing made as part of its original criminal jurisdiction—Whether s 422 Criminal Procedure Code 2010 (Act 15 of 2010) prohibited appeal to Court of Appeal against order for review of detention decision in High Court—Section 12 (2) (b) Extradition Act (Cap 103, 2000 Rev Ed) —Section 29 A (2) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) —Section 422 Criminal Procedure Code 2010 (Act 15 of 2010) —Criminal Procedure and Sentencing—Criminal references—Fugitives seeking leave to refer alleged questions of law of public interest arising from decision of High Court to Court of Appeal—Fugitive’s application filed out of time—Whether fugitive’s questions relevant to determination by High Court—Whether fugitive should be given extension of time—Sections 397 (1) and 397 (3) Criminal Procedure Code 2010 (Act 15 of 2010) —Criminal Procedure and Sentencing—Habeas corpus—High Court granting fugitives leave to issue summonses for order for review of detention—High Court subsequently dismissing fugitives’ applications seeking issue of order for review of detention after substantive hearing—Whether s 422 Criminal Procedure Code 2010 (Act 15 of 2010) prohibited appeal against decision of High Court—Whether order for review of detention was issued only to bring fugitives to court for substantive review—Section 422 Criminal Procedure Code 2010 (Act 15 of 2010) —Order 54 r 2 (1) Rules of Court (Cap 322, R 5, 2006 Rev Ed) —Words and Phrases—Meaning of an “order for review of detention”—Section 372 (1) and Schedule IV r 13 Criminal Procedure Code 1900 (SS Ord No 21 of 1900) —Section 369 (1) Criminal Procedure Code 1910 (No 10 of 1910) —Sections 417 (2) and 422 Criminal Procedure Code 2010 (Act 15 of 2010)

In 2010, the United States of America (“US”) accused Hia and Seng (collectively, “the Parties”) of being part of a conspiracy with individuals in the US to procure restricted antennae in violation of US export regulations, and made a requisition for their extradition to the US to stand trial. At the committal proceeding in the Subordinate Courts, the district judge committed the Parties to custody on 10 February 2012 to await the warrant of the Minister for their surrender.

The Parties filed originating summonses (which were converted to criminal motions subsequently) in the High Court requesting for an order for review of detention to be issued forthwith or for directions that a summons for the order for review of detention to be issued. On 23 February 2012, the High Court judge (“the Judge”) granted the Parties leave to issue summonses for an order for review of detention. Further hearings then took place before the Judge on the legality of the Parties’ detention. Eventually, the Judge released a judgment dismissing the Parties’ applications, thereby validating the district judge’s order of committal for extradition against them.

On 17 August 2012, Seng filed an appeal against the Judge’s decision dismissing his application for an order for review of detention. However, this raised a preliminary issue as to whether the law permitted an appeal against the Judge’s decision to the Court of Appeal. Seng therefore filed a criminal motion petitioning the Court of Appeal to rule that it had jurisdiction to hear the appeal. Hia also attempted to file a notice of appeal, but as his application was made out of time, Hia had to file a criminal motion seeking an extension of time to file his notice of appeal.

Earlier, Hia had filed a criminal motion seeking leave to raise two alleged questions of law of public interest to the Court of Appeal. On 1 November 2012, a few days prior to the hearing of the aforementioned criminal motions, Seng also filed a criminal motion seeking an extension of time to file an application to seek leave to raise seven alleged questions of law of public interest to the Court of Appeal.

Held, dismissing the applications:

(1) The words of s 12 (2) (b) of the Extradition Act (Cap 103, 2000 Rev Ed) (“the Extradition Act 2000”) did not necessitate the vesting of a right of appeal with a party dissatisfied with the outcome of an order for review of detention hearing. Section 12 (2) (b) was more likely to have been inserted to cater for the possibility of a right of appeal that could, in the future, be vested with a dissatisfied fugitive by some other statute (s). Properly construed, it was a facilitative provision rather than a standalone, substantive remedy in favour of a dissatisfied fugitive. This view was supported by the stark differences between s 12 (2) (b) of the Extradition Act 2000 and its various statutory equivalents in the other Commonwealth jurisdictions: at [26] and [27] .

(2) The mere fact that an application or matter commenced for the first time only in the High Court did not necessarily mean that the High Court had “original criminal jurisdiction”. In the present case, the “proceedings at first instance” was the committal proceeding in the Subordinate Courts before the district judge, upon which the Parties’ summonses for an order for review of detention before the High Court originated: at [35] and [36] .

(3) Section 422 of the Criminal Procedure Code 2010 (Act No 15 of 2012) (“CPC 2010”) prohibited an appeal by the Parties against the Judge’s decision, and counsel’s submission that the phrase “an order for review of detention” (or previously known as “a writ of habeas corpus”) in s 422 had to only be a reference to an order directing a detainee to be brought to court for the legality of the detention to be reviewed was rejected. An “order for review of detention” possessed a dual functional meaning in practice; it could be said to be “issued” by the courts either (a) for the detainee to be brought to court for a substantive review of the legality of detention; or (b) for the release of the detainee after the court had made a substantive decision: at [41] and [42] .

(4) The law and practice of habeas corpus and extradition proceedings in Singapore for the past century and more also supported the view that the prohibition against an appeal from an order for review of detention hearing could pertain to the substantive review of legality of detention conducted by the court, and not just the “preliminary determination” on whether the detainee should be brought before the court for a substantive review: at [45] and [47] .

(5) The show cause proceeding referred to in s 417 (2) of CPC 2010 could not be a reference merely to the “preliminary determination” by the High Court. At the preliminary hearing on 23 February 2012, the Judge did not issue the order for review of detention but instead directed summonses for the order for review of detention to be issued. Subsequently, the Judge engaged in a very detailed substantive analysis of the legality of the detention of the Parties before dismissing their applications for an order for review of detention to be issued. The Judge had therefore made an order refusing to direct the issue of an order for review of detention within the meaning of s 422 of CPC 2010, against which the Parties had no right to appeal against: at [53] and [54] .

(6) Section 422 of CPC 2010 also contained a unique provision stipulating that the High Court judge “may at any time adjourn the hearing for the decision of a Court consisting of 3 or more Judges” as an alternative to deciding whether or not to issue an order for review of detention. This unique provision was more logically consistent with the understanding that there was no appeal against the judge’s substantive review of the legality of a detainee’s detention as well; such that when a judge was faced with a matter of sufficient complexity or public importance, he or she might prefer to defer the making of the final, substantive decision to a court of three judges instead: at [56] .

(7) There was also not a single local case in the past century or more which was cited where the Court of Appeal had entertained an appeal against a criminal, habeas corpus decision of the High Court. This fortified the court’s view that s 422 of CPC 2010 (and its predecessors) had always been understood as prohibiting an appeal against a High Court judge’s substantive review of the legality of a detainee’s detention as well, and not just his or her “preliminary determination” of whether or not to conduct the substantive review: at [57] .

(8) The two alleged questions of law of public interest sought to be raised by Hia mistakenly presupposed that the Judge had applied s 109 of the Penal Code (Cap 224, 2008 Rev Ed) extra-territorially, but the Judge was actually careful to ensure not to do so. Hia’s erroneous focus on whether the Judge had applied the doctrine of extra-territoriality therefore proved to be a fatal red herring. In the result, the proposed questions of Hia could not be said to have affected the outcome of the case and thus could not satisfy the test laid down in Bachoo Mohan Singh v PP [2010] 1 SLR 966: at [67] and [68] .

(9) Seng’s application to raise seven alleged questions of law of public interest to the Court of Appeal was filed inordinately and unacceptably out of time. Similar to Hia’s application, the alleged questions of law of public interest that Seng sought to...