Hia Soo Gan Benson v Public Prosecutor and other matters

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 15 July 2013
• Neutral Citation: [2013] SGCA 40
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Motion Nos 76, 78, 79 and 99 of 2012
• Published date: 08 July 2017
• Year: 2013
• Hearing Date: 06 November 2012,09 November 2012
• Plaintiff Counsel: Hamidul Haq, Thong Chee Kun, Istyana Putri Ibrahim and Wong Shi Yun (Rajah & Tann LLP)
• Defendant Counsel: Harpreet Singh Nehal SC and Jared Chen (WongPartnership LLP),Mark Jayaratnam and Jean Kua (Attorney-General's Chambers)
• Subject Matter: Criminal procedure and sentencing,Appeal,Criminal references,Habeas corpus
• Citation: [2013] SGCA 40

V K Rajah JA (delivering the grounds of decision of the court):

These are four related criminal motions filed by two parties – Hia Soo Gan Benson (“Hia”) and Lim Kow Seng (“Seng”) – who had been committed to be extradited to the United States of America (“US”) to stand trial. Hia and Seng (collectively, “the Parties”) had earlier applied to the High Court for an order for review of detention pursuant to s 417 of the Criminal Procedure Code 2010 (Act No 15 of 2012) (“CPC 2010”) but their applications were dismissed by the High Court judge (“the Judge”) in Wong Yuh Lan v Public Prosecutor and other matters [2012] 4 SLR 845 (“the Judgment”). The criminal motions filed before us pertain to two preliminary issues: firstly, whether this Court has jurisdiction to hear an appeal against the Judgment; and secondly, whether leave to refer alleged questions of law of public interest under s 397(1) of CPC 2010 to this Court should be granted.

We heard the Parties and the Prosecution on 6 November 2012. After considering their submissions, we dismissed all four criminal motions on 9 November 2012 on the basis that the Court of Appeal has no jurisdiction to hear an appeal against the Judgment and leave should not be granted for the Parties’ questions of law to be referred to the Court of Appeal under s 397(1) of CPC 2010. The Parties therefore remained to be extradited to the US. We now set out the detailed reasons for our decision.

Facts

In late 2010, the US made a requisition to the Minister for Law (“the Minister”) for the extradition of Lim Yong Nam (“Nam”), Seng, Hia and Wong Yuh Lan (“Wong”) (collectively, “the Applicants”) to the US to stand trial. The requisition was made pursuant to the United States of America (Extradition) Order in Council, 1935 (Cap 103, OR 1) which contains the extradition treaty between Singapore and the US (“the Singapore-US Treaty”). The US District Court issued warrants of arrest against the Applicants on 15 September 2010 for 12 counts of conduct (“the Superseding Indictment”). Not all counts of conduct, however, were proceeded with by the Attorney-General’s Chambers (“AGC”) in Singapore.

AGC on behalf of the State sought the committal of Wong and Nam only for Count One of the Superseding Indictment for conspiracy to defraud the US by dishonest means under Title 18 United States Code Section 371. Wong and Nam were accused of conspiring with various individuals and companies to defraud the US by exporting modules from a company in the US, Company A (“Company A modules”) to Iran via Singapore. The US complained that this breached US export restrictions against unauthorised shipment of US-origin goods from a third country to Iran.

As against the Parties (see above at [1]), AGC sought their committal only in respect of Count Eight, also pursuant to Title 18 United States Code Section 371. In Count Eight, the Parties were accused of being part of a separate scheme to cause antennae which were classified as “defense articles” under US law to be exported without a licence. Between July and September 2007, batches of antennae were shipped from the US to Hong Kong. The US accused the Parties of conspiring via e-mail with individuals based in the US to procure the antennae in violation of US export regulations.

At the committal proceeding in the Subordinate Courts (in In the Matter of Wong Yuh Lan, Lim Yong Nam, Lim Kow Seng & Hia Soo Gan Benson [2012] SGDC 34), the District Judge (“DJ”) committed the Applicants to custody on 10 February 2012 to await the warrant of the Minister for their surrender. In response, the Applicants filed originating summonses pursuant to O 54 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the ROC”) in the High Court requesting for an order for review of detention (previously known as a writ of habeas corpus) to be issued forthwith or for directions that a summons for the order for review of detention be issued. Order 54 r 2 of the ROC states:

Power of Court to whom ex parte application made (O. 54, r. 2) 2.—(1) The Judge to whom an application under Rule 1 is made may — (a) make an Order for Review of Detention forthwith; or (b) direct that a summons for the Order for Review of Detention be issued.

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On 23 February 2012, the Judge granted the Applicants leave for summonses for an order for review of detention to be issued. Further hearings then took place before the Judge on the legality of the Applicants’ detention. Subsequently, a question arose as to whether the summonses for an order for review of detention should have been filed as criminal motions under CPC 2010, as opposed to originating summonses under O 54 of the ROC. The Judge noted that the proper procedure would have been for criminal motions to be filed instead. The Applicants duly filed their individual criminal motions (ie, CM 63/2012, CM 65/2012, CM 66/2012 and CM 67/2012) prior to the release of the Judgment.

Decision Below

In the Judgment, the Judge allowed the applications of Wong and Nam (ie, CM 63/2012 and CM 66/2012 respectively), holding that their detentions were unlawful and that they were to be released forthwith; but dismissed the applications of the Parties (ie, CM 65/2012 and CM 67/2012). The portions of the Judgment which are relevant to the background of the present applications are summarised as follows.

The Judge first laid down the conditions which must be satisfied before the Applicants could be committed to await the Minister’s warrant for surrender to the US (see the Judgment at [5]): the Applicants must be “fugitives” as defined under s 2 of the Extradition Act (Cap 103, 2000 Rev Ed) (“the Extradition Act 2000”) read with Art 1 of the Singapore-US Treaty (“Condition 1”); the act or omission constituting the offence in Count One and Count Eight must constitute an offence in Singapore, had it taken place here (ie, the double criminality principle must be satisfied) (“Condition 2”); the offence made out by the Applicants’ conduct must fall under one of the categories of offences listed in Art 3 of the Singapore-US Treaty (“Condition 3”); and the committing magistrate must be satisfied on the evidence adduced that the Applicants were liable to be surrendered to the US (“Condition 4”).

The bulk of the Judgment centred on Condition 2 – ie, whether the acts constituting the offences in Count One and Count Eight respectively could be said to constitute offences in Singapore, namely, abetment by conspiracy to cheat under s 415 read with s 109 of the Penal Code (Cap 224, 2008 Rev Ed) (“the PC”). Sections 107, 109 and 415 of the PC provide as follows: Abetment of the doing of a thing 107. A person abets the doing of a thing who —

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(b) engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

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Punishment of abetment if the act abetted is committed in consequence, and where no express provision is made for its punishment

109. Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.

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Cheating 415. Whoever, by deceiving any person, whether or not such deception was the sole or main inducement, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit to do if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to any person in body, mind, reputation or property, is said to “cheat”.

Essentially, Wong and Nam were released because the Judge was of the view that the offence in Count One did not constitute an offence in Singapore; whereas the Parties remained to be committed for extradition because Count Eight, in the Judge’s view, constituted an offence in Singapore when the facts were transposed accordingly.

In relation to Count Eight, the Judge first set out the undisputed proposition that an abetment by conspiracy to have controlled goods exported without a licence would be punishable in Singapore. This is because there are regulations in Singapore governing the export of goods that can be used for military purposes, eg, the Strategic Goods (Control) Act (Cap 300, 2003 Rev Ed) (see the Judgment at [24]).

The main argument advanced by counsel for the Parties before the Judge against Count Eight was based on extraterritoriality, namely, that the acts allegedly committed by the Parties took place entirely outside the US and the Singapore courts would not have jurisdiction to try acts of abetment occurring outside Singapore (had the facts been transposed locally). Counsel argued that s 109 did not have extraterritorial application until s 108B of the PC came into force with effect from 1 February 2008. Section 108B of the PC provides: Abetment outside Singapore of an offence in Singapore 108B. A person abets an offence within the meaning of this Code who abets an offence committed in Singapore notwithstanding that any or all of the acts constituting the abetment were done outside Singapore. Prior to 1 February 2008 (ie, the material period in which the Parties had allegedly committed the criminal acts), counsel argued that the court would assume jurisdiction only if the acts of abetment by conspiracy had taken place in Singapore (see the Judgment at [24] and [26]).

The Judge agreed with counsel that s 109 of the PC did not have extraterritorial application until s 108B of the PC came into force (see the Judgment at [26]). Critically however, the Judge identified...