Huang Sining (Prosecutor) v Juan Lingjiao

• Jurisdiction: Singapore
• Judge: Lee Li Choon
• Judgment Date: 08 February 2023
• Neutral Citation: [2023] SGMC 6
• Court: Magistrates' Court (Singapore)
• Docket Number: Magistrate’s Complaint No. PS-900009-2021
• Hearing Date: 12 January 2023,08 February 2023
• Citation: [2023] SGMC 6
• Year: 2023
• Plaintiff Counsel: Huan Sining
• Defendant Counsel: Derek Kang / Ng Sock Cheng (Carinhill Law LLC)
• Subject Matter: Criminal Proceedings,Costs,Frivolous or vexatious prosecution
• Published date: 24 February 2023

District Judge Lee Li Choon: Introduction

This judgment is on the issue of costs pursuant to section 355(2) of the Criminal Procedure Code 2010 (2020 Revised Edition) (“CPC”) in relation to the private prosecution proceedings in PS-900009-2021.

Factual background

In private prosecution proceedings brought by the Complainant, Huang Sining (“Huang”), Huang preferred 5 Charges against the Accused, Juan Lingjiao ((“Juan”) arising from incidents that occurred on 3 days – 23, 24 and 25 October 2019 as follows: 23 October 2019 Incident The Criminal Intimidation Charge For this Charge, Juan was charged that she, at or about 5.00pm on 23 October 2019, in the vicinity of #03-123A Far East Plaza, 14 Scotts Road, Singapore 228213, did threaten Huang with injury to her person with intent to cause alarm to Huang, to wit, by saying in Mandarin words meaning that “I warn you, do not speak to my staff, and do not pass by my shop, or each time I see you I will hit you” and that she has thereby committed criminal intimidation under section 503 of the Penal Code (Chapter 224) and punishable under section 506 (1st limb) of the Penal Code. 24 October 2019 Incident The 1st POHA Charge For this Charge, Juan was charged that she, at or about 4.30pm on 24 October 2019, in the vicinity of #03-123A Far East Plaza, 14 Scotts Road, Singapore 228213, did use insulting words with intent to cause distress to the complainant, to wit, by saying in Mandarin words meaning that “Your face, really, even $1 million of plastic surgery cannot make nice”, thereby causing distress to Huang and has thereby committed an offence under section 3(1)(a) of the Protection from Harassment Act, Cap 256A (“POHA”) and punishable under section 3(2) of the POHA. 25 October 2019 Incident The 2nd POHA Charge For this Charge, Juan was charged that she, at or about 4.00pm on 25 October 2019, at Kra Pow Thai Restaurant located at #03-26 Far East Plaza, 14 Scotts Road, Singapore 228213, did use abusive behaviour towards Huang with intent to cause distress to Huang, to wit, by spitting into the food of Huang and she has thereby committed an offence under section 3(1)(a) of the Protection from Harassment Act, Cap 256A (“POHA”) and punishable under section 3(2) of the POHA. The Mischief Charge For this Charge, Juan was charged that she, at or about 4.30pm on 25 October 2019, in the vicinity of Kra Pow Thai Restaurant located at #03-26 Far East Plaza, 14 Scotts Road, Singapore 228213, did cause such change in an Apple iPhone 11 Pro MAX 256GB valued at about $1,900 as diminished its value or utility, knowing that she was likely to cause wrongful loss to Huang, to wit, by snatching the said handphone from one Cai Zengyan and throwing the said handphone to the ground twice, thereby causing damage to the amount of $500 or upwards, and has thereby committed mischief under section 425 of the Penal Code (Chapter 224) and punishable under section 426 of the Penal Code. The Criminal Force Charge For this Charge, Juan was charged that she, at or about 4.35pm on 25 October 2019, in the vicinity of Kra Pow Thai Restaurant located at #03-26 Far East Plaza, 14 Scotts Road, Singapore 228213, did use force to Huang without her consent, knowing it to be likely that by use of such force she will illegally cause annoyance to Huang, to wit, by hitting the Huawei P30 Pro in the hand of Huang thrice, and she has thereby used criminal force under section 350 of the Penal Code (Chapter 224) and punishable under section 352 of the Penal Code.

The trial proceedings took place over 5 tranches: 7 and 8 October 2021; 9 to 11 November 2021; 11 to 14 January 2022; 17 to 20 May 2022 and 23 to 26 May 2022; totalling 17 days. Parties filed their closing and reply submissions on 11 July 2022 and 3 August 2022 respectively and I delivered my judgment on 9 September 2022, acquitting Juan of all 5 Charges. Upon the acquittal, Juan made an oral application to the court for an award of costs to be made in her favour pursuant to section 355(2) CPC. I then gave directions for submissions on the issue of costs to be filed.

Thereafter, Huang attempted to appeal against my decision to acquit Juan, but she failed to obtain the sanction of the Public Prosecutor to do so. Huang then filed applications for criminal motion and criminal revision against my acquittal decision via HC/CM 60/2022, HC/CM 64/2022, and HC/CR 5/2022. On 5 December 2022, all of the aforementioned applications were summarily dismissed by the High Court pursuant to sections 238B(1) and 238B(2) of the CPC without being set down for a hearing. Undeterred, Huang filed another criminal motion HC/CM 4/2023. This too was summarily dismissed by the High Court pursuant to sections 238B(1) and 238B(2) of the CPC without being set down for a hearing on 4 February 2023.

I heard parties on the issue of costs on 12 January 2023 and this judgment arises out of that hearing and the written submissions filed by parties on this issue.

The parties’ cases Juan’s case

Juan’s assertions that the prosecution by Huang against her was frivolous or vexatious are as follows: Huang brought the prosecution against Juan with malice, dishonesty and/or an improper motive. Huang’s conduct of the prosecution showed a lack of good faith or malice which rendered her decision to commence and/or continue prosecution frivolous and/or vexatious.

Huang’s response

In essence, based on what I can distil from the copious written and oral submissions provided by Huang that contain mostly irrelevant matters and/or groundless allegations, Huang takes the position that her prosecution against Juan was not frivolous or vexatious because: The Public Prosecutor had given her permission to commence and proceed with the criminal proceedings against Juan. She had to commence and conduct her own prosecution against Juan because the police had decided not to prosecute Juan. She had acted diligently in getting legal advice from her lawyers in the initial part of the process, i.e., drafting the Charges against Juan. The Court’s acquittal of Juan was mainly due to the fact that she had to conduct the criminal proceedings without the assistance of the police and the police had refused to provide her with evidence that will assist her case such as its “investigation report”. She did not know Juan before the first incident that gave rise to the Criminal Intimidation Charge and therefore, she could not have had any ill will towards her.

The applicable law

Section 355(2) CPC provides:

355. – (1)..

(2) If an accused is acquitted of any charge for any offence, and if it is proved to the satisfaction of the court that the prosecution was frivolous or vexatious, the court may order the prosecution or the complainant or the person on whose information the prosecution was instituted to pay full costs, charges and expenses incurred by the accused in and for the accused’s defence, to be taxed by the Registrar of the Supreme Court or the Registrar of the State Courts, as the case may be.

The key elements in section 355(2) CPC are: The prosecution was frivolous or vexatious. The above (i.e., the element as stated in (a) above) is proved to the satisfaction of the court. The court may order the complainant to pay full costs, charges and expenses incurred by the accused in and for the accused’s defence. Such costs, charges and expenses as stated in (c) above are to be taxed by the Registrar of the State Courts.

The leading authority on the interpretation and application of section 355(2) of the CPC is the case of Parti Liyani v Public Prosecutor [2021] SGHC 146 (“Parti Liyani”). In Parti Liyani, the High Court set out the law or legal principles as regards the interpretation and application of section 359(3) CPC which contains the same criteria for the court to order the prosecution or complainant to pay compensation to the accused in a sum not exceeding $10,000 as that for the award of costs against the prosecution or complainant as set out in section 355(2).

On the issue of whether the prosecution was frivolous or vexatious, the question to ask is whether, based on the evidence the complainant had at the time of commencement of prosecution or continuation of prosecution, an objective reasonable prosecutor would have considered that there was sufficient evidence to render the case fit to be tried or continued before the court.

While the analysis as to the sufficiency of evidence is predominantly objective, the overall inquiry as to whether the prosecution was “frivolous or vexatious” has both objective and subjective elements ([124]). The word “vexatious” suggests a more subjective analysis into the state of mind of the complainant ([125]). While there is no requirement to prove malice or dishonesty to show “frivolous or vexatious” prosecution, this does not mean they are irrelevant because the existence of malice, dishonesty or improper motives may well render the prosecution vexatious ([126]).

In essence, the court has to consider the totality of the circumstances to arrive at a view as to whether the prosecution was “frivolous or vexatious”. ([126])

As for the burden of proving to the “satisfaction of the court” that the prosecution was “frivolous or vexatious”, it lies on the applicant who is seeking the costs order and the appropriate standard of proof is on a balance of probabilities ([129]). However, as the assertion that the prosecution was “frivolous or vexatious” is a serious and grave one, Chan Seng Onn J in Parti Liyani is of the view that the gravity of the allegations must be part of the whole range of circumstances that have to be weighed by the court when deciding as to the balance of probabilities ([131]).

Issues to be determined

Based on the above, the sole issue to be determined is: Whether the prosecution was “frivolous or vexatious”.

My decision Whether the prosecution...