Iskandar bin Rahmat v Public Prosecutor

• Judge: Sundaresh Menon CJ
• Judgment Date: 21 September 2021
• Neutral Citation: [2021] SGCA 89
• Citation: [2021] SGCA 89
• Defendant Counsel: Winston Man and Ng Jun Chong (Attorney-General's Chambers)
• Hearing Date: 16 August 2021
• Plaintiff Counsel: Ravi s/o Madasamy (KK Cheng Law LLC)
• Docket Number: Criminal Motion No 21 of 2021
• Published date: 24 September 2021
• Court: Court of Appeal (Singapore)
• Subject Matter: Appeal,Criminal Procedure and Sentencing

Steven Chong JCA (delivering the grounds of decision of the court): Introduction

Iskandar bin Rahmat (“the Applicant”) was convicted by the High Court of two counts of murder under s 300(a) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) and sentenced to the mandatory death penalty. His appeal against his convictions was dismissed by this Court on 3 February 2017 in Iskandar bin Rahmat v Public Prosecutor and other matters [2017] 1 SLR 505 (“Judgment”).

Generally, the issuance of a final judgment by this Court brings an end to the legal process available to parties in relation to a criminal conviction or sentence. Whilst the law provides an avenue to review a concluded criminal appeal, it is not disputed that this is an extremely limited avenue. In fact, the Applicant acknowledged that he would not be able to seek leave to make a review application under s 394H of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”), as the Applicant’s constitutional arguments would not presently satisfy the requirement that the Judgment was demonstrably wrong.

In addition, the Applicant also recognised that he would no longer be able to bring a constitutional challenge against s 300(a) of the Penal Code by way of an originating summons in the High Court. Such an application would constitute an abuse of process because it would be invoking the civil jurisdiction of the court to mount a collateral attack on a decision made by the court in the exercise of its criminal jurisdiction.

We observe that these two acknowledgments are not controversial as they are the consequences arising from the principle of finality. Confronted with this situation, the Applicant filed the present application, CA/CM 21/2021 (“CM 21”) for leave to intervene in a completely unrelated criminal proceeding, namely, CA/CCA 36/2020 (“CCA 36”). The ostensible purpose of the leave application was to enable the Applicant to raise an additional argument to support the constitutional challenge mounted to ss 299 and 300(a) by the appellant in CCA 36, Teo Ghim Heng (“Teo”). If the challenge by Teo is successful, the Applicant intends to use that decision to mount a review application under s 394H of the CPC.

We heard and dismissed the application on 16 August 2021. In our view, this Court has no jurisdiction to permit the Applicant to intervene in an unrelated criminal appeal on account of his interest in the point of law under consideration in CCA 36. Litigants, including accused persons, do not have a right to intervene in an unrelated pending proceeding just because they have a common interest in a point of law which is being considered in that proceeding. To hold otherwise would open the floodgates to litigation, as a point of law canvassed in almost any given case may ultimately affect the decision of any other case. But that, in our view, is merely a function of the common law and not a licence to intervene.

Brief procedural history

As mentioned above, the Applicant was convicted by the High Court of two counts of murder under s 300(a) of the Penal Code and sentenced to the mandatory death penalty.

On appeal, the Applicant challenged his convictions on the basis that his actions did not show an intention to cause death, but merely reflected an intention to cause injuries sufficient in the ordinary course of nature to cause death under s 300(c) of the Penal Code. He also relied on three exceptions under s 300 of the Penal Code, namely, (a) Exception 2 (private defence); (b) Exception 4 (sudden fight); and (c) Exception 7 (diminished responsibility).

On 3 February 2017, this Court dismissed the Applicant’s appeal and issued the Judgment. More than a year later, on 14 February 2018, the Applicant wrote to the Law Society to file a complaint against his trial counsel alleging that they had failed to comply with his instructions in the conduct of his defence. A four-member Inquiry Committee unanimously recommended that no formal investigation by a Disciplinary Tribunal was necessary and that the complaint should be dismissed. The Council of the Law Society (“Council”) thus informed the Applicant, by way of a letter dated 20 March 2019, that the Law Society would not take further action on his complaint.

Dissatisfied with the decision of the Council, on 7 June 2019, the Applicant filed HC/OS 716/2019 (“OS 716”) pursuant to s 96 of the Legal Professions Act (Cap 161, 2009 Rev Ed) seeking a review of the Council’s determination and an order directing the Law Society to apply to the Chief Justice for the appointment of a Disciplinary Tribunal. On 10 October 2019, the High Court dismissed OS 716. The Applicant’s appeal against the High Court’s decision in CA/CA 9/2020 (“CA 9”) was also dismissed by this Court on 5 July 2021.

On 11 June 2021, while the proceedings in CA 9 were ongoing, the Applicant filed the present application seeking leave to intervene in CCA 36 in order to make submissions in support of Teo’s argument that s 300(a) of the Penal Code violates Article 12(1) of the Constitution (1985 Rev Ed, 1999 Reprint) (“Constitution”), Article 93 of the Constitution, and/or the principle of separation of powers as embodied in the Constitution.

The parties’ submissions The Applicant’s submissions

The Applicant averred that he had filed CM 21 because there was no other avenue for him to obtain the relief he sought. As highlighted above, he acknowledged that he could not have brought a constitutional challenge against ss 299 and 300(a) of the Penal Code. Nor could he have obtained leave to make a review application under s 394H of the CPC as his constitutional arguments would not presently satisfy the requirement that the Judgment was demonstrably wrong.

In relation to procedure, the Applicant argued that he was correct in filing a criminal motion to seek leave to intervene in CCA 36. Citing Amarjeet Singh v Public Prosecutor [2021] 4 SLR 841 (“Amarjeet Singh”), the Applicant argued that CM 21 was brought to seek relief ancillary to the conduct of a primary criminal action, namely CCA 36 (being an action that invoked the appellate criminal jurisdiction of the court).

The Applicant further contended that the court had the jurisdiction and/or powers to grant the orders sought under s 6 of the CPC, which allows the court to adopt “such procedure as the justice of the case may require, and which is not inconsistent with [the CPC] or such other law”, as regards matters of criminal procedure for which no special provision has been made. In this connection, the Applicant submitted that the court could adopt a procedure modelled after the rules for intervention in civil actions provided under O 15 rr 6(2)(b)(ii) and 6(3) of the Rules of Court (2014 Rev Ed) (“ROC”).

Finally, the Applicant argued that this Court should exercise its powers in favour of granting the relief that he seeks, as he would satisfy the requirements under O 15 r 6(2)(b)(ii) of the ROC if they were adapted for the criminal context. Furthermore, the Applicant’s intervention would not be redundant or unnecessary as he seeks to raise an argument on the constitutionality of ss 299 and 300(a) of the Penal Code which has not been raised by Teo in CCA 36. In particular, he seeks to argue that ss 299 and 300(a) of the Penal Code violate Article 12 of the Constitution on the basis that an offender convicted under s 299 has a “right to mitigate”, whereas an offender convicted under s 300(a) would have no such right, even though the requirements for the two offences overlap.

The Prosecution’s submissions

The Prosecution submitted that the Applicant’s motion did not validly invoke the court’s criminal jurisdiction. The Applicant was not involved in any proceedings over which the court could exercise criminal jurisdiction, as this Court had already dismissed his appeal against his conviction and there were no pending criminal proceedings involving him. The mere fact that the Applicant took an interest in the arguments being made in CCA 36 was insufficient to overcome the fact that his application lacked any jurisdictional basis. If the Applicant’s contentions were accepted, an offender who had already exhausted his legal options would be allowed to completely bypass the strict conditions governing review applications under s 394H of the CPC and mount a collateral attack on the correctness of his conviction.

In any event, the Prosecution argued, there were no compelling or principled reasons to justify the Applicant’s intended intervention even if this Court was prepared to overlook the absence of jurisdictional basis for his application. Section 6 of the CPC was also of no assistance to the Applicant as his intended intervention in CCA 36 would be inconsistent with the CPC. Nor were there any exceptional circumstances that necessitated the court exercising its inherent powers in the Applicant’s favour. There were sufficient safeguards to ensure that all arguments going towards the constitutionality of ss 299 and 300(a) of the Penal Code would be fully ventilated and, if the Applicant or his counsel truly believed that they could add value to the proceedings, there was nothing to stop them from sharing their arguments with the counsel in CCA 36.

Issues to be determined

Having regard to the parties’ submissions, the sole issue before us was whether this Court had the jurisdiction to grant leave to the Applicant to intervene in CCA 36.

Analysis The court’s criminal jurisdiction

A court’s jurisdiction refers to “its authority, however derived, to hear and determine a dispute that is brought before it”: Re Nalpon Zero Geraldo Mario [2013] 3 SLR 258 (“Re Nalpon Zero”) at [13], citing Muhd Munir v Noor Hidah and other applications [1990] 2 SLR(R) 348 at [19]. This Court’s criminal jurisdiction is statutorily conferred by s 60D of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed), which provides:

Criminal jurisdiction ...