James Raj s/o Arokiasamy v PP

• Judgment Date: 28 May 2014
• Date: 28 May 2014
• Docket Number: Criminal Motion No 15 of 2014
• Court: Court of Appeal (Singapore)

James Raj s/o Arokiasamy

Plaintiff

and

Public Prosecutor

Defendant

[2014] SGCA 33

Sundaresh Menon CJ

,

Chao Hick Tin JA

and

Andrew Phang Boon Leong JA

Criminal Motion No 15 of 2014

Court of Appeal

Criminal Procedure and Sentencing—Criminal references—Reference to Court of Appeal—Applicant denied access to counsel while remanded for investigations and psychiatric evaluation—Applicant applying for leave to refer questions of law relating to right of access to counsel—Whether questions stated of law and of public interest—Article 9 (3) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) —Section 397 (1) Criminal Procedure Code (Cap 68, 2012 Rev Ed)

The applicant was charged in the State Courts for various drug-related offences as well as suspected computer attacks on several websites. He was first produced in the State Courts on 5 November 2013 and then remanded for one week to enable further investigations to be carried out. On 11 November 2013, the applicant's counsel sought access to the applicant from the police, but this request was denied. At the next mention in the State Courts on 12 November 2013, the applicant's counsel sought leave to speak to the applicant. The district judge denied this request and ordered that the applicant be remanded for psychiatric evaluation and that he was not permitted contact with any third parties.

On 13 November 2013, the applicant filed a criminal motion in the High Court (‘CM 70/2013’) for the following orders: (a) a declaration that under Art 9 (3) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (‘the Constitution’), there was an immediate right to counsel upon the request of a person remanded for investigations; and (b) that the applicant be granted immediate access to his counsel.

CM 70/2013 was heard on 15 November 2013 before a High Court judge (‘the Judge’), who reserved judgment and directed that parties file further submissions on the issue of what a ‘reasonable time’ should be for the purpose of an arrested person being granted access to counsel. The applicant was granted access to counsel on 3 December 2013. On 14 January 2014, the Judge dismissed CM 70/2013.

The applicant then brought a criminal motion for leave to refer the following two questions to the Court of Appeal pursuant to s 397 (1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (‘the CPC’): (a) whether there was an immediate right to counsel upon the request of a person remanded for investigations; or alternatively (b) on the premise that there was no immediate right to counsel upon the request of a person remanded for investigations, what was a ‘reasonable time’ within which the right to counsel could be exercised.

Held, dismissing the application:

(1) There was no merit in the Prosecution's objection that the High Court had no jurisdiction to entertain the application in CM 70/2013. Although the form used by the applicant was inappropriate, as a matter of substance, CM 70/2013 was brought to persuade the High Court to exercise its revisionary jurisdiction over the District Court after it had denied counsel's application to be afforded access to the applicant: at [21] and [22] .

(2) The Prosecution's position that the application before the High Court was moot, at least with respect to the first question sought to be referred, was ill-conceived. The fact that the applicant had already been denied access to counsel for some time by the time of the application and therefore could not have immediate access could not entail the conclusion that the alleged denial had become moot. On the basis of the right framed by the applicant, there was an allegedly continuing breach at the time of the application and there was nothing moot about this: at [23] and [24] .

(3) The first question, which was whether there was an immediate right to counsel upon the request of a person remanded for investigations, pertained to a matter of settled law. The Court of Appeal in Jasbir Singh v PP[1994] 1 SLR (R) 782 (‘Jasbir Singh’) held that the right of access to counsel was one available within a reasonable time and that an allowance for police investigations and procedure was intended to be incorporated within the framework of a ‘reasonable time’. The position in Jasbir Singh was re-affirmed in a number of later decisions including of the Court of Appeal. As a matter of stare decisis, the position remained settled notwithstanding the doubts expressed by the Judge in the High Court as to the interpretation of the words ‘a reasonable time’ in Jasbir Singh. There was therefore no open controversy in the first question and this question did not call for a reference to the Court of Appeal under s 397 (1) of the CPC: at [29] to [33] , [35] , [36] and [38] .

(4) To the extent it was suggested in oral submissions that any statement given by an arrested person without access to counsel should be automatically excluded, this was untenable, first because there was a statutory framework for excluding statements found to be involuntary. Moreover, this point was already considered and rejected by this court in Jasbir Singh:at [34] .

(5) The suggestion that a breach of the right of access to counsel would entitle the arrested person to an order for immediate release was untenable because habeas corpus was not an available remedy in such circumstances. The courts would not order the release of a person in habeas corpus proceedings unless it could be shown that the detention was illegal or unlawful: at [37] .

(6) As for the second question framed by the applicant, what was a ‘reasonable time’ within which the right to counsel could be exercised was inherently a factual inquiry and not a question of law. In the circumstances, there was no basis for the second question to be referred: at [39] .

A Ragunathan v Pendakwa Raya [1982] 1 MLJ 139 (refd)

Bachoo Mohan Singh v PP [2010] 1 SLR 966 (folld)

James Raj s/o Arokiasamy v PP [2014] 2 SLR 307 (refd)

Jasbir Singh v PP [1994] 1 SLR (R) 782; [1994] 2 SLR 18 (folld)

Lee Mau Seng v Minister for Home Affairs [1971-1973] SLR (R) 135; [1969-1971] SLR 508 (folld)

Leong Siew Chor v PP [2006] SGCA 38 (refd)

Mah Kiat Seng v PP [2011] 3 SLR 859 (folld)

Mohammad Faizal bin Sabtu v PP [2013] 2 SLR 141 (folld)

Muhammad bin Kadar v PP [2011] 3 SLR 1205 (refd)

PP v Leong Siew Chor [2006] 3 SLR (R) 290; [2006] 3 SLR 290 (refd)

Wong Sin Yee v PP [2001] 2 SLR (R) 63; [2001] 3 SLR 197 (folld)

Constitution of the Republic of Singapore (1985 Rev Ed,1999 Reprint) Art 9 (3)

Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 397 (1) (consd) ;s 258 (3)

Ravi s/o Madasamy (L F Violet Netto), Eugene Thuraisingam and Jerrie Tan (Eugene Thuraisingam) for the applicant

GKannan, Tang Shangjun, Jurena Chan and Timotheus Koh (Attorney-General's Chambers) for the respondent.

Sundaresh Menon CJ

(delivering the grounds of decision of the court):

1 This was a criminal motion for leave to refer the following as two ostensible questions of law of public interest to the Court of Appeal pursuant to s 397 (1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (‘the CPC’):

(a) whether there is an immediate right to counsel upon the request of a person remanded for investigations; or...