James Raj s/o Arokiasamy v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 28 May 2014
• Neutral Citation: [2014] SGCA 33
• Citation: [2014] SGCA 33
• Court: Court of Appeal (Singapore)
• Published date: 05 June 2014
• Docket Number: Criminal Motion No 15 of 2014
• Plaintiff Counsel: Ravi s/o Madasamy (L F Violet Netto), Eugene Thuraisingam and Jerrie Tan (Eugene Thuraisingam)
• Defendant Counsel: G Kannan, Tang Shangjun, Jurena Chan and Timotheus Koh (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Criminal references
• Hearing Date: 07 May 2014

Sundaresh Menon CJ (delivering the grounds of decision of the court):

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”): Whether there is an immediate right to counsel upon the request of a person remanded for investigations; or alternatively On the premise that there is no immediate right to counsel upon the request of a person remanded for investigations, what is a “reasonable time” within which the right to counsel can be exercised.

After hearing the parties on 7 May 2014, we dismissed the criminal motion on the basis that the references sought did not relate to questions of law of public interest. We now give the detailed grounds for our decision.

Background Facts

The applicant in this case is James Raj s/o Arokiasamy (“the Applicant”). He was charged in the State Courts with various drug-related offences as well as suspected computer attacks on several websites using the moniker “the Messiah”. The Applicant’s counsel is Mr Ravi s/o Madasamy (“Mr Ravi”), though he was jointly represented at the hearing of the present criminal motion by Mr Ravi and Mr Eugene Thuraisingam (“Mr Thuraisingam”).

The Applicant was first produced in the State Courts on 5 November 2013 for charges to be preferred against him. He was then remanded for one week to enable further investigations to be carried out. On 11 November 2013, Mr Ravi was informed by an acquaintance of the Applicant that the latter was seeking to engage Mr Ravi as his counsel and wished to have immediate access to him. Mr Ravi accordingly contacted the police on the same day seeking access to the Applicant, but his request was denied.

On the following morning, 12 November 2013, Mr Ravi attended the next mention in the State Courts, in the course of which the Prosecution applied for, among other things, an order that the Applicant be remanded at the Institute of Mental Health (“the IMH”) for psychiatric evaluation. The hearing was adjourned to the afternoon and Mr Ravi sought leave to speak to the Applicant for five minutes in the meantime. This request was denied. At the close of the resumed hearing, the district judge (“the District Judge”) granted the orders sought by the Prosecution and ordered that the Applicant be remanded at the IMH and that he was not permitted contact with any third parties.

On 13 November 2013, the Applicant filed an application to the High Court by way of Criminal Motion No 70 of 2013 (“CM 70/2013”) for the following orders: (1) a declaration that under Art 9(3) of the Constitution of the Republic of Singapore (1999 Rev Ed) (“the Constitution”), there is an immediate right to counsel upon the request of a person remanded for investigations; and (2) 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 within two weeks on the issue of what a “reasonable time” should be for the purpose of an arrested person being granted access to counsel. The Judge also permitted Mr Ravi to speak to the Applicant for a few minutes in court after the hearing.

The next mention in the State Courts took place on 26 November 2013. The Prosecution applied for the Applicant to be remanded for one more week for further investigations, with no access to counsel during that period. This application was granted. On 3 December 2013, with the consent of the Prosecution, the Applicant was granted access to his counsel.

Decision Below

On 14 January 2014, the Judge dismissed CM 70/2013. His judgment is reported as James Raj s/o Arokiasamy v Public Prosecutor [2014] 2 SLR 307 (“the Judgment”).

On the first prayer, the Judge declined to grant a declaration that under Art 9(3) of the Constitution, there is an immediate right to counsel upon the request of a person remanded for investigations. He considered himself bound by the decision of the Court of Appeal in Jasbir Singh and another v Public Prosecutor [1994] 1 SLR(R) 782 (“Jasbir Singh”), where it was held that an arrested person was not entitled to consult counsel immediately but only within a “reasonable time” of his arrest.

Notwithstanding this, the Judge considered it appropriate to express some doubt over the interpretation that was placed by the Court of Appeal in Jasbir Singh on the earlier High Court decision of Lee Mau Seng v Minister for Home Affairs and another [1971–1973] SLR(R) 135 (“Lee Mau Seng”). The latter decision has widely been understood as authority for the proposition that as a matter of our law, an arrested person’s right to counsel is not one that he may avail himself of immediately but rather only within a reasonable time after his arrest. Nonetheless, the Judge having undertaken an analysis of Lee Mau Seng doubted that the High Court there had contemplated that its holding to the effect that the right to counsel must be granted to an arrested person within a reasonable time after his arrest meant that such a right could be postponed for such period as might reasonably be required by the police to enable them to carry out their investigations. However, it was unquestionably the case that this was precisely how the Court of Appeal in Jasbir Singh had struck the balance between the arrested person’s right to have access to his counsel and the discharge by the police of their duty to investigate the matter.

The Judge also declined to grant the second prayer for an order that the Applicant be granted immediate access to his counsel. The Judge noted that this issue had become academic because the Applicant had already been granted access to his counsel on 3 December 2013. Nonetheless, the Judge, having invited submissions on the issue, ventured to express a view on whether the Applicant would have been entitled to the order sought as at 29 November 2013, this being the date on which the parties had filed further submissions on the issue of what would have been a “reasonable time” in all the circumstances. The Judge held that the police had the onus of proving that giving effect to the right to counsel would impede police investigations or the administration of justice. In the absence of sufficient evidence adduced to discharge this burden, the Judge observed that “had the question not been wholly academic, [he] would have held that the applicant was entitled to access to his counsel by 29 November 2013”.

On 13 February 2014, the Applicant filed this criminal motion seeking leave to refer the two ostensible questions of law of public interest (see above at [1]) to this Court.

Our Decision

It is uncontroversial that the four cumulative conditions specified in s 397(1) of the CPC must be satisfied before leave may be granted to refer a question of law of public interest to the Court of Appeal (see Mohammad Faizal bin Sabtu and another v Public Prosecutor and another matter [2013] 2 SLR 141 (“Mohammad Faizal”) at [15]): First, the reference to the Court of Appeal can only be made in relation to a criminal matter decided by the High Court in the exercise of its appellate or revisionary jurisdiction; Second, the reference must relate to a question of law and that question must be one of public interest; Third, the question of law must have arisen from the case which was before the High Court; and Fourth, the determination of that question of law by the High Court must have affected the outcome of the case.

In deciding whether to grant leave to refer...