Jasbir Kaur v Mukhtiar Singh

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 06 March 1999
• Neutral Citation: [1999] SGHC 57
• Docket Number: Magistrate's Appeal No 228 of 1998
• Date: 06 March 1999
• Published date: 19 September 2003
• Year: 1999
• Plaintiff Counsel: Appellant in person
• Citation: [1999] SGHC 57
• Defendant Counsel: Toh Han Li (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: s 401(1)(a) Criminal Procedure Code (Cap 68),Factors to consider whether to award prosecution costs,whether trial judge has exercised proper discretion,Private prosecutor,ss 247(1), 249 & 336 Criminal Procedure Code (Cap 68),Compensation and costs,s336(1) Criminal Procedure Code (Cap 68),Constitution of the Republic of Singapore art 35(8),Strong case against respondent,Whether such person has right of audience before High Court,Appellant successful in prosecuting under private summons Respondent has means,Discretion of trial judge,Criminal Procedure and Sentencing,Appeal,Whether Public Prosecutor has right to intervene and withdraw appeal,Whether prosecution costs should be awarded

Judgment:

YONG PUNG HOW CJ

In this case, the appellant prosecuted the respondent by way of a private summons in the magistrate`s court on the charges of insulting her modesty and criminal intimidation under ss 509 and 506 of the Penal Code (Cap 224) respectively. After a two-day trial, the trial judge convicted the respondent and sentenced him to a fine of $2,000 on each charge. At the close of the proceedings, counsel for the appellant made an application for prosecution costs under s 401(1)(a) of the Criminal Procedure Code (Cap 68) (`CPC`). The trial judge refused to grant the application. The sole issue arising in this appeal was whether the trial judge erred in refusing to exercise her discretion under s 401(1)(a) of the CPC to award the costs of prosecution to the appellant.

2. Preliminary objections of the Deputy Public Prosecutor (DPP)

Before going into the merits of the appeal, it was necessary for me to consider two preliminary objections raised by the DPP to withdraw the appeal. The first objection was that the appellant, as a private person, has no right of audience before the High Court by virtue of s 336(6) of the CPC. The second objection was that the Public Prosecutor has a recognised right to intervene in any criminal proceedings and he could, in the exercise of his discretion, intervene to withdraw the present appeal. I will deal with the latter objection first.

3. Public Prosecutor`s right of intervention

The DPP submitted that the Public Prosecutor has the power to intervene in any criminal proceedings. Section 336(1) of the CPC provides that the Public Prosecutor `shall have the control and direction of criminal prosecutions and proceedings` under the CPC. Such power is also entrenched in art 35(8) of the Constitution which reads:

The Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence. [Emphasis added.]

Thus, he submitted that the Public Prosecutor could in his discretion intervene to discontinue the appeal.

4.The power of intervention was judicially recognised by Lai Kew Chai J in Hawa bte Haji Mohamed Hussain v Miranda [1988] SLR 720 [1988] 3 MLJ 397 . In that case, the appellant instituted private summons proceedings against the respondent and the respondent was tried and convicted of the offence of voluntarily causing hurt to the appellant. The magistrate gave the respondent a conditional discharge for one year. The appellant was dissatisfied with the decision and lodged an appeal against the decision under s 247(1) of the CPC. On appeal, the DPP submitted that the notice of appeal ought to be withdrawn as the Public Prosecutor was intervening to withdraw the appeal. The appellant argued that she not only had a right of appeal under s 247(1) but a right of audience either by herself in person or by counsel.

5.The court allowed the intervention and dismissed the appeal. It was held that, by virtue of s 336(1) of the CPC, the `control and direction of ... proceedings under` the CPC lay with the Public Prosecutor and the term `proceedings` included criminal appeals. Thus, the Public Prosecutor could in the exercise of his discretion under art 35(8) of the Constitution intervene and withdraw the appeal. Lai Kew Chai J further reasoned at p 398:

Further, as a matter of principle, it must be recognized, as it was in Ponniah v Lim [1960] MLJ 152 , that the interests of the State in a criminal matter which are entrusted to the Public Prosecutor are not always the same as those of a complainant who may allow his `private passions and prejudices to creep in the conduct` of a criminal appeal.

6.In PP v Norzian bin Bintat [1995] 3 SLR 462 , it was also noted by the Chief Justice at p 467:

It is clear from s 336(1) of the CPC that, whether in a public or a private prosecution, the Public Prosecutor shall have control and direction of the criminal prosecution. There can be little doubt that even in the case of a private prosecution, if the Public Prosecutor is not satisfied with the conduct of the prosecution, he may intervene and take over the prosecution. This was so even before the enactment of the Criminal Procedure Code in 1900 and before the Constitution came into effect. It can be seen from the case of R v Sultan Mahomed [1884] 2 Ky 116. There, an intervention by the Attorney General to enter a nolle prosequi in a private prosecution, against the wishes of the private prosecutor, was upheld. This was a decision from Penang, which was then part of the Straits Settlements.

7.Therefore, the case law on this preliminary objection is clear. The Public Prosecutor can exercise his discretion to withdraw the appeal and on this ground alone, the appeal can be dismissed.

8. Appellant`s right of audience before the High Court

The DPP further submitted that, apart from the right of the Public Prosecutor to intervene in criminal appeals, the appellant did not have a right of audience before the High Court by virtue of s 336(6) of the CPC.

9.The relevant subsections of s 336 of the CPC state:

(1) The Attorney-General shall be the Public Prosecutor and shall have the control and direction of criminal prosecutions and proceedings under this Code.

(2) ...

(3) Subject to this section, the Attorney-General may appoint any officers or persons to assist him or to act as his deputies in the performance of any of the functions or duties of the Public Prosecutor under this Code or under any written law and may assign to them their functions and duties.

(4) The Public Prosecutor or the Solicitor-General or a person appointed a deputy under subsection (3) may authorise any advocate to act for him as Public Prosecutor in the conduct of any case or prosecution in court or in any part of such conduct.

(5) ...

(6) No person shall appear on behalf of the Attorney-General in any criminal appeal or on any point of law reserved under Chapter XXIX other than the Public Prosecutor or the Solicitor-General or a deputy appointed under subsection (3) or an advocate authorised under subsection (4).

(7) ...

(8) Nothing in this section shall be held to preclude private persons or any officer of any Government department from appearing in person or by advocate to prosecute in summary cases before a Magistrate`s Court or in summary non-seizable cases before a District Court. [Emphasis added.]

10.The DPP contended that, while a private person`s right to prosecute summary cases in the subordinate courts is preserved under s 336(8), the provision is silent on the conduct of appeals by such a person. Section 336(1) confers on the Public Prosecutor the control and direction of all criminal prosecutions and proceedings under the CPC. He submitted therefore that, by the operation of s 336(6), the Public Prosecutor would have such control and direction over criminal appeals by preventing any person from appearing on behalf of the Public Prosecutor on appeal unless authorised to do so.

11.He relied on the following two cases in support of his proposition. The issue relating to the right of audience of a private prosecutor in the appellate court was considered in R v Schefelaar [1939] MLJ 45 , albeit by way of obiter dictum. In that case, the Official Assignee secured a conviction of the respondent who had committed an offence under the Bankruptcy Ordinance. The Official Assignee appealed against the sentence. The respondent argued that the Official Assignee had no right to appear before the High Court by virtue of s 402(6) of the Criminal Procedure Code (which was in pari materia with our s 336(6)). McElwaine CJ expressed the view that the Crown was the prosecutor in this case and implied that the requirements under s 402(6) would be applicable. However, he did not have to decide on this issue as the Official Assignee subsequently produced a letter of authorisation from the Public Prosecutor to appear on his behalf in the appeal.

12.In Ponniah v Lim [1960] MLJ 152 , the court had to determine who the proper respondent ought to be in an appeal by the accused person who was prosecuted by way of a private summons. The court followed the dicta from several Indian authorities which highlighted the possible divergence of the interests of the State and the complainant. The courts were mindful of the possibility of `private passions and prejudices` creeping into the conduct of a criminal trial by a private prosecutor which would not only be against public policy but would also be unfair to the accused person. Thus, the court held that the Public Prosecutor and not the complainant was the proper respondent in such appeals.

13.Hence, the DPP submitted that the appellant had no right of audience before the High Court because she, being a private person, did not fall into any of the categories of persons described in s 336(6) and she had not received any authorisation from the Public Prosecutor to appear before the High Court.

14.In my view, the analysis taken by the DPP was somewhat over-simplified. He failed to consider s 247 which confers on any person who is dissatisfied with any judgment, sentence or order made in the Subordinate Courts a right of appeal to the High Court. Section 247(1) reads:

...