Son Kaewsa and Others v Superintendent of Changi Prison and Another

• Jurisdiction: Singapore
• Judge: Chan Sek Keong J
• Judgment Date: 06 July 1991
• Neutral Citation: [1991] SGHC 95
• Docket Number: Originating Motions Nos 32, 33 and 34 of 1991
• Date: 06 July 1991
• Year: 1991
• Published date: 19 September 2003
• Plaintiff Counsel: Tan Hee Liang (Tan See Swan & Co)
• Citation: [1991] SGHC 95
• Defendant Counsel: Wong Keen Onn (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: s 32 Prisons Act (Cap 247),Director of Prisons' discretionary power to transfer prisoners,Alleged oppression by prison authorities,Whether sufficient evidence to issue warrant of apprehension,Allegation that original warrants not signed by magistrate,Whether oppression a ground for release,Whether requisition for surrender of applicants in terms of s 9(1) Extradition Act (Cap 103) a condition precedent,Court's power to interfere with the director's discretion,ss 10 & 11 Extradition Act (Cap 103),Whether applicants in lawful remand custody,Whether hearsay evidence admissible,Constitutional Law,s 2(1) & (2) Extradition Act (Cap 103),Criminal Procedure and Sentencing,Receiving of evidence,Administrative Law,Judicial review,s 133 Criminal Procedure Code (Cap 68),Habeas corpus,Remedies,Issue of warrant of apprehension,Whether warrants of apprehension legally issued,Extradition,Whether there was any doubt as to the order made by the magistrate,'Fugitive',s 10 Extradition Act (Cap 103),Administrative discretion,Words and Phrases,art 9 Constitution of the Republic of Singapore

Cur Adv Vult

These were applications for writs of habeas corpus made by the respective applicants on the ground that they were being unlawfully detained by the first respondent at Changi Prison pending extradition proceedings against them under the Extradition Act (Cap 103) (`the Act`). At the conclusion of the hearing, I dismissed all the applications and said I would give my reasons later.

OM No 32 of 1991

On 2 March 1991 and on the following two days, after the Central Narcotics Bureau (`CNB`) received intelligence information, SLL and two others who were all CNB officers kept surveillance on the applicant (`SK`), a Thai national wanted by the United States government for drug offences, and who was then staying in a hotel in Singapore. On 4 March 1991, the US Embassy in Singapore, under cover of a third party note dated 4 March 1991 (TNP 083/91) sent to the Ministry of Foreign Affairs (`MFA`), a certified true copy of each of (a) a Warrant For Arrest 91-0294M issued by a US district court on 1 March 1991 and (b) a Complaint 91-0294M filed in the said US district court relating to SK. On the same day, MM, Head of Enforcement Division of CNB, also received from HF, a US Embassy attache, copies of the said documents. He handed them to RM, another CNB officer, who immediately filed a complaint under s 133(1) of the Criminal Procedure Code (Cap 68) (`the CPC`) and sought a warrant of apprehension under s 10(1)(b) of the Act for the arrest of SK.

The magistrate, having examined the complainant on oath in accordance with s 133(1) of the CPC, issued a Warrant of Apprehension No 4/91. At about 4.20pm, RM contacted SLL and informed him of the issue of the warrant of apprehension, and 15 minutes later the CNB officers arrested SK at the hotel. He was then brought back to CNB headquarters where RM showed him the warrant of apprehension and also informed him that he had been arrested under the said warrant.

On 5 March 1991, SK was brought before a district judge who, exercising the powers of a magistrate under the Act, remanded him for a week at Queenstown Remand Prison. On 12 March 1991, SK was again remanded for 14 days at Queenstown Remand Prison. On the same day, the Director of Prisons, in exercise of his powers under s 32 of the Prisons Act (Cap 247) and after considering the request in writing of MM, made an order to transfer SK to Changi Prison for the purpose of remand. The transfer was made on 13 March 1991. On 26 March 1991, the district judge again remanded SK until 19 April 1991. SK was again remanded from 19 to 26 April 1991 and from 26 April 1991 until 24 May 1991. However, on 3 May 1991 SK was brought up before the district judge who then varied the remand order by making a fresh remand order for seven days. Thereafter SK was being remanded on periods of seven days each and was detained at Changi Prison for that purpose.

On 24 April 1991, the Minister for Law received from the US Embassy the certified and authenticated depositions filed with the US district court in support of the request for the extradition of SK, SS and PB. On 30 April 1991, the Minister issued notices under s 9(1)(b) of the Act to the district judge in respect of the applicants. The effect of these notices was that the district judge must then proceed, under s 11(6) of the Act, to convene a hearing to determine whether the applicants should be committed to prison to await the warrants of the Minister for their surrender to the United States government.

OM Nos 33 and 34 of 1991

On or about 20 February 1991, the US Embassy in Singapore, under cover of a third party note (TNP No 057/91), sent to the MFA the following documents relating to the applicant in OM No 33/91 (`SS`) and the applicant in OM No 34/91 (`PB`): (a) a warrant of arrest issued by a US district court on 30 January 1991 and (b) a certified true copy of an indictment containing 11 counts for various drug offences committed in the United States of America; and (c) a summary of the evidence against the said applicants.

Following similar formalities and procedures outlined in respect of OM No 32/91, Warrants of Apprehension Nos 2/91 and 3/91 were issued by the district judge against SS and PB who were arrested at Changi International Airport on 1 March 1991 and informed of the reason for their arrest. They were produced before the same district judge on 2 March 1991 and remanded at `A` Division until 8 March 1991, then subsequently from 8 to 22 March 1991 partly at `A` Division, and partly at Queenstown Remand Prison. On 13 March 1991, they were transferred to Changi Prison on the direction of the Director of Prisons made under s 32 of the Prisons Act (Cap 247). Thereafter, they were remanded from 22 March 1991 to 19 April 1991, 19 to 26 April 1991, and then from 26 April 1991 to 24 May 1991. Similarly, on 3 May 1991, they were brought before the district judge who varied the current remand order by making a fresh remand order for seven days. Like SK, they were subsequently remanded for periods of seven days at a time.

Case for the applicants

Counsel for the applicants contended that his clients had been and were being deprived of their personal liberty contrary to art 9 of the Constitution of the Republic of Singapore in that their arrest and subsequent remands in Changi Prison were not in accordance with law, viz the Act. A number of arguments was advanced in support of this submission. Before I consider these arguments, it is convenient to set out below, for present purposes, the provisions of the Act relevant to the present proceedings.

(9) (1) Subject to subsection (2), where a requisition for the surrender of a fugitive who is, or is suspected of being, in Singapore is made to the Minister by a foreign State, the Minister may, in his discretion -

(a) if a warrant for the apprehension of the fugitive has not been issued under section 10, by notice in writing in accordance with Form 1 in the Second Schedule and directed to a Magistrate, inform the Magistrate that the requisition has been made and authorise him to issue a warrant for the apprehension of the fugitive; or

(b) if a warrant for the apprehension of the fugitive has been issued under section 10 and a person has been apprehended under the warrant, by notice in writing in accordance with Form 2 in the Second Schedule and directed to a Magistrate before whom the person may be brought, inform the Magistrate that the requisition has been made.

(2) If the Minister is of the opinion that the fugitive is not liable to be surrendered to the foreign State, he shall not give a notice under subsection (1) in respect of the fugitive.

(10) (1) Where -

(a) a Magistrate is authorised by the Minister by a notice under section 9(1)(a) to issue a warrant for the apprehension of a fugitive; or

(b) an application is made as prescribed to a Magistrate for the issue of a warrant for the apprehension of a fugitive who is, or is suspected of being, in Singapore,

and there is produced to the Magistrate such evidence as would, in his opinion, according to the law in force in Singapore, justify -

(i) the apprehension of the fugitive by a member of the Singapore Police Force without the issue of a warrant; or

(ii) the issue of a warrant for the apprehension of the fugitive,

if the act or omission constituting the extradition crime had taken place in, or within the jurisdiction of Singapore, the Magistrate shall issue a warrant for the apprehension of the fugitive in accordance with Form 3 or 4, as the case may be, in the Second Schedule.

(2) Where a Magistrate issues a warrant under this section without having been authorised by the Minister by a notice under section 9(1)(a) to issue the warrant, the Magistrate shall forthwith send to the Minister a report stating that he has issued the warrant and the evidence produced to him on the application for the warrant.

(11) (1) A person who is apprehended under a warrant issued in pursuance of section 10 shall, unless he is sooner released, be brought as soon as practicable before a Magistrate.

(2) The Magistrate may remand a person brought before him under this section, either in custody or on bail, for a period or periods not exceeding 7 days at any one time and, where a Magistrate remands a person for such a period, the person may, at the expiration of the period, be brought before that Magistrate or before any other Magistrate.

(3) In the application of subsections (4) to (8) in relation to a person who has been apprehended under a warrant issued in pursuance of section 10, "Magistrate" means the Magistrate before whom the person is brought after he was apprehended or at the expiration of a period for which he has been remanded under this section, as the case may be.

(4) If the person was apprehended under a warrant issued otherwise than in pursuance of an authority by the Minister in a notice under section 9(1)(a), the Magistrate shall remand the person in accordance with subsection (2) until the Magistrate receives a notice under section 9(1)(b) from the Minister informing the Magistrate that a requisition for the surrender of the person has been made to the Minister by a foreign State.

(5) Where the Magistrate does not receive such a notice within such time as is reasonable having regard to all the circumstances, the Magistrate shall -

(a) if the person apprehended is held in custody - order that he be released; or

(b) if he has been admitted to bail - make an order discharging the recognizances upon which he was admitted to bail.

(1) Were the applicants in lawful remand custody?

As the applicants had been arrested under warrants of apprehension issued under s 10(1)(b), the district judge had no power to remand them in custody for more than seven days at any one time as mandated by s 11(4) read with s 11(2). Accordingly, some of the remand orders made by him were ultra vires. Counsel for the applicants...