Kamal Jit Singh v Minister for Home Affairs and Others

• Judge: Chao Hick Tin J
• Judgment Date: 30 October 1992
• Neutral Citation: [1992] SGCA 72
• Citation: [1992] SGCA 72
• Defendant Counsel: S Tiwari (Senior State Counsel) and Soh Tze Bian (State Counsel)
• Published date: 19 September 2003
• Plaintiff Counsel: Nathan Isaac and Winnifred Gomez (Nathan Isaac & Co)
• Date: 30 October 1992
• Docket Number: Civil Appeal No 23 of 1992
• Court: Court of Appeal (Singapore)
• Subject Matter: Constitutional Law,Application for writ,Whether there was right of appeal from a refusal to issue the writ of habeas corpus,Detention under s 30 of the Criminal Law (Temporary Provisions) Act (Cap 67),Affidavit in support,Habeas corpus,Whether application for writ was a civil or criminal proceeding,s 335 Criminal Procedure Code (Cap 68),s 30 Criminal Law (Temporary Provisions) Act (Cap 67),Need to show probable cause,Remedies,O 54 Rules of the Supreme Court 1970

The writ of habeas corpus ad subjiciendum (`the writ`) is a prerogative writ issued by the courts to ensure the protection of the individual citizen`s right to personal freedom. The right is one that is recognized by the common law and, in Singapore, is guaranteed by art 9 of our Constitution. The writ enables the courts to test the legality of any detention of a citizen and its importance is such that no detention in the land is immune from having its legality tested by it. The importance of the writ carries with it the possibility of abuse and, accordingly, a distinction has historically been drawn between the writ of habeas corpus being a writ that issues as of right and other writs that issue as of course. This appeal concerned and turned upon that distinction.

This appeal was from the refusal by GP Selvam JC to issue the writ against the respondents in respect of the detention of the appellant under s 30 of the Criminal Law (Temporary Provisions) Act (Cap 67) (`the CLTPA`). The following facts appeared from the appellant`s affidavit in support of his application (`the appellant`s affidavit`). He joined the Prison Service in 1978 and served as a warder at various prisons, including Changi Prison from June or July 1985 until 2 December 1987. He was first arrested by the Central Narcotics Bureau (`the CNB`) on 11 April 1988 and his family was informed by a letter dated 19 April from the CNB that he had been arrested on suspicion of involvement in drug trafficking activities. His detention by the CNB was stated to be for the purpose of facilitating investigations. His family sought legal advice and representations were made on his behalf by his solicitors. The representations alleged that his superior officers had been envious of his car and had colluded with several inmates to frame him. He was subsequently released on 28 April and a letter from the CNB to his family on the same day stated that he had been released unconditionally.

After his release, the appellant and his representatives complained to various authorities that his salary had been deducted during the period of his detention and that his special bonus had been withdrawn. Shortly after, on 5 July 1988, the appellant was rearrested for heroin trafficking and he has been in detention ever since. The appellant was informed of the reasons for his detention by a letter from the Permanent Secretary of the Ministry of Home Affairs which stated:

I am to inform you that you have been detained under s 30 of the Criminal Law (Temporary Provisions) Act for your involvement in activities of a criminal nature, viz being a heroin trafficker operating at Changi Prison.

This letter was described incorrectly in the appellant`s affidavit as the detention order issued under s 30 of the CLTPA and it was so regarded by the appellant and his solicitors right up to the hearing in the court below.

Representations on behalf of the appellant were made in turn to the CNB, the Member of Parliament for his constituency and the Minister for Home Affairs. The representations repeated the earlier allegations of a frame-up. The Ministry of Home Affairs replied, informing the appellant`s family that the allegations had been investigated by the Criminal Investigation Department (`the CID`) and no frame-up had been found. The family was advised that representations should be made to the Criminal Law Advisory Committee (`the committee`) which would be examining the grounds for the appellant`s detention and making recommendations to the President. The appellant`s solicitors also wrote to the Corrupt Practices Investigation Bureau (`the CPIB`) repeating the allegations of a frame-up and asking them to carry out an independent investigation, but the CPIB declined to do so on the ground that the matter was not within their jurisdiction.

The committee met on 14 November 1988 and the appellant was legally represented at the hearing. The committee advised the confirmation of his detention and the President accepted this advice. The appellant was informed, somewhat belatedly, of this on 13 February 1989. His family continued to make representations on his behalf, on the same allegations, to the Prime Minister and to the Minister for Home Affairs. The authorities replied, stating that his case would be considered at the committee`s review of his detention in May 1989. His family also wrote to the President again and the President`s office replied, stating that his allegations had already been investigated by the CID and found to be groundless. At the review in May 1989, the committee recommended the continued detention of the appellant.

The appellant`s family then hired private investigators to investigate the activities of former inmates of Changi Prison whom the appellant alleged had framed him. These were (1) Victor Peter Paul; (2) Balan s/o Vengdasalm; and (3) Raja. The appellant alleged that they were involved in drug trafficking activities in Changi Prison and had conspired with his superiors in order to avoid punishment for those activities. The private investigators` report dated 5 September 1990 showed:

(1) Victor Peter Paul had told them that Balan s/o Vengdasalm had told him that he (Balan) had to pay the appellant $1,000 for the purchase of drugs;

(2) Victor Peter Paul had no personal knowledge that the appellant was involved in drug trafficking;

(3) after his release from prison, Victor Peter Paul was involved in drug trafficking at his place of work.

The report was sent by the appellant`s solicitors to the Permanent Secretary of the Ministry of Home Affairs. The Ministry replied on 24 December 1990, stating that they had looked into the matter and had found that the appellant`s allegations could not be substantiated. On 5 April 1991, the appellant`s solicitors wrote to the committee, repeating essentially the same allegations of a frame-up. The secretary to the committee replied, informing the appellant`s solicitors that the representations would be considered at the next review of the appellant`s detention by the committee.

In addition to the allegations of a frame-up, the appellant`s affidavit also gave the following reasons why the writ ought to be issued:

(1) he had been unconditionally released on 28 April 1988 after the CNB had conducted some investigations;

(2) he had been denied a trial when other warders arrested for similar activities had been tried in open court; and

(3) there was no ground for suspecting him since he did not own any assets and did not have expensive habits. Moreover, he was a pious and religious man.

At the hearing below, counsel for the respondents supplied counsel for the appellant with a copy of the detention order issued pursuant to s 30 of the CLTPA. No objection was taken either at the hearing below or before us as to the propriety of the order.

The learned judicial commissioner held that the above facts adduced by the appellant failed to show any probable cause that his detention was unlawful. In his view, the contention that the appellant was innocent was irrelevant as the guilt or innocence of a detainee was not the concern of a judge hearing the application for the writ. The judge`s concern was with the legality of the detention and, in the learned judicial commissioner`s view, the documents annexed to the appellant`s affidavit in aid of his application contained substantial evidence to show that he was being lawfully detained. The learned judicial commissioner also summarily rejected the contention that the detention was unlawful because the appellant ought to have been charged under the provisions of the Misuse of Drugs Act (Cap 185).

Jurisdiction of the Court of Appeal

Before we explain our reasons for dismissing the appeal as we did at the end of the hearing of the appeal, we will deal with a preliminary point regarding the availability of an appeal in applications involving detentions of this nature. In the court below, there was no attempt to determine if this application was in the nature of a civil application or a criminal proceeding. However, the need to make such a determination arises in a critical way on appeal: if the application is a criminal proceeding there is no appeal, whereas there is an appeal if the application is a civil proceeding.

The dichotomy arises from the existence of two different procedures for making an application for a writ of habeas corpus. Article 9 of the Constitution provides, where material:

(1) No person shall be deprived of his life or personal liberty save in accordance with law.

(2) Where a complaint is made to the High Court or any Judge thereof that a person is being unlawfully detained, the Court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the Court and release him.

The power to carry out the direction given by this article of the Constitution is expressly conferred by s 18(2)(a) of the Supreme Court of Judicature Act (Cap 322) (`the SCJA`). The article does not, however, set out the procedure to be followed when invoking this power of the High Court. As the learned judicial commissioner correctly observed, applications in civil matters are to...