Kiew Ah Cheng David v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 17 January 2007
• Neutral Citation: [2007] SGCA 2
• Docket Number: Criminal Case Appeal No 6
• Date: 17 January 2007
• Year: 2007
• Published date: 18 January 2007
• Plaintiff Counsel: Peter Ezekiel (Phoeng & Co)
• Citation: [2007] SGCA 2
• Defendant Counsel: Nor'ashikin Samdin and Vincent Leow (Deputy Public Prosecutors)
• Court: Court of Appeal (Singapore)
• Subject Matter: Jurisdiction,Appellate,Courts and Jurisdiction,Whether Court of Appeal having jurisdiction to hear appeal against High Court's dismissal of criminal motion for extension of time to file notice and petition of appeal from magistrate's court

17 January 2007

Choo Han Teck J (delivering the grounds of decision of the court):

1 The appellant was convicted after trial in a Magistrate’s Court on 13 June 2006 for an offence of driving a motor vehicle without due consideration to other road users, an offence under s 65 of the Road Traffic Act (Cap 276, 2004 Rev Ed). He was sentenced on the same day to a fine of $900 and disqualified from driving for a period of three months. On 22 June 2006, the appellant filed a notice of appeal against sentence only. The magistrate gave the grounds of his decision in writing together with the notes of evidence on 1 August 2006. Section 247(4) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”) provides that a person who has filed a notice of appeal has to lodge a petition of appeal within ten days after the grounds of decision have been served on him. It was not disputed that the appellant ought to have filed a petition of appeal by 11 August 2006. He did not do so. Section 247(7) of the CPC provides that the appeal, notice of which was given by way of the notice of appeal, is deemed withdrawn. On 17 August 2006, the appellant applied by way of a criminal motion to the High Court (Criminal Motion No 22 of 2006) seeking an extension of time to file his notice of appeal against conviction (his initial notice was in respect of an appeal against sentence only), and an extension of time to file his petition of appeal against conviction.

2 Criminal Motion No 22 of 2006 was heard on 1 September 2006. The learned judge noted that the affidavit and supplementary affidavit filed on behalf of the appellant did not explain what merits the appellant believed he had in the appeal against conviction. Counsel for the appellant then asked for leave to file an affidavit on the merits of the appellant’s appeal. The judge refused leave and dismissed the application for an extension of time. Although no written grounds were given, the notes of evidence sufficiently indicated the reasoning of the judge when he dismissed the application:

I’m sympathetic to your plight Mr Ezekiel [counsel for the appellant] … but, as you know, at the end of the day, I think we have rules, we have procedures and there is the question of exercise of discretion which can’t be whimsical, there are certain established authorities that guide the judge’s discretion in matters of this sort. I’m afraid that in the circumstances, I have no alternative but to dismiss your motion.

The appellant thus appealed to this court against the decision of the learned judge in the Criminal Motion No 22 of 2006 proceedings, praying that the decision “be set aside and that such order may be made thereon as justice may require”.

3 The critical issue before us on appeal concerned the question of the jurisdiction of this court to hear an appeal of this nature. The powers of an appellate court are granted by statute. It derives no power save for those that are conferred on it by legislation. This basic principle had been reiterated on numerous occasions by this court: see Wong Hong Toy v PP [1984-1985] SLR 298 at 304, [16]; Microsoft Corporation v SM Summit Holdings [2000] 2 SLR 137 at [17]; and Lim Choon Chye v PP [1994] 3 SLR 135 at 139, [13]. It is necessary to begin by examining the provision by which the appellant brought his case before the High Court. The appellant stated in his motion in Criminal Motion No 22 of 2006 that the application was brought under s 250 of the CPC. Section 250 provides as follows:

The High Court may, on the application of any person...