Kim Gwang Seok v PP

• Jurisdiction: Singapore
• Judgment Date: 06 September 2012
• Date: 06 September 2012
• Docket Number: Criminal Appeal No 1 of 2012
• Court: Court of Appeal (Singapore)

Kim Gwang Seok

Plaintiff

and

Public Prosecutor

Defendant

[2012] SGCA 51

Chao Hick Tin JA, Andrew Phang Boon Leong JA and Lee Seiu Kin J

Criminal Appeal No 1 of 2012

Court of Appeal

Courts and Jurisdiction—Court of Appeal—Criminal jurisdiction—Whether Court of Appeal had jurisdiction to hear appeal against High Court judge's dismissal of application by criminal motion seeking to allow witnesses to testify from overseas through live video link for impending criminal trial in Singapore—Section 29 A (2) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

Criminal Procedure and Sentencing—Trials—Witnesses—Whether witnesses allowed to give evidence from overseas through live video link for criminal proceedings in Singapore—Section 364 A Criminal Procedure Code (Cap 68, 1985 Rev Ed)

The appellant was charged in the High Court for an offence under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) of engaging in a conspiracy to export diamorphine from Singapore to Australia. He filed a criminal motion seeking leave from the High Court to allow five Korean nationals to testify for him at his impending trial via video link from Korea, with a view towards establishing his defence to the charge.

One of the witnesses was an inmate in the custody of the Korean prison authorities and was the subject of ongoing investigations and possible prosecution in respect of various offences under Korean law. The rest were unable to personally bear the costs of travelling to Singapore for the purpose of testifying at the trial. All the witnesses were willing to testify at the trial via video link from Korea.

The judge dismissed the criminal motion. The judge was of the view that s 346 A of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (‘s 364 A’) only allowed witnesses physically present in Singapore to testify via video link in criminal proceedings if its prescribed conditions were met.

The appellant appealed, arguing that, inter alia, the judge erred in his interpretation of s 364 A and the court should exercise its inherent powers to allow the witnesses to testify from overseas because, inter alia, the evidence of the witnesses was clearly relevant and material to the appellant's defence such that the appellant would be highly prejudiced if the witnesses were not allowed to testify at his trial, and there were unique and exceptional circumstances with regard to the witness who was incarcerated in Korea.

The respondent argued that the court had no jurisdiction to entertain the appeal because the appeal was not one against a decision of the High Court made pursuant to its ‘original criminal jurisdiction’ under s 29 A (2) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (‘s 29 A (2)’), as the criminal motion was a pre-trial application and the judge's order dismissing the criminal motion was therefore interlocutory in nature. The respondent also argued that Singapore law did not permit witnesses who were abroad to give evidence via video link for criminal proceedings in a Singapore court.

Held, dismissing the appeal:

(1) Parliament clearly intended that s 364 A should not be applied to allow witnesses who were physically outside Singapore to give evidence via video link for criminal proceedings in Singapore because of the potential problem of foreign witnesses giving false evidence to exonerate accused persons, particularly in cases involving drug offences, which was exactly the situation in the present case: at [24].

(2) The appellant's application under s 364 A raised other difficulties. By virtue of s 364 A (1) (a), one ground for allowing a witness to give evidence in a criminal proceeding through video link was that the witness was under 16 years of age. However, none of the witnesses were below 16 years of age. The appellant also could not rely on s 364 A (1) (b) since it only applied to the specific offences prescribed under s 364 A (2), and an offence under the Misuse of Drugs Act was not one such specified offence. From an examination of the list of the specified offences, as well as the prescribed age limit, it was clear to the court that the object of this exceptional measure was to protect victims of certain offences so that they would not have to directly face their aggressor-offender and be intimidated thereby when they gave evidence: at [25].

(3) Given the very limited specific offences for which s 364 A allowed witnesses in Singapore to testify via video link and the safeguards prescribed by Parliament, the court did not see how an argument could validly be made that there was still room for judicial discretion to allow witnesses to do so in relation to an offence which was not one of the specified offences and where the circumstances were not those specified in s 364 A: [26].

(4) Furthermore, it seemed that the norm was that witnesses had to be physically present in court to give evidence, as a matter of both practice and law. The provisions in the CPC were based on the assumption that the entire trial process, which included the giving of evidence by witnesses, was to be physically conducted in a courtroom. The manner in which s 364 A itself was framed reinforced this point: s 364 A provided a sole and exceptional avenue for allowing a witness to give evidence in a criminal proceeding while physically outside of the court through video link, as could be inferred from the presence of the words ‘ [n]otwithstanding any other provision of this Act or the Evidence Act’ at the beginning of s 364 A: at [27] and [28].

(5) As far as adduction of evidence by video link was concerned, Parliament clearly intended that criminal proceedings were to be treated differently from civil proceedings. Section 62 A of the Evidence Act (Cap 97, 1997 Rev Ed) expressly permitted witnesses to give evidence from abroad via video link for civil proceedings in Singapore. For criminal proceedings, the witnesses who were giving evidence via video link had to be present in Singapore even though they need not be physically present in court before the judge: at [29].

[Observation: The criminal motion was filed by the appellant in relation to a trial on a capital charge which was to take place in the High Court. The trial was clearly within the ‘original criminal jurisdiction’ of the High Court. If the appellant had made the application at the time of the trial, it would appear that the High Court's decision on the application would be one made in exercise of the High Court's ‘original criminal jurisdiction’. It should follow that that decision should be appealable. In such a case the High Court could well decide to continue and complete the trial, in which event if the trial should result in a conviction, the High Court's decision on the application would have undoubtedly formed a part of the grounds of appeal. The nature of the criminal motion was thus very different from that of the applications made in the previous cases in which s 29 A (2) was considered and applied. The court was inclined to think that the decisions in those cases did not necessarily apply in the instant case. Perhaps it might not even be wise to lump together all interlocutory decisions made by a judge of the High Court in relation to a case which was pending in the High Court and regard them as being similar. The specific nature of the decision in question could likely be critical: at [38].]

Abdullah bin A Rahman v PP [1994] 2 SLR (R) 1017; [1994] 3 SLR 129 (refd)

Ang Cheng Hai v PP [1995] 3 SLR (R) 151; [1995] 3 SLR 201 (refd)

Bachoo Mohan Singh v PP [2010] 1 SLR 966 (refd)

Kiew Ah Cheng David v PP [2007] 1 SLR (R) 1188; [2007] 1 SLR 1188 (refd)

Lim Choon Chye v PP [1994] 2 SLR (R) 1024; [1994] 3 SLR 135 (refd)

Microsoft Corp v SM Summit Holdings Ltd [2000] 1 SLR (R) 423; [2000] 2 SLR 137 (refd)

Mohamed Razip v PP [1987] SLR (R) 525; [1987] SLR 142 (refd)

Ng Chye Huey v PP [2007] 2 SLR (R) 106; [2007] 2 SLR 106 (refd)

Sonica Industries Ltd v Fu Yu Manufacturing Ltd [1999] 3 SLR (R) 119; [1999] 4 SLR 129 (refd)

Wong Hong Toy v PP [1985-1986] SLR (R) 371; [1984-1985] SLR 298 (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 364 A (consd) ; ss 180, 187-192, 364 A (1) , 364 A (1) (a) , 364 A (1) (b) , 364 A (2) , 364 A (8)

Criminal Procedure Code 2010 (Act 15 of 2010) ss 230, 281 (1)

Evidence Act (Cap 97, 1997 Rev Ed) s 62 A

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) ss 7, 12, 18 (2)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 29 A (2) (consd)

Tito Shane Isaac and Jonathan Wong (Tito Isaac & Co) for the appellant

Gordon Oh, Jean Chan and Eunice Ng (Attorney-General's Chambers) for the respondent

.

Chao Hick Tin JA

(delivering the grounds of decision of the court):

Introduction

1 The appellant, Kim Gwang Seok, (‘the Appellant’) filed Criminal Motion No 88 of 2011 (‘the Criminal Motion’) seeking leave from the High Court to allow the following five Korean nationals to testify for him at his impending trial in Criminal Case No 45 of 2011 (‘CC 45/2011’) via video link from Korea:

(a) Mr Lee Byeong Gyun (‘witness (a)’);

(b) Mdm Lee Myung Soon (‘witness (b)’);

(c) Ms Kwak Jisuk (‘witness (c)’);

(d) Ms Kwak Jihye (‘witness (d)’); and

(e) Mr Im Jongshin (‘witness (e)’),

(hereinafter collectively referred to as ‘the foreign witnesses’).

The High Court judge (‘the Judge’) dismissed the application. The Appellant appealed to this court. After hearing submissions of the parties, we dismissed the appeal. We now set out our grounds in writing.

Background

2 In CC 45/2011, the Appellant was charged, along with two others, in the High Court for an offence under s 7 read with s 12 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) of engaging in a conspiracy to export not less than 1546.4 g of diamorphine from Singapore to Australia.

3 The offence that the Appellant was alleged to have committed took place on 30 August 2009. A Nepalese man...