Koh Zhan Quan Tony v Public Prosecutor and Another Motion

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JA
• Judgment Date: 25 April 2006
• Neutral Citation: [2006] SGCA 17
• Docket Number: Criminal Motions Nos 6 and 7 of 2006
• Date: 25 April 2006
• Published date: 12 May 2006
• Year: 2006
• Plaintiff Counsel: Loo Ngan Chor and Julian Tay (Lee & Lee)
• Citation: [2006] SGCA 17
• Defendant Counsel: Ismail Hamid (Ismail Hamid & Co),Ong Hian Sun, Jason Chan and Gillian Koh Tan (Deputy Public Prosecutors)
• Court: Court of Appeal (Singapore)
• Subject Matter: Jurisdiction,Whether Court of Appeal having no jurisdiction to hear motions as court functus officio after hearing appeal,Court of Appeal hearing and determining substantive merits of Prosecution's appeal against applicants' convictions on lesser charges of robbery with hurt instead of original charges of murder,Section 44(3) Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed),Appellate,Applicants filing motions challenging Court of Appeal's jurisdiction to hear Prosecution's appeal,Whether Court of Appeal having jurisdiction to hear appeal under s 44(3) Supreme Court of Judicature Act,Courts and Jurisdiction

25 April 2006

Andrew Phang Boon Leong JA (delivering the judgment of the court):

Introduction

1 The present case raised seemingly simple – yet substantively profound – issues that impact, first, on the scope of this court’s jurisdiction and, second, on the scope of the right of the Prosecution to appeal against the acquittal of an accused person under s 44(3) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“SCJA”). The simplicity lay in the statement of the issues; the complexity lay in arriving at principled and rational conclusions with respect to both issues, which conclusions are simultaneously consistent with the relevant statutory language and (above all) justice and fairness.

2 By way of a brief background to the present proceedings, the applicants were (in Criminal Case No 35 of 2004) charged with the offence of murder under s 302 read with s 34 of the Penal Code (Cap 224, 1985 Rev Ed). The learned trial judge held thus (see PP v Lim Poh Lye [2005] 2 SLR 130 at [19]):

I am, therefore, of the view that the charge of murder ought to be reduced to a charge under s 394 of the Penal Code, that is, for the offence of robbery with hurt, and in regard to which both accused were, in my view, independently guilty. I thus find both accused guilty of an offence under s 394 of the Penal Code, and convict them accordingly. I shall hear counsel on sentencing when they are ready. [emphasis added]

3 We must assume that the above paragraph in the learned judge’s grounds of decision flows from, and is therefore consistent with, his minute sheet dated 24 January 2005, the material parts of which read as follows:

Court: 1. First and Second Accused not guilty of murder as charged.

2. Charge under section 302 to be reduced to s 394 of the Penal Code.

3. First Accused convicted under s 394 of the Penal Code and sentenced to 24 strokes of the cane and 20 years imprisonment with effect from 7 April 2004.

4. Second Accused convicted under s 394 of the Penal Code and sentenced to 20 strokes of the cane and 15 years imprisonment with effect from 31 May 2004.

[emphasis added]

4 The Prosecution appealed against the above decision to acquit the accused of the charge of murder. The Court of Appeal (in Criminal Appeal No 2 of 2005) allowed the appeal (see PP v Lim Poh Lye [2005] 4 SLR 582) and accordingly convicted the accused on the original charge of murder under s 302 read with s 34 of the Penal Code and sentenced them to death. Significantly, in our view, is the manner in which the court described the proceedings before it in the very first paragraph of its judgment, as follows (at [1]):

This is an appeal by the Public Prosecutor against an order of acquittal made … at the conclusion of a trial, at which a charge of murder under s 302, read with s 34, of the Penal Code (“the PC”) (Cap 224, 1985 Rev Ed), was preferred against the two respondents, Lim Poh Lye (“Lim”) and Tony Koh Zhan Quan (“Koh”). Instead, the judge convicted the respondents on a lesser charge of robbery with hurt punishable under s 394 of the PC, with Lim being sentenced to 20 years’ imprisonment and 24 strokes of the cane and Koh, 15 years’ imprisonment and 20 strokes of the cane. [emphasis added]

5 In particular, it is significant, in our view, that the Court of Appeal characterised the order made below as an order of acquittal on the charge of murder, although the court also noted that the trial judge had convicted the accused on a lesser charge of robbery with hurt.

6 The two issues raised in the present proceedings by the situation briefly described above were as follows.

7 Firstly, did this court have the jurisdiction in the present proceedings to even entertain the applications in the first instance? Put another way, was this court functus officio, having already heard the substantive merits of the appeal in Criminal Appeal No 2 of 2005 and having decided to allow the Prosecution’s appeal against the acquittal of the accused? If so, that would have concluded these proceedings in the respondent’s favour simply because this court would not be legally entitled to entertain the applications in the present proceedings in the first instance.

8 Secondly, even assuming that this court had answered the first issue in the affirmative, this would not have concluded the case in favour of the applicants. The first issue would, by its very nature, have been a threshold one of jurisdiction. The second (and further) issue that would arise would be whether or not, assuming that this court had the jurisdiction to hear the applications, the applicants could demonstrate to the satisfaction of this court that the appeal by the Prosecution against their acquittal on the charge of murder, where they had been convicted on a lesser charge, did not fall within the ambit of s 44(3) of the SCJA. If it did not, then this court would, in the earlier proceedings, have been acting without jurisdiction and, consequently, its decision would have been a nullity, and the present applications would have had to be allowed. If, on the other hand, the appeal by the Prosecution did in fact fall within the ambit of that particular provision, then the applications would fail.

9 Section 44(3) of the SCJA reads as follows:

An appeal by the Public Prosecutor shall be either against the acquittal of an accused person or against the sentence imposed upon an accused person by the High Court. [emphasis added]

10 We dismissed the applications and now give the detailed grounds for our decision.

The issue of jurisdiction

11 The respondent argued – not surprisingly, perhaps – that this court did not have the jurisdiction to entertain the present applications in the first instance. In particular, it argued that this court was functus officio. It relied, in the process, on a number of decisions of this court (principally, the two decisions cited in this as well as in the following paragraph; see also Vignes s/o Mourthi v PP (No 3) [2003] 4 SLR 518 (“the Vignes case”)). However, it is significant to note at the outset that all these decisions dealt with attempts to re-open the substantive merits of the cases concerned. Looked at in this light, it was clear that this court was, in those cases, correct in rejecting those attempts since the courts in those cases were truly functus officio. In other words, there was, and could be, no indefinite right of appeal unless this was provided for by statute – in particular, by the provisions of the SCJA. As Karthigesu JA aptly put it in this court in Lim Choon Chye v PP [1994] 3 SLR 135 at 137, [8]:

It did not appear to us that the above two subsections in themselves [s 29A(2) and s 29A(4)] took the applicant’s case very far, since there is no indication in them of Parliament’s intention to allow an appellant an indefinitely extended right of appeal in the sense of being able to pursue a second appeal even after his first has been duly heard and dismissed. As a matter of procedure, once the Court of Appeal has rendered judgment in an appeal heard by it, it is functus officio as far as that appeal is concerned.

12 And, in a similar vein, Yong Pung How CJ, also in a decision of this court in Abdullah bin A Rahman v PP [1994] 3 SLR 129, observed thus (at 132, [10]):

Where, however, the Court of Appeal has heard and disposed of an appeal, as it has in this on 9 November 1993, it is functus officio in so far as that appeal is concerned. There is no express provision which affords the Court of Appeal the jurisdiction to hear fresh evidence, thereby re-opening the case after it has heard and disposed of the appeal. We are unable to agree with Mr Suppiah’s [counsel for the accused’s] submission that this enabling provision can be found in ss 29(A)(4) or 55(1).

13 However, the situation in the present proceedings was different in this important respect: this court was not being asked to re-open the substantive merits of its previous decision as such but, rather, was being asked to rule that this court could not even have considered (in Criminal Appeal No 2 of 2005) the substantive merits in the first instance as it did not have the jurisdiction to do so. In this regard, it is of the first importance to emphasise that the concept of jurisdiction is a threshold one inasmuch as it refers to the court’s “authority, however derived, to hear and determine a dispute that is brought before it” (per Chan Sek Keong J (as he then was) in the leading Singapore High Court decision of Muhd Munir v Noor Hidah [1990] SLR 999 at 1007, [19]). The jurisdiction of a court is traditionally distinguished from its powers. As Chan J put it in Muhd Munir v Noor Hidah (at 1007–1008, [19]):

The powers of a court constitute its capacity to give effect to its determination by making or granting the orders or reliefs sought by the successful party to the dispute. The jurisdiction and powers of the High Court are statutorily derived. Whether it has any common law jurisdiction or powers is a question which is not relevant here. A court may have jurisdiction to hear and determine a dispute in relation to a subject matter but no power to grant a remedy or make a certain order because it has not been granted such power, whereas if a court has the power to grant a remedy or make a certain order, it can only exercise that power in a subject matter in which it has jurisdiction.

14 Whether or not this court had in fact the requisite jurisdiction in the previous proceedings depended, in turn, on the second main issue in this case: whether or not the proceedings fell within the ambit of s 44(3) of the SCJA. The argument by the respondent, however, was that this court could not even consider the ambit of s 44(3) of the SCJA (viz, the second main issue) to begin with as it was functus officio. If the respondent was indeed correct, then this court would not even be able to consider whether or not it was acting in excess of its jurisdiction in the first instance. If so, and if it had in fact ...