Kulwant v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Bellamy
• Judgment Date: 17 April 1986
• Neutral Citation: [1986] SGHC 13
• Docket Number: Criminal Motion No 12 of 1985
• Date: 17 April 1986
• Year: 1986
• Published date: 19 September 2003
• Plaintiff Counsel: R Murugason (Murugason & Co)
• Citation: [1986] SGHC 13
• Defendant Counsel: Amarjit Singh, amicus curiae,Tan Teow Yeow and G Pang (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Application for certified copy of accused's statement to police,ss 5 & 57(1) Criminal Procedure Code (Cap 113, 1970 Ed),Application for order to produce documents,Statement by accused to police before being charged,Proceedings about to commence in lower court,ss 76, 78 & 79 Evidence Act (Cap 5, 1970 Ed),Forum and time of application,Criminal Procedure and Sentencing,Right to a certified copy without right to inspect,ss 7(a),15, 18, 23 & 27 Supreme Court of Judicature Act (Cap 15, 1970 Ed),Statements

Whilst awaiting appearance before an examining magistrate for determination of whether or not he should be committed for trial in the High Court on a charge of rape, the applicant sought an order that the High Court compel the respondent to furnish him with certified copies of certain documents.

He apparently made two statements to the police. The second of these was made under s 126(6) of the Criminal Procedure Code (Cap 113, 1970 Ed) (CPC). The other was made earlier. The applicant claims it was made under s 121(5) CPC. The prosecution say that it was made under s 120 CPC. Section 121(5) does not provide for the making or recording of statements. It merely provides for uses to which a statement can be put. As the statement in question was made earlier than the one under s 121(6), I will refer to it as the earlier statement.

By way of criminal motion, the applicant sought an order from the High Court that the Public Prosecutor furnish him with a certified copy of each of certain documents arising from the investigation into the alleged offence. Requested copies were of:

(a) the information first received and recorded under s 114 CPC (the first information report);

(b) extracts from the station diary;

(c) extracts from the charge book; and

(d) the earlier statement.

The first information report has been supplied to the applicant as indeed was his statement under s 121(6) CPC. Mr Murugason, counsel for the applicant, very wisely abandoned at the final hearing before me applications in respect of extracts from the station diary and the charge book. The only issue therefore before me was the application in respect of the earlier statement.

At first hearing, there was argument on each of the above documents. Reserving judgment, the question arose in my mind of whether the High Court had jurisdiction to entertain an application of this nature. I therefore asked the parties to address me further on whether the High Court had jurisdiction to hear a criminal motion for its present purpose. In doing so, I acceded to Mr Murugason`s request that in view of the general and wider interest in the matter, both on jurisdiction and substance, I would invite the Law Society to nominate counsel to appear as amicus curiae. Mr Amarjit Singh was nominated. I am grateful to him for his full and comprehensive arguments, both in favour and against the present application. Mr Fong Kwok Jen, who appeared earlier for the Public Prosecutor, was out of the country and was not able to be present at the last hearing.

There are only two statutes of relevance on the question of jurisdiction. The first is the Supreme Court of Judicature Act (Cap 15, 1970 Ed) (SCJA) and the other is the CPC.

Before I turn to the statutes on jurisdiction, I should deal with ss 76, 78 and 79 of the Evidence Act (Cap 5, 1982 Reprint). These sections were the foundation for each of Mr Murugason`s various submissions on the High Court`s jurisdiction.

Section 76 specifies what are the `public documents`. Section 78 provides that `every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it` (emphasis added) certifying that it is a true copy. Section 79 provides that such certified copies may be produced in proof of the contents of public documents. Mr Murugason`s argument was that s 78 gave the applicant a right, because of his `real and tangible interest` in it, to inspect the earlier statement, a public document; as a consequence of this right, he had the further right to a certified copy.

Section 78 does not give any right to inspect. It merely gives a right to a certified copy of a particular public document where there is a right to inspect that particular public document. The right to inspect must be found in a statute (even where there is a real and tangible interest) not in s 78. Examples of such a right to inspect, either to the public at large or to a particular category of persons, can be found in s 18 of the Bankruptcy Act (Cap 18, 1970 Ed), s 43(10) of the Women`s Charter (Cap 47, 1970 Ed), s 12(1) of the Companies Act (Cap 185, 1970 Ed), s 23(2) of the Accountants Act (Cap 212, 1970 Ed) and ss 19 and 20 of the Registration of Deeds Act (Cap 281, 1970 Ed).

Section 78 is therefore of no avail to the applicant unless he can establish a statutory right to inspect his earlier statement to the police. Mr Murugason was unable to refer me to any law which gave the applicant such a right. Therefore, the Evidence Act is of no assistance whatsoever to the applicant in this case.

There are, of course, many instances where the police and other administrative bodies provide certified copies of public documents in their possession. These are clearly in exercise of administrative discretion and not in response to a request under a statutory right of a member of the public. To say that s 78 gives a right of inspection is a totally unwarranted stretching of the language of that provision and will destroy the necessary and justified confidentiality of the administration and of private persons involved in the bulk of public documents.

Section 7(a) SCJA provides that the High Court shall exercise original and appellate criminal jurisdiction. Section 15 describes the type of cases in which the High Court has original criminal trial jurisdiction. These two sections have no application. There is no appeal nor am I asked to exercise original trial jurisdiction.

Section 18 and para I (which has the marginal note Prerogative Writs) of the First Schedule headed `Additional Powers of the High Court` read as follows:

(1) The High Court shall have all such powers as are vested in it by any written law for the time being in force in Singapore.

(2) Without prejudice to the generality of sub-s (1) of this section the High court shall have the powers set out in the First Schedule to this Act:

Provided that all such powers shall be exercised in accordance with any written law or Rules of Court relating to them.

First Schedule

1 Power to issue to any person or authority directions, orders or writs, including writs of the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any others, for the enforcement of any of the rights conferred by any written law or for any purpose.

Mr Murugason sought to invoke these provisions to give the High Court jurisdiction. Before an applicant can rely on this provision, he has to show that as provided in sub-s (1) there is a written law vesting a power in the High Court or that the power invoked comes within the proviso to sub-s (2), ie, that its exercise accords `with any written law or Rules of Court relating to them`. There is no written law or rule of court which the applicant`s counsel could cite as relevant to the present application. In any event, the remedies referred to in the paragraph of the First Schedule, as further indicated by the marginal note, are remedies in the nature of a prerogative writ. That is not the nature of the application here.

Mr Murugason also argued that ss 23 and 27 of the SCJA gave the High Court jurisdiction to entertain this application. Section 23 gives `in accordance with provisions of any written law for the time being in force relating to criminal procedure` the High Court powers of `revision` in respect of criminal proceedings and matters in the subordinate courts. In this instance, there are yet no criminal proceedings or matters in any subordinate court relating to the charge against the applicant. In any event, there must in addition be a written law relating to criminal procedure under which the applicant could move the High Court. There is no such provision.

Section 27 gives the High Court general supervisory and revisionary supervision over all subordinate courts. As with s 23, this section has no application unless proceedings have, at least, commenced in a subordinate court.

The provisions I referred to exhaust all the possible provisions of the SCJA under which the High Court could possibly have jurisdiction in this matter.

The CPC has instances giving the High Court original jurisdiction other than trial jurisdiction to hear specific applications in criminal matters. Under s 184, the High Court is vested with power to transfer a criminal case from one court to another on the application of the prosecution or the accused. Another example is found in s 249 where the High Court can hear an application where a person desirous of appealing is debarred from so doing because of not having observed some formality or requirement of the CPC.

There is no point in my going through the CPC exhaustively to list out instances where the CPC gives the High Court original jurisdiction. I have referred to the two provisions merely to show that if the Legislature intended the High Court to have jurisdiction in a matter like the one before me, specific reference would have made to it in the CPC.

The only provision of the CPC which remotely has a bearing is s 57(1) which, omitting the proviso which has no relevance, reads:

Whenever any court or police officer considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial

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