Lee Chen Seong Jeremy and others v Public Prosecutor

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 01 March 2019
• Neutral Citation: [2019] SGHC 48
• Court: High Court (Singapore)
• Docket Number: Criminal Revision No 9 of 2018
• Published date: 03 May 2019
• Year: 2019
• Hearing Date: 06 December 2018,21 November 2018
• Plaintiff Counsel: Adrian Wong and Ang Leong Hao (Rajah & Tann Singapore LLP)
• Defendant Counsel: Peter Koy, Sng Yi Zhi Eugene and Ben Mathias Tan (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Revision of proceedings,Section 370(1) Criminal Procedure Code
• Citation: [2019] SGHC 48

See Kee Oon J:

Where a person or persons are suspected of having committed an offence, it is commonplace for the police or the relevant law enforcement agencies to seize property belonging to them for the purposes of assisting with those investigations. The law enforcement agency does not, however, have the right to hold on to the property indefinitely. Instead, s 370(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) regulates the procedure to be taken by a law enforcement agency in reporting the seizure of the property to a Magistrate. The relevant officer must either make a report to the Magistrate once he considers that the property is not relevant for the purposes of any investigation, pursuant to s 370(1)(a) CPC, or, if he considers the property still to be relevant to ongoing investigations, he must make a report to the Magistrate one year after the seizure, pursuant to s 370(1)(b) CPC. In the latter case, the Magistrate may convene a hearing of the reporting if necessary, permitting persons who have an interest in the property (the “interested persons”) to attend and make representations. The Magistrate would have to be satisfied that the property was indeed relevant for the purposes of investigations in order for the continued seizure by the law enforcement agency to be justified.

In this case, the property in question was considered to be relevant to ongoing investigations which were not complete even after the one-year deadline stipulated under s 370(1)(b) CPC (“the one-year deadline”) had lapsed. The law enforcement officer made the relevant report pursuant to s 370(1)(b) CPC (“the s 370 Report”) to the Magistrate within the one-year deadline. The petitioners indicated that they did not consent to the continued seizure of the property. At the ensuing inter partes hearing, the Magistrate was not persuaded that the s 370 Report was sufficient to justify the continued seizure of the property. The law enforcement agency, assisted by the Public Prosecutor, then sought to place additional material before the Magistrate to supplement the report. I will refer to the law enforcement agency and the Public Prosecutor collectively as “the prosecution”. When the additional material still proved to be insufficient, the prosecution asked to be heard ex parte to place yet more material before the Magistrate, even though the inter partes hearing before the Magistrate had already commenced.

The petitioners argued that the Magistrate erred in admitting the additional material, and also in indicating that she was prepared to hear the prosecution ex parte. The thrust of the petitioners’ arguments was that if the Magistrate was not satisfied by the material in the s 370 Report, she should have ordered the release of the seized property. The petitioners therefore filed this criminal revision, seeking this Court’s intervention in the proceedings.

This criminal revision raised novel questions of law relating to the reporting procedure for seized property under s 370(1)(b) CPC, in particular, whether fresh material could be admitted to supplement the report put before the Magistrate, and whether the prosecution was entitled to be heard ex parte after the inter partes hearing had begun. As regards the specific facts of this case itself, the parties also agreed that the High Court could, in the exercise of its revisionary jurisdiction, step into the shoes of the Magistrate and determine whether the property seized here was indeed relevant for the purposes of investigations.

I allowed the criminal revision, and ordered that the seized property be released to the petitioners, being the persons entitled to their possession. I indicated at the time of giving my oral decision that full grounds would be furnished in due course. These grounds are set out below.

Facts

The petitioners are three individuals who were involved in the management of certain companies, in particular, companies in the “Sourcelink” and “Canaan” groups of companies.

The property in question, chiefly comprising company files and various electronic devices, was seized by the police on 6 June 2017¹ pursuant to investigations commenced by the Commercial Affairs Department of the Singapore Police Force (“CAD”) into offences committed under the Penal Code (Cap 224, 2008 Rev Ed) and the Companies Act (Cap 50, 2006 Rev Ed).² Although there were three petitioners involved in this case, the investigations were substantively directed at only the first petitioner, Mr Lee Chen Seong Jeremy (“Mr Lee”).³

On 5 April 2018, the CAD wrote to Mr Lee, asking for his consent to CAD’s continued seizure and retention of the seized property.⁴ Mr Lee responded through his solicitors, M/s Rajah & Tann Singapore LLP, who wrote on behalf of all the petitioners on 12 April 2018 and 17 April 2018 to inform the CAD that the petitioners did not give consent.⁵

On 6 June 2018, the CAD filed the s 370 Report pursuant to s 370(1)(b) CPC.⁶ It appeared that no charges had been brought against any of the petitioners by this time. The prosecution took the position that the property was still relevant for the purposes of investigations. The s 370 Report stated that “CAD is investigating into possible offences under Sections 406 and 420 of the Penal Code (Cap 224), Section 148(1) of the Companies Act (Cap 50) and Section 35(1) of the Business Names Registration Act by Jeremy Lee Chen Seong”, and further stated that “[i]nvestigations are on-going”.⁷

The CAD amended the s 370 Report on 2 July 2018 (“the amended s 370 Report”). The amendments were mostly of a clerical nature,⁸ and involved the correction of some typographical errors in the s 370 Report, the removal of five items wrongly included in the tables of items seized, and the inclusion of five items the s 370 Report failed initially to describe.

The reporting of the seizure under s 370 CPC was heard inter partes by the Magistrate on 19 July 2018. Before the hearing, the prosecution filed a fresh Annex to the amended s 370 Report (“the Annex”) which gave more details as to how the items seized were relevant to the criminal investigations. This Annex should not be confused with the annex that was part of the s 370 Report or the amended s 370 Report. The Annex stated that “[between] 9 June 2014 and 8 March 2016, CAD received complaints against Jeremy Lee Chen Seong, alleging that he had contravened offences under the Companies Act and Penal Code”.⁹ The specific allegations were that he had (1) “cheated an investor into investing in Canaan Medical Pte Ltd”; (2) “misappropriated monies from Mobdown Pte Ltd”; and (3) “managed companies/businesses while being an undischarged bankrupt.”¹⁰ The Annex reiterated that investigations were ongoing.

The Magistrate indicated at the hearing on 19 July 2018 that she had “difficulty” determining the relevance of the seized property to the investigations on the material before her, ie, the amended s 370 Report and the fresh Annex.¹¹ The prosecution then asked to be heard ex parte.¹² The petitioners objected to this because the parties were already being heard inter partes.¹³ The Magistrate decided to adjourn the proceedings, allow the prosecution to prepare the ex parte report, and then hear the parties again on whether the prosecution should be allowed to be heard ex parte at this stage in the proceedings.¹⁴ The proceedings were adjourned to 17 August 2018.

Before the adjourned hearing, the prosecution decided of its own accord to file an addendum to the amended s 370 Report (“the Addendum”) on 15 August 2018.¹⁵ This Addendum was made available to the petitioners. The Addendum furnished yet more information concerning the CAD investigations. In particular, paragraph 3 of the Addendum gave more details of the offences Mr Lee was being investigated for, while paragraph 4 specified that the items were seized because “they are believed to constitute evidence of the above offences and therefore relevant to [CAD’s] investigations”. The original annex to the amended s 370 Report was also updated to “show the relevance of each item to the offence that is being investigated”; a new column was inserted to the right of the tables attributing the items seized to offences committed under the Penal Code, Business Names Registration Act 2014 (No 29 of 2014) or the Companies Act.

At the adjourned hearing on 17 August 2018, the petitioners vigorously objected to the prosecution having filed the Addendum on its own motion. The petitioners also argued that the Magistrate was not entitled to have reference to either the Annex or the Addendum, as both had been filed outside the one-year deadline. The Magistrate decided that she could have sight of the Addendum.¹⁶ She made it explicitly clear, however, that she had not requested for information to be put in on an ex parte basis, and that she had instead indicated at the hearing on 19 July 2018 that the prosecution should consider whether it could provide information on an inter partes basis, thus obviating the need for an ex parte hearing.¹⁷

The prosecution, for its part, indicated that it had placed all relevant material before the court, and was content for the matter to proceed on an inter partes basis.¹⁸ The Magistrate was not persuaded that even the amended s 370 Report with its Annex and Addendum was sufficient to satisfy her of the continued relevance of the seized property to the CAD’s investigations.¹⁹ The prosecution then made an application to place additional information before the Magistrate on an ex parte basis.²⁰ The petitioners also objected to this, not only on the basis that the prosecution had no right to make ex parte applications once the inter partes hearing had begun, but also because it had forsaken any such right, having stated its willingness for the matter to proceed inter partes. The Magistrate ultimately decided that she could hear the prosecution ex parte even though the inter...