Lee Siew Boon Winston v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 30 November 2015
• Neutral Citation: [2015] SGCA 67
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Motion No 21 of 2015
• Year: 2015
• Published date: 10 March 2016
• Hearing Date: 30 November 2015
• Plaintiff Counsel: N Sreenivasan SC, S Balamurugan and Lim Jie (Straits Law Practice LLC)
• Defendant Counsel: and Kow Keng Siong, Sarah Shi and Sarah Ong (Attorney-General's Chambers)
• Subject Matter: Criminal procedure and sentencing,criminal references,disclosure
• Citation: [2015] SGCA 67

Sundaresh Menon CJ (delivering the judgment of the court ex tempore):

On 28 March 2014, the applicant was convicted of two charges of using criminal force on the complainant, a 38-year-old female, with the intention to outrage her modesty, under s 354(1) of the Penal Code (Cap 224, 2008 Rev Ed). He was sentenced to an aggregate term of ten months’ imprisonment. The district judge’s decision is published as Public Prosecutor v Winston Lee Siew Boon [2014] SGDC 308. The applicant appealed against the district judge’s decision, but his appeal against both his conviction and sentence was dismissed by Chan Seng Onn J in Lee Siew Boon Winston v Public Prosecutor [2015] 4 SLR 1184 (“Lee Siew Boon Winston”). One issue that arose during the trial and at the appeal was whether the Prosecution had a duty to disclose two statements of the complainant which had been recorded by the investigating officer.

In this criminal motion, the applicant applies for leave to refer the following questions of law to the Court of Appeal pursuant to s 397(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed):

Question 1

Whether the presumption of legality or regularity of acts done in relation to the exercise of prosecutorial power, expressed by this Honourable Court in Ramalingam Ravinthran v Attorney General [2012] 2 SLR 49 at [46]: (a) Applies only to matters where the prosecution exercises constitutional or discretionary powers and not to matters relating to the conduct of a trial by the prosecution, in particular in relation to duties owed to the Court; or whether the presumption (b) Also applies in relation to the prosecution’s duty of disclosure under its Kadar obligations, and therefore the court proceeds on the assumption that that the prosecution has fulfilled its Kadar presumption, for the reasons set out [in the Judgment at [167]–[169]]?

Question 2

Arising from and considering the answer to Question 1, what is the threshold test such that the prosecution has to show compliance with its Kadar obligations? Is it “reasonable grounds for belief that the prosecution has failed to comply with its Kadar obligations” or “that there is some doubt, dispute or uncertainty as to whether the unused material in the possession of the prosecution is credible and/or relevant to the guilt or innocence of the accused”?

Question 3

(a) What are the considerations for requiring disclosure of the unused statement of the complainant? (b) In cases involving rape and outrage of modesty generally, and in relation to the statements of the complainant in this case specifically, what are the considerations for requiring disclosure of the unused statement of the complainant? (c) To what extent, if any, should the absence of corroboration and the need for the evidence of the complainant to be unusually convincing affect Kadar obligations requiring disclosure of the unused statement of the complainant?

Having heard the submissions of counsel for the applicant, Mr N Sreenivasan SC (“Mr Sreenivasan”), we dismissed the application.

At the outset, we should reiterate that in our system of criminal justice, there is only one tier of appeal. In this case, the applicant was convicted after trial; an appeal was subsequently filed and that was dismissed. The applicant has no further right to appeal. What is left is the criminal reference procedure, where one or more questions of law of public interest can be brought to the Court of Appeal, but only with leave.

There are clear limitations on the bringing of a criminal reference, and those limitations have been, and will continue to be, observed scrupulously so that our system of a single tier of appeal does not in substance become a system with two tiers of appeal. As this court observed in Mohammad Faizal bin Sabtu and another matter v Public Prosecutor and another matter [2013] 2 SLR 141 (“Mohammad Faizal”) at [21], “[t]o liberally construe s 397 so as to more freely allow a reference to the Court of Appeal would seriously undermine the system of one-tier appeal”.

The aforementioned limitations are embodied in the four well-established...