Leong Yew Thong v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 08 April 1996
• Neutral Citation: [1996] SGHC 67
• Docket Number: Magistrate's Appeal No 159/95/01
• Date: 08 April 1996
• Year: 1996
• Published date: 19 September 2003
• Plaintiff Counsel: Jimmy Yim (Drew & Napier)
• Citation: [1996] SGHC 67
• Defendant Counsel: Lim Yew Jin (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Procedure,Dismissal of appeal,When court should exercise powers,Revision of proceedings,Appeal,s 268 Criminal Procedure Code (Cap 68),Governing principles,s 253 Criminal Procedure Code (Cap 68),Criminal Procedure and Sentencing,Reinstatement of dismissed appeal,Absence of appellant

The appellant was convicted below on four charges of cheating. He appealed against that decision and was bailed pending the appeal. The hearing was set for 13 February 1996, but was postponed as the appellant was unwell, and had obtained a medical certificate to excuse his absence. This his wife brought and handed over to his counsel, who submitted it to the court. Accordingly, a new date was set for 12 March 1996. By that date, his counsel was ready; the prosecution was ready; and the court was ready. Alas, the appellant was not. On the day of the postponed hearing, he was absent and again tendered, through his wife and his counsel, another medical certificate.

His counsel acknowledged that s 253 of the Criminal Procedure Code (CPC) (Cap 68) permitted the court to dismiss the appeal. But he submitted that it would also be open to the court to exercise its powers of revision under s 268, and in effect allow the appeal. This I was not minded to do, and I dismissed the appeal under s 253. I also issued orders for the bailor to show cause, and for a warrant to issue for the arrest of the sickly appellant. In view of the submissions on ss 253 and 268, I thought it appropriate that some guidance be given on the application of those sections.

Dismissal of appeal

Section 253 reads:

(1) When the appeal comes on for hearing the appellant, if present, shall first be heard in support of the appeal, the respondent if present shall be heard against it, and the appellant shall be entitled to reply.

(2) If the appellant does not appear to support his appeal in person or by counsel the court shall consider his appeal if the appellant is in custody, and may make such order thereon as it thinks fit.

(3) If the appellant has been granted bail on a recognizance which is to be void if the appellant shall personally appear at the High Court during the hearing of the appeal, the court may dismiss the appeal if the appellant does not appear in person before the High Court on the hearing of the appeal:

Provided that the court may, if it sees fit, reinstate the appeal if the appellant subsequently appears before the court and satisfies the court that his non-appearance was not due to his own fault.

Only sub-s (3) is relevant in the present case. That subsection was incorporated into the precursor section of s 253 in 1933, through s 36 of Ordinance 36 of that year. This provision is home-grown: neither the Indian nor the Federated Malay States Codes have the same provision.

In India, there is no exact equivalent of s 253, but the wording of the nearest section is as follows:

Section 384(1)

If upon examining the petition of appeal and copy of the judgment received under section 382 or section 383, the Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily:

Provided that -

(a) no appeal presented under section 382 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same;

(b) no appeal presented under section 383 shall be dismissed except after giving the appellant a reasonable opportunity of being heard in support of the same, unless the Appellate Court considers that the appeal is frivolous or that the production of the accused in custody before the Court would involve such an inconvenience as would be disproportionate in the circumstances of the case;

...

In Malaysia, criminal procedure is still largely governed, for present purposes, by the Federated Malay States Criminal Procedure Code (FMS CPC), being Enactment 6 of 1935. The relevant provision is s 313(ii), which reads:

If the appellant does not appear to support his appeal the Court may consider his appeal and may make such order thereon as it thinks fit: provided that the Court may refuse to consider the appeal or to make any such order in the case of an appellant who is out of the jurisdiction or who does not appear personally before the Court in pursuance of a condition upon which he was admitted to bail, except on such terms as it thinks fit to impose.

That subsection was first incorporated into the FMS CPC by Enactment 33 of 1932, which amended s 311 of Enactment 22 of 1926, itself replacing the various State enactments of 1902 and 1903. Section 311(ii) of the 1926 enactment read:

If the appellant does not appear to support his appeal the Court shall consider his appeal, and may make such order thereon as it may think fit; provided that the Court may refuse to make any such order in the case of an appellant who is out of the jurisdiction except on such terms as it may think fit to impose.

Section 300(2) of the Straits Settlements CPC of 1926, the precursor of the present s 253, is in the same terms.

No explanation was provided in the Straits Settlements Legislative Council debates of the change in wording to s 300 of the 1926 CPC. It is clear though that the Straits Settlements and the Federated Malay States thought fit that the court should have some discretion not to hear an appeal in which the appellant has failed to appear. In contrast, it would appear that in India an appeal cannot be dismissed because of the absence of the person supporting the petition of appeal.

As is apparent from the above, there is a difference between the local position and that in Malaysia. There, when an appellant is absent, the court may make an order which it thinks appropriate, or it may refuse to consider the appeal, or make such an order only on condition. There is no express power of dismissal, and indeed it could be interpreted that that provision does not in fact empower the court to dismiss the appeal, but only not to consider it, leaving it to be heard at some date in the future. However, this was not the approach adopted in Rahim bin Usoff & Ors v PP [1985] 1 MLJ 241 , where Shankar J applied s 313(ii) of Enactment 6 of 1935 in respect of an absent appellant, and ordered the appeal to be dismissed. But, whatever the correct position in Malaysia may be, there is in Singapore an express power to dismiss, subject to reinstatement at the discretion of the court.

Section 253(3) is fairly clear. Some difficulty may be had with the phrase `recognizance which is to be void if the appellant shall personally appear at the High Court during the hearing of the appeal`, but this must be taken to mean one that is conditional upon the appellant appearing in court for the hearing of the appeal. Other than that, it is apparent that the subsection confers a discretion upon the court to dismiss the appeal upon the absence of the appellant, and to reinstate it subsequently if satisfied by the appellant, appearing before the court, that his absence was not caused by his own fault.

But thus far there is no guidance as to the application of this subsection. There are no cases that throw light upon the relevant considerations in the exercise of that discretion. It is necessary then to consider the various policy matters which may be relevant.

The exercise of the discretion

There are two broad categories of situations in which an appeal may be dismissed under s 253. In a category one situation, the appellant does not turn up, and no one, including his lawyers, knows what has happened to him. On the other hand, in a category two...