Lim Chit Foo v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 19 November 2019
• Neutral Citation: [2019] SGCA 70
• Plaintiff Counsel: Singh Bachoo Mohan, Too Xing Ji & Lee Ji En (BMS Law LLC)
• Docket Number: Criminal Motion No 9 of 2019
• Date: 19 November 2019
• Hearing Date: 22 August 2019
• Subject Matter: Charge,Trials,Powers,Power to postpone or adjourn,Public Prosecutor,Criminal Procedure and Sentencing,Stood down charges
• Year: 2019
• Citation: [2019] SGCA 70
• Defendant Counsel: Christopher Ong & Stacey Fernandez (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Published date: 21 November 2019

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

The applicant faces multiple pending criminal charges in relation to his alleged involvement in a large-scale fraudulent scheme perpetrated on the Inland Revenue Authority of Singapore (“IRAS”) in relation to the IRAS Productivity and Innovation Credit (“PIC”) Scheme. Prior to the commencement of the trial of those charges, the applicant filed the present criminal motion for (a) leave under s 396 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”) to state a case directly to the Court of Appeal on questions of law relating broadly to the legality of the Attorney-General purporting to exercise his discretion to prosecute the applicant’s multiple charges over the course of separate and consecutive trials; and (b) leave under s 397 of the CPC to refer questions of law of public interest to the Court of Appeal regarding the legality of the applicant being denied bail whilst awaiting trial for those charges.

At the hearing of the criminal motion on 22 August 2019, we dismissed the latter application on the issue of bail. In essence, it was clear to us that the applicant was mounting a fresh attempt to obtain bail, despite having failed to obtain bail on nine previous applications, and this was an issue that did not give rise to any question of law, much less one of public interest.

On the former question, the focus of the applicant’s arguments in his written submissions had been on whether the Prosecution’s decision to proceed by way of multiple trials was contrary to the applicant’s right to counsel under Art 9(3) of the Constitution of the Republic of Singapore (1999 Reprint) (“the Constitution”). This argument was abandoned during the hearing. Instead, the applicant focused on the alleged prejudice he was subject to by reason of the Prosecution’s decision to stand down a number of pending charges in this case. The applicant contended that once an accused person had been charged in court, the conduct of the prosecution of those charges was subject to the overriding case management powers of the court. On this basis, the applicant contended that the decision whether to stand down pending charges was not a matter within the prosecutorial direction of the Public Prosecutor. On the contrary, the conduct of the proceedings and the decision whether to stand down, or more correctly, to permit the adjournment of the prosecution of certain charges, fell within the judicial power provided for in Art 93 of the Constitution. To resolve this, we had to consider the precise character of the act of standing down pending charges, and determine its statutory basis within the CPC.

This line of argument emerged at the hearing and had not been fully explored in written submissions. In fairness to the Prosecution, we accordingly directed the parties to tender further written submissions on the following three issues: What is the statutory basis upon which one or more out of all pending charges against an accused person may be stood down pending the disposal of the remaining charges? In the absence of any other statutory basis, is s 238 of the CPC the source of the power to stand down some of the pending charges pending the disposal of the remaining charges? On any basis, is this a matter of prosecutorial discretion or a matter for the decision of the court?

The parties have since filed their written submissions on these issues. Having had the benefit of those submissions, we now deliver our judgment. Even though the application is for leave to state a case under s 396 of the CPC, we think it expedient to deal with the substantive issue directly.

Background facts

The bulk of the applicant’s pending charges relate directly to his involvement in a fraud pertaining to the PIC Scheme. The PIC Scheme is a government subsidy open to all qualifying Singapore-registered companies to improve productivity using IT and automation equipment. According to the Prosecution’s case against the applicant, the applicant conspired with others to submit false PIC claims to IRAS on behalf of various companies, on the basis that these companies had incurred the qualifying expenditure. In fact, the purported expenditure had not been incurred, and the documents were in respect of sham purchases of goods and services. To carry out the fraud, the applicant allegedly also forged Accounting and Corporate Regulatory Authority (“ACRA”) business profiles by amending the names of the directors reflected on the business profiles. Based on these fraudulent acts, IRAS was deceived into disbursing a total of $5.56m to 71 companies in response to some of these PIC claims. These moneys were then transferred to the applicant’s bank account, and out of this, he allegedly received a total of more than $1.14m. Further, there were 84 other false PIC claims filed on behalf of 58 other companies for which IRAS did not pay out the claims, and the amount in respect of these claims would have totalled $4.36m.

For his alleged involvement in the PIC Scheme fraud, the applicant faces more than 400 charges of abetment by instigation or conspiracy to cheat under s 420 read with ss 109 and 116 of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”). Approximately half of these are against the applicant alone (“the individual cheating charges”) while most of the rest are faced by the applicant jointly with two co-accused persons, Li Dan and Wang Jiao (“the joint cheating charges”). In addition, the applicant also faces eight forgery charges under s 474 read with s 466 of the Penal Code for possessing forged ACRA business profiles (“the forgery charges”), as well as not less than 23 charges under s 47(1)(c) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) (“CDSA”) for his receipt of approximately $1.14m from the false PIC applications (“the CDSA charges”).

Investigations into the applicant’s involvement began on 5 October 2016 and the applicant was first charged in court on 11 November 2016, which is also the date on which he was first placed in remand. In addition to the charges associated with the PIC fraud, the applicant had also been charged under s 204A of the Penal Code with tampering with or attempting to tamper with seven witnesses. In relation to each of the latter charges, the applicant had instructed his associates to falsely inform investigators from the Commercial Affairs Department (“CAD”) that a Chinese national, known as Wu Hai Jun, was involved in the fraudulent PIC applications. This was done in order to mask the applicant’s own involvement in the scheme. The applicant was also found to have bribed one of his associates with a payment of $3,000 to furnish false information to the CAD. The applicant was tried on four of the seven witness tampering charges and the trial was held on various dates between August 2017 and May 2018. He was convicted of the four charges on 7 September 2018 and was sentenced on 16 January 2019 to 40 months’ imprisonment, with the sentence backdated to his date of remand, 11 November 2016. He would have been eligible for release on 31 January 2019, but the applicant has remained in remand for the pending charges in relation to the PIC fraud, as well as the three remaining witness tampering charges.

Shortly after the applicant’s conviction on and the pronouncement of sentence for the four witness tampering charges, on 24 January 2019, the Prosecution served its case for the applicant’s individual cheating charges, as well as the forgery charges and the CDSA charges. The Prosecution also indicated that it would proceed against the applicant for the joint cheating charges together with the co-accused persons, Li Dan and Wang Jiao, in a separate trial, and that the joint cheating charges would accordingly be stood down for the time being. The applicant took issue with this, arguing essentially that it was unfair for him to be tried “by instalments” given that the investigation for all the pending charges had been completed. The Prosecution did not give any reasons for its decision to proceed in this manner when it served its case or at any time prior to the hearing of the present motion on 22 August 2019. At that hearing, we were informed that there were material differences between the applicant’s individual cheating charges and the joint cheating charges. We were told that while these arose out of similar circumstances, they were not part of a single continuing scheme. It was submitted on this basis that it would be inappropriate to proceed with all 400 charges at one trial.

At the time this application was heard, the applicant’s joint cheating charges and the three remaining witness tampering charges were still stood down. However, the applicant has since informed us that the Prosecution had on 19 September 2019 applied to proceed with the joint cheating charges concurrently with the applicant’s individual cheating charges. In other words, with the exception of the three remaining witness tampering charges which remain stood down, all of the pending charges against the applicant are being proceeded with in two ongoing and concurrent trials. We discuss the implications of this development on our decision at [37] below.

The parties’ further written submissions

The applicant takes the position in his further submissions that the statutory basis for standing down pending charges must be s 238 of the CPC. He further contends that the practice of standing down pending charges, which amounts in essence to an indefinite adjournment, should be curtailed because it is not in accordance with the law. The applicant further submits that the Public Prosecutor’s power to conduct proceedings under Art 35(8) of the Constitution and to control and direct criminal prosecutions and proceedings under s 11(1) of the CPC does not extend to regulating the...