Lim Hong Kheng v Public Prosecutor
| Judge | Sundaresh Menon JC |
| Judgment Date | 07 June 2006 |
| Neutral Citation | [2006] SGHC 100 |
| Defendant Counsel | Hay Hung Chun (Deputy Public Prosecutor) |
| Year | 2006 |
| Subject Matter | Whether applicant having automatic right to extension of time,Criminal Procedure and Sentencing,Out of time,Appeal,Application for extension of time for filing petition of appeal,Section 250 Criminal Procedure Code (Cap 68, 1985 Rev Ed),Applicable principles and factors to be considered by court when exercising discretion to allow extension of time |
| Citation | [2006] SGHC 100 |
| Court | High Court (Singapore) |
| Plaintiff Counsel | Wong Hin Pkin Wendell (Drew & Napier LLC) |
| Published date | 08 June 2006 |
7 June 2006
Sundaresh Menon JC:
Background
1 Anyone concerned with the administration of justice in Singapore will know that in common with the workings of most other legal systems, there is an expectation that the various timelines stipulated in the procedural rules of the courts will be complied with. This is essential to assure the speedy and efficient dispensation of justice. But these very rules also provide a measure of flexibility to be exercised in the appropriate cases. This is one of those cases.
2 Lim Hong Kheng (“the Applicant”) was convicted on 24 November 2005 of abetting her son in the employment of a foreign domestic worker in breach of the conditions of the latter’s work permit. The Applicant was found to have conspired with her son to employ the worker as a shop assistant when under the terms of the work permit, she was only allowed to work as a domestic worker. In so doing, the Applicant was found to have committed an offence under s 5(3) read with s 23(1) of the Employment of Foreign Workers Act (Cap 91A, 1997 Rev Ed) (“the Act”) and punishable under s 33(2) of the Act. She was sentenced to a fine of $3,500 by the learned magistrate who dealt with the matter at first instance.
3 The Applicant filed her notice of appeal within the prescribed time and on 12 April 2006 her solicitors received a certified copy of the notes of evidence and of the grounds of decision from the Registrar of the Subordinate Courts. At the same time, her solicitors had their attention drawn to the requirement in s 247(4) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”) that the petition of appeal had to be filed within ten days of receipt of the grounds of decision, failing which the appeal would be deemed to have been withdrawn by virtue of s 247(7) of the CPC.
4 For reasons unknown to the Applicant, her solicitors only sent her the communication from the Subordinate Courts on 17 April 2006. By then, the Applicant had lost half the statutory time she was allowed for the purposes of considering whether to proceed with the appeal and if so, of having her petition prepared and filed. The Applicant subsequently changed her solicitors with the result that her motion before me was presented and argued by Mr Wendell Wong. In the circumstances, it was not possible for me to require those who appeared to be directly responsible for the delay to account for it. However, Mr Wong did make available a copy of a letter from the Applicant’s previous solicitors to the Applicant which confirmed that they had been served with the notes of evidence and grounds of decision on 12 April 2006 and had only informed the Applicant of this on 17 April 2006. For some reason, even then, the notes of evidence and grounds of decision do not appear to have been sent to the Applicant. In her affidavit, the Applicant stated that she had only received the grounds of decision a few days later on 21 April 2006. That was the penultimate day of the period within which the petition was to have been filed.
5 The Applicant also explained that there had been some confusion stemming from the fact that her son’s solicitors had only received the notes of evidence and grounds of decision from the Subordinate Courts on 13 April 2006 and his solicitors had advised that the time for him to file his petition of appeal would expire on 24 April 2006.
6 During this time, the Applicant took the decision first to engage new solicitors and then, following consultation, to pursue the appeal. After a meeting with her new solicitors on 23 April 2006, a petition of appeal was prepared. An attempt was made to file the petition on the next day but it was rejected as the time for the Applicant to file her petition had expired on 22 April 2006 (a Saturday) and the appeal was therefore deemed to have been withdrawn pursuant to s 247(7) of the CPC.
7 The Applicant therefore brought this motion seeking the indulgence of the court to exercise its power under s 250 of the CPC to extend the time for her to file her petition and pursue her appeal.
8 Mr Hay Hung Chun, the learned deputy public prosecutor, objected to the motion. After hearing the arguments I was satisfied that this was a proper case for the exercise of my discretion and I granted the relief sought by the Applicant. However, having regard to the vigour of Mr Hay’s submissions in the face of what seemed at first blush to be a straightforward application and because of what appeared to be a possible lack of clarity in the applicable principles guiding the exercise of the court’s discretion in such cases, I thought it appropriate briefly to explain my reasons for doing so.
The applicable principles
9 The starting point of the analysis is s 250 of the CPC which provides:
The High Court may, on the application of any person desirous of appealing who is debarred from doing so upon the ground of his not having observed some formality or some requirement of this Code, permit an appeal upon such terms and with such directions to the District Judge or to the Magistrate and to the parties as the Court considers desirable in order that substantial justice may be done in the matter.
10 This plainly is a provision that confers a broad discretion upon the court and in the exercise of that discretion the court is to be guided by the objective that “substantial justice may be done in the matter”. In the course of his arguments, Mr Hay argued that the “substantial justice” in question extended beyond a consideration of the interests of the Applicant to the interests of society at large. He referred me to a passage in the judgment of Kang Hwee Gee J in Saw Yew Choy v Public Prosecutor
However, the catch phrase ‘in order that substantial justice may be done in the matter’ … was interpreted in the Jumari’s case to encompass not merely substantial justice to the convicted person but also substantial justice to ‘society at large on whose behalf the Public Prosecutor acts’ – following which it was held on the other side of the coin, that no substantial justice would be done, if the appellant’s application were to be allowed in that case.
11 The apparent breadth of this statement did not seem to me to sit well with the plain words of s 250. In particular, what is clear from the section is that the court is to be guided by what would enable substantial justice to be done “in the matter” at hand. I therefore reviewed the judgment in Jumari bin Mohamed v Public Prosecutor
Further, there is nothing on record to show that the applicant’s conviction is wrongful. In the circumstances, I am of the view that no substantial justice would be done if the extension of time were allowed in this particular case. For the purpose of doing substantial justice, the court must bear in mind that justice must be done not only to the convicted person but also to society at large on whose behalf the Public Prosecutor acts. As stated by Thomson C.J. in [the] Veerasingam case … “It is just as imperative that a rightful conviction should be successfully defended as it is that a wrongful one should be successfully attacked”.
12 When the passage is seen in context, it becomes apparent that all the court was saying in Jumari was that it also had to have regard to whether there were any merits in the proposed appeal. I therefore do not accept that in considering what would achieve substantial justice in the matter it is appropriate to consider the wider interests of society at large where these are not directly relevant to the case at hand. I would echo here the words of...
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