Mah Kiat Seng v Public Prosecutor

• Judge: Chan Sek Keong CJ
• Judgment Date: 30 May 2011
• Neutral Citation: [2011] SGCA 28
• Citation: [2011] SGCA 28
• Docket Number: Criminal Motion No 7 of 2011
• Published date: 21 June 2011
• Hearing Date: 26 April 2011
• Plaintiff Counsel: The applicant in person
• Date: 30 May 2011
• Defendant Counsel: Mohamed Faizal and Lee Lit Cheng (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Subject Matter: Criminal Procedure and Sentencing

Chao Hick Tin JA (delivering the grounds of decision of the court): Introduction

This was an application by the applicant, Mah Kiat Seng, (“MKS”) , who appeared in person, for leave to refer a series of some 26 questions to the Court of Appeal pursuant to s 397 of the Criminal Procedure Code 2010 (Act 15 of 2010) (“s 397 CPC 2010”). As this application to court was made out of the prescribed time, MKS also prayed for an extension of time to make the application. In anticipation that his questions might not have been formulated correctly, he further asked that the court, if it thought it fit, to reframe those questions appropriately.

The background

The present application arose from MKS’ conviction in the District Court of two charges under the Registration of Criminals Act (Cap 268, 1985 Rev Ed) (“RCA”). These charges were, respectively, for his refusal to provide a blood sample (contrary to s 13E(5)(a) of the RCA), and to have his finger impressions and photograph taken (contrary to s 13(2)(a) of the same Act). The District Judge’s (“DJ”) decision can be found at PP v Mah Kiat Seng [2010] SGDC 315 (“PP v MKS (DC)”).

MKS appealed against the DJ’s decision to the High Court in Magistrate’s Appeal No 184 of 2010 (“MA 184/2010”). The appeal was partially allowed; Choo Han Teck J (“the Judge”) allowed MKS’ appeal in respect of his conviction vis-a-vis the failure to provide a blood sample but dismissed his appeal in respect of the refusal to have his finger impressions and photograph taken. The Judge’s decision in MA 184/2010 can be found at Mah Kiat Seng v Public Prosecutor [2010] SGHC 320 (“MKS v PP (MA)”).

MKS then applied to the High Court in Criminal Motion No 42 of 2010 (“CM 42/2010”) to reserve 22 questions of law of public interest to the Court of Appeal under s 60(1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“s 60 SCJA”). The Judge dismissed this application. Section 60 SCJA has since been repealed w.e.f. 1 January 2011 and replaced by s 397 CPC 2010. The Judge’s decision in CM 42/2010 can be found at Mah Kiat Seng v Public Prosecutor [2011] SGHC 47 (“MKS v PP (CM)”).

Dissatisfied with the Judge’s decision not to reserve those questions of law which he contended were questions of public interest, MKS brought the present Motion (“the Motion”) to obtain what he failed to obtain from the Judge. In the Motion, he listed 26 questions, of which 22 were identical to those which he raised before the Judge.

The decision below

The Judge found the 22 questions raised by MKS to be “rambling, repetitious” and was of the view that “many concerned not questions of law but fact”. He summarised the nature of MSK’s complaint to involve two aspects. The first was factual, viz, whether the police had requested that MKS provide his finger impressions and photograph. To this extent, the Judge was of the view that the long list of questions which MKS enunciated were in fact questions of fact and not questions of law of public interest, as MKS claimed that they were. The second aspect of MKS’s complaint involved a question of law, which was whether the RCA “applied to compel a suspect as opposed to a convicted criminal”. On this aspect, the Judge was of the view that s 8(a) of the RCA provided a clear and unequivocal answer to this question of law. Under s 8(a) of the RCA, “[a]ny authorised officer may take or cause to be taken the finger impressions and photographs of “any person under arrest” who is accused of any crime”. As s 8(a) of the RCA expressly states that it applies to “any person under arrest”, the Judge had little problem in answering the question of law posed to him in the affirmative. Accordingly, he found that there was no basis to reserve any questions to this Court for its determination and thus dismissed CM 42/2010.

Main issues before this Court

On the basis of the prayers set out in the Motion, the main issues which were presented to this court were, inter alia: Whether an extension of time to refer new and further questions of law of public interest to the Court of Appeal under s 397 CPC 2010 can and should be granted, given that the High Court had rejected an earlier application filed within time. Whether, should an extension of time to file an application under s 397 CPC 2010 be granted, leave to refer the questions as framed by MKS to this Court ought to be granted. Whether, should leave to refer the questions as framed by MKS not be granted, there are nonetheless issues of law of public interest such that the Court of Appeal should reframe the questions tendered by MKS to reflect those issues. At the conclusion of the oral hearing before us, as MKS had not shown that there were in fact questions of law of public interest which ought to be reserved for the consideration of this Court, we dismissed the application. We now give our reasons for doing so.

The critical question of the application in the Motion relates to the issue as to whether, of the 26 questions listed, any of them are questions of law of public interest which ought to be reserved for the consideration of this Court. In his oral submission to us, we asked MKS to focus on this critical question. In these grounds, we do not wish to elaborate on the first issue listed at [7] above, as even if an extension of time was granted, MKS’s application for leave to appeal would still not have succeeded in any event.

We thus turn to the second issue (see [7] above), on which we would make these observations. It would be noted that MKS made this application pursuant to s 397 CPC 2010 which came into force on 1 January 2011 and superseded s 60 SCJA. While the substantive clause of s 397 CPC 2010 is largely similar to that of s 60 SCJA, an important difference between them is that under s 397 CPC 2010, it is the Court of Appeal, and not the High Court (as it was under s 60 of the SCJA), which assesses the question/s that the applicant seeks to refer to the Court of Appeal. In other words, previously such an application had to be made to the High Court which decision would be final. Now the application would have to be made directly to the Court of Appeal, which will decide whether there is such a question of law of public interest which it should address. However, we would underscore the fact that as the operative clause of the two provisions are identical (both visualised the reference to the Court of Appeal of only “any question of law of public interest which has arisen in the matter and the determination of which by the Judge has affected the case”),¹ we see no reason why the principles established by case law under s 60 SCJA, as to how the court should exercise its discretion in granting leave, should not be of relevance to an application under the current s 397 CPC 2010.

MKS’s application in CM 42/2010, made on 15 November 2010, under s 60 SCJA which was then in force, was turned down by the Judge on 10 February 2011. In the meantime, on 2 January 2011, s 397 CPC 2010 came into force and replaced s 60 SCJA. This Motion was his second attempt to have the alleged questions of law referred to the Court of Appeal. Was MKS entitled to do so? It seems to us that MKS was...