Mah Kiat Seng v Public Prosecutor

• Court: Court of Three Judges (Singapore)
• Judge: Judith Prakash JCA
• Judgment Date: 11 August 2021
• Neutral Citation: [2021] SGCA 79
• Citation: [2021] SGCA 79
• Hearing Date: 08 July 2021
• Docket Number: Criminal Motion No 11 of 2021
• Published date: 14 August 2021
• Plaintiff Counsel: The applicant in person
• Defendant Counsel: Wong Woon Kwong and Andre Chong (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Criminal references,Leave,Extension of time

Judith Prakash JCA (delivering the grounds of decision of the court): Introduction

The present criminal motion (the “Motion”) was the third filed by the applicant, Mr Mah Kiat Seng, in respect of his concluded appeal in HC/MA 9036/2019/01 (“MA 9036”). The applicant’s first and second criminal motions – HC/CM 40/2020 (“CM 40”) and CA/CM 24/2020 (“CM 24”) – had been rejected by the High Court and the Court of Appeal respectively.

In the Motion, the applicant, who was in person, sought leave to raise three purported questions of law of public interest to this court. These questions, however, were actually questions of fact, which cannot form the subject matter of an application for leave under s 397(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”). The applicant was cognisant of the purpose and scope of applications under s 397(1), and he cited in his affidavit the case law setting out the definition of “questions of law of public interest”. Yet, the applicant proceeded with the Motion. This was also despite his having already made a similarly defective application in CM 24, where he raised three other questions of fact reframed as questions of law.

After hearing the applicant’s arguments on 8 July 2021, we dismissed the Motion. We now provide our detailed grounds of decision.

Background and procedural history Factual background

On the evening of 30 November 2017, the applicant entered a classroom in the Mochtar Riady Building at Kent Ridge. He did so without permission. While in the classroom, the applicant was alleged to have played loud music. A complaint was made, and the situation was brought to the attention of a security officer, who was on duty at the material time (“the security officer”). The security officer then made his way to the classroom, where he found the applicant. When the security officer engaged with the applicant in the classroom, the applicant did not provide identification, but instead packed his belongings and tried to leave. The security officer attempted to detain the applicant, which led to a scuffle, during which the applicant allegedly punched the security officer multiple times. A cleaner heard the commotion and came to the security officer’s assistance. The applicant then ran away.

The applicant was charged on 30 July 2018 with one count of voluntarily causing hurt (“VCH”) punishable under s 323 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”), in MAC-912400-2017 (“the VCH charge”). The VCH charge read as follows:

You,

…

are charged that you on 30 November 2017, at or about 5.15pm, in room 3-3 of the Mochtar Riady Building, National University Singapore [‘NUS’] Business School, located at 15 Kent Ridge Drive, Singapore, did voluntarily cause hurt to Suresh Saundrapandian, to wit, by punching the said Suresh Saundrapandian multiple times, and you have thereby committed an offence punishable under s 323 of the Penal Code (Cap 224, 2008 Rev Ed).

The applicant also faced one charge of criminal trespass punishable under s 447 of the Penal Code in MAC-912399-2017 (“the trespass charge”). This charge was issued on 9 October 2018.

The DJ’s decision

The applicant claimed trial to both charges and was tried before a District Judge (“DJ”). He was represented by counsel at this time.

On 31 January 2019, the DJ granted the applicant a discharge amounting to an acquittal with respect to the trespass charge. The DJ, however, convicted the applicant on the VCH charge. The applicant’s case had hinged on establishing private defence. The DJ found that the elements of the defence were not made out, because (a) the security officer did not commit any offence against the applicant’s body; (b) the applicant did not have any reasonable apprehension of danger; and (c) the applicant’s response of punching the security officer several times exceeded what was reasonably necessary to defend himself.

On 8 February 2019, after hearing submissions on sentence, the DJ imposed on the applicant a fine of $5,000, in default of which he would serve two weeks’ imprisonment. The fine has been paid.

The applicant filed a Notice of Appeal on 15 February 2019. The applicant’s extensive grounds explaining how the DJ had erred may be summarised as follows: The DJ made incorrect findings of fact in holding that the applicant carried out a sustained assault on the victim. The DJ placed undue weight on the testimony of the security officer and the cleaner who intervened in the scuffle. The DJ made incorrect findings of fact and/or erred in law as regards (i) the applicant’s right of private defence under s 96 of the Penal Code; (ii) not acquitting the applicant under s 95 of the Penal Code (ie, the rule on de minimis harm); and (iii) imposing a fine of $5,000 on the applicant. In light of the appeal, the DJ issued his grounds of decision on 13 January 2020: see Public Prosecutor v Mah Kiat Seng [2020] SGMC 4 (“the trial GD”).

The High Court’s decision in MA 9036

On 24 August 2020, MA 9036 came on for hearing before a High Court judge (“the Judge”). The applicant was represented by counsel. The hearing spanned an hour and 45 minutes, and both parties had the opportunity to make their respective submissions. Thereafter, the Judge dismissed MA 9036, giving brief reasons for his decision. The relevant portions of the hearing transcripts read as follows:

Court:	Alright. My view, the Trial Judge’s finding that the appellant had punched PW6 multiple times cannot be said to be against the weight of the evidence. The Trial Judge also did [not] err in finding that PW2’s evidence and PW3’s evidence corroborated PW6’s evidence.
	As for private defence, I have some doubts as to whether Section 66(8) applies in this case given that the appellant was acquitted of the criminal trespass charge. If I had to decide this issue, in my view, further submissions will be necessary. However, I do not have to decide this issue because I agree with the prosecution that the appellant’s response in punching PW6 multiple times exceeded what was reasonably necessary. I therefore dismiss the appeal against conviction.
	As for sentence, I do not think the sentence can be said to be manifestly [excessive]. And accordingly, I also dismiss the appeal against sentence.

Seven days after the Judge’s decision, on 31 August 2020, the applicant filed CM 24 in the Court of Appeal. On the same day, he also filed CM 40 in the High Court. This was an application to the High Court for leave to make a review application pursuant to s 394H of the CPC. These applications were filed well within the timeframe prescribed by s 397(3) of the CPC.

The Judge heard CM 40 pursuant to s 394H(6)(b) of the CPC. On 17 September 2020, the Judge summarily refused CM 40 pursuant to ss 394H(7) and 394H(8) of the CPC.

This court’s decision in CM 24

In CM 24, the applicant sought leave to refer three “questions of law of public interest to the Court of Appeal” pursuant to s 397(1) of the CPC: i) On [CPC] s 66(6)(a), whether a suspect could be convicted of assault, which occurred when he was resisting arrest by a private person, after he was acquitted of the ‘offence’ mentioned in that section? ii) On [CPC] s 66(6)(a), whether a private person can arrest based upon suspected or actual commission of an offence? iii) On Penal Code, s 101(1), whether the ‘danger to the body’ is to be subjectively or objectively felt? As relief, the applicant requested a rehearing of his appeal in MA 9036.

On 1 February 2021, this court heard CM 24. Having heard the parties’ arguments, the court dismissed CM 24. Oral grounds of decision were delivered by Sundaresh Menon CJ on behalf of the coram. The Chief Justice stated:

… A judge is only required to deal with what is essential to dispose of the matter. This is a point that Mr Mah acknowledged and accepted. The judge decided against Mr Mah on the basis that he had exceeded any possible right of private defence. In our judgment, this was amply made out on the facts. The questions framed by Mr Mah simply did not arise in the circumstances. Mr Mah kept contending that the judge found that he had exceeded what was reasonably necessary because the judge did not consider the right of private defence. With respect, Mr Mah has gotten this completely wrong. The inquiry into what was reasonably necessary became relevant specifically in the context of considering the right of private defence. It is because the judge found that Mr Mah had exceeded that right, and exceeded what was reasonably necessary, that the judge rejected Mr Mah’s reliance on private defence and therefore dismissed Mr Mah’s appeal against his conviction. We therefore dismiss the motion. [emphasis in original]

The Motion

Then, on 25 February 2021, some six months after MA 9036 was dismissed, the applicant filed the present Motion, along with an accompanying affidavit. The applicant sought (a) an extension of time to file the Motion; and (b) leave to raise three further questions of law of public interest to the Court of Appeal (“the three questions”). The three questions are: 12. My three questions are i) On Penal Code … section 98 (1), whether a doctor’s findings of minor injuries sustained by the victim can be classified under the meaning of the phrase inflicting of more harm than it is reasonably necessary. … ii) In their findings of facts, whether judges from the State Court, and consequently the High Court in the exercise of his appellate jurisdiction, are not bounded by the Evidence Act (Chapter 97) in finding that the victim had suffered multiple punches, which was beyond what had been recorded in the medical report that there was only a single bruise. … iii) In their findings of facts, whether judges from the State Court, and consequently the High Court in the exercise of his appellate jurisdiction, are not...