Miya Manik v Public Prosecutor and another matter

• Jurisdiction: Singapore
• Court: Court of Three Judges (Singapore)
• Judge: Sundaresh Menon CJ,Tay Yong Kwang JCA,Andrew Phang Boon Leong JCA
• Judgment Date: 22 September 2021
• Neutral Citation: [2021] SGCA 90
• Citation: [2021] SGCA 90
• Subject Matter: Adducing fresh evidence,Criminal motions,Abuse of process,Appeal,Criminal Procedure and Sentencing
• Defendant Counsel: Kumaresan s/o Gohulabalan, Andre Chong and Grace Chua (Attorney-General's Chambers)
• Hearing Date: 12 August 2021
• Plaintiff Counsel: Eugene Singarajah Thuraisingam, Chooi Jing Yen and Joel Wong En Jie (Eugene Thuraisingam LLP)
• Published date: 25 September 2021
• Docket Number: Criminal Motions Nos 6 and 23 of 2021

Sundaresh Menon CJ (delivering the grounds of decision of the court): Introduction

We have, in recent times, repeatedly cautioned against the improper invocation of our processes. Despite our exhortations, from time to time vexatious or frivolous proceedings have been issued, applications have been brought that blatantly disregard the fact that we have a single-tier framework of appeal, and patently hopeless applications have been filed. In Ong Jane Rebecca v Lim Lie Hoa and other appeals and other matters [2021] SGCA 63 (“Ong Jane Rebecca”), we raised this concern in the context of civil proceedings (at [57]); and in Mah Kiat Seng v Public Prosecutor [2021] SGCA 79 (“Mah Kiat Seng”), we reiterated it in the context of criminal proceedings. We went further in Mah Kiat Seng to explain in the clearest of terms, for the benefit of litigants and counsel, that our courts cannot afford, and will not tolerate, ill-considered attempts to invoke our processes (at [73] and [74]). We also explained why such abuse of our processes is not only prejudicial to the court, but more importantly, is contrary to the public interest. Notwithstanding this clear and consistent stance, it unfortunately seems that our call for our processes to be respected has been lost on some. This is unacceptable and inexcusable when counsel is involved in the case. We are therefore compelled to restate the point in the strongest possible terms: we cannot and will not condone the abuse of our processes. But for the unreserved apology that was extended by counsel in this case, he would have been referred to the Law Society of Singapore (“the Law Society”) to be investigated for misconduct. The next time this happens, even an apology may not avert this course.

The two criminal motions before us arose in respect of Mr Miya Manik’s (“Manik’s”) pending appeal in CA/CCA 26/2020 (“CCA 26”). That is an appeal against the sentence that was meted out to him following a trial in the General Division of the High Court (“High Court”). Manik filed CA/CM 6/2021 (“CM 6”) seeking to adduce fresh evidence to aid his appeal. The evidence took the form of two medical reports prepared by Dr Ung Eng Khean (“Dr Ung”) who acted in the capacity of a psychiatrist engaged by the Singapore Prisons Service (“Prisons”). The Prosecution objected to Manik’s application but also filed CA/CM 23/2021 (“CM 23”), seeking to adduce medical evidence to address and refute Dr Ung’s reports in the event we were minded to allow Manik’s application.

Following a hearing on 12 August 2021, we dismissed CM 6 with brief oral remarks, and made no order on CM 23. However, in the light of several troubling aspects of Manik’s case in CM 6, we issue these grounds of decision. We feel constrained to do so not because there are any merits in the applications or because they raise any novel or contentious issues; instead, we do so because of the manifest lack of any merits in CM 6, and the manner in which the application in CM 6 was made.

We note at the outset that based on the parties’ affidavits and written submissions, it was not at all evident what the point of CM 6 was. Although it was said to be an application to adduce further evidence to aid Manik’s appeal, it was not clear how the fresh evidence that Manik sought to introduce would have any bearing on his appeal in CCA 26, either as a matter of law or of fact. Nor did it seem to us that counsel had even considered this most basic point.

At the oral hearing on 12 August 2021, we expressed our concerns and having heard from Manik’s counsel, Mr Eugene Thuraisingam (“Mr Thuraisingam”), it became patently obvious that CM 6 was a hopeless application. Aside from this, having reviewed the material that was before us, we had concerns over certain aspects of Dr Ung’s actions.

In these grounds, we address the merits of CM 6, before elaborating on the concerns that we have outlined above.

Background and procedural history The facts

We begin with a brief account of the facts that led to Manik’s conviction and sentencing in the High Court, which is what led to CCA 26. On 24 September 2016, one Munshi Abdur Rahim (“Rahim”) was attacked by three men in the vicinity of a foreign worker dormitory at Tuas South Avenue 1. Rahim was the member of a contraband cigarette syndicate, and his assailants were from a rival syndicate. Rahim died of his injuries.

On 30 September 2016, Manik was arrested and investigated for causing the death of Rahim. It transpired that Manik was one of the three men who attacked Rahim. He was charged with murder under s 300(c) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) and alternatively with murder pursuant to a common intention, under s 300(c) read with s 34 of the Penal Code. We refer to these as the “Primary Charge” and “Common Intention Charge” respectively.

Manik’s trial commenced on 9 January 2020, which was three years, three months and ten days after he had been arrested. The trial spanned 11 days between 9 January and 27 February 2020. The High Court judge (“the Judge”) who heard the matter reserved judgment.

The decision below

On 18 June 2020, the Judge delivered judgment acquitting Manik of murder, and convicting him on a substituted charge under s 326 read with s 34 of the Penal Code for voluntarily causing grievous hurt by dangerous weapons or means pursuant to a common intention: see Public Prosecutor v Miya Manik [2020] SGHC 164 (the “GD”). The Judge concluded as follows: While there was evidence that Manik had been wielding a chopper during the attack on Rahim, the other available evidence, in particular the camera footage, was insufficient to prove that Manik had landed the fatal blow on Rahim: GD at [60]–[68]. The Judge concluded that the Primary Charge could not be made out in the circumstances. It was possible that the three assailants, including Manik, shared a common intention to inflict the fatal injury. However, this possibility was insufficient to satisfy the Prosecution’s burden of proof: GD at [107]. Accordingly, the Common Intention Charge was also not made out. The evidence was sufficient for Manik to be convicted on a substituted charge of voluntarily causing grievous hurt by a dangerous weapon, given that there was evidence of a pre-arranged plan to inflict “something less than [a] s 300(c) injury”: GD at [110].

Manik was sentenced on 20 July 2020. The Judge made reference to the sentencing frameworks set out in Ng Soon Kim v Public Prosecutor [2020] 3 SLR 1097 and Public Prosecutor v BDB [2018] 1 SLR 127, and also considered various aggravating and mitigating factors. Relevant for the purposes of the present applications are the Judge’s observations on the issue of delay. Specifically, the Defence had submitted that there had been inordinate delay in prosecuting Manik’s case. He had been arrested and held without bail since 30 September 2016, and his trial only commenced in January 2020. It was contended that this delay had prejudiced Manik, and that a reduction in his sentence was therefore warranted.

The Judge disagreed. Referring to Ang Peng Tiam v Singapore Medical Council and another matter [2017] 5 SLR 356 at [110], she observed that there is “no general proposition that any or all delays in prosecution would merit a discount in sentencing”. In Manik’s case, there had been “no inordinate delay”, nor had there been “any prejudice or injustice”. She concluded that by backdating Manik’s sentence to the first day of his remand any possible prejudice would be adequately dealt with: GD at [124].

Having considered the relevant mitigating and aggravating factors, the Judge meted out a sentence of 15 years’ imprisonment and 15 strokes of the cane: GD at [130]. She found this to be appropriate having regard to the comparable sentencing precedents: GD at [131]–[133].

Events leading to the present applications

On 22 June 2020, the Prosecution filed CA/CCA 16/2020. This was its appeal against the Judge’s decision to acquit Manik of murder under both the Primary Charge and the Common Intention Charge. Following this, on 28 July 2020, Manik filed CCA 26, which appeal was limited to the question of his sentence. Both appeals are pending.

Almost six months after filing CCA 26, on 14 January 2021, Manik filed CM 6. This led, as we have noted, to the Prosecution filing CM 23 on 29 June 2021.

The new evidence Dr Ung’s Reports

The new evidence Manik wished to adduce comprised two reports issued by Dr Ung on 22 September and 22 October 2020 (collectively, “Dr Ung’s Reports”).¹ Each Report is about a page long. The Reports contain the following assertions or information: The Report dated 22 September 2020 (“Dr Ung’s First Report”) states that Manik is currently diagnosed as having adjustment disorder and lists six different drugs that Manik had been prescribed by way of treatment. The Report dated 22 October 2020 (“Dr Ung’s Second Report”) states the symptoms for which the various medications had been prescribed as treatment, and the reasons for the increase in the dosages of some of these medications. Where the dosages were increased, nothing is indicated as to any follow up to ascertain whether the increased dosage had been effective. In at least two instances, reference was made to a memo prepared by Manik’s doctor in Bangladesh who had evidently prescribed some of these medications while Manik was there. A copy of that memo was not produced. It was therefore difficult to draw any conclusion from this. But this seemed to suggest that Manik had been suffering from some of these symptoms before he even came to Singapore. It was not evident to us that Dr Ung had taken any steps to ascertain how the doctor in Bangladesh had come to his diagnosis or why he had felt it appropriate to prescribe such medication.² Certainly nothing was said about any of this in Dr Ung’s Reports.

The Reports also do not state the diagnostic criteria...