Muhammad bin Kadar and another v Public Prosecutor and another matter

• Jurisdiction: Singapore
• Judge: V K Rajah JA
• Judgment Date: 26 August 2011
• Neutral Citation: [2011] SGCA 44
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeal No 8 of 2009 and Criminal Motion No 57 of 2011
• Year: 2011
• Published date: 05 September 2011
• Hearing Date: 15 April 2011,21 January 2011,31 May 2011,05 July 2011,19 August 2011
• Plaintiff Counsel: Aedit Abdullah, Vanessa Yeo and Joel Chen (Attorney-General's Chambers)
• Defendant Counsel: Kanagavijayan Nadarajan (Kana & Co) and Rajan Supramaniam (Hilborne & Co),Thrumurgan s/o Ramapiram (Thiru & Co)
• Subject Matter: Courts and Jurisdiction,Court of Appeal,Criminal Procedure and Sentencing
• Citation: [2011] SGCA 44

V K Rajah JA (delivering the grounds of decision of the court): Introduction

Shortly after we delivered judgment in Muhammad bin Kadar and another v Public Prosecutor [2011] SGCA 32 (“Kadar”), the Prosecution requested (by way of a letter dated 8 July 2011) the temporary suspension, for six months, of the operation of [99]–[121] of Kadar (“the relevant passage”) which concerned our findings on a common law criminal disclosure regime for unused material in the hands of the Prosecution. The stated reason was to allow the Attorney-General more time to study the full impact of Kadar for the purposes of advising the government whether to legislatively amend its effect or to change the operating procedures of the Prosecution and police. We directed that the Prosecution file and serve a Criminal Motion for us to formally hear and decide on the issues raised in open court. Pursuant to this direction, the Prosecution filed Criminal Motion No 57 of 2011 (CM 57/2011). This motion contained two prayers: the first was for the court to clarify the scope of the Prosecution’s duty to disclose unused material as set out at the relevant passage of Kadar in the manner set out in an affidavit filed with the motion. The second was for the six-month suspension of the relevant passage with effect from the date of our judgment in Kadar.

On 19 August 2011, we heard the Prosecution’s submissions in this matter and those of counsel for Ismil bin Kadar (the second appellant in Criminal Appeal No 8 of 2009 and the second respondent in CM 57/2011). Counsel for Muhammad bin Kadar (the first appellant in Criminal Appeal No 8 of 2009 and the first respondent in CM 57/2011) were present at the hearing but did not make submissions. In the Prosecution’s submission, the relevant passage was capable of two interpretations: the broader interpretation suggested that the Prosecution’s duty of disclosure includes a duty to review all material gathered by the police and law enforcement agencies in the course of investigations and evaluate that material for the purposes of disclosure. The narrower interpretation suggested that the Prosecution is only under a duty to disclose material that the prosecutor is actually aware of without the additional duty to review all material gathered in investigations. The Prosecution also indicated that it would not proceed with the second prayer if the narrow interpretation was confirmed.

At the conclusion of the hearing we expressed our views on the issues raised and informed counsel that we would elaborate on these in writing. We now issue these supplemental grounds to explain our reasons for giving the clarifications sought by the Prosecution as well as to restate the matters clarified.

Inherent jurisdiction and power of this court to clarify its own previous judgments

The Prosecution’s first prayer was for a clarification of a previous judgment of this court. We therefore had to consider at the outset whether we had the jurisdiction to hear such an application and make the requested clarification, a question that this court had not answered before. Although no directly relevant authorities could be found, all counsel accepted that the Court of Appeal had an inherent jurisdiction and power to clarify its own previous judgments.

A judgment, once given in criminal proceedings, cannot be altered save as provided for in s 301 of the Criminal Procedure Code (Act 15 of 2010) (“CPC 2010”). This section provides for the rectification of clerical errors at any time and of other errors by the next working day after delivery of the judgment. But it does not follow from this that the court is immediately functus officio after it has given its judgment. There remain a few circumstances where a court may either revisit its prior decision or clarify certain aspects of it. As the issue of clarification has not been provided for in the CPC 2010, we believed that s 6 of the CPC 2010 applied permitting us to adopt any procedure as the justice of the case may require that was not inconsistent with the CPC 2010 or any other law. In relation to the concept of functus officio we fully agreed with the observations of the High Court in Godfrey Gerald QC v UBS AG and others [2004] 4 SLR(R) 411 at [18]–[19]: 18 The Latin term functus officio is an abbreviated reference to a facet of the principle of finality in dispute resolution. Functus officio means that the office, authority or jurisdiction in question has served its purpose and is spent. A final decision, once made, cannot be revisited. In dispute resolution, this principle may manifest itself in the guise of res judicata, functus officio or issue estoppel. This principle of finality is intended to embody fairness and certainty. It is not to be invoked merely as a sterile and mechanical rule in matters where there are minor oversights, inchoateness in expression and/or consequential matters that remain to be fleshed out. Given that the court is always at liberty to attend to such axiomatic issues, various judicial devices such as the “slip” rule and the implied “liberty to apply” proviso are invoked from time to time to redress or clarify such issues. In short, both the High Court and the Court of Appeal retain a residual inherent jurisdiction even after an order is pronounced, to clarify the terms of the order and/or to give consequential directions. 19 That such inherent jurisdiction exists, has never been doubted. In point of fact, it is regularly invoked and exercised by the court: see O 92 r 4 of the [Rules of Court (Cap 322, R 5, 2004 Rev Ed (“RSC”)] and the helpful and incisive conspectus in Professor Jeffrey Pinsler's article “Inherent Jurisdiction Re-Visited: An Expanding Doctrine” [2002] 14 SAcLJ 1 and the commentary in Singapore Court Practice 2003 at paras 1/1/7 and 1/1/8. This inherent jurisdiction is a virile and necessary one that a court is invested with to dispense procedural justice as a means of achieving substantive justice between parties in a matter. The power to correct or clarify an order is inherent in every court. This power necessarily extends to ensuring that the spirit of court orders are appropriately embodied and correctly reflected to the letter. Indeed, to obviate any pettifogging arguments apropos the existence of such inherent jurisdiction, the RSC was amended in 1995 to include O 92 r 5, which expressly states:

Without prejudice to Rule 4, the Court may make or give such further orders or directions incidental or consequential to any judgment or order as may be necessary in any case.

By dint of this rule, the court has an unassailable broad discretion and jurisdiction to give effect to the intent and purport of any relief and/or remedy that may be necessary in a particular matter. Admittedly, while the rule sets out in stark terms the court's wide inherent jurisdiction in this area of procedural justice, I should add for completeness, that the power to “make or give such further orders or directions incidental or consequential to ...” does not prima facie extend to correcting substantive errors and/or in effecting substantive amendments or variations to orders that have been perfected. This is plainly not such a case.

[emphasis added in bold italics]

While these observations were made in the context of orders made by the High Court in the exercise of its civil jurisdiction, we think the same position applies to a court, including the Court of Appeal, stating the law in the hearing of a criminal matter. This is because the inherent power of the court flows from its inherent status regardless of the subject matter of the case being heard. To decide otherwise would be to needlessly impose the fog of ambiguity and the injustice of uncertainty on all within the legal system who have to abide by a decision that may lack clarity. It is axiomatic that the law must be made clear enough to allow all persons subject to it to order their affairs with certainty. Nothing in the CPC 2010 alters this inherent right of a court.

In settling on this view, we were conscious of the general dangers of releasing more than one set of grounds of decision. These include the possibilities of inconsistency, undermining of judicial credibility and ex post facto justification: see S Chandra Mohan, “Remarks, More Remarks and a Grounds of Decision: One Judgment too Many? T T Durai v Public Prosecutor Magistrate’s Appeal No 126 of 2007” (2009) 21 SAcLJ 591 at para 20....