Muhammad bin Kadar v PP

• Jurisdiction: Singapore
• Judgment Date: 26 August 2011
• Date: 26 August 2011
• Docket Number: Criminal Appeal No 8 of 2009 and Criminal Motion No 57 of 2011
• Court: Court of Appeal (Singapore)

Muhammad bin Kadar and another

Plaintiff

and

Public Prosecutor and another matter

Defendant

[2011] SGCA 44

VK Rajah JA

,

Kan Ting Chiu J

and

Steven Chong J

Criminal Appeal No 8 of 2009 and Criminal Motion No 57 of 2011

Court of Appeal

Courts and Jurisdiction—Court of Appeal—Prosecution applying for clarification of judgment already delivered—Whether Court of Appeal had jurisdiction to hear application and make clarification

Criminal Procedure and Sentencing—Disclosure—Judgment in Muhammad bin Kadar v PP [2011] 3 SLR 1205 prescribed regime for disclosure of unused material in hands of Prosecution—Prosecution seeking clarification of scope of its disclosure obligation—Whether Prosecution was under duty to search for and review material outside its knowledge for purposes of disclosure

After judgment was delivered in Muhammad bin Kadar v PP [2011] 3 SLR 1205 (‘Kadar’) , the Prosecution wrote a letter requesting a six-month suspension of the operation of [99] - [121] of Kadar(‘the relevant passage’) . The relevant passage concerned the Court of Appeal's findings on a common law criminal disclosure regime for unused material in the hands of the Prosecution. The Prosecution, pursuant to the direction of the court, then proceeded to file Criminal Motion No 57 of 2011, which 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 in the relevant passage. The second was for the six-month suspension of the operation of the relevant passage.

At the hearing of the motion, the Prosecution submitted that the relevant passage was capable of two interpretations: the broader interpretation suggested that the Prosecution's duty of disclosure included 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 was only under a duty to disclose material that the prosecutor was actually aware of without the additional duty to review all material gathered in investigations.

Held, making a clarification order:

(1) The Court of Appeal had the inherent power and jurisdiction to clarify the terms of an order or judgment it had already made in a criminal case: at [5] and [6].

(2) The Court of Appeal would only generally use its inherent jurisdiction to clarify a statement of law in its own previous judgment where (a) the judgment contained a patent ambiguity, (b) the clarification was necessary in the public interest to ensure that the judgment could be correctly implemented in practice, and then only to the extent necessary, (c) the application for clarification was made within a reasonable time, and (d) the clarification sought was a genuine clarification and not an attempt to re-open litigation: at [7].

(3) Despite the lack of a patent ambiguity in the relevant passage, any reasonable misapprehension about the relevant passage might have led the relevant agencies to unnecessarily overhaul their practices. This was therefore an exceptional case that justified a clarification based only on (at most) an apparent ambiguity: at [11].

(4) It was clarified that the Prosecution's duty of disclosure as stated at [113] of Kadar did not require the Prosecution to search for additional material outside the Prosecution's knowledge: at [14].

(5) It was clarified that where material fell within the scope of s 196 or 166 of the Criminal Procedure Code 2010 (Act 15 of 2010) , such material should be disclosed within the timelines provided for in those sections, while all other disclosable material should be provided in accordance with the timings set out in [113] of the judgment inKadar: at [15].

[Observation: The court did not have the power to depart from statute law. The court's judgment in Kadar therefore could not affect the operation of any ground for non-disclosure recognised by any law: at [18].

Where a prosecutor knew of material and knew of a case in which it should be disclosed, he was under a duty to arrange for the disclosure of that material even if he was not directly assigned to conduct that case: at [20].]

Godfrey Gerald QC v UBS AG [2004] 4 SLR (R) 411; [2004] 4 SLR 411 (folld)

Muhammad bin Kadar v PP [2011] 3 SLR 1205 (refd)

Selvarajan James v PP [2000] 2 SLR (R) 946; [2000] 3 SLR 750 (refd)

Criminal Procedure Code 2010 (Act 15 of 2010) ss 6, 166, 196, 298 (3) , 298 (4) , 298 (5) , 301

Evidence Act (Cap 97, 1997 Rev Ed) ss 125, 126, 127

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) s 23

Aedit Abdullah, Vanessa Yeo and Joel Chen (Attorney-General's Chambers) for the applicant in Criminal Motion No 57 of 2011

Kanagavijayan Nadarajan (Kana & Co) and Rajan Supramaniam (Hilborne & Co) for the first respondent in Criminal Motion No 57 of 2011

Thrumurgan s/o Ramapiram (Thiru & Co) for the second respondent in Criminal Motion No 57 of 2011.

VK Rajah JA

(delivering the grounds of decision of the court) :

Introduction

1 Shortly after we delivered judgment inMuhammad bin Kadar v PP [2011] 3 SLR 1205 (‘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.

2 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...