Mustafa Ahunbay v PP

• Jurisdiction: Singapore
• Judgment Date: 27 September 2013
• Date: 27 September 2013
• Docket Number: Criminal Revision No 13 of 2013
• Court: High Court (Singapore)

Mustafa Ahunbay

Plaintiff

and

Public Prosecutor

Defendant

[2013] SGHC 188

Choo Han Teck J

Criminal Revision No 13 of 2013

High Court

Criminal Procedure and Sentencing—Revision of proceedings—Bank accounts seized for investigation—Applicant had contracted to release those bank accounts—Applicant not owner of accounts—Seizure of accounts extended without applicant's being heard—Whether applicant had right to be heard—Whether extension of seizure order could be set aside

Three accounts (‘the seized accounts’) were seized on 23 June 2011 pursuant to s 35 (1) of the Criminal Procedure Code 2010 (Cap 68, 2012 Rev Ed) (‘CPC’). The beneficial owner of the seized accounts, Mr Mohomed Masood Sayed (‘Mr Sayed’), was investigated in India for cheating, criminal conspiracy and money laundering. Indian officials sought Singapore's assistance in the investigations. It was subsequently suspected that Mr Sayed was involved in illegal activities in Singapore. The seized accounts were seized for both investigations.

Before these investigations, the applicant had contracted with Mr Sayed for, inter alia,the two companies which legally owned the accounts. However, no share transfer was effected. As part of a later settlement on 21 March 2012, the applicant agreed to release the moneys in the seized accounts. He then realised that they had been seized. The applicant asked the Prosecution to be kept apprised of developments. The Prosecution obliged. The applicant made submissions at three hearings in September and November 2012. The seizure was extended for six months and parties were to attend before the same judge on 22 May 2013, if necessary. On 20 May 2013, the Prosecution obtained a further extension of seizure (‘the 20th May order’) without notifying the applicant. The applicant was thus not heard when the decision was made to extend the seizure. The applicant filed this criminal revision to set aside the 20th May order on the basis of a breach of natural justice.

Held, dismissing the application:

(1) At its heart, this criminal revision was about whether there had been a breach of natural justice from the applicant's not being heard before the 20th May order was made. The right to be heard was a component of natural justice, not a stand-alone right. Whether a breach of the right to be heard would lead to a breach of natural justice would depend on the facts of the case. In this case, the statutory framework was crucial: at [8] and [9] .

(2) The relevant statutory framework was found in ss 35 and 370 of the CPC. Section 35 dealt with an investigator's or authority's power to seize property while s 370 dealt with how that property should be returned to the rightful owner after it was no longer relevant to investigations. Section 35 was more comprehensive and could balance the needs of those affected by the seizure. By contrast, s 370 dealt solely with the question of whether the seized property was still relevant for investigation. Section 370 did not permit a balancing exercise. Instead, the whole of the seized property had to be returned to that person or entity revealed in investigations as entitled in law to that property. This might be different from the person from whom that property was seized: at [11] , [13] , [14] and [17] .

(3) In the present case, the applicant's assumption that he was entitled to the seized accounts was wrong. The purpose of the investigation was to determine legal entitlement to the seized accounts. That had not yet been determined. Moreover, the applicant's proprietary claim was ambiguous as he had no legal title to the seized accounts: at [18] and [19] .

(4) In any event, s 370 did not give the applicant a right to be heard. It provided a seamless process whereby the seized property would be released and given to the person entitled to the property. Section 370 operated when there was no dispute about entitlement. This was not the case presently. The 20th May order did not breach natural justice and could not be set aside: at [20] and [21] .

Ang Poh Chuan v PP [1995] 3 SLR (R) 929; [1996] 1 SLR 326 (refd)

Lloyd v Mc Mahon [1987] AC 625 (refd)

Mc Innesv Onslow-Fane [1978] 1 WLR 1520; [1978] 3 All ER 211 (refd)

Ung Yoke Hooi v AG [2009] 3 SLR (R) 307; [2009] 3 SLR 307 (refd)

Yunani bin Abdul Hamid v PP [2008] 3 SLR (R) 383; [2008] 3 SLR 383 (refd)

Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65 A, 2000 Rev Ed) s 47 (1)

Criminal Procedure Code (Cap 68, 2012 Rev Ed) ss 35 (1) , 35 (7) , 35 (8) , 370 (consd) ;ss 35, 35 (7) (b) , 370 (1) (b) , 371, 372

Penal Code (Cap 224, 2008 Rev Ed) s 411

N Sreenivasan SC, Murali Rajaram and Lisa Chong (Straits Law Practice LLC) for the applicant

Peter Koy, Gordon Oh and Leong Weng Tat (Attorney-General's Chambers) for the Public Prosecutor.

Judgment reserved.

Choo Han Teck J

1 This was an application for criminal revision to set aside an order made by District Judge Sarah Tan (‘DJTan’) on 20 May 2013 (‘the 20th May order’) that the seizure of three accounts continues pending an investigation by the Commercial Affairs Department (‘CAD’).

2 These accounts (‘the seized accounts’) had been seized on 23 June 2011 pursuant to s 35 (1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (‘CPC’). The seized accounts had previously been owned by Mr Mohamed Masood Sayed (‘Mr Sayed’), an Indian national, who is related to the applicant (‘the Applicant’) by marriage. Mr Sayed was investigated by Indian authorities for cheating, criminal conspiracy and money laundering offences in India. In February 2011, the Indian authorities contacted the CAD to ask for its assistance in its investigations into Mr Sayed's illegal activities. In the course of lending its assistance in the Indian investigations, the CAD suspected that Mr Sayed had also committed offences in...