Mustafa Ahunbay v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 27 September 2013
• Neutral Citation: [2013] SGHC 188
• Court: High Court (Singapore)
• Hearing Date: 20 September 2013
• Docket Number: Criminal Revision No 13 of 2013
• Plaintiff Counsel: N Sreenivasan SC, Murali Rajaram and Lisa Chong (Straits Law Practice LLC)
• Defendant Counsel: Peter Koy, Gordon Oh and Leong Weng Tat (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,revision of proceedings
• Published date: 03 October 2013

Choo Han Teck J:

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

These accounts (“the seized accounts”) had been seized on 23 June 2011 pursuant to s 35(1) of the Criminal Procedure Code 2010 (Cap 68, Rev Ed 2012) (“CPC”). The seized accounts had previously been owned by Mr Mohamed Masood Sayed (“Mr Sayed”), an Indian national, who is related to 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 Singapore under s 47(1) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, Rev Ed 2000) and section 411 of the Penal Code (Cap 224, Rev Ed 2008). The CAD accordingly commenced its own investigations into Mr Sayed’s accounts and activities in Singapore. Neither the Indian nor the Singaporean investigations have been concluded. The seized accounts relate to both sets of investigations and contain US$13,686,741.93.

The seized accounts were registered in the names of two trust companies, JJ Venture Ltd (“JJ Venture”) and Blue Lagoon Holdings Limited (“Blue Lagoon”), with Mr Sayed as the beneficiary. The seized accounts contain a large amount of Mr Sayed’s and his wife’s personal assets. In 2009, Mr Sayed approached the Applicant to ask if the Applicant would buy over his shares in JJ Venture, Blue Lagoon, and two other companies for a sum total of US$49 million. The Applicant agreed and funded the purchase using loans from Suisse Financial Services Limited (“Suisse Financial”), a company incorporated in the United Arab Emirates. The Applicant and Mr Sayed entered into four sale and purchase agreements (one for each of the companies), but the share transfers were not eventually executed. Mr Sayed told the Applicant in 2012 that the relevant banking institutions in Singapore had refused to effect the share transfers to the Applicant. At the same time, Suisse Financial called on the loan to the Applicant. The Applicant, Mr Sayed and Suisse Financial thus entered into a settlement deed on 21 March 2012 whereby the Applicant agreed to take such steps as were necessary to release the assets of the four companies to repay the loan, including the seized accounts belonging to JJ Venture and Blue Lagoon.

The Applicant, through his lawyers Straits Law Practice LLC (“Straits Law”), accordingly wrote to the banks holding the seized accounts and was told on 27 April 2012 that those accounts had been seized. Straits Law began corresponding with CAD in May 2012 to make enquiries about the seizure of these accounts and about the status of the investigations which involved the seized accounts. On 12 July 2012, pursuant to Straits Law’s request, the CAD furnished a redacted copy of their latest investigation report and an order of court dated 7 September 2011 permitting the continued retention by CAD of the seized accounts.

Straits Law filed a criminal motion on the Applicant’s behalf to quash the 7 September 2011 order of court, but this was dismissed on 22 August 2012. Straits Law wrote to the Prosecution the following day, asking to be kept informed of any applications to extend the period of seizure. The Prosecution obliged and Straits Law attended on the Applicant’s behalf at hearings on 13 September, 6 November and 23 November 2012. Both parties made submissions before DJ Mathew Joseph (“DJ Joseph”) at these hearings. Straits Law was also given copies of two further investigation reports dated 13 September 2012 and 23 November 2012. On 23 November 2012, DJ Joseph made an order that the seizure of the accounts continue for a further six months. Parties were due to appear before DJ Joseph again, if necessary, on 22 May 2013 at 2.30pm.

The CAD then stopped updating Straits Law as to the status of the investigation. Two days before the expiry of the six month extension, the Prosecution appeared before DJ Tan and obtained a further extension. Straits Law was not informed of this hearing and did not attend. Straits Law and the Prosecution appeared before DJ Tan again on 6 August 2013 to contest the 20th May order. DJ Tan declined to make an alteration to the 20th May order. At this hearing, the Prosecution submitted that the Applicant, who was not legal owner of the seized accounts, did not have locus standi to make submissions on the continued seizure of the seized accounts. As for failing to inform Straits Law of the hearing on 20May 2013, this was an oversight of the DPP having charge of the case.

The Applicant thus filed this criminal revision to set aside the 20th May order on the ground that there was something palpably wrong in the decision that struck at its basis as an exercise of judicial power; see Yunani bin Abdul Hamid v Public Prosecutor [2008] 3 SLR(R) 383 and Ang Poh Chuan v Public Prosecutor [1995] 3 SLR(R) 929, namely: Making the application before DJ Tan when the matter had been fixed for hearing before DJ Joseph a mere two days after; Failing to notify Straits Law of the application before DJ Tan, thus permitting them the opportunity to be heard; and Failing to notify Straits Law of the 20th May order.

At its heart, this criminal revision is about whether there has been a breach of natural justice from the Applicant’s not being heard before the 20th May order was made. The making of an application before one DJ whilst another was scheduled to hear the matter at a later date was a procedural irregularity, but that would not make the exercise of judicial power by that DJ invalid or palpably wrong. Each extension of seizure of the seized accounts did not need to be heard before the same judge. In fact, DJ Joseph was the second judge to hear an application for extension of seizure of the same seized accounts. The real reason why the Applicant is objecting to the making of the application before a different judge at an earlier date is because it was viewed as part of the deprivation of his right to be heard.

The right to be heard is a component of natural justice; it is not a stand-alone right. A failure to accord a right of hearing does not automatically lead to a finding that there has been a breach of natural justice. Whether there has been a breach of natural justice would...