Ng Chye Huey and another v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 24 January 2007
• Date: 24 January 2007
• Docket Number: Criminal Motion No 24 of 2006
• Court: Court of Appeal (Singapore)

Ng Chye Huey and another

Plaintiff

and

Public Prosecutor

Defendant

[2007] SGCA 3

Andrew Phang Boon Leong JA

,

Kan Ting Chiu J

and

Tay Yong Kwang J

Criminal Motion No 24 of 2006

Court of Appeal

Courts and Jurisdiction–Jurisdiction–Court of Appeal–Criminal motion filed in and heard by High Court–Whether Court of Appeal having jurisdiction to hear criminal motion as appeal against High Court's finding on criminal motion–Whether Court of Appeal having jurisdiction to hear criminal motion in exercise of Court of Appeal's supervisory or revisionary jurisdiction–Criminal Procedure and Sentencing–Criminal motion–Abuse of process–Criminal motion filed in and heard by High Court–Applicant seeking Court of Appeal's hearing of matter as appeal against High Court's finding or in exercise of Court of Appeal's supervisory or revisionary jurisdiction– Whether application amounting to abuse of court's process–Criminal Procedure and Sentencing–Criminal motion–Whether omission to make reference to remedy sought sufficient grounds for disposing of motion–Whether applicants' notice of motion legally adequate–Applicable principles

The applicants claimed trial after being charged with harassment in furtherance of their common intention by displaying insulting writing (“the display”). Their joint trial in the Subordinate Courts commenced before the trial judge on 28 August 2006.

On the second day of their joint trial in the Subordinate Courts, the investigating officer in charge of the applicants' case (“the IO”) conceded under cross-examination by the applicant's counsel (“Mr Ravi”) that the display would not have been “insulting” if its contents were true. Mr Ravi then referred the IO to a United Nations (“UN”) report (“the report”) that purportedly affirmed the truth of the display. The deputy public prosecutor (“the DPP”) argued that the report was hearsay evidence and therefore inadmissible. Mr Ravi then asked that he be given some time to arrange for the maker of the report to be called as a witness. The applicants averred that the trial judge had refused this application for an adjournment, insisting instead that cross-examination of the IO continue. The alleged objectionability of this order formed the basis of the applicants' motions in the High Court and before the Court of Appeal.

In the motion before the High Court, Mr Ravi sought to convince the judge to grant three orders in exercise of the High Court's “supervisory and appellate jurisdiction”: (a) an order that the IO be given some time to verify the report since it would be the subject of his (Mr Ravi's) subsequent line of questioning; (b) an order in the alternative, that the Attorney-General's Chambers be ordered to ascertain the report's veracity and authenticity; and (c) an order in the further alternative, that the trial judge be directed to give the applicants sufficient time to call the maker of the report. The High Court judge dismissed the motion and directed that the trial should resume in the Subordinate Courts. Later that day, the applicants filed a motion before the Court of Appeal.

The applicants' motion before the Court of Appeal raised a number of issues. The first issue related to the legal adequacy (or lack thereof) of the applicants' motion before the Court of Appeal. The second, related to the issue of jurisdiction. The final issue pertained to a possible abuse of process of the court.

Held, dismissing the motion:

(1) Both the applicants' notice of motion and their affidavit before the court clearly omitted any reference to the relief that was in fact being sought. The manifest inadequacies of the applicants' motion papers and affidavit sufficed to warrant a disposal of their motion. Applications before the court had to be sufficiently detailed so as to give both the court, as well as the opposing party, adequate notice of what was being sought by way of the proceedings: at [13] and [14].

(2) The Court of Appeal was a creature of statute and was only seised of the jurisdiction that had been conferred upon it by the relevant provisions in the legislation creating it. A jurisdiction-conferring provision, whether derived from the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“SCJA”) or elsewhere, was an essential and indispensable prerequisite that an applicant before the Court of Appeal had to have as a legal basis upon which to canvass the substantive merits of his or her application. Further, it was trite law that there was no inherent right of appeal from judicial determinations made by the local courts. A right of appeal was a “creature of statute” which required legislative authority. The applicants' purported appeal before the court would therefore only be well founded if they were able to point to an express statutory provision conferring the court with appellate criminal jurisdiction over such proceedings: at [17], [26] and [27].

(3) The High Court judge, in hearing the High Court motion, did not exercise his “original criminal jurisdiction” for the purposes of s 29A (2) of the SCJA. The words “original criminal jurisdiction” in s 29A (2) of the SCJA, on their true construction, referred to “trial jurisdiction”. Sections 15 (1) and 15 (2) of the SCJA variously provided that the High Court was to have jurisdiction to “try … offences” and “pass … sentence allowed by law”. These provisions made it clear beyond all doubt that the High Court judge's decision did not fall within the ambit of the High Court's “original criminal jurisdiction” under s 29A (2) of the SCJA. The original criminal jurisdiction to “try” and “sentence” the applicants was being exercised by the Subordinate Courts instead: at [30] and [35].

(4) It was clear from s 3 (b) of the SCJA that the Court of Appeal's criminal jurisdiction was generally of an appellate nature. The Court of Appeal had no jurisdiction or power under s 29A (2) of the SCJA to hear any proceeding other than an appeal against a decision made by the High Court in the exercise of the High Court's original jurisdiction. This, by necessary implication, excluded any possibility of the Court of Appeal court possessing the jurisdiction and power to entertain applications for the revision or supervision of a decision made by the Subordinate Courts. Such jurisdiction and power were, if at all, to be exercised only by the High Court pursuant to s 27 of the SCJA: at [63].

(5) In so far as the applicants had chosen to bring criminal proceedings in the High Court by way of their criminal motion, they could not then be heard to say that those criminal proceedings were in fact in the nature of civil proceedings to seek judicial review. Litigants should not be allowed the luxury of “switching” their cases between the criminal and civil realms with complete impunity. To allow parties to successfully mount such arguments would encourage future resort to unorthodox and objectionable manoeuvres in the hope of circumventing onerous procedural requirements. In the circumstances, therefore, the High Court judge was not exercising his supervisory jurisdiction but was, rather, exercising his revisionary jurisdiction instead: at [57] and [58].

(6) The absence of any appellate jurisdiction over the High Court's revisionary jurisdiction was clear from the express language of s 29A (2) of the SCJA itself. More importantly, the absence of any right of appeal from an exercise of the High Court's powers of revision had been confirmed by Parliament. Therefore, if the application indeed constituted an appeal against the High Court judge's decision, it was misconceived because the Court of Appeal did not have the requisite appellate jurisdiction to hear it: at [59] to [61].

(7) The applicants' attempt to obtain a further hearing before the Court of Appeal amounted, at its heart, to an unmitigated and illegitimate attempt to re-litigate what had already transpired before the High Court judge as well as before the trial judge. The objectionable nature of such conduct was exacerbated by the fact that the applicants in the present proceedings would, in any event, have been afforded with the opportunity to seek redress for this perceived and alleged injustice through a substantive appeal following the conclusion of the trial before the Subordinate Courts. If issues such as the present were taken up through separate proceedings at any and every opportunity (or at the whim of the party concerned or even occasionally), the conduct of a criminal trial would be seriously impeded and delayed. Litigious parties who were found to have commenced duplicitous proceedings may find themselves (or, in appropriate cases, their counsel) the subject of sanctions, not least of which may be an order of costs. The court could, and had to, prevent the improper use of its process and machinery: at [65], [68] and [72].

[Observation: The High Court's inherent supervisory jurisdiction, which existed historically at common law, was still very much a part of the Singapore judicial system, and remained distinct from the statutory revisionary jurisdiction. It therefore followed that the reference in s 27 (1) of the SCJA to the High Court's “general supervisory and revisionary jurisdiction” should be treated as a composite reference to two separate and distinct, albeit related, bases of jurisdiction. Whilst it may be the case that s 27 (1) would continue to be relevant primarily for its reference to the High Court's powers of revision, it would nevertheless do well for future courts to approach the language of “supervision” and “revision” in a more cautious manner to avoid any unnecessary conflation or equation of these two spheres of jurisdiction: at [53].]

Abdullah bin A Rahman v PP [1994] 2 SLR (R) 1017; [1994] 3 SLR 129 (folld)

Ang Cheng Hai v PP [1995] 3 SLR (R) 151; [1995] 3 SLR 201 (refd)

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

Annie Besant v Advocate General of MadrasAIR...