Ong Beng Leong v Public Prosecutor (No 2)

JurisdictionSingapore
JudgeYong Pung How CJ
Judgment Date22 February 2005
Neutral Citation[2005] SGHC 35
Docket NumberCriminal Motion No 1 of 2005
Date22 February 2005
Year2005
Published date22 February 2005
Plaintiff CounselMimi Oh (Mimi Oh and Associates) and Ganga d/o Avadiar (Allen and Gledhill)
Citation[2005] SGHC 35
Defendant CounselWinston Cheng and Aaron Lee (Deputy Public Prosecutors)
CourtHigh Court (Singapore)
Subject MatterCriminal references,Application for extension of time to file application for criminal reference,Section 60(2) Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed),Section 60(1) Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed),Criminal Procedure and Sentencing,Whether substantive merits of anticipated application relevant consideration,Whether High Court having jurisdiction to grant extension of time,Application for further stay of sentence pending possible application for criminal reference

22 February 2005

Yong Pung How CJ:

1 This was a criminal motion related to my decision in Ong Beng Leong v PP [2005] SGHC 22. On 11 January 2005, I had dismissed the applicant’s appeal against his conviction on ten charges of using false documents with intent to deceive his principal, an offence under s 6(c) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“PCA”). However, I reduced his sentence from six months’ imprisonment to six weeks’ imprisonment, and allowed it to commence on 11 February 2005, after the Lunar New Year. On 1 February 2005, the applicant filed the present motion for his sentence to be stayed pending a possible criminal reference to the Court of Appeal. I dismissed his application and now give my reasons.

Application for stay

2 The applicant had applied for his sentence to be stayed pending the extraction of the Notes of Evidence and Grounds of Decision of his appeal, in order to “consider” making an application to refer questions of law to the Court of Appeal under s 60(1) of the Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed) (“SCJA”). Section 60(1) provides that:

Reference to Court of Appeal of criminal matter determined by High Court in exercise of its appellate or revisionary jurisdiction

60.—(1) When a criminal matter has been determined by the High Court in the exercise of its appellate or revisionary jurisdiction, the Judge may on the application of any party, and shall on the application of the Public Prosecutor, reserve for the decision of the Court of Appeal any question of law of public interest which has arisen in the matter and the determination of which by the Judge has affected the case.

3 I was well aware of the fact that the present motion was not an application under s 60 of the SCJA, but was merely a request for a stay pending a possible application under s 60. However, this did not mean that the merits of the anticipated application under s 60 were irrelevant to my decision in this case. On the contrary, before I could grant the applicant a further stay on his sentence, he had to make a good arguable case that there were real questions of law of public interest that warranted the Court of Appeal’s intervention. I could not simply accept that he had a substantive case under s 60 and grant him a stay as a matter of course. This would be a recipe for disaster, as every unsuccessful appellant would just need to make a similar application – however unmeritorious – to delay the commencement of his sentence. Before I could grant him a stay, the applicant had to prove that he had a good arguable case for a criminal reference under s 60.

4 Unfortunately, both of the applicant’s counsel were sorely unprepared to deal with the merits of his future application under s 60, leaving me to evaluate the strength of his case from his affidavit alone. The applicant’s affidavit suggested that he intended to rely on the following questions of law for his s 60 application:

(a) whether the element of dishonesty is an essential ingredient of the offence under s 6(c) of the PCA; and

(b) whether the words “or other documents” in s 6(c) refer only to documents inter partes.

5 The principles governing an application under s 60 of the SCJA are well established: see Abdul Salam bin Mohamed Salleh v PP (No 2) [1990] SLR 301; affirmed in [1991] SLR 235; Chan Hiang Leng Colin v PP [1995] 1 SLR 687; PP v Bridges Christopher [1998] 1 SLR 162. Before an application under s 60 will be allowed, the following requirements must be satisfied:

(a) there must be a question of law;

(b) the question of law must be one of public interest and not of mere personal importance to the parties alone;

(c) the question must have arisen in the matter dealt with by the High Court in the exercise of its appellate or revisionary jurisdiction; and

(d) the determination of the question by the High Court must have affected the outcome of the case.

6 Whether a question of law is of public interest depends on the facts and circumstances of each case. Even if the above requirements are met, the court still retains a residual discretion to refuse an application made by any party other than the Public Prosecutor. I have repeatedly stressed that the discretion under s 60 of the SCJA must be exercised sparingly. As I explained in Ng Ai Tiong v PP [2000] 2 SLR 358 at [10]:

This is to give recognition and effect to Parliament’s intention for the High Court to be the final appellate court for criminal cases commenced in the subordinate courts. The importance of maintaining finality in such proceedings must not be seen to be easily compromised through the use of such a statutory device. In Abdul Salam bin Mohamed Salleh v PP [1990] SLR 301, 311; [1990] 3 MLJ 275, 280, Chan Sek Keong J [as he then was] had cautioned aptly that:

[Section 60, SCJA] is not an ordinary appeal provision to argue points of law which are settled or novel points which can be decided by the application or extension of established principles...

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9 cases
  • Bachoo Mohan Singh v Public Prosecutor
    • Singapore
    • Court of Appeal (Singapore)
    • 4 Diciembre 2009
    ...v PP [2000] 1 SLR (R) 490; [2000] 2 SLR 358 (refd) Ng Chye Huey v PP [2007] 2 SLR (R) 106; [2007] 2 SLR 106 (refd) Ong Beng Leong v PP [2005] 2 SLR (R) 247; [2005] 2 SLR 247 (refd) PP v Bachoo Mohan Singh [2008] SGDC 211 (refd) PP v Bridges Christopher [1997] 1 SLR (R) 681; [1997] 2 SLR 217......
  • Bachoo Mohan Singh v Public Prosecutor
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    • High Court (Singapore)
    • 25 Mayo 2009
    ...Salleh v Public Prosecutor [1990] SLR 301, Wong Sin Yee v Public Prosecutor [2001] 3 SLR 197, Ong Beng Leong v Public Prosecutor (No 2) [2005] 2 SLR 247 and Cigar Affair v Public Prosecutor [2005] 3 SLR 648). If the general principles in determining the questions raised are well settled and......
  • Cigar Affair v Public Prosecutor
    • Singapore
    • High Court (Singapore)
    • 1 Julio 2005
    ...to be referred to the Court of Appeal. Those principles and other cases were referred to in the later case of Ong Beng Leong v PP (No 2) [2005] 2 SLR 247 (“Ong Beng Leong”) which was also a decision by Yong 7 In Ong Beng Leong, the applicant had been convicted of ten charges of using false ......
  • Mohammad Faizal bin Sabtu and another v Public Prosecutor and another matter
    • Singapore
    • Court of Appeal (Singapore)
    • 11 Enero 2013
    ...of the question of law by the High Court had affected the outcome of the case. See also Ong Beng Leong v Public Prosecutor [2005] 2 SLR(R) 247 at [5] and Bachoo Mohan Singh v Public Prosecutor and other applications [2010] 1 SLR 966 (“Bachoo Mohan Singh”) at [29], which present a slightly d......
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