Ong Beng Leong v Public Prosecutor (No 2)
Jurisdiction | Singapore |
Judge | Yong Pung How CJ |
Judgment Date | 22 February 2005 |
Neutral Citation | [2005] SGHC 35 |
Docket Number | Criminal Motion No 1 of 2005 |
Date | 22 February 2005 |
Year | 2005 |
Published date | 22 February 2005 |
Plaintiff Counsel | Mimi Oh (Mimi Oh and Associates) and Ganga d/o Avadiar (Allen and Gledhill) |
Citation | [2005] SGHC 35 |
Defendant Counsel | Winston Cheng and Aaron Lee (Deputy Public Prosecutors) |
Court | High Court (Singapore) |
Subject Matter | Criminal 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
1 This was a criminal motion related to my decision in Ong Beng Leong v PP
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)
(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
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
[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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