Parti Liyani v PP

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 21 June 2021
• Court: High Court (Singapore)
• Docket Number: Magistrate's Appeal No 9068 of 2019/01

Parti Liyani

and

Public Prosecutor

[2021] SGHC 146

Chan Seng Onn J

Magistrate's Appeal No 9068 of 2019/01

General Division of the High Court

Criminal Procedure and Sentencing — Compensation and costs — Application by acquitted accused person for compensation order — Whether prosecution was frivolous or vexatious — Section 359(3) Criminal Procedure Code (Cap 68, 2012 Rev Ed)

Statutory Interpretation — Construction of statute — Purposive approach — Proper interpretation and scope of s 359(3) Criminal Procedure Code (Cap 68, 2012 Rev Ed) — Section 359(3) Criminal Procedure Code (Cap 68, 2012 Rev Ed)

Held, dismissing the application:

(1) The court applied the three-stage framework set out in Tan Cheng Bock v AG[2017] 2 SLR 850 to determine the proper scope and meaning of s 359(3) of the CPC. First, the court ascertained the possible interpretations of the provision, having regard not just to the text of the provision but also to the context of that provision within the written law as a whole. Second, the court ascertained the legislative purpose or object of the statutory provision in question. Third, the court compared the possible interpretations of the text against the purposes or objects of the statute and preferred the interpretation which furthered the purpose of the written text: at [42] and [44].

(2) At the first stage, the court accepted that there were two possible interpretations of “the prosecution”: (a) the decision to prosecute and continue prosecuting (“Interpretation 1”); or (b) the entire process of prosecution including the decision to prosecute and continue prosecuting as well as the conduct of the prosecutors during the proceedings (“Interpretation 2”): at [52].

(3) As regards the meaning of “frivolous or vexatious”, the court accepted that it could have the same meaning as malicious prosecution, in which case it was necessary for malice or dishonesty to be proven, or it could cover a variety of situations in which malicious or dishonest prosecution was but one instance of “frivolous or vexatious” prosecution: at [80].

(4) At the second stage, the court held that the legislative purpose of s 359(3) of the CPC was to define a legal wrong, “frivolous or vexatious” prosecution, which delineated the circumstances of when the bringing or continuing of a prosecution was so wrong that compensation ought to follow. The purpose was not to simply create a convenient and alternative procedure for accused persons who were acquitted to obtain compensation by proving the torts of malicious prosecution or false imprisonment: at [85].

(5) At the third stage, the court held that Interpretation 1 best furthered the legislative purpose of s 359(3) of the CPC. The provision sought to address prosecutions that ought not to have been brought or continued but was brought or continued frivolously or vexatiously. The provision was not directed at how the prosecutions were conducted by the prosecutors. A prosecution that was brought or continued against an accused person in good faith and with sufficient evidence such that the case was fit to be tried before the court did not become a “frivolous or vexatious” prosecution simply because the prosecutor's conduct at the proceedings was unacceptable. The conduct of the prosecutors could only be of evidential value if it showed a lack of good faith or malice which rendered the decision to commence prosecution and/or continue prosecution “frivolous or vexatious”: at [93], [110] and [111].

(6) The court held that “frivolous or vexatious” in s 359(3) of the CPC did not have the same meaning as the tort of malicious prosecution. There was no need to prove malice or dishonesty. However, the existence of malice, dishonesty or improper motives might well render a prosecution vexatious: at [113] and [126].

(7) The touchstone of the inquiry was the evidential sufficiency of the commencement and continuation of the prosecution. The court would ask, based on the evidence the Prosecution had at the relevant time, whether an objective reasonable deputy public prosecutor (“DPP”) would have considered that there was sufficient evidence to render the case fit to be tried before the court. The classic case of a frivolous prosecution was when the decision to commence and/or continue prosecution was based on such insufficient evidence that the prosecution was objectively factually unsustainable. Another instance of frivolous prosecution might include a legally unsustainable prosecution where, even if the Prosecution succeeded in proving all the facts asserted, the elements of the charge would still not be satisfied: at [116] and [117].

(8) The omission of a “no case to answer” submission by the Defence and the trial judge's objective view, in calling the defence, that the test in Haw Tua Tau v PP[1981–1982] SLR(R) 133 (the “Haw Tua Tau test”) was satisfied were good indicators (though not determinative) that the prosecution was not “frivolous or vexatious”: at [120].

(9) The overall inquiry as to whether the prosecution was “frivolous or vexatious” had both objective and subjective elements: at [125].

(10) The burden of proving that the prosecution was “frivolous or vexatious” lay on the applicant under s 359(3) of the CPC and the standard of proof was on a balance of probabilities. An assertion that the prosecution was “frivolous or vexatious” was a severe and grave one. Especially where malice, dishonesty or improper motives were alleged against the Prosecution, the gravity of these allegations had to be part of the whole range of circumstances that had to be weighed by the court when deciding as to the balance of probabilities: at [128] to [131].

(11) It would be helpful for the applicant to specify the stage at which the applicant asserted that the prosecution was frivolous or vexatious. It was at that stage that the court would inquire whether an objective reasonable DPP would have considered that there was sufficient evidence (including admissible evidence available to the DPP but not yet adduced) to render the case fit to be tried before the court. The court had to not be distracted by hindsight reasoning: at [136].

(12) Parti's assertions against the DPPs' conduct of the proceedings pertained to their taking issue with the post-offence conduct of Parti and her representatives, failure to objectively value the items, cross-examination questions, late disclosure of evidence and objections to the introduction of evidence of illegal deployment. The court was not satisfied that any of them, even seen cumulatively, showed that Parti's prosecution was frivolous or vexatious. These assertions mainly related to Parti's dissatisfaction with how the DPPs conducted the proceedings. However, the court was not the correct forum to air grievances about the DPPs' conduct. Mere dissatisfaction with different aspects of how the prosecutors had conducted the proceedings, even if they were numerous, would not, without more, render the prosecution “frivolous or vexatious”: at [138] to [141].

(13) Parti's assertions against the sufficiency of evidence pertained to the DPPs proceeding on the charge under s 381 of the Penal Code and continuing the prosecution on the other charges despite the police statements that were unreliable and improperly procured, the break in the chain of custody of some of the stolen items, Mr Karl Liew's lack of credibility, the serious risk of contamination of evidence owing to the “Black Bag” and contradictory evidence regarding the Philips DVD player. The court accepted that the evidence of the Liew family and the inculpatory parts of the statements given by Parti were sufficient to justify the commencement of proceedings. The defence did not make a “no case to answer” submission and the trial judge called for Parti's defence. The court agreed with the trial judge that the Haw Tua Tau test was satisfied. While the charge framed under s 381 of the Penal Code was flawed due to an oversight regarding the date of Parti's termination of employment, the evidential basis for the assertion that Parti had committed theft was not affected. The other assertions made were largely based on the findings of the court in acquitting Parti. However, the court had to not undertake the inquiry based on hindsight. None of the assertions showed any new developments during the continuation of proceedings that irrefutably undermined the Prosecution's case such that the prosecution ought to have been discontinued: at [143] to [148].

(14) Parti's assertions of malice or dishonesty on the part of the Prosecution was based on the DPPs' conduct of the trial, their alleged withholding of evidence on the functionality of the Pioneer DVD player and their repeated objections to the introduction of evidence of illegal deployment. The court held that the assertions did not show any dishonesty, malice or improper motive on the Prosecution's part to embarrass the defence. The DPPs' arguments with regard to Parti's post-offence conduct were, in their view, relevant to either Parti's conviction or sentencing. There was no evidence to suggest that the Prosecution had any deliberate or insidious motive to make late disclosure of the photo or video evidence in order to impede the defence's preparation for trial. With regard to the Pioneer DVD player, even on the assumption that the DPPs failed to disclose the defect in the functionality of the Pioneer DVD player, this did not mean that Parti's prosecution was frivolous or vexatious. The functionality of the Pioneer DVD player was related to only one aspect of one item in one of the charges. This assertion did not undermine the evidential basis of Parti's prosecution which was Mr Liew Mun Leong's evidence that these items were his and had been stolen from him. The mere fact that the DPPs objected to the introduction of evidence relating to Parti's illegal deployment did not show any malice or a lack of good faith: at [149] to [159].

(15) After considering...