PP v Goldring Timothy Nicholas

JurisdictionSingapore
Judgment Date08 November 2013
Date08 November 2013
Docket NumberCriminal Reference No 4 of 2012
CourtCourt of Appeal (Singapore)
Public Prosecutor
Plaintiff
and
Goldring Timothy Nicholas and others
Defendant

[2013] SGCA 59

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

Woo Bih Li J

Criminal Reference No 4 of 2012

Court of Appeal

Criminal Procedure and Sentencing—Criminal references—Prosecution referring questions of law to Court of Appeal—Whether requirements for leave need to be made out—Section 397 Criminal Procedure Code (Cap 68, 2012 Rev Ed)

Criminal Procedure and Sentencing—Disclosure—Accused persons requesting for copies of documents which they owned but which had been lawfully seized by police for investigations—Prosecution denying access until after Case for the Defence had been filed—Whether there was common law right of access to such documents—Whether this right was compatible with criminal case disclosure regime in Criminal Procedure Code (Cap 68, 2012 Rev Ed) —Whether, if no common law right existed, a right to access nevertheless ought to be recognised—Sections 6, 162 and 166 Criminal Procedure Code (Cap 68, 2012 Rev Ed)

The accused persons were charged with abetment by conspiracy to cheat. They requested for copies of documents which they owned but which had been lawfully seized by the police for investigations. The Prosecution declined to allow such access after the accused persons were charged. The Prosecution contended that pursuant to the criminal case disclosure (‘CCD’) regime in the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (‘the CPC’), the accused persons were only entitled to have access to those documents after their Case for the Defence was filed.

The Senior District Judge (‘SDJ’) dismissed the accused persons' application for copies of the requested documents. The accused persons then filed a criminal revision to the High Court for the SDJ's order to be set aside and for copies of the requested documents to be provided. The High Court allowed the accused persons' application.

The Prosecution then referred the following six questions for determination by the Court of Appeal pursuant to s 397 of the CPC:

Question 1: Where documents have been seized by the police in the lawful exercise of their investigative powers, whether at common law, a person's ownership or legal custody of or legal right to control the documents so seized gives that person a right to access (or to make copies of) the documents while they are in the possession of the police and before investigation or prosecution of the criminal matter has been concluded.

Question 2: Whether the answer to Question 1 would be the same if the person making the request for the access (or for copies) has been arrested for a criminal offence, and the documents were seized as part of investigations into the offence.

Question 3: Whether the answer to Question 1 would be the same if the person making the request for access (or for copies) has been charged with a criminal offence and the documents were seized as part of investigations into the offence charged.

Question 4: If the answer to Question 1 is positive, whether a criminal motion is the appropriate procedure to be adopted by a person seeking to enforce his right of access to, or to make copies of, the documents seized, if the police decline to permit such access or copying.

Question 5: If the answer to Question 1 is positive, and if the [CCD] provisions in the CPC apply to the person making the request for access to (or for copies of) the documents, then in cases where the documents are listed as exhibits in the Case for the Prosecution, whether the right of access to (or for copies of) the documents is subject to the CCD disclosure provisions.

Question 6: Whether in situations where the CCD regime for criminal cases applies, and where the documents seized from the accused person fall within the purview of the CCD regime, the courts are precluded from invoking s 6 of the CPC to create new procedures to allow accused persons access to, or copies of, the seized documents.

Held:

(1) Section 397 (2) of the CPC statutorily permitted the Public Prosecutor to leapfrog the leave stage in a criminal reference. This, however, did not affect the Court of Appeal's exercise of its jurisdiction at the substantive stage. When exercising its substantive jurisdiction under s 397, the Court of Appeal would naturally consider whether the case before it fell truly within the scope of that particular provision. This, in turn, entailed considering whether all the requirements in s 397 (1) were made out: at [26] .

(2) The English Court of Appeal decision of Arias v Commissioner for the Metropolitan Police(1984) 128 SJ 784, The Times (1 August 1984) (‘Arias’) did support the existence of a common law right of access to documents over which an accused person had ownership or legal custody or a legal right to control immediately before the lawful seizure. The Prosecution's attempt to distinguish the present case from Arias was rejected: at [31] to [36] .

(3) The recognition of the common law right of access was consistent with and even buttresses the accused's right to due process in general and a fair trial in particular. Thus, even assuming that the views in Arias were obiter dicta(which was an incorrect assumption), the contents of the observations themselves were clear and unambiguous and the court was minded to agree with and, indeed, endorse them. There ought to be and was a common law right of access: at [41] , [43] and [47] .

(4) The Prosecution's argument that s 21 of the UK Police and Criminal Evidence Act 1984 (c 60) (‘s 21’) was a completely new statutory provision which filled a gap in the legal landscape where there had never been any legal right (here at common law) in the first place was rejected. The best case that the Prosecution could make was that both the statutory form (viz, s 21) and the common law right (embodied in Arias) were developed simultaneously and in parallel (rather than in conjunction) with each other. However, even on this rather strained interpretation, the Prosecution's case in so far as this particular issue was concerned did not succeed: at [49] to [59] .

(5) The common law right of access was not an absolute and unqualified one. If the Prosecution could demonstrate to the satisfaction of the court that allowing access would be prejudicial to the administration of criminal justice, the common law right would not be given effect to. It was not only just and fair but also practically advantageous that the burden lay on the Public Prosecutor in this particular regard: at [61] , [62] and [65] .

(6) The elements of reciprocity and sequence embodied within the CCD regime would not be subject to ‘neutralisation’ and ‘dilution’ by the overlay of the common law right. The raison d'être of the CCD regime was to ensure transparency as well as a level playing field between the parties. The exclusion of such a common law right would not promote these laudable purposes. On the contrary, the exclusion of such a right would have the opposite result. The common law right of access was compatible with and not ousted by the CCD regime set out in the CPC: at [79] , [82] and [83] .

(7) Questions 1, 2 and 3 were therefore answered in the affirmative: at [88] to [90] .

(8) The answer to Question 4 depended on when the request was made, and the appropriate procedural mechanisms both before and after the accused was charged were, based on our existing criminal procedure rules, set out accordingly in the judgment. The procedural matters were (needlessly) confusing, unclear and (on occasion at least) inconsistent. To some extent, this was to be expected since the discovery regime was an emerging (and, hence, developing) area of law. This was ultimately a broader issue that should be looked at by the appropriate institutions having regard to all the relevant considerations (in particular, the foundational legal principles of justice and fairness), in order to formulate a sound and coherent framework which complemented and gave meaningful effect to the developments in the substantive law: at [92] to [98] .

(9) Question 5 was answered in the negative: at [99] .

[Observation: If no common law right of access existed, s 6 of the CPC would enable a similar right of access to be created: at [84] and [85] .

In light of the court's analysis and conclusions, Question 6 had been rendered academic: at [100] .]

Arias v Commissioner for the Metropolitan Police (1984) 128 SJ 784; The Times (1 August 1984) (folld)

Bachoo Mohan Singh v PP [2010] 1 SLR 966 (refd)

Frank Truman Export Ltd v Metropolitan Police Commissioner [1977] QB 952 (refd)

Ghani v Jones [1970] 1 QB 693 (refd)

Khor Soon Lee v PP [2011] 3 SLR 201 (refd)

Phang Wah v PP [2012] SGCA 60 (refd)

PP v Bridges Christopher [1997] 1 SLR (R) 681; [1997] 2 SLR 217 (refd)

PP v Bridges Christopher [1997] 3 SLR (R) 467; [1998] 1 SLR 162 (refd)

United Overseas Bank Ltd v Ng Huat Foundations Pte Ltd [2005] 2 SLR (R) 425; [2005] 2 SLR 425 (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 58

Criminal Procedure Code (Cap 68, 2012 Rev Ed) ss 6, 162, 163, 165, 166, 397 (1) , 397 (2) , 400 (1) , 404 (1) (consd) ;ss 2, 176, 192, 193, 195, 196, 397, 405

Criminal Procedure Code 2010 (Act 15 of 2010)

Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed) ss 60 (1) , 60 (5)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) ss 60 (1) , 60 (5)

Supreme Court of Judicature (Amendment) Act 1998 (Act 43 of 1998)

Criminal Justice Act 1972 (c 71) (UK) s 36

Police and Criminal Evidence Act 1984 (c 60) (UK) s 21

Mavis Chionh, Jeremy Yeo Shenglong and Nicholas Seng (Attorney-General's Chambers) for the applicant

Wendell Wong, Choo Tse Yun and Benedict Eoon Zizhen (Drew&Napier LLC) for the respondents.

Judgment reserved.

Andrew Phang Boon Leong JA

(delivering the judgment of the court):

Introduction

1 This is a criminal reference by the Public Prosecutor (hereinafter ‘the...

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8 cases
  • Public Prosecutor v GCK and another matter
    • Singapore
    • Court of Appeal (Singapore)
    • 22 January 2020
    ...jurisdiction is concerned, we are guided by this court’s prior deliberations in Public Prosecutor v Goldring Timothy Nicholas and others [2014] 1 SLR 586. There, it was held at [26]: … When exercising its substantive jurisdiction under s 397, the Court of Appeal will necessarily consider wh......
  • PP v Li Weiming
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    ...bin Kadar v PP [2011] 3 SLR 1205 (refd) Ng Chye Huey v PP [2007] 2 SLR (R) 106; [2007] 2 SLR 106 (refd) PP v Goldring Timothy Nicholas [2014] 1 SLR 586 (refd) R v Charles Nash (1852) 2 Den 493; 169 ER 596 (refd) R v Henry Hodgson (1856) Dears & Bell 3; 169 ER 891 (refd) R v Robert Powell (1......
  • Iskandar bin Rahmat v Public Prosecutor
    • Singapore
    • Court of Appeal (Singapore)
    • 21 September 2021
    ...court accepted that it would have been appropriate to invoke s 6 of the CPC is Public Prosecutor v Goldring Timothy Nicholas and others [2014] 1 SLR 586 (“Goldring (CA)”). In that case, this Court held, in obiter, that if there had been no common law right permitting an accused person acces......
  • Public Prosecutor v Lam Leng Hung and others
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    ...made out (Public Prosecutor v Lim Yong Soon Bernard [2015] 3 SLR 717 at [16]; Public Prosecutor v Goldring Timothy Nicholas and others [2014] 1 SLR 586 at [26]). The only type of questions that can properly be referred to the Court of Appeal under s 397 are questions of law of public intere......
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3 books & journal articles
  • Criminal Procedure, Evidence and Sentencing
    • Singapore
    • Singapore Academy of Law Annual Review No. 2013, December 2013
    • 1 December 2013
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  • THE IDEALS IN THE PROPOSED RULES OF COURT
    • Singapore
    • Singapore Academy of Law Journal No. 2019, December 2019
    • 1 December 2019
    ...[2015] 5 SLR 1422 at [37]; Sun Jin Engineering Pte Ltd v Hwang Jae Woo [2011] 2 SLR 196; Public Prosecutor v Goldring Timothy Nicholas [2014] 1 SLR 586 (principles applied to criminal proceedings); and Perdigao Agroindustrial SA v Barilla GER Fratelli-Societa Per Azioni [2009] SGHC 210 at [......
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    • Singapore
    • Singapore Academy of Law Journal No. 2022, March 2022
    • 1 March 2022
    ...for matters within especial knowledge) of the Evidence Act narrowly and not literally. 133 Public Prosecutor v Goldring Timothy Nicholas [2014] 1 SLR 586. 134 Thong Ah Fat v Public Prosecutor [2012] 1 SLR 676. 135 Public Prosecutor v Mas Swan bin Adnan [2012] 3 SLR 527. 136 See also Sulaima......

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