PP v Soh Chee Wen

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Hoo Sheau Peng J
• Judgment Date: 03 September 2020
• Date: 03 September 2020
• Docket Number: Criminal Case No 9 of 2019

[2020] SGHC 186

High Court

Hoo Sheau Peng J

Criminal Case No 9 of 2019

Public Prosecutor

and

Soh Chee Wen and another

Teo Guan Siew, Jiang Ke-Yue, Nicholas Tan, Loh Hui-min, Ng Jean TingandDavid Koh(Attorney-General's Chambers) for the Prosecution;

Narayanan Sreenivasan SC, Lim Wei Liang JasonandTan Zhen Wei Victoria (K&L Gates Straits Law LLC) for the first accused;

Philip Fong Yeng Fatt, Sui Yi SiongandLau Jia Min Jaime (Eversheds Harry Elias LLP) for the second accused.

Case(s) referred to

Attorney General's Reference (No 1 of 1990) [1992] QB 630; [1992] 3 All ER 169 (refd)

Aurol Anthony Sabastian v Sembcorp Marine Ltd [2013] 2 SLR 246 (refd)

Connelly v DPP [1964] AC 1254; [1964] 2 WLR 1145 (refd)

Datuk Haji Wasli bin Mohd Said v PP [2006] 5 MLJ 172 (refd)

HKSAR v Lee Ming Tee [2001] 1 HKLRD 599 (refd)

Jago v District Court of New South Wales [1989] 168 CLR 23; (1989) 87 ALR 577 (refd)

Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR(R) 239; [2008] 2 SLR 239 (distd)

Lee Siew Boon Winston v PP [2015] 4 SLR 1184 (refd)

Lim Chit Foo v PP [2020] 1 SLR 64 (refd)

Moevao v Department of Labour [1980] 1 NZLR 464 (refd)

Muhammad bin Kadar v PP [2011] 3 SLR 1205 (refd)

Muhammad Nabill bin Mohd Fuad v PP [2020] 1 SLR 984 (refd)

Nalpon Zero Geraldo Mario, Re [2013] 3 SLR 258 (refd)

PP v Ho So Mui [1993] 1 SLR(R) 57; [1993] 2 SLR 59 (refd)

PP v Norzian bin Bintat [1995] 3 SLR(R) 105; [1995] 3 SLR 462 (refd)

PP v Saroop Singh [1999] 1 SLR(R) 241; [1999] 1 SLR 793 (refd)

R v Horseferry Road Magistrates' Court, ex parte Bennett [1994] 1 AC 42 (refd)

R v Latif [1996] 1 WLR 104 (refd)

R v Maxwell [2011] 1 WLR 1837 (refd)

R v Trong Ruyen Bui [2011] ACTSC 102 (refd)

R v Ulman-Naruniec [2003] 143 A Crim R 531 (refd)

Strickland v Director of Public Prosecutions (Commonwealth) [2018] HCA 53 (refd)

Sum Lye Heng v MCST Plan No 2285 [2003] 4 SLR(R) 553; [2003] 4 SLR 553 (refd)

Williams v Spautz (1991–1992) 174 CLR 509 (refd)

Yunani bin Abdul Hamid v PP [2008] 3 SLR(R) 383; [2008] 3 SLR 383 (refd)

Legislation referred to

Companies Act (Cap 50, 2006 Rev Ed) s 148

Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Arts 35(8), 93 (consd)

Criminal Procedure Code (Cap 68, 2012 Rev Ed) ss 11(1), 97, 128, 231, 264, 355(2), 409

Legal Profession Act (Cap 161, 2001 Rev Ed) ss 83(2)(e), 83(2)(h)

Penal Code (Cap 224, 2008 Rev Ed) ss 120B, 204A, 420, 511

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 52 r 2

Securities and Futures Act (Cap 289, 2006 Rev Ed) ss 197(1)(b), 201(b)

Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (Cap 2101) (HK) Art 63

Federal Constitution of Malaysia (2010 Reprint) (M'sia) Art 145(3)

Criminal Procedure and Sentencing — Trials — Stay of criminal proceedings — Whether court had power to stay criminal proceedings — Scope of prosecutorial discretion — Circumstances in which criminal proceedings ought to be stayed — Whether criminal proceedings could be conditionally stayed — Articles 35(8) and 93 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Facts

The accused persons, Soh Chee Wen (“Soh”) and Quah Su-Ling faced 178 charges each for being parties to a criminal conspiracy to commit ten offences under s 197(1)(b) of the Securities and Futures Act (Cap 289, 2006 Rev Ed) (“SFA”), 162 offences under s 201(b) of the SFA and six offences under s 420 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”). These charges related to alleged stock market manipulation of the securities of three companies, Blumont Group Ltd (“Blumont”), Asiasons Capital Ltd (“Asiasons”) and LionGold Corp Ltd (“LionGold”) over different periods between 1 August 2012 to 3 October 2013. Soh also faced three charges under s 148 of the Companies Act (Cap 50, 2006 Rev Ed) for being concerned in the management of Blumont, Asiasons and Liongold while being an undischarged bankrupt, five charges under s 204A of the Penal Code for witness tampering and another three charges under s 204A read with s 511 of the Penal Code for attempted witness tampering.

The accused persons applied for a permanent stay of the criminal proceedings on the basis that the Prosecution's conduct of the trial thus far had seriously prejudiced them, rendering a fair trial impossible. Alternatively, the accused persons asked for the criminal proceedings to be stayed on the condition that the Prosecution remedy its allegedly unsatisfactory conduct, as well as for the Prosecution to pay their costs and for bail to be granted to Soh.

The Prosecution contended that the court had no jurisdiction to order a stay of criminal proceedings as that contravened the separation of judicial and prosecutorial powers enshrined in Arts 93 and 35(8) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“Constitution”) respectively, and that in any event, the allegations levied by the accused persons against the Prosecution were unmeritorious.

Held, dismissing the application:

(1) Article 35(8) of the Constitution allowed the Attorney-General (“AG”) to achieve three specified ends. By exercising its prosecutorial discretion, the AG could cause criminal proceedings to be instituted against any person where none existed, to conduct the criminal proceedings against any such person, and to discontinue any existing criminal proceedings. Article 35(8) of the Constitution did not state that these were matters for only the AG to decide. Strictly speaking, the AG did not appear to have the power under Art 35(8) of the Constitution to maintain criminal proceedings, though it had the power to initiate, maintain and terminate a criminal prosecution: at [20] and [21].

(2) If any of the powers conferred on the AG under Art 35(8) of the Constitution, ie, to institute, conduct or discontinue criminal proceedings were non-exclusive in the sense that they could be lawfully exercised by other persons, the other powers would have to be similarly construed since there was nothing in the express language of Art 35(8) of the Constitution that distinguished the nature of any of those powers from the others. The power to institute and conduct criminal proceedings were not exclusive to the AG. If such were the case, written laws which permitted others to assume such powers in parallel, eg, laws permitting private prosecutions would be unconstitutional, which was not the position at law. The power to discontinue criminal proceedings should not be treated any differently in the sense that the AG did not have the right to insist that criminal proceedings were maintained in the face of a discontinuance of the same by the court exercising its judicial power: at [16], [22] to [24] and [28].

(3) The constitutional separation of judicial and prosecutorial powers did not preclude the existence of an inherent power to stay criminal proceedings for an abuse of process. This inherent power arose by virtue of the court's institutional role to dispense justice, to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them. It was to be exercised to prevent abuses of the court's process, to control the court's own procedure and to safeguard an accused from oppression or prejudice: at [31], [32] and [35] to [38].

(4) There was a distinction between the exercise of the prosecutorial power and the control of criminal proceedings in court. The exercise of the prosecutorial power was fettered only in so far that the court might declare it unconstitutional. However, it was the court, and not the Prosecution, that controlled the criminal proceedings within the limits of its judicial and statutory powers once the accused was brought before the court. The AG was not vested with the power to determine how the proceedings as a whole would be managed and conducted. That was plainly a function and responsibility of the court: at [33] and [34].

(5) Where the AG exercised its power to institute, conduct or discontinue criminal proceedings, such an exercise was unfettered, and could not be questioned by the court other than by judicial review: at [29].

(6) The inherent power of the court to permanently stay criminal proceedings was to be exercised in cases where it would be impossible to give the accused a fair trial owing to delay or any other reason amounting to an abuse of process. It was for the accused to show on the balance of probabilities that he would suffer serious prejudice to the extent that no fair trial could be held, and that the continuance of the prosecution would amount to an abuse of the process of the court. The power to stay criminal proceedings ought not to be exercised in order to express the court's disapproval of official conduct or to discipline the authorities: at [40] to [45] and [50].

(7) It was doubtful as to whether the court should grant a permanent stay of criminal proceedings on the basis that the use of the court's procedures would undermine public confidence in the criminal justice system and bring it into disrepute if such cases did not involve irremediable unfairness. Given Art 35(8) of the Constitution, such cases might more properly be dealt with under the judicial review mechanism regardless of the court's views as to the public interest: at [46] and [47].

(8) The effect of a conditional stay of criminal proceedings was to stay the criminal proceedings indefinitely unless the conditions imposed were complied with. Assuming that the conditional stay of criminal proceedings was an available and appropriate remedy in the first place, the circumstances in which such a remedy would be justified would likely be extremely limited. The availability and appropriateness of the conditional stay of criminal proceedings was doubtful. The court should intervene to ensure fairness in an ongoing trial by imposing the appropriate orders or directions, and permanently stay...