Public Prosecutor v Yang Yin

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 08 January 2015
• Neutral Citation: [2015] SGHC 3
• Plaintiff Counsel: Tan Ken Hwee, Ang Feng Qian, Nicholas Tan, Norman Yew and Kenneth Chin (Attorney-General's Chambers)
• Docket Number: Criminal Revision No 18 of 2014
• Date: 08 January 2015
• Hearing Date: 10 November 2014,11 November 2014
• Subject Matter: Criminal Procedure and Sentencing,Bail,Revision of Proceedings
• Year: 2015
• Citation: [2015] SGHC 3
• Defendant Counsel: Wee Pan Lee (Wee, Tay & Lim LLP)
• Court: High Court (Singapore)
• Published date: 09 January 2015

Sundaresh Menon CJ: Introduction

This was an application made by the Public Prosecutor (“the Prosecution”) under s 400 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”) seeking revision of the order made by the learned District Judge on 6 November 2014 offering bail to Yang Yin, the respondent, at the sum of $150,000 with one surety or $75,000 with two sureties.

After hearing the parties on 10 November 2014, I reserved the matter to consider the various submissions made by both parties. On 11 November 2014, I allowed the application and directed that the order granting bail be revoked. I now set out the detailed grounds for my decision.

Background facts

On 31 October 2014, the respondent was charged in the State Courts with 11 counts of falsification of accounts under s 477A of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”).

At a further mention on 5 November 2014, the Prosecution tendered 320 fresh charges under s 477A against the respondent. The charges relate to the respondent’s alleged falsification of receipts when he was a director of Young Music & Dance Studio Pte Ltd.

The respondent is a foreign national and questions arose as to bail.

The principal grounds raised by the Prosecution and put forward in the evidence of the investigating officer before the District Judge and before me included the following: The respondent had been charged with several counts under s 477A of the Penal Code which is a non-bailable offence. In the circumstances it was incumbent on the respondent to discharge the burden of proving that bail was appropriate, rather than on the Prosecution to prove that it was not; The respondent had slender ties to Singapore. Not only was he not a national, his family members were all abroad. He was therefore a flight risk and no material had been put forward to satisfy the court that he was not; It appeared from the evidence that the bail money that was expected to be made available would come not from bailors resident and rooted in Singapore but from the respondent’s family members in China. This, it was said, went against the rule that bailors had to put their own assets at risk and not be put in funds by or on behalf of those seeking bail; It appeared that the respondent had caused a sum of around $500,000 to be transferred to his father’s bank account in China and this fact had not been volunteered by the respondent but only emerged from investigations; If the respondent fled the jurisdiction, it appeared he would have the means to live comfortably in China; and There was reason to believe that the respondent had access to other sources of funds and had not been forthcoming to the investigating officers about his sources of and access to funds.

After hearing the parties’ submissions, the District Judge reserved judgment. On the next day, 6 November 2014, the District Judge granted bail on the terms noted at [1] above.

I should note so as to provide the context to the discussion of the District Judge’s decision in the following section that the respondent had been granted a lasting power of attorney over the property of one Mdm Chung Khin Chun (“Mdm Chung”) including her bank accounts. The respondent has been involved in a civil dispute concerning the validity of the power of attorney and a Mareva injunction had been granted in conjunction with those proceedings.

The decision below

In summary, the District Judge decided to grant bail for the following reasons: The number of charges did not add significantly to the seriousness of the charges. The many false receipts issued by the respondent were to be seen as part of a single composite picture in that these had all been generated by him to give the impression of a thriving business so as to enhance his prospects of obtaining permanent residence in Singapore. The investigating officer had highlighted that a sum of $500,000 had been transferred from an account belonging to Mdm Chung to the respondent’s father. However, it could not be inferred from the mere fact of the transfer that this had taken place without Mdm Chung’s authorisation or that this was in breach of trust. Although the respondent had no roots in Singapore, that did not necessarily prohibit him from being admitted to bail as otherwise all foreigners in Singapore once charged would not be admitted to bail. The respondent had good reasons to stay in Singapore. In particular, he would wish to contest the ongoing civil litigation and also to avail himself of the opportunity to free his assets from the Mareva injunction.

The District Judge also held that he would leave it to the bail centre to assess the suitability of the bailor(s) and appeared to regard it as immaterial that the bail money might emanate from abroad. Bail was granted at $150,000 with one surety or $75,000 with two sureties with the following additional conditions: The sureties must be Singaporeans; The respondent must surrender any travel document in his possession; and The respondent must report to the investigating officer daily at 10:00am.

My decision The respondent’s preliminary objection

It may be noted that the Prosecution brought an application for revision rather than an appeal against the decision of the District Judge. Counsel for the respondent, Mr Wee Pan Lee (“Mr Wee”), first raised a procedural objection to the Prosecution’s application for criminal revision under s 400 of the CPC. Mr Wee submitted that an application for criminal revision could only be brought in a narrow band of cases. In support of this submission he relied on s 400 of the CPC which provides:

Power to call for records of State Courts 400.—(1) Subject to this section and section 401, the High Court may, on its own motion or on the application of a State Court, the Public Prosecutor or the accused in any proceedings, call for and examine the record of any criminal proceeding before any State Court to satisfy itself as to the correctness, legality or propriety of any judgment, sentence or order recorded or passed and as to the regularity of those proceedings.

(2) No application may be made by any party under this section in relation to any judgment, sentence or order which he could have appealed against but had failed to do so in accordance with the law unless the application is made — (a) against a failure by a court to impose the mandatory minimum sentence or any other sentence required by written law; or (b) against a sentence imposed by a court which the court is not competent to impose.

Mr Wee relied on s 400(2) and argued that the s 400 procedure was not available to the Prosecution because it could have appealed against the District Judge’s order, and the present application did not fall within the scope of the exceptions stipulated in ss 400(2)(a) and 400(2)(b) of the CPC. Mr Wee contended that the Prosecution could have appealed against the decision of the District Judge in accordance with ss 374(1) and 380 of the CPC which state:

When appeal may be made 374.—(1) An appeal against any judgment, sentence or order of a court may only be made as provided for by this Code or by any other written law.

…

Appeal specially allowed in certain cases 380.—(1) The appellate court may, on the application of any person debarred from appealing for non-compliance with any provision of this Code, permit him to appeal against any judgment, sentence or order if it considers it to be in the interests of justice, subject to such terms and conditions as the court thinks fit.

(2) The appellate court may, on the application of the accused or his advocate, or the Public Prosecutor, permit an appeal to proceed to hearing without the grounds of decision, if the court considers it to be in the interest of justice and for reasons beyond the control of either party, subject to such terms and conditions as the court thinks fit.

According to Mr Wee, the decision of the State Court to grant bail in the sum of $150,000 was an order within the meaning of s 374(1) of the CPC and was therefore appealable.

I did not agree that the District Judge’s order was an order that could be appealed against. Section 377(1) of the CPC elaborates on the basis for appeal in the following terms:

Procedure for appeal 377.—(1) Subject to sections 374, 375 and 376, a person who is not satisfied with any judgment, sentence or order of a trial court in a criminal case or matter to which he is a party may appeal to the appellate court against that judgment, sentence or order in respect of any error in law or in fact, or in an appeal against sentence, on the ground that the sentence imposed is manifestly excessive or manifestly inadequate.

[emphasis added]

The Court of Appeal in Mohamed Razip and others v Public Prosecutor [1987] SLR(R) 525 (“Mohamed Razip”) considered the meaning and effect of the words “judgment, sentence or order” in s 247 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“the 1985 CPC”), which is the predecessor provision of s 377(1) of the CPC. The court concluded in that case that a bail order was not a judgment, sentence or order within the meaning of the provision (at [18]): 18 … We are of the view that an order made on a bail application by a Subordinate Court does not come within the meaning of the words “any judgment, sentence or order pronounced by any district court or magistrate’s court in a criminal case or matter” contained in s 247 of the Criminal Procedure Code. It is certainly not a judgment or sentence, and neither is it an “order”.

The court then cited the decision of Whitton J in Gng Eng Hwoo v Regina [1954] MLJ 256 which concluded that an order in relation to the ownership of a boat lacked the quality of finality necessary to come within the meaning of the word “order” appearing in a provision similar in terms to s 241 of the 1985 CPC. This provision is similar to s 374(1) of the...