Public Prosecutor v Pang Chie Wei and other matters

• Court: Court of Three Judges (Singapore)
• Judge: Sundaresh Menon CJ
• Judgment Date: 01 November 2021
• Neutral Citation: [2021] SGCA 101
• Citation: [2021] SGCA 101
• Hearing Date: 05 August 2021
• Docket Number: Criminal Motions Nos 11, 12, 13 and 14 of 2020
• Published date: 04 November 2021
• Plaintiff Counsel: Ng Yong Kiat Francis SC and Wong Woon Kwong (Attorney-General's Chambers)
• Defendant Counsel: Cheong Aik Chye (A C Cheong & Co),A Revi Shanker s/o K Annamalai (ARShanker Law Chambers),The respondent in CA/CM 13/2020 in person,Gill Amarick Singh (Amarick Gill LLC)
• Subject Matter: Criminal Procedure and Sentencing,Reopening concluded decisions,Threshold

Sundaresh Menon CJ (delivering the grounds of decision of the court): Introduction

The desire to do justice is at the heart of the legal process. In the context of criminal justice, that objective is commonly understood to mean the proper adjudication of guilt and the determination of truth. Yet, as we observed in Kho Jabing v Public Prosecutor [2016] 3 SLR 135 (“Kho Jabing”) at [47], we must never lose sight of another equally important function of justice, which is the attainment of finality. After all, to permit “an endless repetition of inquiry into facts and law in a vain search for ultimate certitude implies a lack of confidence about the possibilities of justice that cannot but war with the effectiveness of the underlying substantive commands” (see Paul M Bator, “Finality in Criminal Law and Federal Habeas Corpus for State Prisoners” (1963) 76(3) Harv L Rev 441 (“Bator”) at 452). There must therefore come a point where a concluded court decision may legitimately be left in a state of repose, unencumbered by the prospect of further judicial review (see Mackey v United States 401 US 667 (1971) (“Mackey”) at 683).

The balance between the search for truth and the attainment of finality is one which every legal system will inevitably have to negotiate. A system that leaves no room for corrigibility risks the ultimate injustice of condemning the innocent and allowing the guilty to go unpunished. On the other hand, a system that caters to a perpetual and unreasoned anxiety of error would do violence to the search for closure that the pursuit of every legal contest awaits (see Kho Jabing at [50]). In Kho Jabing, we examined the balance between truth and finality in the context of legal arguments that were belatedly raised after the appellant had been convicted and his appeal, dismissed. The applications before us raised the related but distinct issue of when a court may reopen an earlier decision on the basis of subsequent changes in the law. We therefore considered that these applications presented an opportunity to clarify the conditions under which such a change can form the basis for reopening a previous court decision that was properly made in accordance with the law at the material time, a subject which has hitherto not been considered in our jurisprudence. In this judgment, when we refer to a subsequent change in the law, we mean one that is effected by a judicial decision, unless otherwise indicated.

Background facts

We begin by setting out the relevant background facts. The backdrop to these applications is our decision in Saravanan Chandaram v Public Prosecutor and another matter [2020] 2 SLR 95 (“Saravanan”), in which we considered the permissibility of the Prosecution’s “dual charging practice”. Under the “dual charging practice”, where a single compressed block of cannabis-related plant material was certified by the Health Sciences Authority as containing (a) cannabis and (b) fragmented vegetable matter containing cannabinol (“CBN”) and tetrahydrocannabinol (“THC”), the Prosecution would consider preferring both (a) a charge in respect of the portion certified to consist purely of cannabis, and (b) a charge in respect of the portion consisting of fragmented vegetable matter that had been found to contain CBN and THC. We held in Saravanan (at [197] and [198(c)]) that the Prosecution’s “dual charging practice” was impermissible. More recently, we reaffirmed the impermissibility of the Prosecution’s “dual charging practice” in Abdul Karim bin Mohamed Kuppai Khan v Public Prosecutor [2021] 1 SLR 1390 (“Abdul Karim”) at [36].

The respondents in these applications had been charged with and convicted pursuant to the Prosecution’s “dual charging practice”. Following our decision in Saravanan, the Prosecution filed these applications inviting us to review our previous decisions in relation to the respondents, set aside the cannabis mixture charges that had been preferred against them in accordance with the “dual charging practice” and consequently reconsider the sentences imposed on them. However, by way of a letter dated 15 February 2021 (“the PP’s Letter”), the Prosecution sought leave to withdraw all four applications. The Prosecution took the stance that Saravanan did not automatically apply to the respondents as their cases pre-dated Saravanan and had been decided in accordance with the prevailing law then.

After hearing the parties, we granted the Prosecution leave to withdraw the applications. We saw no juridical basis for refusing to allow the Prosecution to do so and the respondents did not contend otherwise. The Public Prosecutor has carriage of prosecutions and is constitutionally vested with prosecutorial power, exercisable at his discretion, in the conduct of any criminal proceedings (see Art 35(8) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”)). That discretion necessarily extends to the continuance or withdrawal of the applications before us. There was also no suggestion that the withdrawal of the applications would be tantamount to an abuse of either the judicial process or prosecutorial power.

The Prosecution’s withdrawal of the applications nevertheless leaves open the possibility of the respondents filing their own applications to seek to reopen their convictions and/or sentences. We therefore indicated to the parties that we would issue these written grounds to elaborate on the applicable threshold for the court to revisit its prior disposal of a case where there has been a change in the law. We also highlighted that, following our review of the authorities, the threshold was that of substantial injustice and would not easily be met. It is to this discussion that we now turn.

The finality of court decisions

The starting position of our analysis is that every judgment of the court is final. This proposition applies with stronger force to decisions in concluded appeals. As we explained in Kho Jabing at [49], “[a]s we venture further along the criminal process, we must give greater presumptive weight to the veracity of the findings already made and accord greater prominence to the principle of finality”. In the same vein, we recently observed in Iskandar bin Rahmat v Public Prosecutor [2021] SGCA 89 at [2] that “the issuance of a final judgment by this [c]ourt brings an end to the legal process available to parties in relation to a criminal conviction or sentence”.

Given that concluded criminal matters, and particularly concluded criminal appeals, are final and cannot be reopened on their merits, it follows that a matter ordinarily cannot be reopened just because there has been a subsequent change in the law. Any reconsideration of a concluded matter based on a subsequent change in the law is necessarily concerned with the merits of that matter, which the court typically has neither the jurisdiction nor power to re-assess (see Koh Zhan Quan Tony v Public Prosecutor and another motion [2006] 2 SLR(R) 830 (“Koh Tony”) at [29]). The judicial reluctance to undo decisions that were properly made in accordance with the law as it was then understood is grounded principally in respect for the finality of judgments, which is the principle that litigation must at some definite point be brought to an end (see FTC v Minneapolis-Honeywell Regulatory Co 344 US 206 (1952) at 213). Once the trial and appellate processes have run their course, a presumption of finality and legality attaches to the conviction and sentence (see Barefoot v Estelle 463 US 880 (1983) at 887).

The principle of finality has been described, perhaps unfairly, in some quarters as the notion that “in most matters, it is more important that the applicable rule of law be settled than that it be settled right” (see Burnet v Coronado Oil & Gas Co 285 US 393 (1932) at 406). To those who subscribe to such a view, the principle of finality may appear to be at odds with the interests of justice; specifically, the correction of error and the search for truth. In our view, however, there are three main reasons why the principle of finality is not only compatible with, but also integral to, justice.

First, respect for finality maximises scarce judicial resources by channelling them towards more productive ends. Applications “litigating the validity under present law of criminal convictions that were perfectly free from error when made final” take up valuable resources which should instead go towards the disposal of cases being heard for the first time (see Mackey at 691). In contrast, the subjects of concluded criminal appeals have had two opportunities, before the trial and appellate courts, to defend their positions. Attempts to reopen concluded criminal appeals are wasteful because they essentially afford litigants a third bite of the cherry (see Ryan W Scott, “In Defense of the Finality of Criminal Sentences on Collateral Review” (2014) 4(1) Wake Forest Journal of Law and Policy 179 (“Scott”) at 185–186). This is not merely a logistical concern but one with profound implications for access to justice by the large number of other litigants.

Second, the finality of court judgments is crucial to the effectiveness of the deterrent and rehabilitative functions of the criminal justice system. It is essential to the deterrent function of the criminal law that “we be able to say that one violating [the] law will swiftly and certainly become subject to … just punishment” (see Bator at 452; see also Teague v Lane 489 US 288 (1989) at 309). The endless reopening of concluded criminal appeals is also injurious to the rehabilitation of offenders. After all, rehabilitation begins with an offender’s acceptance that he has been justly sanctioned and that he stands in need of re-education. The rehabilitative process cannot possibly begin if “the cardinal moral predicate is missing, if society itself continuously tells the [offender] that he may not be...