Public Prosecutor v Pong Tek Yin

• Jurisdiction: Singapore
• Judge: L P Thean J
• Judgment Date: 31 May 1990
• Neutral Citation: [1990] SGHC 39
• Docket Number: Criminal Revision No 1 of 1990
• Date: 31 May 1990
• Published date: 19 September 2003
• Year: 1990
• Plaintiff Counsel: Yang Ing Loong (Deputy Public Prosecutor)
• Citation: [1990] SGHC 39
• Defendant Counsel: Richard Ang (Ang JW & Partners)
• Court: High Court (Singapore)
• Subject Matter: ss 3, 5 & 6 Women's Charter (Cap 47, 1970) Ed),Words and Phrases,Bigamy,Whether extended by Women's Charter,Criminal Procedure Code (Cap 68) s 9,Family Law,s 494 Penal Code (Cap 224),s 1 Supreme Court of Judicature Act (Cap 322),Extra-territoriality Penal Code,'Marries'

Cur Adv Vult

This is a criminal revision which arises out of the conviction of one Pong Tek Yin alias Fong Foot Ting (the accused) of a charge of bigamy punishable under s 494 of the Penal Code (Cap 224) in DAC 2480 of 1989 before the district court. On 4 March 1989 before the district court, the accused pleaded guilty to the following charge:

You, Pong Tek Yin (Fong Foot Ting)

M/49 Yrs NRIC No: 1853434-G

are charged that you, on or about 1 June 1970, at the Registry of Marriages, Perak, Malaysia, married one Mdm Lim Nya Hoo when your wife Mdm Lim Seh Moi was still living and you have thereby committed an offence punishable under se 494 of the Penal Code (Cap 224).

The statement of facts admitted by the accused in relation to the charge is as follows:

Complainant is Mrs Chua-Quek Soo Noi attached to the Registry of Citizens, Singapore.

2 Accused is one: Pong Tek Yin @ Fong Foot Ting m/49 yrs NRIC No 1853434-G Blk 199, Boon Lay Drive #15-61 (2264).

(3) In her letter A/F 810505 (G) dated 17 March 1988, complainant reported that the accused had contracted two marriages.

(4) Investigations revealed that the accused first contracted a customary marriage in accordance with the Chinese customary rites with Mdm Lim Seh Moi sometime in 1964 in Kuala Lumpur, Malaysia. By this marriage, they have five children.

(5) Whilst his first marriage was still subsisting, the accused contracted another customary marriage with Mdm Lim Nya Hoo, NRIC No 4160219-FOM, on 10 May 1975. Their marriage was re-registered at the Registry of Marriages, Perak, Malaysia, on 1 June 1978 vide Marriage Certificate No 160/78. By this union, they have two children.

6 Accused`s second marriage is therefore bigamous, as at the time of his second marriage, his first marriage with Mdm Lim Seh Moi was still subsisting and has not been dissolved.

(7) Accused is charged accordingly.

The accused was convicted and sentenced by the learned district judge to a term of one day`s imprisonment and a fine of $900, and in default of payment a term of 45 days` imprisonment. He served the nominal term of imprisonment and paid the fine. At that time he was not represented by counsel.

Before me further facts were produced, which were not disputed. They are as follows. The accused was a Malaysian citizen, and resided in Malaysia. In 1964 he married one Lim Seh Moi, also a Malaysian citizen, in Malaysia according to Chinese customary rites, and five children were born out of this union. He first came to Singapore to work in 1970; he worked as a labourer in a shipyard. In 1972 he went back to Malaysia, and disputes between him and his wife arose. As a result, he left her in 1974. It is not clear whether at that time he was still working in Singapore, or whether only after he had left her did he return to Singapore to work. In any case, in the same year, he met one Lim Nya Hoo, also a Malaysian citizen, in Singapore. On 10 May 1975, the accused went through a Chinese customary marriage with Lim Nya Hoo (1975 marriage) in Taiping in the state of Perak, and subsequently began cohabitation with her in Singapore. Two children were born out of this marriage. On 1 June 1978, the accused and Lim Nya Hoo went through a civil marriage (1978 marriage) before the Registrar of Marriages in Perak under the Civil Marriage Ordinance 1952, then in force in Malaysia. In this respect, the statement of facts, which said that the parties registered their marriage at the Registry of Marriages in Perak, is not correct. According to the certified true copy of the marriage certificate, their marriage on 1 June 1978 was solemnized by the Registrar of Marriages in accordance with the Civil Marriage Ordinance 1952; it was not simply a registration of their 1975 marriage under the Registration of Marriage Ordinance 1952. In other words, they purported to contract a civil marriage under the Civil Marriage Ordinance 1952. I say `purported` advisedly, because under s 30(b) of that Ordinance, a marriage purported to be solemnized thereunder is void, if either of the parties was at the date of such marriage married under any law, religion, custom or usage to any person other than the other party; that precisely was what happened in this case: the accused was, at that date, married to Lim Seh Moi under Chinese customary rites, and hence the 1978 marriage is by virtue of that section void.

In 1979, the accused applied for and obtained a permanent resident status in Singapore, and on 6 October 1987 he acquired Singapore citizenship. In 1988, the accused applied for Singapore citizenship for his second wife, Lim Nya Hoo, and it was in the course of processing this application that the 1978 marriage surfaced. In consequence, a complaint was lodged by an officer of the Registry of Citizens, and criminal proceedings were initiated against the accused which culminated in his conviction.

Before me, counsel for the accused mounted a two-pronged attack on the conviction. First, he submitted that a Singapore court has no jurisdiction to try the act alleged to be an offence, as the act was committed outside Singapore, assuming that such an act is an offence punishable under s 494 of the Penal Code. Secondly, and independently of the first argument, he submitted that s 494 of the Penal Code has no extra-territorial operation, and as the act alleged to be an offence was committed outside Singapore, it is not punishable under s 494. As will become apparent, both arguments are closely connected; the first hinges on the second, and I therefore propose to consider them jointly as one.

As a starting point, counsel referred me to s 15 of the Supreme Court of judicature Act (Cap 322, 1985 Ed) which provides:

(1) The High Court shall have jurisdiction to try all offences committed

(a) within Singapore;

(b) on the high seas on board any ship or aircraft registered in Singapore;

(c) by any person who is a citizen of Singapore on the high seas or on any aircraft;

(d) by any person on the high seas where the offence is piracy by the law of nations; and

(e) by any person within or outside Singapore where the offence is punishable under and by virtue of the provisions of the Hijacking and Protection of Aircraft Act

(2) The High Court may pass any sentence allowed by law.

Counsel submitted that on the basis of this section the High Court has no jurisdiction to try the act alleged to be an offence, as the act was committed outside Singapore, and a fortiori the district court also has no jurisdiction. He relied on two Malaysian authorities: PP v Nai Prasit [1961] MLJ 62 and PP v Rajappan [1986] 1 MLJ 152 . In the first case the accused was convicted of bigamy punishable under s 494 of the Penal Code (FMS Cap 45); the second marriage on which the charge was founded took place in Australia. Upon a criminal revision, Thomson CJ held that the court had no jurisdiction to try the offence and the proceedings were a nullity, and accordingly the conviction was set aside. He said, at p 62:

The actual act of bigamy, that is to say, the second marriage which was alleged to be void by reason of the wife of the first marriage being still alive, took place in the State of Victoria in the Commonwealth of Australia. In the circumstances the sessions court had no jurisdiction to try the case. The territorial jurisdiction of the sessions court is set out in s 59 of the Courts Ordinance and s 9 of the Criminal Procedure Code and except in the case of certain offences committed on the High Seas (that is outside territorial waters) the court has no jurisdiction to try any offence committed outside the Federation.

In the present case, therefore, the proceedings were a nullity and the conviction of the accused is accordingly set aside.

Thomson CJ arrived at the conclusion purely on the basis that the Courts Ordinance and the Criminal Procedure Code did not confer jurisdiction on the court to try the offence. He did not consider and decide whether s 494 of the Penal Code has extra-territorial operation, ie whether the bigamous marriage committed abroad is punishable under s 494.

That decision was approved by the Supreme Court of Malaysia in the Rajappan case. In that case the accused was married according to Hindu customs in India in 1947. In 1954 the accused, his wife and...