Public Prosecutor v Vang Shuiming

• Jurisdiction: Singapore
• Judge: Kow Keng Siong
• Judgment Date: 04 September 2023
• Neutral Citation: [2023] SGDC 201
• Court: District Court (Singapore)
• Docket Number: DAC 913021 of 2023
• Hearing Date: 30 August 2023
• Citation: [2023] SGDC 201
• Year: 2023
• Plaintiff Counsel: DPPs Foo Shi Hao and Michelle Tay
• Defendant Counsel: Wendell Wong Hin Pkin and Andrew Chua Ruiming (M/s Drew & Napier LLC)
• Subject Matter: Criminal Procedure and Sentencing,Applicable standard of proof when court is asked to remand an accused person for the purpose of investigation,Whether Prosecution is required to tender affidavit evidence to support remand application,Factors to be considered when deciding on remand application,Section 238(3) Criminal Procedure Code 2010,Words and Phrases,"appears","further evidence"
• Published date: 09 September 2023

District Judge Kow Keng Siong: Introduction

Section 238(3) of the Criminal Procedure Code 2010 (“CPC”) empowers a court to remand an accused person for the purpose of investigation. What is the Prosecution’s standard of proof when making an application under s 238(3)? What are the relevant considerations when a court assesses such an application? These issues have arisen in the present case.

On 30 August 2023, the Prosecution tendered four charges under s 54(1)(c) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 (“money laundering charges”) against Vang Shuiming (“Accused”). At the material time, the Accused had already been remanded for 15 days on a charge under s 471 of the Penal Code (Cap 224, 2008 Rev Ed).

After the money laundering charges had been read to the Accused, DPP Foo Shi Hao (“DPP Foo”), who appeared for the Prosecution, applied for the Accused to be further remanded for the purpose of investigation under s 238(3) of the CPC (“remand application”). This application was strongly opposed by the Accused’s counsel, Mr Wendell Wong (“Mr Wong”).

After hearing the parties, I granted the remand application. This judgement sets out the reasons for my decision.

Parties’ submissions

I begin by summarising the parties’ submissions on the remand application.

DPP Foo provided the following reasons for seeking the Accused’s remand: More than $200M worth of assets, including $2.4M in four different bank accounts, had been seized from the Accused. The Commercial Affairs Department (“CAD”) needed to investigate into the sources of these assets and to review data obtained from electronic devices. The Accused’s remand would enable (i) CAD to expeditiously verify with him the information provided by the witnesses, and (ii) the Accused to have a fair opportunity to respond to such information. The Accused is linked to a wanted person whose whereabouts were unknown. If remand is not ordered, there would be a real risk that any further evidence from the Accused might be contaminated through his communications with the wanted person.

Mr Wong provided the following reasons for opposing the remand application. The Prosecution did not provide affidavit evidence to support their grounds for the remand application. Such evidence is needed (i) because the Prosecution cannot give evidence from the Bar and (ii) to enable the Defence to properly respond to the remand application. Thus far, the Accused had denied any wrongdoing in his statements to CAD. The fresh money laundering charges related to funds that were already in the Accused’s bank accounts on the day of his arrest. This suggested that the Prosecution had failed to uncover any evidence during his previous remand from the time of his arrest to the time of the remand application on 30 August 2023. CAD could obtain further evidence from the Accused without remanding him.

Key issues for determination

Given the parties’ submissions, the issues before me are as follows. First, is the Prosecution required to support a remand application under s 238(3) with affidavit evidence? Second, what is the standard of proof to be discharged by the Prosecution when making a remand application? Finally, how is a court to assess the merits of such an application?

Section 238(3)

Section 238(3) of the CPC provides that –

If it appears likely that further evidence may be obtained by a remand, the court may so remand the accused in custody for the purpose of any investigation by a law enforcement agency but not for more than 8 days at a time.

[emphasis added]

The following is clear from a plain reading of s 238(3): A court has the power to remand an accused person for investigation for not more than eight days at a time (“power to remand”), and This power arises “[i]f it appears likely that further evidence may be obtained by a remand”.

Section 238(3) came into force in 2012. It can trace its roots to s 198 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed). The latter provision states that –

198.—(1) If from the absence of a witness or any other reasonable cause it becomes necessary or advisable to do so the court may, by order, postpone the commencement of or adjourn any inquiry or trial on such terms as it thinks fit for such time as it considers reasonable and may, if the accused is not on bail, by a warrant remand the accused in such custody as the court thinks fit.

(2) … (3) …

Explanation—If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence and it appears likely that further evidence may be obtained by a remand this is a reasonable cause for a remand.

[emphasis added]

There is a dearth of litigation and jurisprudence on s 238(3) and the Explanation to s 198. As will be shown in this judgement, this is not surprising given that these provisions are clear and precise.

My decision No requirement for affidavit evidence Text of s 238

I will now turn to Mr Wong’s submission that the Prosecution must provide affidavit evidence regarding their grounds for seeking the Accused’s remand. I am unable to accept this submission for the following reasons.

First, there is no such requirement stipulated in s 238.

In fact, it is evident from s 238(3) that Parliament did not require the element “further evidence may be obtained by a remand” to be proved strictly. Let me elaborate. Under s 238(3), a court may remand an accused person if “it appears likely that further evidence may be obtained by a remand”. The use of the word “appears” in s 238(3) may be contrasted with other provisions in the CPC where the word “proved” is used. See e.g., (i) s 107(2) (power to forfeit bond without sureties), (ii) s 107A(2) and s 107A(3) (power to forfeit bond with sureties), (iii) s 120(b) (power to issue warrant of arrest against a person who fails to comply with a summons to appear), (iv) s 293(1) (power to record evidence in accused person’s absence), as well as (v) s 355(2) and s 359(3) (power to order costs). The fact that s 238(3) uses the word “appears” – and not “proved” – is significant. Under the law, a fact is said to be “proved” only when, after considering the matters before it, a court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists: s 3(3) of the Evidence Act 1893. Put simply, when a provision states that a thing is to be “proved”, this means that there is a need to show that there is “a high degree of probability that a prudent man would act on the assumption that the thing is true”: Pyare lal Bhargava v State of Rajasthan AIR 1963 SC 1094 (“Pyare”). The word “appears”, on the other hand, does not equate to certainty by strict proof. It is synonymous with the word “seems”. The word “appears” is used (1) to suggest that one believes something to be true when one is not certain (Oxford Dictionary online) and (2) “[allows] room for and a reasonable margin or probabilities” (Tengku Dato’ Kamal Ibni Sultan Sir Abu Bakar & Ors v Bursa (M) Securities Bhd and another appeal [2013] 1 MLJ 158 (“Tengku Dato’ Kamal”) at [44] and [50]). The fact that Parliament did not require strict proof is further reinforced by the word “may” in s 238(3) – a court may remand an accused person if “it appears likely that further evidence may be obtained by a remand”.

I should add that the above views do not mean that a court can simply form an opinion that “it appears likely that further evidence may be obtained by a remand” based on a pure conjecture or wild guess: Pyare. The opinion must still be grounded on a reasonable well-founded belief that is based on some circumstances which leads a court to suspect that further evidence may be obtained by a remand: applying the principles in Tengku Dato’ Kamal at [48] and [49], Public Prosecutor v Law Say Seck & Ors [1971] 1 MLJ 199 and Chan Ming Cheng v Public Prosecutor [2002] 3 MLJ 733.

The practice and nature of remand applications

Second, Mr Wong’s submission that there must be affidavit evidence to support remand applications is also inconsistent with how such applications have been dealt with in the State Courts. In practice, the Prosecution does not tender affidavit evidence to support remand applications.

In this regard, I note that in the context of hearings to determine whether an accused person should be allowed to continue to be on bail under s 102(1) and s 103(4) of the CPC, it is well established that such hearings (a) are “interlocutory and tentative in nature”, (b) do not result in a finding of guilt or sentence, and (c) do not require courts to undertake a rigorous fact-finding process: Public Prosecutor v Sollihin bin Anhar [2015] 3 SLR 447 at [25] – [27], Mohamed Razip v Public Prosecutor [1987] SLR(R) 525 at [15]; Muhammad Feroz Khan bin Abdul Kader v Public Prosecutor [2022] SGHC 287 (“Muhammad Feroz Khan”) at [11].

In my view, these same considerations apply to s 238(3) as well. They explain why it is not the practice for affidavit evidence to be tendered to support remand applications. There is no good reason why s 238(3) should be subjected to a higher standard of proof than s 102(1) and s 103(4). This is especially so when these three provisions all concern essentially the same issue (i.e., whether an accused person should be subjected to pre-trial remand) – and do not result in a finding of guilt or innocence.

Public interest

Finally, I reject Mr Wong’s submissions because it is incompatible with public interest to apply strict rules of evidence to remand applications. Let me explain. First, there is typically a need for remand applications to be heard expeditiously – to prevent (i) criminal proceeds from being dissipated, (ii) evidence from disappearing or being corrupted, and (iii)...