Rahimah Bte Mohd Salim v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 11 October 2016
• Neutral Citation: [2016] SGHC 219
• Docket Number: Criminal Revision No 3 of 2016
• Date: 11 October 2016
• Published date: 14 October 2016
• Plaintiff Counsel: Liew Wey-Ren Colin and Niklas Wong See Keat (TSMP Law Corporation)
• Defendant Counsel: Leong Wing Tuck, V Jesudevan and Stephanie Chew (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Hearing Date: 25 May 2016
• Subject Matter: Revision of proceedings,Criminal Procedure and Sentencing

Chao Hick Tin JA: Introduction

Criminal Revision No 3 of 2016 (“CR 3/2016”) is an application brought by the accused person, Rahimah Binte Mohd Salim (“the Petitioner”), who is charged with an offence under s 411 of the Penal Code (Cap 224, 2008 Rev Ed) and an offence under s 47(1)(b) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) (“the Charges”). In the course of the trial in the State Courts, the learned district judge (“the DJ”) made an order (“the Disclosure Order”) under s 235(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”) compelling the Petitioner to produce the following two medical reports from the Institute of Mental Health (“the IMH”) (“the IMH Reports”): a psychiatric report authored by Dr Stephen Phang (“Dr Phang”) (“Dr Phang’s Report”); and a psychiatric report authored by Ms Jackki Yim and Dr Gwee Kenji (“Ms Yim’s Report”). The IMH Reports had been obtained by the Petitioner in contemplation of and for the purpose of claiming trial to and defending the charges brought against her.

The main issue which arises in CR 3/2016 is whether the IMH Reports are protected by litigation privilege and whether the DJ had erred in making the Disclosure Order. The Petitioner argues that the DJ had so erred and that this court should exercise its revisionary jurisdiction to: set aside the Disclosure Order; order that all copies of the IMH Reports be delivered up to the Petitioner by the Prosecution and be struck off the record; and order a retrial on the Charges by any other district judge other than the DJ.

Before setting out my decision and the reasons for my finding, I will briefly set out the background facts and the respective submissions of the parties.

Facts Background facts

The Petitioner faces the charges of dishonestly receiving stolen property and transferring the same to another party.

For the purpose of assisting the Petitioner’s defence, counsel for the Petitioner corresponded with the IMH to obtain a forensic psychiatric report on the Petitioner. This led to the creation of the IMH Reports. The IMH Reports were not obtained as a result of a court motion or on the application of the Prosecution.

The Petitioner decided not to use the IMH Reports and sought an assessment from Dr Lim Yun Chin (“Dr Lim”) and Ms Joanne Toh (“Ms Toh”) of Raffles Hospital. A psychiatric report was produced by Dr Lim (“Dr Lim’s Report”) and a psychological report was produced by Ms Toh (“Ms Toh’s Report”). These reports will be collectively referred to as “the Raffles Reports”. The Petitioner eventually decided to use only Ms Toh’s Report in her defence.

The proceedings

The issue of the Petitioner’s mental state was first brought up on 1 October 2014 when counsel for the Petitioner sought an adjournment at a pre-trial conference (“PTC”) on the basis that the Petitioner was waiting for an IMH appointment. Five months later, counsel sent representations enclosing the Raffles Reports to the Attorney-General’s Chambers on behalf of the Petitioner.

At the following PTC on 22 May 2015, the district judge hearing the PTC was informed that counsel had sent further representations to the Prosecution indicating that the Petitioner was willing to attend at IMH at the Prosecution’s expense on condition that she be assessed by a different doctor who should have no access to her previous medical history with IMH, while reserving her right to exercise litigation privilege over any further medical report that may be produced by IMH.

At the second Criminal Case Disclosure Conference on 24 June 2015, the Prosecution informed the court that IMH had declined to provide a second opinion because it had already rendered an opinion on the Petitioner in the IMH Reports. The Prosecution then asked the Petitioner to disclose the IMH Reports but she refused to do so, citing litigation privilege.

Subsequently, on 11 November 2015, the Prosecution applied under s 235(1) of the CPC for disclosure of the IMH Reports (“the s 235 Application”). Thereafter on 18 April 2016, as part of this application, the Prosecution gave notice of its intention under s 231 of the CPC to adduce an additional witness at the trial (ie, Dr Phang).

The DJ indicated that he preferred to continue with the rest of the trial first and deal with the s 235 Application at an appropriate juncture. Dr Phang was called to the witness stand on 21 April 2016 and he gave evidence on IMH’s policies and processes when assessing patients who wished to obtain a psychiatric assessment from any of its medical professionals. Dr Phang testified that before any forensic psychiatric assessment is undertaken, the subject would be cautioned that whatever was revealed in the course of the assessment would not be confidential, could be to the subject’s disadvantage and could also be produced in court as evidence. He further testified that the psychiatric assessment would not be proceeded with unless the subject understood and agreed with the caution.

The DJ then decided to proceed with an ancillary hearing on the same day (ie, 21 April 2016), pursuant to s 279 of the CPC, to decide the s 235 Application. The issue considered in the ancillary hearing was, presuming that the IMH Reports were subject to litigation privilege, whether there had been a waiver of such privilege. At the ancillary hearing, Dr Phang testified that he had issued a caution along the following lines to the Petitioner:

This is a forensic psychiatric assessment therefore, by definition, whatever you tell me has to be recorded down. And whatever I record down may be subsequently produced in Court during your trial. So whatever you tell me is not confidential.

The following evidence was also given by Dr Phang: He had ascertained that the Petitioner understood and agreed to his caution at the commencement of the session, both by verbal indication and gestures. He assessed that the Petitioner understood English and therefore an interpreter was not necessary. While the IMH Reports were labelled “confidential”, the confidentiality applied to the rest of the world but not in respect of the trial proceedings. He would always inform his patients that what they told him could be used in court in evidence against them regardless of who had made the request for the report. His clinical notes expressly reflected that he had “explained nature and purpose of psyche assessment, including no-confidentiality issue”.

At the ancillary hearing, after Dr Phang had given his evidence, the Petitioner was asked whether she wished to take the stand. She declined to give evidence on this issue. The DJ eventually found that there was sufficient evidence to indicate a waiver of privilege and he ordered her to produce the IMH Reports to the Prosecution.

Immediately after the DJ rendered his decision, counsel for the Petitioner requested the Disclosure Order to be stayed so that a criminal revision could be brought before the High Court. This was rejected by the DJ. The Defence was therefore compelled to disclose the IMH Reports to the Prosecution.

The trial then proceeded with Dr Phang taking the stand and evidence was led from him as to the contents of the IMH Reports with questions put to him regarding the same.

On 25 April 2016, the Petitioner filed her application for the present criminal revision (ie, CR 3/2016). As part of this application, the Petitioner also sought a stay of the proceedings before the DJ. I granted this application on 29 April 2016.

The Petitioner’s case

The Petitioner argues first that the IMH Reports were protected by litigation privilege and therefore could not be ordered to be disclosed pursuant to s 235(1) of the CPC.

Secondly, the Petitioner submits that litigation privilege had not been waived by the Petitioner. She relies on several basis to support this position: Dr Phang’s evidence betrays a wrong and mistaken view of the law of confidentiality and litigation privilege; Dr Phang was mistaken in concluding that because he owed a duty to communicate the truth to the court, the communication between him and the Petitioner was not confidential. The evidence does not evince a loss or waiver of confidentiality. Even if there was a loss of confidentiality, this did not result in a loss or waiver of litigation privilege; there has to be an intentional and deliberate act to waive the legal privilege with complete awareness of the result of such waiver on the part of the Petitioner, which was lacking on the facts of the case. The Petitioner also seeks to rely on additional evidence which she has adduced via an affidavit dated 25 April 2016 (“the Additional Evidence”) which states (at paras 73–76) that her command of the English language would not have allowed her to understand the significance of the caution rendered by Dr Phang to her before the commencement of the assessment. She also asserted that she did not recall what Dr Phang had said to her at the start of the session.

Thirdly, the Petitioner argues that serious injustice has been and will continue to be caused by the Disclosure Order. Because of the Disclosure Order and because Dr Phang is allowed by the DJ to testify as to privileged communications, the Petitioner is being forced to waive or forego litigation privilege in order to defend herself. The Petitioner therefore avers that the court should exercise its revisionary power pursuant to s 400 of the CPC to set aside the Disclosure Order.

Additionally, the Petitioner submits that the court should order the delivery up and striking of all privileged materials from the record. Further, a retrial should be ordered before a different district judge as the privileged material would have had an impact on the DJ.

The Prosecution’s case

The Prosecution submits that there is nothing to suggest that a serious injustice or...