Rajendar Prasad Rai and another v Public Prosecutor and another matter

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 31 July 2017
• Neutral Citation: [2017] SGHC 187
• Citation: [2017] SGHC 187
• Defendant Counsel: Tan Ken Hwee, Zhuo Wenzhao, Navindraram Naidu and Tan Zhongshan (Attorney-General's Chambers)
• Published date: 03 August 2017
• Hearing Date: 13 March 2017,14 March 2017
• Plaintiff Counsel: N Sreenivasan SC and Lim Wei Liang Jason (Straits Law Practice LLC)
• Date: 31 July 2017
• Court: High Court (Singapore)
• Docket Number: Criminal Motion Nos 71 and 72 of 2016
• Subject Matter: Temporary Stay Order,Disposal of Property,Criminal Procedure and Sentencing

Sundaresh Menon CJ: Introduction

After I delivered my judgment in Rajendar Prasad Rai and another v Public Prosecutor and another matter [2017] SGHC 49 (“the Judgment”), the Prosecution applied for a temporary stay of the orders I had made, pending an application that it intended to make for a restraint order under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) (“CDSA”). I had ordered that certain funds, which had been seized by the Corrupt Practices Investigation Bureau (“CPIB”), be released to the applicants. As to this, the Prosecution’s primary concern was over the risk of dissipation in that it might not be able to attach those funds even if an order were subsequently made under the CDSA. The background facts leading to the orders I made are set out in the Judgment at [2]–[11], and terms defined there are used here in the same way unless I state otherwise.

The Prosecution’s application raised the following issues: whether I had the power to stay the orders I had made for the applicants’ funds to be released or to suspend the operation of those orders pending the filing of proceedings by the Prosecution under the CDSA; and if I had such power, whether it ought to be exercised. The Prosecution indicated that the application raised novel points of law and there were no direct authorities on the subject. I therefore granted a short adjournment for further argument.

The next day, I heard the parties’ further submissions. In the Prosecution’s submission, the power of the court to temporarily stay the effects of its order was to be found in s 390(2) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC 2012”). The Prosecution submitted that I ought to exercise my power under that provision, in essence, to prevent dissipation of the seized funds. At the conclusion of the hearing, I dismissed the Prosecution’s application and gave brief reasons for my decision. I now issue these grounds to explain my decision more fully.

Whether the court has the power to stay its orders or suspend their operation The Prosecution’s submissions

The first issue I had to consider was whether it was open to the court as a matter of law to stay its orders or suspend their operation. The present application was made in the course of revisionary proceedings, and the powers of the High Court in that context are set out in s 401 of the CPC 2012. Section 401(2) extends to the High Court in the exercise of its revisionary jurisdiction the powers conferred by s 390 of the CPC 2012, which are the powers of the court when hearing an appeal. Section 390(1)(d), in turn, states that where the proceedings relate to “any other order”, the court may “alter or reverse the order”. This was the provision pursuant to which I had exercised the power to set aside the Magistrate’s Order at the earlier hearing. Section 390(2) of the CPC 2012 then provides that: (2) Nothing in subsection (1) shall be taken to prevent the appellate court from making such other order in the matter as it may think just, and by such order exercise any power which the trial court might have exercised.

Section 390(2) was the critical provision on which the Prosecution sought to rely in the present application. In particular, the Prosecution submitted that the words in s 390(2) of the CPC 2012 are wide enough to permit the court to temporarily stay the effects of its earlier decision.

In its submission, the Prosecution also referred me to the decisions in Li Weiming v Public Prosecutor and other matters [2013] 2 SLR 1227 (“Li Weiming”), Ong Beng Leong v Public Prosecutor [2005] 2 SLR(R) 247 (“Ong Beng Leong”) and Pittis Stavros v Public Prosecutor [2015] 3 SLR 181 (“Pittis Stavros”), which in its view supported its position that the existence of such a power to temporarily stay the effects of the court’s decision was uncontroversial. The common thread running through each of these cases was the recognition that the High Court has the power to stay its own orders pending a possible application for criminal reference, and in some of these cases proceedings had in fact been stayed in such circumstances. This was despite the fact that neither the previous nor the present editions of the Criminal Procedure Code contained an express provision that empowered the court to do so. The Prosecution urged me to find that s 390(2) read with s 401(2) of the CPC 2012 furnished the basis for this.

My decision

After hearing the parties, I rejected the Prosecution’s submission. I did not accept that s 390(2) read with s 401(2) of the CPC 2012 conferred me with a general power to make such orders as I thought just including the power to stay my earlier orders. On the contrary, the power conferred was a limited one that was circumscribed by the terms of s 390(2) itself, and this did not extend to the present situation. Furthermore, I was satisfied that the authorities cited by the Prosecution did not assist its argument, since in each of these cases the court’s power to stay the effects of its decision had been considered in very different contexts.

The ambit of the court’s powers under s 390(2) of the Criminal Procedure Code

I began by analysing s 390(2) of the CPC 2012, which, in my judgment, consists of two distinct limbs. Under the first limb, an appellate court is conferred the power to make any order in the matter as it may think just; while under the second limb, the appellate court may exercise any power that the trial court could have exercised. The Prosecution’s submissions rested on the premise that the two limbs are to be read disjunctively so that the second limb is not to be read as a limitation on the first but each is to be read as independent of the other. On this basis, the first limb of s 390(2) confers upon the court a free-standing power to make any order on appeal that it deems just, and this need not fall within the ambit of the powers which the trial court might have exercised. With respect, this seemed to me to be counterintuitive for at least two reasons: It seemed unnatural to first vest the court with such a wide and general power to do whatever it deemed just and after that, to add a specific jurisdiction that is both narrower in scope and confined to the powers that the trial court has, since the latter would, almost by definition, have already been encompassed within the former; and It seemed improbable that the legislation was intended to confer a general discretion on the appellate court to do whatever it deemed just without regard to the powers that the trial court would have had. To put it another way, it seemed to me counterintuitive that an appellate court would have powers to make orders which the trial court could not have made, when the scope of its review was the proceedings before the trial court, whose decision it was reviewing.

On the other hand, it seemed to me that a more natural reading of the provision supported a conjunctive result. For convenience, I set out again the words of s 390(2):

(2) Nothing in subsection (1) shall be taken to prevent the appellate court from making such other order in the matter as it may think just, and by such order exercise any power which the trial court might have exercised.

[emphasis added in italics and bold italics]

In my judgment, on a true construction of s 390(2), any order the appellate court may make under that provision must be one that was within the power of the trial court to make. This is made plain in my view by the words “and by such order” in the provision, the effect of which is to limit the orders that the appellate court may deem just to those which may be made in the exercise of the trial court’s powers. I therefore rejected the Prosecution’s submission that s 390(2) read with s 401(2) of the CPC 2012 conferred upon me a general power to make any order I thought just on revision. Insofar as the Prosecution wished to rely on these provisions to argue that I had the power to stay my orders in the situation I was presented with, it would have to show that this was a power which the trial court could have exercised.

The case authorities relied on by the Prosecution

I now turn to the authorities, to which the Prosecution referred in its submissions, and explain why these were not of assistance. Before examining the facts of each of these cases, I pause to observe that in each of them, the source of the court’s power to stay its orders was not identified even though the courts in question did consider that they were vested with such a power. In my judgment, it becomes evident on examining these authorities that those courts had exercised powers pursuant to particular statutory provisions in the relevant version of the Criminal Procedure Code and that those provisions had no application in the present case.

Li Weiming

I first consider Li Weiming, which was decided in the context of a criminal revision. The petitioners faced charges under the Penal Code (Cap 224, 2008 Rev Ed) and the CDSA. They each brought an application under s 162(b) read with s 169(2) of the Criminal Procedure Code 2010 (Act 15 of 2010) (“CPC 2010”), seeking either a discharge not amounting to an acquittal or an order for further particulars, on the basis that the Prosecution’s summary of facts did not comply with the requirements of the pre-trial criminal case disclosure conference process under s 162 of the CPC 2010. The applications were dismissed by the District Court, albeit with an acknowledgment that valid issues had been raised that should be dealt with by the trial judge. The petitioners then applied to the High Court for a revision of the District Court’s order. The High Court in exercising its revisionary jurisdiction under s 404 of the CPC 2010 granted the applications in part, and ordered the Prosecution to disclose certain information to the petitioners. The Prosecution applied for...