Rajendar Prasad Rai and another v Public Prosecutor and another matter

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 13 March 2017
• Neutral Citation: [2017] SGHC 49
• Plaintiff Counsel: N Sreenivasan SC and Jason Lim (Straits Law Practice LLC)
• Date: 13 March 2017
• Docket Number: Criminal Motion Nos 71 and 72 of 2016
• Hearing Date: 14 February 2017,20 February 2017
• Subject Matter: s 35 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed),Seizure of Property,Criminal Procedure and Sentencing,s 370 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed),Revision of Proceedings,Power to Investigate,Police
• Published date: 17 March 2017
• Defendant Counsel: G Kannan, Zhuo Wenzhao, Navin Naidu, Tan Zhongshan, and Stacey Fernandez (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2017] SGHC 49
• Year: 2017

Sundaresh Menon CJ: Introduction

This is an application by Rajendar Prasad Rai (“the 1st Applicant”) and Gurchandni Kaur Charan Singh (“the 2nd Applicant”) (collectively “the Applicants”) seeking the release pursuant to ss 35(7) and 370(2) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”) of certain property that had earlier been seized or frozen by the authorities sometime in October 2015. The Applicants sought an order setting aside the decision of the court below, which extended the seizure until 30 June 2017; and in the alternative, for the release, pursuant to s 35(7) of the CPC, of certain amounts to meet their reasonable expenses including to pay their legal fees and expenses. I decided, after hearing the parties, to defer the application under s 35(7) of the CPC and instead to consider whether the court below was correct, in the circumstances, to extend the seizure as aforesaid. I now furnish my decision.

Background facts

The 1stApplicant was arrested by officers from the Corrupt Practices Investigation Bureau (“CPIB”) on 26 September 2015. He was subsequently charged with six counts under s 5(b)(i) read with s 29 of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“the PCA offences”). He contested the PCA offences. The trial for the PCA offences is part-heard and currently continuing. It has since emerged that the 1st Applicant is also being investigated for offences under the Corruption, Drug Trafficking and Serious Offences (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) (“the CDSA”), although no further charges have been preferred under the CDSA or otherwise.

By 8 October 2015, all the funds in some ten bank accounts belonging to the Applicants had been seized by the CPIB pursuant to powers conferred by s 35 of the CPC. These bank accounts contained a total of US$2,204.88 and S$556,404.07. It is not clear on the evidence whether the Applicants had any other bank accounts. Caveats were also lodged by the Registrar of the Singapore Land Authority (“the Registrar”) over three of the Applicants’ properties on 5 October 2015 preventing any dealing with the land (“the Caveated Properties”). It is now evident that the Registrar acted pursuant to s 7(1)(b) of the Land Titles Act (Cap 157, 2004 Rev Ed) (“the LTA”). It is also now evident that the Registrar acted on the basis of an intimation or request emanating from the CPIB although the details of this have not been disclosed.

Section 370 of the CPC provides as follows:

Procedure governing seizure of property

370.—(1) If a police officer seizes property which is taken under section 35 or 78, or alleged or suspected to have been stolen, or found under circumstances that lead him to suspect an offence, he must make a report of the seizure to a Magistrate’s Court at the earlier of the following times: (a) when the police officer considers that such property is no longer relevant for the purposes of any investigation, inquiry, trial or other proceeding under this Code; or (b) one year from the date of seizure of the property.

(2) Subject to subsection (3), the Magistrate’s Court must, upon the receipt of such report referred to in subsection (1), make such order as it thinks fit respecting the delivery of the property to the person entitled to the possession of it or, if that person cannot be ascertained, respecting the custody and production of the property.

(3) The Magistrate’s Court must not dispose of any property if there is any pending court proceeding under any written law in relation to the property in respect of which the report referred to in subsection (1) is made, or if it is satisfied that such property is relevant for the purposes of any investigation, inquiry, trial or other proceeding under this Code.

Pursuant to the requirement in s 370(1)(b), the seizure was reported and the parties appeared before the learned District Judge (“the Magistrate”) on 1 November 2016 and again on 21 November 2016 (“the s 370 Hearing”).

At the s 370 Hearing on 1 November 2016, the Prosecution submitted that in relation to three out of the ten bank accounts, the seizure should be extended because they were relevant to investigations into the CDSA offences. Seeking to make good its contention in this regard, the Prosecution led the evidence of the Investigating Officer from the CPIB (“the IO”) who stated, among other things: that “there [is] an ongoing CDSA investigation and these three accounts [are] relevant to [CPIB’s] investigation”; that the CDSA investigations are “separate” from the PCA offences which were then and are still being tried; that the continued seizure of the bank accounts would be relevant to the CDSA investigations; and repeatedly that this was so because the Applicants had amassed a “huge sum of money” and the CPIB needed to establish “whether it [came] from known or unknown sources of income”.

The Prosecution’s position in this connection was supported by two written reports that had been issued by the CPIB dated 21 September 2016 and 14 October 2016 respectively (“the CPIB Reports”). In the first report, the CPIB listed the ten bank accounts that had been seized and asserted that they were relevant and required for investigation into the CDSA offences. In the second report, the CPIB indicated that only three of the ten accounts that had been seized remained relevant to the CDSA offences. It may be noted that pursuant to the second report, the total amount that was released to the Applicants following the release from seizure of the other seven accounts was a modest sum of US$2,204.88 and S$4,680.51.

In my judgment, certain conclusions may be drawn from the evidence that was led from the IO at the hearing, as well as from the CPIB Reports and these are as follows: At all times, the seizure was sought to be justified on the basis that this was required for the purposes of investigation. What is significant is that on the evidence before the Magistrate, the position taken by the Prosecution and the IO was that they were still looking into the matter and were not yet ready to come to any conclusion. At the s 370 Hearing, the IO explained that the CPIB’s investigations into the CDSA offences remained incomplete because the CPIB had not taken a statement from the 1st Applicant for the CDSA offences due to the ongoing trial for the PCA offences. I also note that during the s 370 Hearing, the Prosecution did not seek to justify the seizure on the basis of the risk of dissipation of the funds in the three bank accounts; The investigations, for which the extension of the seizure was sought, were those pertaining to possible offences under the CDSA, which were evidently still being investigated, and not the PCA offences. In a sense this stood to reason: the investigations into the PCA offences must have been completed since they were the subject of the ongoing trial. The continuing investigation into the CDSA offences was also the express basis upon which the CPIB Reports rested; and The central point advanced by the Prosecution as matters stood at the time of the s 370 Hearing was that the CPIB was not yet satisfied as to whether the sums of money amassed by the Applicants could be explained on the basis of their known legitimate sources of wealth.

Faced with these considerations, the Applicants’ counsel, Mr N Sreenivasan SC (“Mr Sreenivasan”), mounted a robust challenge against any extension of the seizure. The centrepiece of that challenge may be summarised in his contentions that: By the time of the s 370 Hearing, it was incumbent on the Prosecution to explain to the Magistrate the basis upon which it sought to extend the seizure. This was so because it was in turn incumbent on the Magistrate to consider whether the extension was justified. It was only upon considering the reasons and the basis for the extension including, at least in general terms, the matters that were being investigated, that the Magistrate could apply her mind to whether in the circumstances, the continued seizure was relevant to such investigations and could therefore be justified. The court could not reasonably be so satisfied in the present circumstances because the Prosecution had not disclosed anything in relation to the offences that were being investigated beyond identifying s 47 of the CDSA as the possibly relevant provision.

On 21 November 2016, the Magistrate concluded that the three remaining bank accounts remained relevant to the CPIB’s investigations into possible offences under s 47 of the CDSA. She therefore extended the seizure of the three bank accounts until the next court review which was scheduled to be on or before 30 June 2017 (“the Magistrate’s Order”). The three bank accounts contain a total of S$551,723.56 (“the Seized Funds”). As for the Caveated Properties, she held that as the caveats had been extended by the Registrar in his own capacity, whether or not this was motivated by the request of the CPIB, it did not fall to be dealt with by her in the context of the s 370 Hearing.

On 2 December 2016, the Applicants filed CM 71/2016 and CM 72/2016, seeking the release of the Seized Funds and the Caveated Properties.

The parties’ submissions before the High Court

The parties appeared before me on 14 February 2017 and at the end of the hearing, I posed some questions. They then appeared before me again on 20 February 2017, at which time, among other things, they addressed the questions I had posed.

The Applicants were essentially making an application to the High Court’s revisionary jurisdiction. They sought to set aside the Magistrate’s Order, arguing that she had not appropriately exercised her discretion under s 370 of the CPC.

The Applicants submitted that the Seized Funds and the Caveated Properties should be released because the CPIB and the Prosecution had not established at the s 370 Hearing that these remain relevant to the...