Re Letter of Request from the Court of New South Wales for the Prosecution of Peter Bazos (Deposition Proceedings)

• Jurisdiction: Singapore
• Judge: Chan Sek Keong J
• Judgment Date: 15 May 1989
• Neutral Citation: [1989] SGHC 49
• Docket Number: Originating Motion No 132 of 1988
• Date: 15 May 1989
• Published date: 19 September 2003
• Year: 1989
• Plaintiff Counsel: Tan Woon Tiang
• Citation: [1989] SGHC 49
• Defendant Counsel: A Govindarajalu and Low Chai Chong (Rodyk & Davidson),Fong Kwok Jen and Tan Chee Meng
• Court: High Court (Singapore)
• Subject Matter: Appointment by senior district judge of another district judge to take such evidence,Whether delegation ultra vires,Taking and receiving of evidence,Whether Australia 'foreign state' under the Act,Whether minister has power to issue authorisation,Criminal Procedure and Sentencing,ss 43(1) & 46 Extradition Act 1968,Minister issuing authorisation to senior district judge to take such evidence,Letter of request from foreign court for evidence to be taken and documents to be received in evidence,Extradition

Cur Adv Vult

This is an application by Elite Wood Products (Australia) Pty Ltd and Peter Bazos (collectively called the applicants) for an order of certiorari to quash the authorization of the Minister of Law (the Minister) given in writing on 23 May 1988 (the authorization) in exercise of his power under s 43(1) of the Extradition Act 1968 (the 1968 Act). The authorization was in the following terms:

The Extradition Act (Cap 103)

Authorization under s 43(1)

The Senior District judge

Subordinate Courts

Upper Cross Street

Singapore 0105

Whereas the attached letter of request dated 8 April 1988 was received from the first assistant secretary, Criminal Law and Law Enforcement Division, Attorney General`s Department, Canberra, Australia, for the evidence of certain persons to be taken and particularly, for certain documents now situate in the Republic of Singapore to be received in evidence.

And whereas the evidence requested is for the purposes of a criminal matter pending before the local court of New South Wales which is not a matter relating to offences which are, by their nature or by reason of the circumstances in which they were alleged to have been committed, offences of a political character.

Now therefore I, pursuant to s 43(1) of the Extradition Act (Cap 103) thereby authorize you or such other district judge or magistrate as you may nominate to take the evidence of the said witnesses as referred to in the letter of request and thereafter to submit the certified notes of the evidence and the documents received in evidence to me. [Emphasis added.]

Dated Singapore 23 May 1988

(Sgd) EW Barker

Minister of Law

Upon receipt of the authorization, the senior district judge himself did not proceed to take the evidence but, acting under its terms, appointed another district judge to take the evidence of the witnesses named in the letter of request, which evidence was required by the Australian government in connection with the prosecution in Australia of the applicants for certain offences under the Commonwealth Crimes Act 1914 and for forgery of documents deliverable to the Commonwealth.

The applicants have challenged the validity of the authorization on two main grounds: (1) the Minister did not have any power to make the authorization under s 43(1) of the Extradition Act 1968; and (2) if he did, he exceeded his power by delegating it to the senior district judge. The senior state counsel representing the Minister and counsel for the Commonwealth of Australia contend that the Minister had the power and that it was exercised properly.

The rival contentions on the first point concern the extent of the power of the Minister under s 43 of the 1968 Act. To determine which contention is correct, it is necessary to trace the legislative history of Parts II, III and IV of the 1968 Act and also s 43 as they originated from different sources of legislation for different purposes.

Extradition between Singapore and Commonwealth countries

Singapore was a British colony until 15 September 1963 when it became independent as a constituent state within the Federation of Malaysia. As a British colony, Singapore`s arrangements relating to the surrender of fugitive offenders with other parts of the British Possessions (which expression will be used to describe Her Britannic Majesty`s Dominions in its pre-1931 sense) were settled by the Imperial Parliament under the Fugitive Offenders Act 1881 (the 1881 Act). Both Australia and the Straits Settlements were British Possessions in 1881.

The scheme of the 1881 Act has been adequately summarized by Thompson LP in PP v Anthony Wee Boon Chye [1965] 1 MLJ 189 where the Federal Court of Malaysia in an appeal from the High Court of Singapore held that the 1881 Act and the Order in Council of 2 January 1918 (which grouped together certain British Possessions including British India, Ceylon, the Straits Settlements, the Federation of Malay States and Hong Kong) remained as part of the existing law of Singapore on 15 September 1963 even though Singapore ceased, politically, to be a British possession on that day. The court held that the expression `British Possessions` in the 1881 Act must be given a geographical meaning drained of any content implying any political relationship between the United Kingdom and Singapore. The decision in Anthony Wee `s case was followed by the Singapore Court of Appeal in Ng Sui Nam v Butterworth & Co (Publishers) [1987] 2 MLJ 5 in relation to another Imperial statute, viz the Copyright Act 1914. The 1881 Act contained no provision for the taking of evidence of witnesses in one British Possession for use in any judicial proceedings in another British Possession.

Extradition between Singapore and a foreign state

Similarly, extradition arrangements between Singapore as a British colony and any foreign state were settled by the Imperial Parliament under the Extradition Acts of 1870 to 1935 (the 1870-1935 Acts). The 1870 Act was extended to the Straits Settlements pursuant to s 17 thereof by Order in Council dated 11 July 1877. In general, the scheme of the 1870 Act was similar to that of the 1881 Act in that it only applied in relation to certain specified offences, except that in the 1870 Act there was no right of extradition for offences of a political nature. In the 1870 Act, the expression `foreign state` meant any sovereign state other than the United Kingdom and its possessions, ie the British Possessions.

Taking of evidence for criminal proceedings in foreign courts

The first Imperial statute which made it possible for the taking of evidence in the United Kingdom or any part of the British Possessions for criminal proceedings in the courts and tribunals of a foreign country (ie other than the United Kingdom and the British Possessions) was the 1870 Act which by s 24 extended the operation of the Foreign Tribunals Act 1856 (the 1856 Act) to such proceedings. Section 24 provided as follows:

The testimony of any witness may be obtained in relation to any criminal matter pending in any court or tribunal in a foreign state in like manner as it may be obtained in relation to any civil matter under the Foreign Tribunals Evidence Act 1856, and all the provisions of that Act shall be construed as if the term civil matter included a criminal matter, and the term cause included a proceeding against a criminal: Provided that nothing in this section shall apply in the case of any criminal matter of a political character.

The object of the 1856 Act was to afford facilities for taking evidence in British Possessions in relation to civil and commercial matters only. For this purpose, the 1856 Act authorized the judges of certain superior courts in the United Kingdom and any of the British Possessions, on application being made to them on behalf of any foreign court `before which any civil or commercial matter is pending`, to attend before, and to be examined by, such persons as shall be named in the order, and the examiners were empowered to administer all necessary oaths.

The power conferred by s 24 of the 1870 Act was subsequently extended by s 5 of the Extradition Act 1873: s 5 provided for the taking of evidence in the United Kingdom and any part of the British Possessions for the purpose of any criminal matter in any court in a foreign state. Section 5 reads as follows:

A Secretary of State may, by order under his hand and seal, require a police magistrate or a justice of the peace to take evidence for the purpose of any criminal matter pending in any court or tribunal in any foreign state; and the police magistrate or justice of the peace upon the receipt of such order, shall take the evidence of every witness appearing before him for the purpose in like manner as if such witness appeared on a charge against some defendant for an indictable offence, and shall certify at the foot of the depositions so taken that such evidence was taken before him, and shall transmit the same to the Secretary of State; such evidence may be taken in the presence or absence of the person charged, if any, and the fact of such presence or absence shall be stated in such deposition. [Emphasis added.]

Provided that nothing in this section shall apply in the case of any criminal matter of a political character.

It is to be noted that the procedure for invoking the jurisdiction of the courts under s 5 of the 1873 Act was very different from the procedure provided by s 1 of the 1856 Act as extended to the 1870 Act by s 24 thereof. Under s 5 of the 1873 Act, the Secretary of State had the power to direct a police magistrate or a justice of the peace to take the evidence whereas under s 1 of the 1856 Act, the procedure was by way of an application to the court by the party who desired such evidence to be taken. The second point to note is that the 1870-1873 Acts applied only as between (i) the United Kingdom and the British Possessions and (ii) foreign states, and not amongst the United Kingdom and the British Possessions inter se, for which, the 1881 Act was the relevant statute.

Taking of evidence for criminal proceedings in British Possessions

The first Imperial statute which made it possible for the taking of evidence in the United Kingdom and any of the British Possessions for use in proceedings in another part of the British Possessions was also limited to civil matters only. This was the Evidence By Commission Act 1859 (the 1859 Act) which, after reciting that it was expedient to afford facilities ` for taking evidence in, or in relation to, actions, suits, and proceedings pending before tribunals of Her Majesty`s dominions, in places in such dominions out of the jurisdiction of such tribunals `, went on to provide that whenever any court in the British Possessions should have authorized, by command, order or other process, the obtaining of the testimony of...