Roslan bin Bakar and others v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Judith Prakash JCA
• Judgment Date: 07 March 2022
• Neutral Citation: [2022] SGCA 18
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Motion No 6 of 2022
• Year: 2022
• Published date: 10 March 2022
• Hearing Date: 15 February 2022
• Plaintiff Counsel: Charles Yeo Yao Hui (L F Violet Netto)
• Defendant Counsel: Francis Ng Yong Kiat SC, Samuel Yap Zong En and Shenna Tjoa Kai-En (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Statutory offences,Misuse of Drugs Act,Criminal Procedure and Sentencing,Criminal review,Leave for review
• Citation: [2022] SGCA 18

Judith Prakash JCA (delivering the grounds of decision of the court): Introduction

On 15 February 2022, we heard and dismissed this application by Roslan bin Bakar (“the first applicant”), Pausi bin Jefridin (“the second applicant”) and Lawyers for Liberty (“the third applicant”) for an order that leave be granted to the applicants to ask this court to review its earlier decisions in CA/CCA 59/2017 (“CCA 59”) and CA/CCA 26/2018 (“CCA 26”) which were given in relation to the criminal cases against, respectively, the first and second applicants. The application was made under s 394H of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”).

The first and second applicants have been convicted, in separate cases, of drug trafficking and have been sentenced to death. These sentences were scheduled to be carried out on Wednesday, 16 February 2022. This application was filed on the evening of 14 February 2022 in an attempt to set aside the sentences of death that had been imposed upon them.

We heard the application on the afternoon of 15 February 2022 and dismissed it. In respect of the first and second applicants, we were of the view that they were not able to meet the requirements for a review set down by s 394H of the CPC and had no material (whether legal or evidential) with which to do so. In respect of the third applicant, our judgment was that it had no standing to be a party to the application and we therefore dismissed the application in respect of the third applicant as a preliminary matter.

We now give our full grounds of decision.

The third applicant

The affidavit filed in support of the application was affirmed by one Mr Charles Yeo (“Mr Yeo”), counsel for the applicants. In his affidavit, Mr Yeo gave reasons why he considered that it was necessary to review the earlier decisions of the Court of Appeal in CCA 59 and CCA 26. Those reasons related entirely to the death penalty imposed on the first and second applicants. Nothing about the third applicant was mentioned in the affidavit.

Shortly before the application was heard, the Public Prosecutor (“PP”), the respondent herein, filed written submissions in which, amongst other points, it submitted that the third applicant lacked the standing to be an applicant in the application. At the commencement of the hearing, we asked Mr Yeo to inform us who the third applicant is and why the third applicant was entitled to be party to the application. Mr Yeo told us that the third applicant is a Malaysian non-governmental organisation which campaigns against the death penalty. It has also, he said, provided legal assistance to the first and second applicants. Indeed, he confirmed that the third applicant would be paying the disbursements incurred by the applicants in these court proceedings. When we asked him what the interest of the third applicant was in these proceedings, his only response was that it was interested in assisting the applicants as it was against the imposition of the death penalty. We were of the view that such an interest did not qualify the third applicant, or give it standing, to be a party to an application under s 394H of the CPC.

Section 394H of the CPC appears within Div 1B of Part 20 thereof which is entitled “Review of earlier decision of appellate court”. In line with that title, the term “review application” is defined in s 394F as meaning “an application to review an earlier decision of an appellate court”. Section 394G sets out the conditions for making a review application while s 394H(1) provides that before making a review application, the applicant must apply to the appellate court for, and obtain, the leave of that court to do so. The criminal motion before us was the leave application required by s 394H(1).

The term “applicant” is not defined in s 394H, or anywhere else in Div 1B for that matter. We agreed, however, with the PP’s submission that as a matter of statutory interpretation, the “applicant” had to be one of the parties to the decision of the appellate court which the applicant wanted to have reviewed. As the CPC applies to criminal cases and appeals, that would mean that the only parties to an application under s 394H would be the PP itself and the person against whom the original criminal case had been brought.

The PP’s submissions set out in detail why what the PP describes as the “narrow interpretation” (that is, the interpretation that we adopted) should be favoured over the “broad interpretation”. The broad interpretation would allow any person who desired a different result in a concluded appeal to be an applicant in a review application. We agreed with the PP that applying the framework for purposive statutory interpretation set out in Tan Cheng Bock v Attorney-General [2017] 2 SLR 850 would result in the conclusion that the context of the provision within the CPC and the purpose of s 394H itself clearly support the narrow interpretation. The broad interpretation would allow all and sundry to file review applications and such a wide licence would go against Parliament’s intention to limit the scope of review (as is clearly seen from the stringent requirements set out in s 394H itself) and weed out unmeritorious cases.

More generally, it is against the whole purpose and tenor of criminal proceedings to allow third parties to participate in them. A criminal proceeding is the prosecution by the State of an alleged offender charged with breaking its laws. Thus, the parties to any criminal proceeding from the very start and throughout the whole process can only be the prosecution and the accused. Other persons may have an interest in the outcome of any particular case, for example, a victim or a person charged with a similar offence, but such persons are not and cannot be parties to that case as they are neither the prosecutor or the accused. Nor does this position change as the case goes through the various stages from trial to appeal to criminal reference and, occasionally, criminal review.

The principle stated above was applied and re-emphasised recently in Iskandar bin Rahmat v Public Prosecutor [2021] 2 SLR 1151. Mr Iskandar, the applicant there, had been tried and convicted on murder charges. His subsequent appeal to this court was dismissed. The applicant then filed an application for leave to intervene in a completely unrelated criminal proceeding, a criminal appeal in which the appellant one Mr Teo Ghim Heng was, among other things, challenging his own conviction for murder on constitutional grounds. The ostensible purpose of the leave application was to support the constitutional challenges being mounted by Mr Teo. This court had no hesitation in dismissing Mr Iskandar’s application. It observed at [5] that litigants, including accused persons, do not have a right to intervene in an unrelated pending proceeding just because they have a common interest in a point of law that is being considered in that proceeding. Mr Iskandar had submitted that the intervention sought was “incidental to or supportive of” Mr Teo’s appeal but this argument was robustly rejected in the following words at [21]:

… It could not be said that an application to intervene by an unrelated third party in order to make additional submissions on a legal issue in another criminal appeal was so “fundamentally tethered” to that appeal as to affect the correctness of its outcome. If the Applicant’s argument was taken to its logical conclusion, any person who has an interest in any legal...