Seah Lei Sie Linda v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 30 March 2020
• Neutral Citation: [2020] SGCA 26
• Plaintiff Counsel: Wee Heng Yi Adrian and Rachel Soh (Characterist LLC)
• Docket Number: Criminal Motion No 20 of 2019
• Date: 30 March 2020
• Hearing Date: 30 March 2020
• Subject Matter: Leave to refer,Causation,Criminal references,Criminal Procedure and Sentencing
• Year: 2020
• Defendant Counsel: Ang Feng Qian and Deborah Lee (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Citation: [2020] SGCA 26
• Published date: 03 April 2020

Sundaresh Menon CJ (delivering the judgment of the court ex tempore): Background

The applicant, Seah Lei Sie Linda (“the Applicant”), was charged with voluntarily causing hurt to her domestic helper (“the Victim”), an offence under s 323 of the Penal Code (Cap 224, 2008 Rev Ed) (“the PC”). Three of the six charges against the Applicant related to incidents where the Applicant had instructed the Victim to commit acts of self-harm by, amongst other things, pouring hot water onto herself. Before the District Judge, these three charges had been framed in terms of the Applicant having abetted the commission of these offences by instigating the Victim to voluntarily cause hurt to herself (“the Abetment charges”). Following the conclusion of the trial, the District Judge convicted the Applicant of all six charges, including the Abetment charges, and sentenced her to an aggregate term of imprisonment of 36 months and also ordered her to pay compensation of $11,800 to the Victim.

On appeal, the Judge considered that the Abetment charges had been inappropriately framed. He came to this view reasoning that because the act of harming oneself is not an offence and certainly not an offence under s 323 of the PC, it was not appropriate to frame the charge in terms that the Applicant had abetted an act, namely self-harm by the Victim, that is not itself an offence. In short, there ordinarily could not be an abetment offence if there was no primary offence to be abetted. The Judge was evidently satisfied that there was an offence here, save that it had not been framed properly. He therefore amended the Abetment charges in terms of the Applicant having voluntarily caused hurt to the Victim by instructing the latter to commit the acts of self-harm, removing all references to abetment. The Judge convicted the Applicant on the amended charges and imposed the same sentence as had been meted out by the District Judge.

In the present application, the Applicant seeks the leave of this court to refer the following questions which arise from the amendments made to the Abetment charges: First, whether the offence of voluntarily causing hurt under s 323 of the PC can be committed by a person (the “first person”) who instructs a second person to carry out acts which form the actus reus of the said offence, if such acts are carried out by the second person in consequence of the said instructions? (“the first question”) Second, if the answer to the first question is in the affirmative, whether the said offence under s 323 of the PC is made out if the second person has, in consequence of the first person’s instructions, performed the said acts on himself? (“the second question”) Third, if the answers to the first and second questions are in the affirmative, what is the threshold test for finding that the acts performed by the second person were performed as a consequence of the first person’s instructions? (“the third question”)

The parties’ submissions

Both parties agree that four cumulative conditions must be satisfied before leave can be granted under s 397(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) (Public Prosecutor v Li Weiming and others [2014] 2 SLR 393 at [15]; Chew Eng Han v Public Prosecutor [2017] 2 SLR 1130 (“Chew Eng Han”) at [41]): First, the reference to the Court of Appeal can be made only in relation to a criminal matter decided by the High Court in the exercise of its appellate or revisionary jurisdiction (“the first condition”). Second, the reference must relate to a question of law and that question of law must be a question of law of public interest (“the second condition”). Third, the question of law must have arisen from the case which was before the High Court (“the third condition”). Fourth, the determination of that question of law by the High Court must have affected the outcome of the case (“the fourth condition”).

The Prosecution accepted that the first, third and fourth conditions are satisfied in the present application. Thus, the only issue in dispute was whether the three questions also fulfil the second condition, which requires that the questions be questions of law of public interest.

Mr Adrian Wee (“Mr Wee”) submitted on the Applicant’s behalf that the second condition was satisfied because the three questions were “plainly questions of law”, and they raised issues of public interest as they had wide-ranging and significant implications in respect of the actus reus of a number of offences, as well as the law on accessorial liability.

In her submissions, the learned Deputy Public Prosecutor, Ms Ang Feng Qian submitted that the questions raised were not of public interest, even assuming they were questions of law. She pointed to the fact that our courts have not hesitated in convicting offenders of the offence of causing hurt by instructing a victim to hurt himself. It followed from this that the answers to the first and second questions were settled and clearly in the affirmative. Additionally, the meaning of the critical word “cause” was wide enough to encompass situations where harm was caused to a victim by an offender instructing the victim to hurt himself. As for the third question, it was submitted that this is either a question of fact, or if it is a question of law, then it concerned the application of the well-established test of proof beyond reasonable doubt.

Applicable principles

We begin by summarising the principles set out in our decision in Mohammad Faizal bin Sabtu and another v Public Prosecutor and another matter [2013] 2 SLR 141 (“Mohammad Faizal”). There, we referred to the oft-quoted decision of the Malaysian Federal Court in A Ragunathan v Pendakwa Raya [1982] 1 MLJ 139, where it was observed at 141 that, whether a question of law is a question of public interest would depend on

… whether it directly and substantially affects the rights of the parties and if so whether it is an open question in the sense that it is not finally settled by this court … or is not free from difficulty or calls for discussion of alternate views. If the question is settled by the highest court or the general principles in determining the question are well settled and is a mere question of applying those principles to the facts of the case the question would not be a question of law of public interest.

In this respect, as we observed in Mohammad Faizal at [20], a “question of law does not necessarily constitute a question of public interest just because it involves the construction or interpretation of a statutory provision which could also apply to other members of the public …. Again, neither is it so just...