District Judge Christopher Goh Eng Chiang:
Introduction
The Appellant had been charged with two counts for insulting the modesty of a woman under s 509 of the Penal Code (Cap 224, 2008 Rev Ed) (“PC”). In each charge, he was alleged to have sent to the Victim, a video of a male subject stroking his penis, including one with a photo of the Victim in the background, accompanied with words that were insulting to the victim. The two charges were eventually withdrawn by the Prosecution and the Court granted the Appellant a discharge amounting to an acquittal (“DATA”).
The Appellant eventually sought compensation from the Prosecution under s 359(3) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”). On 28 June 2022, I dismissed his application for compensation. The Appellant, being dissatisfied with my order of dismissal, now appeals against my decision.
Chronology of events
The following is a summary of the chronology of events:
| |
|
| Date | Event |
| 26 Nov 2019 | The Appellant is first charged in court for two counts under s 509 of the PC. The accused claimed trial to the charges. |
| 30 Dec 2019 | The case is fixed for trial from 21 – 22 July 2020. |
| 6 Jul 2020 | Prosecution applied for a mention date in order to withdraw the two charges against the Appellant. |
| 7 Jul 2020 | Court granted the Appellant a DATA without requiring the attendance of the parties in light of the ongoing COVID-19 pandemic. |
| 22 Dec 2020 | Prosecution replies to the Appellant titled “Web Submission from Mr Tan Wei Wen” explaining some aspects of the charges against him. |
| 25 Mar 2021 | Appellant filed an application for an order of payment of compensation under s 359(3) of the CPC. |
| 4 Jan 2022 | Court sees the Parties. Directions are given to the Appellant to file an affidavit setting out his claim. |
| 17 Feb 2022 | The Appellant files a document titled “Affidavit of Tan Wei Wen” (“First Affidavit”). |
| 21 Mar 2022 | The Appellant files another document similarly titled “Affidavit of Tan Wei Wen” (“Second Affidavit”) and a third document titled “Proving Malice” (“Third Affidavit”). |
| 1 Ma 2022 | Court gives directions for Parties to file their closing submissions by 4 April 2022, and their Reply, if any, by 9 May 2022. |
| 26 March 2022 | The Appellant files submissions. |
| 4 April 2022 | The Prosecution files submissions. |
| 18 Apr 2022 | Appellant files document entitled “Rebuttal to crime and offence ‘I have’ committed” (“Rebuttal”) |
| 3 June 2022 | There being no further filing by either Party, the matter is fixed for hearing on 3 June 2022 Appellant’s request to have the matter on 3 June 2022 to be heard via Zoom is denied. As the Appellant was not available, the hearing was rescheduled. |
| 28 June 2022 | Appellant’s application is dismissed. |
The relevant provision
The Appellant sought compensation under s 359(3) of the CPC. The provision is set out below: -
“(3) If an accused is acquitted of any charge for any offence, and if it is proved to the satisfaction of the court that the prosecution was frivolous or vexatious, the court may order the prosecution or the complainant or the person on whose information the prosecution was instituted to pay as compensation to the accused a sum not exceeding $10,000.”
This provision was discussed by the High Court in Parti Liyani v Public Prosecutor [2021] 5 SLR 860 (“Parti Liyani”). In Parti Liyani, the applicant had brought a claim against the Prosecution under s 359(3) of the CPC after she had been acquitted on appeal by the High Court.
The High Court in Parti Liyani set out two possible limbs that an applicant may establish “frivolous and vexatious” prosecutions under s 359(3) of the CPC. These are, at [116], namely (a) evidential insufficiency; or, at [127] - [128], namely (b) improper motive.
In Parti Liyani, the High Court, at [128] – [129], also held that it was the applicant who had the burden of showing this on the balance of probabilities.
The Appellant’s case
I had directed the Appellant to file an affidavit to support his claim for compensation. The Appellant eventually filed three “affidavits”. These were, in fact, not affidavits, or statement of fact made under oath. However, as the Appellant was in person, I proceeded to accept them as such as a statement setting out his claim. The Prosecution did not raise any objection.
These affidavits appear to set out what had happened to the Appellant before and after he was charged in court. Although the Appellant used the words “frivolous”, “vexatious” and “malice” in these affidavits, it was difficult to discern what they actually were. I had to determine what were these “frivolous”, “vexatious” and “malicious” acts of the Prosecution that were being asserted.
The following are what appears to be the Appellant’s assertions regarding the Prosecution’s conduct: that the charges were “false”. The Prosecution knew very well that the videos and pictures sent to the Victim were leaked as per what he had said in his statement; that the Prosecution had “maliciously” planned to exert pressure to make him plead guilty because: he originally faced one charge under s 292 of the PC but this was later “upgrade” to two charge under s 509 of the PC because he had refused to accept a stern warning; his case was deliberately “drag on” so that he would change his mind; the Prosecution offered to proceed only on one charge should the Appellant chose to plead guilty and to proceed on both charges should he claim trial. that the charges were “frivolous” because the Prosecution had charged him without sufficient evidence, and this could be seen when they eventually withdrew the charges at the “eleventh hour” despite numerous “reviews”.
As a result of the Prosecution’s actions, the Appellant claimed the “maximum payout” for the following losses: “cost thrown away” and “depreciation of [his] properties”; Damage to his reputation and dignity; Cost of travelling to and from court; Loss of use of his phone, which was seized. It was asserted that his phone could have been used to generate “additional” income.
Whether the prosecution was frivolous or vexatious ...
