Tan Wei Wen v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Judith Prakash JCA
• Judgment Date: 30 October 2023
• Neutral Citation: [2023] SGCA 34
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Appeal No 1 of 2023 (Criminal Motions No 7 and 8 of 2023)
• Hearing Date: 04 July 2023
• Citation: [2023] SGCA 34
• Year: 2023
• Plaintiff Counsel: The applicant in person
• Defendant Counsel: David Menon (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Criminal references,Reopening concluded decisions,Appeal
• Published date: 03 November 2023

Tay Yong Kwang JCA (delivering the judgment of the court): Introduction

There were two applications filed by the applicant, a litigant in person, before this Court. In CA/CM 7/2023 (“CM 7”) filed on 30 January 2023, the applicant sought “an extension of time to file Notice of Appeal and Petition of Appeal within 14 days from the date of the Order to be made herein”. In CA/CM 8/2023 (“CM 8”) filed on 2 February 2023, the applicant sought “permission and to file the notice & petition of appeal to the Court of Appeal for the concluded case to be reopen”.

As will be seen subsequently in these grounds, these two applications related to the decision of Vincent Hoong J (“the High Court Judge”) in HC/MA 9129/2022/01 (“MA 9129”). MA 9129 was the applicant’s appeal to the General Division of the High Court against the decision of a District Judge (“the DJ”). The High Court Judge was therefore exercising his appellate jurisdiction when he heard MA 9129.

Subsequent to the filing of the two applications set out above, on 7 February 2023, the applicant also filed CA/CCA 1/2023 (“CCA 1”). CCA 1 appeared to be an appeal to the Court of Appeal against the High Court Judge’s decision in MA 9129.

It is settled law that that there is only one tier of appeal in criminal matters. In this case, it is from the State Courts to the High Court. No appeal lies against the decision of a judge sitting in the High Court in the exercise of its appellate jurisdiction. This court has affirmed this position on more than one occasion: see Mah Kiat Seng v Public Prosecutor [2021] SGCA 79 at [73]–[74]; Tang Keng Lai v Public Prosecutor [2021] 2 SLR 942 (“Tang Keng Lai”) at [1]; Public Prosecutor v Lim Yong Soon Bernard [2015] 3 SLR 717 at [32].

For the reasons that we had explained to the applicant at the hearing of oral arguments and which we set out below, we dismissed CM 7 and CM 8. Consequently, CCA 1 was also dismissed.

Background facts

On 26 November 2019, the applicant was charged in the District Court with two counts of insulting the modesty of a woman under s 509 of the Penal Code (Cap 224, 2008 Rev Ed) (the “Charges”). In the first charge, he was alleged to have sent to the complainant on 5 May 2018 a video of himself stroking his penis. In the second charge, he was alleged to have sent to the complainant on 7 May 2018 another video of a male stroking his penis with a photograph of the complainant in the background, accompanied by crude words with sexual connotations.

The applicant claimed trial to the Charges and the trial was fixed for 21 and 22 July 2020. On 6 July 2020, about two weeks before the trial was scheduled to start, the Prosecution applied to withdraw the Charges against the applicant. On 7 July 2020, the District Court granted the applicant a discharge amounting to an acquittal. This order was made without requiring the parties’ attendance in court because of the Covid-19 pandemic.

Proceedings in the District Court

Subsequently, on 25 March 2021, more than eight months after the withdrawal of the Charges, the applicant sought compensation from the Prosecution. He applied for a compensation order pursuant to s 359(3) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) on the basis that the prosecution against him was “wrongful to even begin with” and had not been in good faith. The compensation sought comprised $3000 for the “abus[e] of juridical process” and $10 per day from the date the applicant’s phone was seized by the police for “los[s] of income from phone rental”.

The applicant’s case was that the prosecution was commenced without sufficient evidence and was “malicious”. In support of his claim that the prosecution was commenced without sufficient evidence, the applicant referred to the following: (a) the Prosecution’s decision to withdraw the Charges and (b) the fact that no evidence was admitted at the charging stage. To buttress his allegation that the prosecution was “malicious”, the applicant made the following allegations: (a) he was charged after he refused to accept a written warning for one count of an alleged offence under s 292 of the PC regarding the sale of obscene books; (b) the Prosecution dragged out his case in an attempt to coerce him to plead guilty to the Charges; and (c) a plead-guilty offer was made to incentivise him to plead guilty to the Charges.

The Prosecution submitted that the applicant failed to discharge his burden of proof in relation to his allegations of frivolous and vexatious prosecution. It explained that the decision to withdraw the Charges was consistent with the Prosecution’s ongoing practice of assessing the evidence continually and the appropriateness of the case for prosecution throughout the course of the prosecution, taking into account any new developments. The mere fact that the Charges were withdrawn subsequently could not, therefore, lead to an inference that the evidence was so insufficient from the outset that the case should never have been brought to court.

The Prosecution had also responded by letter to the applicant’s emails in an attempt to explain to the applicant the evidence that it had against him. In the Prosecution’s letter dated 22 December 2020 (the “AGC Letter”), the Prosecution stated: 2. You were charged with two counts under s 509 of the Penal Code (Cap 24,2008 Rev Ed) for insulting the modesty of a woman by sending to the victim a video of a male subject stroking his penis on two occasions in May 2018. 3. In your emails, you suggested that there was no basis for the authorities to prefer the charges against you. This is incorrect. Amongst other things: (a) One of the videos captured part of your face and a blue Polo T-shirt which was found in your home. The background in the video also matched the tiled wall of your home toilet. (b) On 7 June 2018, during a police interview, you were informed that there was a report of a person sending a video via Instagram to a female subject, and that investigations had surfaced your name. When invited to comment on this, you made the following claims: (i) That you had previously taken a video of your private parts with your mobile phone in your home toilet; (ii) That you had lost your mobile phone "in 2017 maybe in February" [emphasis added]; and (iii) Someone might have used your mobile phone to disseminate the video. (c) On 19 November 2019, you were served with notices of the two charges against you under s 23 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed). In response to notice of the two charges - (i) You did not dispute that you were the subject who performed the acts as depicted in the video stated in the first charge. You also did not deny knowledge of the video stated in the second charge. (ii) Instead, you claimed that in 2015 or earlier, the "pictures" from your mobile phone had been leaked to an unknown person who had been "blackmailing" you for money. (d) Your claim that an unknown person might have sent the videos relating to the two charges is not supported by forensic investigations. These investigations revealed that the videos were sent from IP addresses that were traced back to your father's coffeeshop and to your home. 4. On 7 July 2020, in the exercise of prosecutorial discretion, the Prosecution withdrew the two charges against you and the Court made an order of a discharge amounting to an acquittal against you. (This order was made without requiring parties' attendance, given the COVID-19 situation.) In deciding to withdraw your charges, the Prosecution considered, among others, the fact that you did not commit further offences after the incidents referred to in the charges. 5 Regarding your request for the names of the prosecutors “in charge” of your case, please note that different prosecutors were involved in different aspects of the case against you. You have not set out any details, nor given any basis, to support any allegations of misconduct, including how or when such alleged misconduct occurred. In the circumstances, we will not be providing the names of the prosecutors. 6 For the avoidance of doubt, the Attorney-General’s Chambers rejects any allegation that there was any unlawful, improper or malicious conduct in the prosecution against you. 7 All our rights are reserved.

[emphasis in original]

The Prosecution also argued that there was no basis for the applicant’s assertions of improper motive or malice. As for the applicant’s allegations of malice, the Prosecution stated that the applicant was never charged with one count of an offence under s 292 of the PC and, for completeness, it had informed the DJ that the applicant was only served with a conditional warning for three counts of an offence under s 509 of the PC. Further, the Prosecution submitted that the applicant’s claim that his case was deliberately dragged out was made without any basis. In addition, the applicant’s reliance on the plead-guilty offer to extrapolate malice on the part of the Prosecution was misconceived. It was an accepted practice that a plead-guilty offer may be extended to an accused person on the basis that he may be sentenced on a fewer number of charges or on charges which attract penalties which are less severe.

On 28 June 2022, the DJ dismissed the applicant’s application for compensation after applying the principles in Parti Liyani v Public Prosecutor [2021] 5 SLR 860 (“Parti Liyani”): see Tan Wei Wen v Public Prosecutor [2022] SGMC 44 (the “DJ’s GD”) at [12]–[26]. The High Court in Parti Liyani stated that an applicant may establish that a prosecution brought against him was frivolous or vexatious by proving on a balance of probabilities that: (a) the commencement...