Vignes s/o Mourthi v Public Prosecutor (No 3)

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 13 October 2003
• Neutral Citation: [2003] SGCA 42
• Docket Number: Criminal Appeal No 12 of 2003
• Date: 13 October 2003
• Published date: 17 December 2003
• Year: 2003
• Plaintiff Counsel: Mr M Ravi (M Ravi and Co)
• Citation: [2003] SGCA 42
• Defendant Counsel: Bala Reddy and Edwin San (Deputy Public Prosecutors)
• Court: Court of Appeal (Singapore)
• Subject Matter: Criminal jurisdiction,Court of Appeal,Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed),Whether Court of Appeal has jurisdiction to allow another appeal after appeal against conviction heard and dismissed,Function of Court of Appeal,Whether need for different coram to be convened to hear second appeal before Court of Appeal,Application for leave to grant applicant re -trial,Criminal Procedure and Sentencing,Leave to stay sentence of death pending re-trial,Burden on appellant to show strong reasons why permanent members of Court of Appeal would be unable to act objectively in matter

Delivered by Yong Pung How CJ

1 This was an appeal by Vignes s/o Mourthi against the decision of Lai Kew Chai J in Criminal Motion No 17 of 2003.

Facts

2 In Criminal Case No 25 of 2002, Tay Yong Kwang J found Vignes s/o Mourthi guilty of drug trafficking, an offence under s 5 of the Misuse of Drugs Act (Cap 185), and punishable under s 33 of the said Act. The mandatory death sentence was passed. The Court of Appeal, in Criminal Appeal No 13 of 2002, upheld Tay J’s decision. The President dismissed Vignes’ petition for clemency. Mr M Ravi, an advocate and solicitor, was instructed on 10 September 2003 by Vignes’ father to apply on behalf of Vignes for an order ‘that leave be granted to the applicant to order that there be a re-trial of the applicant and that the sentence of death passed on him be stayed pending re-trial.’ This made up the substance of Criminal Motion No 16 of 2003 which was argued before Woo Bih Li J on 12 September 2003. Woo J dismissed the application. Mr Ravi then applied for a second Criminal Motion which was heard by Lai Kew Chai J. The arguments made at this second Criminal Motion (ie Criminal Motion No 17 of 2003) were similar to those made in the first one. Lai Kew Chai J duly dismissed the second application. Mr Ravi then filed a notice of appeal. This was filed at 4.30pm on 24 September 2003. As the sentence of death was to be carried out at 6.00am in the morning of 26 September 2003, coram of three judges was convened and the appeal was heard the next afternoon of 25 September 2003.

3 In both the Criminal Motions, Mr Ravi attempted to persuade the court that a re-trial was in order for two reasons: a) that Tay J was wrong to allow a conversation between Vignes and a Central Narcotics Bureau Officer, recorded in the latter’s field book, to be admitted as evidence and b) that Tay J had failed to accord Vignes the opportunity to engage a counsel of his own choice.

The law

4 In Abdullah bin A Rahman v PP [1994] 3 SLR 129, the appellant sought to adduce fresh evidence by means of Criminal Motion No 13 of 1994 after the Court of Appeal had dismissed his appeal in Criminal Appeal No 4 of 1993. The facts were these. Abdullah bin A Rahman (the applicant) was charged with abetting one Rashid in trafficking 76.3g of diamorphine. Both were jointly tried, convicted and sentenced to death. Their appeals to the Court of Appeal were dismissed, as were their petitions for clemency. Three days before they were due to be executed, Rashid informed the applicant that his statement to the CNB, as well as his evidence given at trial, both of which implicated the applicant, were fabricated. The applicant immediately informed his counsel who took out an application to adduce Rashid’s retraction as fresh evidence. Counsel also sought leave to make further submissions on s 30 of the Evidence Act (Cap 97). The Court of Appeal was clear in its ruling that where it (ie the Court of Appeal) had heard and disposed of an appeal, as it had previously done in the applicant’s case, it was functus officio in so far as that appeal was concerned. Of great importance was the fact that the Court of Appeal explained that there was no express provision which afforded the Court of Appeal the jurisdiction to hear fresh evidence. Therefore, it had no ambit to re-open the case after it had heard and disposed of the appeal. The crucial point in the Abdullah bin A Rahman decision was the fact that the Court of Appeal had tested all the different statutory mechanisms which could, potentially, have provided the Court of Appeal with re-opening power after disposal of the appeal. However, the Court of Appeal found that none of these potential mechanisms were intended for that purpose. The court held:

Mr Suppiah (counsel for the applicant) was not alleging any lack of due process or irregularity in the criminal proceedings which culminated in the dismissal of the applicant’s appeal on 9 November 1993. Rather, he conceded that he was asking this court to assume jurisdiction to re-open the appeal after it had already been heard and disposed of. He began by referring us to s 55(1) of the Supreme Court Judicature Act (Cap 322) (‘the Act’) which read as follows:

In dealing with any appeal, the Court of Appeal may, if it thinks additional evidence is necessary, either take such evidence itself or direct it to be taken by the trial court. (Emphasis added).

Mr Suppiah argued that the word ‘any’ before the word ‘appeal’ in the section should be given a liberal interpretation so as to embrace any matter before this court, including this criminal motion, provided justice so demands. In his submission, although s 55 is to be found in Part V of the Act (entitled ‘Criminal Jurisdiction of the Court of Appeal’), the use of the words ‘any’ did not limit the workings of that section to Part V. Additionally, he argued that the provision which bestowed jurisdiction upon the Court of Appeal to hear further appeals, as well as for appeals disposed of to be reopened, was s 29A(4) contained in Part IV of the Act which reads as follows:

The Court of Appeal shall for the purposes of and subject to the provisions of this Act, have full power to determine any question necessary for the purpose of doing justice in any case before the Court. (Emphasis added).

Mr Suppiah contended that the reference in s 29A(4) to the determination of ‘any question’ by this court in ‘any case’ was a general provision which allowed the Court of Appeal to do justice in any situation and was not confined to appeals alone (…) The Court of Appeal of Singapore is a creature of legislation and its jurisdiction must necessarily be defined solely by and limited to the provisions of the Act. In this regard, the relevant provisions of the Act are to be found in ss 29A(2), 44, 59 and 60.

The Court then went on to cite these provisions and discussed the ambit of each. It then went on to explain why none of these empowering provisions gave the Court of Appeal, as a creature, the ability to re-open a...