Wong Hong Toy and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 28 April 1987
• Date: 28 April 1987
• Docket Number: Criminal Appeal No 17 of 1986; Criminal Motion Nos 61 and 65 of 1986
• Court: Court of Appeal (Singapore)

Wong Hong Toy and another

Plaintiff

and

Public Prosecutor

Defendant

[1987] SGCA 10

Wee Chong Jin CJ

,

T S Sinnathuray J

and

L P Thean J

Criminal Appeal No 17 of 1986; Criminal Motion Nos 61 and 65 of 1986

Court of Appeal

Courts and Jurisdiction–Appeals–Whether appeal lies to Court of Criminal Appeal against High Court's decision not to reserve questions of law to Court of Criminal Appeal–Sections 44 (1) and 60 Supreme Court of Judicature Act (Cap 15, 1970 Rev Ed)–Courts and Jurisdiction–Jurisdiction–Exercise of discretion to reserving questions of law to Court of Criminal Appeal–Whether High Court exercises original or appellate jurisdiction–Section 60 Supreme Court of Judicature Act (Cap 15, 1970 Rev Ed)–Courts and Jurisdiction–Court of Criminal Appeal–Points reserved–Whether Court of Criminal Appeal can hear questions of law which have not been reserved for its decision by High Court–Criminal Procedure and Sentencing–Judgment–Alteration–Sentence altered before end of the day sentence was passed–Alteration made in chambers–Counsel and deputy public prosecutors present–Whether alteration proper–Section 217 Criminal Procedure Code (Cap 68, 1985 Rev Ed)

The appellants were convicted and sentenced in the District Court to three months' imprisonment each for making false declarations. They appealed against the conviction and sentence. When the appeals came before the High Court, the jurisdiction of the District Court to impose fines was increased from $5,000 to $10,000. On appeal, the High Court dismissed the appeals against conviction and varied the sentence of each appellant to one month's imprisonment and a fine of $10,000.

The appellants then applied by way of Criminal Motion No 59 of 1986 asking the High Court to exercise its discretion under s 60 of the Supreme Court of Judicature Act (Cap 15, 1970 Rev Ed) (“the SCJA”) to reserve seven questions of law of public interest for the Court of Criminal Appeal's decision. The appellants' solicitors also filed a second affidavit setting out another question to reserve for the Court of Criminal Appeal's decision in respect of the $10,000 fine that the High Court had imposed, considering that the District Court could only impose a maximum fine of only $5,000 at the material time.

Before the end of the day, the fines imposed on the appellants were altered in chambers from $10,000 to $5,000 pursuant to s 216 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“the CPC”). Counsel for the appellants together with the deputy public prosecutors were present at the time of the alteration although the appellants were not. Subsequently, the High Court dismissed the criminal motion.

The appellants appealed against the dismissal of the criminal motion via Criminal Appeal No 17 of 1986. They also sought via Criminal Motion No 61 of 1986 for the Court of Criminal Appeal to entertain the reference in respect of the questions of law of public interest, or for leave to appeal against the High Court's decision not to refer the questions to the Court of Criminal Appeal. The appellants also sought via Criminal Motion No 65 of 1986 for an order that the subsequent alteration of the fines was invalid and to quash the sentences of fine.

Held, dismissing the appeal and motions:

(1) The decision of the court in Wong Hong Toy [1985-1986] SLR (R) 371 was plainly correct. There was no reason in law justifying a refusal to follow that decision. Section 60 of the SCJA did not confer original jurisdiction on the High Court. The determination of an application under s 60 (1) of the SCJA was part and parcel of the exercise of the appellate criminal jurisdiction of the High Court: at [31] and [32].

(2) In the present case, since the High Court had exercised appellate criminal jurisdiction in refusing to reserve the questions that the appellants had put forward and had dismissed the criminal motion, no right of appeal lay to the Court of Criminal Appeal against this refusal: at [36].

(3) To hear the remaining two criminal motions would be tantamount to hearing appeals against the High Court's decisions in respect of matters for which it had exercised appellate criminal jurisdiction. There was no provision in law at all conferring such a right of appeal in either case: at [49].

(4) The Court of Criminal Appeal had no jurisdiction to make a judicial review of a decision of the High Court: at [52]and [53].

(5) The Court of Criminal Appeal could only hear questions which had been reserved for its decision by the High Court. In the present case, when the High Court refused to do so in its discretion, the Court of Criminal Appeal had no jurisdiction to entertain either of these criminal motions: at [54].

(6) Effect had to be given to the plain reading of s 217 of the CPC, which clearly stated that the High Court could alter or review its judgment. This gave sanction to the High Court to alter the fine in the present case. It was necessary for the High Court to do so to correct a mistake as to the maximum fine that could be imposed. Cases that held a court to be functus officio immediately after sentencing were inapplicable in the present case: at [61]and [62].

(7) The fact that the amendment to the sentence was done in chambers was not objectionable per se. Counsel for the appellants were present together with the deputy public prosecutors at the time of the amendment, although the appellants were not. Moreover, the alteration in the sentence resulted in the fine being reduced and as such, there was clearly no detriment or prejudice to either of the appellants: at [67].

Commissioners of Customs and Excise v Menocal [1979] QB 46; (1979) 69 Cr App Rep 148; [1978] 3 All ER 961 (refd)

Lawrence v R [1933] AC 699; [1933] All ER Rep 196 (distd)

Mah Kah Yew v PP [1968-1970] SLR (R) 851; [1969-1971] SLR 441 (folld)

PP v Wong Hong Toy [1985-1986] SLR (R) 126; [1984-1985] SLR 618 (refd)

R v Cain [1985] AC 46; [1984] 2 All ER 737 (distd)

R v Cleere (1983) 5 Cr App Rep (S) 465 (distd)

R v Manjeet Singh Sodhi (1978) 66 Cr App Rep 260 (refd)

R v Taylor [1950] 2 KB 368; [1950] 2 All ER 170 (folld)

R v William Joseph Thomas Reilly (1982) 75 Cr App Rep 266 (refd)

Racal Communications Ltd, Re [1981] AC 374; [1980] 2 All ER 634 (folld)

Wilson v Colchester Justices [1985] AC 750; [1985] 2 All ER 97 (refd)

Wong Hong Toy v PP [1985-1986] SLR (R) 371; [1984-1985] SLR 298 (folld)

Yap Ee Kong v PP [1981] 1 MLJ 144 (distd)

Young v Bristol Aeroplane Co Ltd [1944] 1 KB 718 (folld)

Criminal Procedure Code (Cap 68,1985Rev Ed)s 217 (consd);ss 6, 216,240

Criminal Procedure Code (Amendment) Act1986 (Act 5 of 1986)

Penal Code (Cap 224,1985Rev Ed)ss 193, 199

Supreme Court of Judicature Act (Cap 15, 1970Rev Ed)ss 44, 60 (consd); ss 7,54, 59

Courts Act 1971 (c 23) (UK)s 11 (2)

Criminal Appeal Act 1968 (c 19) (UK)ss 9, 50

Powers of Criminal Courts Act1973 (c 62) (UK)s 40 (1)

Supreme Court Act 1981 (c 54) (UK)s 47 (2)

J B Jeyaretnam (J B Jeyaretnam & Co) for the first appellant

Donald Martin Thomas QC and Subhas Anandan (M P D Nair & Co) for the second appellant

Tan Teow Yeow and Loke Yoon Kee (Deputy Public Prosecutors) for the respondent.

Judgment reserved.

Wee Chong Jin CJ

(delivering the judgment of the court):

1 In September 1985, the appellants/applicants, Wong Hong Toy and J B Jeyaretnam, underwent a fresh joint trial before the Senior District Judge in the Subordinate Courts as directed by the High Court after certain of the Public Prosecutor's appeals were allowed (see the High Court's judgment reported inPP v Wong Hong Toy [1985-1986] SLR (R) 126). At the new trial, they were charged separately for having made a false statement in a declaration which was by law receivable as evidence, an offence punishable under s 199 read with s 193 of the Penal Code (Cap 224).

2 Both of them were convicted and sentenced to a term of imprisonment of three months each. They then appealed to the High Court against the conviction and the sentence. The Public Prosecutor also appealed against the sentence, but that appeal was deemed withdrawn when no petition of appeal was filed within the time stipulated by law.

3 In March 1986, the Criminal Procedure Code (Amendment) Act 1986 came into operation. That Act increased the maximum fine that a District Court could impose from $5,000 to $10,000. The relevance of this amendment will become apparent shortly.

4 In November 1986, the appeals came before Lai Kew Chai J. Wong Hong Toy and J B Jeyaretnam (“the appellants”) were represented by Lord Hugh Emlyn Hooson QC and Mr Subhas Anandan, while the Public Prosecutor was represented by Mr Tan Teow Yeow and Mr Loke Yoon Kee. After hearing arguments on 3 and 4 November 1985, the learned judge reserved his judgment. On 10 November 1986, Lai Kew Chai J delivered judgment in open court. He dismissed the appeals against conviction and varied the sentence of each appellant to that of one month's imprisonment and a fine of $10,000, in default of payment of which a further term of one month's imprisonment was imposed.

5 Immediately after judgment was delivered, the appellants made an application by way of Criminal Motion No 59 of 1986 in which Lai Kew Chai J was asked to exercise his discretion to reserve seven questions, which the appellants submitted were questions of law of public interest, for the decision of the Court of Criminal Appeal pursuant to s 60 of the Supreme Court of Judicature Act (Cap 15, 1970 Rev Ed). The seven questions were set out in an affidavit filed by the appellants' solicitors. The learned judge directed that the application be heard before him the following day, that is, 11 November 1986. Bail was also granted to the appellants.

6 On the same day that judgment was delivered (10 November 1986), the appellants' solicitors filed a second affidavit setting out another question which they would be asking Lai Kew Chai J to reserve...