Wong Yuh Lan v Public Prosecutor and other matters

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 07 August 2012
• Neutral Citation: [2012] SGHC 161
• Court: High Court (Singapore)
• Docket Number: Criminal Motions No 63, 65, 66 and 67 of 2012
• Published date: 15 April 2014
• Year: 2012
• Hearing Date: 19 April 2012,20 April 2012,06 August 2012
• Plaintiff Counsel: Hamidul Haq, Thong Chee Kun, Yusfiyanto Yatiman, and Istyana Ibrahim (Rajah & Tann LLP)
• Defendant Counsel: Ravinderpal Singh Randhawa s/o Savinder Singh Randhawa (Kalpanath & Company),Mark Jayaratnam and Nor'Ashikin Samdin (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Extradition
• Citation: [2012] SGHC 161

Choo Han Teck J:

Lim Yong Nam (“Nam”), Lim Kow Seng (“Seng”), Hia Soo Gan Benson (“Hia”) and Wong Yuh Lan (“Wong”) (henceforth collectively termed “the Applicants”) were each granted leave to issue a summons for an Order for Review of Detention under O 54 r 2(1)(b) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“Rules of Court”) on 23 February 2012. The Applicants then filed summonses seeking, inter alia, an Order for Review of Detention against the Singapore Police Force and Director of Institute of Mental Health (in Nam’s application) and the Superintendent of Changi Prison (in Seng, Hia and Wong’s application). These applications were made because pursuant to the United States of America (Extradition) Order in Council, 1935 (Cap 103, OR 1) (“US Order in Council”), the United States of America (“US”) had made a requisition to the Minister for Law for the extradition of the Applicants to the US to stand trial, and warrants of arrest had been issued against them by the US District Court for the District of Columbia on 15 September 2010. The US sought the extradition of the Applicants for 12 counts of conduct, including conspiracy to defraud the US by illegal means, smuggling, illegal exports and attempted illegal exports to the Republic of Iran (“Iran”), scheme to make false statements to the US and a scheme to conceal. However, the Attorney-General’s Chambers on behalf of the State sought the committal of Wong and Nam only in respect of Count One of the Superseding Indictment for conspiracy to defraud the US by dishonest means under Title 18 United States Code Section 371 (“18 USC § 371”). Wong and Nam were accused of being part of a “procurement shipping network” together with one Hossein A Larijani (“Larijani”), an Iranian national, Seng and Hia to export 6,000 radio frequency modules (“Company A modules”) manufactured by Company A, a US company, from the US to Iran via Singapore. This was in breach of US export restrictions against unauthorised shipment of US-origin goods from a third country to Iran. As against Seng and Hia, the State sought their committal only in respect of Count Eight, also pursuant to 18 USC § 371. Seng and Hia were accused of being part of a separate scheme with two other US nationals to cause antennae which were classified as “defense articles” under US law to be exported without a licence. Title 18 United States Code Section 371 (“conspiracy to defraud the US”) reads:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

The learned District Judge (“the DJ”) issued a warrant for the apprehension of the Applicants on 12 October 2011, pursuant to s 9(1)(a) read with s 10(1)(a) of the Extradition Act (Cap 103, 2000 Rev Ed) (“the Extradition Act 2000”). The Applicants were apprehended on 25 October 2011 and held in remand until their committal hearing on 9 and 12 December 2011. On 10 February 2012, the DJ committed the Applicants to custody under a warrant of commitment under s 11(7) of the Extradition Act 2000. Pending extradition, the Applicants sought an Order for Review of Detention before me under s 417 of the Criminal Procedure Code 2010 (Act No 15 of 2012) (“CPC 2010) (previously known as a writ of habeas corpus). The State, an interested party to the proceedings, opposed the summonses for an Order for Review of Detention. On 6 August 2012, just before judgment was to be delivered, a question arose as to whether the summonses for an Order for Review of Detention should have been filed as criminal motions under the CPC 2010, rather than originating summonses under O 54 of the Rules of Court. The High Court in Karuppah Alagu v The Minister of Home Affairs, The Attorney-General of Singapore & Anor [1992] SGHC 72 (“Karuppah Alagu”) noted that in extradition proceedings, an application for a writ of habeas corpus to be issued should be made under the old CPC (or the CPC 2010 in this case) instead of O 54 of the Rules of Supreme Court 1970 (or O 54 of the Rules of Court in this case). The court in Karuppah Alagu regarded the procedural irregularity as technical and proceeded to hear the application. In this case, I directed the Applicants to file criminal motions under the CPC 2010 on 6 August 2012 after counsel stated that no changes to the affidavits or submissions were necessary.

The requirements for a warrant of commitment to be issued are set out in s 11(7) of the Extradition Act 2000: (7) If the person was apprehended under a warrant issued in pursuance of an authority by the Minister in a notice under section 9(1)(a) or the Magistrate receives a notice from the Minister under section 9(1)(b) and — (a) there is produced to the Magistrate a duly authenticated foreign warrant in respect of the person issued in the foreign State that made the requisition for the surrender of the person; (b) there is produced to the Magistrate — (i) in the case of a person who is accused of an extradition crime — such evidence as would, in the opinion of the Magistrate, according to the law in force in Singapore, justify the trial of the person if the act or omission constituting that crime had taken place in, or within the jurisdiction of Singapore; or (ii) in the case of a person who is alleged to have been convicted of an extradition crime — sufficient evidence to satisfy the Magistrate that the person has been convicted of that crime; and (c) the Magistrate is satisfied, after hearing any evidence tendered by the person, that the person is liable to be surrendered to the foreign State that made the requisition for the surrender,

the Magistrate shall, by warrant in accordance with Form 5 in the Second Schedule, commit the person to prison to await the warrant of the Minister for his surrender but otherwise shall order that the person be released.

The terms “extradition crime” and “fugitive” are also relevant to the requirements set out in s 11(7) of the Extradition Act 2000, and are defined under s 2 of the Extradition Act 2000:

“fugitive” means a person who is accused of an extradition crime that is alleged to have been committed, or convicted of an extradition crime that was committed at a place within the jurisdiction of a foreign State or a declared Commonwealth country or of a part of such State or country and is, or is suspected to be, in Singapore;

“extradition crime”, in relation to a foreign State, means an offence against the law of, or of a part of, a foreign State and the act or omission constituting the offence or the equivalent act or omission would, if it took place in or within the jurisdiction of Singapore, constitute an offence against the law in force in Singapore that —

(a) is described in the First Schedule; or (b) would be so described if the description concerned contained a reference to any intent or state of mind on the part of the person committing the offence, or to any circumstance of aggravation, necessary to constitute the offence;

The provisions of the Extradition Act 2000 are subject to any limitation or condition in the extradition treaty between the Singapore and the US (“The Singapore-US Treaty”). The US is recognised as a “foreign State” under the Extradition Act 2000, and unlike the case with a “declared Commonwealth country”, a treaty for extradition must be in place between the two countries for the extradition of fugitives. The treaty determines the scope of the parties’ mutual obligations for the extradition of fugitive criminals. The Singapore-US Treaty is derived from the extradition treaty of 22 December 1931 entered into between the United Kingdom (“UK”) and the US (“the UK-US Treaty”) given effect to by the US Order in Council. The “Extradition Acts 1870 to 1906” (which were further amended and consolidated into the Extradition Acts 1870 to 1935 – henceforth termed “the Extradition Act 1870”) applied by Order in Council to the UK-US Treaty, and by s 17 of the Extradition Act 1870 (33 & 34 Vict c 52) (UK) extended to every “British possession” including colonies (see Sir Francis Piggott in Extradition: A Treatise on the Law relating to Fugitive Offenders (Kelly & Walsh Limited, 1910) at p 177). After Singapore’s independence, Parliament repealed the Extradition Act 1870 and the Fugitive Offenders Act 1881 (44 & 45 Vict c 69) (UK). Nonetheless, the UK-US Treaty continued to apply between Singapore and the US, as can be seen in the Exchange of Letters Constituting An Agreement Between the United States of America and Singapore for the Continued Application to Singapore of the United States/United Kingdom Treaty of December 22, 1931 Concerning Extradition (“Exchange of Letters”). Section 3(1) of the Extradition Act 2000 also provides that Part II would apply to the extradition arrangement between Singapore and the US: Application of this Part in relation to foreign States to which Extradition Acts 1870 to 1935 applied 3.–(1) Where, immediately before 1st August 1968 – (a) under an Order in Council in force under the Imperial Acts known as the Extradition Acts 1870 to 1935, those Acts applied in the case of a foreign State specified in the Order; and (b) those Acts, as they so applied, extended to Singapore,

[Part II of the Extradition Act 2000] applies in relation to that State.

The Extradition Act 2000 and its predecessor, the Extradition Act 1968 (Act 14 of 1968) were intended to govern the extradition arrangements with declared Commonwealth countries and...