Xu Yuanchen v PP

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 18 March 2021
• Docket Number: Criminal Motions Nos 65 and 78 of 2020
• Court: High Court (Singapore)

Xu Yuanchen

and

Public Prosecutor and another matter

[2021] SGHC 64

Sundaresh Menon CJ

Criminal Motions Nos 65 and 78 of 2020

General Division of the High Court

Courts and Jurisdiction — Appeals — District judge dismissing earlier application for disclosure of accused person's investigative statements — Whether application to High Court for production of applicant's investigative statements constituted impermissible contravention of prohibition against appeals being taken against interlocutory rulings

Courts and Jurisdiction — Jurisdiction — Revisionary — District judge dismissing earlier application for disclosure of accused person's investigative statements — Whether invocations of court's revisionary jurisdiction limited to final orders — Whether High Court application for production of applicant's investigative statements was in substance interlocutory appeal that was barred

Criminal Procedure and Sentencing — Disclosure — Definition of “unused material” for purposes of Prosecution's common law disclosure obligations — Whether accused person's investigative statements constituted “unused material” for purposes of Prosecution's common law disclosure obligations

Held, dismissing the applications:

(1) There was no prohibition against invoking the revisionary jurisdiction of the court where the ruling was not a final order: at [16].

(2) The court faced with an application invoking the revisionary jurisdiction of the court for a ruling which was not a final order should consider three things. First, it should consider whether the application was in truth nothing more than an interlocutory appeal disguised as an attempt to invoke the revisionary jurisdiction in order to circumvent the general and presumptive prohibition against interlocutory appeals. Second, it should examine the nature of the relief sought and consider whether the application implicated the sort of mischief that the prohibition against interlocutory appeals was designed to avoid. Third, the court should remind itself that the revisionary jurisdiction was concerned with errors that were so serious as to give rise to grave and serious injustice that struck at the relevant act as an exercise of judiciary power: at [16].

(3) Taking these considerations together, the present applications were in substance interlocutory appeals that were barred: at [17].

(4) An accused person's statements would fall within the universe of unused materials which the Prosecution could be obliged to disclose. This interpretation was supported by the plain language of Muhammad bin Kadar v PP[2011] 3 SLR 1205 (“Kadar”): at [28] and [29].

(5) “Unused material” as understood by Kadar would refer to material that was part of the Prosecution's affirmative rather than its responsive case. It could not be the situation that the evidence remained in limbo, being neither “used” nor “unused”, until the Prosecution (at the close of both parties' cases) could confirm that the evidence would not form part of its responsive case. Such a view would cut against the tenor of the disclosure obligations established in Kadar and would potentially denude the disclosure obligation of much of its significance: at [31].

(6) It was not correct to say that material could not be regarded as “unused” simply because the Prosecution could have used it during trial for impeachment applications or cross-examinations. Such an interpretation tilted the balance in favour of the Prosecution's interest in retaining the potential to use the s 22 CPC statements for cross-examination or to impeach defence witnesses and away from the interest of affording the Defence actual access to evidence that might potentially be important to establish the innocence of the accused person. The Prosecution's interest in using the s 22 CPC statements should be weighed against the accused person's interest in having access to his earlier statements: at [32] and [34].

(7) While the s 22 CPC statements did constitute unused material, the Kadar obligations had not been triggered since there was no indication that the s 22 CPC statements would assist the Defence or weaken the Prosecution's case. This rested on a considered assessment and assertion by the Prosecution that it had reviewed the material and come to the conclusion that the material in question did not come within the ambit of its Kadar disclosure obligations. There was no material before the court to cast doubt on the Prosecution's assessment and its consequent assertion that the statements were not disclosable at the present stage. There was therefore no basis for displacing the working presumption that the Prosecution was in compliance with its Kadar obligations: at [35].

(8) Proceedings being at such a nascent stage, it was difficult to assess whether any prejudice had arisen and, if so, in what manner and to what extent: at [37].

(9) It was open to the applicants to testify as to what had transpired since anything relevant in the s 22 CPC statements would have pertained to matters that were known to them. This was especially so since the applicants claimed to have already known the contents of their own statements. If so, it was unclear how prejudice could possibly result from the Prosecution withholding the statements, the contents of which the applicants were apparently already aware of: at [38] and [39].

[Observation: Although the plain language used in Kadar suggested that the Prosecution's disclosure obligation extended to an accused person's own statements, such a broad reading might not be warranted. The sort of injustice described in Kadar arose in situations where evidence had been gathered by the law enforcement agencies that the accused person could not access or might not even be aware of, and where such evidence was or might be probative of the accused person's innocence. On that reading, the accused person's own statements, being a form of evidence that emanated entirely from the accused person, might not fall within the universe of unused evidentiary material that the Kadar obligations were intended to address: at [42] and [43].]

Case(s) referred to

Ang Poh Chuan v PP [1995] 3 SLR(R) 929; [1996] 1 SLR 326 (refd)

Azman bin Jamaludin v PP [2012] 1 SLR 615 (refd)

Knight Glenn Jeyasingam v PP [1998] 3 SLR(R) 196; [1999] 3 SLR 362 (folld)

Lee Siew Boon Winston v PP [2015] 4 SLR 1184 (folld)

Muhammad bin Kadar v PP [2011] 3 SLR 1205 (refd)

Ng Chye Huey v PP [2007] 2 SLR(R) 106; [2007] 2 SLR 106 (refd)

Ng Siam Cheng Sufiah v PP [2020] 4 SLR 659 (folld)

Oon Heng Lye v PP [2017] 5 SLR 1064 (refd)

PP v Hoo Chang Chwen [1962] MLJ 284 (refd)

PP v Ng Beng Siang [2003] 4 SLR(R) 609; [2003] 4 SLR 609 (refd)

Rajendar Prasad Rai v PP [2017] 4 SLR 333 (refd)

Yap Keng Ho v PP [2007] 1 SLR(R) 259; [2007] 1 SLR 259 (refd)

Facts

Mr Xu Yuanchen (“Mr Xu”) and Mr Daniel De Costa Augustin (“Mr Augustin”) were charged on 12 December 2018. Both claimed trial and at the time of the present applications, the trial was still ongoing.

In the course of trial, Mr Augustin made an application seeking disclosure of the statements he gave to the police during the course of investigations, pursuant to s 22 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“s 22 CPC statements”). His application was denied for three reasons. First, disclosure was not mandated by statute since the parties had opted not to proceed under the statutory criminal case disclosure regime. Second, disclosure was not mandated by the common law either. Common law disclosure obligations (“Kadar obligations”) only attached to “unused material” that was thought to be prima facie credible and relevant to the guilt or innocence of the accused. The district judge hearing the matter (“DJ Tan”) took the view that the statements did not come within the definition of “unused material”. Since the applicants had not yet testified in court, it was uncertain whether the Prosecution might end up using the statements to cross-examine or impeach the testimony of the applicants or possibly even of other witnesses. DJ Tan considered that in such circumstances, where it was not yet certain that the statement would not be used, the statements could not be regarded as unused materials of the sort that the common law disclosure obligations attached to. Third, the applicants' reasons for seeking such disclosure – to ensure regularity and prevent any disparity between the testimony given on the stand and the position reflected in the statements – were not consistent with the rationale for Kadar obligations.

The applicants made further applications to another district judge (“DJ Ng”). DJ Ng dismissed their applications, substantially adopting DJ Tan's reasoning. The applicants then made the present applications seeking disclosure of their investigative statements.

Legislation referred to

Computer Misuse Act (Cap 50A, 2007 Rev Ed) s 3(1)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) ss 241, 263, 266(1)

Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 22 (consd); ss 6, 374, 395, 400(1)

Penal Code (Cap 224, 2008 Rev Ed) s 500

Choo Zheng Xi and Chia Wen Qi Priscilla (Peter Low & Choo LLC) for the applicant in HC/CM 65/2020;

Ravi s/o Madasamy (Carson Law Chambers) for the applicant in HC/CM 78/2020;

Mohammad Faizal SC, Senthilkumaran SabapathyandSheryl Yeo(Attorney-General's Chambers) for the respondent in HC/CM 65/2020 and HC/CM 78/2020.

18 March 2021

Sundaresh Menon CJ:

Introduction

1 These were a pair of criminal motions filed by the applicants, Mr Xu Yuanchen and Mr Daniel De Costa Augustin (“Mr Xu” and “Mr Augustin” respectively), seeking production of all statements that had been recorded from them in earlier police investigations. These statements were recorded on 20 November 2018, pursuant to s 22 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”) and it was their case that these statements (“s 22 CPC statements”) were disclosable pursuant to the Prosecution's common law disclosure...