Yong Vui Kong v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 31 December 2009
• Neutral Citation: [2009] SGCA 64
• Citation: [2009] SGCA 64
• Docket Number: Criminal Motion No 41 of 2009
• Plaintiff Counsel: M Ravi (L F Violet Netto)
• Defendant Counsel: Jaswant Singh, Edwin San and Chua Ying-Hong (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing
• Year: 2009
• Published date: 06 January 2010
• Court: Court of Three Judges (Singapore)

31 December 2009

Chan Sek Keong CJ (delivering the grounds of decision of the court):

Introduction

1 This was an application by Yong Vui Kong (“the applicant”), a 21-year-old Malaysian Chinese male (who had been convicted of drug trafficking and sentenced to death on 14 November 2008), for an extension of time to pursue his appeal against sentence and conviction. In the event that this was refused, the applicant sought, in the alternative, an order to set aside the death sentence on the ground that the statutory provisions in the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“MDA”) which provided for a mandatory death penalty were unconstitutional. The applicant also filed Originating Summons No 1385 of 2009 (“OS 1385/2009”) seeking, inter alia, a stay of execution of his death sentence.

2 At the conclusion of the hearing of the application, we allowed the applicant, who had previously withdrawn his appeal, to pursue his appeal with the consequence that the death sentence was stayed as an operation of law under s 51(4) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”). It was therefore unnecessary for us to consider OS 1385/2009 for a stay of execution of the sentence. We now give our reasons for so granting the application.

Background

3 The applicant was convicted of trafficking in 47.27g of diamorphine, an offence under s 5(1)(a) and punishable under s 33 of the MDA, and sentenced to suffer death (see Public Prosecutor v Yong Vui Kong [2009] SGHC 4). The applicant appealed. Six days before the hearing of the appeal, the applicant’s counsel, Mr Kelvin Lim, in a letter dated 23 April 2009 informed us that the applicant wished to withdraw his appeal. In due course, at the hearing before this court on 29 April 2009, the appeal was withdrawn. Subsequently, the applicant petitioned the President for clemency, but this was refused on 20 November 2009.

4 The applicant’s brother was informed of the President’s decision on 23 November 2009. Soon thereafter, the applicant’s brother instructed Mr M Ravi to file the present criminal motion. The criminal motion was filed on 30 November 2009, four days before the sentence was due to be carried out on 4 December 2009. In the criminal motion filed, Mr Ravi had omitted, as one of the prayers, the extension of time sought for the applicant to pursue his appeal. The criminal motion was thus fixed to be heard by a High Court judge (“the Judge”) instead of the Court of Appeal. At the hearing of the criminal motion on 2 December 2009, Mr Ravi made an oral application for an extension of time for the applicant to pursue his appeal. He expressed the view that since only the Court of Appeal could grant the extension of time sought, the criminal motion should be heard by the Court of Appeal. The Judge agreed and thus adjourned the matter for the criminal motion to be heard by the Court of Appeal. The Judge ordered a stay of the execution of the death sentence pending that hearing and, in so doing, expressed the view that he had the jurisdiction to order the stay under s 251 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”). His written grounds of decision are set out in Yong Vui Kong v Public Prosecutor [2009] SGHC 274.

5 The Prosecution informed us in a letter dated 3 December 2009 that it wished to challenge the Judge’s decision to grant the stay of execution on the ground that the Judge had no jurisdiction. At the hearing before us, the Prosecution also argued that the Court of Appeal had no jurisdiction to hear the criminal motion because the court was functus officio. In this regard, the Prosecution relied, inter alia, on the fact that the applicant had sought but had been refused clemency from the President.

Issues raised

6 The issues raised for this court’s consideration were as follows:

(a) Whether this court had the jurisdiction to permit the applicant, who had previously withdrawn his appeal, to pursue his appeal.

(b) Whether the Judge had the jurisdiction to order a stay of execution of the death sentence.

Whether this court had the jurisdiction to permit the applicant who had previously withdrawn his appeal to pursue his appeal

7 It has been held by this court in four previous cases that this court had no jurisdiction to re-open and re-examine the substantive merits of a criminal case either on the facts or on the law on the basis of which judgment was delivered and sentence affirmed or passed by the court, as the case may be. This court came to this conclusion on the ground that, as the jurisdiction and powers of the court are statutory in nature, the relevant statute, viz, the SCJA had not provided for further proceedings after the court had pronounced its judgment and, therefore, its jurisdiction on the case terminated at that point and the court became functus officio. In Abdullah bin A Rahman v PP [1994] 3 SLR 129 (“Abdullah”), this court refused to hear an application by the appellant to adduce “new” evidence which could prove that he had been wrongly convicted of the offence of abetting one Rashid in the trafficking of drugs. In Lim Choon Chye v PP [1994] 3 SLR 135, the same court also held, for the same reason, that it had no jurisdiction to hear fresh evidence, thereby generating a second appeal, and that the word “appeal” in the SCJA did not mean “more than one appeal”. The court emphasised the need for finality and stability of legal proceedings in all legal systems. In Jabar v PP [1995] 1 SLR 617, this court again held (at 631, [59]) that:

Once the Court of Appeal has disposed of the appeal against conviction and has confirmed the sentence of death, it is functus officio as far as the execution of the sentence is concerned. It is not possessed of power to order that the sentence of death be stayed …

8 Again, in Vignes s/o Mourthi v PP (No 3) [2003] 4 SLR 518, this court re-affirmed the law, as stated in the previous decisions, in dismissing an appeal against the decision of the High Court which had, in Vignes s/o Mourthi v PP (No 2) [2003] 4 SLR 300, dismissed the appellant’s application for a retrial on the ground that the trial judge had admitted inadmissible evidence and also that the appellant had been denied his constitutional right to counsel under Art 9(3) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”) in that the trial judge had refused an adjournment of the trial to enable him to appoint counsel of his own choice. For convenience, we will call this line of cases “the Vignes line of decisions”.

9 In Koh Zhan Quan Tony v PP [2006] 2 SLR 830 (“Koh Zhan Quan Tony”), this court held that the Vignes line of decisions would not apply to a case where the question sought to be raised at the second hearing before the Court of Appeal was not concerned with the substantive merits of the case decided in the first hearing, but went to the jurisdiction of the court itself to hear the appeal in the first place. For example, if, at the first hearing, the Court of Appeal had decided any matter not within its jurisdiction, there would be no decision in law on that question and, therefore, the court could not be functus on that issue, nor could its decision bind itself.

10 In that case, at the second hearing before the Court of Appeal, the applicants had argued that the court had no jurisdiction at the first hearing to hear the appeal by the Prosecution against the decision of the High Court to convict the applicants on the lesser charge of robbery with hurt instead of murder. The applicants contended that the Prosecution’s appeal was, in essence, an appeal against a conviction of the lesser offence of robbery with hurt. The applicants took the position that such an appeal fell without the ambit of s 44(3) of the SCJA (on the jurisdiction of the court to hear and determine criminal appeals) with the consequence that the court was devoid of jurisdiction at the first hearing. In response, the Prosecution argued that the court had no jurisdiction at the second hearing because the court was functus, having already disposed of the appeal on the merits. The court rejected the Prosecution’s argument and held that it had the jurisdiction at the second hearing to hear and determine the issue of whether it had the jurisdiction at the first hearing to hear the Prosecution’s appeal.

11 However, the court affirmed the Vignes line of decisions in cases where the court had validly assumed jurisdiction to hear an appeal and had disposed of it on the merits. Andrew Phang JA (delivering the judgment of this court) observed (at [22]) that:

[If the applications before the court] involved … an attempt to adduce fresh evidence and/or new arguments of law[, this] would be an attempt to re-litigate the substantive merits of the case and re-open a decision that had already been rendered [in a previous appeal]. That would … clearly be impermissible as the court would be functus officio in so far as the substantive merits of the case were concerned as this very same court had already heard and...