Yong Vui Kong v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 03 December 2009
• Neutral Citation: [2009] SGHC 274
• Court: High Court (Singapore)
• Year: 2009
• Citation: [2009] SGHC 274
• Plaintiff Counsel: M Ravi (L F Violet Netto)
• Defendant Counsel: Jaswant Singh and Edwin San (Deputy Public Prosecutors)
• Subject Matter: Criminal Procedure and Sentencing
• Published date: 04 December 2009

3 December 2009

Woo Bih Li J:

1 In Criminal Case No 26 of 2008, Yong Vui Kong (“Yong”) was charged in the High Court (“HC”) with trafficking in 47.27g of a controlled drug, namely diamorphine, an offence under s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“the MDA”). After a trial, Yong was convicted on 14 November 2008 and sentenced to suffer death.

2 Yong filed an appeal in Criminal Appeal No 13 of 2008. However, his then counsel, Mr Kelvin Lim subsequently stated in a letter dated 23 April 2009 to the Registrar of the Supreme Court of Singapore (“the Registrar”) that he was instructed to apply for leave to withdraw the appeal. On 29 April 2009, the Court of Appeal (“CA”) affirmed the decision of the court below after receiving confirmation that Yong was withdrawing his appeal.

3 Mr M Ravi, counsel for Yong, said he had been instructed by Yong’s brother Yong Yun Leong (“Yun Leong”) to act for Yong. Mr Ravi requested to interview Yong in prison and eventually received permission to interview Yong on 2 December 2009.

4 In the meantime, the President of the Republic of Singapore (“the President”) declined Yong’s clemency petition on 20 November 2009. According to Mr Ravi, this decision was conveyed to Mr Lim who in turn conveyed the information to Yun Leong on 23 November 2009.

5 Apparently, information was also given that Yong was due to be executed on 4 December 2009.

6 As a matter of urgency, Mr Ravi filed Criminal Motion No 41 of 2009 (“CM 41/2009”) to, essentially, challenge the constitutionality of capital punishment under the MDA.

7 Although the heading of the Notice of Motion filed in CM 41/2009 referred to the CA, the opening paragraph of the substance referred to a petition “before the Justices of the HIGH COURT…”.

8 CM 41/2009 was fixed for hearing before me on 2 December 2009 as a matter of urgency. On that day, Mr Ravi intimated at the outset that he considered the hearing before me to be before the HC and that CM 41/2009 should be heard by the CA and not the HC. He also accepted that the application ought to have a first prayer for extension of time to appeal to the CA (since the initial appeal had been withdrawn). The application, as it stood, did not have that prayer.

9 In view of the imminent date of execution, Mr Ravi urged me to grant a stay of execution pending the hearing of the application by the CA.

10 Mr Jaswant Singh for the prosecution submitted that I had no jurisdiction to grant a stay of execution. He cited my previous decision in Vignes s/o Mourthi v PP (No 2) [2003] 4 SLR 300 (“Vignes s/o Mourthi No 2”) as authority for that proposition.

11 He also submitted that there were only two avenues available to Yong. First, Yong could seek a stay of execution from the President pursuant to Art 22(P)(1)(b) of the Constitution of the Republic of Singapore (“the Constitution”) or, secondly, Yong could apply for the stay of execution when his application for extension of time to appeal was heard by the CA. Mr Singh’s submission therefore appeared to accept that the CA has jurisdiction to order a stay of execution pending the hearing of the application for an extension of time to appeal.

12 Before I address the submissions, I would like to set out briefly the process of appeal.

13 Under s 45(1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”), every notice of appeal to the CA shall be filed with the Registrar within 14 days after the date on which the decision appealed against was given.

14 Under s 46(1) SCJA, the trial judge shall record in writing the grounds of his decision, if he has not already written a judgment, when a notice of appeal is filed. Such a written judgment or grounds of decision shall form part of the record of proceedings.

15 Under s 46(2) SCJA, the Registrar shall thereafter cause to be served a notice that a copy of the record of proceedings is available.

16 Under s 47(1) SCJA, the appellant is to file a petition of appeal and five copies thereof addressed to the CA within ten days after service of the said notice from the Registrar.

17 Section 50 SCJA deals with the...