Yong Vui Kong v PP

• Jurisdiction: Singapore
• Judgment Date: 31 December 2009
• Docket Number: Criminal Motion No 41 of 2009
• Court: Court of Appeal (Singapore)

Yong Vui Kong

Plaintiff

and

Public Prosecutor

Defendant

[2009] SGCA 64

Chan Sek Keong CJ

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Criminal Motion No 41 of 2009

Court of Appeal

Courts and Jurisdiction–Jurisdiction–Appellate–Whether Court of Appeal functus officio after delivery of judgment on case–Whether Court of Appeal had inherent jurisdiction to re-open appeals in light of discovery of new exonerative evidence or mistake on the law made in judicial process

Courts and Jurisdiction–Jurisdiction–Appellate–Whether Court of Appeal had jurisdiction to permit applicant who had withdrawn his appeal to pursue his appeal–Whether withdrawal was a nullity–Whether withdrawal vitiated by mistake–Whether applicant's failure to appreciate that he might proceed with appeal by challenging constitutional validity of mandatory death penalty was a fundamental mistake

Courts and Jurisdiction–Jurisdiction–Appellate–Whether Court of Appeal's jurisdiction and power to permit appeal was circumscribed by President's decision to refuse to grant clemency to applicant

Criminal Procedure and Sentencing–Stay of execution–Whether High Court had jurisdiction and power to grant stay of execution of death sentence under s 251 Criminal Procedure Code (Cap 68, 1985 Rev Ed)

The applicant, who had been convicted of drug trafficking and sentenced to death, having previously withdrawn his appeal, sought an extension of time to pursue his appeal against sentence and conviction. The applicant's counsel argued that the applicant's withdrawal of the appeal was a nullity on the ground that it was clearly vitiated by the applicant's confused state of mind at the time of the withdrawal: the applicant had been deluded in thinking that by appealing, he had to lie and avoid owning up to what he had done; and the applicant was also mistaken in believing that he could not appeal on purely legal grounds by, inter alia, challenging the constitutional validity of the mandatory death penalty.

The Prosecution, relying, inter alia, on the fact that clemency from the President had been sought and refused, argued that the Court of Appeal had no jurisdiction to hear the criminal motion because it was functus officio. The Prosecution also challenged the decision of the High Court judge to grant a stay of execution of the applicant's death sentence under s 251 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) ( CPC ) pending the hearing of the criminal motion by the Court of Appeal.

Held, allowing the applicant to pursue his appeal:

(1) It remained an open question whether the Court of Appeal had the inherent jurisdiction to re-open an appeal (on which judgment had been delivered) in the light of new evidence which could prove that the offender had been wrongly convicted or if it could be shown that the court had made a mistake on the law. None of the previous cases in which the Court of Appeal had made observations with regard to this question (in Abdullah bin A Rahman v PP [1994] 2 SLR (R) 1017, Lim Choon Chye v PP [1994] 2 SLR (R) 1024, Jabar bin Kadermastan v PP [1995] 1 SLR (R) 326, Vignes s/o Mourthi v PP [2003] 4 SLR (R) 518 and Koh Zhan Quan Tony v PP [2006] 2 SLR (R) 830 ( the previous CA decisions )) actually involved a situation in which new exonerative evidence was discovered or where an error of law had been made: at [7] to [14].

(2) The Court of Appeal would have to reconsider, in an appropriate case, the main justifications in the previous CA decisions (as to why the Court of Appeal was functus officio after it had delivered judgment on the case) which rest on the public interest in having finality of litigation and the absence of an express provision in the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) ( SCJA ) to empower the court to review its decisions. In criminal cases, the finality principle should not be applied strictly as it would subvert the true value of the judicial process, which is to ensure safe convictions. Also, an argument which the Court of Appeal should take into account (but which has never been addressed to the court) was that where Art 93 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) ( the Constitution ) vested the judicial power of Singapore in the Supreme Court and the SCJA did not expressly state when the court's jurisdiction in a criminal appeal ended so that it could not exercise such power, there was no reason for the court to circumscribe its own jurisdiction to render itself incapable to correct a miscarriage of justice: at [15] and [16].

(3) The President's decision to refuse to grant clemency did not affect the jurisdiction or power of the Court of Appeal to permit the applicant to pursue his appeal. The President's decision was an exercise in executive power under Art 22P of the Constitution and had no effect on the judicial power of Singapore which was vested by Art 93 of the Constitution. The President's decision to refuse clemency might be a relevant factor if it could be shown that the application was an abuse of process since clemency had already been sought, but this was not the case in the present proceedings: at [22] and [23].

(4) The applicant's withdrawal of his appeal was a nullity. The applicant had failed to appreciate that he could have proceeded with his appeal on the law, specifically, by challenging the constitutional validity of the mandatory death penalty under Arts 9 (1) and 12 (1) of the Constitution. This mistake as to whether he was entitled to his fundamental rights under the Constitution was a fundamental mistake which vitiated the withdrawal. The withdrawal was thus a nullity, ie, it had no legal effect whatsoever. Hence, r 18 (2) of the Supreme Court (Criminal Appeals) Rules (Cap 322, R 6, 1997 Rev Ed) which provided that withdrawn appeals were deemed dismissed did not apply: at [17] to [20] and [25] to [28].

(5) While the High Court had no jurisdiction or power under s 251 of the CPC to grant a stay of execution of the death sentence, all this meant was that all such applications should be fixed before the Court of Appeal for hearing. Last, the court acknowledged the propriety and wisdom of the President's decision to grant a respite to the applicant until the determination of the present proceedings but added that it would have been inconceivable for the Executive to proceed with the carrying out of the death sentence when court proceedings in relation to the validity of the sentence were pending: at [37] to [39].

Abdullah bin A Rahman v PP [1994] 2 SLR (R) 1017; [1994] 3 SLR 129 (refd)

Boyce v R [2005] 1 AC 400 (refd)

Jabar bin Kadermastan v PP [1995] 1 SLR (R) 326; [1995] 1 SLR 617 (refd)

Jones v Curling (1884) 13 QBD 262 (refd)

Koh Zhan Quan Tony v PP [2006] 2 SLR (R) 830; [2006] 2 SLR 830 (refd)

Lim Choon Chye v PP [1994] 2 SLR (R) 1024; [1994] 3 SLR 135 (refd)

Matthew v State of Trinidad and Tobago [2005] 1 AC 433 (refd)

Nguyen Tuong Van v PP [2005] 1 SLR (R) 103; [2005] 1 SLR 103 (refd)

Ong Ah Chuan v PP [1979-1980] SLR (R) 53; [1980-1981] SLR 48 (refd)

R v Burt (Gavin) [2004] EWCA Crim 2826 (refd)

R v Joseph Douglas Peters (1974) 58 Cr App R 328 (refd)

R v Medway [1976] QB 779 (refd)

R v Munisamy [1975] 1 All ER 910 (refd)

Reyes v R [2002] 2 AC 235 (refd)

Veerasingam v PP [1958] MLJ 76 (refd)

Vignes s/o Mourthi v PP [2003] 4 SLR (R) 300; [2003] 4 SLR 300 (refd)

Vignes s/o Mourthi v PP [2003] 4 SLR (R) 518; [2003] 4 SLR 518 (refd)

Watson v R [2005] 1 AC 472 (refd)

Wee King Hock v PP [1971] 2 MLJ 96 (refd)

Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Arts 9 (1) , 9 (3) ,12 (1) , 22P (2) ,93, 162

Criminal Procedure Code (Cap 68,1985 Rev Ed) s 251 (consd) ;s 220

Misuse of Drugs Act (Cap 185,2001 Rev Ed) ss 5 (1) (a) ,33

Republic of Singapore Independence Act (Act 9 of 1965) s 8

Supreme Court (Criminal Appeals) Rules (Cap 322, R 6, 1997 Rev Ed) r 18 (2)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 50 (consd) ;ss 44 (3) ,45, 47,51 (4) , 57 (1) ,57 (2) , 57 (3) ,57 (4)

M Ravi (L F Violet Netto) for the applicant

Jaswant Singh, Edwin San and Chua Ying-Hong (Attorney-General's Chambers) for the respondent.

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...