17 And 18 Criminal Appeals

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Criminal Appeals Right of appeal • No right of appeal unless it is provided for by the law. Section 241 of the CPC Cases in which appeal lies. 241. No appeal shall lie from a judgment, sentence or order of a criminal court except as provided for by this Code or by any other law for the time being in force.

 Once an appeal to the CA is dismissed, there is no right to appeal to the CA again or else there would be no finality to criminal proceedings. Furthermore, any right of appeal may be subject to conditions. Lim Choon Chye v PP [1994] 3 SLR 135 - Facts: The applicant was convicted in the High Court of drug trafficking and sentenced to death. His appeal against conviction and sentence was dismissed by the Court of Appeal after it had heard the submissions of counsel. The applicant filed a criminal motion seeking leave to adduce fresh evidence in relation to his case under s 55 SCJA. s 55 SCJA provides that the CA can hear additional evidence at the appeal stage before any decision has been reached. Issue: Can the CA allow new evidence in relation of an appeal which has already been dismissed? - Held: In regard to the application before it (and to similar applications), the court could not claim for itself jurisdiction to allow yet another appeal against conviction in a case where an appeal has already been heard and dismissed. No legal basis for construing ‘appeal’ in s.55 to mean more than one appeal. o As a creature of the SCJA, the CA has only the powers conferred upon it by the Act. In regard to the application before it (and to similar applications), the court could not claim for itself jurisdiction to allow yet another appeal against conviction in a case where an appeal has already been heard and dismissed. There is no legal basis exists for construing the word `appeal` in s 55 to mean `more than one appeal` in the context of the Supreme Court of Judicature Act. o As a matter of procedure, once the CA has rendered judgment in an appeal heard by it, it is final as far as the appeal is concerned. There is no indication in the SCJA of Parliament`s intention to allow an appellant an indefinitely extended right of appeal in the sense of being able to pursue a second appeal even after his first has been duly heard and dismissed. The need for finality and stability of legal proceedings is common to all legal systems. Moreover the unsuccessful appellant is not without further recourse or remedy, because a petition of clemency lies to the President of the Republic. - Comments: The Court of Appeal said that the Court could not re-hear an appeal; there can be only one right of appeal. Otherwise, there would be no finality to the matter. -

Appeals can be on law or fact but usu for qn of fact shld be careful because appeal court reluctant to interfere with findgs of fact File notice of appeal before advising client and wait for grds of decision – at close of trial magis ony says I find you guity and sentence u to 6 mths imprisonment – usu not detailed reasons

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If appealing, then fie notice of appeal before advising because can peruse magis grds of decision and see if he misdirected himself – better grds for appeal

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Only a party to the proceedings can appeal

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It must relate to a criminal case or matter. Section 247(1) of the CPC. o Judgement, sentence or order means final judgement, sentence or final order – thus case where there is contest on procedural ruling – prosecutor or defence counsel cannot appeal in middle of trial against tt procedural ruling o Such ruling not appealable order within provn of CPC

Procedure for appeal. 247. —(1) Subject to sections 242, 244 and 245 any person who is dissatisfied with any judgment, sentence or order pronounced by any District Court or Magistrate’s Court in a criminal case or matter to which he is a party may prefer an appeal to the High Court against that judgment, sentence or order in respect of any error in law or in fact or, in an appeal against sentence, on the ground that the sentence imposed is manifestly excessive or inadequate by lodging, within 10 days from the time of the judgment, sentence or order being passed or made, with the Registrar of the Subordinate Courts at the court house at which the trial was held, a notice of appeal in triplicate addressed to the High Court.

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Appeal must be against a final order as opposed to procedural rulings.

PP v Hoo Cheng Chwen [1962] MLJ 284

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During trial before the magistrate, a number of statements were sought to be adduced as evidence by the accused. The prosecution, however, thought that it was not necessary to do so. In the end, the magistrate decided that the statements should be adduced as evidence. Prosecution decided to appeal against this decision of the magistrate without proceeding further with the trial; learned DPP appealed against order of magis who ruled in favour of defence tt certain statements taken by police be produced by witness; DPP indicated tt he wished to appeal against magistrate’s order reqg him to prod documents; case allowed to go on appeal Rose CJ held that in a case where there is a contest as to a certain procedural ruling made by the magistrate, the prosecutor or the defence cannot appeal in the middle of the trial against that procedural ruling because such a ruling is not an appealable order within the provisions of the Criminal Procedure Code. The proper time to appeal against the procedural ruling is at the end of the trial, after the principal matter before the magistrate had been determined.  chief justice rose said – to arrive at any other conclusion wld be to open doo to no of appeals in course of crim trial on pts which are procedural in essence Comments: Ruling on admissibility of statements is non-appealable. Note: Although the defence cannot appeal against a ruling on admissibility in the middle of trial, it may contest the ruling and raise the issue as a ground for appeal after the trial is over. : - practical because a lot of rulings by court – if every unhappy party wants to appeal, will have a lot of proceedings

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Maleb bin Su and cheak yoke thong v PP 1948 1 MLJ 311 appeal against dismissal of prelim application to court tt magis disqualify himself fr hearing case on grds tt he belonged to service of which AG was head and issues arising which involved AG which wld result in likelihood of bias - Judge held tt no arg tt ejusdem genesis rule applies to word ‘order’ which is preceded by words judgement and sentence; order must be final order in sense tt real in effect as in case of judgement or sentence Test for determining finality of order is to see whether judgement or order finally disposes of rights of aprties 2 stages to lodge appeal 1) close of prosecution case – if court decides to acquit a person, that will be final order. whoever dissatisfied ie prosecution can file appeal. 2) If court were to call for accused person’s defence, this is not appealable because once defence is called there is still a lot of evid that has to be heard ie the defence. Only after defence case is closed, conviction, then can appeal. ** procedural rulings not appealable – eg evidence rejected or admitted/ adjournments granted or not/ etc Types of appeal

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Generally appeals are against sentence and/or conviction

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When an accused is acquitted, an appeal can only be lodged by the DPP. Section 245 of the CPC. o Where pricate prosecution, if acquittal, appeal against acquittal can only be lodged by DPP and NOT complainant o Usu what will happen is tt private complainant will see DPP and show evid to arg why there shld be appeal. But it must be DPP who appeals.

Appeal against acquittal. 245. When an accused person has been acquitted by a District Court or Magistrate’s Court there shall be no appeal except by the Public Prosecutor.

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Where an accused has pleaded guilty, he cannot appeal against conviction. He can only question legality or extent of sentence. Section 244 of the CPC and Section 44(2) of the SCJA.

Section 244 of the CPC When plea of guilty limited right of appeal. 244. When an accused person has pleaded guilty and been convicted by a District Court or Magistrate’s Court on that plea there shall be no appeal except as to the extent or legality of the sentence. Section 44(2) of the SCJA Jurisdiction to hear and determine criminal appeals 44. —(2) Where an accused person has pleaded guilty and been convicted on such plea, there shall be no appeal except as to the extent or legality of the sentence.

Mok Swee Kok v PP [1994] 3 SLR 140

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The appellant was charged with abetting a robbery with hurt. He pleaded guilty to the charge and was convicted. He later appealed against sentence. An issue arose as to whether the statement of facts sufficiently supported the charge of abetting robbery with hurt to which the appellant had pleaded guilty. Accused was involved in a robbery case where his accomplices strangulated the owner of the house to death. He had acted as a look-out. He was charged with abetting the act of robbery with hurt and pleaded guilty before the HC. He appealed against the sentence imposed to the CA. Issue: Can CA re-open the accused’s conviction even though he had pleaded guilty and was merely appealing against the sentence? CA held that: 1. Once a person has pleaded guilty and convicted, s 44(2) SCJA prevents him from appealing against his conviction. However, this does not preclude the CA from inquiring into the propriety of the conviction as s 54(1) SCJA allows this when there are serious doubts on the legality of the conviction. 2. The powers of inquiry are not the same as those of revision exercised by the HC. The powers are limited. 3. In such a situation, its powers were governed by s 54(1) of the Act. Section 54(1), properly construed, empowered the court to inquire into the propriety of the conviction even where an appellant pleaded guilty. 4. Section 54(1) did not, however, give the Court of Appeal the sort of far-reaching revisionary jurisdiction exercised by the High Court over the subordinate courts. Nor does it alter the stringent rule in s 44(2) of the Act barring appeals against conviction by accused persons who pleaded guilty. 5. On the facts, the CA is empowered to re-open the accused’s conviction as the offence of abetting robbery with hurt is not made out. All the accused did was to act as a look-out. The strangling of the house owner by his accomplices is not a probable consequence of his abetting the house-breaking to commit theft. Therefore, a conviction of abetting housebreaking should be substituted and the sentence reduced accordingly pursuant to s 54(4) SCJA. 6. On the facts the conviction was quashed because the statement of facts did not sufficiently support the charge. A conviction for abetting housebreaking was substituted instead.

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Subordinate Court Appeals to High Court

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Appeals from Magistrate’s Court / District Court are heard by the High Court. No further right of appeal. Only a limited right to have question of law of public interest sent to Court of Appeal.(which has arisen during hearing of appeal and affected outcome of appeal – otherwise does not qualify under s60) Section 60 of the SCJA o s 60 SCJA provides that when an appeal from the subordinate court is decided by the HC, any of the party can apply to have questions of law of public interest be referred to the CA and the CA may (in the case of parties other than the PP) and must (in the case of the PP) refer the questions to the CA.

Reference to Court of Appeal of criminal matter determined by High Court in exercise of its appellate or revisionary jurisdiction 60. —(1) When a criminal matter has been determined by the High Court in the exercise of its appellate or revisionary jurisdiction, the Judge may on the application of any party, and shall on the application of the Public Prosecutor, reserve for the decision of the Court of Appeal any question of law of public interest which has arisen in the matter and the determination of which by the Judge has affected the case. (2) An application under subsection (1) shall be made within one month or such longer time as the Court of Appeal may permit of the determination of the matter to which it relates and in the case of an application by the Public Prosecutor shall be made by him or with his written consent. (3) When a question has been reserved under subsection (1), the Judge who has reserved the question may make such orders as he may see fit for the arrest, custody or release on bail of any party in the case. (4) The Court of Appeal shall hear and determine the question reserved under subsection (1) and may make such orders as the High Court might have made as the Court of Appeal may consider just for the disposal of the case. (5) For the purposes of this section, any question of law which the Public Prosecutor applies to be reserved or regarding which there is a conflict of judicial authority shall be deemed to be a question of public interest.

Abdul Salam bin Mohd Salleh v PP [1990] 3 MLJ 280 Facts: o The accused was convicted for an offence under Section 201 of the PC in the subordinate courts.

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His appeal having been dismissed by the High Court, the accused applied under Section 60 of the SCJA to have eight questions of law of public interest referred to the Court of Criminal Appeal.  In the course of preparing for the appeal, the district judge referred to another provision under the Penal Code which the accused was not charged with. Accused argued that the error caused injustice to him.  HC held that there was no injustice but allowed for several questions to be sent out to the CA for consideration. Police officer investigating offence tried to destroy some evid – statement taken fr accused in which e admitted offence. He put it into his drawer and then recorded fresh statement fr accused person. He had told accused not to admit offence. Accused now denies the offence. Some suspicion of corruption involved which was why he discarded first statement. He was prsecuted. Convicted by district judge. Appeal heard by Chan sek Keong. He dismissed appeal, but during course of appeal, some qns of law arose – were public interest., and he certified these qns to be answered. These qns were answered in CA – all against accused persons. Conviction therefore upheld.

CA held that: o In Singapore, most cases are tried in the subordinate courts. The normal course is for the convicted person to appeal to the HC. However, the right of appeal does not go beyond that as the public’s interest in having finality in criminal proceedings must be balanced against it. However, we do recognise in the form of s 60 SCJA instances where certain questions of law of public interest should be settled by the CA. But it is doubtful whether s 60 SCJA should have the effect of an appeal. o Questions which by their nature cannot affect the outcome of cases other than those from which they arose are unlikely to fall within its ambit. Settled points of law or novel points which can be decided by the application of established principles are unlikely to be intended. o (1) Even if a question satisfied all the prescribed conditions of Section 60 SCJA, the High Court still had the discretion whether or not to refer a question to the Court of Criminal of Appeal, where it was invoked by a party other than the public prosecutor. o (2) The public interest in giving a convicted person the right to have his conviction corrected on appeal had to be balanced against the public interest that there had to be finality in the proceedings. o (3) Section 60 of the Act was not an ordinary appeal provision to argue points of law, which were settled or novel points which could be decided by the application or extension of established principles of law or the application of statutory provisions, which had been authoritatively construed by higher courts. The provision should be invoked sparingly.

Wong Sin Yee v PP [2001] 3 SLR 197 – Example of question of law of public interest - Facts: The accused was convicted for an offence under s 13A(1)(a) of the Miscellaneous Offences (Public Order & Nuisance) Act in the subordinate courts. His appeal having been dismissed by the High Court, the accused applied under Section 60 of the SCJA to have a question of law of public interest referred to the Court of Criminal Appeal. (Question of law related to s199(1) CPC – whether an offence can be compounded without the consent of the court, if the accused pays compensation to the victim before the court takes cognisance of the matter.) Lawyer was a road bully. He was charged with two offences, one for alarming a passenger in the other car with the use of certain words (“Why call your father, call Lee Kuan Yew or the fucking police!”), and the other for using his handphone to hit the other driver. He offered as compensation $1000 to the complainants in settlement of the case. However, the magistrate court went on to convict him of the two charges. He was sentenced with a fine and a jail term. He appealed on the basis that s 199 CPC allowed for composition (noun of compound) of offences without the need for the court’s consent before the court takes cognisance of the offences. Yong Pung How CJ held that: o Although s 199 CPC is open to two interpretations, the one offered by the accused undermines the basis of our criminal jurisprudence because rich people would be able to get away with their crimes without the court’s consent by paying the victims. Therefore, the prosecution’s interpretation is preferred (i.e. need to get court’s consent before one can compound the offence). o Accused after the matter was decided requested that I refer a question of public interest for the consideration of the CA. The question is basically that raised in this appeal: Whether the court’s consent is needed for composition even though the composition took place before the court took cognisance of the offence? s 60 SCJA allows the HC to refer questions of public interest to the CA but this is not a case to exercise the discretion in favour of accused. o s 60 should be applied sparingly as our local jurisprudence show. To invoke s 60, several conditions must be met (Ng Ai Tiong v PP): (a) There must be a question of law. (b) This question of law must be one of public interest and not of mere personal importance to the parties alone.

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(c) The question must have arisen in the matter dealt with by the High Court in the exercise of its appellate or revisionary jurisdiction. (d) The determination of the question by the High Court must have affected the outcome of the case. The submission of the accused is that there are conflicting authorities on this point. This is not true. The position is already settled in a local case cited by the prosecution. The case cited by the accused was entirely obiter on the point. Furthermore, in the case cited by the prosecution, the case cited by the accused was distinguished on the basis that it was based on an Indian provision which is dissimilar to our local provision. Therefore, no discretion would be exercised in favour of the accused. It should be borne in mind that where the application is brought by any party other than the Public Prosecutor, the power of the High Court under s 60 is discretionary in nature. This means that, even if all the above requirements have been satisfied, the court still retains the discretion to disallow a reference to the Court of Appeal. The above listed conditions have been extensively interpreted and examined by previous local judicial authorities. In all these cases, it has been the common emphasis that the discretion under s 60, SCJA, must be exercised sparingly by the High Court. This is to give recognition and effect to Parliament’s intention for the High Court to be the final appellate court for criminal cases commenced in the subordinate courts. The importance of maintaining finality in such proceedings must not be seen to be easily compromised through the use of such a statutory device. In Abdul Salam bin Mohamed Salleh v PP [1990] SLR 301, 311; [1990] 3 MLJ 275, 280, Chan Sek Keong J [as he then was] had cautioned aptly that: [Section 60, SCJA] is not an ordinary appeal provision to argue points of law which are settled or novel points which can be decided by the application or extension of established principles of law or the application of statutory provisions which have been authoritatively construed by higher courts. Hence, it is imperative that s 60 of the SCJA is utilised only in exceptional cases so as to ensure that the proper purpose of the section is not abused to serve as a form of ‘backdoor appeal’.

Appeals to the CA from High Court

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Appeals from High Court decisions (in the exercise of its original criminal jurisdiction) lie to Court of Appeal. Section 29A (2) of the SCJA. (eg in murder case/ rape offence etc)

Jurisdiction of Court of Appeal 29A. —(2) The criminal jurisdiction of the Court of Appeal shall consist of appeals against any decision made by the High Court in the exercise of its original criminal jurisdiction, subject nevertheless to the provisions of this Act or any other written law regulating the terms and conditions upon which such appeals may be brought.

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An appeal to the CA can be against a sentence or a conviction (in the case of the accused) or an acquittal (in the case of the prosecution). [s 42(1) SCJA]

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Section 42(1) of SCJA o Appeals to be against acquittal or against sentence imposed on convicted person by High Court in its original criminal jurisdiction (no specific reference to manifestly excessive or inadequate – slight difference)

Interpretation of this Part 42. —(1) In this Part, unless the context otherwise requires, “appellant” includes the Public Prosecutor when he appeals under this Part against the acquittal of any person by the High Court or against the sentence imposed on any person convicted by the High Court in the exercise of its original criminal jurisdiction. Tan Koon Swan v PP [1987] 2 MLJ 135 - MCA politician. Caught in sg for commercial crime and posecuted. Sentenced to imprisonment by HC. Case head in HC. Got long sentence of imprisonment for crime committed. The accused was charged and convicted of the offence of abetting a director of a public listed company in the commission of the offence of criminal breach of trust involving the interest due to a stock-broking company in connection with the acquisition of shares by a subsidiary of the public listed companyAccused was convicted in the HC of abetting a Pan-El director in committing CBT. He was sentence to imprisonment and $500,000 fine. He appealed against the sentence. CA held that: 1. The CA in considering an appeal as to the sentence will not interfere unless: (a) The judge made the wrong decision as to the proper factual basis for the sentence;

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(b) There had been an error on the part of the trial judge in appreciating the material placed before him; (c) The sentence was wrong in principle; (d) The sentence imposes was manifestly excessive. 2. None of these could be shown on the facts by the accused. Therefore, the sentence was upheld. Even when an appeal to the CA is with regards to the sentence passed, the CA can inquire into the propriety of the conviction (although the issue is not raised in the appeal) when there are serious doubts as to its legality.

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Procedural matters

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Note: provn in CPC are those where district or magis court case; SCJA governs cases in HC. Some similarity in provisions but wording may be diff; time frames may also be diff

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Section 247 of the CPC – DC or MC Appeal must relate to a criminal case or matter. - Must be by person who is party. - In respect of any error of law or of fact. - That sentence is manifestly excessive or inadequate - Lodge notice in triplicate within 10 days of decision being given with Registrar (time factor), Subordinate Courts (appeal clerk will serve 1 copy on respondent, public prosecutor) Notice is addressed to the High Court.

Procedure for appeal. 247. —(1) Subject to sections 242, 244 and 245 any person who is dissatisfied with any judgment, sentence or order pronounced by any District Court or Magistrate’s Court in a criminal case or matter to which he is a party may prefer an appeal to the High Court against that judgment, sentence or order in respect of any error in law or in fact or, in an appeal against sentence, on the ground that the sentence imposed is manifestly excessive or inadequate by lodging, within 10 days from the time of the judgment, sentence or order being passed or made, with the Registrar of the Subordinate Courts at the court house at which the trial was held, a notice of appeal in triplicate addressed to the High Court. Notice of appeal. (2) Every notice of appeal shall contain an address at which any notices or documents connected with the appeal may be served upon the appellant or upon his advocate. (3) When a notice of appeal has been lodged the court appealed from shall make a signed copy of the grounds of decision in the case and cause it to be served upon the appellant or his advocate by leaving it at the address mentioned in the notice of appeal, or by posting it by registered post addressed to the appellant at that address. Petition of appeal. (4) Within 10 days after the copy of the grounds of decision has been served as provided in subsection (3), the appellant or his advocate shall lodge with the Registrar of the Subordinate Courts at the court house at which the trial was held a petition of appeal in triplicate addressed to the High Court. (5) Every petition of appeal shall state shortly the substance of the judgment appealed against and shall contain definite particulars of the points of law or of fact, if any, in regard to which the court appealed from is alleged to have erred. - Form 42 has essential format Where only qn of sentence involved, by and large easy job; but in appeals against sentence, may be suff to state in petition tt sentence is manifestly excessive But where possible, definite partrs shld be stated as envisaged by s247.5 the form of a Petition of Appeal is given at the back of the CPC, Schedule B, Form 42 (6) The District Court or Magistrate’s Court may, in its discretion, require the appellant to give security for the costs of appeal in such sum not exceeding $75 as it considers reasonable. (7) If a petition of appeal is not lodged within the time prescribed by this section the appeal shall be deemed to have been withdrawn and the trial court shall enforce its sentence or order if any stay of execution has been granted, but nothing herein shall be deemed to limit or restrict the powers conferred upon the High Court by section 250. (8) In the case of an appeal by the Public Prosecutor no fee shall be payable nor shall any security be required.

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Under 247.1, practice in sg is tt notice of appeal must be signed by appellant in view of fact tt no ref made to advocate in tt subsenction whereas in 247.4 of petition of appeal, it is signed by appellant OR his advocate in view of presence of disjunctive ‘or’ But in Jayasankaran v PP 1983 1 MLJ 379 – judge on hearing appeal struck out petition of appeal as it was signed by advocate and not by appellant; qn of law referred to federal court – whether petition of appeal signed by only solicitor for appellant acting on auth of appellant meets reqts of our equiv s247.4 o CA decided tt ans in affirmative o Neither subsections 1 or 4 signified signatory to notice or petition; also does not provide for appellant to do so personally or in person as some legislative enactments specifically prescribe o Therefore attracted the maxim ‘qui facit per alium facit per se’ (he who does an act through another deemed in law to do it himself) : - Qn of law answered affirmatively only in respect of petition so counsel shld cont to ex caution and get appellant to sign notice of appeal personally

The Petition Of Appeal It should contain: o Definite particulars of points of law and fact o Be comprehensive o Insufficient to state merely that “trial judge’s decision was against the weight of evidence” or that the sentence was “manifestly excessive”. There must be further particulars given. o A good petition may make the difference to the success or failure of an appeal. Preparation To be contemporaneous with filing of petition of appeal if same is to be meaningful Contents must be well considered early stage Chief enemy is time Most appeals fixed by registrar so tt usu adeq notice of hearing dates Occasionally may get call fr HC informing tt appeal fixed for following wk or wk after Normally happens iro straightforward cases involving appeals against sentnces

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Section 247(4) of CPC

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(after lodging notice) - After service of grounds of decisions (by court), the appellant or his advocate shall lodge the petition of appeal within 10 days. Petition to state shortly the substance of the judgement and contain definite particulars of the points of law or of fact, in regard to which court has erred. See also Form 42 Schedule B, CPC. (c.f. HC – 14 days and 10 days for filing notice and petition respectively) – 45.1 and 47.1 SCJA; s60 SCJA 1 mth to refer qns of law of public interest If petition not lodged, appeal deemed to have been withdrawn. 247.1 – ‘from’ 10 days – whether time runs fr date judgement or sentence is given or following day • s51 interpretation act – • 51a) – whenever word from is used, date on which event happens must be excluded; so in this case day when judgement or sentence is passed will be excluded fr computation

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s51(b) – last date for filing notice of appeal – Sundays and holidays shld be excluded in any period where time is reckoned; if 10th day is Sunday or holiday, then gain extra day • Kentucky fried chicken v lembaga bandaran, petaling jaya 1976 2 MLJ 145 – in s247.4 operative word is after rather than from, so petition of appeal is to be filed 10 days AFTER a copy of grds of decsision has been served • use of after much clearer and excludes the day on which act is done so tt time runs fr following day • eventual result isno practical diff bet 247.1 and 247.4

The Skeletal Arguments • • • • •

These must be sent to Appeal Court before the hearing. o To be served on court at least a wk before appeal is heard Be brief and shld do no more than indicate heads of arg to be canvassed Grping of common grds of apepal shld be achieved and focus on main themes established Exchanged with the other party Will be deemed to have been read by appeal judge(s) o So with oral time, elaborate and highlight the impt pts.

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Should contain adequate reference to pages of the record of the appeal Have an index if they are voluminous Bundle of authorities to be included 3 to 5 sets depending on where appeal is to be heard

What is the procedure for Appealing with respect to HC trials •

Section 44(4) of the SCJA - HC - Question of fact or a question of law or mixed question

Jurisdiction to hear and determine criminal appeals 44. —(4) An appeal may lie on a question of fact or a question of law or on a question of mixed fact and law

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Section 45(1) of SCJA o Notice to file with High Court Registrar within 14 days of decision.(c.f. sub courts 10 days) o To state shortly the substance of the judgment appealed against and be signed by appellant or his counsel.

Notice of appeal 45. —(1) Every appeal shall be by notice in writing, which shall be filed with the Registrar within 14 days after the date on which the decision appealed against was given.

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Section 47(1) of SCJA o Petition to be filed within 10 days: 5 copies of petition o Petition to be signed by appellant or his counsel o To contain particulars of the matters of law or of fact, trial court erred. o Except with leave of Court, you cannot rely on other grounds. (so must state all grds! Otherwise must apply for leave)

Petition of appeal 47. —(1) Within 10 days after service of the notice referred to in section 46 (2), the appellant shall file with the Registrar a petition of appeal and 5 copies thereof addressed to the Court of Appeal.

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Section 47(3) of SCJA o If petition not filed, appeal deemed to be withdrawn.

(3) Except by leave of the Court of Appeal, the appellant shall not be permitted, on the hearing of the appeal, to rely on any ground of appeal other than those set forth in the petition.

Extension of time

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Section 250 CPC

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High Court can permit an appeal, on application, if person has not observed any requirement of this Code. Court can therefore extend time for appealing

Appeal specially allowed in certain cases. 250. The High Court may, on the application of any person desirous of appealing who is debarred from so doing upon the ground of his not having observed some formality or some requirement of this Code, permit an appeal upon such terms and with such directions to the District Judge or to the Magistrate and to the parties as the Court considers desirable in order that substantial justice may be done in the matter.

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Section 50 of SCJA o Court of Appeal can extend time or permit an appeal if requirements not observed.

Appeals out of time and formal defects 50. The Court of Appeal may, in its discretion, on the application of any person desirous of appealing who may be debarred from so doing by reason of his not having observed some formality or some requirement of this Act, permit an appeal upon such terms and with such directions as it may consider desirable in order that substantial justice may be done in the matter, and may, for that purpose, extend any period of time prescribed by section 45 or 47. Lim Hong Kheng v Public Prosecutor [2006] 3 SLR 358

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Facts The applicant filed her notice of appeal against a conviction under the Employment of Foreign Workers Act (Cap 91A, 1997 Rev Ed) within the prescribed time. Her solicitors at the time received certified copies of the notes of evidence and the grounds of decision from the Registrar of the Subordinate Courts on 12 April 2006. However, the documents were sent to the applicant a number of days later; she only received the grounds of decision on 21 April 2006 During this time, the applicant had decided to engage new solicitors. The new solicitors attempted to file a petition of appeal on 24 April 2006. The petition was rejected as the applicant had failed to file the petition within the statutorily prescribed period (ie within ten days of receiving the grounds of decision). The applicant thus brought a motion seeking an extension of time to file her petition, through an exercise of the court’s discretionary power to order accordingly under s 250 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“the CPC”). Held, granting the motion: o (1) Section 250 of the CPC conferred a broad discretion upon the court and in the exercise of that discretion, the court was to be guided by the objective that “substantial justice may be done in the matter”. In considering what would achieve substantial justice in the matter, it was inappropriate to consider the wider interests of society at large if these were not directly relevant to the case at hand. Rather, substantial justice would be done if a rightful conviction was upheld and a wrongful one quashed: at [10] and [12]. o (2) The discretion in s 250 was not limited by a consideration of whether the applicant had the benefit of a presumption of innocence operating in her favour at the time of the application. There was no reason for the court to take a less tolerant view of the application because the applicant had been convicted: at [13] and [14]. o (3) There was no hard and fast rule that the default of one’s solicitors could or could not afford a basis for an extension of time. In each case, it was a matter for the court’s discretion having regard to all the circumstances of the case: at [20]. o (4) While s 250 conferred a measure of flexibility on courts to ensure that transgressions could be excused in appropriate cases, a party had to put forward sufficient material to justify the exercise of discretion in his favour. This was because a party in breach of the rules had no automatic entitlement to an extension of time: at [27]. o (5) In exercising its discretion under s 250, three factors were of especial importance – the length of the delay, the sufficiency of the explanation given for the delay and the prospects in the appeal. However, these factors were not to be considered and evaluated in a mechanistic way or as though they were necessarily of equal or of any particular importance relative to one another in every case. Nor was it to be expected that each of these factors would be considered in exactly the same manner in all cases: at [27] and [28]. o (6) Generally, where the delay was minimal or a compelling explanation existed for the delay, the court could subject the prospects in the appeal to less scrutiny than in cases of inordinate delay or where no justified reason existed to account for the delay: at [29]. o (7) The applicant’s motion was allowed as: (a) the delay had been minimal as the applicant had attempted to file the petition one working day out of time; (b) the applicant had adequately explained the reasons for the delay; (c) the applicant had only been informed of the communication from the Subordinate Courts five days after her solicitors had received it, and only received the grounds of decision on the penultimate day of the period within which the petition was to be filed; (d) confusion had arisen in relation to the applicant’s deadline for filing the petition, due to a related appeal being pursued by the applicant’s son which had a slightly different time frame; and (e) the applicant had shown that her appeal was not hopeless or bound to fail: at [39] and [41].

Veerasingam v Public Prosecutor [1958] MLJ 76 - Facts: o In this case a certificate was given by Smith J for the consideration by the Court of Appeal of the following points of law: "In a criminal appeal to the High Court from the judgment, sentence or order of a Subordinate Court what are the powers, principles and procedure that govern - the grant of an extension of time to lodge a Petition of Appeal, and the permitting of amendments to a Petition of Appeal by the addition of Further Grounds of Appeal or otherwise." - Holdings: o Held: Section 310 of the Criminal Procedure Code gives a discretion to the Judge which should be exercised by him in the circumstances of the particular case before him in order that substantial justice may be done. o To exercise his discretion properly the Judge must apply his mind to all the relevant material. He must consider the circumstances of the original trial. He must consider the original Petition of Appeal. And he must consider the circumstances which are now urged upon him to induce him to allow any departure from or addition to that original Petition of Appeal. He must consider his own powers as to such matters as the granting of adjournment and the requiring of Notice to be given. And then he must exercise his discretion as he sees fit in order that substantial justice may find it helpful to look at what has been done in some other case by some other Judge but if he does he

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must be careful to look at what that other Judge has done merely as an illustration and not as laying down any judicial precedent. THOMSON CJ o In laying down any such general rule as was pointed out by Brett, MR, in the case of The Friedeberg 10 P 112, 113, a judge is trying to fetter his own discretion and that of his successors which he has no legal power to do. o The only fetter which s 310 places upon the exercise of the discretion which it gives to the Judge is that it shall be exercised "in order that substantial justice may be done." Clearly, to exercise his discretion properly the judge must apply his mind to all the relevant material. He must consider the circumstances of the original trial. He must consider the original Petition of Appeal. And he must consider the circumstances which are now urged upon him to induce him to allow any departure from or addition to that original Petition of Appeal. He must consider his own powers as to such matters as the granting of adjournment and the requiring of Notice to be given. And then he must exercise his discretion as he sees fit in order that substantial justice may be done in the matter. It may be that he may find it helpful to look at what has been done in some other case by some other judge but if he does he must be careful to look at what that other judge has done merely as an illustration and not as laying down any judicial precedent (see the observations of Bowen LJ, in Jones v Curling 13 QBD 262, 271, supra ]. o Here, then, is where Smith J, erred in the present case. He did not apply his mind to the circumstances of the case and then exercise his own discretion. He accepted the rules which had been laid down, by Bellamy J, but which should not have been laid down, for the exercise of that discretion and he exercised it in accordance with them. (Bellamy J, in the case of Dickinson v Public Prosecutor (1955) MLJ 191 to rule that the new grounds of appeal should not be argued The passage in the judgment of Bellamy J, with which we are concerned reads as fallows: As to the principles to be applied in considering whether the appellant should be allowed to amend 14 notice of appeal and/or petition of appeal out of time, I consider that the appellant must satisfy the Court, firstly, that circumstances exist which justify an extension of the time; and, secondly, that he has a reasonable prospect of success on the appeal on the new matters which he is desirous of raising at the hearing of the appeal by the proposed amendment. Each application, must, needless to say, be considered in the light of its own particular circumstances." o It will be noted that the learned judge lays it down that an appellant who wishes to amend his Petition of Appeal out of time must satisfy each of two conditions, firstly, that circumstances exist which justify an extension of time and secondly that he has a reasonable prospect of success on the appeal on the new matters which he is desirous of raising. Had these conditions been stated in that alternative, and not cumulatively, we might have been prepared to accept the passage quoted as a tolerably accurate piece of inductive reasoning based upon a number of cases in which the English Court of Criminal Appeal has granted or refused similar indulgence to appellants. Where, however, we think the learned judge was in error was in attempting to lay down any principles whatever, other than those found in the relevant statute, to govern the exercise of a judicial discretion reposed in him.)

Jumari Bin Mohamed v Public Prosecutor [1982] 1 Mlj 282 - Facts: o The applicant was found guilty and convicted of two charges of corruption under the Prevention of Corruption Act 1961. He was sentenced to eighteen months` imprisonment on each charge, the sentence to run concurrently. On 12 May 1980 he filed Notice of Appeal against the said conviction and sentence. On 30 October 1980 the appeal records were served on his solicitor. Under s 307(iv) the Petition of Appeal ought to have been filed by 13 October 1980; otherwise the appeal shall be deemed to have been withdrawn under s 307(ix). This was not done for the reasons given: (1) 4 & 5 October were Saturday and Sunday respectively; (2) 6 October, counsel was engaged at the sitting of the Penang Legislative Assembly; (3) 9 October, counsel was ill; (4) 13 October - the last date for filing - counsel felt that he needed more time to study the notes of evidence before filing the Petition of Appeal; (5) counsel was not the same counsel for the applicant at the trial so he was not able to study the Appeal record closely on 13 October. - Holdings: o dismissing the application: (1) the discretion conferred on a judge by s 310, Criminal Procedure Code applies to all applications for extension time pertaining to criminal appeals to the High Court and they include an application to file Notice of Appeal out of time; (2).the reasons put forward were too flimsy and frivolous for the court to exercise discretion under s 310, Criminal Procedure Code; o (3).there was nothing on record to show that the Applicant`s conviction was wrongful; no substantial justice would be done if the extension of time were allowed in this case. For the purpose of doing substantial justice, the court must bear in mind that justice must be done not only to the convicted person but also to society at large on whose behalf the Public Prosecutor acts; o (4).an extension of time to file Petition of Appeal or to amend such petition out of time should not be granted as a matter of course.

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c.f.Anuar bin Othman v Public Prosecutor [1991] 3 MLJ 382 - Facts: o Prevention of Corruption Act (Cap 24). Both accused were hawker liaison officers with the Housing and Development Board (HDB). They were acquitted of one charge but convicted of receiving gratification as a reward for showing favour in their principal` s affairs. Both accused filed notices of appeal against their convictions. The applicant filed his notice personally as he claimed he had exhausted all his funds contesting the trial and could not afford legal counsel. On 23 August 1988, he was served the notes of evidence and grounds of decision. However, he claimed he did not know how to prepare the petition of appeal and did not realize that it had to be filed within ten days. He thus did nothing further. o Sometime in 1989, the applicant learnt that the co-accused` s appeal had been allowed and his conviction set aside. The applicant now wished to proceed with his appeal and applied for an extension of time to file his petition of appeal. o The DPP objected saying that the delay of more than 18 months is inordinate, and that the applicant must show that he has an arguable case. The court heard the full arguments as if it was hearing the appeal. o On convicting the accused, the district judge had opined that there was no evidence showing that the accused had shown favour to the assistant and instead the charge should have been ` as a reward for doing an act in relation to your principal` s affairs` . The district judge said he did not amend the charge as it was sufficiently clear from the charge and the facts adduced in evidence what the prosecution` s case was. - Holdings: allowing the application: o (1).The explanation for the delay in making the application was accepted. o (2).The proposition that the setting aside of the conviction of the co-accused did not in itself show merit was incorrect. It depended on the facts of each case. o (3).Having found that the prosecution had adduced no evidence to sustain the charge, the district judge should have acquitted the two accused as required by s 180(f) of the Criminal Procedure Code (Cap 68) (CPC). o (4).It was erroneous to equate ` showing favour` with ` doing an act` . The most essential particular of the charge was the showing of favour by assisting the hawker assistant in getting approval. o (5).The applicant could not have known from the particulars of the charge and the evidence that he was being charged for helping the hawker assistant in filling up the application form, submitting it on the latter` s behalf and subsequently obtaining a lunch from the latter. o (6).The district judge failed to articulate his line of thinking to the two accused` s counsel. Therefore they could not have known that the defence was called on a joint charge of ` doing an act` and ` showing favour` . The record shows that the witnesses were not questioned on the charge as clarified by the district judge. Thus the applicant had not been given a fair trial. o (7).If the district judge had amended the charge pursuant to s 180(h) of the CPC, the defence counsel might well have objected to the legality of the trial continuing on the amended charge on the ground that the Public Prosecutor had not given h is consent thereto under s 31 of the Prevention of Corruption Act (Cap 241), which might have been a fatal objection. o (8).For the reasons above, the applicant had shown that there was more than an arguable case that the conviction was wrong. Seah Hee Tect v PP [1992] 2 SLR 210 Accused was convicted and fined $500 in the magistrate court for failing to drive in an orderly and careful manner under the Road Traffic Act. He wanted to appeal to the HC. Therefore, he lodged a notice of appeal with the subordinate court within 10 days as required under s 247(1) CPC. 5 months later, he decided to appeal against the conviction as well and applied by motion to the HC to be granted leave to file a new petition. An affidavit by his lawyer accompanying the motion stated that the reason for not including the appeal against conviction in the notice earlier was due to a typo error and there is on the facts a good chance that the accused could succeed. (Note: Upon knowing that the HC will not grant leave, the accused also sought to appeal against the HC’s decision to the CA. The decision whether to allow this was stated in the judgment of the HC as well.) Selvam J held that:  This court (i.e. HC) refuses to grant leave for the accused to file a new petition. His request to appeal to the CA against this court’s decision not to grant him leave is not supported by statute. s 44 SCJA gives a right to appeal to the CA only if the HC was exercising its original jurisdiction. In this case, the HC is exercising its appellate jurisdiction since it was deciding a matter from a magistrate’s appeal. Therefore, there lies no appeal against my decision to the CA. (Note: It is different for civil matters because s 29 SCJA allow an appeal to the CA whether the HC was exercising its original or appellate jurisdiction.)  s 250 CPC permits the HC to allow an appeal against a subordinate decision even if the formalities of appealing are not met. In this case, there is a delay in appealing against the

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conviction. In deciding whether to allow for extension of time for a delay in filing the notice of appeal, 2 factors are taken into consideration:  The length of the delay and whether it can be satisfactorily explained.  Whether the application is likely to succeed. When a delay is substantial, no extension will be granted unless there is a satisfactory explanation. If the delay is minimal, no extension will also be granted if the appeal is bound to fail. On the facts, there was nothing in the affidavit that explain or substantiate the accused’s assertions. No satisfactory explanation was given for the 5 month delay and the affidavit does not say how the accused’s appeal is likely to be successful.

Seah Hee Tect v PP [1992] 2 SLR 210 The applicant was convicted for failing to drive in an orderly and careful manner, punishable under s 131(1)(d) of the Road Traffic Act (Cap 276). He filed a notice of appeal against sentence within ten days as required by s 247(1) of the Criminal Procedure Code (Cap 68). He later applied by way of motion to the High Court to appeal against conviction as well, and sought leave to file a fresh petition. His counsel filed an affidavit in which he deposed that the appeal against conviction was not included in the notice of appeal against sentence due to an oversight and typographical error, and that Seah had a good chance of succeeding in his appeal against conviction. Held: Section 44 of the SCJA only gave the right of appeal from a decision of the High Court to the Court of Criminal Appeal if the High Court was exercising its original criminal jurisdiction. The High Court’s decision in question was not in respect of its original criminal jurisdiction as the original jurisdiction was exercised by the magistrate. Section 44 of the SCJA did not provide for an appeal against a decision of the High Court in the exercise of its appellate criminal jurisdiction. The two factors to be considered in considering an application for an extension of time were: (a) the length of the delay and whether it can be satisfactorily explained; and (b) whether the out-of-time application was likely to succeed. The rules of court must prima facie be obeyed, and to justify a court in extending the time, there must be some material upon which the court could exercise its discretion. Otherwise, the party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules, which was to provide a timetable for the conduct of litigation. There was nothing in the affidavit filed on Seah’s behalf to explain and substantiate the assertions made. There was no statement or submission on the point to be raised in the proposed appeal against conviction. No material was placed for the court to consider in order to make its own conclusions on the merits of the proposed appeal. The five-month delay in discovering the ‘typographical error’ was inordinate and no satisfactory explanation was offered for the delay or oversight. Further, the judge in the lower court would be disadvantaged in writing his grounds for the conviction if he had already written his grounds for the sentence only. The delay would also have induced the judge to put the case off his mind Procedure for applying for extension of time No stat provision in CPC setting out proced for applicaton for extension of time Present practice is by way of notice of motion similar to eng practice Ng ai tiong v PP crim motion No 11 of 1999 CJ in dealing with application under s60 SCJA held tt funda reqt in applicatons tt court receives proper notice of what is being asked of it; necessitates tt counsel enuciates cleary in relevant court papers, sch as motion paper in thi case, precise order tt is being requested Veerasingam – CA stated tt not for cou to lay own rule as to how power of ocurt under s250 CPC to be invoked – ord way of doing so is clearly by way of notice of motion though tt wld be subj to directions gi ven by judbge - Practice in respect of filing supplementary grds of appeal relaxed Ratnam v rex 1937 MLJ 212 - if counsel finds tt has additional grounds of appeal some time before hearing of appeal, can file same in HC and extend DPP copy informally; shld seek formal leave of appellate judge at hearing and give suff notice to DPP; if prosecutor obj on additional grds, counsel wld be advised to file notion of motion and affidavit suppoting grds of his application and move notion on hearing date; motion will be listed just before appeal Remand during appeal  s 49(1A) SCJA: • amendment because in case where punishment was death, at end of trial when accused aquittewd by HC judge, free to go, he wld then leave sg. Several cases where appeal filed but by time appeal filed for hearing, accused no longer around. This prob recognised and this provision then inserted to allow HC where PP intends to appeal  • Where prosecution intends to appeal an acquittal the HC can remand an accused for 48 hours to allow filling of notice probably to allow prosecution to sign notice of appeal after considering the case [s 58(1) SCJA] • Court can commit accused to prison pending the hearing of the appeal. • Notice of appeal to be signed by PP himself

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Section 49(2) of SCJA Where PP intends to appeal an acquittal, the High Court can remand an accused for 48 hours to allow filing of notice probably to allow PP to sign notice of appeal after considering the case (Section 58(1) SCJA) Court can commit accused to prison pending hearing of appeal.

Transmission of papers to respondent 49. - (2) Where the High Court is informed that the Public Prosecutor intends to appeal against the acquittal of an accused person, the Court may, on the application of the Public Prosecutor, order that the accused person be remanded in custody for a period not exceeding 48 hours pending the filing of the notice of appeal by the Public Prosecutor. Public Prosecutor’s signature 58. —(1) In the case of an appeal by the Public Prosecutor under this Part, the notice of appeal shall be signed by that officer only. Bail

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Section 248 CPC – bail at first instance o Subordinate Court can grant bail to person who has filed a notice of appeal against conviction.

Bail pending appeal. 248. A District Court or Magistrate’s Court may grant bail to any person who has filed a notice of appeal against his conviction in accordance with section 247. -

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Operative words being ‘who has filed notice of appeal’ – unless notice filed, judge may disallow bail without further arg; though good sense prob prevails and undertaking by counsel to file notice of appeal later same day or next morning wld suffice for counsel to have application heard Be prepared to expect increase of bail; stiems doubled. Practice usu to ask for fresh bail bond

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Sections 354, 362 to 363 (Bail pending appeal) High Court’s powers to vary bail. 354. —(1) The High Court may, in any case whether there is an appeal on conviction or not, direct that any person shall be admitted to bail or that the bail required by a police officer or Magistrate’s Court or District Court shall be reduced or increased. (2) The High Court may at any stage of any proceeding under this Code cause any person who has been released under this section to be arrested and may commit him to custody. Appeal from orders. 362. All orders made under section 361 by any Magistrate’s Court or District Court shall be appealable. Power to direct levy of amount due on bond. 363. The High Court or a District Court may direct any Magistrate’s Court to levy the amount due on a bond to appear and attend at the High Court or District Court.

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Application to HC for bail or reduction also by way of notice of motion supported by affidavit o Appellant must put forward adeq reasons for application and not reasons tt are flimsy and frivolous Considerations tt court gives as to qn of whether bail pending appeal shld be granted: o Johore v King 1907 SSLR 36 and R v Lim Soh Chwee and Anor 1911 BCGH 178 – both decided b Fisher J –  In first case, held tt bail ought not be refused; man ma be convicted wrongly on insuff evid or wrong grds and may be forced to undergo imprisonment for wks before convicion qushed, wld be miscarriage of grave kind  In second case, held tt even if magistrate thinks tt appeal frivolous, no reason to rej bail; only amts to emphatic expression of his opinion tt onviction is right; otherwise this wld be reason to refuse bail in every case o Therefore bail generally granted uless reason to suppose tt appellant wld abscond o Doraisamy’s case – Wilson J decided tt  Stay of execution shld not be granted unless special reasons for doing so  Mere fact tt applicant advised and verily believed tt had gd grds for appeal did not constit suff grds for releasing applicant pending his appeal o KL HC then laid down modern guidelines for grant of bil to appellants who wanted to have eeuciton of sentence of imprisonment pending appeal – Re Kwan Wah Yip 1954 20 MLJ 146 – spencer Wilkinson J said tt when a lower court has refused bail, agree tt high court shld not interfere with

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discretion of lower court unless gd reasons for so doing and as HC has not heard case such reasons must be set out in affidavit in support of applicaton for bail  Eg erros of law on face of record and plain misinterpretation of fact  6 considerations as guide to sub courts in granting or refusing bail pending appeal where term of imprisonment imposed • gravity or otherwise of offence • length of term of imprisonment in comparison with length of time likely to take for appeal to be heard • whether diff pts f law involved • whether accused first offender • possib of his becming again involved in similar or other offences while at liberty • whether security imposed will censure attendance of appellant before appellate court o *Goh beow yam v R 1956 22 MLJ 251 – accused refused bail after being sentenced to imprisonment on his plea of guilt, which he tried to withdraw on grd tt charge not understood by him o Ralph v PP 1972 1 MLJ 242 – winslow J said tt cld find not new or compelling reasons set ou in appellant’s affidavit which wld req him to exercise his discretion in appellant’s favour Stat conds of bail bond s355(3) – appellant cannot proceed beyond limits of sg – if bail extended and sentence of impriosnmetn stayed, can he be given permission to do so? o Some cases where courts have given permission – central issue is risk of appellant absconding balanced against amt of bail to be offered o Court may increase quantum of bail in such cases

 s 253(3) CPC provides that if an accused is allowed on bail on the condition that he will attend court on the appeal date and he fails to do so without reason, the court may dismiss his appeal. Leong Yew Tong v PP [1996] 2 SLR 348 Accused was convicted in the subordinate court on 4 charges of cheating. He appealed to the HC. On the day of the hearing of the appeal, he was absent. A medical certificate was tendered to the court. The medical certificate stated that he was suffering from some psychiatric condition and was unable to attend court. Therefore, the appeal was postponed to another day. On the date scheduled for the postponement, the accused was absent again and another medical certificate was tendered to the court. The medical certificate was outpatient and the illness of the accused was not stated nor was the signing officer properly identified in it. Accused’s lawyer accepted on that day that the HC could dismiss the appeal as provided under s 253(3) but argued that the HC should exercise its revisionary powers because there was an irregularity in the charges. Yong Pung How CJ held that: 1. s 253(3) CPC provides that if a person is given bail on the condition that he will appear before the appellate court on appeal, the court may dismiss his appeal if he does not appear in person on the slated date. The proviso to the section also provides that the court can reinstate the appeal if the accused subsequently appears if the accused can satisfy the court that his absence was not due to his own fault. 2. Where no explanation is given by the accused of his absence on the day of the appeal, the appeal will as of course be dismissed. If an explanation is tendered, the court will consider it in the light of the circumstances to determine whether to dismiss it. Generally, the excuse must be bona fide. 3. Where a re-instatement of the appeal is sought, the court will consider the same principles. If the accused had earlier tendered an explanation but the court proceeds to dismiss the appeal, on an application to re-instate the appeal, the accused must show something more than the original excuse. 4. On the facts, the accused’s 2nd medical certificate was less than satisfactory. It showed nothing to the effect that the accused’s illness was so debilitating as to excuse him from court attendance. Together with the 1st medical certificate which strangely was only obtained on the day of the hearing itself, it appears that there was a lack of bona fides in the excuses. 5. Revisionary powers of the HC will only be exercised if there is something palpably wrong about the decision of the subordinate court. On the facts, although there ought to have been only one charge instead of 4 charges, this irregularity does not do serious injustice as to warrant a criminal revision. Stay of execution • Section 251 CPC

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Appeal does not operate as a stay of execution, but Subordinate Courts and High Court can stay execution of order, conviction or sentence on terms.

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Eg taxi driver convicted of drink driving, as part of punishment license suspended, filed notice of appeal, he can use s251 and ask court to stay execution of punishment (order of suspension) unti hearing of appeal so tt in meantime he can cont to drive his taxi

Stay of execution pending appeal. 251. No appeal shall operate as a stay of execution, but the courts below and the High Court may stay execution on any judgment, order, conviction or sentence pending appeal on such terms as to security for the payment of any money or the performance or non-performance of any act or the suffering of any punishment ordered by or in the judgment, order, conviction or sentence as to the court seem reasonable.

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Section 51 SCJA A more detailed expansion of Section 251 CPC.

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Appeal does not act as a stay of action except in cases where the sentence is death or corporal punishment. The stay is only contingent on the appeal being filed within the necessary time limit. Court will in most cases stay sentence eof imprisonment where appeal lodged and bail extended pending appeal Where appellant pleaded guilty and received long term imprisonment, crout may not gant bil pending appeal esp where case can be heard in HC fairly requickly Where appeal against conviction and manifestly excessive fine, practice of ourts is tt reluctant to grant stay for fine; will have to be paid at once and bail not allowed in lieu – s248 and 251 CPC

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Appeal not to operate as stay of execution 51. —(1) Except in the cases mentioned in subsection (4), no appeal shall operate as a stay of execution. (2) The trial court or the Court of Appeal may stay execution on any judgment, order, conviction or sentence pending appeal on such terms as to security for the payment of any money or the performance or nonperformance of any act or the suffering of any punishment ordered by or in such judgment, order, conviction or sentence as to the court may seem reasonable. (3) If the appellant is ultimately sentenced to imprisonment, the time during which the execution of the sentence was stayed shall be excluded in computing the term of his sentence unless the Court of Appeal otherwise orders. (4) In the case of a conviction involving sentence of death or corporal punishment — (a) the sentence shall not in any case be executed until after the expiration of the time within which notice of appeal may be given under section 45, or any extension of time which may be permitted under section 50; and (b) if notice is so given, the sentence shall not be executed until after the determination of the appeal. -

s 288 CPC: Sentence of caning not to be carried out until after 10 days of the sentence. This is to allow time for the accused to appeal

Procedure At Hearing Procedure at hearing. 253. —(1) When the appeal comes on for hearing the appellant, if present, shall be first heard in support of the appeal, the respondent if present shall be heard against it, and the appellant shall be entitled to reply. (2) If the appellant does not appear to support his appeal in person or by counsel the court shall consider his appeal, if the appellant is in custody, and may make such order thereon as it thinks fit. (3) If the appellant has been granted bail on a recognizance which is to be void if the appellant shall personally appear at the High Court during the hearing of the appeal, the court may dismiss the appeal if the appellant does not appear in person before the High Court on the hearing of the appeal: Provided that the court may, if it sees fit, reinstate the appeal if the appellant subsequently appears before the court and satisfies the court that his non-appearance was not due to his own fault. Non-appearance of respondent. 254. —(1) If at the hearing of the appeal the respondent is not present and the court is not satisfied that the notice of appeal was duly served upon him, the court shall not make any order in the matter of the appeal adverse to or to the prejudice of the respondent, but shall adjourn the hearing of the appeal to a future day for his appearance and shall issue the requisite notice to him for service through the Registrar. (2) If service of the last-mentioned notice on the respondent cannot be effected, the court shall proceed to hear the appeal in his absence.

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Arrest of respondent in certain cases. 255. When an appeal is presented against an acquittal the High Court may issue a warrant directing that the accused shall be arrested and brought before it and may commit him to prison pending the disposal of the appeal or admit him to bail. -

Appellant heard first; resp heard next – stimes court may not call on respondent to reply; after resp heard, appellant entitled to reply If client on bail, ensure tt he knows date of hearing – HC can dismiss appeal of appellant if he does not appear in person at hearing of appeal; though provision exists for restoring appeal it cld take a lot of wasteful effort People v Hall 1854 4 CAL 399 o Decision of supreme court of California o Hall convicted of murder of on testimony of lone witness, a chinaman – an act earlier had said tt no black or mulatto person or Indian chall be allowed to give evid in favour of or against a white man o Chinaman not excluded to testiy against white man o Act not interpreted by supreme court of California o Counsel argued tt evid shld be excluded and argued tt Chinese are Indians o Counsel a learned man in arts and in his time mankind only divided into 3 races – whites, blacks and Indians o Court held tt Chinese therefore Indians and excluded testimony of the chinaman and reversed conviction of the murder

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 Appeals can be heard in the absence of the accused if the notice of appeal cannot be effected after it was ordered to be done so by the court. [s 254 CPC] Similarly if the accused received the notice but refuses to appear before the court, the appeal can also be heard. PP v Tan Fook Sum [1999] 2 SLR 523 Accused was in the economy class an SIA flight. He then went to the business class to sleep and when asked to return he was not happy. He decided to set fire to the toilet of the craft and was arrested and charged under the Air Navigation Order for endangering the lives of the crew and passengers on board the craft. Magistrate passed down a sentence of $2000 and in default, an imprisonment of 4 weeks. The maximum sentence under the Order was $5000 or/and 1 year imprisonment. Prosecution appealed against the sentence. The accused refused to appear as he had gone back to his country. the appellate court proceeded with the appeal when a warrant of arrest issued against him could not be executed. Yong Pung How CJ held that: 1. s 254 CPC provides that an appellate court cannot hear an appeal if the notice of appeal is not duly served. Instead, it should adjourn the hearing and issue a notice to the accused through the registrar. If this service of the notice cannot be effected, the court can proceed to hear the appeal. 2. If an appellate court can hear an appeal because the service cannot be effected, it should also be able to hear an appeal where service had been effected but the accused refused to attend the hearing. Hence this court has the jurisdiction to hear the appeal. 3. If the court could proceed to hear an appeal in Tan’s absence under section 254 where service could not be effected, a fortiori, where service had been effected but he deliberately refused to attend the hearing. Tan was given every opportunity to defend the appeal but had persistently declined to do so, and as such must be taken to have waived any argument he could have raised in his favour under the principle audi alteram partem. 4. The court must pass sentence according to law: s 180(n)(ii) and 192(2) of the Criminal Procedure Code (“CPC”). A “sentence according to law” meant that the sentence must not only be within the ambit of the punishable section, but it must also be assessed and passed according to established judicial principles. The latter required the court to balance the diverse and competing policy considerations, viz retribution, deterrence and public interest. Only the public interest should affect the type of sentence to be imposed while aggravating or mitigating circumstances affect the duration or severity of the sentence imposed. Judges on appeal

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Section 252(3) CPC

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Appeal to be heard by a single judge or in certain cases by 3 judges (also note section 19(a) SCJA) appeal fr sub courts to high court – 1 judge – even if 3 judges sit on it, does not change juris of court. Rarely used

Setting down appeal on list. 252. —(3) An appeal shall ordinarily be heard by a single Judge, but any appeal shall, on the request in

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writing of the Public Prosecutor at any time before the hearing or on the order of a Judge at any time before judgment, be reserved for hearing and be heard before a court consisting of 3 or more Judges. Appellate criminal jurisdiction (SCJA) 19. The appellate criminal jurisdiction of the High Court shall consist of — (a) the hearing of appeals from District Courts or Magistrates’ Courts before one or more Judges according to the provisions of the law for the time being in force relating to criminal procedure; and •

Section 30(1) SCJA Court of Appeal 3 or greater uneven number of judges - usu chief justice presides and he wld have read in detail the record of proceedings – counsel need not take him through details except where complicated; many appeals disposed of quickly Composition of Court of Appeal 30. —(1) The civil and criminal jurisdiction of the Court of Appeal shall be exercised by 3 or any greater uneven number of Judges of Appeal.

Vignes s/o Mourthi v PP (No 3) [2003] 4 SLR 518 - The accused (“Vignes”) was found guilty of drug trafficking at trial and sentenced to death. The Court of Appeal upheld the trial judge’s decision. The President dismissed Vignes’ petition for clemency. Mr M Ravi, an advocate and solicitor, was instructed on 10 September 2003 by Vignes’ father to apply by way of Criminal Motion No 16 of 2003 for a re-trial of Vignes and that the sentence of death passed on him be stayed pending re-trial. Woo Bih Li J dismissed the application. Mr Ravi then applied for a second Criminal Motion which was heard by Lai Kew Chai J. The arguments made at this second Criminal Motion were similar to those made in the first one. Lai J duly dismissed the second application. Mr Ravi then filed a Notice of Appeal. This was filed at 4.30pm on 24 September 2003. As the sentence of death was to be carried out at 6.00am on 26 September 2003, and the appeal was heard the next afternoon of 25 September 2003. - Mr M Ravi argued that because Chao Hick Tin JA and the Chief Justice were part of the coram which dismissed the appeal arising from Tay J’s decision, then the only judge who was qualified to sit on the coram hearing this appeal was Tan Lee Meng J Held: o Once the Court of Appeal had rendered judgment in an appeal heard by it, it was functus officio so far as that appeal was concerned. o Where the court was convinced that it was unable to assume jurisdiction on the matter (as in this case), then the individual merits of the arguments, at the second appeal, need not be addressed. Nonetheless, for the sake of completeness and in light of the fact that the appellant was due to be executed the morning after the hearing, the appellant’s arguments were analysed in great detail and were found to lack merit. o Unless strong reasons were shown why permanent members of the Court of Appeal would be unable to act objectively in the matter at hand, there would be no ground for them to disqualify themselves. The matter before the Court of Appeal was an appeal from the decision of Lai J and the question concerned the powers of the High Court to order a re-trial of a case which had already run its full course, with the President turning down the petition for clemency. It was an entirely new point from that decided by this court in Criminal Appeal No 13 of 2002. Powers of appellate court . The Charges the powers given to the High Court in the exercise of its appellate jurisdiction for criminal proceedings is laid down in s. 19, 23, 27 SCJA Appellate criminal jurisdiction 19. The appellate criminal jurisdiction of the High Court shall consist of — (a) the hearing of appeals from District Courts or Magistrates’ Courts before one or more Judges according to the provisions of the law for the time being in force relating to criminal procedure; and (b) the hearing of points of law reserved by special cases submitted by a District Court or Magistrate’s Court before one or more Judges according to the provisions of the law for the time being in force relating to criminal procedure. Revision of criminal proceedings of subordinate courts 23. The High Court may exercise powers of revision in respect of criminal proceedings and matters in subordinate courts in accordance with the provisions of any written law for the time being in force relating to criminal procedure. General supervisory and revisionary jurisdiction of High Court 27. —(1) In addition to the powers conferred on the High Court by this Act or any other written law, the High Court shall have general supervisory and revisionary jurisdiction over all subordinate courts. (2) The High Court may in particular, but without prejudice to the generality of subsection (1), if it

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appears desirable in the interests of justice, either of its own motion or at the instance of any party or person interested, at any stage in any matter or proceeding, whether civil or criminal, in any subordinate court, call for the record thereof, and may remove the matter or proceeding into the High Court or may give to the subordinate court such directions as to the further conduct of the matter or proceeding as justice may require. (3) Upon the High Court calling for any record under subsection (2), all proceedings in the subordinate court in the matter or proceeding in question shall be stayed pending further order of the High Court. s. 23 gives the High Court a general power of revision in respect of criminal proceedings in accordance with the provisions of any written law looking at the CPC, the powers of the court on hearing an appeal is listed in sub-sections (a) to (d) (???) the Court of Appeal has held in the case of Garmaz s/o Pakhar & nor v PP that: • s. 256(b)(ii) CPC gives the High Court acting in its appellate capacity, the power to amend a charge • the Court of Appeal was of the view that given the High Court’s extensive express powers under the CPC, it was inconceivable that it was the intention of the legislature that the High Court, in the exercise of its appellate jurisdiction, should not have the power to amend the charge preferred against an accused • adopting a purposive approach to construction, such power was by necessary implication implied in s. 256(b) CPC • the power an appellate court had in amending a charge under s. 256(b) was not unlimited and had to be exercised with great caution and not to the prejudice of the accused where prejudiced, the case would be remitted to the trial court for the accused to cross-examine the prosecution witnesses and to call witnesses of his own where the charge is substantially the same, and the accused was not misled by the defect of the charge and the defect was immaterial, the case need not be remitted to the trial court for a rehearing High Court can amend the charge and convict the accused on the amended charge if satisfied that the accused is guilty of the amended charge on the evidence adduced •

Section 60 of SCJA - High Court judge may on application or any party (usu defence) and shall in application of PP:  Reserve a question of law

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Public interest1 (note conflict of judicial auth must be bet 2 sg judges, not overseas judges!)  Which has arisen during the appeal  Determination has affected the event of the appeal Application within one month Court of Appeal may make such orders as it considers just for the disposal of appeal

PP v Christopher Bridges [1997] 2 SLR 217 The respondent Bridges was convicted for offences under s 5 sub-ss(1) and (2) of the Official Secrets Act (Cap 213) (‘OSA’). His appeal to the High Court was allowed and his convictions quashed. The Public Prosecutor applied under s 60 of the Supreme Court of Judicature Act (Cap 322) (SCJA) for eight questions of law to be referred to the Court of Appeal. The DPP conceded that the court had the discretion to reframe questions stated by the Public Prosecutor to ensure that they fit within the ambit of s 60 of the SCJA. Held: o Generally speaking, the High Court was the final appellate court for criminal cases commenced in the subordinate courts. However, there were certain cases where a further reference of questions of law to the Court of Appeal was deemed necessary to settle any conflicting issues. Such issues must be exceptional and s 60 itself set out the relevant parameters. o the key considerations were that: (a) the question must be a question of law; (b) the question of law must be one of public interest; and (c) the question must have arisen in the course of the appeal and the determination of which by the court must have affected the event of the appeal. o Whether a question of law was of public interest depended on the facts and circumstances of each case, not the exercise of discretion. The final arbiter as to whether a question of law was one of public interest fell on the court, not the Public Prosecutor’s office. o On this basis, the court reframed the eight questions reserved by the Public Prosecutor into six questions in order to bring them within s 60 of the SCJA and to make some of them clearer.

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Section 256 CPC Lays down the powers of the Court on hearing an appeal Powers are very wide • Can set aside conviction • Court can enhance sentence in an appeal against sentence • Can order a re-trial • Court can also alter the finding or amend the charge

If conflict of judicial authority question is deemed to be of public interest

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Decision on appeal. 256. At the hearing of the appeal the court may, if it considers there is no sufficient ground for interfering, dismiss the appeal or may — (a) in an appeal from an order of acquittal, reverse the order and direct that further inquiry shall be made or that the accused shall be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction — (i) reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a court of competent jurisdiction or committed for trial; (ii) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or enhance the sentence; or (iii) with or without the reduction or enhancement and with or without altering the finding, alter the nature of the sentence; (c) in an appeal as to sentence, reduce or enhance the sentence, or alter the nature of the sentence; or (d) in an appeal from any other order, alter or reverse the order. Setting aside judgement: • Section 261 CPC o Decisions of Subordinate Courts only to be overturned if

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Wrong in law Against the weight of evidence Sentence manifestly excessive or inadequate.

Grounds for reversal of judgment, etc., of District Court or Magistrate’s Court. 261. No judgment, sentence or order of a District Court or Magistrate’s Court shall be reversed or set aside unless it is shown to the satisfaction of the High Court that the judgment, acquittal, sentence or order was either wrong in law or against the weight of the evidence, or, in the case of a sentence, manifestly excessive or inadequate in the circumstances of the case. PP v Quek Chin Chuan [2000] 3 SLR 10 • Facts: during PTC in district court, witness in china – asked court to sned police to china, locate witness and record statement an bring in back. Judge at PTC refused to make this order. Trial date set. On trial date, defence renewed application. This was allowed. this was interlocutory. Prosection took case to HC on grd tt decision wrong in law, HC set aside ruling reqg sg police officer to go to chian. • The respondent was charged with harbouring an immigration offender by leasing his premises to her. The respondent applied to the district judge for the trial to be adjourned and permission for the police to go to China to obtain statements from an individual, which was important to his defence. It was allowed. PP objected, and applied for criminal revision. • Accused was charged in the subordinate court of housing an illegal immigrant. He applied to the court to have time to go to China to obtain a statement from one Mr Yu who had introduced the illegal immigrant to him telling him that she was a Singaporean. • District Judge gave an order for accused to do so but also ordered that a police officer of sufficient rank accompany the accused there for that purpose. • Subsequently, accused withdrew his application but prosecution decided to apply for the revision of the district judge’s order. • Yong Pung How CJ held that: o The district judge erred in law in thinking that it had the power to order the police or the prosecution to carry out further investigations into the case. The court does not have control over the police and prosecution’s discretion in the conduct of proceedings. o The judge also erred in finding that the police had a duty to aid the accused in gathering evidence in his own defence. The gathering of evidence for his own defence is his sole duty. o Furthermore, the local police are not allowed to have extra-territorial jurisdiction without the consent of the Chinese government. The district judge erred on this point as well. o Therefore, the order will be quashed. o The relevant statutory provisions showed that the District Court did not have the power to order that further investigations be carried out by the police or prosecution in a foreign jurisdiction. This would in effect amount to the judiciary having control over the police and prosecution’s discretion in conducting investigations or proceeding with prosecutions. In addition, the police cannot exercise police powers in a foreign jurisdiction. The district judge thus did not have the power to make the order that he did. Enhancing sentence PP v Leow Meow Sim Jenny [1993] 3 SLR 885 Criminal breach of trust. Illustrates court’s power to enhance sentences on appeal.

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Plaintiff applied to the for a declaration that a shop was his even though it was under the Defendant’s name. The evidence was that the plaintiff had paid for the shop but placed it under the Defendant’s name. The shop was subsequently mortgaged to the bank to secure a loan to the Plaintiff. The Defendant had paid the bank back the loan. Trial judge held that the Defendant’s evidence was more believable and declined to order the declaration. Plaintiff appealed. CA held that: Held:

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In s 2612 of the CPC, the words ‘manifestly excessive or inadequate’ clearly referred to the sentence of the sentencing court, (namely, the district or magistrate’s court). It was also clear that the High Court, whether exercising its appellate or revisionary powers, acting under s 261 of the CPC, was revising the excessiveness or inadequacy of the sentence passed by the sentencing court. As such, the measure of the excessiveness or the inadequacy was against the fullness of the sentence as prescribed by the particular penal provision governed by the limits of the jurisdiction set by s 11(3) and (5) of the CPC. Thus, the High Court had to first consider a judgment of the district court or magistrate’s court in the light of s 261 of the CPC before proceeding to s 256(c) of the CPC to consider whether it ought to reduce or enhance the sentence, or alter the nature of the sentence. In enhancing a sentence, the High Court, having first considered it to be manifestly inadequate in the circumstances of the case, would then proceed to enhance the sentence to what in its view the sentencing court should have passed given its jurisdictional limitations.

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The principle underlying the proviso in s 180(b)3 of the CPC was that an accused person pleading guilty was entitled to know the maximum punishment that could be meted out to him by that court for that offence. If the court recording the plea of guilty erred by imposing a ‘manifestly inadequate’ sentence ‘in the circumstances of the case’ it would be against all the principles and tenets embodied by statute or otherwise in the criminal justice system if, on appeal to the High Court against sentence, the High Court could impose a sentence greater than that which the court which recorded the plea of guilty could.

Zeng Guoyuan v PP [1997] 3 SLR 321 The appellant Zeng, an acupuncture and acupressure practitioner, was charged with five counts of using criminal force with intent to outrage the modesty of the complainant. Zeng appealed against both his conviction and sentence, arguing: (a) that the magistrate ought not to have sentenced him for five sentences but one, by virtue of s 71(1) of the Penal Code; and (b) that he had not committed the five offences and the magistrate had erred in convicting him. Held:

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Section 71(1)4 of the Penal Code does not apply where each offence in a series of offences was itself a separate, distinct offence but only where the offender was charged not just with an offence, but also with the other offences which formed component parts of that main offence. On the evidence, the magistrate correctly found the complainant’s evidence to be sufficiently reliable to found a conviction and that Zeng and his witnesses were not credible. The sentences for the first two charges, which were relatively minor, were reduced to a month’s imprisonment for each offence. Three strokes of the cane were added for each of the third and fourth offences because these offences involved the touching of the complainant’s private parts. The circumstances merited a harsher total sentence than that originally ordered. Zeng had held himself out as an acupuncture and acupressure specialist with degrees from several universities and had preyed upon the complainant under the guise of playing doctor. Hence a heavier sentence was imposed. While an accused ought to be allowed some degree of latitude both in the type of defence he wishes to advance as well as the conduct of that defence, an unbridled performance in the courtroom was inexcusable. Zeng displayed a wholly exceptional contempt for the proceedings, humiliating the complainant and showing extreme disrespect to the magistrate. Such conduct was an aggravating consideration.

PP v Louis Pius Gilbert [2003] 3 SLR 417 2

Grounds for reversal of judgment, etc., of District Court or Magistrate’s Court. 261. No judgment, sentence or order of a District Court or Magistrate’s Court shall be reversed or set aside unless it is shown to the satisfaction of the High Court that the judgment, acquittal, sentence or order was either wrong in law or against the weight of the evidence, or, in the case of a sentence, manifestly excessive or inadequate in the circumstances of the case. 3 180 (b) if the accused pleads guilty to a charge whether as originally framed or as amended, the plea shall be recorded and he may be convicted on it: Provided that before a plea of guilty is recorded the court shall ascertain that the accused understands the nature and consequences of his plea and intends to admit without qualification the offence alleged against him; 4 Limit of punishment of offence which is made up of several offences. 71*. —(1) Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided.

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Appellant charged and convicted of causing grievous hurt to his ex-wife’s lawyer who handled their divorce proceedings. Appeal against both conviction and sentence. Max sentence he cld receive was 7 yrs, he was given 6 yrs. He appealed claiming tt sentence too heavy. Example of appellate court enhancing sentence – s11(3). Applying the proviso to s 11(3) of the Criminal Procedure Code, the sentence was enhanced to ten years’ imprisonment in view of the appellant’s previous convictions and the very special circumstances and aggravating factors of the case. The appellant had escaped caning only because of his age. On appeal on pt of law in the CA, CA held tt s11(3) CPC does not enable the DC to sentence beyond the maximum prescribed for the offence. (see Judgment and Sentence notes)

 In an appeal against facts, the appellate court should be slow in overturning the decision of the trial judge. However, the court should also measure the trial judge’s conclusion against the weight of the evidence. The fact that the trial judge had the opportunity to see and hear the witnesses by itself cannot justify a conclusion reached against the weight of the evidence. Sugianto v PP [1994] 2 SLR 1 Drug trafficking case. Prosecution appealed on grounds that more weight should have been given to accused’s s122(6) statement, in which he admitted that the bag found to contain drugs was his. Accused was charged with importing drugs into Singapore from Bangkok. He was traveling with some friends on an SIA flight while another friend was on a Thai Airline flight to Singapore at the same time. His contention was that the bag was his friend’s and not his and he was merely helping his friend check him a bag since he did not have a bag to check in. Trial judge accepted the accused’s evidence and found him to be a truthful witness. The court therefore, acquitted him of the charges. Prosecution appealed on the basis that the accused’s evidence should not have been believed and more weight should have been given to the prosecution’s evidence. CA held that: o It is established law that an appellate court will not interfere with a trial judge’s finding when those findings are based on the veracity of the witness which the trial judge had seen and heard unless it can be shown that those findings are against the weight of the evidence and unsupportable. o On the facts, the only evidence which the prosecution had was that the accused handled the bag during the brief time between taking the bag off the conveyor belt and bringing it through the customs. Otherwise, there was no evidence that the accused handled the bag at any time else, not even when the bag was checked in at the Bangkok airport. Since the finding that accused did not know the contents of the bag was founded on the basis that the accused was a truthful witness and there was no other evidence to show otherwise, the trial judge’s finding will not be disturbed o Accused’s 122(6) statement was not evidence per se of what was stated in it. The court must still determine the evidential value to be attributed to it in the light of all the evidence. Here, the judicial commissioner found that Sugianto had sufficiently explained the circumstances under which the cautioned statement was made and why little evidential value should be attributed to it. This would not be disturbed as it was based on a finding that Sugianto was a truthful witness whose evidence should be believed. PP v Yeo Choon Poh [1994] 2 SLR 867 - Drug trafficking case. The public prosecutor appealed on the ground that the respondent was not a credible witness and the trial judge erred in accepting his defence of being an innocent bailee. Held: The Court of Appeal’s powers on an appeal from an acquittal were not subject to any express limitation. In hearing an appeal on fact an appellate court should consider four guidelines: (a) the trial judge’s views as to the credibility of the witnesses; (b) the presumption of innocence in favour of the accused; (c) the right of the accused to the benefit of the doubt; and (d) the slowness of an appellate court in disturbing the trial judge’s finding of fact who had the advantage of seeing the witness. In this case, the trial judge already observed that the respondent was not a good witness and the presumptions of possession and knowledge under the Act displaced the presumption of innocence in the respondent’s favour. PP v Victor Rajoo [1995] 3 SLR 417 - Accused faced 5 charges (sexual offences). The trial judge found the accused’s evidence closer to the truth and that the accused came across as an honest witness. Accordingly, he acquitted the accused on the first and third charges and found him guilty on the second charge. As for the fourth charge, he amended it and found the accused guilty of theft. The prosecution appealed. Accused was charged with (a) abducting the an Indian woman with the intention of having illicit sex; (b) raping her; (c) robbing her money and (d) theft of her other belongings. Victim was an Indian national who was walking along a road near Little India one day. The accused drove up in a van and told her that he was a police officer and wanted to check her passport. She showed him her passport and he told her that he needed to bring her in to the police station for further questioning. She went into the van on the passenger side and the accused drove towards the Changi direction. Nearing the location, he pointed to the victim the SIA headquarters building and said it was the police station and that they were going there. He stopped the car and told the accused that to go to the rear compartment of the van

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because it was a practice that when police officers bring people in for questioning, the person brought in are not supposed to sit on the passenger side. Thereafter, the accused drove to a deserted spot and forced the victim to undress. She refused and he pulled at her sari so that it came off. He threatened her that if she did not comply, he would kill her and throw her into the bushes. Afraid, she performed fellatio on her and raped her. When she was dressing, he saw some money tied to her sari and snatched her from her. When she resisted, he pushed her onto the ground. He then drove away with the other belongings which the victim was carrying when she boarded the van. Victim then went to the road side to flag for help from passing vehicles. Simon Tay came along to the rescue. He brought her to the police station at Changi Airport and a report was lodged. Accused argued a different version of the story. He said that the victim had been consensual. He claimed trial on all the charges except the theft charge. Trial judge held that the accused’s version of the story was more credible and in line with the evidence. He held that the victim’s testimony was not forthright and she was evasive on some questions put forth to her. As a result, accused was acquitted on the charges. Prosecution appealed. CA held that: 1. In a case of one word against another, the trial judge could see and hear the oral testimony of the witnesses in court and make a finding on their credibility and veracity. Such findings should not be easily overturned on appeal unless it is clear that a wrong decision had been reached. 2. In an appeal on facts, the appellate court will examine the basis of the trial judge’s finding and the reasons he gives. Against this the weight of the evidence will be measured up to see whether the findings are supportable. The fact the trial judge had the opportunity to see and hear the witness will not by itself justify his conclusion if the weight of the evidence show otherwise. 3. On the facts, the trial judge was wrong because the weight of the evidence was against his finding that the accused’s version of the incident was more credible. The following facts were some of those pointing in favour the victim’s version of the story: (a) The victim was not at the material time soliciting on the streets. Instead, it was the accused who accosted her. In the light of this, it was improbable that a person who was going about her business will agree to let the accused see her passport and to board the accused’s van unless the accused had exercised authority over her. In this case, the accused’s lie that he was a police officer must have operated on the victim’s mind. (b) The accused also admitted to the police that he pointed to the SIA building and told the victim that that building was the police quarters and that they were going there. This supported the victim’s version of the story that the accused told her he wanted to conduct a further investigation on her and was bringing her back to the police station. (c) It was unlikely that the accused would have consented to having sex in a hot and stuffy rear compartment of a van at noon time. Even if she was a prostitute, there would have been some negotiations and it was more likely for them to go to a more pleasant place for sex. Not a deserted area in the rear of a van. (d) The fact that she did not resist to the acts could very well be due to fear. Afterall the accused is heavy and burly. (e) Furthermore, her distress as evidenced by Simon Tay and his wife when they first saw her supported her story. (f) Finally, the fact that she did not persist in getting her money back was due largely to the fact that much force had been put up by him to cause her to fall back onto the ground. She might have felt that it would be futile to struggle.

Sundara Moorthy Lankatharan v PP [1997] 3 SLR 321 Corruption. Although the trial judge found some inconsistencies in the prosecution witness’s evidence, the trial judge believed the prosecution’s version of events and convicted Sundara. Sundara appealed, arguing that the trial judge had erred in law in relying on Tan’s testimony. Accused was charged with receiving bribes from a contractor. Accused worked for HDB and was supposed to carry out inspection at HDB sites and make reports on those inspections. It was alleged that he received money from one of the HDB contractors so as not to make an adverse report against it. Accused, on the other hand, allege that there was never any receiving of bribes and the money was obtained as a loan from the contractor to his girlfriend. Trial judge accepted the evidence of the contractor because it felt that the contractor was truthful and there was no reason for the contractor to frame the accused. Accused appealed against the decision and argued that the trial judge should not have accepted the evidence of the contractor because there were some inconsistencies in his testimony. Yong Pung How CJ held that: 1. As a general principle, the appellate court will not disturb the findings of the trial judge unless they were reached contrary to the weight of the evidence. The trial judge was fully entitled to believe the evidence of the contractor. On the facts, there was no evidence to suggest why the contractor would want to frame the accused. 2. On the point of the trial judge’s acceptance of the contractor’s evidence despite the inconsistencies in them, the position is that there is nothing stopping the trial judge to accept part

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of the consistent evidence. Furthermore, the inconsistencies were minor and could be explained away by the fading of memory due to the lapse of time. The trial judge did not err in law nor in fact in holding that the prosecution proved its case beyond reasonable doubt. As a general principle, an appellate court would not disturb the findings of fact of the court below unless they were clearly reached against the weight of the evidence. As for inconsistencies in the Prosecution witness’s evidence, the trial judge adopted the correct approach inn that there was no rule of law that a witness’ testimony had to be believed in its entirety or not at all. So long as the inconsistencies were minor, or related to minor issues, it did not undermine his evidence in respect of the key issues.

An appellate court is well placed in the position as a trial judge in deciding whether a prima facie case had been established by the prosecution

PP v Low Tiong Choon [1998] 1 SLR 300 - The accused Low was charged with corruption and at the close of the prosecution’s case, the trial judge acquitted and discharged him, holding that no prima facie case had been made out. The trial judge further refused to invoke the presumption of corruption under s 8 of the Prevention of Corruption Act (Cap 241) (“the Act”). The prosecution appealed arguing that the trial judge erred in: (a) holding that the presumption did not apply in this case; and (b) finding that Low’s receiving $500 from one Yap could not be construed as corrupt so as to establish a prima facie case necessary for his defence to be called. Yong Pung How CJ held that: 1. The presumption of corruption did not apply since the criteria for the presumption to arise were not satisfied. 2. In deciding whether the prosecution established a prima facie case, an appellate court is in as well a position as a trial judge to draw the necessary inferences from the evidence. This is established law that need not be elaborated. 3. On the facts, the trial judge erred because a prima facie case is set out. The evidence of the prosecution must be assumed to be true, unless it is inherently incredible, in deciding whether the elements of the offence is made out. Here, it is made out. 4. The trial judge made a fundamental error of law in that she misconceived the true nature and purpose of the presumption of corruption under s 8 of the Act. The presumption under s 8 applied regardless of whether the prosecution was able to prove the essence of the offence that the accused was alleged to have committed. As long as the requisite criteria laid out in s 8 was fulfilled, the presumption of corruption was triggered. The underlying policy of the s 8 presumption was not to fill any void which the prosecution was unable to prove in their case, but to catch persons under the employ of the government or a public body when such persons abuse their position and corruptly gave or received a gratification for some ulterior purpose. 5. Three factual elements must be satisfied before s 8 applied5. On the facts the presumption did not apply because the third element was absent. However, this did not prevent the prosecution from establishing a prima facie case. The prosecution had in fact shown that a prima facie case of corruption had been proved, having regard to the burden they had to satisfy in order to discharge their legal obligation (evidence made out the essential elements of the case, such evidence not being inherently incredible – Haw Tua Tau). The accused’s defence and explanations were very much desired to clarify certain things which would otherwise work against him. Peh Eng Leng v Pek Eng Leong [1996] 2 SLR 305 Appellant paid for the purchase of property that was registered in respondent’s name. Respondent claimed to be the legal and beneficial owner. Issue of a presumption of trust. (Note: What’s important are the comments made on the subject of appeal) Held: An appellate court should defer to the trial judge’s judgment if it was unable to say with certainty that the trial judge was plainly wrong. In deciding whether the trial judge was plainly wrong, the appellate court would evaluate the quality of the evidence given by the witnesses. This involved testing it against inherent probabilities or against uncontroverted facts, including the conduct of the parties at the relevant time. In this respect, the appellate court in as in as good a position as the court of first instance. Amending charge: Garmaz v PP [1996] 1 SLR 401 5

(a) gratification was paid or given to or received by the accused; (b) at the time of the payment, gift or receipt, the accused was in the employ of the Government or a department thereof or a public body; and (c) the payment, gift or receipt way by or from a person who at the time of the payment, gift or receipt had or sought to have dealings with the Government or that department of Government or that public body.

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In brief: Police officers charged for corruption. At trial in sub courts, when ovncited, crucial witness who gave evid as to when money paid cld not remember when payment made. As a result, harge which said tt money made on partr date was wrong., but ample evid tt money had been paid, on appeal, yong pung how dsecided to amend the charge. Witness cld oly remembver tt made payment in window of 6/7 days. YPH amended charge to state tt offenc took lace bet date XX and YY. (rare thing for appeal judge to do) o Counsel applied for qn of law to be certified in CA. qn was whether cld appellate judge amend the charge. The applicants were convicted on corruption charges and appealed to the High Court which reserved the following questions of law of public interest for the Court of Appeal’s determination: (a) whether the High Court, exercising it appellate criminal jurisdiction, has the power to amend a charge pursuant to s 256(b)(ii) of the Criminal Procedure Code (Cap 68) (CPC); and (b) whether a fresh consent of the public prosecutor was required when a charge preferred under the Prevention of Corruption Act (Cap 241) was amended by the appellate court. This case involved a criminal reference case where 2 issues where brought before the CA for its consideration. The issues are: o Whether the HC has power under its appellate jurisdiction to amend charges pursuant to s 256(b)(ii) CPC? o Whether fresh consent of the Public Prosecutor is required before the amendment can be made? CA held that:  HC has the powers to amend by implication of s 256(b) CPC. This power to amend is imported by a purposive reading of the provision  provided no prejudice caused to accused person. Conviction upheld.  => wide powers. Though in this case quite obvious tt offence had been committed.  The power to amend is not unlimited. It must be exercised with caution and it must also be ensured that there is no prejudice caused to the accused. The amendment must not affect the substance of the evidence for both the prosecution and the defence Held: o (1) When the High Court exercised its power under s 256(b)(ii) of the CPC to alter the finding and substitute a conviction for the conviction under appeal, the court was not convicting the accused on a ‘substituted’ charge. The scope of such power allowed the court in appropriate cases, where it found the accused did not commit the offence with which he was charged but had committed an offence on which no charge had been preferred against him to alter the finding below and in consequence to substitute a conviction of the latter offence for that under appeal. o (2) In view of the court’s extensive express powers under the CPC, it was inconceivable that it was the legislature’s intention that the High Court, in the exercise of its appellate jurisdiction, should not have the power to amend the charge preferred against the accused and set the record straight. A more purposive construction should be adopted. Such power was necessarily implied in s 256(b). o (3) In answer to the second question (i.e. whether a fresh consent of the public prosecutor is required when a charge preferred under the Prevention of Corruption Act (Cap 241) is amended by the appellate court), the crucial question depended on the extent of the amendments proposed to be made, and whether the amendments would take the charge outside the scope of the consent already given. If the amendments introduced a new set of material facts or introduced a different offence, such amendments would generally take the charge outside the scope of the consent, in which case a fresh consent was required.

 Under s 54 SCJA, the CA can amend or alter charges on appeal. PP v Goh Hock Huat [1995] 1 SLR 274 • Accused was charged with trafficking drugs. He argued that he did not traffick as he was merely holding the drugs, and not delivering them, on behalf of someone under duress. • Trial judge held that there was no duress but there was no “delivery” of drugs because passing the drugs back to the owner does not constitute “delivery” within the meaning of the trafficking offence. Prosecution appealed against this decision. • CA held that: 1. The trial judge construed the word delivery too narrowly. “Delivery” also includes the delivering of drugs back to the owner by the bailee. 2. However, on the facts, no delivery can be established as the accused did not at that time deliver the drugs. He was merely holding the drugs as bailee to be returned to the owner who would then distribute the drugs. The accused should have, instead, been charged with doing an act preparatory for the purpose of trafficking. 3. CA has the power to alter or amend charges under s 54(1) SCJA read with s 163 CPC. Therefore, this court will according amend the charge to the appropriate one. 4. There is no prejudice for the accused since his defence would have been the same. Furthermore, there is no need to call evidence as the issue raised was a question of law. Also,

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the procedural steps upon amendment provided under the CPC are not applicable to the HC, they are only applicable to the HC. The Court of Appeal had power to alter the charge under s 163(1) of the Criminal Procedure Code (Cap 68) read with s 54(1) of the Supreme Court of Judicature Act (Cap 322). In this case, there was no injustice in accepting the version of the facts as stated by the defence and on the facts established and accepted by the trial judge, it would not operate unfairly against the respondent to amend the charge. The Court of Appeal was not bound by ss 163 to 166 of the Criminal Procedure Code when a charge was altered by the Court of Appeal on appeal. There was no need to remit the case back to the High Court for the plea to be taken on the amended charge or to allow the respondent to recall any or all of the witnesses in answer to the amended charge.

Can Appellate Court take Additional Evidence: fresh evidence

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Section 257 CPC (or under s55 SCJA for CA appeals) Court can take additional evidence itself or direct the Subordinate Courts to do so. Additional evidence will only be taken where it meets the various criteria. Evid tt is sought to be called must be evid which was not available at trial Must be relevant to the issues Must be evid which is credible in sense tt it is capable of belief Evidence raises a reasonable doubt as to guilt. It must make a difference to the result of the trial. Counsels’ lack of diligence or ignorance will not justify reception of additional evidence. The application is made by way of notice of motion and the evidence is to be given in affidavit stating grds of application Usu fiaxed on same day as appeal and heard just before the same Courtr may in discretion adjourn ruling on admissibility or otherwise of evid until has heard appeal

Order to take further evidence. 257. —(1) In dealing with any appeal under this Chapter the High Court, if it thinks additional evidence is necessary, may either take such evidence itself or direct it to be taken by a District Court or Magistrate’s Court. (2) When the additional evidence is taken by the District Court or Magistrate’s Court, it shall certify that evidence to the High Court and that Court shall then, as soon as possible, proceed to dispose of the appeal. (3) Unless the High Court otherwise directs, the accused or his advocate shall be present when the additional evidence is taken. (4) The taking of evidence under this section shall, for the purposes of Chapter XXIII, be deemed to be an inquiry. •

Section 47(2) SCJA – appellate judge normally receptive to additional or new material in mitigation fr counsel without any formal application having been made or notive given to the court – but for HC trials note s47.2 SCJA

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Where conviction is involved work becomes more onerous – in an appeal on qn of fact court will not interfere with trial judge’s finding unless bal of evidence greatly against conviction o Common grds of appeal:  Miscarriage of justice – failure of justice due to erros ofjuris resulting fr lack of consent, sanction or ex of excess of powers or assumptn of powers tt do not exist under CPC or partr act  Inadmissibility of evid – 162, 395, 396 CPC – only errors of admission or ireg which misled accused or led to failure of justice can possibly justify intervention by appeal court  Court misdirecting itself on material facts gravely prejudicing appellant  Errors in assessmentof credibility of principal prosecution witnesses  Drawing of inferences adverse to appellant which were capable of construction eq in his favour  Inadeq consideration of appellant’s evid and tt of his witness o Haw tua tau – lord diplock said tt whoever has fn of deciding facts on trial of crim offence shld keep open mind abt variety and accuracy of recollection of any indiv witness whether called for prosecution or defence until after all evid tendered

Juma’at bin Samad v PP [1993] 3 SLR 338 Accused was charged with housebreaking. He broke into a school with a friend by cutting the fence and entering the compounds. They took a computer and a printer with them.

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During trial, accused argued for a probation order on the basis that he was a young and rising Malay entrepreneur and had past good conduct. The defence of intoxication was also alluded to. Trial judge rejected this and sentenced him to imprisonment. He applied to the HC for criminal revision. He also applied for new evidence to be introduced in the form of affidavits which showed that he had no mens rea. The affidavits primary stated that he was intoxicated at the time of the offence and could not have intended it. The accused filed a criminal motion asking the High Court to exercise its revisionary powers under s 268 of the Criminal Procedure Code (Cap 68) (CPC) to inquire into his conviction. He also applied for the leave to introduce additional evidence to show that he was in fact entitled to the defence of intoxication under s 86(2) of the Penal Code. This additional evidence was in the form of affidavits which purportedly showed that: (a) the accused was addicted to alcohol; (b) he was heavily intoxicated at the time he committed the offence; and (c) he could not have intended to steal the items as he would have known that they were almost worthless and that what he did was completely out of character with his achievements and station in life. HC held that: o 3 conditions have to be fulfilled to justify the court taking additional evidence - non-availability, relevance and reliability:  It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial.  The evidence must be such that, if given at the trial, it would probably have an important influence on the result of the case, although it need not be decisive.  The evidence must be apparently credible, although it need not be incontrovertible. o In short, the circumstances in which an application to introduce fresh evidence will be allowed are extremely limited. However, it should be noted that there may be limited situations where the court may allow the additional evidence to be called even though the conditions are not satisfied if the court feels that a miscarriage of justice had resulted. But such instances are rare. o On the facts, the additional evidence is not apparently credible and does not establish the defence anyway. Furthermore, the defence was available at the time of the trial and should have been adduced then. If accused took a wrong decision in the course of the trial, that in itself is not a proper ground for introducing new evidence on appeal. On the other hand, if there was incompetent advocacy such that the evidence was not adduced earlier, that may be a ground for introducing it on appeal. However, there was no incompetent advocacy on the facts since the defence of intoxication was alluded to during trial and dropped due to perceived lack of evidence.

Carl Elias v PP [1995] 2 SLR 501 The appellant was charged with criminal breach of trust. He was entrusted with certain shares and that he misappropriated the sale of proceeds of these shares. In his defence, the appellant argued that throughout his dealings with the finance company, the company failed to ensure that the loan extended to him was fully secured at all times. The hearing of his appeal was adjourned to allow the appellant to file a criminal motion seeking leave to adduce further evidence. The further evidence in question consisted of a report by certified public accountants which allegedly showed that at various dates, the appellant’s outstanding loans with the finance company exceeded 60% of the shares deposited as security, yet the finance company took no action on these occasions. Accused was convicted in the magistrate’s court on 5 counts of CBT. He appealed against the conviction and sought to adduce additional evidence in the form of an accountant’s report. Held: o In an application for leave to adduce further evidence on appeal, it must be shown that: (a) the evidence sought to be adduced could not have been obtained with reasonable diligence for use at trial; (b) the evidence was such that if given at trial, it would probably have an important influence on the result of the case, although it need not be decisive; and (c) the evidence was apparently credible, although it need not be incontrovertible. o In this case, the appellant did not even satisfy the condition of non-availability at trial. The report sought to be adduced did no more than re-state evidence already heard during the trial. No explanation was offered as to why the report could not have been made available during the trial. Application dismissed. o Yong Pung How CJ endorsed Juma’at bin Samad v PP on the 3 criteria for adducing additional evidence. On the facts, accused cannot even satisfy the first criteria that the new evidence must have been non-available at trial. The report merely repeats the evidence which was already given during trial and there was no reason why the report should not have been adduced as evidence as well Van Damme v PP [1994] 1 SLR 246 Accused was charged and convicted with importing drugs into Singapore in the HC. He sought on appeal to adduce additional evidence consisting of business cards, certificates of guarantee from jewellers and the M&A of a coy incorporated by his Nigerian wife. CA held that:

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o o o

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The 3 conditions laid down in Juma’at bin Samad must be satisfied before additional evidence can be introduced during an appeal. They are non-availability, relevance and reliability. On the element of non-availability, the accused argued that the additional evidence was not available before the HC because the prison authorities refused to hand them over to the accused’s counsel. On this point, the court will not make any comment. On the element of relevance, the accused admitted before us that even if the additional evidence is admitted, it would bear no consequence on the question of guilt or innocence. The sole basis for the accused’s argument for admitting the additional evidence is that the HC judge would have a different impression of the accused if the evidence had been admitted. The test of relevance is more stringent than this tenuous argument. It must be probable that the additional evidence would have an important influence on the result of the case before relevance is established. For the element of reliability, the additional evidence was not reliable as there are some inconsistencies between them and the testimony given by the accused.

Tan Tze Chye v PP [1997] 2 SLR 505 Accused was charged with CBT in that he tried to pay to himself through a network of coys monies for the secretarial work done for the coy in which he was director. He argued that the directors had felt that the coy secretarial fees previously done by another firm was too high and that the fees should be reduce. He further argued that there was an agreement between the directors that the coy secretarial duties would be contracted to the director at a discounted rate and therefore the payments were not illegal. Trial judge held that on the evidence there was nothing to show that the accused had the authority of the other directors to pay the monies to himself. On appeal, accused tried to adduce additional evidence to show that one of the directors actually knew of the high fees charged by the previous secretarial coy and the that he agreed to the suggestion that the fees should be reduced. Yong Pung How CJ held that: 1. One of the conditions for adducing additional evidence on appeal is that the evidence must have been unavailable at the time of the trial. On the facts, the evidence sought to be adduced was clearly available then and the accused had not been able to explain why it was not adduced at trial. 2. There may be limited situations where even though the evidence was available and not adduced, the appellate court may still allow it if it can be shown that a miscarriage of justice has resulted. However, this is not such a case. Mohd Bin jamal v PP 1964 30 MLJ 254 Low khoon hui v PP 1996 2 SLR 321 Tan tai tiang v PP 2001 1 SLR 439 Pandiyan thanaraju rogers v PP 2001 3 SLR 281 an appellate court would not interfere with a trial judge’s findings of fact based on the credibility and veracity of the witness unless the findings were clearly against the weight of the evidence and unsupportable Tan Wei Yi v PP [2005] 3 SLR 471 Facts -

The appellant was charged along with six other people, including his father, for voluntarily causing grievous hurt to the victim, alleged to be the illicit lover of the appellant’s mother. The appellant’s parents had divorced on the ground that the appellant’s mother had committed adultery with the victim. On 6 February 2003, the appellant and the other accused persons went to the appellant’s mother’s apartment to retrieve some furniture. There, the appellant’s father spotted the victim in the toilet that was situated in the kitchen of the apartment. The appellant’s father assaulted the victim in the toilet and thereafter dragged him into the kitchen, where two other accused persons, namely, the appellant’s uncles, further assaulted him. The victim claimed that the appellant too had participated in the episodes of assault, in particular the episode that took place in the toilet. The victim alleged that the appellant sat on him, pinned his hands down with his knees and punched him in the face. However, the appellant’s mother had informed the first police officer at the scene that the appellant and three other accused persons had not participated in the episodes of assault. She identified the appellant’s father and two uncles as the assailants. Nevertheless, the district judge relied solely on the victim’s evidence to convict the appellant on the charge. The appellant was sentenced to seven months’ imprisonment. He appealed against both conviction and sentence. Held, allowing the appeal against conviction and quashing the sentence:

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(1) If the district judge had properly applied his mind to the evidence before him, he would have come to the conclusion that the Prosecution had not proven beyond a reasonable doubt that the appellant had indeed assaulted the victim. In this respect, it bore repeating that although the burden on the Prosecution was not to overcome every imaginable doubt in the case unless these doubts were real or reasonable, the Prosecution most certainly had the duty of proving every relevant ingredient of the charge beyond a reasonable doubt in order to establish its case: at [20] and [21]. (2) It was clear that the district judge relied solely on the victim’s testimony in convicting the appellant, despite the fact that the victim’s testimony was uncorroborated. Although there was no prohibition against relying on the evidence of one witness, there was an inherent danger in convicting an accused based only on the evidence of a single witness. The court had to be mindful of this danger and had to subject the evidence before it to careful scrutiny before arriving at a decision to convict an accused person on the basis of a sole witness’ testimony. In such circumstances, it was trite law that a conviction may be sustained on the testimony of one witness only if the court made a finding that the witness’ testimony was so compelling that a conviction could be based solely on it: at [22] and [23]. (3) In the present case, the district judge never made a finding as to how compelling the victim’s testimony in relation to the appellant was. The district judge’s failure to do so rang alarm bells as to whether he had actually exercised the appropriate level of caution when relying solely on the victim’s testimony to convict the appellant. Indeed, there was in this case a very real possibility that the district judge convicted the appellant on the basis of the victim’s testimony without even realising that he had to find that the victim’s testimony was of such a compelling nature as to warrant the conviction. Whatever the possibilities, the fact remained that the law required the district judge to make this finding, and his not doing so was an error of law that could not be rectified: at [24] and [25]. (4) Alternatively, even if one were to argue that a specific finding, of whether the victim’s testimony was indeed compelling, was a purely procedural requirement, there were also no substantive findings in the district judge’s grounds of decision that indicated that the victim’s testimony was so compelling that it was safe to rely solely on it to convict the appellant. Further, on a close scrutiny of the notes of evidence, it was doubtful that the victim’s testimony was indeed so unusually compelling. This was because the victim’s evidence in relation to the appellant was based largely on assumptions, and was riddled with inconsistencies. In the event, even if the district judge had made the specific finding that the victim’s testimony in relation to the appellant was of a very compelling nature, it was clear that such a finding would have been incapable of being supported on the objective evidence: at [26], [27], [31] and [33]. (5) Of course an appellate court ought to be slow to overturn a trial judge’s findings of fact, especially where they hinged on the trial judge’s assessment of the credibility and veracity of witnesses. However, this was not an unassailable rule, and where an appellate court was convinced that a trial judge’s findings of fact were plainly wrong or against the weight of the evidence, the appellate court had to obviously intervene: at [34]. (6) Additionally, the district judge’s findings in relation to the appellant’s mother’s testimony left much to be desired. Her testimony actually created much doubt as to whether the appellant had indeed entered the toilet and assaulted the victim: at [37], [39], [41], [43] to [45]. (7) During the course of the hearing, the Deputy Public Prosecutor (“DPP”) submitted that the appellant must have taken part in the episode of assault that took place in the kitchen. As such, the DPP argued that the appellant should at least be convicted on a lesser charge of voluntarily causing hurt under s 323 of the Penal Code (Cap 224, 1985 Rev Ed). However, there was nothing conclusive in the notes of evidence that clearly indicated that the appellant did indeed assault the victim in the kitchen. In fact, the victim admitted that he had his eyes closed during this particular episode of assault, and was therefore unable to identify his assailants. Most importantly, the district judge himself found that the appellant did not play an active role in the assault that took place in the kitchen, and had only stood by as the appellant’s father and two uncles kicked the victim. That being the case, there was no evidence to find that the appellant assaulted the victim in the kitchen, let alone any reasons to convict the appellant on a reduced charge: at [47]. (8) Notably, the district judge held that since four of the accused persons had decided to abandon their respective appeals, this signified that all of the accused persons, including the appellant, had deliberately lied to the court. The simple fact that the respective appellants had withdrawn their appeals did not translate immediately into an acceptance by the appellants that they lied in their testimony. There could be multiple reasons why appellants withdrew their appeals, some of which could be based on practical considerations such as costs. Additionally, the fact that the other appellants had withdrawn their appeals

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did not then mean that the appellant must have therefore lied in his testimony. This was an illogical train of thought and an erroneous one at that: at [48] and [49]. (9) The DPP argued that since the appellant was, at all material times, following closely behind his father, this therefore meant that the appellant must have also followed his father into the toilet or at least taken part in the assault at some point in time. However, it did not mean that just because the appellant followed his father closely, he must have therefore assaulted the victim. The Prosecution’s burden was always to prove an accused person’s commission of an offence beyond a reasonable doubt. Where there was reasonable doubt as to whether an accused person had indeed committed the offence that he was charged with, the court would almost invariably have to record an acquittal on that charge. Likewise, in this case, there was a reasonable doubt as to whether the appellant assaulted the victim at any point in time, the very essence of the charge of voluntarily causing grievous hurt. That being the case, it was clear that the Prosecution had not proven its case against the appellant, and therefore, the appellant had to be acquitted on the charge: at [54] and [55]. however, in determining if the trial judge was plainly wrong, the appellate court is in as good a position as the court of first instance of evaluating the quality of the evidence given by the witnesses by testing it against inherent probabilities or against uncontroverted facts including the conduct of the parties at the relevant time Gan Sim Lim v PP [2005] 3 SLR 358 Facts The appellant was convicted on three charges of criminal intimidation, voluntarily causing hurt and theft, following an altercation with a former girlfriend (“the complainant”). The appellant was sentenced to six months’ imprisonment for criminal intimidation, two weeks’ imprisonment for voluntarily causing hurt and a fine of $800, in default eight days’ imprisonment, for theft. The custodial sentences were ordered to run concurrently. At trial, the appellant had claimed that he only met the complainant in order to uncover her involvement with some duty-unpaid cigarettes. He added that it was the complainant who was the vicious attacker from the outset. The appellant appealed against both conviction and sentence, and argued that the district judge ought to have believed his testimony instead of the testimonies of the complainant and the other prosecution witnesses. Held, dismissing the appeal, enhancing the sentence on the charge of voluntarily causing hurt to three months’ imprisonment, and ordering the custodial sentences to run consecutively instead of concurrently: (1) From the district judge’s findings, it was clear that the appellant’s arguments were baseless. The district judge was faultless in the meticulous manner in which he analysed each piece of evidence before him. His finding that the complainant was a credible witness and his acceptance of the evidence of the other prosecution witnesses were probably the only conclusions that could have been drawn in the circumstances. The accuracy of the district judge’s conclusion became more apparent when placed alongside his findings on the appellant’s credibility as a witness: at [36]. (2) It was plain that the appellant was vainly trying his best to portray himself as a model citizen who was only trying to snuff out an offence, ie, the complainant’s involvement with the duty-unpaid cigarettes. However, on a perusal of the notes of evidence, it was obvious that the appellant’s primary concern at the material time was to confront the complainant regarding their failed relationship. The cigarettes were a non-issue: at [36] and [37]. (3) The appellant’s contention that the complainant viciously attacked him was unbelievable. There was clearly no evidence that supported the appellant’s story and, therefore, there was no reason to overturn the district judge’s findings in relation to his assessment of the witnesses and their evidence: at [38] and [39]. (4) The district judge was correct in convicting the appellant on the charge of voluntarily causing hurt, and imposing a custodial sentence on him. In a usual case where the injuries suffered by the victim were minor, a fine would be a sufficient penalty. However, this was obviously not a fixed remedy and in an appropriate case, a custodial sentence could still be imposed despite the victim having suffered only minor injuries. Everything hinged on the facts of each case, and on these facts, there were aggravating factors that merited the imposition of a custodial sentence. The assault in question was not a one-off slap or punch. It was a continuous assault that could have resulted in severe injuries, if not for the fact that the appellant became hysterical suddenly, giving the complainant an unexpected opportunity to escape: at [53] to [57]. (5)

In the circumstances, the two-week term of imprisonment on the charge of voluntarily causing hurt

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was insufficient. The appellant’s assault on the complainant was an aggravated assault comprising a string of physical abuses that only ended when the appellant became hysterical, giving the complainant an unexpected opportunity to escape. The seriousness of the assault was accentuated by the fact that the appellant was holding on to a pair of scissors before he became hysterical. The sentence on this charge was enhanced to three months’ imprisonment: at [58] and [59]. (6) It was notable that the district judge had ordered the custodial sentences to run concurrently. If this holding remained unchanged, it would render the three-month term of imprisonment nugatory, as the appellant, regardless of the increase in the custodial sentence on the charge of assault, would only be incarcerated for a maximum of six months, being the term of imprisonment on the charge of criminal intimidation. The appellant needed to feel the full force of the repercussions for the offences he had committed. His conduct, from the time of the offences up till the trial and on appeal, left no room for sympathy. The appellant needed to face the consequences of his actions in assaulting the complainant. As such, the custodial sentences for each of the offences were ordered to run consecutively instead: at [60] and [61]. Even though the evidence was available at the trial but not adduced, the fresh evidence may be admitted if it can be shown that a miscarriage of justice has resulted Selvarajoo s/o Mlayappan Krishsamy v PP [2004] SGHC 39 Facts The petitioner was convicted on a charge of cheating and dishonestly inducing delivery of property, an offence under s 420 of the Penal Code (Cap 224). He was sentenced to 12 months’ imprisonment and had served his sentence. The petitioner now sought a criminal revision of his conviction. He contended that he had been convicted on the basis of his non-production of a commission agreement, which he had now managed to find. He argued that the discovery of this commission agreement undermined the basis of his conviction. The petitioner therefore sought to adduce the commission agreement as fresh evidence. However, he did not apply by way of criminal motion. Held, dismissing the petition: (1) The appropriate procedure to adduce fresh evidence would be by way of a criminal motion. However, despite the lack of a criminal motion, the court in a criminal revision retained a power pursuant to s 257(1) read with s 268(1) of the Criminal Procedure Code (Cap 68) (“CPC”) to admit fresh evidence where such evidence was necessary. However, this power was discretionary: at [13] – [16]. (2) In exercising the power to admit fresh evidence, the courts apply the three conditions of nonavailability, relevance and reliability. The petitioner failed to satisfy all three conditions and was therefore unable to show why the commission agreement should be adduced: at [17] – [33]. (3) The petitioner made serious allegations against the district judge and the victims of his offence. It was apparent that the petition for criminal revision was an attempt by the petitioner to seek personal revenge rather than as a means to quash his conviction. As much as a criminal revision should not be used as a form of “back door appeal”, it should also not be abused as a means of tarnishing the reputation of another party: at [37] – [38]. What else can CA do on Appeal?

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Section 54(1) of SCJA  Confirm, reverse or vary decision  Order retrial  Such other order  Proviso: Even if point is decided in favour of appellant, Court can dismiss appeal if it considers that no substantial miscarriage of justice has occurred.

Powers of Court of Appeal 54. —(1) At the hearing of an appeal, the Court of Appeal shall hear the appellant or his advocate and solicitor, if he appears, and, if it thinks fit, the respondent or his advocate and solicitor, if he appears, and may hear the appellant or his advocate and solicitor in reply. Curing Irregularities During Trials

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Sections 395 & 396 of CPC  Irregularities not to vitiate decision unless it has occasioned a failure of justice.

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 S 396 CPC allows court to cure irregularity during trial unless it occasioned in a failure of justice Omission to frame charge. 395. —(1) No finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed unless in the opinion of the appellate court a failure of justice has been occasioned thereby. (2) If the appellate court thinks that a failure of justice has been occasioned by an omission to frame a charge it shall order that a new trial shall be had. Irregularities not to vitiate proceedings. 396. Subject to the provisions hereinbefore contained, no finding, sentence or order passed or made by a court of competent jurisdiction shall be reversed or altered on account of — (a) any error, omission or irregularity in the complaint, summons, warrant, charge, judgment or other proceedings before or during trial or in any inquiry or other proceeding under this Code; (b) the want of any sanction required by section 129; or (c) the improper admission or rejection of any evidence, unless the error, omission, improper admission or rejection of evidence, irregularity or want has occasioned a failure of justice. Beh Chai Hock v PP [1996] 2 SLR 495 • Facts: Case concerning oral statements improperly admitted without a VD when the identity of the recorder was in issue. • Held: The trial judge’s failure to conduct a voir dire was not an irregularity that can be cured under Section 396 of the CPC. The Court will have to determine FIRST whether this irregularity, that had occasioned a failure of justice.

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The approach of the court in answering this question was to ask if the improper admission of evidence would have resulted in a decision different from that which the court would have reached had the evidence not been admitted. In other words, the test to determine if the improper admission of evidence had occasioned a failure of justice was whether or not without that evidence, there was sufficient evidence to justify the conviction. On the facts, there was no other admissible evidence to prove the accused person’s guilt if the statement had been excluded. Hence a retrial was ordered. When exercising discretion to order retrial, Court to consider 2 competing principles: o Guilty persons shouldn’t be allowed to get off scott-free merely because of some technical blunder by the trial judge at the trial. o Fairness to accused persons.

Mimi Wong v PP [1972] 2 MLJ 75 • Mimi wong and husb convicted of murder of Japanese lady, the wife of mimi wong’s lover, a Japanese man. Wife came to sg to look for him. Mimi wong enlisted help of own husband, they went to house of jap family, and both acting in furtherance of common intention, murdered the jap woman. Only witness was the couple’s young daughter tt resulted in their conviction of murder. • During the trial, one defence raised was diminished resp of mimi wong. On appeal, argued tt HC judges (two) had made mistake in assessing this defence. • CA on appeal recognised tt on this pt, judges had indeed made a mistake, but overall evid clear tt mimi wong did not suffer fr diminished resp tt substantially impaired her mental resp. using this proviso, they dimnissed the appeal (even though the pt was in their favour) -> there was no miscarriage of justice. Both were then executed. • Accused convicted of murder, and sought to rely on defence of diminished responsibility. On appeal, the defence counsel managed to show that the trial judges were wrong in rejecting her defence of diminished responsibility. However, on the whole of the evidence, CA held that mental illness did not substantially impair the accused persons’ actions such that her case came within the ambit of diminished responsibility. • Held: o Although there had been a misdirection of law in that the trial judges in giving their reasons for convicting the first appellant of murder under the third limb of s 300 of the Penal Code disclosed that they had failed to draw the irresistible inference that the first appellant had the intention required under the third limb, the other proved facts undoubtedly supported the conviction and under the circumstances the proviso to s 54 of the Supreme Court of Judicature Act (Cap 15, 1970 Ed) would be applied as against the first appellant. o There was ample evidence to support the trial judges` finding that on the whole of the evidence, they were not satisfied on the balance of probabilities, that at time of the commission of the offence the first appellant was suffering from any abnormality of the mind.

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Section 54(2) of SCJA  Court can pass any other sentence (whether more or less severe)

Powers of Court of Appeal 54. —(2) The Court of Appeal may thereupon confirm, reverse or vary the decision of the trial court, or may order a retrial or may remit the matter with the opinion of the Court of Appeal thereon to the trial court, or may make such other order in the matter as it may think just, and may by such order exercise any power which the trial court might have exercised.

 CA has unlimited appellate powers. s 54(2) SCJA states that court can pass any other sentence (whether more or less severe). s 55 SCJA states that court can take additional evidence. s 55(4) SCJA states that can also call for a report from the trial court on any matter connected with the trial. s 56(2) SCJA states that ordinarily, one judgment but can also have separate judgments if presiding judge so directs. PP v Yeo Choon Poh [1994] 2 SLR 867 • Accused was charged with conspiring to traffic drugs. Trial judge held that the offence against him was not made out and acquitted him. Prosecution appealed against the trial judge’s decision on the facts. • Accused argued that the appellate court should not lightly interfere with the trial judge’s finding that the accused rebutted the presumption of knowledge necessary for a conviction under the offence. • CA held that: o s 44 SCJA empowers the prosecution to appeal against an acquittal or a sentence. s 54 SCJA gives the CA wide appellate powers which are not subjected to any express limitations. o In an appeal on fact, the following guidelines from Sheo-Swarup v King-Emperor are endorsed:  The views of the trial judge on the credibility of the witness;  The presumption of innocence against the accused;  The right of the accused to the benefit of the doubt;  The slowness of an appellate court in disturbing the finding of a trial judge who had the opportunity of seeing the witness. • On the facts, although the trial judge found that the witness was not a good witness, he still held that the accused rebutted the presumption of knowledge. In his decision, he appeared to have been overwhelmed by the fact that the accused was not present at the necessary times. This failed to take into consideration the other evidence which suggest that that the accused was in concert in the conspiracy.

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Section 55(4) SCJA  Can also call for a report from the trial Court on any matter connected with the trial.  This is not in the CPC

Additional evidence 55. —(1) In dealing with any appeal, the Court of Appeal may, if it thinks additional evidence is necessary, either take such evidence itself or direct it to be taken by the trial court. (2) When such additional evidence is taken by the trial court, it shall certify such evidence, with a statement of its opinion on the case considered with regard to the additional evidence, to the Court of Appeal, and the Court of Appeal shall thereupon proceed to dispose of the appeal. (3) The parties to the appeal shall be present when such additional evidence is taken. (4) In dealing with any appeal, the Court of Appeal may also, if it thinks fit, call for and receive from the trial court a report of any matter connected with the trial.

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Section 56(2) of SCJA  Ordinarily one judgment; can also have separate judgments if presiding judge so directs  Eg if dissenting judgement (took leng how case – 3 judges on appeal – one judge held tt offence not made out)

Judgment 56. —(2) The Court of Appeal shall ordinarily give only one judgment, which may be pronounced by the presiding Judge of Appeal or by such other member of the Court as the presiding Judge of Appeal may direct. Abatement of appeal

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Section 260 CPC • In case of death of accused, appeal shall abate except: an appeal against a sentence of fine.

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Death of parties to appeal. 260. Every appeal under section 245 shall finally abate on the death of the accused and every other appeal under this Chapter, except an appeal against a sentence of fine, shall finally abate on the death of the appellant. Ibrahim bin Masod v PP [1993] 3 SLR 873

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Ibrahim and Liow were charged that in the furtherance of the common intention of them both they murdered Phang between 1pm on 11 April 1989 and 14 April 1989. They were both duly convicted and sentenced to death. Against this conviction both Ibrahim and Liow have appealed but before we heard this appeal on 18 October 1993, Liow who had been held as a condemned prisoner in Changi Prison awaiting the hearing of his appeal had died on 10 August 1993. 1st accused and 2nd accused brought home the owner of a Beauty World goldshop with the intention to obtain ransom from his family. Unfortunately, 1st accused strangled the victim to death in the absence of the 2 nd accused. the 2nd accused, however, helped in the disposal of the body.

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Both 1st and 2nd accused were convicted and sentenced to death by the HC for murdering the victim in furtherance of a common intention. They appealed against the conviction and sentence.

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Before the appeal was heard, 1st accused died. 2nd accused proceeded on his appeal on the basis that the prosecution’s case did not establish that there was a common intention to murder the victim. CA held that:

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s 260 CPC states that on the death of an accused, any appeal except for an appeal against a sentence of fine shall be abated. However, s 260 CPC deals with appeals from the subordinate courts to the HC. This is a case where the accused persons are appealing to the CA from a conviction from the HC. For such cases, s 5 CPC allows us to apply the English practice as long as it does not conflict with our own Code. Under English practice, an appeal against a conviction of murder abates on the death of the convicted person before the appeal is heard. Therefore, the 1st accused’s appeal is abated. As for the 2nd accused’s appeal, his argument fails. A charge of murder in furtherance of a common intention does not require both accused persons to have murder in mind. All it requires that there is a common intention to commit an offence (which in this case was kidnapping) and the murder was committed in furtherance of the intention. The fact that the 2nd accused was not present did not absolve his liability. In any case, there is evidence that he participated in the disposal of the body and was therefore involved in the murder in some way. Liow’s appeal against his conviction for the murder of Phang had abated by his death on 10 August 1993, pursuant to s260 CPC.

Revision

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May happen tt where appellant has appeared in person court may have wrongly assumed juris and convicted accused or court may have convicted acsued without formal consent or sanction where offence non existent

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In such cases notice of appeal shld state tt appeal is to legality of sentence – is it nec for notice of appeal to sepll out appeal against conviction so tt conviction can be impeached followed by sentence o In many cases where court follows letter and spirit of s244 striclty and x quash conviction due to some grave error as to juri or wrongful application of the law, invokes aid of revisionary powers under s266 to 270 of CPC to correct defect

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Very wide powers are given to the High Court to supervise, revise or intervene in Subordinate Court decisions. Section 266 of the CPC and Section 23, 27 of the SCJA. – (even though NO ONE has filed an appeal)

Section 266 of CPC Power to call for records of subordinate courts. 266. —(1) The High Court may call for and examine the record of any criminal proceeding before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of that subordinate court. (2) Orders made under sections 105 and 106 and proceedings under Chapter XXX are not proceedings within the meaning of this section.

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Section 266(1) CPC – see also s24 SCJA (similar powers – below) o Very wide powers o High Court can call for an examine record of any criminal proceeding before Subordinate Court… to satisfy itself of correctness, legality or propriety of any finding, sentence or order and regularity of any proceedings. (no need to file notice or petition)

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High Court judge can, at any time, under the CPC call up the record of proceedings of a court; examine the record and if satisfied that there has been a miscarriage of justice, or some other error, set it aside and order a re-trial S. 266(1) Somewhat restrictive if you must first call for the record of proceedings as in this particular case Hari Ram Seghal v. PP [1981] 1 MLJ 165: • Malaysian High Court judge nevertheless felt that justice in the situation required that he interfere • Held that s. 266 was only an enabling section giving power to the court to call for records • S. 5 CPC permits the courts to use English law if there is no local provision • He incorporated that principle into local law and, accordingly, decided that he had powers of revision and set aside the conviction of the appellant

Section 24 SCJA Similar powers

Power of High Court to call for records of civil proceedings in subordinate courts 24. The High Court may call for and examine the record of any civil proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any decision recorded or passed, and as to the regularity of any proceedings of any such subordinate court. Section 23 & 27 of the SCJA Revision of criminal proceedings of subordinate courts 23. The High Court may exercise powers of revision in respect of criminal proceedings and matters in subordinate courts in accordance with the provisions of any written law for the time being in force relating to criminal procedure. General supervisory and revisionary jurisdiction of High Court 27. —(1) In addition to the powers conferred on the High Court by this Act or any other written law, the High Court shall have general supervisory and revisionary jurisdiction over all subordinate courts. (2) The High Court may in particular, but without prejudice to the generality of subsection (1), if it appears desirable in the interests of justice, either of its own motion or at the instance of any party or person interested, at any stage in any matter or proceeding, whether civil or criminal, in any subordinate court, call for the record thereof, and may remove the matter or proceeding into the High Court or may give to the subordinate court such directions as to the further conduct of the matter or proceeding as justice may require. (3) Upon the High Court calling for any record under subsection (2), all proceedings in the subordinate court in the matter or proceeding in question shall be stayed pending further order of the High Court. •

Power of revision can be used by the High Court to set aside convictions or sentences that are wrong in law, even though there is no right of appeal; no appeal as such or the time for appealing has lapsed.

• Section 27 SCJA: Additional powers of High Court give it : i. General supervisory and revisionary jurisdiction over Subordinate Courts ii. If it appears desirable in the interest of justice iii. On its own motion or at the instance of any party or person interested iv. At any stage of any matter or proceeding w/r civil or criminal v. Call for record and remove the matter into High Court vi. Give directions to Subordinate Courts for further conduct as justice may require •

Revisionary powers of court exercised in 2 ways o 1. sitn which comes to knowledge of court by itself eg when hearing appeal as to legality of sentence or fr newspaper story o 2. on presentation of revision petition by complainant – s268 o also 266, 268 CPC and s23, 37, 28 SCJA Power to order further inquiry. 267. On examining any record under section 266 or otherwise the High Court may direct the Magistrate to make, and the Magistrate shall make, further inquiry into any complaint which has been dismissed under section 134 or into the case of any accused person who has been discharged. Power of court on revision. 268. —(1) The High Court may in any case, the record of the proceedings of which has been called for by itself or which otherwise comes to its knowledge, in its discretion exercise any of the powers conferred by sections 251, 255, 256 and 257. (2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by advocate in his own defence.

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(3) Nothing in this section shall be deemed to authorise the High Court to convert a finding of acquittal into one of conviction.

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Section 268(3) CPC o Cannot convert an acquittal into conviction o No order to prejudice of accused unless he has opportunity to be heard

Permission for parties to appear. 269. No party has any right to be heard either personally or by advocate before the High Court when exercising its powers of revision: Provided that the Court may, if it thinks fit, when exercising such powers, hear any party either personally or by advocate, and that nothing in this section shall be deemed to affect section 268 (2). Orders on revision. 270. When a case is revised under this Chapter by the High Court it shall certify its decision or order to the court by which the finding, sentence or order revised was recorded or passed, and the court to which the decision or order is so certified shall thereupon make such orders as are conformable to the decision so certified, and, if necessary, the record shall be amended in accordance therewith. •

Note tt under s269 counsel does not have right to be heard in revision proceedings; counsel shld seek leave of court before addressing it

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Section 28 SCJA o No person shall have a right to be heard when the High Court is exercising its powers of revision and supervision. (it is up to the judge to decide who he wants to hear) o No final order to prejudice of any person unless he had opportunity of being heard Discretion of High Court as to hearing parties 28. —(1) Subject to the provisions of any written law for the time being in force, no party shall have any right to be heard before the High Court when exercising its powers of revision and supervision. (2) No final order shall be made to the prejudice of any person unless that person has had an opportunity of being so heard.

Heng Lee Handbags Co Pte Ltd v PP [1994] 2 SLR 760 - HLH applied to quash search warrants by way of criminal motion for criminal infringement. Preliminary objection raised as to the form employed by HLH in bringing the application before the High Court, argument was that criminal revision was not available to HLH and that the correct procedure in matters of this nature was first to apply for leave and then for an order of certiorari pursuant to O 53 of the Rules of the Supreme Court 1990. Held: - The High Court’s powers to issue an order of certiorari was additional or auxiliary to the High Court’s revisionary powers under s 23 of the Supreme Court of Judicature Act (Cap 322) (SCJA)and s 266 et al of the Criminal Procedure Code (Cap 68) (CPC), save that, in criminal revision, by virtue of s 269 of the CPC, no party had any right to be heard either personally or by an advocate before the High Court when exercising its powers of revision. The contention that HLH’s only remedy was to apply for an order of certiorari before the High Court was unfounded. Although the CPC did not prescribe the form of application for criminal revision, it was traditionally done by way of a petition. HLH’s mode of application breached another settled rule that affidavits should not be filed in criminal appeals or upon criminal revision unless so ordered by the High Court. However, the purpose of revisionary provisions under s 23 of the SCJA and s 266 of the CPC was to give speedy relief to the affected and aggrieved. The court was therefore entitled to consider the substantive issue raised in the application, even though the form used by HLH was inappropriate and the steps faulty. The fact remained that a perceived grievance was before the court. Note: Criminal revision only of decisions of SUB COURTS. High court judges do not revise judgements of other courts! Yeo Tuan Paul v PP [1974] 1 MLJ 161 Prosecuted for offence under enlistment act – pleaded guilty and sentenced to 9 mths imprisonment He cld not qn legality of conviction because he pleaded guilty. His defence counsel was david marshall

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He was very surprised tt this person watned to avoid NS – story tt emerged was tt boy had gone to CNPB and had reported for NS. When his name was called, he went with IC but she said go back and sit down. He went home instead. He was then prosecuted. Marshall went to CNPB and asked the crporal what had happened. Based on new evid, CJ Wee Chong Jin used powers of revision and set aside conviction => court can ex powers of revision court may of his own accord, when it has realisead mistake in sentencing, may send papers up to HC and ask HC to exercise powers of revision and set aside the error

Ng Kim Han v PP [2001] 2 SLR 293 • Facts: There were seven co-accused and a Mr. Chua, were arrested whilst playing a game of pai kow in a factory. Seven co-accused persons pleaded guilty. Mr. Chua went to trial. Mr. Chua found guilty. Mr. Chua appealed and his appeal was allowed on the ground that the premises were not used primarily for gaming, and so did not constitute a “gaming house”. The seven co-accused persons filed for a petition for criminal revision. • Held: o (1) While there is no clear-cut test of what constitutes ‘serious injustice’, such injustice should be held to exist when a person has been convicted despite the obvious absence of an essential constituent of the offence. Thus, petitions for criminal revision have been allowed in cases where the statement of facts do not disclose all the necessary elements of the offence, but where the petitioner pleads guilty anyway. o (2) The fact that the petitioners pleaded guilty on their own accord was not a bar to the exercise of revisionary power. Rather, when an accused enters a plea of guilty, this means that the accused loses his right to appeal against conviction. In such a situation, an application by way of criminal revision will be the only means by which the accused can have a wrongful conviction set aside. Ang Poh Chuan v PP [1996] 1 SLR 326 • Held:

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Prerequisite of exercise of revisionary jurisdiction was that there must have been some serious injustice. No precise definition of this to preserve Court’s discretion but generally should be shown that there was something palpably wrong with the decision, which struck at its basis as an exercise of judicial power. Revision ought not to be granted where there is a mere difference in the view of the law – this is in the province of the appellate process. Neither should revision be granted where applicant’s grievance arises out of a change in the law as it would otherwise be open to persons whose right of appeals have expired to challenge decisions by revision. Hardship caused by forfeiture on its own could not attract criminal revision – must be shown that, additionally, injustice had thereby been caused and this is in turn shown if forfeiture clearly ought not to have been ordered. Though delay in application would not be material in determining whether there was injustice on the facts of this case, even if there was injustice, its force was seriously attenuated by the delay (in this case, 8 months) such that no exercise of the discretion ought to be made in applicant’s favour . “The court should only exercise its powers of revision in exceptional cases when there was a denial of the right of a fairer trial or it was urgently demanded in the interest of public justice. Revision ought not be granted where there was a mere difference in the view of the law… it ought not be exercised where any grievance allegedly suffered by the applicant arose out of a change in the law.” If it were otherwise, then, notwithstanding the expiry of the appeal period, it would be open to persons to challenge decisions by way of revision.

Pakir Malim Bava Fahurudeen Malim v PP [1997] 3 SLR 429 The petitioner Packir pleaded guilty to theft of several pieces of clothing from a stall and was sentenced accordingly. He sought revision of the decision arguing that: (a) he was coerced into pleading guilty by the treatment he received in the hands of the police; (b) his attempt to explain the true events was not interpreted to the magistrate by the court interpreter; and (c) as he was not represented when he made the plea, and was prevented from contacting his employer, the plea could not be without qualification. Packir also lodged an appeal against sentence. Held: The court could not accept Packir’s allegations of coercion and failure to interpret as they rested on facts not disclosed in the record or exhibits. The allegations of coercion were untested and Packir made no attempt to adduce fresh evidence.

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Pleas by unrepresented persons were not more easily vitiated than by those represented. The acceptance of the petitioner’s submission would in practical terms mean that no plea by an unrepresented person could ever be accepted as unqualified. This cannot be. The inconsistencies noted in the plea were negligible, and did not prejudice Packir. Hence he failed to make out his application for revision. The plea of guilt held good and he was precluded by s 224 of the Criminal Procedure Code (Cap 68) from appealing against his conviction. On the related appeal against sentence, none of the matters raised constituted relevant mitigation. The magistrate took into account the fact that he was a first offender in her sentencing and there was nothing manifestly excessive in the sentence.

PP v Ngu Tiong Lam 1 SLR 273 As on MAC charge sentenced in excess of sentencing jurisdiction of Mag Ct by DJ. DJ applied for criminal revision praying that HC set aside sentences imposed and substitute appropriate sentences. Held: • Application allowed. • DJ who hears MAC is ex officio a Mag and exercises sentencing powers of a Mag. Sentences thus cannot exceed the ceiling prescribed in s.11(5) CPC. • Amount of fines reduced and deterrent sentences imposed, having regard to their previous convictions and after As given opportunity to be heard under s.268(2) (because of adverse order being made vs. them on revision) Kannan v PP [1995] 3 SLR 757 Conspiracy – bribery of national soccer players. Having been convicted, the appellants filed petitions of appeal against conviction and sentence but later applied for leave to withdraw their appeals against conviction and proceed against sentence only. - Held: On the facts, the court was not satisfied that the sentences were manifestly excessive. Appeal against sentence dismissed. Leow Yew Thong @ Johny v PP [1996] 2 SLR 348 The appellant Leong was convicted on four charges of cheating. He appealed against conviction. At the first appeal hearing on 13 February 1996 Leong tendered a medical certificate excusing his absence a he was unwell. At the postponed hearing, Leong was again absent and he again tendered another medical certificate. Leong’s counsel acknowledged that s 253 of the Criminal Procedure Code (Cap 68) (CPC) allowed the court to dismiss the appeal, but argued that the court could exercise its powers of revision on the ground that on the facts, there should only have been one charge instead of the four Held: Under s 253(3) of the CPC, a court could dismiss an appeal for the appellant’s absence if: (a) the court was not aware of the reasons for his absence; or (b) where the appellant informed the court, through counsel, of the reasons for his absence. Where no explanation was available for the appellant’s absence, the court would as a matter of course dismiss the appeal. Where an excuse was given, the court would have regard to the circumstances of the case. Generally, the appellant must not have been at fault in being absent, and the excuse must be bona fide. A court could reinstate an appeal if the appellant appeared before the court and satisfied the court that the absence was not due to his own fault. The same principles applied when the appellant sought to reinstate the appeal as when the court determined whether to dismiss it for want of his presence. It was then for him to convince the court that it really was not his fault that he was absent. In the present case, the medical certificate tendered on 12 March was inadequate, and, together with the shortcomings of the earlier certificate, indicated that there was, more likely than not, a lack of bona fides. - The court’s revisionary powers would be invoked only when there was something palpably wrong in the decision below In this case, the breaking up of one charge into four did not mislead nor prejudice Leong. In any case, his defence could not have been conducted any differently. There could be no revision. Appeal dismissed. Teo Hee Heng v PP [2000] 3 SLR 168 - Facts: The petitioner pleaded guilty in the subordinate courts to a charge of extortion. A further charge of insulting the modesty of the same victim was taken into consideration for the purposes of sentencing. On his plea of guilt, the petitioner was convicted and sentenced to 30 months` imprisonment and four strokes of the cane. - Held: Although the High Court was capable of reviewing the conviction in exercise of its powers of revision, the scope of these powers obliged the court to act with great circumspection and only where it was manifestly plain that the offence charged was nowhere disclosed in the statement of facts tendered. It was not the purpose of a criminal revision to become a convenient form of `backdoor appeal` against conviction for accused persons who had pleaded guilty to their charges. The governing principle was that the revisionary jurisdiction of the High Court should be invoked only if the court was satisfied that some serious injustice had been caused which warranted the exercise of its powers of revision. -

see also

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o o o o o o o -

ee ee hua v PP 1969 2 MLJ 23 monokaran v PP 1979 1 MLJ 262 heng kim khoon v PP 1972 1 MLJ 30 PP v Anthony 1972 1 MLJ 22 Ang poh chuan v PP 1995 3 SLR Rajeevan edakalavan v PP 1998 1 SLR 815 Ng kim han v PP 2001 2 SLR 293

an application for criminal revision is made by way of petition affidavits should not be filed in criminal appeals or upon criminal revision unless so ordered by the High Court: Mohd Hiraz Hassim v PP [2005] 1 SLR 622, Cigar Affair v PP [2005] 3 SLR 648 Mohd Hiraz Hassim - Facts The appellant brought 66 lots of gemstones into Singapore from Bangkok for sale to a Singapore client. Upon his arrival at Changi Airport, the appellant approached the customs officers to pay Goods and Services Tax (“GST”) on his goods. He handed to the customs officers an unnumbered invoice, which purported to reflect the value of the goods as $10,000.00, and proceeded to pay GST of $500.00 based on this amount. However, the customs officers examined the gemstones and suspected the value given to be underdeclared. Upon questioning, the appellant admitted that he had suppressed the value of the gemstones and that their actual value was $43,282.75. The appellant pleaded guilty to evading GST to the amount of $1664.14, which was the difference between the amount payable and the amount originally paid. A fine of $25,000.00 was imposed on the appellant, which he paid. The appellant subsequently filed a petition for criminal revision, claiming that his conviction had been unsafe. The appellant also appealed against the fine, claiming that it was manifestly excessive. Held, dismissing both the petition and appeal: (1) The court’s powers of revision were to be exercised sparingly, and only if the court was satisfied that some serious injustice had been caused which warranted the exercise of its powers of revision. It was not the purpose of a criminal revision to be a convenient form of backdoor appeal against conviction for accused persons who had pleaded guilty: at [11]. (2) It was not a relevant consideration whether or not there was a known or designated buyer for the appellant to transfer the goods to in Singapore. GST on the importation of goods was charged, levied and payable as if it were customs duty or excise duty, and as if all goods imported into Singapore were dutiable and liable to customs duty or excise duty. Customs duty (including GST) had to be paid at the time of importation, before goods were removed from customs control. The appellant was thus liable to pay GST when he imported the gemstones into Singapore: at [13]. (3) The appellant’s subsequent claim that the value of the gemstones was only $10,000.00 contradicted his own admission and plea of guilt. The appellant had admitted to suppressing the value of the gemstones, and had admitted that the actual value of the gemstones was $43,282.75. The appellant’s dispute over the precise monetary value of the gemstones bore no relation to his plea of guilt. Therefore, no serious injustice had been caused to the appellant that would warrant the exercise of the court’s powers of criminal revision: at [14], [16] and [17]. (4) The appellant’s own admission that the value of the gemstones was $43,282.75 had been accepted at trial, and he had been sentenced on that basis. Not once did the appellant challenge the accuracy of this value. This figure had been determined by the appellant’s own admission, and it was not for him to challenge this figure on appeal: at [22]. (5) The court was not at all persuaded by the appellant’s unusual argument that a “median” figure be used to determine his sentence. The fine of $25,000.00 was not manifestly excessive because this amount was entirely in line with the current benchmark sentence of 15 times the customs duty or tax leviable: at [25] and [27]. [Observation: It might be prudent in future cases of this type to direct that similar imported goods be properly appraised and valued before deciding on the appropriate fine to impose. It may be potentially risky to calculate the fine by relying solely on the admission of the accused person who, by virtue of his own admission, has already proved himself dishonest at least once: at [24].] Cigar Affair - Facts

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The applicant (“CA”) brought this motion for six questions arising from an earlier separate motion (“No 23”) to be reserved for the determination of the Court of Appeal as questions of law, pursuant to s 60 of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) (“SCJA”). The questions, briefly stated, were as follows. First, whether it was appropriate to bring a matter for review in the High Court pursuant to ss 266, 267 and 268 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“the CPC”) by way of criminal petition or criminal motion. Second, whether it was necessary to mention, in a complaint filed pursuant to s 53A of the Trade Marks Act (Cap 332, 1999 Rev Ed) (“the TMA”), the mens rea element in s 49 of the TMA, as done for complaints filed under s 136 of the Copyright Act (Cap 63, 1999 Rev Ed), prior to the issuance of a search warrant. Third, whether the scope of a search warrant issued pursuant to a complaint filed under s 53A of the TMA should be restricted to the goods for which “information [had been] given” in the complaint, under s 53A(3)(a) or extend to goods for which no information had been given. Fourth, whether the scope of a search warrant issued pursuant to a complaint filed under s 53A of the TMA should be restricted to the documents or class of documents for which “information [had been] given” in the complaint, under s 53A(3)(c) or should extend to any documents regardless of whether information regarding them had been given. Fifth, whether there was any way by which to determine the scope and/or relevancy of the documents being seized pursuant to a search warrant issued under s 53A(3)(c) of the TMA so as to prevent abuse and/or wrongful disclosure of confidential and/or sensitive information. Sixth, whether costs should be ordered against a respondent party who sought to review the decision of the Subordinate Courts in exercise of its criminal jurisdiction pursuant to powers under ss 266, 267 and 268 of the CPC. Held, dismissing the application: (1) In respect of the first question, the case law authorities referred to by counsel for CA were, contrary to his assertions, not contradictory on the point of whether the application for review should be by way of petition or motion. In any event, even if the application should have been by way of petition in No 23, the court had been prepared to hear the substantive application and there was thus no determination on this point which affected the outcome of No 23: at [10] and [11]. (2) The second question was not a question of law of public interest or so exceptional as to justify a reference to the Court of Appeal. This court had said in No 23 that s 49 of the TMA did not require the same mental element required under s 136 of the Copyright Act (Cap 63, 1999 Rev Ed). There was no submission based on the terms of s 49 of the TMA itself. That there was no prior authority on the interpretation of s 49 of the TMA in the High Court was not sufficient reason to allow a reference to the Court of Appeal under s 60(1) of the SCJA: at [12]. (3) As for the third question, it was not disputed that the court had the power to issue a search warrant for any general category of goods. In No 23, the court found that the complaint giving rise to the issuance of the search warrant pertained to such a general category of goods. It was a finding of fact and did not involve a question of law: at [15]. (4) The fourth question revolved around similar arguments submitted by counsel for CA in No 23 (ie that documents seized had to be confined to those which contained the infringing mark, whereas documents which evidenced an offence could not be seized). Again, there was no submission based on the terms of s 53A(3) of the TMA itself. It was clear that the fourth question was not a question of law of public interest nor was it so exceptional that it justified a reference to the Court of Appeal: at [16], [17] and [19]. (5) Apart from the fact that this court had dealt with counsel’s concerns regarding the seizure of documents containing sensitive information in No 23, it was obvious that s 53A(3)(c) of the TMA did not contain any mechanism or procedure to prevent abuse or wrongful disclosure of confidential or sensitive information. What counsel sought under the fifth question was for the Court of Appeal to set out guidelines on the exercise of a search warrant but that was not a question of law: at [20] and [21]. (6) Under the sixth question, counsel was hoping to obtain a blanket prohibition against the making of a costs order against persons who were seeking a criminal revision. This would curtail the court’s very discretion. The question was not really a question of law for reference to the Court of Appeal: at [22].

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jurisdiction will not be exercised in a change in the law either as this circumvents the expiry of the appeal period: PP v Mahat Bin Salim [2005] 3 SLR 104 Facts The respondent pleaded guilty to three charges under ss 356, 380 and 394 of the Penal Code (Cap 224, 1985 Rev Ed) and consented to having two other charges, under ss 379 and 414 of the Penal Code taken into consideration for the purpose of sentencing. The district judge sentenced him to reformative training. Shortly after, however, the district judge was alerted to the fact that the respondent had already exceeded the prescribed maximum age of 21 years for which reformative training was appropriate. According to s 13(1)(a) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”), only offenders below the age of 21 on the date of their conviction could be sentenced to reformative training. The district judge consequently filed a petition urging the High Court to exercise its revisionary powers under s 268 of the CPC to set aside the former sentence and to impose another sentence that would be more fitting in the circumstances. The Prosecution supported the district judge’s application and argued for a sentence of corrective training to be imposed. However, it was silent on whether other forms of punishment, such as caning or fine, ought to be ordered as well. Held, allowing the petition: (1) It was trite law that the revisionary jurisdiction and powers of the High Court had to be exercised judiciously. There must be some form of serious injustice, something palpably wrong in the decision, that struck at its basis as an exercise of judicial power by the court below, which warranted the exercise of the revisionary powers. In the present case, the sentence of reformative training was obviously wrong in law as the respondent was beyond the prescribed maximum age for reformative training on the date of his conviction. There was therefore no reason not to allow this petition. The sentence of reformative training would accordingly be set aside: at [11] and [12]. (2) The principal aim of corrective training was to rehabilitate an offender exhibiting criminal tendencies. Corrective training operated by turning such criminals away from the easy allure of crime by putting them through a regime of discipline and by teaching them certain work skills. Several factors indicated that a sentence of corrective training would be appropriate in the circumstances. First, the respondent’s many antecedents at his young age proved that his previous jail sentences were of little deterrent effect. Second, a regimented environment instilling discipline and morally correct values would facilitate the reversal of criminal tendencies. Third, corrective training would equip the respondent with the skills needed to earn a decent livelihood by the time he returned to society. Fourth, at the very least, the objective of crime prevention would be achieved as the respondent would be placed out of public circulation while undergoing corrective training. Finally, the technical requirements warranted under s 2(1) CPC for corrective training to be ordered were satisfied: at [13] to [18]. (3) When sentencing an offender to corrective training, the critical factor was the amount of time the court felt was required to enable real reform to be attempted. Taking into account all relevant circumstances, it was felt that the respondent’s previous infractions were not so serious as to warrant a sentence of corrective training to span beyond the minimum five years: at [19] and [20]. (4) Corrective training only supplanted a sentence of imprisonment. Therefore, the court still retained the power to order a sentence of caning or fine in addition to a sentence of corrective training: at [23] and [24]. (5) It was well established that hardship to the offender’s family had very little mitigating value unless there were exceptional circumstances at hand. The court could not modify a sentence imposed on the offender simply because the family would suffer. On the facts, the respondent failed to raise any exceptional reasons to justify departing from the general principle. Moreover, the respondent had not done better for himself even after four previous convictions. His promises of better conduct in future therefore rang hollow: at [36] and [37]. [Observations: It was not mandatory for the court to call for a pre-sentencing report before passing a sentence of corrective training, so long as the court was already fully satisfied of the respondent’s physical and mental suitability for such a sentence. Such pre-sentencing reports were called for by judges only as a matter of practice: at [21]. The phrase “shall be liable” generally contained no obligatory or mandatory connotation, although of course, there were exceptions. There also ought to be no distinction between the phrase “shall be liable” and “shall also be liable” used in ss 356 and 380 of the Penal Code, by virtue of the fact that the word

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“liable” carried no mandatory effect regardless of the use of the word “also” in those provisions. On the other hand, the phrase “shall be punished” clearly carried a mandatory connotation: at [27] to [30].]