Professional Documents
Culture Documents
Criminal Appeals
Right of appeal
• No right of appeal unless it is provided for by the law. Section 241 of the CPC
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.
- 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
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
Types of appeal
• Generally appeals are against sentence and/or conviction
• 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.
• 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.
• 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.
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.
5
(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 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)
- 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]
Procedural matters
• 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
(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.
7
- 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
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
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.
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.
(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
• Section 250 CPC
- 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
• Section 50 of SCJA
o Court of Appeal can extend time or permit an appeal if requirements not observed.
Bail
• Section 248 CPC – bail at first instance
o Subordinate Court can grant bail to person who has filed a notice of appeal against conviction.
- 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
- 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
14
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.
Stay of execution
• Section 251 CPC
- 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.
15
- 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
• Section 51 SCJA
- A more detailed expansion of Section 251 CPC.
• 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
(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 non-
performance 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.
(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.
16
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
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.
Judges on appeal
. 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
18
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
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
1
If conflict of judicial authority question is deemed to be of public interest
19
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.
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.
20
- 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:
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.
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.
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.
21
- 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.
- 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
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.
24
- 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.
• 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
• 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
- 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:
28
(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
29
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
30
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.
(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 non-
availability, 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].
(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.
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.
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.
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
Revision
• 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
• 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
• 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(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)
34
o 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
• 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.
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
- 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
Note: Criminal revision only of decisions of SUB COURTS. High court judges do not revise judgements of other
courts!
- 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
- see also
38
o ee ee hua v PP 1969 2 MLJ 23
o monokaran v PP 1979 1 MLJ 262
o heng kim khoon v PP 1972 1 MLJ 30
o PP v Anthony 1972 1 MLJ 22
o Ang poh chuan v PP 1995 3 SLR
o Rajeevan edakalavan v PP 1998 1 SLR 815
o Ng kim han v PP 2001 2 SLR 293
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.
(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].]
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.
(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].
40
- 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.
(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
41
“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].]