Beruflich Dokumente
Kultur Dokumente
A. Disposal of Property
What is covered
• Property seized in the course of investigations
• Property tendered in court as evidence during trial
Procedure
• Disposal without inquiry (no competing claims)
• Disposal inquiry (competing claims) (DI)
o Very much like a trial
o Opening address; examination of witnesses; submissions
• Disposal Order made – delivery, confiscation, forfeiture, destructions
The Provisions
General disposal provisions in CPC: s386 – 392
o Where there is no prosecution: s392 CPC
o Where there is prosecution: s386 CPC
S392 CPC
o Deals with seizure of property taken from:
an arrested person under s 29(1) CPC (“all articles other than necessary
wearing apparel and any of those articles where there is reason to believe were
instruments or fruits or other evidence of the crime”) , or
alleged to have been stolen or found under circumstances which create
suspicion of the commission of any offence (see s 68(1) CPC).
- s. 392 CPC concerns the disposal of property seized by the police or alleged to be stolen
or found under circumstances, which create the suspicion of the commission of any
offence
- this section applies where no trial has taken place
- Sim Cheng Ho v Lee Eng Soon:
• A disposal inquiry was intended to be an inexpensive and expeditious manner of
distributing items produced in the course of investigations and at trial
• Such an inquiry was not conclusive as to title which should be taken up in a civil
trial if need be
• A magistrate determining a disposal inquiry where entitlement to possession was
disputed had to look to the facts of each case to ascertain the party entitled to
possession
• Where entitlement was not clear from the evidence, the magistrate ought to
deliver possession to the party to whom, after a consideration of the evidence,
appeared to him to have been entitled to possession
o Police have to report seizure to Magistrate (“shall”) who will make a disposal order
(whether with or w/o inquiry depending on whether there is contested)
Applicable Principles
· A Disposal Inquiry is intended to be an inexpensive and expeditious manner of
distributing items produced in the course of investigations or at trial.
· Purpose of DI is to determine person who is entitled to the possession of the property
except where possession is unlawful.
· Such an inquiry is not conclusive as to title. The rightful owner can and should assert
his rights in a separate civil trial.
· Court has a wide discretion in making an order.
· Relevant Cases: Magnum Finance Bhd v PP, Thai Chong Pawnshop Pte Ltd v
Vankrisappan
• No right of appeal against disposal order: Sofian & Anor v PP [’70] 2 MLJ 272; If
there is fundamental error occasioning clear failure of justice, High Court may
exercise revisionary jurisdiction. DI Magistrate must look at facts to ascertain party
entitled to possession.
• Order made at DI has no impact on civil court, which is correct forum to test complex
issues of fact and law.
• If civil suit not completed prior to DI, petitioners could persuade DI Mag to (a)
release vehicles to respondent on bond to return to them if civil suit is in their
favour, OR (b) retain vehicles or proceeds in court custody subject to order of
civil court.
Wang Wang Pawnshop PteLtd & others v KJ Tiffany & other [2004] 2 SLR 222
- jewellery seized, shld they be returned to pawnshop owners or to the jewellers?
- At DI district judge ordered most of items to be ordered to orig owners; pawn shop
unhappy and filed for criminal revision
- Application for Criminal Revision on a DI decision (argued fundamental error of law
resulting in clear failure of justice”
- Judge presiding over DI not obliged “simply restore the items to the last person in
lawful possession””
- Ownership / title was examined––whether person who pawned jewellery to pawnshop
had title to pledge ––nemo dat quod non habet
- Nevertheless, petitioners should have commenced civil proceedings to determine title
- ie paid lip service to sim cheng ho case though factually strayed from it
- found tt person who had pawned jewellery to shop had no title to pledge =>
pawnshop had no good title so jewellery went back to the jewellers
- ie court can determine title for property
Forfeiture – General
Forfeiture – Mandatory:
• Section 123(2) Customs Act: “An order for the forfeiture of goods shall be made if it
is proved to the satisfaction of the court that an offence under this Act has been
committed and that the goods were the subject matter of, or were used in the
commission of, the offence, notwithstanding that no person may have been convicted
of the offence.”
• Prosecution only needs to show that:
• Goods were subject matter of OR were used in commission of the offence.
• Once prosecution is able to show this and makes the decision to proceed with
the application for forfeiture, court must forfeit.
Forfeiture – Discretionary
s386(2) CPC
• an omnibus provision that creates general power of forfeiture with respect to property
produced before court regarding which any offence appears to have been committed
or which has been used for commission of any offence; complementary to specific
forfeiture provisions contained in other legislation
• residual role (for use when relevant legislation does not deal with disposal of
property)
o Magnum Finance v PP [’96] 2 SLR 523
- When the accused is brought before the Court, and is suspected to be of unsound
mind, the Court may remand the accused for observation in a mental hospital, and fix
the case for further mention to receive the psychiatric report on the observation
[Section 308, 309]
- When the psychiatric report is presented to the Court, the Court will have to
determine whether the accused is fit to stand trial [Section 309]
- If the accused is not fit to stand trial the Court may release him on bail if the offence
is bailable or else report the case to the Minister
• s 308(5) CPC - PP may apply to Court before trial for accused to be remanded at
mental hospital (IMH) for observation for up to 1 mth if there is suspicion of
unsoundness of mind;
• s 308(1) CPC - Court to investigate if reasonable suspicion of unsoundness of mind
and consequent incapability to make defence
• s 308(3) CPC - Court power to send accused to IMH for observation up to 1 mth
if not satisfied accused capable of making defence; s 308(4) - potential extension of
observation period
• s 309 CPC - Medical superintendent will certify accused’s state of mind and fitness
to make his defence. Court may or may not agree with assessment.
o If capable of making defence - trial proceeds
o If incapable of making defence - trial postponed.
• s 312 CPC - accused released under s310 may be brought before court and s308
procedure of assessing fitness repeats
• s 313 - 315 CPC: If Accused is of sound mind at the time of trial, but was unsound
at time of offence, case proceeds.
• Accused will be acquitted
o “…he was by reason of unsoundness of mind incapable of knowing the nature
of the act alleged as constituting the offence or that it was wrong or contrary
to law”
• Order of acquittal on grounds of unsoundness of mind must state if Accused
factually did the act constituting the offence
• If yes, court shall order custody of Accused and report case to Minister of Law, who
will decide on confinement of Accused at President’s pleasure.
o If the accused is fit to stand trial and to plead, the Court will proceed with the trial or
inquiry. [Section 314 and 315; Section 313]
o Persons confined under Section 310 or 315. (See Section 316, 318 & 319 of the CPC)
• s 317 CPC - accused confined under s 310 may be brought before court and trial
proceeded with if certified capable to make defence
• s 319 CPC - friend or relative of accused confined under s 310 may take custody of
accused
o Minister must first be satisfied that the person will be properly taken care of
and prevented from doing injury to himself or others.
C. Juvenile Proceedings
"youthful offender" includes any child convicted of any offence punishable by fine or
imprisonment who in the absence of legal proof to the contrary is above the age of 7
and under the age of 16 years in the opinion of the court before which the child is
convicted;
· The Court has the power to make an inquiry as to the age of a person. This is
provided in Section 21. There is also a presumption under Section 43 as to the age of
the person.
Principles
Youthful offender may be dealt with in manner provided by the Children and
Young Persons Act, instead of being imprisoned.
235. When any youthful offender is convicted before any criminal court of an offence
punishable by fine or imprisonment or by both, and whether or not the law under which
the conviction is had provides that fine or imprisonment or both shall be imposed upon
the person so convicted, that court may, instead of sentencing the youthful offender to
pay a fine or awarding any term of imprisonment in default of payment of the fine, or
of passing a sentence of imprisonment of any kind, deal with the youthful offender in
the manner provided by the Children and Young Persons Act.
Section 229 of the CPC.- caning awarded at any one trial not to exceed 10 strokes -
caning shall be inflicted with a light rattan
Section 213 of the CPC- Sentence of death shall not be pronounced against accused if
at the time when the offence was committed he was under the age of 18 years - To be
detained during the President’s pleasure instead (e.g. Anthony Ler’s case)
No sentence of death against person under 18 years.
213. Sentence of death shall not be pronounced on or recorded against a person
convicted of an offence if it appears to the court that at the time when the offence was
committed he was under the age of 18 years but instead of that the court shall sentence
him to be detained during the President’s pleasure, and, if so sentenced, he shall be
liable to be detained in such place and under such conditions as the President directs,
and while so detained shall be deemed to be in legal custody.
Governing Consideration
Section 29 of the CYPA: not to associate with adult offenders while in detention,
being conveyed to or from court or while waiting before or after attending court
Section 30 of the CYPA: Juvenile arrested shall be brought before a Juvenile Court or
Magistrate who shall release him on a bond entered into by his parent/guardian/other
responsible person to secure his attendance upon the hearing of the charge
3 Exceptions:
(1) Offence triable only by the High Court
(2) Necessary in his interest to remove him from association with any undesirable person
(3) His release would defeat the ends of justice
Bail of children and young persons arrested
30. —(1) Where a person apparently below the age of 16 years is arrested with or
without warrant, he shall be brought before a Juvenile Court.
(2) Where the person cannot be brought immediately before a Juvenile Court, the
officer making the arrest shall, without unnecessary delay, take or send the person
arrested before a Magistrate who shall inquire into the case and unless —
(a) the charge is one of an offence triable only by the High Court;
(b) it is necessary in the interest of that person to remove him from association with any
undesirable person; or
(c) the Magistrate has reason to believe that the release of that person would defeat the
ends of justice,
the Magistrate shall release that person on a bond, with or without sureties, for such
amount as will, in the opinion of the Magistrate, secure the attendance of that person
upon the hearing of the charge, being entered into by his parent or guardian or other
responsible person.
Section 53 of the CYPA: Juvenile arrested and not released on bail may be remanded
in a remand home by any police officer until he can be brought before a court
Section 54 of the CYPA states that a child or a young person not released on bail shall
be remanded in custody in a remand home, instead of in a prison.
Juvenile Proceedings
Section 32 of the CYPA - Presiding Magistrate sits alone when finding the facts but
with 2 advisors when dealing with the child or young person
Section 33(1) of the CYPA: trial of child or young person to be by Juvenile Court,
unless:
o offence triable only by the High Court eg anthony ler case – murder so tried in
HC even though juvenile
tried by High Court unless PP applies and legal representative of child
or young person agrees for Juvenile Court to try offence: s 33(2)
o child or young persons jointly charged with person who has attained 16 years
of age - charge heard by court of appropriate jurisdiction: s 33(3)
o proceedings before court of appropriate jurisdiction already underway before
it becomes apparent that accused is child or young person: s 33(4)
o Juvenile Court has jurisdiction to try all offences which would be triable by a
Magistrate’s Court, a District Court or the High Court: s 33(5) and caveat in s
33(2)
o The powers of the Juvenile Court in imposing “punishments” are given in Section 44
CYPA.
Powers of Juvenile Courts on proof of offence
44. —(1) Subject to the provisions of this section, where a Juvenile Court is satisfied
that an offence has been proved, or where the child or young person (referred to in this
section as the offender) admits the facts constituting the offence, the Court shall, in
addition to any other powers exercisable by virtue of this Act or any other written law
for the time being in force, have power —
(a) to discharge the offender;
(b) to discharge the offender upon his entering into a bond to be of good behaviour and
to comply with such order as may be imposed;
(c) to commit the offender to the care of a relative or other fit person for a period to be
specified by the Court;
(d) to order his parent or guardian to execute a bond to exercise proper care and
guardianship and to abide by such order as the Court may make in relation to the
welfare, maintenance and rehabilitation of the offender;
(e) to make a probation order requiring the offender to be under the supervision of a
probation officer or a volunteer probation officer for a period of not less than 6 months
and not more than 3 years;
(f) to make an order, in accordance with the prescribed requirements, requiring the
offender to perform community service, not exceeding 240 hours in aggregate, of such
nature and at such time and place and subject to such conditions as may be specified by
the Court;
(g) to order the offender to be detained in a place of detention for a period not
exceeding 6 months;
(h) to order the offender to be detained in a place of detention or an approved institution
over such number of weekends, not exceeding 52, as the Court thinks fit;
(i) to order the offender to be sent to an approved school for a period of not less than 2
years and not more than 3 years;
(j) to order the offender to pay a fine, damages or costs;
(k) to order the offender to be brought before a District Court to be dealt with under
section 13 of the Criminal Procedure Code (Cap. 68) if the offender —
(i) has attained the age of 16 years; or
(ii) having attained the age of 14 years but being below the age of 16 years, has
previously been dealt with by a court in connection with another offence and had, in
respect of that other offence, been ordered under paragraph (i) to be sent to an approved
school established under section 64,
and the Juvenile Court is satisfied that it is expedient with a view to his reformation that
he should undergo a period of training in a reformative training centre.
(2) For the purpose of subsection (1), the Juvenile Court shall have power —
(a) to make the orders referred to in subsection (1) (b), (c), (d), (e), (f), (g), ( h), (i) and
(j) singly, or combine, in such manner as it thinks just and expedient in the
circumstances —
(i) any 2 or more of the orders referred to in subsection (1) (b), (c), (d), ( e), (f) and (j);
(ii) any order under subsection (1) (g) with any one or more of the orders referred to in
subsection (1) (d), (e) and (j);
(iii) any order under subsection (1) (h) with any one or more of the orders referred to in
subsection (1) (c), (d), (e), (f) and (j); or
(iv) any order under subsection (1) (i) with any one or more of the orders referred to in
subsection (1) (d) and (j); and
(b) without prejudice to paragraph (a) (ii) or (iii), to make an order under subsection (1)
(h) to run consecutively to an order under subsection (1) (g).
(3) Where the Juvenile Court makes an order under subsection (1) (g) for the detention
of an offender in a place of detention in combination with a probation order under
subsection (1) (e), the period of the offender’s detention shall not exceed 3 months.
(4) Where the Juvenile Court makes an order under subsection (1) (h) for the detention
of an offender over a weekend, the offender’s detention shall commence at 3 p.m. on
Saturday and end at 5 p.m. on the Sunday immediately following.
(5) If an offender, without reasonable excuse, contravenes any order made by the
Juvenile Court under subsection (1) (referred to hereinafter as the original order) or any
condition thereof, the Juvenile Court may make such order as is necessary for the
offender to be produced before it and thereafter, deal with the offender by —
(a) making any order that the Court is empowered to make under subsection (1);
(b) varying the original order or any condition thereof; or
(c) directing the offender to comply with the original order or any condition thereof to
the extent that the original order or condition thereof has not been complied with.
(6) Where an offender, while being detained in a place of detention or an approved
school pursuant to an order under subsection (1) (g) or (i), is found guilty of another
offence by the Juvenile Court, the Court may, instead of making a fresh order against
the offender under subsection (1) (g) or (i), extend the period of detention that is being
served by the offender.
(7) Where a Juvenile Court is satisfied, on the representations of the manager of a place
of detention, an approved school or an approved home, that a person ordered to be
detained in the place of detention, approved school or approved home is of so unruly a
character that he cannot be so detained, the Court may —
(a) order the person to be transferred to and detained in an approved school or in
another approved school, as the case may be, which the Court considers more suitable
for him and to be detained there for the whole or any part of the unexpired period of
detention; or
(b) order the person to be brought before a District Court to be dealt with under section
13 of the Criminal Procedure Code (Cap. 68) if the person —
(i) has attained the age of 16 years; or
(ii) having attained the age of 14 years but being below the age of 16 years, has
previously been dealt with by a court in connection with another offence and had, in
respect of that other offence, been ordered under subsection (1) (i) to be sent to an
approved school,
and the Juvenile Court is satisfied that it is expedient with a view to his reformation that
he should undergo a period of training in a reformative training centre.
Thus, It can:
· Discharge the offender either with or without a bond to be of good behaviour,
· Commit him to the care of a relative, (or lock him onto the bed posts!)
· Order his parent or guardian to execute a bond to exercise proper care and
guardianship,
· Make a probation order,
· Detain him in a place of detention for up to 6 months, (the dungeon!)
· Send him to an approved school for a period between 2 to 3 years, (RGS or CHIJ Toa
Payoh would be good. The dominatrix char bos from those school would whip the
bugger into shape )
· Fine the offender, (ya, use his pocket money to pay)
· Commit him to a Young Offenders section if he is a young person and
· If he is so unruly a character, or if he has reached 16 years, refer him to a District
Court with a view to sentencing him to RTC under Section 13 of the CPC.
· Require the offender to perform community service not exceeding 240 hours in
aggregate. (come vacuum my house lah)
· May be used singly or in combination with certain restrictions.
o There are certain restrictions in the punishment that can be meted out on children and
young persons. Please see s37 as against s231 CPC.
CYPA Restrictions on punishment of children and young persons
37. —(1) A child shall not be sentenced or ordered to be imprisoned for any offence or
be committed to prison in default of payment of a fine or costs.
(2) A young person shall not be ordered to be imprisoned for any offence, or be
committed to prison in default of a fine, damages or costs, unless the court certifies that
he is of so unruly a character that he cannot be detained in a place of detention or an
approved school.
(3) Notwithstanding the provisions of any other written law, no child or young person
shall be sentenced by any court other than the High Court to corporal punishment.
· Section 39 refer to the powers of the Juvenile Court to order the fines imposed and
damages of costs ordered to be paid by parent or guardian of the child or young
person unless parent or guardian cannot be found or has not conduced to the
commission of the offence by neglecting to exercise due care of the child or young
person
o - order parent or guardian to pay damages or costs or give security for the good
behaviour of the child or young person without recording a finding of guilt
against the child or young person
·
Power to order parent or guardian to pay fine, etc., instead of child or young person
39. —(1) Where a child or young person is charged before a Juvenile Court with any
offence for the commission of which a fine may be imposed and damages or costs or
both may be awarded, and the Court is of the opinion that the case would be best met
by the imposition of all or any of those penalties whether with or without any other
punishment, the Court may, in such case, and shall, if the offender is a child, order that
the fine imposed and damages or costs awarded be paid by the parent or guardian of the
child or young person, unless the Court is satisfied that the parent or guardian cannot be
found or that he has not conduced to the commission of the offence by neglecting to
exercise due care of the child or young person.
(2) Where a child or young person is charged with any offence, a Juvenile Court may
order his parent or guardian to give security for his good behaviour.
(3) Where a Juvenile Court thinks that a charge against a child or young person is
proved, the Court may make an order on the parent or guardian under this section for
the payment of damages or costs or requiring him to give security for the good
behaviour of the child or young person, without proceeding to record a finding of guilt
against the child or young person.
(4) An order under this section may be made against a parent or guardian who, having
been required to attend, has failed to do so, but, subject to subsection (1), no such order
shall be made without giving the parent or guardian an opportunity to be heard.
(5) Any sum imposed and ordered to be paid by the parent or guardian under this
section, or on forfeiture of any such security, may be recovered from him in the manner
provided by the Criminal Procedure Code (Cap. 68) in like manner as if the order had
been made on the conviction of the parent or guardian of the offence with which the
child or young person was charged.
o S38: where there is a conviction for murder, culpable homicide, attempted murder or
voluntarily causing grievous hurt AND the court is of the opinion that none of the
other methods by which the case may be legally dealt with are suitable.
Court may sentence offender to be detained for a specified period in such
place and on such conditions as the Minister may direct
Offender may be released at any time by the Minister on licence.
S39 CYPA
o Order that fine imposed and damages or costs awarded be paid by parent or guardian
unless parent or guardian cannot be found or has not conduced to the commission of
the offence by neglecting to exercise due care of the child or young person.
o Order parent or guardian to pay damages or costs to give security for the good
behaviour of the child or young person without recording a finding of guilt against the
child or young person.
S45 CYPA
o convene a family conference to deal with the offender by
o reprimanding the offender
o administering a formal caution to the offender against further committing
any offence
o requiring the offender to pay compensation to the victim
o requiring the offender to perform community service not exceeding 240
hours in the aggregate
o requiring the offender to apologise to the victim
o requiring the offender to do such other act as the family conference thinks
appropriate
Power to convene family conference to deal with child or young person guilty of
offence
45. —(1) Without prejudice to section 44, the Juvenile Court may, for the purpose of
dealing with a child or young person who has been found guilty of committing an
offence (referred to in this section as the offender), convene a family conference in
accordance with the prescribed requirements and a family conference so convened may
deal with the offender by —
(a) reprimanding the offender;
(b) administering a formal caution to the offender in the prescribed manner against
further committing any offence;
(c) requiring the offender to pay compensation to the victim of the offence in such
manner and of such amount as may be determined by the family conference;
(d) requiring the offender, in accordance with the prescribed requirements, to perform
community service, not exceeding 240 hours in the aggregate, of such nature and at
such time and place and subject to such conditions as may be specified by the family
conference;
(e) requiring the offender to apologise to the victim of the offence in such manner as
may be specified by the family conference; or
(f) requiring the offender to do such other act as the family conference thinks
appropriate in the circumstances.
(2) In exercising its powers under this section, the family conference shall —
(a) comply with the prescribed procedure; and
(b) have regard to the orders which may be made by the Juvenile Court under section
44 for dealing with a person who has been found guilty by the Court of a comparable
offence.
(3) If the offender fails —
(a) to attend at the time and place appointed for a family conference; or
(b) to comply with any requirement of the family conference,
the family conference shall report the matter to the Juvenile Court and the Court shall
thereupon make such order as is necessary for the offender to be produced before the
Court and thereafter deal with the offender as the Court thinks fit in accordance with
section 44.
(4) A person who attends a family conference (not being the offender, the parent or
guardian of the offender or any other member of the offender’s family) shall not
divulge any personal information obtained at the conference relating to any of those
persons.
(5) Any person who contravenes subsection (4) shall be guilty of an offence and shall
be liable on conviction to a fine not exceeding $1,000.
S46 CYPA
o Order either both child/young person and parent/guardian to undergo counselling,
psychotherapy or other activity for the purpose of resolving relationship problems
between them, rehabilitating the child/young person, enabling the parent/guardian to
manage the child/young person or enhancing or protecting the well-being and safety
of the child/ young person
o contravention of order is a criminal offence
WOMEN 2
The relevant provisions are Sections 352 CPC on bail for a female offender for a non-
bailable offence, and Section 231 CPC, which prohibits caning for women offenders.
Also a sentence of death is not to be passed on pregnant women (Section 214 CPC).
D. Contempt Of Court
o (can summarily try but almost often never used) Court may, if it thinks fit, and at any
time before the rising of the court on the same day, take cognizance of offence and
sentence and sentence offender to a fine not exceeding $500 or to imprisonment not
exceeding 3 months or both
S323 CPC
o Court may in its discretion discharge the offender or remit the punishment upon the
offender’s submission to the Court’s order on apology being made to the Court’s
satisfaction.
s324 CPC
o If any witness in criminal court refuses to answer question or produce a document
without reasonable excuse, the court may imprison him for up to 7 days
S325 CPC
o Appeal from sentence to the High Court
o Rarely resorted to
S8 of the Act.
o Above powers are replicated here
o Power to punish for “contempt of court where the contempt is committed in the face
of a subordinate court or in connection with any proceedings in the subordinate
courts.”
o Court may impose imprisonment not exceeding 6 months or fine not exceeding
$2,000 or both
o Court may discharge offender or remit offender if it thinks it just to do so
Contempt
8. —(1) The subordinate courts shall have power to punish for contempt of court where
the contempt is committed —
(a) in the face of the court; or
(b) in connection with any proceedings in the subordinate courts.
(2) Where contempt of court is committed in the circumstances mentioned in subsection
(1), the court may impose imprisonment for a term not exceeding 6 months or a fine not
exceeding $2,000 or both.
(3) The court may discharge the offender or remit the punishment if the court thinks it
just to do so.
(4) In any case where the contempt is punishable as an offence under section 175, 178,
179, 180 or 228 of the Penal Code (Cap. 224), the court may, in lieu of punishing the
offender for contempt, refer the matter to the Attorney-General with a view to
instituting criminal proceedings against the offender.
- s 7 - Power of the High Court and Court of Appeal to punish for contempt of court.
Contempt
7. —(1) The High Court and the Court of Appeal shall have power to punish for
contempt of court.
(2) Wilful disposal by a garnishee, otherwise than in accordance with law or by leave of
the court, of any property attached in his hands or under his control by a notice of court,
shall be deemed to be contempt.
(3) Wilful disobedience by a corporation to any order punishable by attachment may be
punished by attachment of the directors or other officers of the corporation who are
responsible for, or are knowingly a party to, such wilful disobedience.
- Passed in 1900, the Criminal Procedure Code (Cap. 68) is the main source of criminal
procedure in Singapore.
- It endeavoured to bring “into the compass of one Ordinance the whole procedure with
regard to the administration of justice”.
- The most major re-enactment of the Criminal Procedure Code was in 1955, with
several other amendments made since 1956.
- The basic and essential features of the Criminal Procedure Code of Singapore were
derived from its Indian counterpart.
- Nevertheless, important differences exist between the two Codes.
- Principles of Construction
o Interpretation of the provisions of Criminal Procedure Code is best
appreciated within the annals of local case law. Malaysian cases may also be
useful especially where the local provision in question is in pari materia with
the Malaysian counterpart.
o Relevance of Indian Cases
With the local Criminal Procedure Code being modelled on the Indian
Code, Indian decisions are naturally relevant where they relate to the
interpretation of similar provisions3.
o Relevance of Basic Common Law Tenets
Like the Indian Code, the local Criminal Procedure Code rests on
certain fundamental common law conceptions.
o However, any recourse to common law and Indian/Malaysian cases is
unjustifiable where the Code is clear and unambiguous.
o Note: s 5 of the CPC allows importation of English Law if CPC is silent and
not in conflict with the Code. But in practice this provision is hardly applied
as the CPC is quite exhaustive.
- The courts have often said that they are but “creatures of statute” and have only such
jurisdiction as provided by legislation5. Further, in the recent case of PP v Quek Chin
Chuan 6, the Chief Justice overturned a lower court’s order to the prosecution to
3
See Teo Cheng Leong v PP [1970] 2 MLJ 275
4
See also Bachchu Lal v The State (1951) ALL 836 at 838
5
See Wong Hong Toy v PP [1994] 2 SLR 396, Mok Swee Kok v PP [1994] 3 SLR 140 and
Abdullah bin Rahman v PP [1994] 3 SLR 129
6
[2000] 3 SLR 10
conduct further investigations. The Chief Justice stated that the court has no power to
make such orders.
- The procedure for criminal discovery is governed by the Criminal Procedure Code.
Unlike in civil cases where the Rules of Court prescribe extensive rules of discovery,
the CPC does not impose on the prosecution an onerous duty of disclosure.
- Defence counsel may however obtain certain documents including the First
Information Report and the accused person’s statement recorded under Section
122(6) of the CPC (see above).
DISCLOSURE
- there is no power for a mentions or PTC court to order the prosecution to furnish
any documents to the defence
- CPC provides for the delivery by the PP of copies of certain reports to the accused
before the commencement of the trial, where he intends to give such reports in
evidence at the proceedings
- Under s.369(1), documents purporting to be reports under the hand of persons
enumerated in sub-section (2), “upon any matter or thing duly submitted to him
for examination or analysis or report” may be used in evidence, with the proviso
that a copy thereof is given to the accused at least ten clear days before
commencement of the trial
Report of certain persons.
369. —(1) Any document purporting to be a report under the hand of any of the
persons mentioned in subsection (2) upon any matter or thing duly submitted to him
for examination or analysis or report may be used as evidence in any inquiry, trial or
other proceeding under this Code unless the court or the accused requires that person
to be called as a witness:
Provided that in any case in which the Public Prosecutor intends to give in evidence
any such report he shall deliver a copy thereof to the accused not less than 10 clear
days before the commencement of the inquiry, trial or other proceeding.
(2) The following are persons to whom this section applies:
(a) an analyst employed by the Health Sciences Authority;
(b) any registered medical practitioner employed by the Health Sciences Authority;
(c) the Government Bacteriologist;
(d) the Commissioner of Parks and Recreation;
S 337/87 wef 30.3.87.
(e) any person appointed by the Minister, by notification in the Gazette , to be a
document examiner;
(f) any inspector of weights and measures duly appointed as such under the
provisions of any written law;
(g) any person or class of persons to whom the Minister by notification in the
Gazettedeclares that this section shall apply.
- accused has no right to inspect his own s.121 (1) statement to the police, to copies
of his co-accused’s statements, witnesses’ statements
- it is entirely up to the prosecution to furnish to the defence such statements
- s. 58 CPC permits an application to be made for the production by prosecution of
documents or other evidence necessary or desirable for the proceedings, but such
application can only be made before the court which the actual trial is taking place
and “only after the recording of prosecution evidence has commenced” when the
trial is well under way
- Tan Khee Koon v PP [1995] 3 SLR 724 at 736H?
Facts
The appellant Tan, a Police Staff Sergeant with the Commercial Crime Division, was
convicted on three charges of corruption under the Prevention of Corruption Act (Cap
241) (‘the Act’). He appealed against both conviction and sentence. The appeal
against conviction was primarily on the trial judge’s findings of fact and on the basis
that the complainant’s evidence was not corroborated, and the failure of the
prosecution to produce his investigation papers. As for the appeal against sentence, it
was argued that the sentences imposed were manifestly excessive.
(1) There was nothing to disturb the findings of the trial judge on the facts.
(2) Section 25 of the Act applied to any witness who was merely a payor of
gratification. There was no need to treat the evidence of such a witness with caution.
But if the witness was something more than a mere payor and was guilty of infamous
conduct, then he fell outside the ambit of s 25. However, s 25 did not elevate the
evidence of the witness. The normal burden remained on the prosecution to prove
beyond a reasonable doubt that a witness qualified as a mere payor. On the facts, the
complainant was clearly a mere payor, and as such, his evidence need not be treated
with more caution than usual.
(3) No application under s 58(1) of the Criminal Procedure Code (the CPC) was
made to the trial judge for the production of the investigation papers. Neither was it
necessary nor desirable for them to be produced. Whether or not Tan refrained from
prosecuting the complainant was irrelevant under s 9 of the Prevention of Corruption
Act.
(5) There was nothing to indicate that the sentences were manifestly excessive.
- for accused’s s. 121(1) statement, it has been held that the proper time to make an
application for such a statement is after the accused and his witnesses has finished
giving his evidence, as there was no longer any question of the defence tailoring
evidence at that stage: Ronnie Tay Kok Poh v PP [1996] 1 SLR 185;
Facts
The appellant Tay was charged for corruptly offering one Chua gratification under
s 6(b) of the Prevention of Corruption Act (Cap 241). Both Tay and Chua were
convicted and Tay appealed. Tay also filed a criminal motion to admit further
evidence.
An examination of the evidence revealed that there were enough reasons to allow the
appeal even without looking at the additional evidence. The court was not convinced
by the prosecution’s submission, and a conviction of Tay was unsafe. Appeal allowed.
Per curiam
(1) Since the appellant maintained that what he said in the statements was the truth,
the contents of the s 121 statement would have become part of his testimony. The
entire s 121 statement should, therefore, have been admitted and marked as evidence
(2) Once the defence witnesses had finished giving evidence, there was no longer
any basis for denying the defence sight of the accused’s s 121 statement as there was
no question of the defence tailoring evidence at this stage and all the material that
would be required for the court to determine its relevancy would also be before the
court
(3) By s 159 of the Evidence Act (Cap 97, 1990 Ed), an accused’s s 121 statement
could be used to corroborate his testimony. Hence, the defence was denied a relevant
piece of evidence by the prosecution when it refused at this stage to let the defence
have the statement. Where the case involved a bare allegation by a prosecution
witness against the bare denial of the accused, such evidence could turn out to be of
pivotal importance. Denial of such evidence was not conducive to a fair trial.
- Soosainathan s/o Dass Saminathan v PP [2003] SGCA 45 at para 43
Appeal dismissed.
43 Admittedly, there was no provision in the Criminal Procedure Code
(“CPC”) for the discovery by an accused of documents in the possession of the
prosecution: Tan Khee Koon v Public Prosecutor [1995] 3 SLR 724. If an accused
wanted to obtain copies of his own police statements, he should have applied to the
court under s 58(1) of the CPC for a summons to be issued: Kulwant v Public
Prosecutor [1986] SLR 239, [1986] 2 MLJ 10. It was established that the proper
time for such an application to be made was after the defence witnesses had
finished giving evidence, as there was no longer any question of the defence
tailoring evidence at that stage: Tay Kok Poh Ronnie v Public Prosecutor [1996] 1
SLR 185.
- Selvarajan James v PP [2000] 3 SLR 750: there is no requirement in the CPC for
the prosecution to disclose witnesses’ statements to the defence, “it is for
Parliament to decide if it wants to enact these revisions when it updates the CPC
and, until then, the court cannot direct the Prosecution to produce witnesses’
statements to the Defence”
- 1st Mention in Court 26 - PTC date 8 weeks from 1st mention in Court 26
o Counsel takes instructions & applies for papers on his undertaking to
pay the fees. So as to be ready at PTC for date of trial
o CCM meeting(s) held between Counsel and DPP
o Discuss factual & legal issues, witness list etc.
o Deal with Representations & other issues
o At end of CCM meeting(s), parties should be ready to take dates for trial
or mention (to PG)
- Benefits
o Counsel have papers early (at 1st mention)
o CCM meetings between Counsel and DPPs more conducive to sharing
of information
- Results
o Significant reduction in number of PTCs
o Reduced incidence of cracked trials
- The lack of criminal discovery is to a large extent made up by the PTC process
and the Criminal Case Management System (CCMS) which have evolved
themselves into integral processes
- *CCMS was introduced by the A-G’s Chambers in Nov 2003 to complement the
existing PTC system
- CCMS only applies to selective cases charged in Court 26 where the accused are
represented by Counsel
- It enables both DPP and defence counsel to resolve preliminary issues
expeditiously so that both parties are ready to take trial dates at the first PTC
- CCMS and PTCs serve as a platform of consensual discovery whereby parties can
discuss their case and solicit and disclose information about the case
- Prosecution may in the process provide medical reports or other documentary
evidence it intends to rely on, it may also provide a glimpse of the nature of the
prosecution’s evidence against the accused to facilitate further plea bargaining
- PTC can serve to narrow down the triable issues
- The number of witnesses and the estimated number of days required for hearing
would be assessed
- Issues such as whether a joint trial or separate trials (s. 169 to 176 CPC) should be
held in cases of multiple offences or multiple accused persons would also be
addressed at the PTC
- The PTC judge may also request the prosecution to consider preparing
conditioned statements for formal witnesses under s. 371 CPC or invite parties to
agree on non-contentious issues by way of a statement of agreed facts under s.
376 CPC
PTCs referred to in: Guy Ermer Eldon v PP [2001] 1 SLR 710;
45 Mr Tan also dealt with the argument that Mr Sahrin and Mr Samad’s appearance
at the trial was “suspicious” because they were introduced very late and were not on
the original list of witnesses tendered at the pre-trial conference. Mr Tan dismissed
this argument as “utterly without merit”. He argued that the change of witnesses after
a pre-trial conference was “hardly sinister in itself”. Post PTC investigations may
reveal new witnesses and the prosecuting officer may not be the same as the one who
participated in the PTC and may wish to call different witnesses. Therefore, the
magistrate was entitled to accept them as independent witnesses.
PP v Quek Chin Chuan [2000] 3 SLR 10;
At the pre-trial conference, the respondent sought permission from the court for the
respondent to go to China, look for Yu and obtain a statement from him. The
application was refused. On the first day of trial, the application was made again and
this time, the district judge granted the application. The judge further ordered that an
investigation officer, or another officer holding the rank of Sergeant or above from
the same Police Division, accompany the respondent to China to enable independent
verification of any conversation that would transpire between the respondent and Yu.
Ong Seng Hwee v PP [1999] 4 SLR 181;
19 On that day, the appellant brought along a self prepared statement, a copy of
P10 and six photocopied receipts for rentals paid by PW9. On 24 June 1998, at a pre-
trial conference on the case, the appellant provided the officer representing the Public
Prosecutor PW9’s correct pager number. SSgt Lim was also faxed a bundle of
documents including P12 to P21, which were received for the first time.
Yen Ching Yan v PP [1998] 1 SLR 430
The facts
3 The appellant was arrested on 6 October 1997. Two days later, the
abovementioned charge was preferred against him in Court 26. On 15 October
1997, the court was informed by Mr Rahman Salleh that he was acting for the
appellant. Subsequently, the prosecution applied on a few occasions for time
pending the report from the Department of Scientific Services on the analysis of the
drugs. On 10 December 1997, the appellant’s present counsel informed the court of
the change of counsel. The prosecution stated that a pre-trial conference in the High
Court would be held on 6 January 1998 and in view of this, the next mention was
fixed on 21 January 1998. On that day, the court was informed that the next pre trial
conference was on 24 February 1998 and that investigations were still incomplete.
The next mention was fixed on 11 March 1998 but was subsequently brought
forward at the request of the appellant’s counsel to 3 March 1998. It was on that
day that the prosecution preferred a fresh charge of consumption of
methylamphetamine (commonly known as ICE) against the appellant and applied
for him to be given a discharge not amounting to an acquittal with regard to the
capital charge. The appellant’s counsel objected and the matter was adjourned for
parties to prepare arguments. On 10 March 1998, after hearing arguments from both
sides, the district judge granted the prosecution’s application and ordered that the
appellant be given a discharge not amounting to an acquittal in respect of the capital
charge.
- PTC first mentioned in PP v Hensley Anthoney Neville [CC8/1989] (1991
unreported High Court decision)
I. Community courts - Court 20
- ‘a justice system that enjoys the confidence of the public is one that pays proper heed
to the needs of the community. As fundamental justice reforms have been
institutionalised, the time is right for the establishment of a specialist court that is
responsive to the needs of the community.’
- Honourable CJ Chan Sek Keong’s speech at 15th Subordinate Courts Workplan
Seminar 2006/2007
- The Community Court presently hears selected cases involving:
o Youthful offenders (aged 16-18)
o Offenders with mental disabilities
o Neighbourhood disputes
o Attempted suicide cases
o Family violence cases
o Carnal connection offences by youthful offenders
o Abuse & cruelty to animals
o Cases which impact race relation issues
o Selected cases involving offenders above the age of 65 (wef 4 July
2006)
- Options:
o To attend programmes/counselling or undergo treatment;
o To perform community service at an appropriate agency;
o To attend victim-offender mediation – to bring matter to closure; or
o Any other programmes which the Court thinks fit for the dual purposes
of rehabilitating or assist in the rehabilitation and as well as preventing the
individual’s future re-offending behavior.
o Imposition of police supervision as prescribed under Sec 11 to 14 of the
Criminal Procedure Code, Chapter 68.
- The cases dealt by the Community Court flow from the:-
o District Mentions Court 26;
o Magistrate’s Mentions Court 23; and
o GMC Courts.
- The following timelines are observed:
- • Where the accused has indicated that he wishes to plead guilty and the prosecution
is ready to proceed with the charge, the Mentions Courts will transfer the case to the
Community Court for mention at 2.30 p.m. on the same day.
- • In all other cases that fall within the Community Court (except cases under s 143 to
s 148 where the accused is claiming trial), the Mentions Court would fix the case for
PTC at 12 noon in Court 3 within 1 week from the last date of mention.
- Youthful offender charged with rioting – generally tose cases not fixed in court 3 but
in other GMC courts