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Grounds publishedDecided 4 Dec 2009
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Court of Appeal

Bachoo Mohan Singh v Public Prosecutor and Other Applications

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[2009] SGCA 59Case no. Cr M 14/2009, 30/2009, CA 6/2009

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  1. V K Rajah JA:

  2. [1] After a trial spanning over 50 days in the Subordinate Courts, the appellant-cum-applicant, Bachoo Mohan Singh (“BMS”), an advocate and solicitor of some 36 years’ standing, was convicted on a single charge under s 209, read with s 109, of the Penal Code (Cap 224, 1985 Rev Ed) (“the PC”). He was then sentenced to a term of three months’ imprisonment. BMS’s appeal to the High Court against the district judge’s (“the District Judge”) decision on conviction was dismissed but his appeal against sentence was partially allowed. BMS was instead sentenced to one month’s imprisonment and fined $10,000. BMS then applied to the High Court judge (the “HC Judge”) to reserve questions of law of public interest to the Court of Appeal under s 60(1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the SCJA”). The HC Judge dismissed BMS’s application.

  3. [2] In Criminal Motion No 14 of 2009 (“CM 14/2009”), BMS seeks to (inter alia) review and set aside the HC Judge’s decision not to reserve questions of law of public interest to this Court. In the alternative, BMS asks that this Court determines the question of public interest pursuant to its inherent jurisdiction. In addition, during the course of the hearing, Mr Michael Hwang SC (“Mr Hwang”), counsel for BMS, amended his application to seek leave pursuant to s 60(2) of the SCJA for an extension of time to reserve questions of law of public interest (see [25] below). In Criminal Appeal No 6 of 2009 (“CCA 6/2009”), BMS is appealing against the HC Judge’s decision not to reserve the stated questions of law of public interest to the Court of Appeal. The Prosecution strenuously opposes both CM 14/2009 and CCA 6/2009, arguing that BMS has no right to appeal or any other recourse once the HC Judge had dealt with the appeal and the application under s 60(1) of the SCJA. In other words, the Prosecution contends that the Court of Appeal has no jurisdiction to hear either CM 14/2009 or CCA 6/2009. However, in a surprising turn of events, after the oral arguments were completed, on 28 August 2009, the Prosecution wrote to inform this Court that it would be applying to the court for an extension of time under s 60(2) of the SCJA. The Prosecution duly filed Criminal Motion No 30 of 2009 (“CM 30/2009”) on 11 September 2009, seeking an extension of time to apply to the HC Judge for leave to reserve two questions of law of public interest to this Court. The court allowed both BMS and the Law Society to respond to the Prosecution’s application. Their initial responses were received on 24 and 25 September 2009 respectively. Having considered these responses, the court invited the parties on 30 September 2009 to make their final observations on the questions of law of public interest that had been earlier formulated. The parties duly responded. Subsequently, on 22 October 2009, the Prosecution wrote again and (inter alia) made further submissions in respect of both s 60(2) applications (see below at [52]).

  4. [3] The background to the Law Society’s participation in the present proceedings requires some explanation. The Law Society had unsuccessfully sought leave to be heard by the HC Judge when he considered the appeal from the District Judge. Certain observations made by the District Judge in his written grounds of decision had apparently caused a stir within the legal profession, prompting the Law Society’s interest in this matter. Concerns had arisen in relation to the proper delineation of a solicitor’s duty to verify instructions from a client. Did the decision suggest that in certain hitherto unidentified circumstances, a solicitor had an absolute duty to verify the client’s instructions? Noting the Law Society’s serious concerns, the court allowed it to be represented before us and make known the reasons for its concerns. Mr Wong Meng Meng SC (“Mr Wong”) appeared on behalf of the Law Society.

  5. [4] As this is not a hearing on the questions of public interest that have been put before us for determination, I should emphasise that any views I express here that may have a bearing on the merits of BMS’s convictions are no more than preliminary. In addition, I should also make it clear that any reference to “solicitors” in this judgment is to be taken to include “counsel” (or “advocates” as they are sometimes called) as well. Given the fused profession in Singapore, these terms are often used interchangeably.

  6. Facts of the case

  7. Dramatis personae

  8. [5] It will be helpful to first identify the key individuals involved in the commission of the alleged offence. Koh Sia Kang (“Koh”) and his wife, Kang Siew Guek (“Kang”) (together, the “Sellers”), were the sellers of a flat located in Redhill (“the Flat”). The buyers of the Flat were Hong Swee Kim (“Hong”) and his wife, Elizabeth Bong (together, the “Buyers”). Two agents were involved in the sale and purchase of the Flat, namely, Tony Ho (“Ho”) and Teo Pei Pei (“Teo”) (together, “the Agents”). Ho was Teo’s supervisor. Both Ho and Teo worked for PropNex Realty Pte Ltd (“PropNex”), a real estate agency. The solicitors who originally acted in respect of the sale and purchase of the Flat were M/s Rayney Wong and Eric Ng (“M/s Rayney Wong”). However, the Sellers later sought legal advice from BMS, an advocate and solicitor employed as a consultant at M/s K K Yap & Partners (“M/s K K Yap”).

  9. The sale and purchase of the Flat

  10. [6] Teo, having earlier acted as the Buyers’ agent in the sale of their flat, agreed to help the Buyers to find a flat whose sellers were prepared to do a cash-back arrangement. Under a cash-back arrangement, the flat’s selling price is falsely inflated above the agreed selling price. The inflated selling price is declared to the Housing and Development Board (“HDB”) and the lending bank as the actual sale price. The bank, relying on the inflated selling price, grants a larger loan to the buyer and this larger sum is disbursed as part of the sale proceeds to the seller on completion. After the seller receives the inflated sale proceeds, he returns the excess amount to the buyer.

  11. [7] Koh, around this time, had just become acquainted with Ho. He asked Ho to act for him in the sale of the Flat. Koh also requested Ho for loans on at least two occasions. Ho arranged for these loans with a moneylender. The loans were to be repaid from the sale proceeds of the Flat. Ho eventually arranged for Teo to be appointed as agent in the sale of the Flat. She brought the Buyers to view the Flat. The Agents testified that Teo had informed the Sellers that the Buyers wanted a cash-back arrangement and the Sellers had agreed to this arrangement. Koh, to the contrary, has resolutely denied this. The parties agreed on a sale price of $390,000 for the Flat. However, the Sellers, at Teo’s request, signed an Option to Purchase (“the OTP”) without the price being expressly stated on it. The Flat was later valued at $490,000 and Teo inserted this figure into the OTP.

  12. [8] The first appointment at the HDB was scheduled for 2 December 2003. Just before meeting the HDB officer, Teo informed the Sellers that the price to be declared was $490,000. According to Koh, this was the first time he came to know about the inflated selling price or the cash-back arrangement. Koh, though unhappy with the inflated price, nevertheless declared to the HDB that the $490,000 sale price stated in the OTP was the actual price. The Buyers confirmed this to be so. After this, Teo introduced the Sellers to a solicitor from M/s Rayney Wong. The Sellers were then requested to execute two documents. One document authorised M/s Rayney Wong to act as the solicitors in the sale of the Flat, and the other authorised M/s Rayney Wong to (inter alia) distribute $100,000 of the sale proceeds received to Kang. According to the Agents, the $100,000 distributed to Kang was to be withdrawn and passed to Teo, who would then hand the money over to the Buyers.

  13. [9] Some time after these documents were signed, Koh sought fresh legal advice. He approached BMS, whom he casually knew, for advice. On BMS’s advice, Koh and his wife affirmed statutory declarations fully disclosing the various alleged breaches of duties by the agents, solicitors and moneylenders involved in the cash-back arrangement. Relying on these statutory declarations, similar complaints were also lodged with the police (on 12 January 2004), the HDB and the Inland Revenue Authority of Singapore (“the IRAS”) (both on 27 February 2004).

  14. [10] The Agents and the Buyers were shocked by this bombshell. Teo, nevertheless, persevered in her attempts to persuade the Sellers to proceed with the sale of the Flat. Koh, however, adamantly refused to deal with her directly. Subsequently, a meeting was arranged at the premises of M/s K K Yap (the “K K Yap Meeting”) on 15 January 2004. BMS, the Sellers, the Buyers and Ms Ong Bee Lay (“Ong”), a solicitor from Messers PKWA Law Practice LLC, were present at the meeting. Ong attended the meeting at the Buyers’ request. The Agents were not invited to attend. During this meeting, Hong informed BMS about the cash-back arrangement. In response, BMS tersely stated that “he did not want to know about [the] arrangements” from Hong and would sue on the price stated on the OTP. No settlement was reached. After the meeting, Ong advised the Buyers that the transaction was illegal (she had not been earlier informed by Hong of these details prior to the meeting) and that she would not act for them to complete the deal. The Buyers accepted her advice and called off the purchase.

  15. [11] On BMS’s advice, Koh engaged a new agent to sell the Flat. It was finally sold, on 21 March 2004, for only $380,000. On 2 April 2004, BMS sent a letter of demand to the Buyers, demanding payment of $120,000, comprising $110,000 (being the difference between the inflated sale price and the price at which the Flat was eventually sold at) and $10,000 (for expenses). There was no response to this demand.

  16. [12] On 10 April 2004, the Straits Times published an article (Tanya Fong, “Flat seller claims he was asked to inflate its price” The Straits Times (10 April 2004) at p 3) in which Koh reportedly asserted that he was “asked to inflate the selling price of his flat by $100,000”. This article immediately caught the attention of Propnex’s management. PropNex then hastily arranged for a meeting at the Marina Mandarin Singapore hotel (the “Marina Mandarin Meeting”) on the same evening. The Marina Mandarin Meeting was attended by BMS, Mr K K Yap, Koh, the Agents, and Mr Mohd Ismail, the chief executive officer of Propnex. During this meeting, Ho offered to pay the Sellers $20,000 to settle all the claims made by the Sellers, but his offer was roundly rejected by BMS.

  17. [13] Two days after the Marina Mandarin Meeting, a writ of summons endorsed with a statement of claim (the “SOC”) was filed by M/s K K Yap on behalf of the Sellers in the Subordinate Courts, with the Buyers named as the defendants. The SOC read:

  18. It is worth noting, at this juncture, two points. There were no references, whatsoever, to the agreed sale price of $390,000. On the face of it, this was a claim for a breach of contract in connection with the sale of the Flat for the sum of $490,000. Further, the claim for damages was not quantified.

  19. [14] Not long after the filing of the SOC, the Buyers and the Agents agreed with the Sellers to settle the claim for $70,000. The Buyers were represented by solicitors in the settlement agreement. The Agents testified that they were advised by PropNex’s management (and its solicitors) to settle the claim. They were also very concerned about being prosecuted for their involvement in the cash-back arrangement. The Buyers apparently also had similar concerns and contributed towards the settlement. Of this $70,000 settlement sum, the Agents paid $55,000 while the Buyers contributed $15,000. The suit was later discontinued on 30 April 2004. Before that, the Buyers did not file any pleadings in relation to the claim; neither did their solicitors appear to dispute the legitimacy of the claim before the suit was discontinued. Further, neither BMS nor Koh had, as a term of the settlement, agreed to withdraw all the earlier complaints they had lodged.

  20. The District Court decision

  21. [15] The District Judge, relying to a great extent on an Indian case (Bulaki Ram (1890) 10 AWN 1 (“Bulaki Ram”)) that appeared to expound on the scope of s 209 of the Indian Penal Code (which is in pari materia to s 209 of the PC), decided that a claim was false if the person making the claim knew that he was claiming for more than what was due; it was not necessary for the Prosecution to prove that the claim was entirely made up. In his view, it did not matter if the action would succeed or fail (PP v Bachoo Mohan Singh [2008] SGDC 211 (“DC GD”) at [149]–[150]; [235]–[236]). The Flat’s selling price was $390,000. The $490,000 price indicated on the OTP was to facilitate the illegal cash-back arrangement. Therefore, the claim could not be properly made and was a false claim dishonestly made in court (DC GD at [238]–[241]).

  22. [16] Next, the District Judge relied on Teo and Ho’s evidence and held that Koh had known that the claim was false and was therefore dishonest in making the claim. While Teo and Ho gave evidence that the Sellers knew and agreed to the cash-back agreement when they signed the OTP (DC GD at [74] and [79]–[80]), Koh had denied that there was any discussion as to the cash-back arrangement at that time (DC GD at [93]). The District Judge found that both Teo and Ho were truthful and credible witnesses (DC GD at [103] and [110]) and that Teo’s evidence was corroborated by Ho’s and Hong’s evidence (DC GD at [109] and [111]). Koh’s evidence, on the other hand, was not reliable (DC GD at [129]).

  23. [17] The District Judge further held that BMS knew that Koh had originally agreed to participate in the cash-back arrangement because:

  24. (a) BMS had known the truth from Koh or Hong, as evidenced by the letters sent to the HDB and the IRAS (DC GD at [166]–[170]);

  25. (b) Hong had told BMS that he had an agreement with Koh to pay back $100,000 after completion at the K K Yap Meeting (DC GD at [206]); and

  26. (c) Ho had told BMS of the cash-back arrangement in the transaction at the Marina Mandarin Meeting (DC GD at [219]).

  27. Therefore, BMS knew that Koh had intended and agreed to sell the Flat to the Buyers at $390,000 (DC GD at [224]). BMS, the District Judge determined, had used the filing of the writ as a tool to induce the Agents and Buyers to settle the claim and never intended the matter to go to trial (DC GD at [226]–[227]).

  28. [18] In the circumstances, the District Judge sentenced BMS to three months’ imprisonment (DC GD at [271]).

  29. The High Court decision

  30. [19] The High Court dismissed BMS’s appeal on conviction. The HC Judge held that the claim was false within the meaning of s 209 of the PC for the following reasons:

  31. (a) The evidence clearly showed that the agreed sale price was $390,000. The price in the OTP indicated $490,000 only because of the illegal cash-back scheme (Bachoo Mohan Singh v PP [2009] 3 SLR 1037 (“HC GD”) at [45] and [47]). The court proceedings were commenced as part of Koh’s “blatant attempt to enforce the [OTP] without the [cash-back arrangement]” after the parties had agreed on the cash-back arrangement (HC GD at [47]). The HC Judge further considered the facts leading to the filing of the writ and found that BMS, knowing that the $490,000 price was inflated, was not entitled to take the view that the Sellers were entitled to claim for the difference between the price stated in the OTP ($490,000) and the price at which the Flat was eventually sold ($380,000), without alluding to the cash-back arrangement. Further, the SOC was filed in the District Court, indicating that the unliquidated claim was for more than $60,000 (the jurisdictional limit of civil claims that can be made in the Magistrate’s Courts under s 52(1) (read with s 2) of the Subordinate Courts Act (Cap 321, 2007 Rev Ed)) (HC GD at [51]).

  32. (b) Since the Sellers had to rely on the illegality to substantiate their claim against the Buyers, the claim was bound to fail (HC GD at [48]).

  33. (c) In the light of the decision in Bulaki Ram, BMS could not argue that the Sellers had no duty to raise a potential defence for the Buyers, and that it was for the Buyers to raise any such defence (HC GD at [52]).

  34. (d) Section 209 of the PC was not limited to cases where the whole claim was false and applied even where a claim was false in a material particular, whether by way of an outright lie, deliberate omission or suppression of material facts. On the present case, the amount of damages was the essence of the claim filed in court, and it had been computed on the falsely pleaded basis that the actual price was $490,000 (HC GD at [53]).

  35. (e) The offence was complete once the claim was filed in court (if other elements of s 209 were satisfied) and not only when evidence on the claim was adduced. Here, the falsehood was carried to the point of no return when the settlement was effected (HC GD at [55]).

  36. [20] The HC Judge also upheld the District Judge’s findings that: (a) the Sellers had agreed to participate in the cash-back arrangement; and (b) BMS knew that the Sellers had agreed to participate in the cash-back arrangement. As to (a), there was nothing which showed that the District Judge’s findings was wrong (HC GD at [64]). As to (b), there was clear evidence that BMS had actual or constructive knowledge of the cash-back arrangement, evidenced by the K K Yap meeting, the Marina Mandarin Meeting, the letters signed by BMS and sent to the HDB and the IRAS, and Koh’s statements given to the Corrupt Practices Investigation Bureau (HC GD at [66]–[71]).

  37. [21] However, the HC Judge partially allowed BMS’s appeal on sentence and reduced the sentence to one month’s imprisonment together with a fine of $10,000. The HC Judge took into account the fact that BMS’s livelihood as a solicitor was likely to be severely affected, together with other mitigating factors (such as doing charity work and acting for clients pro bono) (HC GD at [73] and [75]).

  38. [22] After the HC Judge dismissed BMS’s appeal on conviction, BMS filed Criminal Motion No 5 of 2009 (“CM 5/2009”) to reserve certain questions of law of public interest to the Court of Appeal under s 60(1) of the SCJA. The questions that BMS sought to reserve were as follow (HC GD at [77]):

  39. [23] The HC Judge dismissed CM 5/2009, holding that no questions of law of public interest had arisen. Although BMS was the first person ever to be prosecuted under s 209 of the PC, there was, in his view, no difficult point of construction in respect of the words in that section. Some of the words used in that section were defined in the PC, whilst others were easily understood using commonsense and by applying general principles of law (HC GD at [79]). Therefore, whether a claim was false was a question of fact in each case. Further, the fear that s 209 was a legal trap to solicitors was unfounded. To make out the offence, the claimant had to know that the claim was false, and the claim had to be made “fraudulently, or dishonestly” (HC GD at [80]). A solicitor who was unaware of the falsity of his client’s claim did not have to worry about s 209 of the PC. The HC Judge further clarified that his decision did not suggest that there was a duty on a solicitor to verify facts stated by his clients (HC GD at [81]).

  40. Issues before the Court

  41. [24] In CM 14/2009, BMS sought (a) to set aside the HC Judge’s decision that there were no questions of law of public interest; (b) for the Court of Appeal to determine the question of public interest pursuant to its inherent jurisdiction; and (c) for his conviction to be set aside. In CCA 6/2009, BMS appealed against the HC Judge’s refusal to reserve the stated question of law of public interest to the Court of Appeal. Under CM 14/2009 and CCA 6/2009, BMS was clearly seeking to appeal from the HC Judge’s decision that there was no question of law of public interest in the present case.

  42. [25] After the court indicated its difficulties with the application/appeal as framed by BMS, Mr Hwang applied for an extension of time to re-apply to the HC Judge to refer questions of law of public interest pursuant to s 60(2) of the SCJA. The Prosecution objected to this course of action on the basis that, firstly, the High Court had already heard a similar prior application, and secondly, the application was seriously out of time. However, as pointed out earlier (above at [2]), the Prosecution itself has now (and belatedly) made an application on the basis that questions of law of public interest have arisen in this matter. Pursuant to CM 30/2009, it applied for an extension of time to apply to the HC Judge to refer two questions of law of public interest to this Court. As such, there are now two distinct issues for this Court to deal with. The first is whether the Court of Appeal has the jurisdiction to hear either CM 14/2009 and/or CCA 6/2009. The second is whether this Court can and should grant an extension of time for BMS and/or the Prosecution to apply to the HC Judge to refer the questions of law of public interest to the Court of Appeal, pursuant s 60(2) of the SCJA. I will discuss these issues seriatim.

  43. Reserving questions of law of public interest to the Court of Appeal

  44. The legislative policy underpinning s 60 of the SCJA

  45. [26] Before I turn to consider the merits of the applications, I will first discuss the purport and intent of s 60 of the SCJA, which reads:

  46. [27] It would be helpful to start off by briefly sketching the legislative genesis of s 60 of the SCJA. It appears that the progenitor to s 60 was introduced in 1960 through s 19B(1) by the Court of Criminal Appeal (Amendment) Ordinance, 1960 (No 24 of 1960). The relevant Legislative Debates indicate that the provision (ie, s 19B(1) of the Court of Criminal Appeal Ordinance) was adopted from the Courts Ordinance, 1948 (No 43 of 1948) (Federation of Malaya). Section 19B(1) states:

  47. [28] There is at least one important difference between s 19B(1) of the Court of Criminal Appeal Ordinance and s 60 of the SCJA as it currently stands. In the former (and earlier) provision, the threshold was notably lower as it only required “a point which it is desirable in the public interest to have determined by the Court of Criminal Appeal” [emphasis added] for the point to be referred to the Court of Criminal Appeal (“the CCA”).There was no stipulation that the “point” had to be, additionally, one of law (as now required by the SCJA). This additional requirement for the question having to be one of law was only subsequently introduced when the Court of Criminal Appeal Ordinance was repealed (following Singapore’s merger with Malaysia) by the Courts of Judicature Act, 1964 (No 7 of 1964) (Malaysia) (“Malaysia Courts of Judicature Act 1964”) (see, in particular, s 66 thereof). After Singapore gained her independence, the links between the two judicial systems were severed when the Supreme Court of Judicature Act 1969 (Act 24 of 1969) came into force. However, the new legislation retained, in substance, the requirements set out in s 66 of the Malaysia Courts of Judicature Act 1964. The Malaysian equivalent to s 60 of the SCJA (s 66 of the Malaysia Courts of Judicature Act 1964) was later amended (by the Courts of Judicature (Amendment) Act 1982 (Act A530)) in 1982 which provided for the Federal Court of Malaysia to be the sole body deciding whether or not to grant leave for the determination of a question of law of public interest within Malaysia. The entire s 66 of the Malaysia Courts of Judicature Act 1964 was subsequently repealed in 1995. Currently, it is the Court of Appeal that grants leave to and hears appeals on “questions of law which have arisen in the course of the appeal or revision and the determination of which by the High Court has affected the event of the appeal or revision” [emphasis added] (see s 50(2) of the Malaysia Courts of Judicature Act 1964).

  48. [29] It is plain from the architecture of s 60(1) of the SCJA that four distinct requirements have to be satisfied before the High Court can grant leave to reserve any questions of law of public interest to the Court of Appeal. These four requirements are that (see Ong Beng Leong v PP (No 2) [2005] 2 SLR 247 (“Ong Beng Leong”) at [5]):

  49. (a) there must be a question of law;

  50. (b) the question of law must be one of public interest and not of mere personal importance to the parties alone;

  51. (c) the question must have arisen in the matter dealt with by the High Court in the exercise of its appellate or revisionary jurisdiction; and

  52. (d) the determination of the question by the High Court must have affected the outcome of the case.

  53. [30] Section 60 of the SCJA encapsulates the balance set by Parliament in respect of two significant competing considerations. The first is the public interest in ensuring finality in proceedings. Proceedings commenced and determined in the Subordinate Courts are to end in the High Court with, generally, no further recourse or avenue for appeal (see PP v Bridges Christopher [1998] 1 SLR 162 (“Bridges Christopher (CA)”) at [17]). On the other hand, there is a public interest in ensuring that justice is done in all cases. This means ensuring that accused persons are not wrongly convicted of any offence, be it minor or grave. As Chan Sek Keong J, with his customary acuity, observed in Abdul Salam bin Mohamed Salleh v PP [1990] SLR 301 (“Abdul Salam”) at 310, [28]:

  54. [31] Section 60(1) of the SCJA seeks to strike a balance between the two competing considerations identified above in a measured way once the statutory right to appeal has been exhausted. It does not confer on any accused, the right to proceed to the Court of Appeal. A question of law that is of public interest must first exist. Whether the question is of public interest is for the HC judge to assess, if an application is made within one month from the date of his determination, unless the Public Prosecutor certifies this to be so (see s 60(5) of the SCJA). In addition, there is the possibility that two or more conflicting High Court decisions may exist, rendering it impossible for judges of the Subordinate Courts to consistently apply the law. This is a practical concern because appeals from the lower courts to the High Court are currently heard by a number of different judges. As judges of the High Court are not bound by the decisions of other judges sitting in a similar capacity, the High Court may not always be in a position to authoritatively determine the legal position on a particular legal controversy.

  55. [32] The courts have consistently adopted a firm view of applications made under s 60 of the SCJA, emphasising that this discretion is to be exercised sparingly (Ng Ai Tiong v PP [2000] 2 SLR 358 at [10]). It is settled that an application under s 60(1) of the SCJA should only be allowed in deserving cases, where the dominant consideration is the interest of the public and not that of the accused. As such, the HC Judge hearing the s 60 application conceivably has the discretion to refuse to refer the question of law of public interest stated by the applicant even if all the conditions thereof have been satisfied, unless it is raised by the Public Prosecutor (see Cigar Affair v PP [2005] 3 SLR 648 at [8(b)]). That said, strong and cogent grounds must exist before the High Court refuses to refer a matter to this Court if all the conditions (reproduced above at [29]) are satisfied. When s 60 SCJA was amended in 1993, the need to confer on the High Court judge a discretion to allow the application was clarified as follows (Singapore Parliamentary Debates, Official Report (12 April 1993) vol 61 at col 116 (Prof S Jayakumar, Minister for Law)):

  56. [33] As to what constitutes a question of law of public interest, it remains instructive to refer to the following observations of the Malaysian Federal Court in A Ragunathan v Pendakwa Raya [1982] 1 MLJ 139 (that was referred to by this Court in Abdul Salam bin Mohamed Salleh v PP [1991] SLR 235), where Raja Azlan Shah Ag LP pithily stated (at 141–142):

  57. [34] This suggests that an “open question” which “directly and substantially affects the rights of the parties” and “is not free from difficulty or calls for discussion of alternative views” should be referred to the Court of Appeal. However, this is not to say that a question of personal importance primarily to a convicted person alone can be referred to the Court of Appeal (Chan Hiang Leng Colin v PP [1995] 1 SLR 687 at 693, [17]). It must be stressed that this is not an avenue to allow the parties another bite at the cherry, if the public interest threshold is not crossed.

  58. [35] In Jeyaretnam JB v Law Society of Singapore [1988] SLR 1 at 13–14, [43], the Privy Council took the view that a “serious question of law arising in a criminal case on which a person’s conviction of a grave offence may depend” [emphasis added] was of public interest. However, the Privy Council did not elaborate on what it meant by its vague reference to a “grave offence”. Chan Sek Keong J in Abdul Salam took issue with this approach and concluded that it was difficult to see how this criterion of “grave offence” was to be applied in practice. Chan J’s concerns merit a full reference (at 309–310, [19]–[27]):

  59. [36] In my view, the gravity or seriousness of the offence cannot be the sole litmus test in deciding whether a question of public interest exists. Every individual convicted of an offence would consider his conviction to be a “grave” matter. In short, the threshold cannot be simply pegged to the punitive measures imposed or to the adverse personal consequences felt by an offender after a conviction. Rather, the focus should always be on the questions of law that arise from the case, and whether these questions are of such public interest that the Court of Appeal’s authoritative views, whether it be a result of difficult and/or controversial points of law or otherwise, are required. Whether a question is of public interest must depend on the circumstances of the case and the legal matrix. For example, the courts have considered questions raising constitutional rights (see Jeyaretnam JB v PP [1990] SLR 594 at 598, [8]) or pertaining to the administration of justice (see Abdul Salam at 312, [35]) to be apt for reference to the Court of Appeal for its determination. Attempts to define exhaustively what the concept of public interest might embrace will not be helpful because it can arise in a multitude of situations and, furthermore, it is not a static abstraction. It evolves over time. What can be said, however, is that in every reference, under s 60 of the SCJA, public interest assumes primacy over the personal interests of a convicted person in evaluating whether the threshold under s 60(1) of the SCJA has been met.

  60. [37] However, s 60 ought not be used to route to the Court of Appeal questions “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” (Abdul Salam at 311, [30]). A new or novel question of law is not invariably a difficult or contentious question. A novel question of law will not always satisfy the public interest threshold. On this issue, I entirely agree with the following apt observations made by the HC Judge (HC GD at [78]):

  61. [38] Given all the above limitations, it is plain that s 60 of the SCJA does not permit a dissatisfied accused a third bite at the cherry. Crucially, it does not provide a right to be heard by this Court. While this discretion is to be exercised sparingly, nevertheless, each application ought to be very carefully assessed so as not to overlook a matter that meets the statutory threshold. Indeed, it is entirely conceivable that an applicant may incorrectly frame his so-called questions of law. The High Court judge hearing the application to reserve questions of law of public interest to the Court of Appeal has the discretion to restate the questions proposed to ensure that they conform to s 60 of the SCJA. Nevertheless, this discretion does not extend beyond ensuring that the questions posed fall within the four corners of s 60 of the SCJA or restating the questions so that they are made clearer (see PP v Bridges Christopher [1997] 2 SLR 217 at [19], affirmed by this Court in Bridges Christopher (CA) at [28])). Similarly, it has been established that the Court of Appeal, in deciding the questions of law of public interest reserved by the High Court, has the power to reframe the question to achieve clarity (PP v Fernandez Joseph Ferdinent [2007] 4 SLR 1). This court explained (at [19]):

  62. The Court of Appeal’s jurisdiction under s 60 of the SCJA

  63. [39] The Court of Appeal’s criminal appellate jurisdiction is statutorily prescribed by s 29A(2) of the SCJA, which states:

  64. [40] Section 29A(2) of the SCJA confers on the Court of Appeal the jurisdiction to hear an appeal only when it arises from a decision of the High Court made “in exercise of its original criminal jurisdiction” [emphasis added]. Therefore, the issue here is whether the HC Judge’s decision not to refer the questions of law of public interest was made in exercise of the High Court’s original or appellate criminal jurisdiction or some other special jurisdiction. This issue was previously considered by this court in Wong Hong Toy v PP [1984-1985] SLR 298 (“Wong (No 1)”). In Wong (No 1), the Senior District Judge acquitted the accused persons of certain offences. On appeal, the acquittals were reversed by the Chief Justice (sitting in the High Court). The appellants sought to reserve certain questions of law of public interest to the CCA, but their motion was dismissed by the Chief Justice, who took the view that the questions were not of law or public interest. The appellants then sought to appeal against the Chief Justice’s decision not to refer the questions of law of public interest to the CCA. I pause at this juncture to set out s 44 of the Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed) (“the SCJA (1985 Rev Ed)”), the predecessor to s 29A(2) of the SCJA that was in force at the time Wong (No 1) was decided:

  65. [41] The only issue before the CCA was simply whether the Chief Justice’s refusal to reserve the questions of law was one “made by the High Court in the exercise of its original criminal jurisdiction” [emphasis added] within the meaning of s 44(1) of the SCJA (1985 Rev Ed). The court decided the issue in the negative for the following reasons:

  66. (a) The CCA was a creature of statute and had no powers, other than those conferred upon it by the SCJA (1985 Rev Ed) (Wong (No 1) at 305, [18]).

  67. (b) The Chief Justice’s decision not to reserve the questions of law was “made after the conclusion of an appeal to the High Court in exercise of its appellate … jurisdiction” [emphasis added], and it was on the appellant’s application (Wong (No 1) at 304, [16]). To hold the Chief Justice as exercising the High Court’s original criminal jurisdiction would “extend the meaning and scope of the ‘original criminal jurisdiction’ of the High Court to an extent quite out of line with the statutory framework for the administration of the appellate criminal justice in Singapore” (id). While the High Court had “all-embracing original criminal jurisdiction” under the SCJA (1985 Rev Ed), the High Court exercised its original criminal jurisdiction, generally, for the more serious offences or such less serious offences that were transferred from the Subordinate Courts (id).

  68. (c) Section 60(4) of the SCJA (1985 Rev Ed), while providing that the CCA shall hear and determine the question(s) reserved by the High Court, did not provide for any appeal by a party aggrieved by the High Court’s decision not to reserve any question of law of public interest (Wong (No 1) at 304, [17]).

  69. (d) The dearth of authority in Singapore on the meaning of “decision made by the High Court in the exercise of its original criminal jurisdiction” in s 44(1) of the SCJA (1985 Rev Ed) reflected, in the Court’s view (Wong (No 1) at 304, [18]):

  70. (e) In Gurbachan Singh v Public Prosecutor [1967] 2 MLJ 220 (“Gurbachan Singh”), the Federal Court of Malaysia, interpreting the Malaysian equivalent to s 44(1) of the SCJA (1985 Rev Ed), held that the Federal Court only had the jurisdiction to hear an appeal from the decision of the lower court if the matter was sent up by an order of the High Court. The right of appeal (under the Malaysian Constitution) was a statutory one and there was no inherent right to appeal.

  71. (f) In Kulasingam v Public Prosecutor [1978] 2 MLJ 243, the Federal Court, in interpreting the Malaysian equivalent (which was amended after Gurbachan Singh) to s 44(1) of the SCJA (1985 Rev Ed), held that the application to reserve questions of law of public interest did not fall within that section and that there could be no appeal against that decision (Wong (No 1) at 305, [19]).

  72. (g) In Public Prosecutor v Lim Joo Soon [1981] 1 MLJ 107, the Malaysian Public Prosecutor applied to the Federal Court for a mandatory order for the High Court to reserve the questions of law instead of appealing against the decision. The fact that this matter went by way of an application for mandatory order rather than by way of an appeal underscored “the recognition that there was a problem about the lack of jurisdiction” (Wong (No 1) at 306, [21]).

  73. Wong (No 1) was subsequently followed by this court in Wong Hong Toy v PP [1994] 2 SLR 396.

  74. [42] Mr Hwang raised the argument that the determination of an application under s 60 of the SCJA by the High Court was final and not interlocutory, and that the High Court was therefore, on that issue, exercising its original criminal jurisdiction. With respect, Mr Hwang’s ingenious approach misapprehends the local authorities on this point. It would be useful, at this juncture, to trace some of the more pertinent authorities on what constitutes “original criminal jurisdiction”.

  75. [43] In Mohamed Razip v PP [1987] SLR 142 (“Mohamed Razip”), this Court had to consider whether the High Court’s refusal to grant bail to the accused persons was appealable to the CCA. It noted that (at 144, [12]):

  76. On the facts of the case, the Court of Appeal held that an order made on a bail application was interlocutory and tentative in nature, did not fall within s 44 of the SCJA (1985 Rev Ed) and, therefore, could not be appealed against (at 145, [15]).

  77. [44] In Ang Cheng Hai v PP [1995] 3 SLR 201 (“Ang Cheng Hai”), the issue was whether the appellants had the right to appeal against the High Court’s decision not to transfer the proceedings to the High Court from the Subordinate Courts. Relying on Mohamed Razip, the Prosecution argued that the appeal involved an interlocutory matter and therefore no right of appeal lay to the Court of Appeal. Agreeing, the Court of Appeal held that it was empowered only to entertain appeals which concerned orders of finality, ie, those resulting in conviction and sentence or acquittal (Ang Cheng Hai at 205, [19]). The Court of Appeal explained (at 205, [17]–[18]):

  78. [45] Subsequently, in Microsoft Corporation v SM Summit Holdings [2000] 2 SLR 137 (“SM Summit”), the issue was whether the Chief Justice’s refusal to release or vary the undertaking given in relation to certain search warrants in the High Court was one made in exercise of the High Court’s original jurisdiction. After considering Wong (No 1), Mohamed Razip and Ang Cheng Hai, the Court of Appeal took the view that (at [27]):

  79. [46] Two recent decisions of the Court of Appeal have further illuminated the meaning to be accorded to the term “original criminal jurisdiction”. In Kiew Ah Cheng David v PP [2007] 1 SLR 1188 (“David Kiew”), the appellant sought to appeal against the High Court’s refusal to grant an extension of time to file his notice of appeal and petition of appeal, both against conviction. The Court of Appeal unhesitatingly rejected the appellant’s attempt, observing that the application before the High Court was “so intertwined with the appeal” (at [4]) and therefore could not be reviewed by the court on appeal. The Court of Appeal made the following observations with respect to what constituted an “original jurisdiction” (at [3]):

  80. [47] Next, in Ng Chye Huey v PP [2007] 2 SLR 106 (“Ng Chye Huey”), the appellants there had filed a motion in the High Court for three orders, in exercise of the High Court’s supervisory and appellate jurisdiction. The Court of Appeal considered whether, if the application constituted an appeal against the High Court judge’s decision, it (ie, the Court of Appeal) had the jurisdiction to hear the appeal. The court held that it did not possess the jurisdiction. Andrew Phang Boon Leong JA, delivering the judgment of the Court of Appeal, began by explaining that (at [30]):

  81. [48] The Court of Appeal in Ng Chye Huey further considered the amendments effected prior to the re-enactment of s 29A(2) of the SCJA and noted that the predecessor to the section (viz, s 44(1) of the SCJA (Cap 15, 1970 Rev Ed)) had originally limited the CCA’s jurisdiction to “any appeal by a person convicted by the High Court” [emphasis in original] (at [32]). For completeness, I will set out the court’s view in full (at [32]–[34]):

  82. [49] Mr Hwang, relying on the passages cited above from Mohamed Razip (reproduced at [43] above) and Ng Chye Huey at [34] (reproduced at [48] above), submitted that the Court of Appeal has characterised the High Court’s exercise of its “original criminal jurisdiction” as referring only to instances where the High Court had rendered a final, as opposed to interlocutory verdict. Since an application under s 60 of the SCJA was final, Mr Hwang reasoned, it was therefore an exercise of the High Court’s original criminal jurisdiction which could be appealed to the Court of Appeal. I disagree. It is evident that there are two limbs to s 29A(2) of the SCJA (as well as s 44(1) of the SCJA (1985 Rev Ed)). The first is that of “any decision made by the High Court” and the second is that of the High Court’s “original criminal jurisdiction”. In respect of the former (ie, “any decision made by the High Court”), the Court of Appeal in Mohamed Razip took the view that the words meant that the CCA (as it then was) was to hear appeals against orders of finality (ie, those resulting in conviction and sentence, or acquittal) and were not inserted in 1973 as a “catch-all phrase” to include all decisions made by the High Court. In respect of the latter, it is clear that the phrase “original criminal jurisdiction” refers to the trial jurisdiction of the High Court: see Ang Cheng Hai at 205, [18] (reproduced at [44] above) and SM Summit at [27] (reproduced at [45] above). The fact that an order made by the High Court may be considered final (for the avoidance of doubt I do not make such a finding in respect of s 60(1) of the SCJA) does not necessarily make it one that was given by the High Court in exercise of its original criminal jurisdiction. I agree with the observations of this Court in David Kiew at [3], where Choo J observed (see above at [46]):

  83. [50] I would further observe that it can be argued that the Legislature has implicitly accepted the position that was set out in Wong (No 1). In particular, Prof Jayakumar, in explaining why it was necessary to amend s 60 of the SCJA to deem a question of law referred by the Public Prosecutor as one of public interest, gave the following reason (Singapore Parliamentary Debates, Official Report (26 November 1998) vol 69 at col 1630 (Prof S Jayakumar, Minister for Law)):

  84. The use of the word “exclusively” suggests that the Legislature has implicitly accepted the decision in Wong (No 1), in so far as any appeal against the High Court judge’s decision not to reserve questions of law of public interest is concerned. This amendment to the SCJA was made following the Court of Appeal’s observations in Bridges Christopher (CA). In that case, the Prosecution argued that there was a rebuttable presumption that the Public Prosecutor’s question was always one of public interest, but the Court of Appeal rejected any such notion. After the amendment to s 60(5) of the SCJA, the Public Prosecutor’s determination that a question of public interest has arisen can no longer be queried by the court. While the High Court remains the sole arbiter on whether a question is of public interest if an application is made within one month as contemplated by ss 60 (1) and 60(2) of the SCJA, this does not necessarily mean, for reasons I will elaborate further below (at [51]–[62]), that the Court of Appeal is unable to consider the issue of whether the public interest threshold has been met, in the light of s 60(2) of the SCJA.

  85. Section 60(2) of the SCJA

  86. [51] The Court of Appeal has by virtue of s 60(2) of the SCJA, a deferred jurisdiction extending to all applications that might be properly made pursuant to s 60(1) of the SCJA. Section 60(2) of the SCJA states:

  87. Jurisdiction of this Court to entertain applications

  88. [52] BMS is now applying to the Court of Appeal for an extension of time. This comes after his failed application under s 60(1) of the SCJA to the HC Judge. Therefore, the most vital issue for this Court to determine is whether it has been conferred, in addition to entertaining fresh applications made pursuant to s 60(2) of the SCJA, the jurisdiction to grant an application for an extension of time that is made after an earlier application filed within time has been rejected by the High Court judge. The Prosecution has sought, in its letter dated 22 October 2009 to the court, to draw a sharp distinction between the two applications under s 60(2) of the SCJA that are before this Court. Its application, the Prosecution points out, is the first such application made to either court. BMS’s application, on the other hand, is his second to the courts, though admittedly it is his first application to this Court. Once an application under s 60(1) of the SCJA has been rejected by the High Court (as was the case for BMS), the Prosecution forcefully asserts that the Court of Appeal ought not to entertain a subsequent application. It submits that:

  89. [53] In support, the Prosecution relies on the English Court of Appeal decision of Regina v Ashdown [1974] 1 WLR 270 (“Ashdown”). In that case, the defendant was convicted of a robbery offence and was sentenced to a term of life imprisonment. His appeal against sentence was dismissed by the Court of Appeal. The defendant applied to the Court of Appeal for leave to appeal to the House of Lords. This was refused. The defendant then made a second application, again to the Court of Appeal, for leave to appeal again. The Court of Appeal held that it did not have the jurisdiction to consider the defendant’s second application (at 274E), and that in any case, no point of law was involved (at 276D). Before I address the relevance of this authority, it is necessary understand the jurisdictional underpinning for “an application” pursuant to s 60(2) of the SCJA.

  90. [54] I begin by observing that the Court of Appeal’s jurisdiction to hear any matters relating to s 60 stems from s 44(5) of the SCJA, which states:

  91. [55] Certainly, an application made under s 60(2) of the SCJA to the Court of Appeal for an extension of time is one made “in accordance with section … 60”. However, the issue is whether the inclusion of the words “[a]n application under [s 60(1)]” [emphasis added] in s 60(2) intentionally restricts the Court of Appeal’s jurisdiction to hear only applications being made for the first time. I do not think the word “an” in the present context is necessarily a limiting one implying exclusivity as the Prosecution suggests: see eg, Anandan Krishnan, Words, Phrases & Maxims Legally & Judicially Defined vol 1 (LexisNexis, 2008) at p 1, for the various judicial definitions of the word. Indeed, the dictionary meaning of “a” (which is synonymous to “an” except that the latter is typically used before a word beginning with a vowel) makes it plain that the word is “strictly [an] adjective and can only be used with a substantive following” (see The Oxford English Dictionary vol 1 (Clarendon Press, 2nd Ed, 1989) at p 4). Ordinarily, it can refer to either “one” or “any” (ibid).

  92. [56] On the face of it, the term “an application” is a neutral means of referring to the application that is being made to the Court of Appeal. In my view, on a proper construction and taking into account the close nexus between ss 60(1) and 60(2) of the SCJA, it means “any application” that is being made, rather than the first application before either court. This view is amply supported by s 2 of the Interpretation Act (Cap 1, 2002 Rev Ed), which states that unless the context indicates otherwise, “words in the singular include the plural” and vice versa. Interestingly, s 60(1) of the SCJA uses the term “the application” instead of “an application”, thus faintly suggesting that the Legislature had intended for only one application to be made directly to the High Court in the first instance. If, however, it intended that only one application ought to be made either to the High Court (if in time) or the Court of Appeal (if out of time), Parliament could have with ease made its intention clear by using the term “The application under subsection (1)” or similar terminology that would convey such an intention.

  93. [57] The Prosecution’s argument that “an application” refers to a single application is adapted from Ashdown, which in turn relied on the case of Regina v Grantham [1969] 2 QB 574 (“Grantham”). In Grantham, the court was concerned with the Court Martial Appeals Act 1968 (c 20) (UK) (“the Court Martial Act”). Under s 8(1) of the Court Martial Act, a convicted person may appeal to the Appeal Court only with leave of the Appeal Court. Section 9(3) of the Court Martial Act further provides that only the Appeal Court can extend the period of time within which the application for leave to appeal is to be lodged under s 9(1). In such a case, where an earlier application for leave has already been made and rejected by the Appeal Court, the application for an extension of time would necessarily constitute the second proceedings in respect of the same matter before the same court. The position is, on closer analysis, no different from that in Ashdown, which applied the Criminal Appeal Act 1968 (c 19) (UK), since the applicant there had applied for an extension of time to the same court (viz, the Court of Appeal) that heard and rejected the first application for leave to appeal to the House of Lords. In the present case, however, the application for an extension of time, under s 60(2) of the SCJA, is, I reiterate, being made to a different court. Quite simply, this is the first application made to the Court of Appeal. What ss 60(1) and 60(2) of the SCJA prescribe is that barring good reasons justifying a delay, the parties only have the right to apply under s 60(1) of the SCJA to the High Court during the one-month period. After the lapse of the one month, the High Court loses oversight of the application process and an application has then to be made to the Court of Appeal for an extension of time (under s 60(2)). For all these reasons, I do not think Ashdown takes the Prosecution’s argument any further. The scheme and interplay for leave to the House of Lords in England are very different from that contemplated under s 60 of the SCJA.

  94. [58] It is, of course, trite principle that it is in the public interest for there to be finality to proceedings. Yet, it would be wrong to treat such desirability for finality as being of the essence in construing s 60(2) of the SCJA. The role of the Court of Appeal, as the apex court in criminal matters, is to ensure that justice is done not only in cases where a statutory right of appeal exists, but also to ensure that important decisions of the High Court involving questions of law of public interest are correctly arrived at. It has the heavy responsibility as the final court to correct errors and is also charged with ensuring public confidence in the administration of criminal justice. An incorrect decision or any uncertainty on a legal point of public interest could have severe consequences; it would be adverse not just to the applicant but crucially to others, who may also face similar charges in future, since the lower courts are bound by the High Court’s decision until it is corrected by this Court or Parliament. For these reasons and those below, I see no good reason to interpret the jurisdiction under s 60(2) of the SCJA restrictively, such that the Court of Appeal can only hear and grant an extension of time for first-time applications only. First, a narrow interpretation could result in the Court of Appeal being unable to consider even obviously erroneous determinations on a question of law that is of public interest. Second, it cannot be assumed that the Public Prosecutor will always raise such a question to this Court if it arises. In the present case, if such a restrictive view of s 60(2) of the SCJA had been taken from the outset, BMS would not have been heard and the Prosecution would not have been prompted to make its own application. One must accept, as the saying goes, even Homer nods.

  95. [59] Third, construing this jurisdiction narrowly to apply only to first time applications to the Court of Appeal would mean that there can be no available relief even in those unusual and troubling cases where there has been a failure by counsel to properly state the questions of law of public interest. Such errors could lead to the High Court’s refusal to exercise its discretion pursuant to s 60(1) of the SCJA even in appropriate cases. Faced with two plausible constructions of s 60(2), I think that it is preferable to interpret the provision in a manner that grants the Court of Appeal the greater leeway to correct errors of law or injustice in cases of public interest.

  96. [60] Fourth, as the Prosecution rightly acknowledged in the course of submissions before us, there is no question of issue estoppel as the Court of Appeal is statutorily empowered to hear the application. As an aside, I note that there is no consensus on whether the doctrine of issue estoppel should apply to criminal law (see, for example, Director of Public Prosecutions v Humphrys [1977] 1 AC 1 (where the House of Lords adopted the view that the doctrine was not applicable) and R v Mahalingan [2008] 3 SCR 316; (2008) 237 CCC (3d) 417 (where the majority of the Supreme Court of Canada took the view that the doctrine was applicable in certain circumstances)). On the facts of the present case, it is clear that the rationale for the doctrine of issue estoppel in criminal matters (viz, the rule against double jeopardy), if applicable, does not bite.

  97. Summary on the Court of Appeal’s jurisdiction under s 60(2) of the SCJA

  98. The relevant factors in assessing a s 60(2) application

  99. [63] As stated earlier, only the Court of Appeal can decide whether or not to grant an extension of time to make an application under s 60(1) of the SCJA to the High Court judge. If the Court of Appeal sees merit in the application, it will grant an extension of time to make an application under s 60(1) of the SCJA (see the observations of Yong CJ in Ong Beng Leong at [14] and also Harbhajan Singh v Public Prosecutor [1980] 1 MLJ 322 at 322). In Tee Kok Boon v PP [2006] SGCA 16 (“Tee Kok Boon”), the applicant (“Tee”) applied to the Court of Appeal for an extension of time (under s 60(2) of the SCJA) to apply to the High Court under s 60(1) of the SCJA. The Court of Appeal dismissed Tee’s application. In arriving at its decision, the Court of Appeal took into account two factors: (a) the relevance of the question of law of public interest sought to be raised (at [6]); and (b) whether there were “good and compellable reasons why his application for leave under s 60(1) was not made in time” (at [10]). On the facts of the case, the Court of Appeal held that the questions raised were either questions of fact (as opposed to questions of law) or questions of law but of personal interest (rather than questions of law of public interest). Further, the delay of three months, from the time Tee obtained the records from the court until the time he filed the motion for an extension of time, was a “long period of time” in the context of s 60(1) of the SCJA.

  100. [64] Apart from Tee Kok Boon, I am not aware of any authoritative local or Malaysian authority that has explicated the relevant factors in assessing an application for an extension of time under s 60(2) of the SCJA (or its Malaysian equivalent). The wording of s 60(2) clearly states that the decision as to whether or not to grant an extension of time lies solely within the Court of Appeal’s discretion. This Court in Tee Kok Boon identified the factors of the length and reasons for the delay and the merits of the application as those that will inform the court in the exercise of its discretion. A similar approach was adopted by this Court in Salwant Singh v PP [2005] 1 SLR 36 (“Salwant Singh”) in respect of an application for an extension of time to file a notice of appeal under s 50 of the SCJA, and by Sundaresh Menon JC in Lim Hong Kheng v PP [2006] 3 SLR 358 (“Lim Hong Kheng”) in respect of an application for an extension of time to file a petition of appeal under s 250 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“the CPC”), with the requirements of s 50 of the SCJA being “strikingly similar” to that under s 250 of the CPC (see Salwant Singh at [11]–[12]). In Lim Hong Kheng, Menon JC painstakingly undertook an extensive review of the authorities elaborating on the applicable criteria for an extension of time in relation to both criminal and civil appeals. He (inter alia) made the following incisive observations, which I entirely agree with (at [27]):

  101. [65] While the present applications are made under s 60(2) of the SCJA (for an extension of time to reserve questions of law of public interest) and do not involve an appeal per se, I can see nothing in this distinction that requires the court to take a different approach in respect of an application for an extension of time. As such, the relevant factors in respect of a s 60(2) application remain (after suitable modifications) as follow:

  102. (a) the length of the delay in making an application under s 60(2) of the SCJA;

  103. (b) the explanation put forward for the delay, and, if no earlier application had been made pursuant to s 60(1) of the SCJA, the reasons for this; and

  104. (c) the prospects of the application, after taking into account all factors listed at [29] above, especially the significance of the public interest element in the application to be made under s 60(1) of the SCJA.

  105. [66] Generally speaking, the longer the delay, the more significant will be the consideration given to the second and third factors. However, the relative importance to be placed on each of these three factors will depend on the circumstances of each case. For example, while the court, in an exceptional case, has granted an extension of time to file a petition of appeal after an 18-month delay (see Anuar bin Othman v PP [1990] SLR 1180 at 1186, [28]), on the other hand, this Court has declined to grant an extension of time even where the delay was not caused by the applicant, as the appeal had no prospect of success at all (see Salwant Singh at [16] and [22]). I should further emphasise that ordinarily, an application must first be made to the relevant High Court judge. Most matters ought to end there. I will now turn to apply the above factors to the facts of this case.

  106. Length of delay and reasons for the delay

  107. [67] In the present case, the HC Judge dismissed the appeal against conviction and partially allowed the appeal against sentence on the day of the hearing itself, viz, 19 January 2009. At first blush, this represented a substantial seven-month delay for BMS’s application (that was made during the hearing on 27 August 2009) and an eight-month delay for CM 30/2009 (which was filed on 11 September 2009). However, BMS had already applied, on 16 February 2009, to reserve questions of law of public interest for the Court of Appeal’s decision in CM 5/2009. During the hearing, Mr Hwang informed this Court that his team had filed the application just before the expiry of the one-month period as they were waiting for the HC Judge’s written grounds of decision to be issued. CM 5/2009 was heard and dismissed by the HC Judge on 9 April 2009, and on the same day, BMS personally filed CM 14/2009 to invite the Court of Appeal to (inter alia) determine the question of law of public interest as set out in CM 5/2009. CM 14/2009 and CCA 6/2009 were fixed for hearing on 27 August 2009. At this juncture, I observe that the present case is distinguishable from the usual cases where the delay would ordinarily be brought about by some misunderstanding, the applicant’s inadvertence or the solicitor’s fault.

  108. [68] In addition, during the course of the hearing, Mr Hwang informed the court that he had not filed an application under s 60(2) of the SCJA sooner as he and his team did not appreciate that it was still open to them to apply for an extension of time to raise questions of law of public interest under s 60(2) of the SCJA, until it was very late in the day. There is no case law inviting such an approach. As a consequence (and in the light of Wong (No 1)), Mr Hwang initially took the view that it might be ethically challenging for him to pursue an appeal to the Court of Appeal after the HC Judge had dismissed both the appeal against conviction and the original s 60(1) application. In this regard, I note that this is the first time that an application for an extension of time under s 60(2) of the SCJA has been made in similar circumstances.

  109. [69] Quite plainly, although the length of the delay appears substantial at first glance, closer analysis reveals that there has been really no delay attributable to any fault of BMS. BMS did not simply allow seven months to lapse without taking any further steps in this matter. On the contrary, BMS had made an application under s 60 of the SCJA within the stipulated time and was most anxious to vindicate himself and to exhaust all possible legal avenues open to him. The one “crime” he cannot be accused of is delay. The chronology of the various steps he took, outlined above (at [67]), unequivocally bears testament to this. In the prevailing circumstances, any suggestion that delay is even a pertinent consideration would be entirely lacking in force. The Prosecution’s application, made soon after it objected to BMS’s application, is highly significant. What is sauce for the goose is sauce for the gander. One should also not lose sight of an apparent irony here. Had BMS not tenaciously persisted in his contentious attempts to vindicate himself, it is unlikely that the Prosecution would have been prompted to make its application.

  110. [70] With regard to the Prosecution’s application (CM 30/2009) which was filed only on 11 September 2009 (see above at [2]), the questions of law of public interest for which it seeks leave to reserve are as follows:

  111. [71] In its affidavit in support of the motion, the Prosecution provided the following reason for having made its application out of time (at para 6):

  112. [72] In my view, given the above circumstances and reasons, the fact of delay here is not a material consideration. This is especially since the Public Prosecutor himself has raised questions of law of public interest because s 60 of the SCJA deems those questions to be in the public interest. When an application for an extension of time is made by the Public Prosecutor to raise questions of public interest, in the absence of any unexplainable delay that may have caused prejudice to any party, the Court of Appeal would ordinarily be slow to dismiss the application. Ordinarily, it will be its duty to answer questions raised by the Public Prosecutor.

  113. The significance of the points of law alluded to

  114. [73] I will now consider the substance of the parties’ applications. The present case is unique in a number of ways. This is the first case in Singapore involving a prosecution pursuant to s 209 of the PC. Further, BMS is being charged for abetting the making of a false claim in advising, in his capacity as the solicitor, his client to file the SOC. As far as I am aware, there are no reported cases in any other relevant jurisdiction where a solicitor has been charged with the offence of abetting a client in the making of a false claim. Therefore, I can see some force in Mr Wong’s submission that the profession requires further clarification in relation to s 209 of the PC on the scope of a solicitor’s duties in preparing pleadings and the extent of his or her duties when taking and acting on instructions.

  115. [74] BMS vigorously maintained that he believed and accepted his client’s version of events, and that until the first appointment at the HDB, the Sellers were not privy to the cash-back arrangement (see [8] above). The District Judge stated that BMS ought to have taken additional steps to verify his client’s instructions (DC GD at [184]–[185]). The HC Judge, however, did not rely on such a finding in upholding the conviction. The Law Society and Mr Hwang (whom, I understand, was not involved in the Law Society’s participation before this Court), not surprisingly, have taken issue with the District Judge’s observations, in particular. In my view, it is certainly questionable whether BMS ought to have verified his clients’ instructions simply because he was aware that the Buyers and the Agents had a diametrically-opposing version of events (see [20] above). How was he to ascertain who was telling the truth? Was that his role?

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