Leck Kim Koon v Public Prosecutor [2022] SGCA 42

Introduction

In the present application, the applicant, Mr Leck Kim Koon (the “Applicant”), seeks leave under s 397(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (the “CPC”) to refer two purported questions of law of public interest (“Question 1” and “Question 2”, respectively) to the Court of Appeal. The Applicant subsequently sought, via an oral application, to amend Question 1. However, part of this application also included what was in substance an application to refer an additional question to this court (the “Additional Question”). We shall refer to these three questions collectively as the “Questions”.

The Questions arise out of the Applicant’s conviction by the District Court on six charges of cheating under s 420 of the Penal Code (Cap 224, 2008 Rev Ed) (the “Penal Code”) for having used duplicate copies of the same transport document to obtain disbursements of funds from six banks (see Public Prosecutor v Leck Kim Koon [2020] SGDC 292 (the “Trial GD”)). He was sentenced to a global sentence of 36 months’ imprisonment. He then appealed against his conviction and sentence and the High Court dismissed both appeals in Leck Kim Koon v Public Prosecutor [2021] SGHC 236 (the “HC GD”).

Background

The facts have been detailed at [2]–[4] of the HC GD and we briefly highlight the salient facts.

At the time of the offences, the Applicant and one Madam Neo Poh Choo (“Mdm Neo”) were directors of Intraluck Pte Ltd (“Intraluck”). Intraluck’s stated business was the importation and exportation of aluminium and related products. The Applicant was the majority shareholder and the remaining shares were held by Mdm Neo and other shareholders.

At that time, Intraluck had trade financing credit facilities with various banks. These credit facilities permitted sums to be disbursed to the relevant suppliers as indicated by Intraluck upon the submission of designated documents, including an application form, to the respective banks. The banks providing the credit facilities included United Overseas Bank Ltd (“UOB”).

On 9 September 2015, Intraluck submitted an application to UOB for clean invoice financing in the sum of US$60,415.51. This was supported by an arrival notice dated 28 August 2015 issued by Orient Overseas Container Line Limited, stating that Intraluck was to receive a shipment of aluminium products from Norinco New Energy Co Ltd under a bill of lading numbered “OOLU2564105080” (“BL080”). This application was approved and the funds were disbursed by UOB.

Subsequently, between 10 and 15 September 2015, Intraluck submitted six other applications (the “Applications”) for invoice financing to other banks for various sums of money using BL080 or an arrival notice referencing that same bill of lading (“AN080”). Three of the Applications were signed by the Applicant, and three were signed by the Applicant and Mdm Neo. All the Applications were approved by the various banks and the amounts applied for were disbursed to the suppliers under the relevant invoices.

It was not disputed that the financing of the invoices was secured by the personal guarantees given by the Applicant, and that all the outstanding payments in relation to the six proceeded charges were fully repaid by Intraluck. In consequence, none of the banks suffered any loss as a result of the Applications.

The purported questions of law of public interest

Four conditions must be met before leave can be granted for a question to be referred to the Court of Appeal (see the decision of this court in Tang Keng Lai v Public Prosecutor [2021] 2 SLR 942 (“Tang Keng Lai”) at [6]):

(a) Firstly, the reference to the Court of Appeal can only be made in relation to a criminal matter decided by the High Court in the exercise of its appellate or revisionary jurisdiction.

(b) Secondly, the reference must relate to a question of law, and that question of law must be a question of law of public interest.

(c) Thirdly, the question of law must have arisen from the case which was before the High Court.

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

In our judgment, the Questions do not satisfy these conditions.

Oral application

In the Notice of Criminal Motion filed by the Applicant, the Questions read as follows:

Question 1 concerns purported requirements for a statement recorded pursuant to s 22 of the CPC (“s 22 statement”), while Question 2 concerns the elements of s 420 of the Penal Code.

At the hearing, the Applicant made an oral application to amend Question 1(b) and 1(c) and to, in substance, introduce an additional question (ie, the Additional Question). The amendments are as follows:

Since the Additional Question was, in substance, a fresh application under s 397(1) of the CPC, pursuant to s 397(3), that application should have been made within one month of the determination of the matter in the court below, ie, one month from 20 October 2021. Hence, the application for leave to refer the Additional Question was filed out of time. Nevertheless, s 397(3) also empowers this court to grant an extension of time.

The Prosecution did not object to the oral application. We therefore allowed the amendments to Question 1(b) and 1(c) and granted an extension of time for the Applicant to apply for leave to refer the Additional Question to this court.

We now turn to examine the merits of the present application.

Question 1

First, we must analyse Question 1 as a whole.

To begin with, the plain language of s 22 of the CPC does not contain requirements for: (a) Investigating Officers (“IOs”) to record a s 22 statement word for word; and (b) independent interpreters to be present during the taking of s 22 statements. In relation to the interpretation point, s 22(4)(b) simply provides that if the witness does not understand English, the s 22 statement must be interpreted for him in a language that he understands. In other words, the statement can be translated to the witness by persons apart from interpreters.

Next, Question 1 essentially concerns compliance with purported procedural requirements of taking s 22 statements according to the Applicant. The statutory admissibility regime is set out in s 258(3) of the CPC, Explanation 2(e) thereof provides that if a statement is otherwise admissible, it will not be rendered inadmissible merely because the recording officer or interpreter did not “fully comply” with the requirements of ss 22 or 23. Also, as held by this court in Muhammad bin Kadar and another v Public Prosecutor [2011] 3 SLR 1205 (“Kadar”), the court has a residual discretion at common law to exclude a voluntary statement from evidence where their prejudicial effect exceeds their probative value. Hence, where a statement has been recorded by the police in breach of legal requirements or the Police General Orders, the court can exclude such statement as more prejudicial than probative unless the Prosecution gives some reasonable explanation for the irregularity (at [53] and [60]–[62]).

We pause to note that, as regards Kadar, the Applicant claims the following observations by V K Rajah JA support his case (at [59] and [60]):

In our view, the above statements are uncontentious and we do not dispute their general applicability. However, they do not contain any pronouncement to the effect that the court must exclude statements where there is no strict compliance with the procedural requirements of s 22(4) of the CPC. They also do not state that any of those requirements is mandatory such that its contravention would ipso facto warrant the exclusion of a s 22 statement. We therefore fail to see how the cited passage supports the Applicant’s case.

Hence, as regards admissibility, the legal position is clear. In so far as there is a dispute here, it can relate only to the application of the relevant law to the facts, ie, whether the procedural non-compliance (if any) was sufficiently egregious such that the statement’s prejudicial effect exceeded its probative value. This is plainly a question of fact. Indeed, the Applicant oddly appears to have accepted this position in his own submissions:

Moreover, once the s 22 statement is admitted, the weight to be given to it is a question of fact and not a question of law. Hence, even if the procedural requirements alleged by the Applicant can be read from or read into s 22(4) of the CPC, the resulting inquiry is one of fact.

In addition, parts of Question 1 were drafted using hypothetical facts that were very specific to the present case. For example, Question 1(c) is premised on “parts [of a statement] which are alleged to be admissions and used for the purposes of conviction”. As this court observed in Public Prosecutor v Teo Chu Ha [2014] 4 SLR 600 at [31], such questions are plainly those of fact:

Based on the considerations set out above, Question 1 appears to be an attempt at inventing normative questions of law from the mere process of applying s 22 of the CPC to the facts of the case.

We now turn to examine the sub-questions of Question 1.

Question 1(a)

In Question 1(a), the Applicant seeks the court’s determination on whether a statement recorded in English pursuant to s 22(4) of the CPC, from a person speaking in a language other than English, should be translated and read over to the person word for word in a language he understands (in the present case, Mandarin), or in the alternative, whether an “explanation” of the statement to the person in a language he understands would suffice.

The Prosecution submits that it is clear and unambiguous that under s 22(4) of the CPC, where a statement is recorded in writing from a person who does not understand English, that statement must be read over and interpreted for the person in a language that the person understands, and also be signed by the person. There was thus no legal controversy or live legal issue for determination by this court.

We agree with the Prosecution’s submission as the plain wording of “read over” and “interpret” must connote that the person reading over the statement dictates that statement verbatim. Semantically, “read over” does not encompass the acts of summarising or explaining the contents of the statement. Indeed, the Oxford English Dictionary Online (Oxford University Press, 2021) defines “read over” as: (a) “[t]o go over or through (a text, written list, etc.), reading aloud”; or (b) “[t]o go over or look back over (a letter, book, etc.); to peruse in full. …”.

Hence, while Question 1(a) is a question of law, the answer to it is so obvious that there is no public interest in referring it to the Court of Appeal.

Question 1(b)

Question 1(b) sets out two separate questions for the court’s determination:

(a) Should the IO recording a statement be required to record the statement word for word rather than in “a question-and-answer format with the follow-on questions being not recorded and the answers recorded in a singular fashion”?

(b) Should the IO recording a statement be required to arrange for an interpreter to interpret and read over the statement to the person being examined rather than the IO being the examiner, recorder and interpreter?

At the outset, we reiterate that even if either requirement can be read from or read into s 22(4) of the CPC, as stated above at [19]–[22], the effect of non-compliance with such requirements on admissibility and weight is a factual inquiry. Question 1(b) is therefore a question of fact, not law.

Moreover, even if Question 1(b) is a question of law, it relates to settled legal issues.

As the Prosecution rightly submits, neither requirement can be read from the plain text of s 22(4) of the CPC, which requires that a statement “recorded in writing” must: “be read over to the [witness]”, “if the [witness] does not understand English, be interpreted for the [witness] in a language that the [witness] understands”; and “be signed by the [witness]”.

Indeed, as regards the issue of whether the IO has to record a s 22 statement word-for-word, this is clearly not a legal requirement (see Halsbury’s Laws of Singapore vol 10 (LexisNexis, 2021) at para 120.119, citing Public Prosecutor v Pachaiappan [1941] MLJ 102 and Public Prosecutor v Subramaniam & Anor [1956] MLJ 58). In the two Malaysian authorities cited, the court held that since s 112 of the Malaysian Criminal Procedure Code did not provide that a statement taken pursuant to that section must be in a question-and-answer format as opposed to a running narrative, there was no such procedural requirement. In the former manner of recording, the accused’s answers would be recorded verbatim. Similarly, in the present case, the Applicant should not read in additional procedural requirements for the recording of s 22 statements where there are none.

We note that the Applicant has, quite mischievously in our view, used specific phrasing in his amended Question 1(b): “a question-and-answer format with the follow-on questions being not recorded and the answers recorded in a singular fashion”. In the Applicant’s view, this meant that while his answers were recorded in a question-and-answer format, there were instances where a few answers to a few subsidiary questions to a main question would be consolidated into a singular answer that reflected, in the Applicant’s view, a narrative that the IO understood him to be saying. Hence, this question-and-answer format did not reflect verbatim answers. Nevertheless, we emphasise that the point here is that s 22 of the CPC does not prescribe any specific format for s 22 statements that are recorded in writing.

Moreover, the above phrasing of the amended Question 1(b) is plainly an attempt to revisit the findings of the lower courts, thus constituting an impermissible back-door appeal.

The District Court had taken great pains to explain its reasoning as to why it found that the s 22 statements were accurate (see the Trial GD at [221]–[232]). Indeed, it was evident to us that the court engaged in a meticulously detailed analysis, which spanned many paragraphs. Moreover, the allegation that the IO had excluded the accused’s answers or mis-recorded the questions was put before that court at [221], as follows:

On appeal, the Applicant also argued that the IO had added to his answers and the High Court noted as follows (at [35] of the HC GD):

Ultimately, the High Court agreed that the District Court was justified in rejecting the Applicant’s allegations against the IO in the recording of the statements and that the s 22 statements were accurate (see the HC GD at [36]–[39]).

Since Question 1(b) is premised on the attempted negation of the lower courts’ findings, it is an ill-conceived attempt at re-litigating these facts, in what is, in substance, a back-door appeal.

In so far as the requirement of an independent interpreter to translate and read over the statement to the person being examined is concerned, this was suggested during the Parliamentary Debates relating to the Criminal Procedure Code Bill in 2010 but was not adopted. Indeed, in response to such suggestions, the Minister for Law, Mr K Shanmugam, stated as follows (see Singapore Parliamentary Debates, Official Report (19 May 2010), vol 87 at col 557):

Since the legislature had intended to omit such a requirement in view of operational difficulties in investigations, we emphasise that it is not up to this court to act as if it were a “mini-legislature” by reading such a requirement into s 22(4) of the CPC. This would be beyond this court’s remit as a court of law.

It may, at most, be argued that it was unclear if the above debate related only to the taking of a statement under s 23 of the CPC (“s 23 statements”). Section 23(3A) of the CPC is worded similarly to s 22(4) of the CPC:

Nevertheless, given the similarity in wording between s 23(3A) and s 22(4) of the CPC, there should be no requirement for an independent interpreter for both s 22 and s 23 statements where such a requirement is not expressly stated in the wording of both provisions.

Moreover, in Kong Weng Chong and others v Public Prosecutor [1993] 3 SLR(R) 453 (“Kong Weng Chong”), this court held that, as regards the taking of oral statements from accused persons, there is “no principle of law which requires that on such occasion an interpreter not involved in the investigation should be called upon to interpret” (at [25]). Hence, it was immaterial that the accused’s oral statement was made to a Central Narcotics Bureau (“CNB”) officer with another CNB officer acting as the Mandarin interpreter in that case. Since s 22(3) of the CPC stipulates that a s 22 statement must be recorded either in writing or in the form of an audiovisual recording, it may be argued that Kong Weng Chong concerned a different legal context. Nevertheless, we see no reason, in principle, for limiting the reasoning in that case only to oral statements and hold that it is equally applicable to s 22 statements.

In addition, the Applicant’s submissions on this point were plainly unmeritorious.

In oral submissions, the Applicant clarified that his position with respect to whether an independent interpreter is required for s 22 statements of accused persons who did not understand English, was as follows:

(a) When a s 22 statement is being recorded from or read back to the accused, there is no requirement for an independent interpreter to be present.

(b) However, where a s 22 statement is sought to be admitted at the proceedings, that statement must have been independently interpreted (during recording or reading back). Otherwise, that statement is not admissible.

The Applicant submits that, since the requirement of an independent interpreter is only imposed at the point where the statement is sought to be admitted, this requirement does not interfere with investigations.

In our view, this is a fallacious argument. When a s 22 statement is recorded, the relevant authorities would not know if that statement would later be relevant at the trial. Hence, the Applicant’s position would effectively mandate the requirement of an independent interpreter in all cases out of prudence. This would cause great operational difficulties in investigations. As we have already noted (at [40] and [41] above), the legislative intent in omitting an express requirement for an independent interpreter to be present was the avoidance of such operational difficulties. We therefore dismiss this submission.

The Applicant also placed great reliance on Yong Pung How CJ’s statements in Lee Kwang Peng v Public Prosecutor and another appeal [1997] 2 SLR(R) 569 (“Lee Kwang Peng”) (at [121]–[125]):

As with the Applicant’s reliance on Kadar (see [20] and [21] above), we do not see how these general and uncontentious statements in Lee Kwang Peng above assist the Applicant’s case. While these statements in Lee Kweng Peng mention the use of an independent interpreter to translate and read back the statement to the accused, they do not mandate the same, such that contravention would warrant the exclusion of a s 22 statement.

Hence, even if Question 1(b) is a question of law, it is not one relating to the public interest.

Question 1(c)

Question 1(c) is essentially a different way of phrasing Question 1(b). However, Question 1(c) now asks what weight should be given to “parts [of a s 22 statement] which are alleged to be admissions and used for the purposes of conviction”.

Given that Question 1(c) expressly concerns the degree of weight that should be accorded, such an inquiry must inherently be factual, for it is weight that is accorded to facts and not propositions of law. As the Prosecution aptly submits, the premise of the question being framed as “what weight should be given” is a dead giveaway for a question of fact. Accordingly, Question 1(c) is not a question of law, but one of fact.

Indeed, Question 1(c) is plainly an attempt to re-litigate the Applicant’s case in the form of a back-door appeal. The Applicant is in substance claiming that the “admissions” he gave in the s 22 statements, which were relied upon by the District Court in convicting him, were improperly and inaccurately recorded. The District Court has given many reasons as to why the s 22 statements can be relied upon, which include, inter alia, various safeguards taken by the IO in the recording of the s 22 statements (see the Trial GD at [214]–[232]). The High Court took a similar view, observing that “the truth of the allegations premised on the perceived inaccuracies of language or whether the statement were (or were not) read back to the appellant (whether in English or Mandarin) ultimately turned on whether the IO or the appellant’s evidence at trial was to be accepted” (see the HC GD at [36]).

Before turning to address Question 2, we pause briefly to note that Question 1 bears great similarity with some of the questions posed to this court in Ng Chye Huay v Public Prosecutor (CA/CM 32/2017) (“Ng Chye Huay”). In that case, the applicant was convicted of four charges under s 180 of the Penal Code for refusing to sign statements, when legally required to do so. The applicant’s appeal against conviction and sentence was dismissed by the High Court. The applicant subsequently sought leave to refer seven purported questions of law of public interest to the Court of Appeal. The seven questions, all of which related to the statement recording process, were:

As the Prosecution rightly submitted, Question 1 in the present case is similar to Questions 1 to 4 in Ng Chye Huay. We note that, in dismissing the s 397(1) application for those four questions in Ng Chye Huay, this court held as follows:

We are therefore fortified in our reasoning above for the present case by our previous approach to similar questions in Ng Chye Huay.

Question 2

Generally, the Applicant’s submissions on Question 2 involved disputes regarding the findings of fact by the lower court. This much is evident even from the phrasing of his submissions, and we set out one example here:

We also note that, like Question 1 (see [23] above), parts of Question 2 were drafted using hypothetical facts that are very specific to the present case. For example, Question 2(a) is premised on “the terms and conditions of a transaction (such as invoice financing of the banks) [which] do not require a document to be furnished (a transport document such as a Bill of Lading) as a precondition for disbursement of monies or handing over of property”.

We now turn to examine the sub-questions.

Question 2(a)

Question 2(a) is a question of fact and not one of law. This is apparent when the question is broken down as follows:

(a) The question begins with the premise that “the terms and conditions of a transaction (such as invoice financing of the banks) do not require a document to be furnished (a transport document such as a Bill of Lading) as a precondition for disbursement of monies or handing over of property”.

(b) “Deception” has been defined as the inducing of a person to believe to be true something which the person making the representation knows is in fact false (see the HC GD at [27], citing the decisions of the High Court in Gunasegeran s/o Pavadaisamy v Public Prosecutor [1997] 2 SLR(R) 946 at [42]; Rahj Kamal bin Abdullah v Public Prosecutor [1997] 3 SLR(R) 227 at [24]; and Public Prosecutor v Ong Eng Teck [2012] SGHC 242 at [23]).

(c) The question then asks if the premise suffices for a finding of deception “by the submission of a wrong but unnecessary (transport) document”.

Question 2(b)

Question 2(b) looks at two requirements, viz, inducement and dishonesty, and then asks whether these requirements are satisfied if there was no reliance on the impugned document and if the maker of the document did not have any intention to cause wrongful gain and wrongful loss.

Properly understood, Question 2(b) is not a question at all.

To begin with, the definition of dishonesty under s 24 of the Penal Code requires either an intention to cause wrongful gain or an intention to cause wrongful loss. In this regard, Question 2(b) conveniently posits a hypothetical where the accused person does not have such an intention.

Next, the definition of inducement requires there to be some causal nexus between the deception and the parting of property (see Stanley Yeo, Neil Morgan and Chan Wing Cheong, Criminal Law in Singapore (LexisNexis, 2022) at paras 14.71–14.72). Again, Question 2(b) conveniently posits a hypothetical where such a causal nexus is not present.

Hence, Question 2(b) oddly asks if the mens rea under s 420 of the Penal Code can be satisfied under hypothetical facts where the elements of the offence are absent. Understood in this way, Question 2(b) is not even a question, and if it is, it is one of fact and not one of law.

Also, as the Prosecution submits, Question 2(b) did not arise from the appeal before the High Court and did not affect the outcome of the appeal because the High Court never found that there was no dishonesty (ie, “an intention to cause wrongful gain or wrongful loss”) or that the banks were not induced. The District Court had found that the Applicant had been dishonest, given his admissions that he should not have submitted the same bill of lading for more than one bank application, but did so anyway due to the profitable nature of the transactions (see the Trial GD at [244]). The High Court agreed and held that a dishonest intention on the part of the Applicant was clearly established on the evidence, an intention which bore a clear nexus to the actus reus of cheating (see the HC GD at [39]).

Again, we emphasise that the present application to refer questions of law to this court cannot, and should not, be treated as an avenue to re-litigate issues of fact that have been decided in the courts below.

Question 2(c)

Question 2(c) first refers to a specific fact, viz, a situation where “the banks rely only on the customer’s contractual warranties and external independent security to disburse the loans”. It then asks if this fact implies another fact, viz, the banks did not rely on “other non-material and non-essential documents”, such that inducement under s 420 of the Penal Code is not made out. Plainly, Question 2(c) is a question of fact, not law.

Again, as submitted by the Prosecution, Question 2(c) also did not arise from the proceedings below and did not affect its outcome:

(a) The District Court had found that the transport documents were considered and relied upon by the banks as part of the approval process for the invoice financing (see the Trial GD at [248] and [249]). Further, the Applicant was aware that the banks would only grant a loan if they obtained a transport document, and being unable to produce a genuine transport document, the Applicant had chosen to submit either BL080 or AN080 to the banks (see the Trial GD at [242]). Indeed, the submission of the transport documents was an essential requirement for the applications for invoice financing and the banks would have checked for these documents as part of their internal processes (see the Trial GD at [253]).

(b) The High Court held that the DJ had rightly concluded from both the oral and documentary evidence, that the banks had in fact been induced by the provision of the transport documents to disburse the monies to the suppliers under the relevant invoices (see the HC GD at [31]).

The above findings of fact are contrary to those in the Applicant’s hypothetical scenario. We reiterate that s 397 of the CPC should not be used as a back-door appeal.

The Additional Question

In so far as the Additional Question is concerned, the Applicant submits that this court should require that the ancillary hearing procedure in s 279 of the CPC be utilised whenever an accused person contests the accuracy of the recorded statement.

Section 279(1) of the CPC provides as follows:

Yet, in the Applicant’s own submissions, he recognises that since he did not challenge the voluntariness of the s 22 statements but only their accuracy, it is not mandatory for the court to hold an ancillary hearing. This is because illus (d) to s 279(1) of the CPC states as follows:

Evidently, on a plain reading of illus (d), it does not impose a requirement for the court to hold an ancillary hearing where the sole challenge to the accused’s statement relates to its accuracy. Also, since this is a matter of the court’s discretion even on the Applicant’s own view, the dispute here relates to the application of the law, which is a question of fact.

We nevertheless address, for completeness, the Applicant’s reliance on the High Court decision of Public Prosecutor v Parthiban Kanapathy [2021] 5 SLR 372 (“Parthiban”) (affirmed in Parthiban a/l Kanapathy v Public Prosecutor [2021] 2 SLR 847 (albeit without consideration of this particular point)).

In the Applicant’s written submissions, he submitted that “this [c]ourt should determine that the approach in Parthiban is the correct position in law”. In that decision, the High Court provided three reasons to support the calling of an ancillary hearing when the accuracy of an accused person’s statement is challenged (see Parthiban at [29]–[38]). Indeed, at some points, the language used may appear to suggest that it is mandatory for the court to hold an ancillary hearing where the accused person challenges the accuracy of a statement, as seen below (at [32]):

Nevertheless, it is of the first importance in this particular context to note that the High Court expressly stated at the outset that its reasoning on this issue was obiter dicta (see Parthiban at [29]):

Moreover, the High Court ultimately clarified that its stance in relation to illus (d) to s 279(1) of the CPC did not deviate from the prevailing legal position. The court stated as follows (see Parthiban at [38]):

Hence, even on the authority of Parthiban, it is a matter of the court’s discretion to call for an ancillary hearing where the accused challenges the accuracy of his statements. The Additional Question is therefore a question of fact and not one of law. During oral submissions, the Applicant appeared to change his position. He clarified that Parthiban merely suggested that it is good practice for an ancillary hearing to be held when the accused challenges the accuracy of his statements. Hence, in arguing for the same to be a mandatory legal requirement, his position went beyond that in Parthiban. His clarification therefore meant that his submission was not even supported by Parthiban itself. There was no other authority cited to us in support. Accordingly, we do not see how the Applicant’s subsequent and more difficult position has any legal support at all.

Subsequently, the Applicant sought to rely on a slew of other authorities in his further written submissions tendered after the hearing. With respect, on the face of those authorities, they plainly do not assist the Applicant’s case and we see no need to address them.

However, since the parties have submitted on the substance of the observations in Parthiban (at [29]–[38]), we shall turn to address them briefly although, as already observed (at [73] and [74]), they were made by way of obiter dicta.

As noted above, the court in Parthiban suggested three reasons in support of convening an ancillary hearing when the accuracy of an accused person’s statement is challenged.

First, illus (a) to s 279(1) of the CPC provides that when it is claimed that a tape recording sought to be admitted has been tampered with, an ancillary hearing must first be held to determine the admissibility of that recording. The court suggested that, analogously, an ancillary hearing should be called to determine admissibility where: (a) the written statement sought to be admitted by the Prosecution has been wrongly or erroneously translated or recorded; or (b) the written statement as recorded is not the accused’s statement but a statement that, unknown to him at the time of penning his signature on various parts of the statement, has been fabricated by the recording officer.

In our view, tampering with a tape recording is more analogous to a serious procedural irregularity in the recording of a written statement. An allegation of such tampering would almost certainly involve issues such as whether the chain of custody was broken and how the alleged tampering was effected. According to Kadar at [64], it is uncontentious that an ancillary hearing must be called in these circumstances to determine if the court should exercise its exclusionary discretion. This legal context is distinct from that where the accuracy of the accused’s written statement is challenged.

Second, the court reasoned that on the authority of Haw Tua Tau and others v Public Prosecutor [1981–1982] SLR(R) 133 (“Haw Tua Tau”), until an ancillary hearing is called to determine the accuracy of the accused’s statement, it should not be considered as part of the Prosecution’s evidence from which the court will decide whether the accused is to be called upon to enter his defence.

The Privy Council in Haw Tua Tau stated as follows (at [17]):

It is apparent to us, however, that the Privy Council simply stated that the court must assume provisionally that the Prosecution’s evidence is accurate at the close of the Prosecution’s case. This does not mean that the court determines definitively that the Prosecution’s evidence is accurate. Hence, the accused’s written statement (which forms part of the Prosecution’s evidence) can be challenged should the court call for the defence and the accused then elects to testify.

This leads to the third reason in Parthiban in support of calling an ancillary hearing to determine the accuracy of an accused’s written statement. The court reasoned that if issues of accuracy and/or authenticity of the accused’s statement were to be canvassed only during the main trial, the accused would not have the opportunity to give evidence on oath to challenge the accuracy and/or authenticity of the statements until after his defence is called and he decides to testify on oath. Hence, accused persons who do not wish to testify would be prejudiced.

We are therefore of the view that the observations in Parthiban do not assist the Applicant in any case.

Leave should not be granted

For the above reasons, save in respect of Question 1(a), the application to refer the Questions to this court under s 397(1) of the CPC can, as a whole, be dismissed on the basis that they are not questions of law but of fact. While Question 1(a) is a question of law, it is not one of public interest. In addition, Questions 2(b) and 2(c) do not arise from the proceedings below and do not affect its outcome.

Costs

Section 409 of the CPC provides as follows:

In Huang Liping v Public Prosecutor [2016] 4 SLR 716 at [23], this court clearly sounded the warning bell for unmeritorious applications under s 397(1) of the CPC:

For the reasons we have given above and summarised at [87], the present application for leave was entirely without merit. Furthermore, we also highlight the following ill-founded attempts at conjuring up or inventing questions of law where none existed:

(a) Despite the Applicant’s late amendments to Questions 1(b) and 1(c), Question 1(c) was a mere rephrasing of Question 1(b) and its very phrasing showed that it was a question of fact;

(b) Question 2 mostly relied on hypothetical facts in an attempt to re-litigate findings of fact;

(c) Question 2(b) was not even a question at all; and

(d) the Applicant sought to refer the Additional Question through a late oral application and properly understood, his own position implied that this question was one of fact.

Conclusion