Chua Yi Jin Colin v Public Prosecutor

[4] I now provide fuller grounds for my decision.

[6] Sections 7(3) of the SCA provides as follows:

[10] The 11th victim subsequently changed her mind and supported the disclosure of the applicant’s identity. The Prosecution also withdrew four of the charges under s 509 of the PC, one of which pertained to the 12th victim. There were no other charges involving the 12th victim.

[16] In respect of the two preliminary objections raised by Mr Murugaiyan, the Prosecution submitted that District Judge Tan had plainly acted within his jurisdiction in entertaining the Second Application. Furthermore, the Prosecution contended that the alternative to setting out the victims’ views on the disclosure of the applicant’s identity in victim impact statements – namely, by setting out those views in affidavits – would have been considerably less efficient. The Prosecution added that, in any event, the applicant was not prejudiced by the way in which the victim impact statements were used.

[18] The following issues arose for my determination:

(b) Second, were the victim impact statements used for their proper purpose? If this question was answered in the negative, what was the effect of such an irregularity?

(c) Third, are the victims’ views towards the disclosure of an accused person’s identity relevant under s 7(3) of the SCA?

[20] The procedural failing was therefore not fatal to this application. However, what was of greater consequence was that even though the purpose of this application was to persuade me to exercise my revisionary powers, Mr Murugaiyan did not identify the serious injustice that warranted the exercise of those powers. I consider this point in greater detail at [46]–[55] below.

[24] The “extended” doctrine of res judicata was likewise inapplicable. That doctrine is intended to limit duplicative litigation; it assumes relevance where it would be unjust for a party to argue a point that was not raised and therefore not decided in earlier proceedings between the same parties, even though the point could and should have been so raised (see Beh at [38(c)]). The Prosecution’s conduct in the State Courts could hardly be described as abusive or duplicative. Although the issue of the disclosure of the applicant’s identity was ventilated in both the First Application and the Second Application, the circumstances were materially different in both instances – it was only in the Second Application that all 11 victims expressed their support for the disclosure of the applicant’s identity. There was therefore no injustice in the Prosecution’s revisiting this issue and no reason why the Second Application would have been barred by the “extended” doctrine of res judicata.

[30] The next issue that I consider is whether the victim impact statements were the appropriate means for conveying to the court the victims’ stance on the disclosure of the applicant’s identity. Mr Murugaiyan submitted that the victim impact statements had been impermissibly used for that purpose when they should only have been used to convey, at sentencing, the harm that the victims had suffered due to the applicant’s offences.

[31] I broadly agreed with Mr Murugaiyan that the victim impact statements should not have been used to convey the victims’ stance on the disclosure of the applicant’s identity. Victim impact statements are only relevant to the Prosecution’s address on sentence, and their sole purpose is to allow victims to convey to the court any harm that they have suffered as a direct result of an offence (see ss 228(2)(b) and 228(7) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”)). They should be strictly confined to this purpose, lest they serve as a backdoor for the Prosecution to adduce otherwise inadmissible or irrelevant evidence (see R v Dowlan [1998] 1 VR 123 at 140; Kow Keng Siong, Sentencing Principles in Singapore (Academy Publishing, 2009) at paras 17.013 and 17.015). I therefore indicated at the hearing that the Prosecution should have conveyed the victims’ stance towards the disclosure of the applicant’s identity by way of affidavits rather than victim impact statements. The Prosecution did not dispute this point.

[33] Having disposed of Mr Murugaiyan’s preliminary objections, I now turn to the central issue in this application. The parties were on common ground that the starting point of my analysis was the principle of open justice. This principle is enshrined in s 7(1) of the SCA, which states: “The place in which any State Court is held shall be deemed an open and public court to which the public generally may have access.”

[34] Fundamental to the principle of open justice is the notion that justice must not only be done but must also be seen to be done (see Millar v Dickson [2002] 1 WLR 1615 at 1639). There are two key reasons why justice cannot be hidden from the public eye and ear. First, the public administration of justice promotes transparency and “provides a safeguard against judicial arbitrariness or idiosyncrasy” (see Attorney-General v Leveller Magazine Ltd and others [1979] 2 WLR 247 (“Leveller”) at 252). Open justice is thus central to the rule of law because it “keeps the judge, while trying, under trial” (see The Works of Jeremy Bentham vol 4 (William Tait, 1843) at pp 316–317). Second, by enabling the public to witness the operation of the rule of law, open court proceedings safeguard public confidence in the judicial system and dampen the desire for recourse to vigilante justice (see the Honourable Justice Stephen Hall, Judge of the Supreme Court of Western Australia, “Open Justice – Seen to be Done”, keynote address at the Fremantle Law Conference (19 February 2021)).

[35] In the context of criminal proceedings, the principle of open justice means that accused persons are publicly tried, the verdict of the court is publicly announced, and the reporting of ongoing proceedings is permitted so long as it does not prejudice the proper administration of justice (see Singapore Parliamentary Debates, Official Report (14 May 2012) vol 89 at p 188 (K Shanmugam, Minister for Law) (“the 2012 Parliamentary Debates”); Singapore Parliamentary Debates, Official Report (10 May 2021) vol 95 (K Shanmugam, Minister for Law) (“the 2021 Parliamentary Debates”)). Such is the importance of the public interest in open justice that the law permits the publication of an accused person’s identity, despite the risk that he will suffer considerable reputational damage even if acquitted (see the 2012 Parliamentary Debates at p 188).

[40] Other victims felt helpless that they could not warn their family and friends of the applicant’s predatory conduct, which only served to exacerbate their guilt and anguish. Another victim painfully recounted as follows:

[45] For these reasons, I held that District Judge Tan rightly took into account the victims’ unanimous consent to the disclosure of the applicant’s identity in allowing the Second Application. As I elaborate below, the victims’ stance strongly militated in favour of the disclosure of the applicant’s identity.

[48] All 11 victims were in favour of disclosing the applicant’s identity, despite the concomitantly heightened risk of their identification. There was nothing that suggested that their decision was the result of coercion or that they did not fully understand the implications of their decision. On the contrary, they compellingly detailed their reasons for supporting such disclosure. One victim articulated her helplessness at being legally precluded from warning other women about the applicant’s predatory conduct in the following terms:

[49] In the same vein, another victim stated as follows:

[52] As his final salvo, Mr Murugaiyan argued that the applicant’s identity ought to remain suppressed because the 12th victim did not consent to the increased risk of identification. He submitted that her interests merited consideration even though the charge involving her had been withdrawn before the applicant had pleaded guilty.