Ong Boon Kheng v Public Prosecutor

[1] By this application, the applicant seeks an order that the following six questions of law be reserved for the decision of the Court of Appeal pursuant to s 60 of the Supreme Court of Judicature Act (“SCJA”) (Cap 322, 2007 Rev Ed):

[2] The applicant was convicted on four charges under the Securities and Futures Act (Cap 289, 2002 Rev Ed) by Specialist District Judge Tan Cheng Han (“the DJ”) after a trial in the Subordinate Courts. The charges were as follows:

[3] The factual background to these charges is set out very briefly here. For its financial year (“FY”) 2004, Informatics Holdings Limited (“the company”) recognised revenue from various sources which resulted in inflated amounts of revenue announced on MASNET in the first three quarters of that FY. On 14 April 2004, the company issued a profit warning on MASNET, the material terms of which are set out in the fourth charge above. The trading of the company’s shares was suspended for 3 weeks after the profit warning. The applicant was at the material times the Chief Executive Officer of the company.

[4] The prosecution led evidence pertaining to the four charges. At the close of the prosecution’s case, there were discrepancies in the amounts of overstatement alleged in the first three charges. The applicant submitted that it was not the duty of the defence to explain the discrepancies. The applicant argued that the Court of Appeal in Ng Theng Shuang v PP [1995] 2 SLR 36 did not reflect correctly the test in the Privy Council decision of Haw Tua Tau v PP [1980-1981] SLR 73 (“Haw Tua Tau”) and invited the DJ to re-visit the “minimum evaluation of the evidence” test mentioned in the Court of Appeal’s judgment (at page 41). The applicant also argued that the prosecution had to prove beyond reasonable doubt the predicate offences of the company alleged in the first three charges at the close of the prosecution’s case.

[5] The DJ applied the test laid down in Haw Tua Tau as expounded by subsequent local case law and called upon the applicant to enter on his defence in respect of all 4 charges. The applicant elected not to testify and not to call any witnesses on his behalf. After due consideration of the evidence and the submissions, the DJ found the applicant guilty and convicted him on all four charges (see the grounds of decision at [2008] SGDC 3). However, in respect of the second and third charges, the DJ came to the conclusion that the respective amounts of overstatement were lower than the figures stated in those charges. The DJ accepted the evidence of the prosecution witness from Price Waterhouse Coopers and found that the amounts should be $6.18m for the second charge and $1.24m for the third charge. The DJ added (see [88] of his grounds of decision):

[6] When the DJ was asked by defence counsel subsequent to the delivery of judgment whether he would be amending those two charges to reflect the lower figures, the DJ said that if it was necessary to amend, then he should treat them as amended. However, he did not think that it was necessary to amend the charges as they stood. Defence counsel explained to the DJ that he was seeking clarification on whether the said charges were amended to the lower amounts for the purpose of the mitigation plea. The DJ then responded (at page 3556 of the record of appeal):

It appears from the record of proceedings therefore that the DJ did not amend the two charges in question.

As noted in the course of arguments, the thrust of the defence in respect of the first three charges was that there was no overstatement of revenue and profit by the company and that it had therefore not made any misleading statement. The lower amounts found by the DJ were still (in his words) “substantial amounts”. Whether the amounts were found to be $6.18m and $1.24m respectively instead of the alleged $8.78m and $1.54m, the defence would have remained the same. The applicant was also aware of the different amounts adduced in evidence. It should be noted too that the first three charges alleged only approximate and not exact amounts, as indicated by the use of the word “about” and that the amounts in the two charges in issue were in fact lowered rather than increased. I therefore held that the said procedural flaw (see s 180(h) and (i) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed)) (“CPC”) did not occasion a failure of justice and did not justify the overturning of the convictions (see s 396 of the CPC). Where the fourth charge was concerned, the thrust of the defence was that the key prosecution witnesses had testified that the statement made by the company was not misleading and that the prosecution had therefore failed to make out a case which, if unrebutted, would warrant the applicant’s conviction. This was essentially a finding of fact by the DJ. On all four charges, the DJ gave sound, detailed reasons for finding the applicant guilty and I saw no reason to disagree with him.

[9] Following the dismissal of the MA, the applicant took out this Criminal Motion as set out in [1] above.

[10] Section 60 (1) and (5) of the SCJA state:

It is not in dispute that to come within the ambit of this section, the applicant must satisfy the following conditions:

The applicant also accepts that since this application is not by the Public Prosecutor, the court retains the discretion whether or not to reserve any questions for the decision of the Court of Appeal, even if they satisfy all the conditions prescribed in s 60 SCJA (see, for instance, Ong Beng Leong v PP (No. 2) [2005] 2 SLR 247).

[11] The applicant contends that the six questions posed (see [1] above) are undoubtedly questions of law and not of fact which were raised before the DJ and in the MA. The first four questions are connected in that they relate to the exercise of the trial judge’s duty to evaluate the prosecution’s evidence in relation to the burden of proof and the exercise of the court’s powers at the close of the prosecution’s case. They also concern the amendment of charges at the close of the prosecution’s case, the application of the principles in Haw Tua Tau as developed in our local authorities and the burden of proof on an accused person. The applicant also submits that the fifth and sixth questions refer to the issue of drawing an adverse inference by reason only of the fact that an accused person has elected to call no evidence and to the amendment of charges before the court finds an accused guilty. It is said therefore that all six questions concern the construction and application of ss 163 to 167 and 180 of the CPC.

[12] As I said at the conclusion of the hearing of this Criminal Motion:

In my view, the applicant is merely seeking to re-argue his case before another forum under the guise of an application under s 60 SCJA.

[13] Chan Sek Keong J (as he then was) in Abdul Salam bin Mohamed Salleh v PP [1990] SLR 301 at 311 B (“Abdul Salam”) gave clear guidelines concerning the scope of s 60 SCJA (which was then worded slightly differently from the current version but not materially so for the present purpose):

All the legal posers raised by the applicant can be answered by reference to case law and applying them to the facts of the case, as the DJ has done.

[14] It takes only a little ingenuity to re-cast what is a straightforward, commonsensical application of principles of law to the relevant facts into an apparent legal conundrum which seemingly calls for determination by the highest court of the land. I cautioned against this where Constitutional law issues are concerned in the context of s 56A of the Subordinate Courts Act (Cap 321, 2007 Rev Ed) in Johari bin Kanadi and another v PP [2008] 3 SLR 422 at [9]. I think the courts should be astute to sieve out appeals dressed in s 60 SCJA disguise.

[15] As the questions of law posed in this application do not satisfy the criterion of public interest, I dismissed this Criminal Motion. The applicant has appealed to the Court of Appeal by way of Criminal Appeal No. 10 of 2008 against the dismissal.

[16] As I understand it, no appeal lies against the High Court’s refusal to reserve questions of law under s 60 SCJA. This is borne out by the then Court of Criminal Appeal’s (“CCA”) decision in Wong Hong Toy and another v PP [1986] 1 MLJ 453. In that case, the appellant appealed against the refusal of Wee Chong Jin CJ to reserve for the decision of the CCA nine questions of law which arose in the course of six Magistrates’ Appeals from the subordinate courts heard by the said Chief Justice. The appeal turned on the statutory construction of the then s 44(1) of the SCJA which provided that:

The CCA held (at 457) that the refusal to reserve the questions of law was not a decision made in the exercise of the High Court’s original criminal jurisdiction because it was a decision made after the conclusion of an appeal to the High Court in the exercise of its appellate criminal jurisdiction.

[17] The appellants in that case then petitioned the Privy Council for special leave to appeal to the Privy Council (which was the highest appellate court before the Judicial Committee Act (Cap 148, 1985 Rev Ed) was repealed in 1994). Leave was refused on 6 March 1986 (see Abdul Salam at 306 I).

[18] Although the SCJA has undergone changes since the decision of the CCA in that case, the present s 29A(2) is still materially the same as the former s 44(1). Section 29A(2) states:

[19] Similarly, although s 60 SCJA has also seen some changes (in 1998) since the CCA’s decision, it is still essentially the same as the previous provision. As pointed out in Ng Ai Tiong v PP [2000] 2 SLR 358 at [8]:

[20] The legal position that no appeal lies against the High Court’s refusal to reserve questions of law under s 60 SCJA was acknowledged by the Privy Council in JB Jeyaretnam v Law Society of Singapore [1988] 3 MLJ 425 at 432 D (left hand column).

[21] Recently, the Court of Appeal held that a Criminal Motion heard by the High Court in respect of matters arising out of an ongoing trial in the Subordinate Courts is also not an exercise of original criminal jurisdiction within the meaning of s 29A of the SCJA but was instead an exercise of revisionary jurisdiction. Accordingly, there could be no appeal against the decision of the High Court in the Criminal Motion because the Court of Appeal did not have the requisite appellate jurisdiction to hear it (see Ng Chye Huey and another v PP [2007] 2 SLR 106 at [58] to [61]).