Public Prosecutor v Li Weiming and others

1. V K Rajah JA (delivering the judgment of the court):

2. [1]

   [1] This is a criminal reference filed by the Public Prosecutor (“PP”), referring four questions of law of public interest to this court. They relate to the operation of the Criminal Case Disclosure Conference (“CCDC”) regime contained in contained in the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC 2010”). These questions of law arose from the decision of the judge (“the Judge”) in Li Weiming v Public Prosecutor and other matters [2013] 2 SLR 1227 (“the GD”). While the questions essentially pertain to issues of criminal process, they raise matters of considerable importance in the administration of criminal justice. It has been rightly stated that “[t]he criminal process is at the heart of the criminal justice system. It is not only a subject of great practical importance; it is also a reflection of our ideals and values as to the way in which we can accord justice to both the guilty and to the innocent” (see Chan Sek Keong, “The Criminal Process – The Singapore Model” (1996) 17 Sing Law Rev 433 at 433).

3. Background facts

4. [2]

   [2] The background to the four questions of law referred to us by the PP is set out below in a condensed account of the material facts and the earlier proceedings. In this judgment, we adopt the term “PP” to refer to the applicant in the present case, and the term “Prosecution” to refer more generically to the Public Prosecutor.

5. [3]

   [3] The first respondent Li Weiming (“Li”) was an employee of ZTE Corporation (“ZTE”), a company headquartered in Shenzhen, China, and listed on the Shenzhen Stock Exchange and the Hong Kong Stock Exchange. ZTE is a large vendor of information technology and telecommunications equipment. Li was posted to the Singapore office of ZTE in early 2008 and was appointed ZTE’s chief representative for Brunei, Papua New Guinea and the South Pacific Islands from December 2010. In 2010, the Papua New Guinea government awarded ZTE a $35m contract for a community college programme (“the Project”). A British Virgin Islands company, Questzone Offshore Pte Ltd (“Questzone”), was allegedly set up for the purpose of receiving commissions from ZTE for the award of the Project. Lim Ai Wah (“Lim”), the second respondent, was a director of Questzone and her husband Thomas Philip Doehrman (“Doehrman”), the third respondent, assisted the Papua New Guinea government under a trust for the Project. Lim’s sister, one Lim Swee Kheng, is the only other director of Questzone. The respondents all participated in the negotiations which led to the award of the Project to ZTE.

6. [4]

   [4] On 25 July 2012, the respondents were each charged with six charges. The six charges comprised a single charge of conspiracy to falsify accounts under s 477A read with s 109 of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”) (“the s 477A Charge”) and five charges of acquiring, possessing, using, concealing or transferring benefits of criminal conduct under s 47(1)(b) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) (“the CDSA Charges”).

7. [5]

   [5] The s 477A Charge against Li states in full:

8. The s 477A Charges against Lim and Doehrman are identical in all material aspects. The CDSA Charges relate to five payments made from Questzone’s bank account, viz, two cheques issued to a bank account in Singapore and three remittances to a bank account in Hong Kong. The respondents purportedly conspired to disburse these monies from Questzone’s account, which represented the benefits derived from the criminal conduct alleged in the s 477A Charge.

9. [6]

   [6] On 13 September 2012, the PP filed and served the Case for the Prosecution on the respondents individually, pursuant to a direction made at the initial CCDC under s 160 of the CPC 2010. Each Case for the Prosecution contained copies of the s 477A Charge and the CDSA Charges, a list of witnesses, a list of exhibits, statements of the person charged which the PP intended to use as part of his case, and a summary of facts.

10. [7]

    [7] The summary of the facts supporting the s 477A Charge (“the Summary of Facts”) is set out in full below as the details and particulars contained therein – or rather the absence of – formed the gravamen of the respondents’ complaints:

11. [8]

    [8] Counsel for respondents subsequently informed the presiding judicial officer at a further CCDC that the Summary of Facts did not contain sufficient facts relating to the s 477A Charge. More precisely, it was claimed that the Summary of Facts did not particularise (a) the identity of the person allegedly defrauded, (b) the reasons why the subcontract was fictitious, and (c) the roles of each respondent and the acts committed pursuant to the conspiracy. The respondents then filed applications seeking further particularisation of the Summary of Facts or a discharge not amounting to an acquittal (“DNAQ”) pursuant to s 169(2) of the CPC 2010.

12. [9]

    [9] The application was dismissed by a district judge (“the District Judge”), who ruled that the Summary of Facts tendered in the Case for the Prosecution sufficed to meet the requirements of s 162(b), ie, a summary of the facts in support of the charge. The District Judge nevertheless observed that the application for particulars had some merit, but that these issues should be deferred to the trial judge.

13. [10]

    [10] The respondents proceeded to file petitions for revision pursuant to s 404 of the CPC 2010 (vide Criminal Revision Nos 24, 25 and 26 of 2012), seeking an order from the High Court that a DNAQ be granted or that the Prosecution furnish three categories of particulars (see [8] above) with respect to the Summary of Facts. The Judge allowed the petition in part.

14. The decision of the Judge

15. [11]

    [11] The Judge considered (at [27] of the GD) that where an application for revision of an order made during a CCDC was brought before the High Court, the consequences under s 169 of the CPC 2010 for non-compliance with the mandatory contents of the Case for the Prosecution were not exhaustive; the High Court’s revisionary powers under s 404 were widely framed and could not be limited to the remedies available to the presiding judicial officer under s 169. The argument that recourse for deficient particulars should be deferred to the trial judge detracted from the purpose of pre-trial discovery and if the court were limited to the options in s 169, curial supervision over the CCDC process would be rendered anaemic (at [28] of the GD). The High Court therefore had the jurisdiction to order the PP to provide further particulars where the summary of facts was deficient.

16. [12]

    [12] The Judge then held (at [32] of the GD) that the omission of key particulars in the summary of facts constituted a failure under s 169(1)(b) of the CPC 2010 to provide “part of the items specified in section 162” and observed that the summary of facts ought to offer further notice and clarity of the case that the accused has to answer by way of elaboration, instead of merely replicating the charge.

17. [13]

    [13] With respect to the contents of the Summary of Facts that was tendered in support of the s 477A Charge, the Judge was of the view (at [45] of the GD) that the PP had to present a specific case as to the nature of the accused’s fraudulent intention, including the person who was the object of the fraudulent intention. The explanatory note to s 477A did not provide a categorical general exemption from the requirement to specify the particular individual intended to be defrauded (at [46] of the GD). The Judge thus held that in order for the Summary of Facts to be in support of the charge, particulars of (a) the party whom the accused persons had allegedly conspired to defraud and (b) the reasons why the subcontract between ZTE and Questzone was allegedly fictitious had to be provided (at [47] of the GD), and ordered the PP to do so accordingly.

18. The four questions of law of public interest

19. [14]

    [14] After the Judge gave his decision, the PP applied by way of a criminal reference to refer the following four questions of law to this court:

20. (a) Does s 169 of the CPC 2010 set out comprehensively and exhaustively all the available consequences for alleged non-compliance with the criminal case disclosure procedures in the Subordinate Courts under Division 2 of Part IX of the CPC 2010? (“Question 1”)

21. (b) If the answer to (a) is negative, does the Magistrate or District Judge who presides over a CCDC have the power to order the Prosecution to furnish additional particulars in the summary of facts in support of the charge filed and served as part of the Case for the Prosecution? (“Question 2”)

22. (c) If the answer to (b) is positive, where the Magistrate or District Judge who presides over a CCDC has refused to order that the Prosecution furnish additional particulars in the summary of facts in support of the charge filed and served as part of the Case for the Prosecution, what is the legal threshold that needs to be crossed before the High Court should exercise its revisionary jurisdiction pursuant to s 404 of the CPC 2010 in respect of such refusal? (“Question 3”)

23. (d) Can the Prosecution be ordered to provide facts in relation to a specific intent to defraud for a charge under s 477A of the Penal Code in the summary of facts in support of the said charge that was filed and served as part of the Case for the Prosecution under s 161(2) of the CPC 2010 where the Explanation to s 477A of the Penal Code specifically provides that it shall be sufficient in any charge under the said section to allege a general intent to defraud without naming any particular person intended to be defrauded? (“Question 4”)

24. A preliminary threshold issue: reference of a question of law of public interest by the PP

25. [15]

    [15] Before answering the questions referred to this court, we first consider the respondents’ preliminary objection to the PP’s application. There are four cumulative requirements specified in s 397(1) of the CPC 2010 (see Mohammad Faizal bin Sabtu and another v Public Prosecutor and another matter [2013] 2 SLR 141 (“Mohammad Faizal”) at [15]; Bachoo Mohan Singh v Public Prosecutor and other applications [2010] 1 SLR 966 at [29], dealing with the repealed s 60 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”), which was the precursor provision to s 397):

26. (a) the determination by the High Court of a criminal matter must have been in the exercise of its appellate or revisionary jurisdiction;

27. (b) the question of law must be a question of law of public interest;

28. (c) the question must have arisen in the matter; and,

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

30. [16]

    [16] The respondents submitted that for a question to be referred to the Court of Appeal pursuant to s 397(1) of the CPC 2010, the PP had to satisfy the court that the question had “arisen in the matter and the determination of which by the Judge [had] affected the case”, and argued that the four questions referred by the PP did not satisfy this requirement. In particular, counsel for the respondents submitted that the determination by the Judge of the four questions of law had not affected the case as the matter determined in the criminal revision before the Judge was not in the nature of a final judgment or sentence.

31. [17]

    [17] This court recently considered the same argument in Public Prosecutor v Goldring Timothy Nicholas and others [2013] SGCA 59 (“Goldring Timothy Nicholas”) and it suffices for us to set out the conclusions at [25]–[26]:

32. [18]

    [18] Therefore, although the PP does not have to satisfy all the requirements in s 397(1) of the CPC 2010 to refer a question of law of public interest to this court, we will nevertheless still consider whether these requirements are satisfied in deciding whether we ought to exercise our substantive jurisdiction under s 397 to answer the four questions referred to us by the PP. Counsel for Lim and Doehrman confined their submissions to requirement (d) (see [15] above), arguing that it was not satisfied because the decision of the Judge had not affected the outcome of the criminal matter against each respondent, which had yet to go to trial. Reliance was placed on the following passages in Mohammad Faizal (at [26]–[27]) for the broad proposition that a decision could only affect the outcome of a matter where a formal judgment or sentence had been passed:

33. [19]

    [19] The facts in Mohammad Faizal are unique and the purported principle of general application that counsel attempted to distil from this case should not be taken out of context. Mohammad Faizal involved two accused persons who had been charged with the consumption of morphine under s 8(b)(ii) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”) and were liable for enhanced punishment under s 33A of the MDA. Both accused persons brought applications to state a question of law to the High Court pursuant to the case stated procedure in s 395 of the CPC 2010 with respect to the constitutionality of s 33A of the MDA. The High Court answered the stated questions, and the accused persons made subsequent applications under s 397 to refer the same questions of law to the Court of Appeal. It was in this context that this court made the observations in the preceding paragraph that no decision had been rendered by the trial court in respect of the charges against the accused persons and no judgment or sentence had been passed; all that the High Court had done was to answer the questions stated as a matter of law without making any determination on the facts.

34. [20]

    [20] We do not think that this court intended to lay down any rigid proposition of law in Mohammad Faizal that the determination of the High Court must be a final judgment or sentence on the substantive merits before it can be construed as having “affected the outcome of the case”, and the above remarks certainly do not support such a wide proposition. In our judgment, what is necessary is that the answer to that question of law had been one of the grounds or bases upon which the High Court had decided the matter or issue before it. This is clear from the wording of s 397(1), which refers to the determination of the question which has “affected the case”, ie, the criminal revision or appeal heard by the High Court. It is not necessary that the determination of the question should have had an additional impact on the merits of the final decision or the sentence in respect of the charges against the accused.

35. [21]

    [21] Although the four questions of law referred to us in the present criminal reference were not directly answered in the course of the proceedings below, we are of the view that they clearly affected the result of the criminal revisions before the Judge:

36. (a) Question 1 would have affected the order made by the Judge to grant particulars as the Judge would not have had powers to do so had he determined that s 169 exclusively and exhaustively prescribed the consequences of non-compliance with the CCDC procedures.

37. (b) Question 2 would have affected the order made by the Judge as a Judge may affirm, vary or set aside any of the orders made by the presiding judicial officer at a CCDC on revision, but the presiding judicial officer would not be able to make the requisite orders to give effect to the High Court’s decision or order under s 404(5) if the District Court or Magistrate Court had no power to do so. By implication, the Judge may have determined that he had no power to order particulars if he had decided this question in the negative.

38. (c) Question 3 would have affected the order made by the Judge as the Judge may have been constrained in making the order if he had considered that a particular threshold for intervention applied to an application for criminal revision under s 404 of the CPC 2010.

39. (d) Question 4 would have affected the order made by the Judge as the Judge may not have made the order for particulars if he had determined that he was not entitled to do so as the only mens rea necessary for a charge under s 477A was a general intent to defraud.

40. [22]

    [22] Accordingly, we see no reason to decline to exercise our substantive jurisdiction under s 397 to answer these four questions.

41. The CCDC regime

42. The statutory framework

43. [23]

    [23] The sequential progression of the statutory CCDC framework can be summarised briefly as follows:

44. (a) Pursuant to s 159 of the CPC 2010, the CCDC procedure applies to an offence specified in the Second Schedule and which is to be tried in a District Court. The accused may inform the court that he wishes to opt out of the CCDC procedures (s 159(2)).

45. (b) If the accused refuses to plead or claims trial, the court will direct the Prosecution and the accused to attend a CCDC for the purpose of settling, inter alia, the filing of the Case for the Prosecution and the Case for the Defence (ss 160(1) and 161(1)).

46. (c) The Prosecution is required to file and serve the Case for the Prosecution, not later than two weeks from the date of the first CCDC (s 161(2)), containing a copy of the charge, a summary of the facts in support of the charge, a list of names of witnesses for the Prosecution, a list of exhibits that the Prosecution intends to admit in evidence at trial and statements of the accused that the Prosecution intends to adduce in evidence at trial (s 162).

47. (d) After the Case for the Prosecution is filed, the court may fix a date for a further CCDC (s 161(4)). If the accused does not indicate that he wishes to plead guilty at this further CCDC, the accused will then be required to file and serve the Case for the Defence not later than two weeks from the date of the CCDC (s 163(1)), containing a summary of the defence to the charge and facts in support of the defence, a list of names of witnesses for the Defence, a list of exhibits that the Defence intends to admit in evidence at trial, and a statement of the nature of any objection to the Case for the Prosecution, if any, which identifies the issues of fact or law in dispute (s 165).

48. (e) Following the service of the Case for the Defence, the Prosecution must, within two weeks, serve on the accused copies of all other recorded statements of the accused in relation to the charges which the Prosecution intends to proceed with, the documentary exhibits which will be adduced as evidence and any criminal records (“the Prosecution’s Supplementary Bundle”) (s 166(1)). Service of the Prosecution’s Supplementary Bundle is only mandatory if the Case for the Defence has been filed and served (s 166(2)(a)).

49. (f) The court may fix another CCDC after the service of the Case for the Defence and the Prosecution’s Supplementary Bundle (s 163(2)). If the accused indicates that he does not wish to plead guilty at this CCDC, the court may fix a date for trial (s 167).

50. The legislative purpose underpinning the CCDC regime

51. [24]

    [24] The CCDC regime was introduced by the CPC 2010 and was warmly heralded by the legal community as a watershed in the move towards greater procedural fairness and transparency in the criminal justice system. Prior to this there was no procedure in place for the reciprocal exchange of information and evidence in criminal cases. The Minister for Law (“the Minister”), set out the basic paradigm for the new CCDC procedures in his introductory speech at the Second Reading of the Criminal Procedure Code Bill (Bill No 11 of 2010) (“the Bill”) (see Singapore Parliamentary Debates, Official Report (18 May 2010) vol 87 (“18 May 2010 Parliamentary Debates”) at cols 413–414 (K Shanmugam, Minister for Law)):

52. [25]

    [25] During the public consultations and parliamentary debates over the Bill, members of the criminal bar and Members of Parliament expressed concerns that the proposed statutory disclosure obligations on the part of the Prosecution were not sufficiently extensive, but there was little objection to the quid pro quo nature of the sequential CCDC procedures. The CCDC regime creates a formalised system of reciprocal disclosure that imposes obligations on both the Prosecution and accused to reveal aspects of their cases and the evidence that each party intends to rely on at the pre-trial stage. This framework is an adaptation of the existing discovery framework in civil litigation and seeks to balance both the interests of the Prosecution in the effective functioning of the criminal justice process and the interests of the accused in preparing adequately for trial.

53. [27]

    [27] An understanding that the CCDC procedures were consciously envisaged as a model of reciprocal discovery, which serves a commonality of interests and seeks a fair equilibrium between the rights of the Prosecution and the accused, informs the analysis below of the questions posed to this court.

54. Question 1

55. [28]

    [28] The statutory consequences for failure to comply with the CCDC procedures relating to the Case for the Prosecution or the Case for the Defence (collectively the “Cases”) are prescribed in s 169 of the CPC 2010:

56. Under s 169, the powers of the court to draw inferences as it thinks fit or to order a DNAQ are permissive, not mandatory. The available sanctions are as follows:

57. (a) If the Prosecution fails to comply with ss 161 or 162, the court may draw inferences as it thinks fit at trial under ss 169(1)(a) or 169(1)(b) or order a DNAQ under s 169(2).

58. (b) If the accused fails to comply with ss 163 or 165, the court may draw inferences as it thinks fit at trial under ss 169(1)(a) or 169(1)(b).

59. (c) If the Prosecution or accused put forth a case at trial that is inconsistent with their filed Cases, the court may draw inferences as it thinks fit under s 169(1)(c).

60. Parliamentary intent in the drafting history of s 169 of the CPC 2010

61. [29]

    [29] We first consider whether Parliament had intended for s 169 to exhaustively and comprehensively prescribe all the consequences for a failure by any party to comply with its statutory obligations under the CCDC procedures.

62. [30]

    [30] The PP submitted that s 169 sets out all the possible consequences for any alleged non-compliance with the CCDC procedures relating to the filing of Cases and the prescribed contents. The PP argued that the CCDC procedures created a formalised framework that was designed to address the complexities of discovery within the criminal context, and that the drafting history of the CPC 2010 supported the interpretation that Parliament had intended for s 169 to confer upon the court a limited and exclusive set of powers by statute to deal with non-compliance with the CCDC procedures. The respondents submitted that the relevant parliamentary debates during the second reading of the Bill demonstrated that the legislative intent was to leave a residual discretion for the court to fashion appropriate remedies when there was a failure to comply with the prescribed CCDC procedures.

63. [31]

    [31] When the draft Criminal Procedure Code Bill 2009 (“the Draft Bill”) was first issued for public consultation, the equivalent provisions to the present s 169 stated:

64. Notably, in the Draft Bill, if the Prosecution failed to comply with the requirements for the filing of the Case for the Prosecution or the Prosecution’s Supplementary Bundle, the only sanction available was for the court to order a DNAQ. Conversely, if the accused failed to comply with the requirements for the filing of the Case for the Defence or changed its case at trial, the court may draw inferences as it deemed fit. The sanction of an adverse inference was not available against the Prosecution.

65. [32]

    [32] In the Association of Criminal Lawyers of Singapore’s (“ACLS”) report on the Draft Bill (see Association of Criminal Lawyers of Singapore, Feedback on the Proposed Amendments to the Criminal Procedure Code (28 February 2009) (“the ACLS Report”)), the ACLS commented that although an adverse inference could be drawn against the accused if it amended the Case for the Defence, the Prosecution was not subject to the same limitation and could alter its position without adverse consequences, save for the possibility of a DNAQ. The ACLS suggested that this was inequitable and recommended that no adverse inferences should be drawn either way. It was also observed that the DNAQ was not a severe consequence as the Prosecution was entitled to resurrect the charge at any time (see para 36 of the ACLS Report). The provisions relating to consequences for non-compliance were subsequently amended in s 169 to extend the court’s powers to draw adverse inferences against both the accused and Prosecution at trial. It appears, therefore, that it was initially contemplated that only a pre-trial sanction in the form of a DNAQ would be available against the Prosecution, and the present CCDC procedures similarly provide no corresponding pre-trial remedy against the accused.

66. [33]

    [33] Subsequently, during the Second Reading of the Bill, a Member of Parliament, Mr Hri Kumar Nair, raised a query as to whether s 169 encompassed all the potential consequences for concealment of material evidence (see 18 May 2010 Parliamentary Debates at col 455):

67. The Minister responded that the Bill did not purport to exclusively define the full ambit of the discovery regime applicable to criminal proceedings (see Singapore Parliamentary Debates, Official Report (19 May 2010) vol 87 at col 564):

68. [34]

    [34] The respondents relied on the Minister’s remarks in support for the argument that Parliament evidently did not intend for s 169 to exhaustively and comprehensively set out the consequences of non-compliance within the context of the CCDC regime, given the multitude of fact patterns that may arise. The PP contended that these comments did not give rise to any indication that Parliament had intended for the courts to have a broad power to order disclosure of evidence, and that the Minister’s allusion to the deliberate suppression of evidence referred to a more general situation that went beyond non-compliance with the statutory obligations under the CCDC regime.

69. [35]

    [35] We agree with the PP that the Minister’s observations have to be read contextually, and this exchange in Parliament cannot support an inference that Parliament had unequivocally intended that the court would have an overriding discretion to impose additional consequences for failure to comply with the CCDC regime. The Minister’s response was clearly directed at a much broader duty of adequate disclosure, and not the specific question of the consequences for failure to comply with the statutory obligations under the CCDC procedures to disclose certain categories of information (ie, the Cases) or documents (ie, the Prosecution’s Supplementary Bundle). In Muhammad bin Kadar and another v Public Prosecutor [2011] 3 SLR 1205 (“Kadar”), this court referred to the same passage and observed that (at [103]):

70. Kadar thus acknowledged that where the CPC 2010 provisions on discovery did not expressly provide for certain aspects of discovery, the court’s residual powers – either through the application of existing common law rules or by the exercise of judicial discretion – were not superseded or circumscribed by the CCDC framework. The same reasoning does not apply when a formalised mode of discovery is mandated by statute. The presence of a statutory framework in relation to a particular subject matter, by definition, imposes certain strictures on the powers of the courts. The Minister’s comments do not provide conclusive support for the respondents’ contentions that s 169 was not intended to be exhaustive when the non-compliance relates to an obligation imposed by the CCDC procedures.

71. [36]

    [36] The PP also submitted that the issue of whether the courts ought to have discretion to give orders in respect of discovery had in fact been drawn to the attention of the drafters of the final Bill during the consultation process, who must by implication have declined to provide for such a power by omitting to include a provision to this effect. This argument was premised on a recommendation made in the Council of the Law Society’s Report on the Draft Bill (see Council of the Law Society, Report on the Draft Criminal Procedure Code Bill 2009 (17 February 2009) (“the Law Society Report”)) at para 4.19 that:

72. In the same paragraph and immediately following the cited passage, the Law Society Report made reference to cl 24 of the Draft Bill, which vested power to order the production of a document or other thing that was necessary or desirable for, inter alia, any investigation, trial or proceeding only in a police officer, and commented that the general power should always remain with the court. This is indicative of the context within which this recommendation was made.

73. [37]

    [37] Contrary to the PP’s contentions that Parliament had made the conscious decision not to provide for a general power of discovery, the Law Society’s recommendation was implemented in substance by s 235 of the CPC 2010, which vests in the court a power to direct the production of any document or thing necessary or desirable for the purpose of any inquiry, trial or proceeding. Under s 235(6), the court’s powers under s 235(1) are not exercisable by a court presiding over CCDC proceedings or pre-trial conferences. There was no equivalent provision in the Draft Bill. It appears to us that the Law Society had clearly recommended, and Parliament had responded accordingly, that the courts ought to have a wider power to order the disclosure or production of documents in the course of the substantive proceedings. The Law Society Report had not directly addressed the issue of whether courts had a general discretion to make directions on the filing of the Cases or interlocutory orders in the course of the CCDC procedures, and there is nothing to support the inference that the drafters had this in mind. We are therefore not persuaded by the PP’s argument that the drafters of the Bill must thereby be taken to have adopted the considered view that the consequences in s 169 were exhaustive and were the only orders that the court could make in CCDC proceedings. In any event, this court has, even in the situation envisaged by the Law Society, rejected an approach that regards the CPC 2010 as a self-contained code that implicitly abrogates the court’s common law powers to order the discovery of certain categories of documents where the CPC 2010 is silent (see generally, Kadar at [112]; Goldring Timothy Nicholas at [82]).

74. [38]

    [38] Pursuant to our direction to parties to furnish further submissions on how other jurisdictions have dealt with criminal discovery, the PP drew our attention to a number of jurisdictions with similar statutory frameworks for pre-trial disclosure involving the formal exchanges of information and submitted that it was highly instructive that in other jurisdictions, the power of the court to order particulars of a charge or a statutory summary or statement of facts – where available – was expressly conferred by statute. Parliament, therefore, must have been aware of the option of providing such a power but had declined to do so. We have some difficulty with this submission. First, as the PP correctly acknowledged, the existence of a statutory power of the court to order further particulars of a charge is not directly relevant to the present issue before the court. Sections 123–125 of the CPC 2010 set out requirements relating to the form of a charge as well as the details that must be contained in the charge in order to give the accused adequate notice of the offence he is charged with, and to the extent that these constitute the formal legal requirements that must be complied with in the framing of charges that initiate the process of prosecution, this is a prior procedural step that usually takes place before the criminal discovery process. Evidence of the practices of other jurisdictions with respect to the power to order particulars necessary to properly set out a charge is only of tangential assistance. Second, the jurisdictions relied on by the PP where the Prosecution is required to provide a summary of facts or a similar statutory statement of facts do not, as a general rule, have exhaustive statutory codes that contain a specific express power for the court to order particularisation of the facts. We note that the New South Wales Criminal Procedure Act 1986 (No 209 of 1986) (NSW) (“NSW CPC 1986”) contains general statutory powers for the court to order the disclosure of matters that are required to be disclosed or to make orders to resolve any dispute between the parties to criminal proceedings over the requirements for pre-trial disclosure (see ss 149E, 149F, 247V and 247X), but there is no express power for the court to order the provision of further information relating to the required statement of facts. Section 9(4)(d) of the (“UK CJA 1987”) gives the judge the power to order “any amendments of any case statement” (which includes the principal facts of the prosecution case) supplied by the Prosecution pursuant to an order under s 9(4)(a), and in R v Smithson [1994] 1 WLR 1052, the English Court of Appeal accepted that the judge could order amendments to the contents of the Prosecution’s case statement as part of the judge’s overall case management powers. The United Kingdom Criminal Procedure and Investigations Act 1996 (c 25) (UK) (“UK CPIA 1996”), as well as the Victorian Criminal Procedure Act 2009 (No 7 of 2009) (Vic) are silent on this. The overall picture emerging from this survey is a fragmented one, and the practice in other jurisdictions therefore provides inconsistent support for the PP’s contention that an express statutory power would generally have been provided for if the legislature had intended for the courts to be able to order further particularisation of the summary of facts.

75. [39]

    [39] We accept that the CCDC regime was not intended to create a code encompassing the entirety of each party’s disclosure obligations, but the nature of the present question is a much narrower one – whether statutorily prescribed consequences for the failure to comply with statutory obligations relating to disclosure were intended to be exhaustive and circumscribed. Although both sides have urged us to draw inferences from a patchwork of background material, it is not apparent from the drafting history of the Bill or the parliamentary debates whether Parliament had intended for the courts to retain some residual powers to manage the CCDC regime or had even turned its mind to this question. The material before us is equivocal.

76. A purposive interpretation of s 169

77. [40]

    [40] Before considering the scope of s 169, we make a preliminary observation on the general role of the presiding judicial officer at a CCDC. Section 160 mandates that a CCDC shall be convened for the purpose of settling pre-trial matters, and implicitly envisages that the presiding judicial officer may make directions to this end:

78. Upon our queries during oral arguments before us, the PP accepted that it was inherent in the CCDC regime that the courts must be entitled to qualitatively assess whether parties have complied with the statutory requirements for the filing of the Cases. After we directed parties to file further written submissions, the PP nuanced his position and submitted that after determining whether each party had complied with the respective statutory obligations, the court’s powers to deal with non-compliance were limited to the following: (a) invoking the consequences under s 169; (b) setting the matter down for trial under s 160(1)(e); or (c) adjourning CCDC proceedings pursuant to its general powers under s 238 to allow the defaulting party time to comply. The PP underscored this argument by submitting that the role of the court within the CCDC regime was essentially a “ministerial” one, confined to administering the procedures set down in the CPC 2010.

79. [41]

    [41] In our view, the role of the court at the pre-trial CCDC stage is not a purely administrative and mechanistic one that that is limited to overseeing the progress of the sequential CCDC procedures. Section 160 sets out a list of matters that may be settled at a CCDC, and the settling of these matters would inevitably involve the court giving incidental directions or orders. Quite apart from the statutory obligations under the CCDC procedures, it would be fanciful to contend that because there are no express statutory powers relating to the matters in ss 160(1)(b)–(d) (the court’s power to set a trial date under s 160(1)(e) is found in s 167), the court cannot give directions to the parties but can merely “encourage” the parties to settle these matters. Further, s 160(2) enjoins the court from making orders in the absence of a party if the order is prejudicial to that party. This is premised on the assumption that a CCDC court may make substantive orders relating to the matters set out in s 160(1). The High Court’s powers of revision over orders made at CCDC proceedings under s 404 of the CPC 2010 also necessarily presume that orders with substantive impact can and will be made in these proceedings. The CPC 2010 understandably did not institutionalise a rigid procedural framework or formal strictures with respect to the manner in which CCDC hearings should be conducted and the directions or orders that may be made by the presiding judicial officer, the legislature opting instead to leave this to the development of practice and discretion. We consider that it is entirely within the purpose of the overall CCDC regime that the presiding judicial officer assumes an active role in case management at the pre-trial stage to ensure that matters proceed expeditiously and that all material issues are placed before the trial judge. This necessitates some degree of discretion, and it would be entirely contrary to the aim of the CCDC regime if the judicial officer’s powers are limited to the scheduling of CCDC hearings so as to move the parties through each stage of the procedures and towards trial.

80. [42]

    [42] We now turn to consider whether s 169 should be construed as exhaustively enumerating all possible consequences of any failure by the Prosecution or the Defence to substantially comply with each party’s respective statutory obligations under ss 161–168.

81. [43]

    [43] The PP submitted that the plain words of s 169 only envisaged two possibilities if the Case for the Prosecution did not contain any or any part of the items specified in s 162: the drawing of an adverse inference at trial or the ordering of a DNAQ. Under the expressio unius est exclusio alterius principle of statutory interpretation, s 169 should thus be construed as delineating the scope of the possible consequences that may be imposed by the court. On a purposive construction of the overall CCDC framework, the limited range of remedies in s 169 was consonant with the sequential structure of the CCDC procedures, which provided in s 165(1)(d) that if an accused objected to “any issue of fact or law in relation to any matter contained in the Case for the Prosecution”, a statement of the nature of the objection should be included in the Case for the Defence. Any objections to deficiencies in the Case for the Prosecution should therefore be raised in the Case for the Defence and not through an independent application to further particularise the Case for the Prosecution. The CCDC regime thus contained an in-built procedure to address the respondents’ complaints in the present case, and a power to order particulars was not necessary.

82. [44]

    [44] The respondents took the position that allowing the court to make directions or orders for compliance would be in line with the purpose of achieving a fairer and more efficient trial by facilitating timely and transparent exchanges of information at the pre-trial stage. The PP’s interpretation of the CCDC regime as operating in a purely mechanistic fashion would frustrate the purpose of these procedures in facilitating proper pre-trial discovery, as there would only be a limited degree of court involvement at the pre-trial stage and any coercive powers could only be substantially invoked at trial.

83. [45]

    [45] The plain language of s 169 is silent on whether s 169 exhaustively defines all possible consequences of non-compliance with Division 2 of Part IX of the CPC 2010, which contains the CCDC procedures. The heading of s 169 states “Consequences of non-compliance with Division 2”, but s 169 only prescribes consequences for a failure to comply with ss 161, 162, 163 and 165. There are other obligations in Division 2, such as the duty of the Prosecution to file the Prosecution’s Supplementary Bundle under s 166 after the Case for the Defence is filed, for which there are no express consequences for non-compliance. The PP argued that s 169 should be interpreted with reference to the expressio unius principle, which is described in Francis Bennion, Bennion on Statutory Interpretation (LexisNexis, 5th Ed, 2008) as follows (at p 1254):

84. Accordingly, where a statute has set out defined consequences, it is presumed that the legislature has excluded other consequences or penalties.

85. [46]

    [46] An expansive reading of s 169 as being inclusionary – covering only examples of the consequences that may arise from non-compliance with the CCDC procedures – and not exclusionary cannot be correct. It would be an impermissible arrogation of powers for the CCDC court to order a DNAQ at its discretion should the Prosecution fail to serve its Case, and to this extent, we are in full agreement with the logical force of the Prosecution’s submissions. However, the boundaries of the application of the expressio unius principle must depend on the genus of the matters that are excluded by omission. This principle of statutory interpretation is a commonsensical one based on linguistic implication – in certain contexts, the absence of matters that fall within the same category that is covered by the provision may warrant an inference that these matters were deliberately excluded. This principle does not preclude other types of matters that were not within contemplation. Section 169 created sanctions for non-compliance to “to ensure that parties take discovery seriously” (see 18 May 2010 Parliamentary Debates at col 414), and this choice of sanctions represents a legislative balancing of the various policy implications relating to criminal discovery. The imposition of an additional layer of sanctions must therefore be excluded by implication. However, orders made by the court imposing sanctions are, in our view, qualitatively different from orders of the court that a party has not complied with his or her statutory obligations and directing measures that have to be taken for compliance.

86. [47]

    [47] The Judge drew a similar distinction between facilitating compliance with the criminal discovery process and consequences in the form of sanctions which flow from non-compliance with the same (at [29] of the GD) in reaching the conclusion that the High Court was not precluded by s 169 from invoking its powers under s 404 to ensure that the CCDC regime is effective in assisting the parties to prepare for trial. The PP submitted that this distinction was a distinction without a difference, as the existence of possible consequences for non-compliance in itself facilitated compliance. With respect, we do not agree that this is a mere technical distinction. Although the PP rightly observes that both types of orders are aimed at the same result of securing compliance with the statutory obligations, each involves a discrete legal procedural mechanism.

87. [48]

    [48] In R v Rochford [2011] 1 WLR 534, a case decided under the UK CPIA 1996, the trial judge found that the accused had failed to comply with his obligations under s 6A of the UK CPIA 1996. Section 11 of the same act provides for the consequences of the accused’s failure to comply with his obligation to file a defence statement under s 5(5) or to include the required contents prescribed by s 6A. The judge invited the accused to amend his statement to comply with the requirements. This invitation subsequently became a direction, and the judge indicated that if the accused failed to do so, he would be in contempt of court. After the accused continued to refuse to amend his statement, the judge imposed a sentence of imprisonment on the accused for contempt, finding that he was in flagrant breach of the order. On appeal, the Court of Appeal held (at [18]):

88. The Court of Appeal therefore quashed the sentence for contempt as the judge did not have the power to punish for contempt in the face of the presence of s 11 (at [19]).

89. [49]

    [49] The court’s reasoning in the passage cited in the preceding paragraph contrasts an order that is “no more than an emphatic articulation of the statutory obligation” with an “extra-statutory sanction”, and we would endorse a similar approach within the context of s 169. In our view, there is a conceptual distinction between the court’s regulation of the CCDC hearings it presides over by determining whether the respective Cases of the parties are deficient and making consequential orders that direct what is required for full compliance, and the imposition of sanctions such as ordering a DNAQ for non-compliance. In this respect, we emphasise that the order made by the Judge for the PP to include certain details in the Summary of Facts is not the criminal analogue of the court’s power to order further and better particulars in civil proceedings. The court is not exercising an additional or extra-statutory power to order the Prosecution to augment its case against the accused by providing further particularisation, but is making a legal determination of what must be contained in the “summary of facts in support of the charge” under s 162(b) and directing parties accordingly. The parties are simply being ordered to do what they are by statute bound to do but have not done. The drafting history that we have traversed above suggests that when Parliament was considering the consequences for non-compliance under s 169, it had in mind the imposition of punitive or coercive sanctions, but the question of the court’s interlocutory powers in relation to disputes that arose between the parties in the course of CCDC proceedings was never directly canvassed during the consultation process or the debates during the passage of the Bill. The power to order the particularisation of a summary of facts to ensure compliance with the statutorily prescribed contents falls in the latter category, and it is not evident to us why s 169 has to be read as excluding a power of a different nature.

90. [50]

    [50] The PP further submitted that the objections raised by the respondents were in fact covered by the sequential CCDC procedures, and that the exclusion of the court’s powers to make consequential or ancillary orders was entirely consistent with Parliament’s intent not to permit any delays to the strict timelines envisaged in the framework. The PP took the position that if the Case for the Prosecution was allegedly deficient, the correct procedure had been set out in s 165(1)(d), which states as follows:

91. [51]

    [51] We do not think that the sequential nature of the CCDC regime provides a sound basis for the PP’s proposition that Parliament had created a contained and self-executing framework that would be undermined if the CCDC court had the discretion to make additional directions and orders or determine applications claiming that one party had not complied with his obligations. Section 165(1)(d) clearly does not deal with the present situation, and in fact contradicts the PP’s argument that the CCDC regime was designed to resolve disputes of a similar nature. The hypothetical factual scenarios set out in the illustrations to s 165(1)(d) indicate that the accused’s “objection” to any matter contained in the Case for the Prosecution is one that relates to the substantive aspects of the Case for the Prosecution. The accused has an obligation to explain the nature of his objection and identify the factual or legal issues that he is relying upon to challenge the Prosecution’s case theory. This subsection was not intended to create a procedure through which the accused may “object” to what he perceives to be inadequacies in the Case for the Prosecution. Instead, taken to its logical conclusion, the PP’s interpretation would undermine the rationale underlying sequential disclosure. If the accused is to make his objections to any perceived deficiency in the Case for the Prosecution while filing the Case for the Defence, it would plausibly lead to unnecessary duplication and delay if the Case for the Defence is similarly lacking in material details due to the an inability to ascertain with sufficient clarity the Prosecution’s case theory or to narrow down any disputed issues of fact or law. The Prosecution may then plausibly attempt to argue that the statutory requirements for the Case for the Defence have not been satisfied and that the Prosecution is thereby under no corresponding obligation to file the Prosecution’s Supplementary Bundle under s 166(2). Neither the Prosecution nor the accused obtains any helpful discovery. This deadlock, which the court would be powerless to resolve, cannot be the intended result of the CCDC procedures. There is thus nothing in the architecture of the CCDC regime that is inconsistent with a purposive construction of s 169 as prescribing substantive consequences for non-compliance whilst retaining a limited degree of discretionary power for the presiding judicial officer to make orders or directions for parties to comply with their statutory obligations during the course of CCDC proceedings. On the contrary, it would appear to us to be rather anomalous if s 169 were to be read as an exhaustive code on all types of directions or orders that the court may make at the pre-trial stage, leaving the CCDC court with only a single instrument of ordering a DNAQ.

92. [52]

    [52] Viewed from a pragmatic perspective, we also consider that it is inherent in the progressive nature of the CCDC framework that it may not always be self-executing, and the court ought to be able to facilitate the CCDC procedures by intervening when appropriate. The PP appeared to conceive of the sequential CCDC procedures as involving quid pro quo exchanges of information – each party’s obligations are only triggered after the opposing party has complied with his or her obligations at a prior step – and submitted that if there were any breaks or disruptions in the procedures, the proper course for the CCDC court would be to set the matter down for trial or order a DNAQ if the defaulting party was the PP. Alternatively, the court may adjourn the CCDC hearing to give parties time to comply. The former two measures would terminate the CCDC procedures, while the latter option renders the court a passive neutral evaluator. However, given that the PP accepted that s 169 envisages that the court must have the power to make a qualitative assessment of whether the parties have complied with the statutory requirements and that the court could adjourn proceedings to “encourage” the parties to comply, there is very little practical difference between this position and the approach contended for by the respondents, viz, that the court may make affirmative orders directing the parties to comply with their statutory obligations. Parties may, in the course of the CCDC procedures, have legitimate disagreements on what the Cases should contain. In such circumstances, the CCDC regime should be implemented in a practical and workable fashion by preserving the court’s discretion to make the necessary consequential orders to each party directing the steps for compliance, instead of leaving it to each party to unilaterally determine whether their concomitant obligations have been triggered by the previous step taken by the opposing party or how they should comply. Parties would otherwise be free to interrupt the flow of the CCDC procedures or abandon their obligations, with the only threat being the blunt sanction of ordering a DNAQ or the possible drawing of an adverse inference at trial.

93. [53]

    [53] The sequential steps set out in ss 160 to 168 of the CPC 2010 and the consequences of non-compliance in s 169 should therefore be construed purposively as creating a minimal framework for criminal discovery that leaves a residual measure of discretion for the presiding judicial officer to make interlocutory orders and directions. The effectiveness of the CCDC regime in achieving greater transparency, fairness and efficiency at the pre-trial stage would be undermined if the court’s only role at the pre-trial stage was limited to terminating the CCDC procedures by fixing the matter for trial or ordering a DNAQ, and we are unable to accept the PP’s argument that no grave substantive injustice would be caused by a failure to comply with CCDC procedures as all evidence and documents would eventually be adduced at trial and the trial judge would have oversight of the proceedings. We share the Judge’s concerns (at [28] of the GD) that the potential availability of an adverse inference at trial is of scant consolation to the accused if the information contained in the Case for the Prosecution is insufficient for the accused to be properly prepared for trial, and similarly, the accused may not be able to file an adequate Case for the Defence that would assist in distilling the disputed issues. Whether or not substantive injustice would result when the eventual verdict is rendered based on the merits of the Prosecution’s case, the CCDC regime was intended to tilt the balance of what was previously regarded as an uneven playing field by introducing early discovery, and the court should endeavour to play a role that achieves this purpose. If the court is able to provide efficient remedial responses to disputes at the interlocutory stage, we can think of no good reason why this should be deferred to trial.

94. The CCDC regime envisages that both the Prosecution and the accused have a right to a minimum dossier of information in the form of the Cases. This is the correlative right corresponding to the duty of the Prosecution and the accused to file and serve their Cases on the opposing party. Although the CCDC regime does present a theoretical “choice” between the provision of such information and suffering the consequences for non-compliance under s 169, we see no reason why the court should not also have the power to enforce the “right” to such information by making orders or directions when such information is not forthcoming, sending out an unequivocal message that parties who have opted into the CCDC regime or who perform a constitutional duty of prosecution are expected to comply with their obligations.

95. [55]

    [55] At the hearing, we queried parties on the related issue of whether the existence of a discretion for the CCDC court to make consequential orders would have an asymmetrical impact as between the Prosecution and the accused. The PP submitted that effective sanctions would exist against the Prosecution as the Prosecution discharges a constitutional power in conducting criminal prosecutions and is an officer of the court. The Prosecution would therefore endeavour to comply with all court orders. In contrast, the accused may not be under the same duty to comply with orders and the court is not in a position to order sanctions akin to the striking out of pleadings or default judgment for breach of “unless” orders which are available in civil proceedings (see O 34A r 1 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed)), or to cite the accused for contempt of court in the absence of a statutorily prescribed power. The respondents submitted that if the accused refused to comply with court orders, he was equally susceptible to having an adverse inference drawn against him at trial and would also lose the right to obtain the Prosecution’s Supplementary Bundle under s 166(2).

96. [56]

    [56] Having considered the above submissions and the rhetorical question posed by the PP whether it would be “a vain thing to formulate a power without the corresponding ability to enforce it”, we do not think that the court’s power to make orders or directions in the course of the CCDC proceedings would necessarily be rendered illusory by the absence of an effective enforcement mechanism that the CCDC court may invoke against the accused. The available consequences under s 169 may be invoked by the court if either the Prosecution or the accused refuse to comply with a direction that further information be provided as part of the Cases. Whilst s 169 only envisages a pre-trial sanction against the Prosecution of ordering a DNAQ should it fail to serve its Case for the Prosecution or if the Case for the Prosecution is deficient, this is in our view in line with the golden thread in criminal law that the onus is on Prosecution to prove its case beyond reasonable doubt. If there is a failure by the Prosecution to set out its case by serving its Case for the Prosecution on the accused, Parliament has considered that a fair and balanced sanction may be for the court to order a DNAQ. Clearly, unlike in civil cases, there can be no parity of sanctions as it is not open to the court – in the absence of a statutory power – to dismiss the accused’s defence or bar the accused from advancing certain factual or legal aspects of his defence. There remains, however, the possibility of sanctions at trial that may have real implications on how the accused presents his case. We acknowledge that the prescribed consequences in s 169 are not, as the PP correctly pointed out, strictly predicated on a prior failure to comply with an order made by the presiding judicial officer at a CCDC hearing. Nonetheless, the trial judge is vested with discretion as to when and how such consequences should be invoked, and persistent default by a party or an adamant refusal to abide by consequential directions made by the CCDC court may justify a greater willingness to impose these sanctions. We agree with the observations in Denise Wong (at para 38) that:

97. [57]

    [57] Finally, we add that we are conscious of the implications of our decision on the efficient disposal of cases in the Subordinate Courts and have taken into account the PP’s position on this issue. The PP submitted that a new category of “satellite litigation” may be created – defence counsel may attempt to delay the CCDC procedures by making applications for a supplementary summary of facts from the Prosecution, and this may potentially result in a corresponding increase in the number of criminal revisions filed in the High Court if applications for further particulars are denied. In the light of the PP’s concession that the CCDC court must have the power to make a qualitative assessment as to whether each party has discharged his statutory obligations, we doubt that the floodgates argument of potential problem of delays caused by unmeritorious ancillary applications or applications for criminal revisions is likely to be a pressing concern. If the accused makes spurious or tactical applications alleging that the Case for the Prosecution is inadequate, we do not see why these applications cannot be summarily dismissed at the further CCDC hearing following the service of the Case for the Prosecution. On the other hand, if the court is of the view that the Case for the Prosecution or Defence is deficient and directs that further particulars or information ought to be furnished, firm timelines may be fixed for compliance, and the court may either invoke s 169(2) (if the defaulting party is the Prosecution) or immediately schedule the matter for trial if there are persistent refusals to comply. The CCDC court is well placed to identify instances where parties are deliberately obstructing the CCDC procedures and have no honest intentions of complying, and may respond accordingly to prevent further delay. Even if we were inclined towards the PP’s position, the CCDC court might still be faced with applications requesting legal assessments of whether the parties have substantially complied with their obligations, but its options would be limited to adjourning the CCDC hearing to give parties time to comply or fixing the matter for trial. In either eventuality, the timeline of the sequential CCDC procedures would be susceptible to interruptions, except that in the latter situation, either party would be able to unilaterally determine whether it wishes to comply, holding the CCDC procedures in abeyance in the interim. This does not appear to us to be a more practical solution to the PP’s reservations.

98. [58]

    [58] We answer Question 1 as follows: No, s 169 enumerates the substantive consequences for non-compliance with the CCDC procedures in Division 2 of Part IX of the CPC 2010, but does not preclude any directions or orders that the court may make in relation to compliance with the requirements for the filing of the Cases.

99. Question 2

100. [59]

     [59] This question has been considered above as part of our analysis of Question 1, and it suffices for us to address the source of the court’s power to order the Prosecution to furnish particulars relating to the summary of facts in order to comply with the requirements of s 162(b). In our judgment, the source of the court’s power is found in s 160(1)(a) of the CPC 2010, which mandates the convening of a CCDC to settle “the filing of the Case for the Prosecution and the Case for the Defence”.

101. [60]

     [60] As we have considered above (at [41]), ss 160(2) and 404 are predicated on the assumption that the court may make orders in the course of a CCDC hearing relating to the matters enumerated in s 160(1), although s 160 understandably does not set out an extensive list of the precise types of orders that may be made. To the extent that these orders or directions do not impose additional legal obligations or subject parties to substantive legal disabilities that are not otherwise prescribed under the CPC 2010 or another written law, we consider that the powers to make such orders are conferred by s 160(1) as powers that are necessary or ancillary to “settling [such] matters”. Under s 29(1) of the Interpretation Act (Cap 1, 2002 Rev Ed), a written law conferring powers to do any act or thing shall be understood to confer powers that “are reasonably necessary to enable the person to do...the act or thing”. The term “settling” is a broad one and ordinarily refers to the resolving of matters in dispute and/or which have not been agreed upon. It is implicit that a power of the presiding judicial officer to settle must incorporate the power to do what is necessary to achieve that objective. In our view, this must necessarily include directions to parties on the timelines for filing and service, as well as orders to provide further particulars or information to fully comply with the requirements for the contents of the Cases under ss 162 and 165. In the light of the foregoing analysis, it is not necessary for us to have recourse to the court’s power under s 6 of the CPC 2010 to adopt a procedure as the justice of the case may require or to invoke the court’s inherent powers.

102. [61]

     [61] We answer Question 2 as follows: Yes, the Magistrate or District Judge who presides over a CCDC has general powers under s 160(1)(a) of the CPC 2010 to make orders relating to the filing of the Cases. This includes the power to order the Prosecution to furnish additional particulars in the summary of facts in support of the charge filed and served as part of the Case for the Prosecution.

103. Question 3

104. [62]

     [62] The three criminal revisions before the Judge were brought pursuant to s 404 of the CPC 2010, which states:

105. [63]

     [63] Although the Judge expressly premised his powers to order particulars as stemming from the “widely framed” revisionary jurisdiction of the High Court in s 404(3) of the CPC 2010 (at [27] of the GD), the Judge did not discuss the threshold for intervention. The Judge’s reasoning, however, appeared to be based on a de novo evaluation of the merits of an application for further particulars. This was also the approach advocated by counsel for Li before the High Court, who argued that the specific power under s 404 to revise orders made at a CCDC was not subject to the requirement of serious injustice applicable to the court’s general revisionary jurisdiction. Instead, the High Court was to satisfy itself as to the correctness, legality or propriety of the order or the regularity of the proceedings pursuant to s 404(1), and could intervene on any of the four grounds.

106. [64]

     [64] The PP submitted that the same threshold ought to apply to the exercise of the High Court’s general revisionary jurisdiction under s 400 of the CPC 2010 and the revisionary jurisdiction for orders made at a CCDC under s 404. The respondents submitted that a different test ought to apply under s 404 as a distinction should be drawn between a “judgment, sentence or order” recorded during any criminal proceedings before a Subordinate Court under s 400 and an “order” made at a CCDC under s 404. A high threshold of “serious injustice” need not apply to the latter as there was no additional right of appeal against an order made at a CCDC and a liberal exercise of the High Court’s powers under s 404 would therefore not be tantamount to a backdoor appeal. Further, as the orders in an application made under s 404 were interlocutory or procedural in nature and involved comparatively less serious consequences, the same revisionary threshold for final decisions on the substantive merits under s 400 should not be applied by analogy to s 404.

107. The threshold for the exercise of the court’s revisionary powers under s 404

108. [65]

     [65] Section 404 is a new provision introduced by the CPC 2010 that exclusively governs orders made at a CCDC. There is no available guidance, either in the case law or the explanatory note to the corresponding clause in the Bill, as to how the High Court’s powers are to be exercised. The wording of s 404(1) closely mirrors the general revisionary powers under s 400(1), which provides as follows:

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