Public Prosecutor v Lim Yong Nam

Choo Han Teck J:

[1] The respondent was apprehended with three other persons on 25 October 2011 under a Warrant of Apprehension issued by a Subordinate Courts judge pursuant to a Notice by the Minister under s 9(1)(a) of the Extradition Act (Cap 103, 2000 Rev Ed). The respondent was subsequently released on bail of $100,000 pending committal proceedings. The committal proceedings were held on 9 and 12 December 2011, and 2 to 3 February 2012. On 10 February 2012 the Magistrate committed the respondent to prison pending extradition to the United States of America and allowed the respondent’s application to continue to be on bail after the committal order.

[2] The Public Prosecutor applied before me to revoke the order for bail pending extradition. Deputy Public Prosecutor Mr Mark Jayaratnam submitted that the Magistrate had no authority under the Extradition Act to grant bail once a warrant of committal has been made pursuant to s 11(7) of the Extradition Act. The relevant provision in the Extradition Act is s 11. For convenience, this provision is set out in full below together with s 12:

It will be seen that s 11 only provides for bail pending the committal hearing. A fundamental principle in criminal process is that until a person has been charged, he is presumed to be innocent of any wrongdoing that warrants detention unless the court is satisfied that he is a flight risk in the face of impending or ongoing police investigation. This is not the case here. Extradition proceedings are not a local criminal matter although there may be cases where the person to be extradited would have also committed an offence here. It was not disputed that the respondent was granted bail prior to committal because of his medical condition. The Public Prosecutor did not challenge that bail, but takes the view that there is no provision for bail after a warrant of committal has been issued.

[3] The issue of bail arose only after the respondent had been committed to prison pending his surrender to the United States government. A warrant of committal under the Extradition Act is a final order insofar as there is no provision in the Act for an appeal. That person may still challenge the order for committal but such challenge is not an appeal. A right of appeal must be specifically provided by statute. The challenge to the warrant of committal is an application for an Order for Review of Detention. The process of review of the detention order was once known as the “habeas corpus” procedure which came about in 1605 when a writ was issued in the name of the reigning sovereign King James for the body of one Nicholas Lowe to be produced before the King’s Bench and to have his detention explained and justified. The modern review of detention is structured by legislation and is a right under statute. Generally, the fundamental rationale for such reviews remains. It is a relief when there is no other remedy available. Bail implies that some remedy exists (for example, the availability of appeal).

[4] Under the Extradition Act, once a warrant of committal is issued, only the order to surrender the prisoner to the applicant jurisdiction remains. There is no reason for the prisoner to be on bail since there is no right of appeal. The only course available is to apply for an Order for Review of Detention. That application, however, is an application, like the writ of habeas corpus, for the prisoner to be produced before the High Court and have his detention explained and justified. It follows that only a person who is detained may lawfully and properly ask for his detention to be explained.

[5] For the reasons above, I granted the Public Prosecutor’s application. I revoked the order for bail and substituted it with the order that the respondent be remanded at the Institute of Mental Health as was permissible under s 11(8) of the Extradition Act. The Public Prosecutor has no objection to the substituted order in view of the medical reasons advanced on behalf of the respondent.