Re Nalpon Zero Geraldo Mario

Chan Sek Keong CJ:

[1] This originating summons (“the present OS”) is an ex parte application made by Mr Zero Geraldo Mario Nalpon (“the Applicant”), an advocate and solicitor, under s 82A(5) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA”) for leave for an investigation to be made into his complaint of misconduct against Ms Nor’Ashikin binte Samdin (“the DPP”), a Legal Service Officer (“LSO”) who was, at the relevant time, designated as a Deputy Public Prosecutor.

[2] The complaint of misconduct arose out of the trial in the District Court (“the District Court trial”) of the Applicant’s client, Ezmiwardi bin Kanan (“the Accused”), on two charges of criminal breach of trust, namely, District Arrest Case (“DAC”) No 18210 of 2009 and DAC No 18211 of 2009 (referred to hereafter as “the 1st Charge” and “the 2nd Charge” respectively). A third charge, DAC No 18212 of 2009, was stood down. At the end of the District Court trial, the district judge (“the DJ”) convicted the Accused of the 1st Charge, but acquitted him of the 2nd Charge.

[3] In support of the present OS, the Applicant filed an affidavit dated 31 January 2012 (“the Applicant’s 31/1/2012 affidavit”) setting out the specific allegations of misconduct against the DPP. The present OS and the Applicant’s 31/1/2012 affidavit were not served on the DPP. However, she came to know about the application and obtained copies of these two documents from the Supreme Court Registry. The DPP thereupon applied to me for leave to be heard at the hearing of the present OS. In support of her application, the DPP filed an affidavit dated 9 March 2012 exhibiting (inter alia) the following documents:

(a) a copy of the Applicant’s affidavit filed on 15 August 2011 (“the Applicant’s 15/8/2011 affidavit”) in support of Criminal Motion No 58 of 2011 (“CM 58/2011”), which was the Applicant’s application for leave for a document to be admitted in the Accused’s appeal (viz, Magistrate’s Appeal No 401 of 2010 (“MA 401/2010”)) against his conviction of the 1st Charge by the DJ;

(b) a copy of the DPP’s affidavit dated 2 November 2011 filed in CM 58/2011;

(c) a copy of the affidavit of Senior Station Inspector Yong Chok Choon (“PW10”) dated 4 November 2011 filed in CM 58/2011; and

(d) a certified transcript of the proceedings in MA 401/2010 and CM 58/2011, which were heard together.

[4] Initially, I was minded to grant the DPP leave to be heard, but subsequently, I decided to hear the present OS on an ex parte basis as I was (perhaps overly) concerned that any decision which I made against the DPP at an inter partes hearing, in the event of my allowing the Applicant’s application in the present OS, might influence the subsequent disciplinary proceedings before a Disciplinary Tribunal. Accordingly, I heard the present OS on an ex parte basis.

[5] Before I consider the merits of the present OS, it is necessary that I examine the statutory framework governing the conduct of LSOs in their professional work in court and out of court. All LSOs are officers of the court when they act in any court proceedings; they are also officers of the court if they have been admitted as advocates and solicitors. As such, they are subject to the control of the Supreme Court, and, like all other officers of the court, they are liable to be disciplined and punished under the LPA for misconduct committed in Singapore or elsewhere. In the case of LSOs (as well as non-practising lawyers who have been admitted as advocates and solicitors), the statutory regime is set out in s 82A of the LPA. The provisions relevant to the present OS are as follows:

[6] In an application under s 82A of the LPA for leave for an investigation to be made into a complaint of misconduct against an LSO, s 82A(6) requires the applicant to make out “a prima facie case for an investigation” before the Chief Justice may grant such leave and appoint a Disciplinary Tribunal under s 90. In the present case, the Applicant did not make any submissions on the meaning of “a prima facie case” for the purposes of s 82A(6). He assumed that the matters disclosed in his supporting affidavit for the present OS (viz, the Applicant’s 31/1/2012 affidavit mentioned at [3] above) were sufficient in law to make out such a case. In the circumstances, I shall have to embark on an ex parte examination of the legal principles to determine what the requirements of “a prima facie case” are under s 82A(6) of the LPA in order to decide whether the present OS is a proper case for granting leave for an investigation into the alleged misconduct of the DPP.

[7] The concept of “a prima facie case” has been applied by Singapore and Malaysian courts (and their predecessors) in other contexts in both civil and criminal proceedings. For example, in Gan Soo Swee and another v Ramoo [1968–1970] SLR(R) 324, a civil case, Wee Chong Jin CJ defined the expression to mean the following (at [21]):

[8] The concept of “a prima facie case” has also been extensively used in criminal proceedings as the basis for the court’s decision on whether or not to call on the accused to enter his defence at the close of the Prosecution’s case. An early example is Public Prosecutor v Chin Yoke [1940] MLJ 47 (“Chin Yoke”), where Gordon-Smith Ag JA, in examining the scope of s 173(f) of the Criminal Procedure Code (Cap 6) of the Federated Malay States, held (at 48–49) that at the close of the Prosecution’s case:

This passage sets out a number of principles:

(a) First, the court must consider the Prosecution’s evidence as it stands at the close of the Prosecution’s case. If that evidence as a whole (weighing up all the pluses and the minuses) is sufficient, if unrebutted, to warrant the accused’s conviction, then a prima facie case has been made out.

(b) The hypothesis “if unrebutted” (see Chin Yoke at 48) refers to a case where the accused, having been called on to enter his defence, either: (i) declines to do so; or (ii) having entered his defence, fails to adduce sufficient evidence to rebut the Prosecution’s prima facie case.

(c) The words “would warrant” in the same context do not mean that the court must convict the accused if the Prosecution’s prima facie case has not been unrebutted. The reason is that the burden is always on the Prosecution to prove its case beyond a reasonable doubt.

[9] In Public Prosecutor v R Balasubramaniam [1948] MLJ 119 (“R Balasubramaniam”), where the accused was charged under s 477A of the Penal Code (FMS Cap 45) with wilful falsification of a hospital’s account book by omitting to record 82 bedsheets in the account book, Callow J said at the close of the Prosecution’s case (at 120):

After evaluating the strength of the Prosecution’s evidence, Callow J held that the Prosecution had not made out a prima facie case as the evidence did not establish an essential element of the offence charged (at 122):

[10] In Hoh Keh Peng v Public Prosecutor [1948] MLJ 3 (“Hoh Keh Peng”), where the appellant was convicted of being in possession of a counterfeit seal with the intention of using it for the purposes of committing forgery, the Court of Appeal of the Malayan Union (comprising Willan CJ, Jobling and Spenser-Wilkinson JJ), without using the terminology of “a prima facie case”, appeared to have held that at the close of the Prosecution’s case, the evidence must be sufficient to prove the guilt of the accused beyond a reasonable doubt; otherwise, the Prosecution would not have made out a prima facie case. The court (per Spenser-Wilkinson J) said (at 4):

[11] Similarly, in Ong Kiang Kek v Public Prosecutor [1968–1970] SLR(R) 821 (“Ong Kiang Kek”), where the appellant appealed against his conviction for murder, the Singapore Court of Criminal Appeal (“the CCA”) also did not use the terminology of “a prima facie case”, but appeared to have adopted the same approach as that of the Malayan Union Court of Appeal in Hoh Keh Peng. At [13]–[14] and [21]–[22] of Ong Kiang Kek, the CCA said (per Wee Chong Jin CJ):

[12] Ong Kiang Kek was a decision that was based on s 177C of the Criminal Procedure Code (Cap 132, 1955 Rev Ed). The CCA’s approach in that case was applied by the High Court in Public Prosecutor v Haw Tua Tau (unreported) (“Haw Tua Tau (HC)”), which was based on the substantively similar s 181(1) of the Criminal Procedure Code (Cap 113, 1970 Rev Ed) (“the 1970 CPC”), and affirmed by the CCA in Haw Tua Tau v Public Prosecutor [1979–1980] SLR(R) 266 (“Haw Tua Tau (CCA)”). On further appeal, the Privy Council, whose written judgment was delivered by Lord Diplock (see Haw Tua Tau and others v Public Prosecutor [1981–1982] SLR(R) 133 (“Haw Tua Tau (PC)”)), disapproved of the approach in Ong Kiang Kek and held that the test applied by the CCA in that case had been more rigorous than what was required by the statutory words.

[13] It is useful to recall Lord Diplock’s analysis of s 181(1) of the 1970 CPC, which provided as follows:

Lord Diplock commented (at [14]–[15]):

[14] Lord Diplock then proceeded to explain the effect of s 181(1) by comparing it with the procedure in a jury trial before that mode of trial was abolished in Singapore. His Lordship said (at [16]–[17]):

[15] Lord Diplock continued (at [18]):

[16] Finally, in relation to the approach of the High Court in Haw Tua Tau (HC) (which, as mentioned earlier, was affirmed by the CCA in Haw Tua Tau (CCA)), Lord Diplock said (at [30]):

[17] It should be noted that the Privy Council in Haw Tua Tau (PC), like the CCA in Haw Tua Tau (CCA) and Ong Kiang Kek, eschewed the terminology of “a prima facie case” in explaining when the court would call on the Defence at the close of the Prosecution’s case. But, it is clear from the passages in Chin Yoke and R Balasubramaniam which I quoted earlier that the court in those two cases had merely used the terminology of “a prima facie case” as a convenient shorthand for describing the threshold that had to be met before the court would call on the Defence at the close of the Prosecution’s case. Even after Haw Tua Tau (PC), the courts in Singapore did not adopt a consistent approach in using or eschewing (as the case might be) the terminology of “a prima facie case”: see Sim Ah Cheoh and others v Public Prosecutor [1991] 1 SLR(R) 961 (“Sim Ah Cheoh”), Public Prosecutor v Wong Wai Hung and another [1992] 2 SLR(R) 918 (“Wong Wai Hung”), Tan Siew Chay and others v Public Prosecutor [1993] 1 SLR(R) 267, Public Prosecutor v Gan Lim Soon [1993] 2 SLR(R) 67 (“Gan Lim Soon”), Ng Theng Shuang v Public Prosecutor [1995] 1 SLR(R) 407 (“Ng Theng Shuang”) at [27] and Public Prosecutor v IC Automation (S) Pte Ltd [1996] 2 SLR(R) 799 at [41].

[18] In Gan Lim Soon, Yong Pung How CJ summarised the principles that a court should apply in deciding whether or not to call on the Defence at the end of the Prosecution’s case as follows (at [3]–[4]):

[19] In Ng Theng Shuang, counsel for the appellant attempted to persuade the Court of Appeal (at [20]):

In response, the court (per M Karthigesu JA) said at ([21]–[22]):

[20] The Court of Appeal in Ng Theng Shuang, after referring to the cases of Sim Ah Cheoh and Gan Lim Soon, noted with approval (at [25]) MPH Rubin JC’s observations at [96]–[97] of Wong Wai Hung, which were as follows:

[21] The Court of Appeal in Ng Theng Shuang then went on to say (at [26]–[27]):

[22] In my view, the references in Ng Theng Shuang (at, inter alia, [20]) to “[a] minimum evaluation of the evidence” and “a maximum evaluation of the evidence” for the purposes of determining whether a trial judge should call on the Defence at the close of the Prosecution’s case mischaracterises the nature of the judicial process in evaluating the evidence at that stage of a criminal trial. The issue at the end of the Prosecution’s case is whether the Defence has a case to answer, and this depends on whether the evidence as it stands then, if accepted by the court, would be sufficient to prove every element of the offence in question either directly or inferentially. In this regard, as Lord Parker CJ said in Practice Direction (Submission of No Case) [1962] 1 WLR 227 (“the 1962 English Practice Direction”) (quoted at [97] of Wong Wai Hung (see [20] above)), the court does not have to believe everything in the Prosecution’s evidence at this stage of the proceedings. In my view, this is what is properly meant by “a prima facie case” in a criminal trial at common law.

[23] In May v O’Sullivan (1955) 92 CLR 654, the High Court of Australia (comprising Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ) examined the terminology of “a prima facie case” at common law and said in its unanimous decision (at 658–659):

[24] Similarly, in Zanetti v Hill (1962) 108 CLR 433, which was likewise heard by the High Court of Australia (comprising Dixon CJ, Kitto, Menzies and Owen JJ), Kitto J, in his separate decision, restated the meaning of “a prima facie case” in these words (at 442–443):

Applying the above principles to the evidence adduced by the Prosecution in Zanetti v Hill, Kitto J continued (at 445):

The meaning of “a prima facie case” as explained by Lord Parker in the 1962 English Practice Direction (see [20] and [22] above) and by the High Court of Australia in the decisions quoted above is, in my view, the meaning that Lord Diplock intended to convey in his analysis of s 181(1) of the 1970 CPC in Haw Tua Tau (PC). “A prima facie case” in this context simply means (using Kitto J’s formulation in Zanetti v Hill) a case of such a nature that the accused can be lawfully convicted on the evidence as it stands at the close of the Prosecution’s case (assuming such evidence is accepted by the court) on the basis that such evidence would either prove every element of the offence in question directly or enable its existence to be inferred. In this regard, it is important to bear in mind that the evidence as it stands at the close of the Prosecution’s case, even if accepted by the court, may not be sufficient to prove every element of the offence when, as stated by Lord Parker in the 1962 English Practice Direction:

[25] Such discredited or manifestly unreliable evidence would not be accepted by the court even as prima facie evidence of a primary fact, and therefore, the inherent incredibility exception in the first presumption in Haw Tua Tau (PC) at [15] (quoted at [13] above) would not be relevant to such evidence. In other words, where the evidence adduced to prove a primary fact is discredited or wholly unreliable, there is no need for the court to even presume that that evidence is true unless it is inherently incredible: this is because that evidence has already clearly been shown to be wholly unreliable. Further, even if the court were to apply the inherent incredibility exception in such a situation, the court cannot presume that an inference drawn from a primary fact is true unless that inference can reasonably be drawn. The court may not draw any inference which it likes from primary facts just because the inference is credible, or just because the inference is not inherently incredible. There is a distinction between, on the one hand, accepting evidence of primary facts as true for the purposes of deciding whether to call on the Defence at the close of the Prosecution’s case and, on the other hand, inferring further facts from those primary facts for that purpose. For example, mere evidence of the accused’s failure to record certain items in an account book does not allow the court to infer an intention on his part to defraud where fraud is an element of the offence charged (see the passage from R Balasubramaniam (at 122) quoted at [9] above). The different standards that apply to primary facts and inferred facts must be kept in mind in the present context.

[26] The Haw Tua Tau (PC) approach is now enacted in s 230(1)(j)–230(1)(k) of the Criminal Procedure Code 2010 (Act 15 of 2010), but such enactment is not intended to change the principles laid down in Haw Tua Tau (PC) as to when the court will call on an accused to enter his defence at the close of the Prosecution’s case (see The Criminal Procedure Code of Singapore: Annotations and Commentary (Jennifer Marie & Mohamed Faizal Mohamed Abdul Kadir eds) (Academy Publishing, 2012)). The aforesaid provisions read as follows:

In essence, at the close of the Prosecution’s case, the judge must, keeping in mind the distinction between primary facts and inferred facts, ask himself: “If I were to accept the Prosecution’s evidence as accurate, would it establish the case against the accused beyond a reasonable doubt?”, and not “Has the Prosecution’s evidence already done so?” Or, as the Australian High Court said in May v O’Sullivan at 658 (reproduced at [23] above), the question to be decided at the close of the Prosecution’s case is not whether, on the evidence as it stands, the accused ought to be convicted, but whether, on that evidence, he could lawfully be convicted. Calling for the accused’s defence at the close of the Prosecution’s case only brings the proceedings to the next stage, when the accused is expected to rebut the Prosecution’s prima facie case. Even if the Defence is called, should the accused elect not to enter his defence, the court may still acquit him if, on a final evaluation of all the evidence adduced before it, it concludes that the charge has not been proved beyond a reasonable doubt – a burden which never shifts to the accused.

[27] In civil/criminal proceedings, if the defendant/accused makes a submission of no case to answer at the close of the plaintiff’s/Prosecution’s case and the court accepts the submission (ie, the court agrees that the plaintiff/Prosecution has indeed failed to establish a prima facie case), the claim/charge against the defendant/accused will be dismissed. However, there is a difference between civil and criminal proceedings where a prima facie case has been made out. In civil proceedings, if the defendant makes a submission of no case to answer at the close of the plaintiff’s case but the court rejects that submission (ie, the court finds that the plaintiff has made out a prima facie case), judgment will be given for the plaintiff; the defendant will not be allowed to enter his defence. In criminal proceedings, if the court finds that the Prosecution has made out a prima facie case, the accused will be called upon to enter his defence. If he elects not to do so, the court may still acquit him of the charge if it considers that some or all of the elements of the offence in question have not been proved beyond a reasonable doubt (see [26] above). In contrast, disciplinary proceedings under the LPA are a sui generis form of proceedings having, under existing judicial authority, some of the characteristics of criminal proceedings in that: (a) the standard of proof of misconduct under the LPA is the criminal standard of proof beyond a reasonable doubt; and (b) if the respondent’s submission of no case to answer after the “Prosecution” has closed its case is rejected, the respondent will still be allowed to enter his defence. This would be the ordinary rule in disciplinary proceedings under the LPA against advocates and solicitors. More importantly for present purposes, disciplinary proceedings against LSOs (as well as non-practising solicitors) under s 82A of the LPA in particular (“s 82A disciplinary proceedings”) contain an additional feature absent in criminal proceedings. Under s 82A(6) of the LPA, even if a prima facie case for an investigation into a complaint of misconduct against an LSO is made out, this merely entails that the Chief Justice “may” [emphasis added] give leave for such an investigation to be carried out; the Chief Justice is not mandated to give leave whenever a prima facie case for an investigation has been established. If leave is given, the Chief Justice will appoint a Disciplinary Tribunal, which will then investigate the complaint and report its findings to the Chief Justice. If the Disciplinary Tribunal finds that no cause of sufficient gravity for disciplinary action exists against the LSO concerned, the Chief Justice “shall” [emphasis added] (see s 82A(9) of the LPA) dismiss the complaint. If the Disciplinary Tribunal finds otherwise, the Chief Justice “may” [emphasis added], pursuant to s 82A(10) of the LPA, appoint an advocate and solicitor or an LSO to apply by summons in the same proceedings for an order that the LSO concerned be struck off the roll, prohibited from applying for a practising certificate, censured or otherwise punished. Again, the Chief Justice is not mandated to appoint an advocate and solicitor or an LSO to apply for such an order even if the Disciplinary Tribunal makes an adverse report against the LSO concerned.

[28] It can be seen from the foregoing that the Chief Justice is vested with a statutory discretion in s 82A disciplinary proceedings which a court of law does not have in civil/criminal proceedings. Under s 82A of the LPA, the Chief Justice has the discretion not to grant leave for an investigation to be made into a complaint of misconduct against an LSO even if a prima facie case of misconduct has been made out against the LSO concerned, and, furthermore, also has the discretion not to take the matter further even if the Disciplinary Tribunal finds that cause of sufficient gravity for disciplinary action against that LSO exists. Of course, this does not mean that the Chief Justice may decide arbitrarily in these matters as the discretionary powers under s 82A have been given to him to achieve the legislative objective of this section and not to frustrate it.

[29] In view of the discretionary powers vested in the Chief Justice in s 82A disciplinary proceedings as distinguished from the court’s powers in civil/criminal proceedings, is there a case for applying a different type of test for “a prima facie case” for the purposes of s 82A(6) of the LPA? In this regard, the crucial difference between civil/criminal proceedings and s 82A disciplinary proceedings is that in the former, if the judge rules at the close of the plaintiff’s/Prosecution’s case that a prima facie case has been made out and, as a corollary, calls on the defendant/accused to enter his defence, it is the defendant/accused who decides whether to continue with the trial by entering his defence. If the defendant/accused elects to continue with the trial, he will be tried by the same judge (viz, the judge who ruled that a prima facie case has been made out). In contrast, in s 82A disciplinary proceedings, if the Chief Justice is of the opinion that a prima facie case has been made out, it is he who decides whether to take the matter further by appointing a Disciplinary Tribunal to investigate the complaint in question. If the Chief Justice does decide to appoint a Disciplinary Tribunal, the LSO concerned will be “tried” by a different tribunal from the “tribunal” (viz, the Chief Justice) which decided that a prima facie case has been made out. In my view, this difference between civil/criminal proceedings and s 82A disciplinary proceedings, although significant, is ultimately merely a procedural difference. It is therefore not in itself a sufficient reason to apply a different test for “a prima facie case” in s 82A disciplinary proceedings from the test applicable in civil/criminal proceedings.

[30] With these principles in mind, I shall now examine the substance of the Applicant’s complaint in the present OS and his allegations against the DPP to determine whether the evidence contained in the Applicant’s 31/1/2012 affidavit and the court records is sufficient to make out a prima facie case for an investigation into these allegations.

[31] The complainant in the District Court trial (“PW3”) was the owner of a Hyundai Matrix car (“the Car”), which had, at the material time, a market value (comprising its body value as well as PARF and COE rebates) of about $26,400. PW3 had an outstanding bank loan of $42,000 on the Car. Thus, the Car had a negative value of about $15,600. PW3 wanted to buy a new Honda Fit car for $58,800 from the Accused, who was a car salesman. They agreed to do a trade-in – PW3 would sell the Car to the Accused for $29,200 and also pay the Accused $13,000 so that the Accused could discharge the bank loan and de-register the Car. In exchange, the Accused would sell PW3 a new Honda Fit for $58,800.

[32] Pursuant to this agreement, on 24 May 2008, PW3 delivered the Car to the Accused, who promptly sold it on 28 May 2008 to a re-exporter for $4,000. PW3 alleged that on 22 June 2008, he paid a further sum of $6,412 to the Accused. As the bank loan on the Car was still outstanding, interest continued to accrue and the value of the Car continued to decline. The bank began to threaten bankruptcy proceedings against PW3.

[33] On 28 January 2009, PW3 made a police report against the Accused in connection with the Car. On 31 January 2009, PW3 made a “999” call to the police at 16:29:13h (“the 1st 999 Call”). About ten minutes later, at 16:38:07h, he made a second “999” call (“the 2nd 999 Call”). On 20 February 2009, PW3 made another call (this time, a non-“999” call) to Tanglin Police Station at 16:01:14h (“the Non-999 Call”).

[34] Hence, in total, PW3 contacted the police four times about the Car:

(a) PW3 was recorded as having told the police in his police report made on 28 January 2009:

(b) PW3 was recorded as having said in the 1st 999 Call on 31 January 2009:

(c) In the 2nd 999 Call on 31 January 2009, PW3 was recorded as having said:

(d) As for the Non-999 Call to Tanglin Police Station on 20 February 2009, the police recorded the substance of the call as:

[35] PW3’s complaint against the Accused was investigated by PW10. As a result, the Accused was prosecuted for (inter alia) two counts of criminal breach of trust. The investigation papers on which the charges were based (“the IPs”) did not contain any record of either the 1st 999 Call or the 2nd 999 Call made by PW3. In other words, the IPs show that at the time those papers were prepared, PW10 was not aware about the precise number of times PW3 had contacted the police, and that information played little (if any) part in the decision to prosecute the Accused for the three charges mentioned at [2] above. The 1st Charge and the 2nd Charge, which were the two charges that the Prosecution eventually proceeded with, were as follows:

[36] The prosecution of the Accused in the District Court was conducted by the DPP. The defence counsel was the Applicant. Twelve witnesses testified against the Accused. His defence to both the 1st Charge and the 2nd Charge was that he was the victim of a frame-up by PW3 and some of the other prosecution witnesses.

[37] In the course of the District Court trial (specifically, on 22 March 2010), the Applicant asked PW3 during cross-examination about the Non-999 Call on 20 February 2009, and PW3 replied:

Subsequently, on 20 April 2010, when PW10 was asked by the DPP during re-examination about the record of the “999” calls made by PW3, he replied that he “ha[d] no information that a 999 call had been made”.

[38] Perplexed by this discrepancy between the testimony of PW3 and that of PW10 as to whether PW3 had made any “999” calls to the police, the DPP directed PW10 (on 20 April 2010) to make another search of the police call records. PW10 did so that evening and discovered that PW3 had indeed made two “999” calls on 31 January 2009. The calls were recorded in four documents:

(a) a first information report for the 1st 999 Call (“T1”);

(b) a full incident report for the 1st 999 Call (“F1”);

(c) a first information report for the 2nd 999 Call (“T2”); and

(d) a full incident report for the 2nd 999 Call (“F2”).

[39] PW10 printed out one set of T1, F1, T2 and F2 (collectively, “the four ‘999’ call records”) that evening, and made another three sets of those documents. The following day (ie, 21 April 2010), he handed the four copies of the four “999” call records to the DPP either before the trial resumed or during the court recess. On the same day, PW3 was recalled for cross-examination by the Applicant. He was then re-examined by the DPP on the “999” calls which he had made to the police. The exchange between the DPP and PW3 was as follows:

[40] PW10 was then recalled by the DPP for re-examination, and the following exchange took place:

[41] What happened here was that on 21 April 2010, the DPP handed T1 and F1 to PW10 to identify, and they were admitted as a joint exhibit marked as “P17”. At the same time, the DPP also handed to the Applicant another set of two documents, which, as it later transpired, turned out to be T2 and F1 instead. It is not clear whether the Applicant read the documents there and then, but he did not cross-examine PW10 to clarify whether the police call records showed PW3 as having made one or two “999” calls.

[42] The Applicant was aware from the contents of T2 and F1 that PW3 had made two “999” calls about ten minutes apart on the same day. This is evident from his reference to the two “999” calls (as well as the other two times PW3 had contacted the police) in his written closing submissions dated 20 August 2010 for the District Court trial. He contended that the four “999” call records showed “a development in PW3’s endeavo[u]r to frame the [A]ccused”.

[43] The DJ convicted the Accused of the 1st Charge (on the finding that he had dishonestly retained the sale proceeds of $4,000 after selling the Car contrary to PW3’s instructions (see [32] above)), but acquitted the Accused of the 2nd Charge (on the finding that the Prosecution had not proved PW3’s allegation (see, likewise, [32] above) that he had given $6,412 to the Accused). In his grounds of decision (see Public Prosecutor v Ezmiwardi Bin Kanan [2011] SGDC 152 (“Ezmiwardi (DC)”)), the DJ made no mention whatever of either the 1st 999 Call or the 2nd 999 Call. In other words, neither of those calls was relevant to the factual findings made by the DJ in convicting the Accused of the 1st Charge.

[44] The Accused appealed (via MA 401/2010) against his conviction of the 1st Charge, whilst the Prosecution appealed against his acquittal of the 2nd Charge. While preparing his skeletal arguments for the appeal, the Applicant discovered from the record of proceedings that P17 consisted of T1 and F1, but did not include T2. This led the Applicant to file CM 58/2011 for leave to admit T2 for the purposes of MA 401/2010. In the Applicant’s 15/8/2011 affidavit filed in support of CM 58/2011, the Applicant made a number of allegations of misconduct against the DPP as follows:

[45] In reply to the allegations made against her in the Applicant’s 31/1/2012 affidavit, the DPP filed an affidavit dated 2 November 2011 in CM 58/2011 (see sub-para (b) of [3] above) to state as follows:

[46] At the joint hearing of CM 58/2011 and MA 401/2010, the High Court judge (“the Judge”) admitted in evidence T2 (marked as “P17A”) without any objection by the Prosecution. He declined to deal with the Applicant’s allegations of misconduct against the DPP or the DPP’s response to them.

[47] At the conclusion of the hearing, the Judge acquitted the Accused of the 1st Charge (the Accused appealed against only his conviction of the 1st Charge as he had been acquitted by the DJ of the 2nd Charge). The Judge held that the 1st Charge and the 2nd Charge were based on the same transaction, and that the reason the Accused did not de-register the Car was because PW3 had not paid him the $13,000 which PW3 had agreed to pay under the terms of the trade-in agreement (see Ezmiwardi bin Kanan v Public Prosecutor [2012] SGHC 44 (“Ezmiwardi (HC)”) at [17]). The Judge also found that PW3’s statement in his police report made on 28 January 2009 that he had paid $8,000 to the Accused (see sub-para (a) of [34] above) contradicted his subsequent testimony at the District Court trial that he had paid $14,412 (viz, $8,000 plus $6,412) to the Accused (see Ezmiwardi (HC) at [14]–[16]). In the result, the Judge held that for these and other reasons, the Prosecution had failed to prove the 1st Charge beyond a reasonable doubt. It therefore followed (vis-à-vis the Prosecution’s appeal against the Accused’s acquittal of the 2nd Charge) that the 2nd Charge had also not been proved beyond a reasonable doubt.

[48] The setting aside of the Accused’s conviction of the 1st Charge and the dismissal of the Prosecution’s appeal in respect of the 2nd Charge should have brought an end to this matter. However, the Applicant said that he had a deep sense of grievance that the DPP had unjustly put the Accused through the painful ordeal of a 22-day trial by misleading the DJ on the evidence. No small part of the Applicant’s grievance could be attributed to his acrimonious exchange of letters with the Attorney-General’s Chambers (“the AGC”) following his complaint to the Attorney-General about the DPP’s misconduct at the District Court trial. The AGC accused the Applicant of making “cavalier” and “entirely speculative” allegations against the DPP “without any basis whatsoever”, and demanded the withdrawal of those allegations as well as the tender of an apology to the DPP “as a matter of courtesy”. The Applicant filed the present OS under s 82A of the LPA on 31 January 2012, but he was pre-empted by the AGC filing on 19 January 2012 a complaint to the Law Society of Singapore against him for making the aforesaid allegations.

[49] The Applicant’s allegations of the DPP’s misconduct have been set out at [44] above. Before me, the Applicant summarised his allegations as follows:

(a) the DPP intentionally withheld T2 from the DJ on 21 April 2010 (“the Applicant’s 1st allegation”);

(b) the DPP misled the DJ, the Accused and the Applicant into believing that only one “999” call, viz, the 1st 999 Call, had been made by PW3 (“the Applicant’s 2nd allegation”);

(c) the DPP led PW3 to lie about the two “999” calls which he had made by making him change his evidence to state that he had made only one “999” call instead of two (“the Applicant’s 3rd allegation”); and

(d) the DPP colluded with PW10 to mislead the DJ, the Accused and the Applicant as described at sub-para (b) above (“the Applicant’s 4th allegation”).

I shall now consider if the Applicant has made out a prima facie case for an investigation by a Disciplinary Tribunal into each of these allegations.

[50] In respect of the Applicant’s 1st allegation, on the basis of the evidence before me, there is proof that: (a) the DPP tendered T1 and F1 to the DJ at the District Court trial (which documents were admitted and jointly marked as exhibit “P17”), but did not tender T2 as an exhibit; and (b) at the same time, the DPP gave a copy of T2 and F1 to the Applicant. There is no evidence that the DPP intentionally omitted to tender T2 as an exhibit. The Applicant has argued that the DPP’s omission was intentional because she had been given T2 or had at least been informed of its existence by PW10 when PW10 handed copies of the four “999” call records to her on 21 April 2010. There is, however, no such evidence on record. The argument underlying the Applicant’s 1st allegation is based solely on two primary facts, namely, the DPP did not tender T2 as an exhibit at the District Court trial, and yet, gave a copy of it to the Applicant. The Applicant is asking me to infer from these two primary facts that the DPP intentionally omitted to tender T2 to the DJ as an exhibit. I am unable, on any reasonable basis, to draw this inference simply because it would not explain why the DPP gave a copy of T2 to the Applicant if she had intended not to tender that document as an exhibit in court. Between inferring that the DPP’s omission to tender T2 as an exhibit was an intentional act and inferring that that omission was an inadvertent act, it is unreasonable, if not irrational, to infer the former when it is obviously much more reasonable to infer the latter, given the lack of prima facie evidence that the DPP had intended to mislead the DJ into believing that PW3 had made only one “999” call.

[51] The Applicant’s 1st allegation has even less traction when one considers a crucial question which the Applicant should have asked himself, but did not, namely – why would the DPP have wanted to mislead the DJ on the number of “999” calls made by PW3? What was the point of doing so? I accept that the 1st 999 Call and the 2nd 999 Call were part of the background to PW3’s complaints about the Accused to the police. But, these two “999” calls were not essential to the Prosecution’s case against the Accused, nor were they part of the factual basis on which the three charges against the Accused were based. As such, neither the 1st 999 Call nor the 2nd 999 Call was relied on by the DJ in convicting the Accused of the 1st Charge. The DPP made no reference to any “999” call by PW3 as part of the Prosecution’s evidence of the criminal act of the Accused in retaining the $4,000 which was the subject matter of the 1st Charge. The DJ made no reference to any “999” call in Ezmiwardi (DC); neither did the Judge in Ezmiwardi (HC). The fact is that the 1st 999 Call and the 2nd 999 Call were incidental and innocuous events in the context of the Accused’s prosecution for the 1st Charge and the 2nd Charge. They do not even qualify as primary facts which go towards proving any of the essential elements of these two charges.

[52] Accordingly, vis-à-vis the Applicant’s 1st allegation, I am unable to accept, on the evidence before me, that the Applicant has made out a prima facie case that the DPP intentionally withheld T2 from the DJ. It follows that it is not justifiable to appoint a Disciplinary Tribunal to investigate this particular allegation. At the highest, the only rational inference to be drawn from the DPP’s failure to tender T2 to the DJ as an exhibit is that she was careless or might even have been negligent in failing to do so. In other words, as the Applicant himself alleged (in one of his letters to the Attorney-General), the DPP “botched” her job by not perusing the four “999” call records carefully before tendering only T1 and F1 as a joint exhibit at the District Court trial.

The Applicant’s 2nd allegation: Did the DPP mislead the DJ, the Accused and the Applicant into believing that only one “999” call, viz, the 1st 999 Call, had been made by PW3?

[53] I turn now to the Applicant’s 2nd allegation. Having regard to the factual basis and the reasoning of the DJ in convicting the Accused of the 1st Charge while acquitting him of the 2nd Charge, it would be unreasonable, if not irrational, for me to infer that the DJ was misled into making these two decisions by the DPP’s omission to tender T2 as an exhibit at the District Court trial. The DJ could not have been misled as to the materiality or otherwise of PW3’s “999” calls to the guilt or otherwise of the Accused vis-à-vis the 1st Charge and the 2nd Charge. As explained earlier, the 1st 999 Call and the 2nd 999 Call were both irrelevant to the essential elements of these two charges, and the DJ made no reference to either of them in convicting the Accused of the 1st Charge. The irrelevance of these two calls is also confirmed by Ezmiwardi (HC), where the Judge likewise made no reference to either of these calls in setting aside the Accused’s conviction of the 1st Charge. The Applicant (and, as a corollary, the Accused) also could not possibly have been misled into believing that PW3 had made only one “999” call (viz, the 1st 999 Call) because the Applicant had T2 in his possession and, as noted earlier (see [42] above), had referred to the 2nd 999 Call in his written closing submissions for the District Court trial. Accordingly, I find that the Applicant has not made out a prima facie case for a Disciplinary Tribunal to be appointed to investigate his second allegation against the DPP.

The Applicant’s 3rd allegation: Did the DPP lead PW3 to lie by making him change his evidence to state that he had made only one “999” call instead of two?

[54] The Applicant’s 3rd allegation is based on the Applicant’s interpretation of the sequence of answers given by PW3 in his testimony when he was re-examined by the DPP on 21 April 2010 (see the exchange between the DPP and PW3 quoted at [39] above). Essentially, this allegation is based on the case theory that the DPP and PW10:

From the evidence on record, there is nothing which shows or even suggests that the DPP and PW10 made the above alleged decision or had any reason to do so. The only relevant evidence in this connection is that PW10, pursuant to the DPP’s direction (see [38] above), made another search of the police call records in the evening on 20 April 2010, found the four “999” call records, made copies of those records and gave them to the DPP on 21 April 2010. The DPP then fumbled in tendering only F1 and T1 to the DJ as a joint exhibit on the same day (viz, 21 April 2010). From these primary facts, I am asked to infer that the DPP and PW10 decided to admit only F1 and T1, but the DPP let the cat out of the bag by her carelessness in giving a copy of T2 to the Applicant. In my view, such an inference is unreasonable, if not irrational. In fact, the evidence on record shows that the DPP actually reminded PW3 that he had earlier testified that he had made two “999” calls. But, when asked when those two calls were made, PW3 gave confusing answers to the DPP’s questions by referring to the Non-999 Call on 20 February 2009 as his second “999” call. For ease of reference, I reproduce again below the relevant exchange between the DPP and PW3 in this regard:

[55] The Applicant has alleged that PW3’s testimony here shows that PW3 changed his position on not only the number of “999” calls which he made, but also the contents of his complaint against the Accused, and that the DPP led him to do so. In my view, nothing in this exchange suggests that PW3 changed his evidence or the contents of his complaint (which was that the Accused cheated him by disposing of the Car in a manner contrary to his instructions). The Accused did not deny that on the occasion referred to in PW3’s testimony (quoted above), PW3 did wait for five hours for him to turn up, but in vain. It is pertinent to note that on appeal in MA 401/2010, the Accused did not make any written submission to the Judge that PW3 had lied in this regard as a ground for disbelieving his evidence.

[56] It is also pertinent to note that the Applicant’s 3rd allegation was made only after the Applicant discovered that P17 in the court records consisted of only T1 and F1. If PW3 had indeed changed his evidence during the District Court trial as alleged, the Applicant, as defence counsel, would (or at least, should) have been aware of this. The Applicant could and should have cross-examined PW3 there and then on the apparent contradictions in his evidence. Further, the Applicant could also have addressed these inconsistencies in his written closing submissions. However, he did neither.

[57] In the circumstances, I am not satisfied that the Applicant has made out a prima facie case of misconduct that requires an investigation by a Disciplinary Tribunal where his third allegation against the DPP is concerned.

The Applicant’s 4th allegation: Did the DPP collude with PW10 to mislead the DJ, the Accused and the Applicant into believing that only one “999” call (viz, the 1st 999 Call) had been made by PW3?

[58] For the reasons given in relation to the Applicant’s first three allegations against the DPP (see [50]–[57] above), I find that the Applicant’s 4th allegation – viz, that the DPP colluded with PW10 to mislead the DJ, the Accused and the Applicant into believing that PW3 had made only one “999” call, namely, the 1st 999 Call – is completely groundless and unwarranted. It follows that no prima facie case has been made out for an investigation into this allegation.

[59] The present OS is an ex parte application for leave to have the DPP, in her capacity as an officer of the court, investigated by a Disciplinary Tribunal for the four alleged acts of misconduct summarised at [49] above. The Applicant has filed an affidavit in support of his application (viz, the Applicant’s 31/1/2012 affidavit), in which he has disclosed all the relevant facts and documents, except the affidavits filed by the DPP and PW10 in CM 58/2011. In not disclosing these documents, the Applicant has withheld a material fact – namely, that both the DPP and PW10 have endeavoured to explain, on affidavit, how and why the DPP’s omission to tender T2 as an exhibit at the District Court trial came about. It is an established principle of law in all ex parte applications for orders that affect the rights or interests of the respondent that the applicant must give full disclosure to the court of all the material facts.

[60] Of course, for the purposes of the present OS, I need not and should not decide on the truth or otherwise of the explanations given by the DPP and PW10 in their respective affidavits filed in CM 58/2011. These affidavits are not relevant to my determination of whether, on the evidence produced by the Applicant, a prima facie case has been made out for the purposes of s 82A(6) of the LPA. Be that as it may, in my view, the fact that the DPP and PW10 have both denied, on affidavit, the Applicant’s allegations (the truth or otherwise of their denials being, as just mentioned, irrelevant in this regard) is a fact that should have been disclosed by the Applicant in his supporting affidavit for the present OS, especially since the DPP’s and PW10’s affidavits in CM 58/2011 are already part of the court records for that case. I assume that this omission on the Applicant’s part was inadvertent, having regard to the fact that this is the first time that an application is being made under s 82A of the LPA.

[61] For the reasons given above, I dismiss the present OS.