Re Section 22 of the Mutual Assistance in Criminal Matters Act

[1] This is an appeal by the Attorney-General against the decision of the High Court judge (“the Judge”) dismissing his ex parte application (“the AG’s application”) under s 22 of the Mutual Assistance in Criminal Matters Act (Cap 190A, 2001 Rev Ed) (“MACMA”). The AG’s application, made pursuant to s 22 of MACMA, was for an order that the bank named in the application (“the Bank”) produce to an authorised officer the complete bank records of the account of one of the Bank’s customers, including but not limited to the items specified in the application, and for the authorised officer to take them away for a specified period.

[2] The preamble to MACMA states that it is an Act “to facilitate the provision and obtaining of international assistance in criminal matters”. It applies to both requests by Singapore to foreign countries for assistance and by foreign countries to Singapore for assistance. The types of assistance which may be given under MACMA are set out in s 3 and include:

The AG’s application concerned a request by a foreign state (“the Requesting State”) to Singapore for assistance with respect to the provision and obtaining of material relating to a bank account.

[3] After hearing the Senior State Counsel, we allowed the appeal and now give our reasons.

[4] The relevant provisions of MACMA relating to production orders in criminal matters are set out in ss 22 to 27 as follows:

[5] The relevant provisions from the Rules of Court (Cap 322, R 5, 2006 Rev Ed) are set out in O 89B rr 2 and 3 as follows:

[6] The following points should be noted concerning the scope of s 22 of MACMA, read with the Rules of Court:

(a) Firstly, the application for a production order may be made by the Attorney-General after receiving a request from the requesting country. As a matter of state policy pursuant to Singapore’s treaty with the requesting country, he is under a duty to make the application if the request satisfies all the requirements of MACMA, as otherwise he would cause Singapore to be in breach of its international obligations to the requesting country. It should be noted that assistance under MACMA is provided only to a country that has given an undertaking to provide similar assistance to Singapore (see s 16(2)) or to a prescribed country that has entered into an agreement or a treaty with Singapore (see s 17(1)).

(b) Secondly, the application is supported by affidavit but O 89B r 2 of the Rules of Court does not require that the request of the requesting country be disclosed as an exhibit.

(c) Thirdly, the application may be (and is invariably) made ex parte and the proceedings are heard in camera.

(d) Fourthly, the financial institution served with a production order has seven days to comply with the order and it may apply to vary or set aside the order.

(e) Fifthly, s 22(3) provides that the court may make a production order in terms of the application if it is satisfied that the conditions referred to in s 22(4) are fulfilled. However, neither s 22(3) nor s 22(4) makes it a requirement that the request must be disclosed to the court as a condition to the exercise of its power to grant the production order.

(f) Sixthly, if the s 22(4) conditions are satisfied, the court may make a production order. The word “may” in s 22(3) is an enabling word that confers power on the court to make the production order if it is satisfied that the s 22(4) conditions have been fulfilled. However, if the court is so satisfied, then it must make the order; otherwise it would cause Singapore to be in breach of its obligations to the requesting country.

[7] The AG’s application was supported by the affidavit of Station Inspector Lim Keng Poh Alan (“SI Lim”) of the Commercial Affairs Department (“CAD”) of the Singapore Police Force dated 9 April 2008 (“SI Lim’s Affidavit”). SI Lim’s Affidavit read:

[8] In his grounds of decision ([2008] SGHC 96) (“the GD”) at [8], the Judge expressed the view that para 6 of SI Lim’s Affidavit was unclear as to whether the items stated therein were specifically sought in the request since the request had not been exhibited in the affidavit. The Judge stated (at [11]) that on the material before him, he was “left in doubt [as to] whether the items in the [AG’s] application were spelt out in the request”. The Judge did not doubt the existence of the request: what he doubted was whether the items sought in the AG’s application were the same as the items sought in the request. However, as will be seen later, nowhere in the GD has the Judge given any reason or explained the basis of his doubts other than the fact that the request of the Requesting State had not been produced to the court. The notes of evidence recorded the following exchange between the Judge and the state counsel:

The exchange as recorded above has been elaborated upon at [10] of the GD where the Judge explained:

[9] The Judge observed (at [9]) that it was unclear if para 2 of the AG’s application (which sought an order that, where the material listed in para 6 of SI Lim’s Affidavit consisted of information contained in data equipment, the said material “shall be produced in a form in which it can be taken away and in which it is visible and legible”) formed part of the actual request from the Requesting State. It is not clear whether this observation was meant as a criticism of the form of the application or a reinforcement of the Judge’s doubt as to whether the application was seeking more material than was requested by the Requesting State. In any event, we can say immediately that this observation was misplaced because para 2 of the AG’s application merely restated the requirements of s 23(2) of MACMA (see [4] above).

[10] At the hearing, the Judge informed the state counsel that in another application before the court, the hearing was adjourned for the request to be produced, and that when the request was produced, a production order was made. However, as the state counsel was not receptive to the suggestion, the Judge dismissed the AG’s application. The Judge elaborated on his reasons for dismissing the AG’s application at [13]–[17] and [21]–[22] of the GD. They are reproduced below:

[11] We are unable to agree with the Judge’s approach as set out in the above paragraphs. With respect to [17] of the GD, that there should be a proper request from the Requesting State may be said to be obvious, but nowhere in the GD has the Judge explained what he meant by a proper request. In our view, a proper request is a request that conforms to the requirements of MACMA as set out in s 22 (see discussion at [20] below). If the request seeks the production of five items of information from a bank, and the AG’s application seeks the production of eight items of information, there is nothing wrong with the request, but there is something wrong with the application. The Judge has confused the scope of the request with the scope of the application. As the Judge did not doubt the existence of the request (and rightly so, since para 2 of SI Lim’s Affidavit stated that such a request had been submitted by the Requesting State under MACMA, and also in view of the screening role of the Attorney-General and the supervisory role of the Minister for Law under MACMA), the only conceivable reason why the Judge did not consider the request in the AG’s application to be a proper request was because it was not disclosed to him. This conclusion is confirmed by [17] of the GD where the Judge stated that, without sight of the request, he was not able to say that there was a proper request for the production of the “things” set out in the application.

[12] With respect to [21] of the GD, the Judge appeared to have suggested that, not only should the request be disclosed to the court, it should also be disclosed to the Bank and the account holder as their interests would be affected, and that the Bank would want time to study the request before it produced any material. In our view, the Judge has failed to appreciate the statutory scheme of MACMA. Leaving aside the issue of disclosure (which is addressed at [21] below), the substantive provisions and the Rules of Court provide that an application for a production order may be made ex parte, and any bank served with an order has seven days to comply with it (which would give it sufficient time to study its propriety or validity) and to apply to vary or discharge it. Similarly, the Judge’s statement at [22] of the GD – that, as a result of the non-disclosure of the request, the AG’s application did not allow parties under investigation nor the Bank a proper opportunity to oppose the making of the production order or the discharge or variation of any order made – was also wrong for the reasons we have given with respect to his observations at [21] of the GD.

[13] We should emphasise that the propriety of the request for a production order by a foreign country and its conformity with the requirements of MACMA are determined initially by the Attorney-General and his determination is subject to confirmation by the competent Minister. This screening process is a useful means to balance the competing public interests of financial confidentiality and privacy, on the one hand, and on the other hand of ensuring that Singapore is not a haven for money laundering and a heaven for those wishing to enjoy or protect ill-gotten gains by parking them here. Sections 19 and 20 of MACMA provide as follows:

[14] Further, s 41 of MACMA provides as follows:

[15] As can be seen, MACMA has provided a very elaborate structure for the provision of assistance to foreign countries. It also sets out in detail the conditions which the foreign country must satisfy before such assistance can be given. Under MACMA, there are two levels of checks by the Executive on any request by a foreign country, first by the Attorney-General and second by the competent Minister, as both are also charged with statutory duties to ensure that any such request must satisfy the statutory requirements before assistance can be given. Given this statutory framework, when the Attorney-General makes an application under MACMA for a production order, or, for that matter, any other order under MACMA, there should be no reason for the court to ask for disclosure of the request in the absence of prima facie evidence that both the Attorney-General and the competent Minister have not discharged their statutory duties in determining whether the request is a proper request. Acceding to such a request by a foreign country is a serious decision for the Executive as it involves agreeing to disclose what would otherwise be non-disclosable material under the law. There should be no reason to believe (again in the absence of prima facie evidence to the contrary) that the Attorney-General would seek to disclose more information than that requested by the foreign country. The fact that a request is not produced to the court is not a red flag that something might have gone wrong with the screening process.

[16] At [11] of the GD, the Judge, in support of his reasoning that the request of the Requesting State must be disclosed in the AG’s application, quoted the following statement by the Minister for Law during the debate in Parliament on the Mutual Assistance in Criminal Matters (Amendment) Bill (Bill 2 of 2006) (see Singapore Parliamentary Debates, Official Report (13 February 2006) vol 80 at cols 2312–2313 (Prof S Jayakumar, Minister for Law):

In our view, having regard to the legal framework in MACMA, the Minister’s statement was directed primarily to the Attorney-General, as the central authority to receive foreign requests, and also the competent Minister. It was not directed to the court.

[17] The Judge referred to and rejected (at [15] and [16] of the GD) (see [10] above) the argument (which was made by the state counsel) that it was not necessary for the Attorney-General to produce the request so long as the application satisfied the conditions set out in s 22(4) of MACMA (see [4] above).

[18] The state counsel’s argument was that the AG’s application, as supported bySI Lim’s Affidavit, met all the conditions in sub-s (4) and that the court should not have to concern itself with other matters falling outside ss 22(3) and 22(4), such as the disclosure of the request to the court. The Judge held that the argument did not withstand examination on the ground that, in the scheme of s 22, an application was to be made only when a request was received and, if there was no proper request, the matter should not progress to the s 22(3) stage. According to the Judge, the existence of a proper request was at all times an essential part of a MACMA application.

[19] As we have earlier stated (at [11]–[12] above), the Judge’s reasoning is flawed because the disclosure of the request to the court is not relevant to the issue of whether the Attorney-General has received any request from the foreign country. Nor is it relevant to the issue of whether the request is a proper request in the context of satisfying the requirements of MACMA or the terms of the treaty between Singapore and that country. So long as there is placed before the court an application by the Attorney-General for a production order, which satisfies the requirements of s 22 of MACMA and O 89B of the Rules of Court, the court should proceed on the basis (unless there is prima facie evidence to the contrary) that there exists a request from the foreign country that complies with MACMA and the relevant treaty. The court should accord due deference to the decision of the Attorney-General, a decision he would not have lightly made. There is no reason for the court not to proceed on the basis that the Attorney-General and the competent Minister would have applied their minds to the propriety of every foreign request for disclosure of financial information under MACMA. In our view, the maxim, omnia praesumuntur rite esse acta, applies to an executive decision made by the Attorney-General in the discharge of his statutory duties in order to carry out Singapore’s obligations to the requesting country under the relevant treaty.

[20] The question that the court has to ask itself is whether, on the materials placed before it, the court is satisfied that the conditions referred to in s 22(4) of MACMA have been met. In the present case, it was our view that, having regard to the contents of SI Lim’s Affidavit, there was no reason to doubt that the AG’s application had met all the conditions set out in s 22(4). The affidavit set out sufficient particulars to show that there were reasonable grounds for suspecting that the specified person had carried out or benefited from a foreign offence and that there were reasonable grounds for believing that the things to which the AG’s application related were of substantial value to the criminal matter in respect of which the application was made. In our view, the Judge erred in rejecting the state counsel’s arguments on this point. The Judge did not decide that the s 22(4) conditions had not been met, but only that, unless the request was disclosed, he could not be sure that it was a proper request. Since the Judge did not say that he doubted the sworn statements of SI Lim, there was no basis on which he could have doubted that the request was a proper request or that the items sought for production in the AG’s application were not those sought in the request.

[21] We should like to emphasise that it is not our view that, in any application for assistance under MACMA, the court would never be justified in requesting the Attorney-General to disclose the request of the requesting country, in order to decide whether to grant or refuse to grant the production order, if disclosure is essential for that purpose. What the court cannot do is to compel disclosure if it is protected by public interest immunity under s 125 of the Evidence Act (Cap 97, 1997 Rev Ed). Indeed, the Attorney-General has made a claim to such immunity in his written case, but, in our view, the claim was not relevant to the disposition of this appeal as the Judge did not order the disclosure of the request. However, a successful claim for immunity only means that the court may not be able to look at the request, but it would still be entitled to dismiss a s 22(3) application in a case where the conditions under s 22(4) would not be met unless the request is disclosed. The present case is not such a case. When a court is asked to approve an application that meets all statutory requirements, it is not asked to rubber stamp it. It is asked to determine whether there is due compliance with the law by the applicant.

[22] The question here is whether it is necessary for the Judge to have sight of the request in order to determine whether the requirements of MACMA, viz, the s 22(4) conditions, have been met. In the present case, the Judge dismissed the AG’s application, not because he was of the view that these conditions had not been met, but because he held that without sight of the request he was not able to verify that the request was for the production of the things set out in the application. In our view, having regard to SI Lim’s Affidavit, there was no reason for the Judge to take upon himself the duty or task of having to verify whether the Attorney-General had sought more or less information than that requested by the Requesting State. He did not have any grounds at all to believe that the AG’s application did not conform to the request.

[23] As a result of an increasingly globalised world, legislation relating to mutual assistance in criminal matters is nowadays a common feature in many countries. Countries with strong trade and financial ties are anxious to combat transnational crimes by co-operating with one another to uncover the proceeds of such crimes, in order to recover the proceeds or to prevent them from being laundered as legitimate funds. As such, it may be useful to refer to the practice in some common law jurisdictions.

[24] In Hong Kong, the Mutual Legal Assistance in Criminal Matters Ordinance (Cap 525) (HKSAR) (“the Hong Kong Ordinance”) is similar to our MACMA. Section 15(5) of the Hong Kong Ordinance lists the conditions that the court must be satisfied as having been fulfilled before it can make an order for assistance. Order 115A r 12(1) of the Rules of the High Court (Cap 4 sub leg A) (HKSAR) (“the Hong Kong Rules”) simply provides that “[a]n authorized officer shall make an application for an order under section 15 [of the Hong Kong Ordinance] ex parte to a judge by laying an information on oath”. The Hong Kong Rules do not provide for the disclosure of the foreign request.

[25] In Canada, the Mutual Legal Assistance in Criminal Matters Act, RSC 1985 (4th Supp), c 30 (Can) (“the Canadian Act”), is similar in structure. Section 18(1) states the conditions, which a judge must have reasonable grounds to believe exist, before an order for the gathering of evidence can be made. The statute does not contain any requirement that the foreign request must be produced to the court. In In the Matter of an Application Pursuant to s 17(2) of the Mutual Legal Assistance in Criminal Matters Act and Rafal Kurek 2005 BCSC 516, the issue of the disclosure of the foreign country’s request (“the Request”) came before the court. Holmes J made the following rulings:

The decision of Holmes J and the reasons he gave were directly on point with respect to the AG’s application in this case.

[26] The Senior State Counsel has also drawn our attention to Art 16(1) of the applicable treaty between Singapore and the Requesting State which provides for the confidentiality of the request, viz:

Article 16(1) requires the Attorney-General, when applying for a production order pursuant to s 22(3), not to disclose the request of the requesting country. It also requires him not to do so, even if the court were to insist on disclosure, if he does not have the consent of the requesting country. This Article would explain why, in applications for various orders under MACMA, the request is not produced. Article 16(1) would provide the legal basis for the Attorney-General to plead public interest immunity under s 125 of the Evidence Act, but as we have stated earlier (at [21] above), it does not prevent the court from requesting the disclosure of the request if disclosure is a necessary condition under the law to grant the application. In such a situation, it is well within the powers of the court to refuse to grant the application if the request were not produced. That such a scenario could occur is implicit in the terms of Art 16(1). However, the present case is not such a situation.

[27] For the above reasons, we allowed the appeal and granted the AG’s application for the production order against the Bank.