Re Section 22 of the Mutual Assistance in Criminal Matters Act

[1] An application was made by the Attorney-General under s 22 of the Mutual Assistance in Criminal Matters Act (Cap 190A) (“the Act”) for a bank to produce material relating to the account of one of the bank’s clients.

[2] The preamble of the Act states that it is “(a)n Act to facilitate the provision and obtaining of international assistance in criminal matters.” The Act deals with requests by Singapore to foreign countries for assistance, as well as requests by foreign countries to Singapore for assistance. Part II of the Act relates to the former, and is not relevant to the application in this case. Part III deals with requests from foreign countries for the taking of evidence for criminal proceedings, (s 21), and for the production of material for the purposes of criminal matters, (s 22).

[3] The Act lays down a two-stage process under Part III. The first stage is that a request is made by a foreign country to Singapore for assistance. Under s 19(1) of the Act all requests from foreign countries for assistance are to be made to the Attorney-General, and s 19(2) sets out in some detail the information that has to be disclosed in a request. The Attorney-General may refuse to give assistance to the request on the grounds specified in s 20(1) (a) to (l).

[4] When the Attorney-General accedes to a request for the production of material (referred to as “thing” in s 22) for use in criminal matters, an application has to be made to court under s 22(1) by the Attorney-General or a person appointed by him to make the application for an order for the production of the material.

[5] Specific rules apply to these applications. Section 22(2) provides that where an application involves material in the possession of a financial institution, the application is to be made to the High Court, and s 22(8) stipulates that the application shall be heard in camera. Order 89B r 3 of the Rules of Court provides that no person may inspect or take a copy of any document relating to the application for an order under s 22, or for the discharge or variation of such an order without the leave of Court. These provisions are put in place to maintain the confidentiality of such applications.

[6] The Act recognises that compliance with a production order may expose a party to civil and criminal liabilities. For example, a bank may have to produce customer information material falling under which a bank is prohibited from disclosing by s 47 of the Banking Act (Cap 19 Rev Ed 2003). To protect the complying party, s 24 provides that no civil or criminal action shall lie against any person for complying with an order in good faith.

[7] This application followed a request from a prescribed foreign country for the production of material in the possession of a bank. It is not necessary for me to identify the requesting country, the bank or the parties under investigation.

[8] The application was made ex parte, as authorised by O 89B r 2(1), and was supported by an affidavit deposed by an officer of the Commercial Affairs Department of the Singapore Police Force. In his affidavit, the deponent stated:

It is unclear whether these items were specifically sought in the request, as the request was not exhibited in the affidavit.

[9] The application went on to specify that:

without stating whether this formed part of the request.

[10] When the application came on for hearing before me, I informed counsel that the request from the foreign country should be exhibited in the affidavit. I told him that if there was any apprehension that any part of the request may contain confidential information which should not be disclosed, that can be redacted so long that it can be ascertained that there is a request coming within s 22(1) from a prescribed foreign country for the production of the particular material specified in the application.

[11] The need for the request to particularise the material to be produced was highlighted by the Minister of Law during the debate in Parliament on the Mutual Assistance in Criminal Matters (Amendment) Bill on 13 February 2006, when he said:

As matters stood, I was left in doubt whether the items in the application were spelt out in the request.

[12] I also informed counsel that in another application,[note: 1] the hearing was adjourned for the request to be produced, and when a copy of the request was produced, a production order was made. However, counsel was unreceptive to my suggestion to review the matter or take further instructions.

[13] I have noted earlier that a request for assistance from a foreign country is dealt with in two stages. First, the Attorney-General has to decide whether to accede to or to refuse the request. If the Attorney-General accedes to the request, an application is made in court, and the court must be satisfied with the application before an order for production is made. It is clear that the starting point to an application to the court is a request from a foreign country which identifies the material for which an order for production is sought.

[14] It may be argued that the Court’s role in deciding whether to grant an application for production is governed by s 22(3) and (4) of the Act:

and if the conditions in sub-s (4) are satisfied, the Court should not concern itself with other matters falling outside sub-ss (3) and (4).

[15] Such an argument does not withstand examination. In the scheme of s 22, an application is made only when a request is received. If there is no proper request, the matter should not progress to the s 22(3) stage. The existence of a proper request is at all times an essential part of an application.

[16] How does a court satisfy itself that there is a proper request? Under the best evidence rule, the actual request should be produced in evidence. For the present application, the strictness of this rule is ameliorated by the combined effect of s 67(1)(e), s 76(a)(iii) and s 65(b) of the Evidence Act (Cap 97), and a certified copy or a photocopy of the request may be produced in lieu of the actual request.

[17] Without sight of the request, I am not able to verify that there is a proper request received from a prescribed foreign country, and that the request is for the production of the “things” set out in the application.

[18] I should add that although the power to order production is vested in the court, the party under investigation has recognised interests and rights in such an application.

[19] Section 22(5) provides that:

indicating that the person under investigation has the right to be heard before an order of production is made, if the application is made inter partes.

[20] In any event, the right to be heard on the production of any material extends beyond the hearing of the application for production. Section 23(7) of the Act states that the Rules of Court may provide for the discharge and variations of orders made under s 22. Order 89B r 2(2) of the Rules of Court provide that:

and r 2(3) refers to applications to discharge or vary production orders by parties other than the Attorney-General or the person appointed by him to make the application for the original order, and that must be the other parties interested, i.e. the party under investigation and the party ordered to give production of the material.

[21] When the rights and interests of these parties are considered, the request for assistance from the foreign government and the “things” for which production is sought by the foreign government cannot be withheld from them. A prudent bank mindful of its dual duties to maintain banking secrecy and to comply with court orders would want to study the request before it produces any material in good faith.

[22] For the foregoing reasons, I found that the present application made without exhibiting the request does not conform with the letter and spirit of the Act as it did not enable the court to be satisfied that the conditions for an order for production have been satisfied, and it did not allow the parties under investigation or the bank involved a proper opportunity to oppose the making of an order for production, or the discharge or variation of any order made.

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[note: 1]OS No 1676 of 2007