Author Archives: CHEAH Wui Ling

An interesting case was heard by the Singapore High Court in October, 2013. The Singapore Attorney General’s Chambers (AGC) made an application to the High Court to review and set aside the conviction of Thomas Tay, who had been sentenced six years ago under the Securities and Futures Act. The High Court quashed Tay’s convictions and returned him the $240 000 fine he had paid.

The AGC had applied for a review of Tay’s case based on the acquittals of other individuals linked to Tay’s case.

This is an interesting case of criminal revision being initiated by the Singapore AGC, instead of by the Court or the accused. Based on Singapore’s written laws (as opposed to common law), a criminal case that has exhausted the appeals process can presently only be revisited based on S. 400 (1) of Singapore’s Criminal Procedure Code. This provision allows the High Court to study the record of criminal proceedings brought before any Subordinate Court to satisfy itself of “the correctness, legality or propriety of any judgment, sentence or order recorded or passed and as to the regularity of those proceedings.” Note that under S. 400 (1), this ability to review cases is limited to the High Court and only applies to cases previously heard before Subordinate Courts. S. 400 (1) therefore does not cover many serious offences which carry severe penalties and fall within the High Court’s original jurisdiction. It was fortunate that Tay’s case fell within the narrow limits of S. 400.

Though it is encouraging that the AGC took the initiative to apply for a review in the Tay case, and though the Singapore Court of Appeal has recognised the possibility that it may review cases to prevent wrongful convictions, the Tay case shows that there is need for legislature to be passed in Singapore that clearly recognises the ability Singapore Courts to review criminal cases to prevent wrongful convictions or serious injustices, regardless of the court before which the case was first heard and regardless of the lapsing of appeal timelines.

In April 2013, the Singapore Court of Appeal in the case of Re Nalpon Zero Geraldo Mario [2013] SGCA 28 took the opportunity to clarify the nature, existence, and scope of the court’s inherent jurisdiction and powers. This case is highly relevant to the question of whether Singapore courts have the ability to reopen a case that has completed the appeals process to prevent wrongful convictions. This is because there is currently no statute in Singapore that expressly gives courts the ability to do so. Therefore, such ability would have to rest on a court’s exercise of its inherent powers. Though a number of convictions have been overturned by the Singapore High Court exercising its powers of criminal revision, the High Court can only apply its criminal revision powers to cases heard at first instance by lower courts. Cases that are more serious, and that are heard at the first instance by the High Court in Singapore, are not subject to the High Court’s power of criminal revision.

The Singapore Court of Appeal in Re Nalpon Zero Geraldo Mario held that as a general rule, a court’s jurisdiction and powers are determined by statute. It adopted the general definition of jurisdiction as the court’s authority ‘to hear and determine a dispute that is brought before it’, and power as its ‘capacity to give effect to its determination by making or granting the orders or reliefs […]’ (para 13 & 31). The Court then discussed its inherent jurisdiction and powers, as opposed to its statute-based jurisdiction and powers. Here, it adopted a narrow definition equating “inherent” jurisdiction with “inherent” powers, stating that inherent jurisdiction refers to ‘no more than the exercise by the court of its fund of powers conferred on it by virtue of its institutional role to dispense justice, rather than an inherent “authority” to hear and determine a matter’ (para 34).

Concerns about the court’s narrow definition of its inherent jurisdiction/powers have been raised (CHEN Siyuan, “Jurisdiction, power, inherent jurisdiction, and inherent power: Re Nalpon Zero Geraldo Mario [2013] SGCA 28, SLW Commentary, Issue 3/April 2013; CHEN, “Is the Invocation of Inherent Jurisdiction the Same as the Exercise of Inherent Powers? Re Nalpon Zero Geraldo Mario”, forthcoming in International Journal of Evidence and Proof). There is also the question of whether this narrow definition of a court’s inherent jurisdiction/powers excludes the judicial ability to reopen cases of wrongful conviction, especially since this ability is not expressly provided for by statute in Singapore. However, it should be noted that the Court of Appeal in Re Nalpon Zero Geraldo Mario did not set out a closed or exhaustive list of a court’s inherent jurisdiction/powers. The Court also referred a previous case where the Singapore court had reopened and reheard an issue decided in breach of natural justice as one in which the court concerned had ‘invoked an inherent “power”’ (para. 36).

As such, the Court of Appeal may still decide in a future case that it has the inherent “power” to reopen cases of wrongful conviction. This would be in line with the Court of Appeal’s 2010 observations in Yong Vui Kong v PP [2010] 2 SLR, where it noted that to prevent miscarriages of justice, a future court may reconsider “the rationale of those decisions where we have an actual situation where new evidence is discovered, e.g. DNA or other evidence, which shows, or may show, that the conviction is demonstrably wrong in law or that there is reasonable doubt that the conviction was wrong. In such a case, this court will have to consider or reconsider whether it has any inherent jurisdiction to review its own decision in order to correct any miscarriage of justice” (para 13 & 15). Such an interpretation of Re Nalpon Zero Geraldo Mario would ensure jurisprudential consistency and ensure that Singapore courts are able to take action in cases of wrongful convictions.

To clarify matters, the Singapore Parliament should consider passing legislation that expressly authorises Singapore courts to reopen cases of wrongful conviction that have nevertheless exhausted the appeals process.