S ISWARAN v PUBLIC PROSECUTOR
16 cases cited
(12 SG, 4 foreign)
Catchwords
Practice Areas
Judges (1)
Counsel (11)
Attorney-General's Chambers Firm Davinder Singh Chambers LLC Firm Davinder Singh s/o Amar Singh Counsel Applicant Goh Qi Shuen Counsel Respondent Jiang Ke-Yue Counsel Respondent Kelvin Chong Counsel Respondent Navin Shanmugaraj Thevar Counsel Applicant Rajvinder Singh Chahal Counsel Applicant Sheiffa Safi Shirbeeni Counsel Applicant Tai Wei Shyong Counsel Respondent Tan Kiat Pheng Counsel Respondent
Parties (2)
Case Significance
S Iswaran v Public Prosecutor [2024] SGHC 123 is an ex tempore judgment delivered by Vincent Hoong J in the General Division of the High Court on 8 May 2024, in Criminal Motion No 16 of 2024. The applicant, Mr S Iswaran, applied for a joinder of all his charges under ss 133 and 134 of the Criminal Procedure Code 2010 (2020 Rev Ed), raising novel questions on the interpretation of those provisions in the context of a defence application for joinder. The applicant faced a total of 35 charges, of which 27 related to Mr Ong Beng Seng and fell into three categories. These included 24 charges under s 165 of the Penal Code (Cap 224, 2008 Rev Ed) for obtaining valuable items from Mr Ong Beng Seng without consideration as a public servant, namely a Minister of the Government of Singapore, in connection with the applicant's official functions as chairman of or advisor to the F1 Steering Committee, alleged to have occurred between November 2015 and December 2021, and two charges under s 6(a) read with s 7 of the Prevention of Corruption Act 1960 (2020 Rev Ed) for receiving items as inducement in relation to the applicant's principal.
Summary
SUPREME COURT OF SINGAPORE
8 May 2024
Case summary
S Iswaran v Public Prosecutor [2024] SGHC 123
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Decision of the High Court (Justice Vincent Hoong):
Outcome: Mr S Iswaran’s (the “Applicant”) application for all 35 charges to be tried at one trial was allowed.
Pertinent and significant points of the judgment
• An application for a joinder of charges may be made by the Defence and did not lie within the sole prerogative of the Prosecution: at [8].
• The identification of “a series of offences of the same or a similar character” under s 133 of the CPC was premised on similarity in law and in fact, having regard to the wider characteristics of the offences. The purpose of the inquiry was ultimately to determine whether the offences, in view of their similarities, may be conveniently and practically tried together where no prejudice would be caused to the accused: at [18].
Background
1 The Applicant applied for a joinder of all his charges under ss 133 and 134 of the Criminal Procedure Code 2010 (“CPC”) respectively. Broadly, 27 of the 35 charges related to Mr Ong Beng Seng (“OBS”) and fell into three categories (the “OBS charges”): (a) 24 charges under s 165 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) (the “OBS s 165 Penal Code charges”); (b) two charges under s 6(a) read with s 7 of the Prevention of Corruption Act 1960 (“PCA”) (the “OBS PCA charges”); and (c) one charge under s 204A(a) of the Penal Code 1871 (2020 Rev Ed) (the “OBS s 204A Penal Code charge”).
2 Eight of the 35 charges related to Mr Lum Kok Seng (“LKS”) which were all under s 165 of the Penal Code (the “LKS charges”).
3 The Applicant applied for a joinder of all 35 charges as follows (the “Application”):
a. Pursuant to s 133 of the CPC, the OBS s 165 Penal Code charges, the OBS PCA charges and the LKS charges should be tried in one trial as they were a part of or formed a series of offences of the same or a similar character.
b. Pursuant to s 134 of the CPC, the OBS s 204A Penal Code charge should be tried in the same trial as mentioned in [3(a)] as it was allegedly committed in the same transaction as one of the OBS PCA charges.
4 The Prosecution contested the Application and argued that the OBS charges should be tried separately from the LKS charges.
Decision
An application for joinder of charges may be made by the Defence, and was not within the sole prerogative of the Prosecution
5 The CPC contained provisions where the express words “on the application of” the Public Prosecutor (“PP”) were used, indicating that an application may be exclusively taken out by the PP. However, there were no express words to the effect that only the PP may apply for a joinder under ss 133 and 134 of the CPC: at [8] to [9].
6 Judicial scrutiny over joinders to ensure that they did not prejudice or embarrass the accused’s defence was an aspect of management (as opposed to the prosecution) of proceedings which was necessarily within the court’s purview. The PP’s prerogative to conduct prosecutions was not undermined when the court maintained control over the conduct of proceedings to avoid prejudice to the accused. In the present case, the charges were already brought before the court and the Prosecution intended to proceed with the OBS charges. As such, the Application did not seek to compel the court to direct the Prosecution to proceed on charges that it did not intend to proceed with: at [10] to [15].
Requirement for “a series of the same or a similar character” to exist
7 The identification of “a series of offences of the same or a similar character” under s 133 of the CPC was premised on similarity in law and in fact, having regard to the wider characteristics of the offences. The purpose of the inquiry was ultimately to determine whether the offences, in view of their similarities, may be conveniently and practically tried together where no prejudice would be caused to the accused: at [18].
8 It was unnecessary for charges to be closely connected factually and temporally and arise out of a single factual matrix to be joined under s 133 of the CPC. Such an interpretation of s 133 would effectively render s 134 of the CPC otiose: at [23].
The Application was allowed
9 The OBS s 165 Penal Code charges, OBS PCA charges and LKS charges formed or were a part of a series of offences of a similar character and may be joined under s 133 of the CPC: at [27] to [28].
a. The OBS s 165 Penal Code charges and LKS charges were legally identical in so far as they were all brought under s 165 of the Penal Code and the Applicant’s likely legal defences were materially similar. In terms of factual similarity, all these charges arose in the course of the Applicant’s functions as a public servant.
b. The charges under s 165 of the Penal Code (relating to both OBS and LKS) and the OBS PCA charges shared a common actus reus, which was that of obtaining items of value in the Applicant’s position as a Minister of the Government of Singapore. While the mens rea requirements for the charges under s 165 of the Penal Code and the PCA charges differed, these differences did not render the charges so legally dissimilar that it was not practical and convenient for the charges to be tried together.
10 Section 134 of the CPC provided for a joinder on the basis that the offences were committed as part of the same transaction. The alleged act constituting the OBS s 204A Penal Code charge (ie, the re-paying of the cost of the Applicant’s flight from Doha to Singapore) had a clear continuity of action with the subject matter of one of the OBS PCA charges: at [29].
11 The Applicant suffered no prejudice if the joinder was allowed. The Applicant confirmed on oath that a joinder of all 35 charges caused no prejudice or embarrassment to the Defence. In fact, the Applicant argued that he would be prejudiced if the Application was dismissed, which all the more showed that a joinder would not prejudice or embarrass the Applicant: at [31].
This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.
What was S Iswaran v Public Prosecutor [2024] SGHC 123 about?
Mr S Iswaran applied in Criminal Motion No 16 of 2024 for a joinder of all his charges under ss 133 and 134 of the Criminal Procedure Code 2010, raising novel questions about interpreting those provisions for a defence-initiated joinder. Vincent Hoong J delivered judgment on 8 May 2024.
How many charges did S Iswaran face according to [2024] SGHC 123?
The applicant faced a total of 35 charges, of which 27 related to Mr Ong Beng Seng, including 24 charges under s 165 of the Penal Code for obtaining valuable items without consideration as a public servant, with the alleged offences occurring between November 2015 and December 2021.
Statutes Cited
Cases Cited (16)
SG (7)
[1999] SGHC 252 [2006] SGDC 55 [2009] SGDC 448 [2019] SGHC 105 [2019] SGMC 16 [2022] SGHC 91 [2023] SGHC 299
SLR (5)
[1993] 1 SLR(R) 308 [2014] 2 SLR 998 [2017] 2 SLR 850 [2020] 1 SLR 64 [2022] 3 SLR 689
UK (3)
[1970] 1 QB 125 [1971] 1 AC 29 [2017] 4 WLR 93
AU (1)
[2023] WASCA 187
Referenced in
Statutes interpreted in this judgment
Judgment
Read the full judgment on the official Singapore Courts portal.
Read on eLitigationSource: eLitigation ([2024] SGHC 123)