What was the issue in S Iswaran v Public Prosecutor [2024] SGHC 185?

The High Court, in a reserved judgment by Vincent Hoong J, considered whether the Case for the Prosecution must include, under s 214(1)(d) of the Criminal Procedure Code 2010, a conditioned statement for every witness it intends to call at trial.

Who represented S Iswaran in the criminal revision proceedings?

S Iswaran was represented by Davinder Singh Chambers LLC, including Davinder Singh s/o Amar Singh, in Criminal Revision No 12 of 2024. The Public Prosecutor was represented by counsel from the Attorney-General's Chambers. Vincent Hoong J delivered the reserved judgment on 19 July 2024.

[2024] SGHC 185 — S Iswaran v PUBLIC PROSECUTOR

19 July 2024

Case summary

S Iswaran v Public Prosecutor [2024] SGHC 185

General Division of the High Court / Criminal Revision No 12 of 2024

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Outcome: The General Division of the High Court dismissed the accused’s application for the Prosecution to file, as part of the Case for the Prosecution, a statement under section 264 of the Criminal Procedure Code 2010 from every witness whom the Prosecution intends to call at the trial.

Pertinent and significant points of the judgment

• There was nothing in the wording of s 214(1)(d) of the Criminal Procedure Code 2010 (“CPC”) which required the Prosecution to file and serve the statements under s 264 of every witness that it intended to call at trial, or to provide the drafts of such written statements where any such witness was not willing to provide a conditioned statement: at [32].

• The meaning of s 214(1)(d) of the CPC was clear and unambiguous, and the extraneous material was not useful in confirming the court’s interpretation of those specific words. The Court was satisfied that the assistant registrar’s decision was not in error. There was also no suggestion of any procedural irregularity in the proceedings: at [97].

• The words “the statements of the witnesses under section 264” found within s 214(1)(d) of the CPC, which provided for the contents of the Case for the Prosecution, must refer to the statements of the witnesses that had been prepared with the intention of admitting these statements under s 264 at the trial: at [38].

• The purpose of the criminal case disclosure (“CCDC”) regime was to provide a regime for early and reciprocal disclosure of the parties’ respective cases, with the Prosecution first putting its cards on the table, followed by the defence, for the purpose of focussing issues to be determined at the trial, and to shift the dynamics of the trial process from a purely adversarial model to a truth-seeking model: at [40].

• There was no basis for invoking the court’s revisionary or inherent powers, or to adopt any procedure under s 6 of the CPC to compel the Prosecution to provide information on its overall case theory and trial strategies: at [118].

• The applicant had received sufficient information that disclosed the factual premise of the charges against him, and it was not the law that the Prosecution had to detail its intended case at trial to the point of informing the applicant of exactly what each witness would testify, which exhibit each witness would give evidence on, and what the evidence on each exhibit would entail: at [122].

Background

1 Mr S Iswaran (the “applicant”) is the accused in a criminal case to be tried in the General Division of the High Court (HC/HC 900019/2024): at [4].

2 This was an application under s 404 of the Criminal Procedure Code 2010 (“CPC”) for the court to call for and examine the record, to set aside the assistant registrar’s order rendered at the criminal case disclosure conference (“CCDC”) conducted on 11 June 2024 (the “11 June CCDC”) and to order the Prosecution to serve on the applicant the following:

a. For all witnesses in the Prosecution’s list of witnesses who agreed to provide a conditioned statement, the conditioned statements of those witnesses;

b. A letter setting out the identities of the witnesses who did not agree to provide conditioned statements and each such witness’ reasons for not agreeing; and

c. Draft conditioned statements which set out the evidence that the Prosecution intended to lead from the witnesses referred to in (b) at the trial: at [6].

Issue before the Court

3 The central issue was whether the Prosecution had a statutory obligation to file a statement under s 264 of the CPC from every witness whom it intended to call at the trial as part of the Case for the Prosecution it was required to file in the High Court pursuant to s 213(1) of the CPC: at [3].

The Court’s decision

4 Applying the principles of statutory interpretation, the starting point was to construe the express words of s 214(1)(d) of the CPC. The Court held that it was clear that the object of inclusion in the Case for the Prosecution under s 214(1)(d) of the CPC was “the statements of the witnesses under section 264”, and the Prosecution’s obligation to provide such statements was qualified by the express words “are intended by the prosecution to be admitted at the trial” [emphasis added]. The plain meaning of these words, read together, was that the Prosecution was only required to include as part of the Case for the Prosecution such “statements of the witnesses under section 264” that it intended to admit at the trial. Conversely, if the Prosecution did not intend to admit any such statements at the trial, it was not required to file those statements as part of its Case for the Prosecution under s 214(1)(d) of the CPC: at [32].

5 Section 214(1)(d) of the CPC could not be construed to mean that the Prosecution had to obtain statements under s 264 of the CPC from all the witnesses that it intended to call to give evidence at the trial. There was also nothing in the wording of s 214(1)(d) of the CPC which required the Prosecution to file and serve the statements under s 264 of every witness that it intended to call at the trial, or to provide the drafts of such written statements where any such witness was not willing to provide a conditioned statement: at [32].

6 It would be an impermissible extension of the language of s 214(1)(d) of the CPC to read “the statements of the witnesses under section 264” as referring to statements that the Prosecution may intend to admit under s 264, regardless of the Prosecution’s intentions at the time of serving the Case for the Prosecution: at [34].

7 One of the criminal case disclosure regime’s imperatives was to prevent the accused from shaping his defence to meet the Prosecution’s case. Thus, the parties’ disclosure obligations were sequential, ie, the Prosecution only needed to disclose the accused’s statements that it did not intend to admit at the trial, after the Case for the Defence had been filed. As a regime of reciprocal and sequential discovery, the mutual exchange of information was intended to provide the accused with adequate information to make preparations for his defence: at [40].

8 The legislative purpose of CCDCs in proceedings in the General Division of the High Court was statutorily enshrined in s 212(1) of the CPC, and that was to settle the filing of the parties’ respective Cases, the issues of fact or law which were to be tried and the disclosure of information including the parties’ intended witnesses and the “statements, documents or exhibits” which “are intended by the parties to be admitted at the trial” [emphasis added]: at [41].

9 The interpretation of the plain and unambiguous words of s 214(1)(d) of the CPC was not assisted by the extraneous material quoted by the parties, because they did not specifically deal with the introduction of s 214(d) of the CPC 2010 in 2010, in the context of proceedings transmitted to the High Court for trial without the need for committal proceedings: at [65].

10 The various distinctions between the criminal case disclosure regimes applicable in the General Division of the High Court and the State Courts appeared to have existed from the outset, in the introduction of the CCDC regime in 2010: at [87].

11 While the Court noted the applicant’s position that a summary of facts would enable the Defence to easily ascertain the facts asserted by the Prosecution, there was no applicable provision requiring a summary of facts to be filed. The bridge for this gap was not to read into s 214(1)(d) of the CPC words that did not exist. Simply put, there was no basis to read into s 214(1)(d) an obligation on the Prosecution’s part to obtain material which it did not intend to admit at the trial, for the purposes of providing the Defence with a preview of the evidence that would be led at the trial through the Prosecution’s witnesses: at [91].

12 The Court did not accept the applicant’s contention that without the conditioned statements of all of the Prosecution’s intended witnesses, he would be placed in a weaker position than he would have been in had the State Courts disclosure regime applied. The case law concerning the Prosecution’s obligation to provide particulars in a summary of facts in support of the charge in proceedings in the State Courts did not go so far as to require the Prosecution to set out the evidence that its witnesses would be giving at trial. Rather, what was required were sufficient particulars to state the facts that were alleged to make out the elements of the charge: at [92].

13 The Court held that there was no abuse of process, or serious injustice. The Case for the Prosecution contained:

a. Charges which stated the particulars of the alleged offences. These included charges under s 165 of the Penal Code 1871 (“PC”) stating the nature of the valuable thing, from whom it was obtained, when it was obtained, the nature of the business transacted and the relevant connection to the applicant’s official function at the time.

b. The list of exhibits which provided notice of the facts and evidence that would be led by the Prosecution at the trial. The relevance of many of the listed exhibits was self-evident from their description, including those related to Formula 1 and other ticketed events and experiences which would correlate to the various charges.

c. The 66 statements recorded from the applicant, which totalled 1,156 pages and annexed numerous exhibits such as emails, messages, Formula 1 complimentary request forms and other relevant documents shown to the applicant during the process of statement recording. The statements included the questions asked of the applicant as well as his responses. The fact that these statements had been included in the Case for the Prosecution clearly informed the applicant that the Prosecution intended to rely on them as evidence at the trial: at [112].

14 The Court did not accept the applicant’s contention that the written or draft statements of witnesses should be included in the Case for the Prosecution for the purpose of revealing or distilling the Prosecution’s case at the trial and the evidence that the witnesses would give even if the Prosecution had no intention of admitting these statements at the trial. There was no basis for invoking the court’s revisionary or inherent powers, or to adopt any procedure under s 6 of the CPC to compel the Prosecution to provide information on its overall case theory and trial strategies: at [118].

15 It was also not apparent that the Prosecution should be required to ask witnesses to indicate their reasons for not signing a conditioned statement, and to provide any reasons given as well as draft conditioned statements prepared by the Prosecution to the Defence: at [119].

16 It was not the case that the factual foundation of the alleged offences was not clear from the charges brought, or that the material disclosed did not relate to the charges brought. Specifically, the list of witnesses included the roles of the witnesses who were to be called. The list of exhibits contained descriptions of the exhibits: at [120].

17 The applicant had received sufficient information that disclosed the factual premise of the charges against him, and it was not the law that the Prosecution had to detail its intended case at trial to the point of informing the applicant of exactly what each witness would testify, which exhibit each witness would give evidence on, and what the evidence on each exhibit would entail. The applicant had also not demonstrated the injustice he would suffer from not receiving the draft conditioned statements or a letter stating reasons why certain witnesses would not sign draft conditioned statements (if any drafts existed): at [122].

18 It was the very nature of the regime of criminal case disclosure in the General Division of the High Court, as the law stood, that the defence could choose not to file a Case for the Defence, for any reasons that it deemed fit. The defence could make a statement of objection under s 217(1)(d) of the CPC, only in relation to any matter contained in the Case for the Prosecution but not otherwise: at [125].

This summary is provided to assist in the understanding of the Court’s judgment. 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 judgment.

S Iswaran v PUBLIC PROSECUTOR

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What was the issue in S Iswaran v Public Prosecutor [2024] SGHC 185?

Who represented S Iswaran in the criminal revision proceedings?

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