What issues did the High Court consider in Public Prosecutor v Marlene Wise [2024] SGHC 320?

In [2024] SGHC 320, the coram of Sundaresh Menon CJ, Tay Yong Kwang JCA and Steven Chong JCA considered whether a court becomes functus officio after ordering disposal of seized property under s 370 of the Criminal Procedure Code, and whether it has power under s 372 to adjudicate claims on that property.

What property was at issue in Public Prosecutor v Marlene Wise?

The seized property in [2024] SGHC 320 was a sum of USD42,511.55 held in a bank account frozen during investigations by the Commercial Affairs Department. The Prosecution argued the respondent, Marlene Wise, was never in lawful possession of the sum and sought its disposal to the Government.

[2024] SGHC 320 — PUBLIC PROSECUTOR v MARLENE WISE

SUPREME COURT OF SINGAPORE

[12 December 2024]

Case summary

Public Prosecutor v Marlene Wise [2024] SGHC 320

General Division of the High Court — Criminal Revision No 4 of 2024

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Decision of the General Division of the High Court (delivered by Justice Tay Yong Kwang):

Outcome: The General Division of the High Court exercised its revisionary jurisdiction and ordered the sum of USD41,900 in the seized bank account to be returned to the respondent, while the remaining amount of USD611.55 was to be forfeited to the Government.

Pertinent and significant points of the judgment

• The court was not functus officio after it ordered the disposal of seized property under s 370(2) of the Criminal Procedure Code (the “CPC”) and directed that it be detained by the police under s 372(1) of the CPC. However, if no claim was made to the seized property within the six-month period after the issuance of a public notice under s 372(1) of the CPC, the court would be functus officio because its interlocutory order was made final by s 372(5) without the need for a further order: at [31]–[33].

• The court had the power to adjudicate claims made in respect of seized property after a public notice was issued pursuant to s 372(1) of the CPC. This was supported by s 372(7), the legislative history of s 370 and s 372, as well as the Anti-Money Laundering and Other Matters Bill (Bill No 20/2024). In contrast, the Commissioner of Police did not have such a power: at [35]–[42].

Background to the criminal revision

1 In January 2021, the Commercial Affairs Department (the “CAD”) received information that suspected criminal proceeds of USD41,900 had been transferred from the US bank account of the respondent, Ms Marlene Wise, to a Singapore bank account in the name of one Sun Jian. This transfer was pursuant to a scam perpetrated against the respondent. Accordingly, the CAD commenced investigations against Sun Jian and seized the sum of USD42,511.55 (the “Sum”) in the bank account.

2 Subsequently, in January 2022, as the CAD no longer required the Sum for its investigations, it applied for a court order, which DJ Koo Zhi Xuan (“DJ Koo”) granted. There were two parts to the order. First, pursuant to s 372 of the CPC, the police would detain the Sum for a period of six months, during which a public notice was to be issued for potential claimants to establish their claims. Second, at the end of the six-month period, the police would apply for a disposal inquiry in the event claims were made on the Sum. If no claims were established, the Sum would vest in the Government absolutely.

3 Because the respondent was the only person who submitted a claim to the Sum and the CAD did not agree that she was entitled to the Sum, the CAD applied for a disposal inquiry, which was convened before DJ Lau Qiuyu (“DJ Lau”). DJ Lau decided that the court was functus officio because of DJ Koo’s order that the Sum be detained in police custody. She held further that, even if the court was not functus officio, it did not have the power under s 372 of the CPC to adjudicate any claims filed in response to the public notice. Instead, DJ Lau held this was a matter for the Commissioner of Police to deal with. Accordingly, she made no order in respect of the disposal of the Sum and left the matter to be decided by the Commissioner of Police.

4 In response, the Prosecution commenced the present application, seeking a revision on two issues: (a) after the court makes an order for the disposal of seized property under s 370 of the CPC and directs that the seized property be retained by the police pending potential claims pursuant to s 372 of the CPC, does the court become functus officio; and (b) does the court have the power under s 372 of the CPC to adjudicate claims made on the seized property?

The General Division’s decision

The interpretation of s 370(1) and s 372(1) of the CPC

5 The court was not functus officio after it ordered the disposal of seized property under s 370(2) of the CPC and directed that it be detained by the police under s 372(1) of the CPC. DJ Koo’s order was an interlocutory order because it did not dispose finally of the rights of the parties. For instance, if a claim was made to the seized property, the issue of entitlement remained to be decided at the disposal inquiry. Further, the court’s power to direct the police to retain the seized property for six months because the person entitled to the seized property was unknown or cannot be found should not be confused with the court’s power to decide on the final disposal of the property: at [31]–[32].

6 If no claim was made to the seized property within the six-month period after the issuance of a public notice under s 372(1) of the CPC, the court would be functus officio because its interlocutory order was made final by s 372(5) without the need for a further order: at [33].

7 The court had the power to adjudicate claims made in respect of seized property after a public notice was issued pursuant to s 372(1) of the CPC. This was supported not only by the legislative history of s 370 and s 372, but also by s 372(7), which conferred the court power to make orders regarding the seized property. This was also supported by the Anti-Money Laundering and Other Matters Bill (Bill No 20/2024), which proposed amending s 372(1) to specify that potential claimants must appear before the relevant court to establish their claims: at [35]–[36] and [41]–[42].

8 The Commissioner of Police did not have the power to determine claims. Any purported power in the CPC concerned only facilitative measures to be undertaken while property was detained in police custody. For instance, s 372(3) pertained to the Commissioner of Police’s power to order a sale but not the disposal of seized property. This may be contrasted with other statutory provisions, such as s 12D(3) of the Wildlife Act 1965 (2020 Rev Ed), where the relevant authority may order disposal of seized property to a claimant or refer the claim to a court for decision: at [37]–[39].

Whether this court should exercise its revisionary jurisdiction

9 Before exercising its revisionary jurisdiction, the court considered whether the respondent was in lawful possession of the sum of USD41,900 (the “Lawful Possession Precondition”). Two preliminary questions arose as to the applicability and scope of the Lawful Possession Precondition. First, the court held that the Lawful Possession Precondition applied to s 370(2)(b) of the CPC, despite the absence of the words “entitled to possession of the property” in that subsection. Second, the court held that the Lawful Possession Precondition required a claimant to: (a) demonstrate his proprietary interest in the seized property on a prima facie standard; and (b) show that the interest was acquired by lawful means or from a legitimate source. For the former, proof of title was sufficient, though not necessary. As to the latter, showing that the funds came from the claimant’s bank account would suffice to meet this standard, unless there was credible evidence that a claimant’s original possession of the property in issue was attained by illegal means: at [56]–[57], [60] and [63]–[64].

10 There was no dispute that the respondent satisfied the Lawful Possession Precondition because she transferred USD41,900 from her bank account into Sun Jian’s bank account and she had acquired the moneys lawfully. The court therefore exercised its revisionary jurisdiction to order that the respondent was entitled to the return of her USD41,900: [65]–[66].

11 Although the respondent submitted that she should be entitled to the entirety of the USD42,511.55 remaining in Sun Jian’s account, there was no legal basis for her claim beyond the USD41,900 that she had transferred: at [67].

12 There was no impediment to the court ordering the amount of USD41,900 to be returned to the respondent in foreign currency: at [68].

13 Although the Prosecution urged the court to set out a test to deal with situations where there were comingled funds in a disposal inquiry, it was not necessary for the court to decide this issue because the respondent was the only claimant, and the Sum was sufficient to meet her claim. The court’s tentative view was that where there were more claims than funds available, the pari passu rule should apply as a matter of fairness to the whole body of victims: at [69]–[70].

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.

PUBLIC PROSECUTOR v MARLENE WISE

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Summary

What issues did the High Court consider in Public Prosecutor v Marlene Wise [2024] SGHC 320?

What property was at issue in Public Prosecutor v Marlene Wise?

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