SUPREME COURT OF JUDICATURE (AMENDMENT) BILL

4.43 pm

Order for Second Reading read.

The Minister for Law (Prof. S. Jayakumar): Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

Sir, this Bill seeks to amend the Supreme Court of Judicature Act in a number of ways. Let me highlight the more important features.

First, the Bill gives effect to the proposed reorganisation of the present Court of Appeal and Court of Criminal Appeal into a permanent single Court of Appeal. Clause 15 provides for the constitution and jurisdiction of the reorganised Court of Appeal. The Court of Appeal shall consist of the Chief Justice and the Judges of Appeal. Except on the request of the Chief Justice where circumstances require, Judges of the High Court will no longer sit in the Court of Appeal. The Court of Appeal shall exercise appellate civil and criminal jurisdiction. Clause 15 also provides for the composition of the Court of Appeal. Its jurisdiction is usually exercised by three Judges of Appeal. However, two Judges of Appeal will suffice for the purpose of determining an appeal against an interlocutory order or any other order except a judgment obtained after a trial of an action commenced by writ or after the hearing of an action or matter commenced by any other originating process. With a separate tier of appellate Judges, it is necessary to set out the order of precedence among Judges of the Supreme Court, and this is done in clause 3.

Next, clause 10 amends section 16 of the Act to re-define the original civil jurisdiction of the High Court.

Sir, the basis of the existing general civil jurisdiction of the High Court as set out in section 16 is really not satisfactory in principle or in practice. That provision is modelled after a similar provision in the Malaysian Courts of Judicature Act 1964 which applied to us when we were part of Malaysia. After we separated from Malaysia, the provision was retained in the Act when it was passed in 1969 although the intention, according to the then Minister of Law, was to revert to the position before we joined Malaysia.

Prior to 1964, the general civil jurisdiction of the High Court in actions in personam was unlimited and founded on service of a writ on a defendant either in Singapore or abroad. When the defendant was abroad, leave of the court was required to ensure that the case was a proper one for service out of the jurisdiction. The court exercised caution in granting leave, as service of a writ on a defendant in another country might cause injustice or hardship to a foreign defendant. The requirement for leave of the court was in effect removed by the present section 16 so that service of a writ outside Singapore is allowed so long as the conditions specified in section 16 are satisfied.

The amendment of section 16 will place the High Court in exactly the position as it was before 1964 and in the position of the High Court of Judicature in England today in relation to countries outside the European Economic Community.

Next, clause 9 amends section 15 so that the High Court will have the criminal jurisdiction to try offences committed on board a Singapore ship or aircraft wherever the ship may be. The High Court will also have jurisdiction to try an offence committed by any person outside Singapore where the offence is punishable under any written law which expressly provides that the offence is punishable even if committed outside Singapore.

Sir, clause 14 empowers the Chief Justice to allocate civil proceedings commenced in the High Court to be heard and determined in the District Court. The Chief Justice may exercise such power where he considers it necessary or expedient to improve efficiency in the administration of justice and to provide for more speedy disposal of cases. In making such an order, the Chief Justice may also provide a District Court with the necessary jurisdiction to determine such proceedings. The clause is wide enough to enable the Chief Justice to extend the jurisdiction of the District Courts to hear and determine matrimonial cases, companies winding up petitions, bankruptcy petitions and certain other matters not otherwise within the subject jurisdiction of the District Courts.

Clause 22 empowers the High Court to make an order, on the application of the Public Prosecutor, for an accused person who has been acquitted by the Court to be remanded in custody pending the filing of an appeal by the Public Prosecutor. This is to ensure that an accused person, especially a foreigner, will not be able to abscond immediately he is released on acquittal when steps are being taken to lodge an appeal.

Clause 17 restricts the right of appeal to the reconstituted Court of Appeal in order to check the number of unmeritorious or unimportant appeals, especially on interlocutory matters. The minimum value of the subject matter involved for which there is an automatic right of appeal from the High Court to the Court of Appeal will be increased from $2,000 to $30,000. Clause 13 increases the minimum value for which there is an automatic right of appeal from the Subordinate Courts to the High Court from $2,000 to $5,000.

Sir, the other substantive amendments contained in the Bill relate to the use of experts as assessors to assist the High Court in cases which require technical or scientific knowledge (clause 7) and the authorization of solicitors or their employees to exercise the powers and perform the duties of the Sheriff in order to alleviate the shortage of manpower in the High Court (clause 24).

Sir, I beg to move.

Question proposed.

Dr Arthur Beng Kian Lam (Bedok GRC): Mr Speaker, Sir, the GPC for Home Affairs and Law, some three years ago, highlighted the need for a single permanent Court of Appeal. The Minister for Law, while agreeing to the merits for this, explained that because of the shortage of Judges at that time, we were not yet ready to set up a permanent Court of Appeal. I am glad that this Bill before the House today will see the crystallisation of a single permanent Court of Appeal for Singapore.

Sir, while I support the Bill in general, I would like to seek the Minister's clarification on three specific clauses of the Bill, some of which he has touched upon. Firstly, clause 14. The new section 28A empowers the Chief Justice to allocate certain proceedings commenced in the High Court to be heard and determined by a District Court. Under what criteria or guidelines will this be done? While I appreciate the need for efficiency in the administration of justice, will the parties involved not be aggrieved or unhappy? Will they not interpret this as a diminution of the importance of their case?

Next, clause 17. Clause 17 re-enacts section 34 of the Act in a modified form. It increases the amount or value of the subject-matter at trial for which leave is required to appeal to the Court of Appeal from $2,000 to $30,000, an increase of some 15 times. Is this increase too excessive? I understand the need to discourage frivolous appeals and thus overload the Court of Appeal, but the figure of $30,000 would seem to be rather excessive.

Clause 22. This clause empowers the High Court to order an accused person who has been acquitted to be remanded in custody for a period not exceeding 48 hours on application by the Public Prosecutor pending the filing of the notice of appeal. Sir, I am a layman and not a lawyer. I wonder why this clause is necessary. If a person has been acquitted by the Court, why should he be remanded further, even if it is only for 48 hours just because the Public Prosecutor is filing a notice of appeal? The Minister has made reference to foreigners. What about Singaporeans whose passports may be held by the authority? Need they be remanded? Under what circumstances will this be done and what is the rationale behind this?

Sir, in closing, I would like to express my surprise that Mr Chiam and the other Members of the Opposition have not given their support to the setting up of this Court of Appeal. I just wonder why.

Assoc. Prof. Walter Woon: Mr Speaker, Sir, may I say how welcome this Bill is. We have waited a long time for a permanent Court of Appeal - 23 years to be exact, since January 1970. It is a long time to be without a proper Court of Appeal.

I have comments on specific matters but, on this part, I will try to confine myself just to one general matter. The significance of a permanent Court of Appeal goes beyond just indicating the maturity of our legal system. Any common law legal system cannot function unless we have adequate precedents from the courts. In other words, cases of the courts are decided and which they rule upon and which are reported in the law reports because these law reports form the backbone of the law for future generations. Hitherto, the Court of Appeal has not been a permanent organisation. The members of the Court of Appeal have been drawn from among the High Court Judges themselves. And one can imagine that it is rather difficult for one High Court Judge to say another High Court Judge is wrong, especially if the other High Court Judge might be sitting on appeal over this first High Court Judge's decision later on.

The establishment of this permanent Court of Appeal creates a body with the moral authority to say to the High Court and to other courts in Singapore, to say to everyone in Singapore, short of Parliament, "This is the law, this is what the law is." Because once the Court of Appeal has spoken, short of Parliament and short of a theoretical appeal to the Privy Council, the Court of Appeal's word actually is law. The problem really is what do we do about decisions of predecessors of the Court of Appeal. In England, they have not faced with the problem of predecessor courts for over a century. But because of our history, we have more than a dozen predecessor courts. We have the Court of Appeal of the Straits Settlements, the Court of Appeal of the Colony of Singapore and the Federal Court of Malaysia. We have also other courts which became part of the Federal Court of Malaysia, like the Court of Appeal of the Federation of Malaya, its predecessor, the Court of Appeal of the Malayan Union, its predecessor, the Court of Appeal of the Federated Malay States, the Court of Appeal of Sarawak-Borneo-Brunei. All of these predecessor courts, in some ways, have contributed to the corpus of law.

The problem is that, in 1970, the then Chief Justice, in a case called Mah Kah Yew v Public Prosecutor, said that the Court of Appeal in Singapore is bound by the decisions of the Federal Court of Malaysia and of predecessors of the Federal Court of Malaysia. This means that if you can find a decision, say, a Borneo Court, in 1955, that decision binds the Singapore Court of Appeal. The Singapore Court of Appeal must follow that decision. I suggest that to be bound by this dead decision is certainly not in line with our independent status. And I further suggest to the Minister that this is an opportune moment for us to cut the bonds of what lawyers call the doctrine of stare decisis and to declare that our Court of Appeal, being de facto, the highest court in Singapore, is now well capable of deciding what the law is for Singapore without necessarily having to follow the decisions of its predecessors. This has been done in other Commonwealth countries that have had similar problems in the Caribbean and East Africa.

The courts will, of course, give great respect and great weight to decisions of predecessor courts. But there is a difference between having persuasive judgement and one that is irretrievably binding. This is why I will be suggesting in Committee that we have a specific section to make it absolutely clear that our Court of Appeal is autochthonous.

As for the other matters that I would like to bring up, may I briefly say that one deals with the extra-territorial criminal jurisdiction of the High Court and the other deals with anomalies that arise on appeal.

But as far as the general principle of the Bill is concerned, may I reiterate my support for this Bill. 4.57 pm

[Mr Deputy Speaker (Mr Abdullah Tarmugi) in the Chair]

Mr Chia Shi Teck: Sir, I rise to support the Bill.

I totally agree with Mr Ho Peng Kee that ever since Chief Justice Yong Pung How has assumed this role, much improvement has been made. As a non-lawyer, I would just like to ask the Minister whether this appointment of a permanent Court of Appeal means that the Government is contemplating abolishing all appeals to the Privy Council in London. If so, when. And are there many outstanding cases for the Privy Council and, when transferred to our Court of Appeal here, would there be a lot of work and can the Court of Appeal cope?

Prof. Jayakumar: Mr Speaker, Sir, I wish to thank those who have spoken. I will quickly respond to the points raised. Firstly, the points raised by Dr Arthur Beng. As to the criteria for cases to be sent to the Subordinate Courts, first of all, he would have noted that this is for civil cases. I understand that the criterion really will be whether there is congestion in the High Court and to have the cases decided early. Therefore, I would think that this will not upset the parties because the parties from both sides will be interested - this being a civil case - in the early resolution of the matter, and if by sending it to the Subordinate Courts will enable an early resolution, I think the parties will welcome it.

Secondly, on the increased limit, I think this is consistent because he must bear in mind that this is related to the corresponding increase in the jurisdiction of the District Court to $100,000. Thirdly, on the issue of remand when an appeal is filed, of course, this would only be in rare cases and also I wish to emphasise that this would not automatically be applied but it is up to the courts. The courts must be satisfied that there are very good reasons and the Public Prosecutor has to adduce good reasons why this must be done. So I do not think that there need be fear because it is not automatic or mandatory and the court will have to regard this special power or remand only when it is satisfied.

Assoc. Prof. Walter Woon raised the question which I believe he is going to raise under the amendments to the Bill concerning the doctrine of stare decisis. Perhaps I should reserve my comments when we come to the Committee stage. If I may make a general point about his amendments, I welcome his contributions to enable us to focus on different aspects of the Bill. I might as well say now that it is unlikely that we will be able to agree to the amendments. But one benefit of his contributions is that it has drawn our attention to the need to harmonise one aspect of the Supreme Court of Judicature (Amendment) Bill with the Subordinate Courts (Amendment) Bill. As a result of that, I will move an amendment to this Bill in Committee stage.

Mr Chia Shi Teck mentioned about the Privy Council. I think he might have missed what I said, ie, with the establishment of this Court, we will indeed have to review the existing limited rights of appeal to the Privy Council. We are not in a hurry to do that. Let the Court of Appeal be established and then we will take our time to review it and see when and how the appeals to Privy Council should be phased out.

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. - [Prof. Jayakumar].

Bill considered in Committee.

[Mr Deputy Speaker (Mr Abdullah Tarmugi) in the Chair]

Clauses 1 to 8 inclusive ordered to stand part of the Bill.

Clause 9 -

Prof. Jayakumar: Sir, I beg to move,

In page 4, to leave out lines 12 to 14 inclusive, and insert- "(b) by deleting the word "and" at the end of paragraph (d); and (c) by deleting the full-stop at the end of paragraph (e) and substitutingthe word "; and", and by inserting immediately thereafter the following paragraph: "(f) in any place or by any person if it is provided in anywritten law that the offence is triable in Singapore.".".

Sir, the amendment is a drafting amendment. Instead of the words presently moved in the Bill to paragraph (e), we think that it is better to have this additional paragraph (f), "in any place or by any person if it is provided in any written law that the offence is triable in Singapore", because it is also in harmony with a similar amendment in the Subordinate Courts (Amendment) Bill. It is an improvement which, I think, should be made.

Question proposed.

Assoc. Prof. Walter Woon: Sir, I am not sure this is the right place for me to move this particular amendment because I will be speaking on the question, "That the clause stand part of the Bill" and proposing a substitution. But I defer to your ruling, Sir.

The Chairman: You can raise it later.

Assoc. Prof. Walter Woon: Yes.

Amendment agreed to.

The Chairman: There is a consequential amendment.

In page 4, line 11, to leave out "and".

This will be done.

The Chairman: The Question is, "That clause 9, as amended, stand part of the Bill."

Assoc. Prof. Walter Woon: Sir, I beg to move the amendment* standing in my name.

*The amendment reads as follows: "It is intended to speak against the question "That the clause stand part of the Bill" and to propose a new clause in substitution therefor, as follow:-- "Amendment 9. Section 15 of the principal Act is of section 15. amended -- (a) by deleting the words "on the high seas" in subsection (1)(b); (b) by deleting the word "and" at the end of subsection (1)(d); (c) by deleting the full-stop at the end of subsection (1)(e), and substituting the words "or any other written law, and" and by inserting immediately thereafter the following paragraph: "(f) in any place or by any person if it is provided expressly or by implication in any written law that the courts of Singapore shall have jurisdication to try the offence."; and (d) by inserting, immediately after subsection (2), the following subsection: "(3) For the purposes of jurisdiction, where any act or omission forming part of an offence, or any event necessary to the completion of an offence occurs in Singapore, or if the effects of the offence are felt in Singapore, the offence shall be deemed to have been committed in Singapore, whether the person charged with the offence was in Singapore or not at the time of the act, omission or event.".".

I do not oppose the clause in principle. But what I have done is that I have suggested two amendments to improve, I hope, the clause. The first part has already been accepted by the Minister and I thank him for that.

Let me try and explain the second part which deals with the new sub-clause (3) that I propose to add. The problem really lies in the jurisdiction of our courts. And to understand the jurisdiction of our courts, we have got to go back more than a century. The idea is that the court only has jurisdiction within a country. In 1891, in a case McLeod v Attorney-General, New South Wales, the Privy Council stated the principle that all crimes are local. Unfortunately, dicta from the end of the 19th century are not necessarily applicable at the end of the 20th century. I think we will find that crime increasingly is not local, especially commercial crime. When you have got electronic transfers of money, you have got faxes and you have got telecommunications, I think you will find that criminals can stay outside Singapore and still affect us. The problem is that our section 15 of the Supreme Court of Judicature Act still clings to this 19th century idea that crime is local. And while murder has to be local, rape has to be local, theft has to be local, many commercial crimes can be done outside Singapore with repercussions here.

I ask the House's indulgence for a moment if I could read section 15 very briefly and I would not take up too much time. Briefly it states that the High Court has jurisdiction to try out all offences committed within Singapore on the high seas, on board any Singapore ship or aircraft, by any citizen of Singapore, by any person if it is piracy and by any person if it is under the Hijacking Protection of Aircraft Act. So there are four specific things and one general thing, crimes within Singapore. The problem is: can you just give our High Court jurisdiction to prosecute crimes within Singapore?

Let me give you an example. Let us suppose there is a syndicate of speculators who are manipulating the share prices of Singapore stocks. They are outside Singapore. They manipulate it outside Singapore. They spread rumours outside Singapore. None of these acts are done in Singapore, but the price moves. And people in Singapore get their fingers burnt. It is an offence under the Securities Industry Act, but we cannot try it because it is not an offence within Singapore.

Let us say we can lay our hands on these people. After all the investigations, after all the trouble that our investigatory authorities go through, it will be a tragedy if these people get off because there is a technical deficiency in the Act. Is there any other country that might be interested in trying these people who are manipulating Singapore stocks? I cannot imagine that any other country will be interested if they are not directly affected.

So we might find that in this kind of situation, we have got an international commercial crime that it will thrive in the interstices between the laws. You have these overlapping laws but there are black-holes where jurisdiction of different countries do not cover it. And this is one of the black-holes. This is why I have suggested the amendments in the Order Paper Supplement so that we can define what is meant by an offence in Singapore. Any part of the offence is committed within Singapore, we have jurisdiction. If the effects are felt within Singapore, we should have jurisdiction as well. Otherwise, I fear that, as we move into the 21st century and new means of communication come up, we will find that you have these very smart international criminals who are using this kind of loophole to escape justice.

Maybe I am being over cautious down here. But my point is that it does not hurt to have this thing in place just in case. It is really no use to let one criminal off in order to establish that there is a hole. If we see there is a hole, plug the hole now. If we never have to use it, then that is fine. But if we do have to use it, at least it is there.

Prof. Jayakumar: Sir, let me explain why it will not be possible for me to accept this amendment, although the reasons given by him and his objectives are laudable. First of all, let me say that the amendment which I moved earlier and which has been accepted already covers the situation of offences being committed outside Singapore because the new paragraph (f) gives jurisdiction over where the offence is committed. It says:

`in any place or by any person if it is provided in any written law that the offence is triable in Singapore.' But he would go further to provide where the effects are felt in Singapore. I agree that our courts should have the necessary jurisdiction to deal with offences and national crimes. But the amendment that he has proposed is quite far-reaching and has got considerable implications which should really be studied both in principle and in detail.

I believe his draft is adapted from the New Zealand Crimes Act, section 7, and in his draft it could be that he has added the words, "or if the effects of the offence are felt in Singapore". Even without these words, "or if the effects ... are felt in Singapore", I think the wording could not be sufficient to deal with the complexity or the multitude of offences which our courts have to deal with.

I am also very concerned with the phrase "if the effects ... are felt in Singapore", because it is very wide. For example, if a Singaporean businessman is murdered in another country, it can be said that the effects are felt in Singapore, if he has a business in Singapore or his family is in Singapore. So where do we draw the line? Perhaps it can be drawn but I think it has to be studied very carefully.

Since the assertion of extra-territorial jurisdiction also has implications in international law, I would prefer to proceed quite cautiously. Any provision conferring extra-territorial jurisdiction should actually provide sufficient details so as not to lead to problems in the application of that provision. A balance will have to be struck between having too wide or too narrow a provision. I am not ruling this out completely, but I think it is a matter which really requires a cautious approach and study.

I understand that the UK Law Commission made a study of the subject of jurisdiction over offences of fraud and dishonesty with a foreign element in 1989. The Commission referred to the New Zealand provision and although it accepted the principle, it did not recommend the adoption of the wording. Its recommendations which were more elaborate have, in fact, to-date, not been enacted into law. So let us be cautious and, for the time being, we will not be able to accept this amendment.

Assoc. Prof. Walter Woon: Sir, I appreciate the Minister's caution. I just hope that we do not regret it by letting a big fish go. Let me just say that the amendment that the Minister has proposed will not entirely cover it, because you require a written law to specifically state that the offence is triable in Singapore. And most of our written laws do not make this provision. In fact, I cannot offhand think of anything that has this extra-territorial trial sort of provision.

I am glad that the Minister has not ruled it out entirely. I think this is an area we should look into and I hope we do not get ourselves burnt before we do find that we need something like this.

Clause 9, as amended, ordered to stand part of the Bill.

Clauses 10 to 14 inclusive ordered to stand part of the Bill.

Clause 15 -

Assoc. Prof. Walter Woon: Sir, I beg to move,

(1) In page 7, line 11, after "original" to insert "or revisionary".

Sir, again, I beg the House's indulgence to bring these rather technical matters before the House. The amendments I propose in clause 15 actually come in two parts. The first part is to deal with an anomaly in our system and the second part deals with the doctrine of stare decisis that I have already mentioned in my earlier speech on the Second Reading of the Bill.

Let me just explain to the Members of this House. The High Court in Singapore has got three types of jurisdiction. Firstly, it has got original jurisdiction to hear cases at first instance. In other words, full trials. Secondly, it has appellate jurisdiction. It hears cases on appeal from the Subordinate Courts. Thirdly, there is another sort of jurisdiction that we have that does not exist in England, and that is revisionary jurisdiction. A High Court Judge can call for the record of a case heard in the courts below, Subordinate Courts, and change the decision or correct any misimpressions. This revisionary jurisdiction was necessary because in the old days there were lay magistrates who might not necessarily have proper training and this kind of revisionary jurisdiction we actually inherited from India.

While there is provision for appeals from the High Court in the exercise of its appellate and original jurisdiction, there is no provision for appeal in the exercise of its revisionary jurisdiction. This has been an anomaly that has existed for many years, and perhaps it is deliberate. So I would welcome the Minister's clarification on that. If it is not deliberate, if it is just an anomaly, then I suggest that we could easily correct it by putting in the words in the amendment that stands in my name.

The second part, the doctrine of stare decisis, I have already made my points in the speech on the Second Reading and I would urge the Minister to put in this clause so that it is clear beyond doubt that our Court of Appeal is not bound. It is possible for the Court of Appeal to do this itself. In other words, to issue a practice direction saying "we are not bound by prior decisions". In fact, if the Court of Appeal can be induced to do this, this particular amendment would not be necessary.

Question proposed.

Prof. Jayakumar: Do I understand, Sir, that I shall first speak on amendment No. 1 only.

The Chairman: Yes.

Prof. Jayakumar: Sir, this first amendment is closely linked to another amendment, which is Assoc. Prof. Walter Woon's proposal to add a New Section 26A, also concerning revisionary jurisdiction. Therefore, the reasons that I am going to give for this amendment are identical to the other amendment to propose a new section 26A. Sir, this will enable me to avoid a repetition.

Sir, I would say that these two amendments, ie, amendment No. 1 by Assoc. Prof. Walter Woon and his proposed new section 26A, cannot be agreed to for the following reasons. First of all, there is no need to provide for an appeal to the Court of Appeal from the decision of the High Court in exercise of its revisionary jurisdiction. Revisionary jurisdiction of the High Court is, in practice, normally exercised in favour of the accused, not the prosecution. This has been the practice. In practice, the sentences are never enhanced on revision as opposed to appeal, except where the court below was unaware of a mandatory minimum sentence. The object of revision is not to enhance sentences, but to correct obvious mistakes of a court below, especially where appeals are not available. For example, where an accused has pleaded guilty without fully understanding the facts, the High Court may be asked by the accused to exercise its power of revision and set aside the conviction on a plea of guilty, since there was no appeal from such a conviction. The High Court does not, in practice, intervene on its own initiative in the sentences of a court below although it could do so in theory. It enhances sentences only upon appeal, either by the prosecution or by the accused. Therefore, the new section 26A as well as this amendment is, in my view, not necessary.

I would also say that the amendment concerning revision is not acceptable because his amendment provides for an appeal only where the High Court has enhanced a sentence on revision, but not when it has reduced a sentence on revision. There is no reason why there should be such a distinction. Therefore, Sir, for those reasons, I would not be able to accept the amendment on his proposed new section 26A, which we will come to later.

Assoc. Prof. Walter Woon: If I understand the Minister correctly, he is saying that as a matter of practice the courts do not enhance sentences. I am concerned what happens if you do get a High Court Judge who does exercise this power. You have absolutely no control over him. I take his point that if you want to have an appeal against the power of revision, it should also be an appeal against the power of revision when the High Court reduces sentences. So that can be subject of an amendment. In principle, I am afraid that if you do get a situation where a High Court Judge does call up the record and does enhance the sentence, there is no further recourse even though the High Court Judge may have been mistaken in some way. This is why I propose this amendment. The Minister has said that as a matter of practice this never happens, but I wonder if he can assure us that this would never ever happen. This is the problem.

Prof. Jayakumar: Sir, there are many things which the courts in the development of the law are dependent on practice and evolution of precedents and this is one of the areas. As Assoc. Prof. Walter Woon pointed out earlier, there is a background to the origins of this power of revision. It dates back to the days where there were non-professionals, non-lawyers, who were magistrates and judges. That taken together with the other amendment which this House has approved, that is, the Courts can look at the debates and proceedings of this House to ascertain the intention of the legislature, I think today's proceedings should not leave anyone any doubt as to what the intent of this amendment is.

Amendment negatived.

The Chairman: Amendment No. 2, Assoc. Prof. Walter Woon.

Assoc. Prof. Walter Woon: Sir, I beg to move, (2) In page 8, line 28, at end, to add - "Court of 31A.-(1) For purposes of the doctrine of Appeal not stare decisis, the Court of Appeal shall not be bound by bound by its own prior decisions but may in the decisions. appropriate case depart from such decisions. (2) The Court of Appeal shall likewise not be bound by the decisions of other courts which exercised appellate jurisdiction in Singapore or in Malaysia prior to 9 January 1970, or the predecessors of such courts.".

Again, this is a matter of stare decisis on which I have already spoken.

Question proposed.

Prof. Jayakumar: Sir, I am afraid this amendment is also, in my view, not acceptable. This is what is referred to as a doctrine of stare decisis where courts, generally speaking, are bound to follow their own previous decisions as well as the decisions of the courts higher than the judicial hierarchy. The courts over the years have developed detailed rules as to stare decisis. Assoc. Prof. Walter Woon's point is to change one such rule concerning the Court of Appeal which is not satisfactory, and he cited the case of Mah Kah Yew. But Mah Kah Yew's case is actually a decision of the High Court. The Court of Appeal is actually free to disagree with the rule in that case and, if it so desires, it can overrule it. Of course, one could say that such a situation will never present itself. But I should think that the newly constituted Court of Appeal, if it wishes to, can at any time change the existing rules of stare decisis, for example, the new Court of Appeal, if it wants to, can issue a statement of judicial practice to that effect. In fact, the House of Lords in the United Kingdom issued a practice statement in 1966 to declare, in a departure from its previous practice, that it would not be bound by its own decisions. When Malaysia abolished appeals to the Privy Council, Malaysia also did not legislate to change the rule of stare decisis. They were content to leave the matter to be decided by the courts by case law. In my view, it is best to leave the development of the law on this to the courts for themselves to evolve and they can at any time declare what the position is.

Assoc. Prof. Walter Woon: I thank the Minister for his statement. The problem is that the Court may never have the chance to do this. As long as Mah Kah Yew remains on the books, you have a situation, which is possible, that they will be bound. It would be far better if the Court of Appeal would do this. I am saying that if we have the opportunity, we should clarify the law. The Minister is of a different view. I respect his view. If he thinks that it is not necessary, then let us leave it to the Court of Appeal.

Sir, I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

Clause 15 ordered to stand part of the Bill. Clauses 16 to 30 inclusive ordered to stand part of the Bill.

New Clause (A) -

Assoc. Prof. Walter Woon: Sir, in view of the Minister's answer to the previous query, I beg leave to withdraw this amendment*. I will not be putting this amendment to the House, but I will be moving New Clause (B), with your permission.

*The amendment reads as follows: 'New Clause (A): "New Section The Supreme Court of Judicature (Amendment) 26A Bill is amended by inserting, immediately after section 26 thereof, the following section:-- "Appeals 26A. Where the High Court against exercises the power of revision High Courts to enhance a sentence passed by exercise of a subordinate court, any party power of aggrieved may appeal to the revision. Court of Appeal in accordance with the procedure prescribed for appeals from the High Court in the exercise of its original criminal jurisdiction.".".'

New Clause, by leave, withdrawn.

New Clause (B) "Amendment 60.-(1) When an appeal from a decision of a of section 60. subordinate court in a criminal matter has been determined by the High Court, any party may apply to the Judge to reserve for the decision of the Court of Appeal any question of law of public interest which has arisen in the course of the appeal and the determination of which by the Judge has affected the event of the appeal. (1A) The Judge shall reserve the said question of law for the decision of the Court of Appeal- (a) where the application has been made by the Public Prosecutor; or (b) if the Judge has reversed the acquittal of a respondent, where the application has been made by the respondent. In any other case, the Judge shall have a discretion whether or not to reserve a question of law for the decision of the Court of Appeal.".

Brought up, and read the First time.

Assoc. Prof. Walter Woon: Sir, I beg to move, "That the clause be read a Second time."

This amendment that I have suggested again addresses an anomaly in our legal system. If you are prosecuted in Singapore, you can be prosecuted either in the Subordinate Courts or in the High Court. If you are prosecuted in the High Court and you are convicted, you have a right of appeal to the Court of Appeal and thence to the Privy Council. But this right, of course, has been restricted. If, on the other hand, you are prosecuted in the Subordinate Courts, either the Magistrate's Court or the District Court, you only have a right of appeal to the High Court and there it stops. The High Court Judge may state a case for the Court of Criminal Appeal to look at, but he does not have to. There is no rule that forces him to do this no matter how wrong he may have been in not stating a case. No one has got any power to force the High Court Judge to state the case, except the Attorney-General. The Attorney-General can require a High Court Judge to state a case for the Court of Criminal Appeal.

My concern really arises in this way. If you are prosecuted in the Subordinate Courts, let us say, the District Court, and you are acquitted, the Public Prosecutor may appeal to the High Court, and if the High Court acquits, the Public Prosecutor may require the High Court Judge to state a case for the Court of Criminal Appeal. So the Public Prosecutor has got two shots. If you are acquitted in the Subordinate Courts, and there is an appeal to the High Court, and the High Court convicts you on that appeal, in other words, they reverse the District Court Judge, the person whose acquittal has been changed into a conviction has got no right to go any further at all. Effectively, he has been convicted by only one Judge, that is, the High Court Judge, who will not have seen the witnesses because the witnesses would have been seen by the Subordinate Court's Judge. This may give rise to the perception that the system is not fair and it is very important for the integrity of the system that people do not feel that they have been given a raw deal.

Let us say, you have a situation where someone is acquitted by a District Judge. The Public Prosecutor appeals to the High Court. The High Court Judge, without hearing the witnesses again, because this is the practice, changes the acquittal into a conviction, and this man then has no further recourse. As far as he is concerned, he might go to jail, his livelihood might be affected, but he has nothing further to say. He can request the High Court Judge to state a case. If the High Court Judge does state a case, the Court of Criminal Appeal can hear that case. But if the High Court Judge declines, then that accused person is left without redress. I say the Act is unsatisfactory because it gives rise to the perception that the playing field is not quite level. The prosecution has far more of an opportunity to get you into jail than you do to get yourself out, as it were.

Hence, the suggestion that section 60 be amended to give an accused the right to have a case stated to the Court of Criminal Appeal if the High Court Judge reverses his acquittal on appeal. He was acquitted at the Subordinate Courts, appealed to the High Court, the High Court Judge reverses that, he should have one further chance to go the Court of Criminal Appeal. Because we are talking about people who might go to jail, people who might be caned even, and there is also the stigma of being convicted of an offence.

Question put, "That the New Clause (B) be read a Second time."

Prof. Jayakumar: Sir, this amendment is also not acceptable. Let me explain why. In fact, the only change proposed by Assoc. Prof. Woon, as I can see, to the existing law is in the new section 60(1A) (b). I think that is the real substantive change to it.

Sir, at the present time, there is no appeal by either the Public Prosecutor or the accused to the Court of Criminal Appeal from a decision of the High Court in the exercise of its appellate criminal jurisdiction. His proposal has the effect of granting a right of appeal really in every case where the High Court has reversed an order of acquittal by the Subordinate Courts. That is the effect.

He says that this is only fair because the Public Prosecutor has what he calls a "second shot" if the High Court rules against him. His argument assumes two things. First, he assumes that the Public Prosecutor will lodge an appeal from the High Court's decision under the guise of reserving a point of law. Secondly, he assumes that it is a practice of the Public Prosecutor to ask the Court of Appeal, where it determines the reserved point of law in his favour, to reverse the decision of a High Court, that is, to restore a conviction against the accused.

Both his assumptions are erroneous. The general legislative policy must, of course, be that there is a finality of decisions. Therefore, the law provides that there should be no appeal from a decision of the High Court in its appellate criminal jurisdiction. This equally applies to the accused and the Public Prosecutor. However, in addition to the duty to ensure justice in individual cases, the Public Prosecutor has a further duty to ensure that the principles of law are correctly and authoritatively decided. That is why in every case where he applies to reserve a point of law of public interest for decision of the Court of Appeal, a judge must reserve that point of law. An accused person can also apply to reserve a point of law of public interest. But the judge has a discretion whether to allow that application. This discretion is necessary in order to sieve out questions which are not genuine points of law and are not of public interest and which are advanced merely as a guise for what is in fact an appeal.

It is not the practice of the Public Prosecutor to ask for a reversal of a High Court's decision in every case where the Court of Criminal Appeal determines a point of law in his favour. A Public Prosecutor has to exercise the power responsibly and his concern in reserving a point of law of public interest is not so much to secure justice in the individual, the specific case, which is of course important, but, more importantly, to ensure that the principles of law are correctly and authoritatively decided for future cases. In fact, I think Assoc. Prof. Woon knows the celebrated case of insider trading, Public Prosecutor vs Chowdhurie 1981, which provides an example of a case to which the order of acquittal by the High Court was not disturbed at all, even though the Court of Criminal Appeal determined the questions of law reserved for its decision in favour of the prosecution. So that is the raison d'etre of applying for points of principles of law to be reserved.

Assoc. Prof. Walter Woon: Sir, I have very great respect for the Minister. He was my Dean and my teacher. But I am afraid here I do disagree with him. I think it is not fair that the person who has been acquitted, and then convicted by the High Court, should not have a right, as opposed to a discretionary application, to go to the Court of Criminal Appeal, especially in the light of the fact when you are talking about civil cases where only money is involved, there is no problem and you can go to the Court of Appeal. But here we are talking about a person who might go to jail or might be caned. And I cannot help feeling that you might have a situation where the High Court Judge is wrong or he has an awful day, or for some reason, he has misapprehended the facts and there is no further avenue to check this.

What I am suggesting really is to close the possibility that there may be miscarriage of justice. Judges try their best. We try and get the best men and women that we can, but they are human and they can make mistakes. I think that when a person's liberty is at stake, where he could be caned, there should at least be one more appeal.

Prof. Jayakumar: Sir, if Assoc. Prof. Walter Woon's position is that where the law now does not provide for appeal, he disagrees and that, therefore, there should be another appeal, then that is a separate matter which he should pursue independently of this matter. This provision to which he makes an effort to amend does not talk about the right of appeal. It talks about reserving a point of law of public interest which is different from, say, appealing on the merits of the case. I have taken pains to explain the rationale of this provision. It is not to give so-called another shot. It is to clarify certain principles of law for future cases and, therefore, it is quite different from appealing on the merits of the case. Therefore, I must indicate my unwillingness to accept this amendment.

Question accordingly negatived.

New Clause (B) accordingly disagreed to.

The Schedule -

The Chairman: The marginal note to the Schedule should read "Section 29 (5)", and not "Section 29 (4)". This will be done.

The Schedule ordered to stand part of the Bill.

Bill reported with an amendment, read a Third time and passed.