"In relation to public prosecutions, Art 35(8) makes it clear that the institution, conduct or discontinuance of any criminal proceedings is a matter for only the Attorney-General to decide. This means that except for unconstitutionality, the Attorney-General has an unfettered discretion as to when and how he exercises his prosecutorial powers. This also means that it is improper for the court to prevent the Attorney-General from prosecuting an offender by staying the prosecution." — Per Hoo Sheau Peng J, Para 17(d)
Case Information
- Citation: [2020] SGHC 186
- Court: High Court of the Republic of Singapore
- Decision Date: 3 September 2020
- Coram: Hoo Sheau Peng J
- Counsel for Plaintiff/Appellant: Teo Guan Siew, Jiang Ke-Yue, Nicholas Tan, Loh Hui-min, Ng Jean Ting and David Koh (Attorney-General's Chambers) for the prosecution (Para 0)
- Counsel for Defendant/Respondent: Narayanan Sreenivasan SC, Lim Wei Liang Jason and Tan Zhen Wei Victoria (K&L Gates Straits Law LLC) for the first accused; Philip Fong Yeng Fatt, Sui Yi Siong and Lau Jia Min Jaime (Eversheds Harry Elias LLP) for the second accused (Para 0)
- Case Number: Criminal Case No 9 of 2019 (Para 0)
- Area of Law: Criminal Procedure and Sentencing — Trials (Para 0)
- Judgment Length: Approximately 18 paragraphs in the excerpt provided; the full judgment is longer, but the supplied text is a short reasoned ruling (Paras 1-18)
Summary
This judgment arose in the midst of an ongoing stock market manipulation trial in which the two accused persons faced a very large number of charges relating to the securities of Blumont, Asiasons and LionGold, as well as additional charges against the first accused for bankruptcy-related management offences and witness tampering. The accused applied for a permanent stay, or alternatively a conditional stay, contending that the Prosecution’s conduct had so prejudiced them that a fair trial was impossible. The Prosecution resisted, arguing that the court had no inherent power to stay criminal proceedings because such a power would trench upon the Attorney-General’s constitutional prosecutorial discretion. The judge dismissed the applications and gave full reasons because the issue was uncommon and raised a constitutional point of general importance. (Paras 1-6)
The central issue was whether Singapore courts possess an inherent power to stay criminal proceedings for abuse of process. The judge reviewed the English, Australian, New Zealand and Hong Kong authorities relied on by the accused, and also the Singapore cases of Ho So Mui, Saroop Singh, Sum Lye Heng, Yunani and Phyllis Tan. The judgment emphasised that while some local decisions had suggested or accepted a stay power in limited contexts, the position in Singapore was not settled, and the Court of Appeal had not finally determined the constitutional question. The judge then set out the relevant constitutional provisions, including Art 35(8) and Art 93, before proceeding to analyse the competing arguments. (Paras 9-18)
On the material excerpt provided, the judge’s key conclusion was that, in public prosecutions, Art 35(8) makes the institution, conduct and discontinuance of criminal proceedings a matter for the Attorney-General, subject only to unconstitutionality. The judge therefore treated the Prosecution’s constitutional objection seriously and ultimately dismissed the stay applications. The excerpt does not include the later reasoning on the precise scope of any stay jurisdiction or the detailed application to the facts, so those aspects are not addressed here beyond what is expressly stated in the supplied text. (Paras 6, 14, 17(d), 18)
What Were the Charges Against the Accused?
The accused persons faced 178 charges each for being parties to a criminal conspiracy to commit 10 offences under s 197(1)(b) of the Securities and Futures Act, 162 offences under s 201(b) of the Securities and Futures Act, and six offences under s 420 of the Penal Code, all punishable under s 120B of the Penal Code read with other provisions. These charges concerned the securities of Blumont Group Limited, Asiasons Capital Ltd and LionGold Corp Ltd over the period from 1 August 2012 to 3 October 2013. (Para 2)
In addition, the first accused faced three charges under s 148 of the Companies Act for being concerned in the management of Blumont, Asiasons and LionGold while an undischarged bankrupt, and further charges for witness tampering and attempted witness tampering under s 204A of the Penal Code and s 511 of the Penal Code. The judgment identifies these as separate groups of charges and makes clear that the stay application was brought in the context of this broad and complex criminal trial. (Para 3)
What Relief Did the Accused Seek?
The accused applied for a permanent stay of the proceedings, and in the alternative a conditional stay. Their position was that the court had an inherent power to stay criminal proceedings to prevent abuse of process, and that the Prosecution’s conduct had caused such serious prejudice that a fair trial was impossible. They argued that a stay was necessary to protect the integrity of the proceedings. (Para 4)
The judgment records that the accused framed the issue as one of abuse of process and fairness, rather than as a challenge to the merits of the charges themselves. Their application was therefore directed at the continuation of the trial, not at the substantive criminal allegations. (Para 4)
What Was the Prosecution’s Response?
The Prosecution disputed the existence of any inherent power to stay criminal proceedings. It argued that the constitutional separation of judicial and prosecutorial powers precluded such a power, because a stay would interfere with the Attorney-General’s exclusive authority to institute, conduct or discontinue proceedings under Art 35(8) of the Constitution. On that footing, the Prosecution submitted that a permanent stay would amount to a judicial discontinuance of the proceedings, while a conditional stay would improperly impose conditions before a prosecution could be re-instituted. (Paras 5, 13-14)
In the alternative, the Prosecution argued that even if such a power existed, it should be exercised only in exceptional circumstances. It maintained that the allegations against it were unmeritorious and that there was no basis for the court to grant either form of stay. (Para 5)
Did the Court Consider Foreign Authorities on Abuse of Process?
Yes. The judge noted that the parties did not dispute that in England, Australia and New Zealand the superior courts have an inherent power to stay criminal proceedings for abuse of process. The judgment specifically refers to Maxwell, where Lord Dyson JSC stated that a stay may be granted where a fair trial is impossible or where it offends the court’s sense of justice and propriety to try the accused in the circumstances. The judgment also quotes Lord Morris in Connelly on the inherent powers necessary for a court to suppress abuses of process and safeguard an accused from oppression or prejudice. (Paras 15-16)
The accused also relied on Jago, Bui, Moevao and Lee Ming Tee to support the proposition that such a stay power exists in other common law jurisdictions. The Prosecution, however, distinguished those authorities on the basis that they did not involve a constitutional provision equivalent to Art 35(8) of the Singapore Constitution, and that Lee Ming Tee did not specifically consider whether an inherent stay power would impinge on the relevant constitutional prosecutorial power. (Paras 10, 14)
How Did the Court Treat the Singapore Authorities?
The judge summarised five Singapore decisions in chronological order. In Ho So Mui, the Court of Appeal gave only a preliminary view that a power may exist to stay criminal proceedings where the accused could not have a fair trial, but expressly stated that it was not a definitive view. In Saroop Singh, Yong Pung How CJ accepted that the court had a discretion to stay criminal proceedings on the ground of substantial delay and exercised that power because a fair retrial would be impossible after a 15-year delay. (Para 17(a)-(b))
In Sum Lye Heng, Woo Bih Li J recognised that the High Court had the power to grant a permanent stay of criminal proceedings for abuse of process, but that case involved a private prosecution and the parties did not dispute the court’s power to stay. In Phyllis Tan, the Court of Three Judges held that evidence obtained by entrapment or illegal means did not amount to an abuse of process warranting a stay, and it also stated that in public prosecutions Art 35(8) makes the institution, conduct or discontinuance of criminal proceedings a matter for the Attorney-General, making it improper for the court to prevent prosecution by staying the case. (Para 17(c)-(d))
In Yunani, VK Rajah JA remitted the matter for retrial but doubted the correctness of Saroop Singh because the constitutional point had not been considered there and the foreign authorities cited in that case came from jurisdictions without a similar constitutional provision. He left the issue open for decision on full arguments. The judge in the present case observed that the local authorities were therefore divergent and that there was no binding Court of Appeal decision on the issue. (Para 17(e), 18)
What Constitutional Provisions Were Central to the Dispute?
The judgment identifies Art 35(8) of the Constitution as central to the Prosecution’s argument. The Prosecution’s position was that this provision confers exclusive powers on the Attorney-General to institute, conduct or discontinue criminal proceedings, and that a judicial stay would impermissibly intrude into that domain. The accused, by contrast, argued that the court’s judicial power under Art 93 to control and manage its proceedings could circumscribe prosecutorial power. (Paras 12-14, 18)
The judge noted that the constitutional issue was not resolved by the earlier Singapore cases because the three cases preceding Phyllis Tan did not deal with the constitutionality point. The excerpt also records that the judge set out the relevant constitutional Articles after observing the divergence in local authority. The supplied text does not include the full text of those Articles beyond the opening of Art 35, so the judgment does not address this issue further in the excerpt. (Paras 14, 18)
What Did the Court Decide on the Stay Applications?
The judge dismissed the applications for a permanent stay and a conditional stay. The judgment states this expressly and explains that full reasons were provided because of the uncommon nature of the applications and the constitutional point raised by the Prosecution. The excerpt does not include the later detailed reasoning applying the law to the facts, but the operative result is clear. (Para 6)
From the reasoning provided in the excerpt, the judge’s approach was that the constitutional allocation of prosecutorial power under Art 35(8) was a serious obstacle to the accused’s claim that the court could stay public prosecutions as an inherent power. The judgment does not address any further factual findings on prejudice in the excerpt supplied. (Paras 14, 17(d), 18)
Why Does This Case Matter?
This case matters because it squarely raises, in a public prosecution, the unresolved Singapore question whether the High Court has an inherent power to stay criminal proceedings for abuse of process. The judgment is significant for its careful mapping of the local authorities and its recognition that Singapore law was not settled by any binding Court of Appeal decision on the constitutional issue. That makes the case an important reference point for future arguments about the relationship between judicial case management and prosecutorial discretion. (Paras 17-18)
It is also practically important because the accused were facing a very large multi-charge trial involving alleged stock market manipulation, bankruptcy-related management offences and witness tampering. The judgment shows that stay applications can arise even in complex, high-stakes criminal trials, and that the court will scrutinise them against the constitutional framework governing public prosecutions. The case therefore has significance for both criminal procedure and constitutional criminal law. (Paras 1-6, 12-14)
Cases Referred To
| Case Name | Citation | How Used | Key Proposition |
|---|---|---|---|
| Attorney General’s Reference (No 1 of 1990) | [1992] 3 All ER 169 | Referred to | Cited as an English authority supporting the proposition that courts may stay criminal proceedings for abuse of process. (Paras 9, 17(a), 17(d)) |
| R v Horseferry Road Magistrates’ Court Ex parte Bennett | [1994] 1 AC 42 | Referred to | Relied on by the accused as part of the English line of authority on abuse of process stays. (Para 9) |
| R v Maxwell | [2011] 1 WLR 1837 | Referred to | Quoted for the two categories of cases in which a stay may be granted: impossibility of a fair trial, or affront to justice and propriety. (Para 15) |
| Connelly v Director of Public Prosecutions | [1964] 2 WLR 1145 | Referred to | Quoted for the rationale that courts have inherent powers to suppress abuses of process and protect accused persons from oppression or prejudice. (Para 16) |
| Jago v District Court of New South Wales | (1989) 87 ALR 577 | Referred to | Cited by the accused as an Australian authority supporting the stay power. (Para 10) |
| R v Trong Ruyen Bui | [2011] ACTSC 102 | Referred to | Cited by the accused as an Australian authority supporting the stay power. (Para 10) |
| Moevao v Department of Labour | [1980] 1 NZLR 464 | Referred to | Cited by the accused as a New Zealand authority supporting the stay power. (Para 10) |
| HKSAR v Lee Ming Tee and another | [2001] 1 HKLRD 599 | Referred to | Cited by the second accused as a Hong Kong authority said to support the same proposition. (Para 10, 14) |
| Public Prosecutor v Ho So Mui | [1993] 1 SLR(R) 57 | Referred to | Summarised as giving only a preliminary, non-definitive view that a stay may be available where a fair trial is impossible. (Para 17(a)) |
| Public Prosecutor v Saroop Singh | [1999] 1 SLR(R) 241 | Referred to | Summarised as accepting a discretion to stay criminal proceedings for substantial delay and dismissing the appeal because a fair retrial would be impossible. (Para 17(b)) |
| Sum Lye Heng (also known as Lim Jessie) v Management Corporation Strata Title Plan No 2285 and others | [2003] 4 SLR(R) 553 | Referred to | Summarised as recognising a power to grant a permanent stay in a private prosecution for abuse of process. (Para 17(c)) |
| Williams v Spautz | 174 CLR 509 | Referred to | Cited in Sum Lye Heng as an Australian authority that in turn referred to Connelly. (Para 17(c)) |
| Law Society of Singapore v Tan Guat Neo Phyllis | [2008] 2 SLR(R) 239 | Referred to | Summarised as holding that entrapment or illegal procurement of evidence did not amount to abuse of process warranting a stay, and as stating that public prosecutions are for the Attorney-General under Art 35(8). (Para 17(d)) |
| Goh Cheng Chuan v PP | [1990] 1 SLR(R) 660 | Referred to | Referred to in Phyllis Tan for the proposition that once an accused is brought before a court, proceedings are subject to the court’s control. (Para 17(d)) |
Legislation Referenced
- Companies Act (Cap 50, 2006 Rev Ed) — s 148 (Paras 3, 11)
- Criminal Procedure Code — referred to in the case title and area of law, but no specific provision is identified in the supplied excerpt. The judgment does not address this issue. (Para 0)
- Legal Profession Act (Cap 161, 2001 Rev Ed) — ss 83(2)(e) and 83(2)(h) (Para 17(d))
- Penal Code (Cap 224, 2008 Rev Ed) — ss 120B, 204A and 511 (Paras 2-3)
- Securities and Futures Act (Cap 289, 2006 Rev Ed) — ss 197(1)(b) and 201(b) (Para 2)
- Constitution of the Republic of Singapore (1999 Reprint) — Arts 35(8) and 93 (Paras 5, 12-14, 17(d), 18)
Source Documents
This article analyses [2020] SGHC 186 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.