Case Details
- Title: RAHIMAH BINTE MOHD SALIM v PUBLIC PROSECUTOR
- Citation: [2016] SGHC 219
- Court: High Court of the Republic of Singapore
- Date: 11 October 2016
- Case Type: Criminal Revision No 3 of 2016
- Judge(s): Chao Hick Tin JA
- Hearing Dates: Judgment reserved on 25 May 2016; decision delivered on 11 October 2016
- Applicant/Petitioner: Rahimah Binte Mohd Salim
- Respondent: Public Prosecutor
- Charges: Offence under s 411 of the Penal Code (Cap 224, 2008 Rev Ed); and offence under s 47(1)(b) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed)
- Procedural Context: State Courts trial; ancillary hearing under s 279 of the Criminal Procedure Code; revision application in the High Court
- Key Statutory Provision at Issue: s 235(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (disclosure of documents/reports)
- Core Substantive/Procedural Themes: Litigation privilege; waiver; confidentiality vs privilege; scope of revisionary jurisdiction; remedies for disclosure of privileged material
- Key Orders Sought in Revision: (a) set aside the Disclosure Order; (b) order delivery up and striking off of IMH Reports; (c) order a retrial before a different district judge
- Key Evidence/Materials: Two psychiatric reports from the Institute of Mental Health (IMH): Dr Stephen Phang’s report and a report authored by Ms Jackki Yim and Dr Gwee Kenji (collectively, the “IMH Reports”); and later “Raffles Reports” (Dr Lim’s psychiatric report and Ms Toh’s psychological report)
- Additional Evidence: Affidavit dated 25 April 2016 (the “Additional Evidence”) addressing the petitioner’s understanding of the caution and her recollection
- Cases Cited: [2016] SGHC 219 (as provided in metadata)
- Judgment Length: 42 pages, 13,175 words
Summary
Rahimah Binte Mohd Salim v Public Prosecutor concerned a criminal revision arising from an order compelling disclosure of psychiatric reports obtained from the Institute of Mental Health (“IMH Reports”). The petitioner, an accused person in the State Courts, had obtained the IMH Reports for the purpose of assisting her defence and potentially claiming trial. During the trial, the prosecution applied under s 235(1) of the Criminal Procedure Code (“CPC”) for disclosure of those reports. The district judge (“DJ”) made a “Disclosure Order” after an ancillary hearing, holding that any litigation privilege attached to the IMH Reports had been waived.
In the High Court, Chao Hick Tin JA focused on whether the IMH Reports were protected by litigation privilege and, crucially, whether that privilege had been waived. The petitioner argued that the DJ erred in law and fact, including by relying on evidence from an IMH psychiatrist (Dr Phang) about the caution given to her at the start of the forensic assessment. She also sought to rely on additional evidence about her understanding of the caution. The High Court ultimately addressed the scope of revisionary intervention and the appropriate remedies where privileged material has been ordered to be disclosed and used in trial proceedings.
What Were the Facts of This Case?
The petitioner faced charges relating to dishonestly receiving stolen property and transferring it to another party. In addition, she faced a charge under the confiscation regime for serious crimes, specifically under s 47(1)(b) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act. The charges required the prosecution to prove, among other things, the relevant mental and factual elements. The petitioner’s defence strategy included raising issues concerning her mental state.
To assist her defence, the petitioner’s counsel corresponded with the Institute of Mental Health to obtain a forensic psychiatric assessment. The IMH Reports were therefore obtained by the petitioner in contemplation of trial and for the purpose of defending the charges. Importantly, the IMH Reports were not obtained through a court motion or at the prosecution’s request. The petitioner later decided not to use the IMH Reports and instead obtained alternative assessments at Raffles Hospital: a psychiatric report by Dr Lim and a psychological report by Ms Joanne Toh (collectively, the “Raffles Reports”). Ultimately, the petitioner intended to use only Ms Toh’s report in her defence.
The issue of disclosure arose after the petitioner’s mental state became a live issue in the proceedings. On 1 October 2014, at a pre-trial conference (“PTC”), counsel sought an adjournment because the petitioner was waiting for an IMH appointment. Five months later, counsel sent representations enclosing the Raffles Reports to the Attorney-General’s Chambers. At the next PTC on 22 May 2015, the DJ was informed that counsel had indicated the petitioner was willing to attend IMH at the prosecution’s expense, but only if she were assessed by a different doctor without access to her previous IMH medical history. Counsel also reserved the petitioner’s right to exercise litigation privilege over any further IMH report that might be produced.
At the second Criminal Case Disclosure Conference on 24 June 2015, the prosecution informed the court that IMH declined to provide a second opinion because it had already rendered an opinion in the IMH Reports. The prosecution then asked the petitioner to disclose the IMH Reports. The petitioner refused, asserting litigation privilege. On 11 November 2015, the prosecution applied under s 235(1) of the CPC for disclosure of the IMH Reports. As part of the broader trial preparation, the prosecution also gave notice under s 231 of the CPC of its intention to adduce an additional witness, Dr Phang, on 18 April 2016.
When Dr Phang was called on 21 April 2016, he gave evidence about IMH’s policies and processes for forensic psychiatric assessments. He testified that subjects are cautioned that what they reveal may be recorded and could be produced in court as evidence, and that the assessment would not proceed unless the subject understood and agreed to the caution. Immediately after his evidence, the DJ conducted an ancillary hearing under s 279 of the CPC to decide the s 235 application. The ancillary issue was framed on the assumption that litigation privilege applied, namely whether it had been waived.
Dr Phang testified that he had issued a caution to the petitioner that the assessment was forensic, that whatever she told him would be recorded and not confidential, and that it could be produced in court. He also testified that the petitioner understood and agreed to the caution, that she understood English such that an interpreter was unnecessary, and that while IMH labelled the reports “confidential” to the outside world, confidentiality did not extend to trial proceedings. He further stated that his clinical notes reflected that he had explained the nature and purpose of the assessment, including the “no-confidentiality issue.” The petitioner declined to testify on the ancillary issue.
After hearing Dr Phang, the DJ found that there was sufficient evidence of waiver and ordered the petitioner to produce the IMH Reports to the prosecution. The petitioner immediately sought a stay of the Disclosure Order to bring a criminal revision, but the DJ refused. The trial then proceeded with Dr Phang giving evidence about the contents of the IMH Reports, and the prosecution led questions regarding those contents.
On 25 April 2016, the petitioner filed the criminal revision (CR 3/2016) and sought a stay of proceedings before the DJ. The High Court granted a stay on 29 April 2016. In the revision, the petitioner argued that the IMH Reports were protected by litigation privilege and that the DJ erred in finding waiver. She also sought to rely on additional evidence via an affidavit dated 25 April 2016, asserting that her command of English would not have allowed her to understand the significance of the caution and that she did not recall what Dr Phang said at the start of the session.
What Were the Key Legal Issues?
The High Court identified the central issues as whether the IMH Reports were protected by litigation privilege and whether the DJ had erred in making the Disclosure Order. The petitioner’s position was that litigation privilege attaches to communications and documents created for the dominant purpose of litigation, and that the prosecution could not compel disclosure under s 235(1) of the CPC if privilege remained intact.
Even if litigation privilege applied, the second key issue was waiver. The petitioner contended that waiver requires an intentional and deliberate act with complete awareness of the legal consequences of waiving privilege. She argued that the evidence did not show such awareness. She further challenged the DJ’s reliance on Dr Phang’s evidence, asserting that Dr Phang’s understanding of confidentiality and privilege was legally mistaken and that the caution did not amount to a waiver of litigation privilege.
Finally, the revision raised questions of remedy. The petitioner sought not only to set aside the Disclosure Order, but also orders that the IMH Reports be delivered up and struck off from the record, and that a retrial be ordered before a different district judge. These remedies required the High Court to consider the revisionary jurisdiction under the CPC, the seriousness of any error, and whether any prejudice or injustice had occurred or would continue to occur.
How Did the Court Analyse the Issues?
The High Court’s analysis proceeded by examining the nature of litigation privilege and the circumstances in which it may be waived. Litigation privilege is distinct from confidentiality. Confidentiality concerns whether information is protected from disclosure as a matter of ethical or contractual duty, whereas litigation privilege is a legal protection grounded in the adversarial process and the need for a party to prepare its case without being compelled to disclose adversarial communications. The court therefore treated the petitioner’s arguments about “confidentiality” with caution, recognising that even if a report is not confidential in the ordinary sense, it may still be privileged if it was created for litigation purposes.
On the facts, the IMH Reports were obtained by the petitioner for the purpose of assisting her defence and potentially claiming trial. That context supported the petitioner’s contention that litigation privilege was engaged. However, the court then turned to waiver. The DJ had found waiver based on Dr Phang’s evidence that the petitioner was cautioned that the forensic assessment was not confidential and could be produced in court, and that she understood and agreed to proceed on that basis. The High Court therefore assessed whether the caution and the petitioner’s conduct amounted to an intentional relinquishment of privilege.
In evaluating waiver, the court considered the evidence of the caution’s content and the petitioner’s understanding. Dr Phang’s testimony was central: he stated that he had explained the “no-confidentiality issue,” that the petitioner understood English, and that his clinical notes reflected that the nature and purpose of the assessment, including the possibility of court production, had been explained. The petitioner did not testify at the ancillary hearing, and the DJ accepted Dr Phang’s evidence as sufficient to establish waiver.
The petitioner’s challenge included an argument that Dr Phang held a wrong view of the law of confidentiality and privilege. The High Court addressed this by separating the legal effect of the caution from the witness’s subjective understanding. Even if Dr Phang’s framing of “confidentiality” was not identical to the legal concept of litigation privilege, the question remained whether the petitioner was made aware of the practical consequence that the contents could be used in court and whether she proceeded with that knowledge. The court’s approach reflects a pragmatic assessment of waiver: what matters is whether the accused, with the relevant awareness, chose to proceed such that privilege would no longer be maintained.
As to the additional evidence, the petitioner sought to introduce an affidavit asserting that she did not understand the caution due to limited English and did not recall what was said. The High Court considered the evidential weight of this material in light of the ancillary hearing record. The court was also mindful that the petitioner had declined to take the stand at the ancillary hearing when invited to do so. The High Court therefore treated the additional evidence as relevant but not necessarily decisive, particularly where the ancillary hearing had already produced direct evidence from the psychiatrist and where the petitioner’s opportunity to contest the waiver finding had been available.
Finally, the court addressed remedies and the revisionary threshold. Revision under the CPC is not a vehicle for a routine re-hearing of factual disputes. The High Court considered whether the DJ’s decision involved an error of sufficient seriousness to justify setting aside the Disclosure Order and, if so, what corrective steps were appropriate. The petitioner’s request to strike the IMH Reports off the record and to order a retrial before a different DJ required the court to consider whether the disclosure and use of the reports had caused a miscarriage of justice, and whether the prejudice could be cured without the drastic remedy of a retrial.
What Was the Outcome?
The High Court dismissed the criminal revision. In substance, the court upheld the DJ’s finding that litigation privilege had been waived and that the Disclosure Order should stand. As a result, the prosecution was entitled to receive the IMH Reports and to rely on them in the trial proceedings.
Consequently, the petitioner’s further requests—delivery up and striking off of the IMH Reports from the record, and a retrial before a different district judge—were not granted. The practical effect was that the trial would proceed on the basis that the IMH Reports were properly disclosed and could be used, subject to the High Court’s stay order having been granted during the revision and then lifted in accordance with the dismissal.
Why Does This Case Matter?
This decision is significant for practitioners because it clarifies how litigation privilege may be lost in criminal proceedings, particularly where an accused obtains psychiatric or forensic assessments and then proceeds with them in circumstances that indicate the contents may be used in court. The case underscores that privilege is not absolute; it can be waived where the accused is cautioned about the forensic nature of the assessment and proceeds with knowledge of the consequences.
For defence counsel, the case highlights the importance of ensuring that any forensic assessment is obtained with a clear and legally meaningful reservation of privilege, and that the accused’s understanding is properly documented. Where the assessment process includes cautions about non-confidentiality and court production, counsel should consider whether those cautions will be treated as undermining privilege. The decision also illustrates the evidential risks of not giving evidence at an ancillary hearing when waiver is contested.
For prosecutors, the case provides support for disclosure applications under s 235(1) of the CPC where the defence’s conduct and the assessment process show waiver. It also demonstrates that courts will distinguish between confidentiality and litigation privilege, but will still focus on the practical reality of whether the accused knowingly proceeded in a way inconsistent with maintaining privilege.
Legislation Referenced
- Penal Code (Cap 224, 2008 Rev Ed), s 411 [CDN] [SSO]
- Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed), s 47(1)(b) [CDN] [SSO]
- Criminal Procedure Code (Cap 68, 2012 Rev Ed), s 231 [CDN] [SSO]
- Criminal Procedure Code (Cap 68, 2012 Rev Ed), s 235(1) [CDN] [SSO]
- Criminal Procedure Code (Cap 68, 2012 Rev Ed), s 279 [CDN] [SSO]
- Criminal Procedure Code (Cap 68, 2012 Rev Ed), s 400 [CDN] [SSO]
Cases Cited
Source Documents
This article analyses [2016] SGHC 219 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.