Case Details
- Citation: [2016] SGHC 219
- Title: Rahimah Bte Mohd Salim v Public Prosecutor
- Court: High Court of the Republic of Singapore
- Date of Decision: 11 October 2016
- Case Number: Criminal Revision No 3 of 2016 (“CR 3/2016”)
- Coram: Chao Hick Tin JA
- Judges: Chao Hick Tin JA
- Applicant/Petitioner: Rahimah Bte Mohd Salim
- Respondent/Defendant: Public Prosecutor
- Legal Area: Criminal Procedure and Sentencing — Revision of proceedings
- Charges (substantive offences): s 411 of the Penal Code (Cap 224, 2008 Rev Ed); and 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; disclosure order made by a District Judge under s 235(1) of the Criminal Procedure Code
- Disclosure Order: Order compelling production of two psychiatric reports from the Institute of Mental Health (“IMH Reports”)
- Nature of the IMH Reports: (a) psychiatric report authored by Dr Stephen Phang (“Dr Phang’s Report”); (b) psychiatric report authored by Ms Jackki Yim and Dr Gwee Kenji (“Ms Yim’s Report”)
- Key procedural steps: Ancillary hearing under s 279 CPC to determine whether litigation privilege had been waived
- Revision sought: Set aside the disclosure order; order delivery up and striking of copies of the IMH Reports; and order a retrial before a different district judge
- Counsel for Petitioner: Liew Wey-Ren Colin and Niklas Wong See Keat (TSMP Law Corporation)
- Counsel for Respondent: Leong Wing Tuck, V Jesudevan and Stephanie Chew (Attorney-General’s Chambers)
- Judgment length: 20 pages, 12,338 words
- Cases cited (as provided): [1962] MLJ 413; [2016] SGHC 219
- Statutes referenced: Criminal Procedure Code; Supreme Court of Judicature Act
Summary
Rahimah Bte Mohd Salim v Public Prosecutor [2016] SGHC 219 concerned a criminal revision brought by an accused person against a District Judge’s order compelling disclosure of psychiatric reports obtained from the Institute of Mental Health (IMH). The accused argued that the reports were protected by litigation privilege because they were obtained for the purpose of preparing for trial and defending the charges. The central question before the High Court was whether the District Judge erred in ordering disclosure on the basis that any litigation privilege had been waived.
The High Court (Chao Hick Tin JA) dismissed the revision. The court accepted that litigation privilege and confidentiality are distinct concepts, but held that the evidence before the District Judge supported a finding of waiver. In particular, the court placed weight on the caution given by the IMH psychiatrist at the commencement of the assessment, and the accused’s agreement to proceed with the assessment despite the caution that what was disclosed could be recorded and produced in court. The practical effect was that the accused was required to disclose the IMH Reports to the Prosecution, and the trial proceeded with the psychiatrist giving evidence about the contents of the reports.
What Were the Facts of This Case?
The petitioner, Rahimah Bte Mohd Salim, faced charges in the State Courts relating to dishonestly receiving stolen property and transferring it to another party, as well as a charge under the confiscation regime. The charges were brought under s 411 of the Penal Code and s 47(1)(b) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act. The petitioner’s defence strategy included raising issues about her mental state, which led her to obtain psychiatric assessments.
Before any court application was made, counsel for the petitioner corresponded with the Institute of Mental Health to obtain a forensic psychiatric report. This correspondence resulted in two psychiatric reports from IMH: one authored by Dr Stephen Phang and another authored by Ms Jackki Yim and Dr Gwee Kenji. These IMH Reports were obtained in contemplation of litigation and for the purpose of preparing for trial. The petitioner later decided not to use all of the IMH material and obtained alternative reports from Raffles Hospital (the “Raffles Reports”), including a psychiatric report by Dr Lim and a psychological report by Ms Toh. Ultimately, she intended to rely only on Ms Toh’s Report in her defence.
Despite not intending to use the IMH Reports, the petitioner’s mental state remained a live issue in the proceedings. At a pre-trial conference on 1 October 2014, counsel sought an adjournment because the petitioner was waiting for an IMH appointment. Over the following months, counsel made further representations to the Attorney-General’s Chambers enclosing the Raffles Reports. At the next pre-trial conference on 22 May 2015, the court was informed that the petitioner was willing to attend IMH at the Prosecution’s expense, but only if assessed by a different doctor without access to her previous IMH medical history. The petitioner also reserved her right to exercise litigation privilege over any further IMH report that might be produced.
At a 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. The Prosecution subsequently applied under s 235(1) of the Criminal Procedure Code for disclosure of the IMH Reports on 11 November 2015. As part of the disclosure application, the Prosecution also gave notice of its intention under s 231 CPC to adduce an additional witness at trial, namely Dr Phang, who authored one of the IMH Reports.
On 21 April 2016, the District Judge dealt with the disclosure application through an ancillary hearing under s 279 CPC. The ancillary hearing focused on whether, assuming the IMH Reports were initially privileged, the petitioner had waived that privilege. Dr Phang testified about IMH’s assessment processes and, crucially, about the caution given to the petitioner at the start of the forensic psychiatric assessment. The District Judge ultimately found that there was sufficient evidence of waiver and ordered the petitioner to produce the IMH Reports to the Prosecution. The petitioner then brought the present criminal revision, seeking to set aside the disclosure order and obtain consequential relief, including delivery up and striking of privileged materials and a retrial before a different district judge.
What Were the Key Legal Issues?
The High Court identified the main issue as whether the IMH Reports were protected by litigation privilege and whether the District Judge had erred in making the disclosure order. Although the petitioner’s arguments were framed in terms of both the existence of privilege and the absence of waiver, the decisive question in the revision was whether the evidence supported the District Judge’s conclusion that litigation privilege had been waived.
A second, related issue concerned the scope and operation of waiver in the context of litigation privilege. The petitioner contended that waiver requires an intentional and deliberate act with complete awareness of the legal consequences. She argued that she did not understand the significance of the caution given by Dr Phang and that her command of English was insufficient to appreciate the effect of the caution. She also challenged the District Judge’s approach to the evidence, asserting that Dr Phang’s understanding of confidentiality and privilege was legally mistaken.
Finally, the revision raised the question of whether the High Court should exercise its revisionary jurisdiction to correct the disclosure order. The petitioner argued that serious injustice had been caused and would continue to be caused because the disclosure order forced her to waive or forego litigation privilege in order to defend herself, and because Dr Phang was permitted to testify about privileged communications. The Prosecution, by contrast, submitted that there was no palpable wrong or serious injustice and that the District Judge’s decision was correct on the evidence.
How Did the Court Analyse the Issues?
The High Court’s analysis proceeded from the legal characterisation of the reports and the privilege claimed. Litigation privilege is concerned with protecting communications and documents created for the dominant purpose of litigation. In this case, the IMH Reports were obtained through counsel’s correspondence with IMH for the purpose of assisting the petitioner’s defence and preparing for trial. The petitioner therefore had a strong starting point for claiming privilege. However, the court’s focus shifted to whether that privilege had been waived.
Waiver of litigation privilege is not automatic. The petitioner argued that waiver must be intentional and deliberate, and that it must be done with complete awareness of the consequences. The High Court therefore examined the evidence relied upon by the District Judge in the ancillary hearing. Dr Phang’s testimony was central. He explained IMH’s forensic psychiatric assessment process and testified that, before any assessment, the subject is cautioned that what is revealed would be recorded and may be produced in court as evidence. Dr Phang further testified that the petitioner understood and agreed to the caution at the start of the session, including through verbal indication and gestures.
The High Court also addressed the petitioner’s attempt to reframe Dr Phang’s evidence as being about confidentiality rather than privilege. The Prosecution had argued that the District Judge was correct to treat the caution as undermining the rationale for litigation privilege, because the caution directly related to the possibility that the contents could be produced in court. The High Court accepted that confidentiality and litigation privilege are distinct legal doctrines, but it agreed that the caution’s substance was relevant to waiver. In other words, even if the caution used language of confidentiality, the practical effect was that the petitioner was informed that the assessment communications were not to be treated as protected from court production.
On the waiver question, the High Court placed weight on the District Judge’s findings of fact. The District Judge had found that Dr Phang’s evidence showed the petitioner understood and agreed to the caution. The court also noted that Dr Phang’s clinical notes reflected that he had explained the nature and purpose of the psyche assessment, including the “no-confidentiality issue”. The High Court treated these as evidential foundations supporting waiver, rather than as mere formalities. The petitioner’s decision to proceed with the assessment after being cautioned was therefore treated as inconsistent with maintaining litigation privilege against disclosure.
The petitioner further argued that Dr Phang’s evidence betrayed a wrong view of the law, because Dr Phang allegedly believed that the duty to communicate truth to the court meant the communication was not confidential. The High Court’s approach was to separate the legal correctness of Dr Phang’s understanding from the factual question of what the petitioner was told and how she responded. Even if Dr Phang’s legal reasoning about confidentiality was not determinative, the caution given to the petitioner and her agreement to proceed were still capable of supporting a finding of waiver of privilege. The court’s reasoning thus focused on the evidential reality of waiver rather than on whether the psychiatrist’s conceptual explanation was perfectly aligned with legal doctrine.
Another important aspect of the High Court’s analysis concerned the petitioner’s “Additional Evidence” filed in the revision. The petitioner sought to rely on an affidavit stating that she did not understand the significance of the caution because of her command of English and that she did not recall what Dr Phang said at the start of the session. The Prosecution urged that this attempt should be treated with suspicion because the petitioner had the opportunity to challenge Dr Phang’s evidence at the ancillary hearing but declined to testify on the waiver issue. The High Court accepted that the procedural posture mattered: the ancillary hearing was the forum where the petitioner could have contested the evidence directly, and her decision not to do so reduced the weight of the later affidavit.
Finally, the High Court considered whether the revisionary jurisdiction should be exercised. Revision is not intended to provide a second bite at the cherry on matters that were properly considered below. The petitioner needed to show serious injustice or a palpable wrong. Given the evidential basis for waiver and the District Judge’s careful handling of the ancillary hearing, the High Court concluded that the threshold for intervention was not met. The disclosure order therefore stood.
What Was the Outcome?
The High Court dismissed the criminal revision. As a result, the District Judge’s disclosure order under s 235(1) CPC requiring the petitioner to produce the IMH Reports to the Prosecution remained in force. The consequential relief sought by the petitioner—delivery up and striking of copies of the IMH Reports from the record, and a retrial before a different district judge—was not granted.
Practically, the decision meant that the petitioner could not prevent the Prosecution from obtaining and using the IMH Reports, and the trial proceeded with Dr Phang giving evidence about the contents of the reports. The case therefore confirms that, in the context of forensic psychiatric assessments, waiver may be found where the accused is cautioned that the assessment communications may be produced in court and nevertheless proceeds with the assessment.
Why Does This Case Matter?
Rahimah Bte Mohd Salim [2016] SGHC 219 is significant for practitioners because it clarifies the interaction between litigation privilege and forensic psychiatric assessments obtained in contemplation of trial. While litigation privilege can protect documents and communications prepared for litigation, the privilege is vulnerable to waiver. The case demonstrates that waiver can be inferred from the accused’s informed participation in the assessment process, particularly where the accused is cautioned that the contents may be recorded and produced in court.
For defence counsel, the decision underscores the importance of managing privilege at the earliest stage. Where an accused intends to rely on litigation privilege to resist disclosure, counsel should consider whether the assessment process includes warnings that undermine the premise of confidentiality or protection from court production. If the accused must proceed with an assessment, counsel may need to ensure that the accused understands the caution and that the record clearly reflects any reservations or limitations intended to preserve privilege. Conversely, for the Prosecution, the case provides an evidential roadmap: testimony about the caution given and the accused’s understanding and agreement can be decisive in disclosure disputes.
From a procedural standpoint, the case also illustrates the limits of revisionary intervention. The High Court was unwilling to disturb the District Judge’s factual findings where the ancillary hearing had been conducted and the petitioner had an opportunity to challenge the evidence. This reinforces the principle that revision is not a substitute for cross-examination or evidence-gathering at the appropriate stage.
Legislation Referenced
- Criminal Procedure Code (Cap 68, 2012 Rev Ed) — in particular ss 231, 235(1), 279, and 400 (as referenced in the parties’ submissions)
- Supreme Court of Judicature Act — as referenced in the context of revisionary jurisdiction
- Penal Code (Cap 224, 2008 Rev Ed) — s 411
- Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) — s 47(1)(b)
Cases Cited
- [1962] MLJ 413
- [2016] SGHC 219
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.