Criminal References in Singapore – Revisiting The City Harvest Saga

Photo: Ernest Chua


Many readers will remember that following the six former City Harvest Church leaders’ successful appeal in the High Court earlier this year, the Attorney-General’s Chambers filed a criminal referencewith the Court of Appeal to clarify the law under which the church leaders were convicted.


After a hearing which lasted for over 4 hours on Tuesday, the five Judges of the Court of Appeal reserved their judgement on a criminal reference.


But what is a Criminal Reference?

A criminal reference is a specific but rare type of legal hearing involving the highest court in the Singapore justice system. Such hearings come as a response to a question of law which is of public interest and arises out of a decision of the High Court on appeal.


Because criminal references are intended to address complex legal questions, they are understandably rare. In fact, criminal references have only been invoked 21 times between 2007 and 2016. This means that a criminal reference is a significant event, not only for members of the legal community but also for the public as the proceedings are held in open court.


What happens during a criminal reference?

During a criminal reference, the parties submit questions that the Court of Appeal must answer. For example, in the recent City Harvest case, the Court of Appeal was asked whether reference to ‘agents’ section 409 of the Penal Code should be interpreted widely to encompass directors so that the City Harvest directors could considered as members of a class of people punishable under section 409 of the Penal Code.


After giving its final answer to these questions, the Court of Appeal will then make orders in relation to the sentences given.


What happens after a criminal reference?

Following a criminal reference, the Court of Appeal’s decision on the issue is final and is likely to have far-reaching implications within the legal system. Depending on the facts of the case, the judges may either quash the conviction, make orders to the acquittal or conviction of the accused person, or order a retrial in a lower court.


How is a criminal reference different from an appeal?

A criminal reference is not the same as an appeal for a number of reasons.


Firstly, the scope of a criminal reference is limited to questions of law which are of public interest, while the extent of an appeal could cover factors relevant to sentencing, as well as both questions of fact and questions of law.


Secondly, though an appeal may not necessarily be successful, it is available to the accused person as a right. On the other hand, an accused person must apply for the leave of the C(leave of Court is like asking for permission to do soourt to file a criminal referenc as this is not available as of right.


For these reasons, the Court of Appeal emphasised in Phang Wah v Public Prosecutor [2012] SGCA 60 that criminal references should not be used as a “backdoor” appeal and do not and that such applications do not “permit a dissatisfied accused a third bite at the cherry.” In Mohammad Faizal bin Sabtu and another v Public Prosecutor [2013] 2 SLR 141, the Court of Appeal also stated that it would only exercise its discretion sparingly in allowing criminal references.


What are the requirements for filing a criminal reference?

There are a number of requirements which must be satisfied before a criminal reference may be filed.


The procedural requirements are laid out in the case of Ong Beng Leong v PP [2005] 2 SLR(R) 247. In particular, before a criminal reference will be allowed, the following conditions must be satisfied:


a) there must be a question of law;
b) the question of law must be one of public interest and not of mere personal importance to the parties alone;
c) the question must have arisen in the matter dealt with by the High Court in the exercise of its appellate or revisionary jurisdiction; and
d) the determination of the question by the High Court must have affected the outcome of the case.


However, even if these above requirements are met, the Court still has the discretion to refuse an application for a criminal reference if it is made by any party other than the Public Prosecutor.


What makes the question one of public interest?

Whether a question of law is of public interest depends on the facts and circumstances of each case. A question of public interest may not be considered to be in the public interest just because it could apply to members of the public.


However, the Courts have provided some guidance on relevant factors that they will consider in determining whether a question is in the public interest.


These factors are as follows:
• Whether the question directly and substantially affects the rights of the parties.
• Whether it is an ‘open’ question in the sense that it is not finally settled by the Court of Appeal or is not free from difficulty or calls for discussion of alternate views;
• Whether the same question was answered differently by different common law jurisdiction;
• Whether there are conflicting High Court decisions on a particular legal issue requiring an authoritative determination by the Court of Appeal.


The Court of Appeal has previously stated that a new question of law will not always satisfy the public interest threshold.


In particular, a question of law will not be considered to be in the public interest if it has already been settled by the highest court or if the general principles in determining the question are well settled, and it is a mere question of applying these principles to the facts of the case.


All of this is based on the principle that Courts’ decisions should be final and the right to modify the outcome of an appeal should only be reserved for very limited circumstances.


How Can we help you?

At I.R.B. Law LLP our team of experienced Criminal Litigation Lawyers will be able to advise you on your matter. Such matters are filled with details and issues that require someone with a unique set of skills to review and to advise you on the matter, and we can do just that and more for you. We firmly believe that everyone deserves the right to be heard and to have the opportunity for a second chance.


Singaporean Lawyers will be able to guide you and explain to you each stage of the proceedings and guide you patiently through the process. So do not hesitate and contact us at 6589 8913 or send us an email at [email protected].


The information contained in this article is provided for general information only and may not reflect current status about applicable law, cases, settlements or judgements. Nothing contained on this website or article is intended to constitute legal advice, nor should it be construed as I.R.B Law LLP agreeing to provide legal services to you. You acknowledge and agree that your use of this website shall not create a lawyer-client relationship with I.R.B Law LLP.