Criminal Law: Section 147 of the Criminal Procedure Code
When Re-instating Previously Withdrawn Charges May Amount to an Abuse of Process
In Beh Chew Boo v Public Prosecutor  SGCA 44, the Singapore Court of Appeal passed judgment by a 2-1 majority that allowing the prosecution to reinstate and proceed with non-capital charges previously withdrawn against the appellant would amount to an abuse of process.
The Law on Reinstatement of Previously Withdrawn Charges
Where an accused faces 2 or more charges levelled by the prosecution, and he is then convicted for one or more of them, section 147(1) of the Criminal Procedure Code allows the prosecution to withdraw the remaining charge/s.
Section 147(2) states that a withdrawal under section 147(1) shall have the effect of an acquittal on the withdrawn charges unless the conviction on the capital charge is set aside.
Section 147(3) mandates that if a conviction is set aside under section 147(2), the court may proceed with a trial of the charges which were previously withdrawn.
It should also be kept in mind that in Singapore, the practice of standing down charges is commonly observed especially when the prosecution proceeds only with a capital charge. By doing so, the accused person can focus on his defence to the capital charge without having to also defend himself against the other charges at the same time.
Factual Background and History of Proceedings
Mr Beh was caught at an immigration checkpoint with 5 different drugs in 5 different quantities, all of which were placed in a plastic bag, which was stored on a motorcycle which belonged to someone else. Mr Beh claimed all along that he was not aware of the plastic bag and what was in the plastic bag. The 5 charges levelled against Mr Beh was for 5 different drugs, 1 of which (the charge for methamphetamines) would possibly result in capital punishment, while the other 4 would not.
The prosecution stood down the 4 non-capital charges and proceeded on the capital charge.
Mr Beh was convicted and sentenced to death. Mr Beh appealed against his conviction and the prosecution withdrew the four remaining charges pursuant to section 147(1).
Mr Beh succeeded in his appeal. The Court of Appeal set aside the conviction because it found that Mr Beh’s defence was not inherently incredible. His defence was that he did not know that there was a plastic bag in the motorcycle. Pertinent facts raised include the fact that Mr Beh was not the owner of the motorcycle, the fact that Mr Beh’s DNA was not found on any of the drug exhibits (but the drug exhibits did contain the DNA of the motorcycle owner). It was found that Mr Beh had successfully rebutted the presumption of possession of the drugs.
The prosecutor then applied to reinstate the 4 non-capital charges under section 147(3). The defence objected, and the Court of Appeal had to pass judgment on whether the 4 non-capital charges could be reinstated.
The Issues Considered by the Court
Based on the pleaded cases of Mr Beh and the prosecution, the 3 main issues which the Court of Appeal had to consider were as follows:
(a) Would proceeding with the Non-Capital Charges offend the rule against double jeopardy under Art 11(2) of the Constitution, s 244(1) of the CPC and/or the common law?
(b) Did issue estoppel prevent a trial of the Non-Capital Charges?
(c) Would proceeding with the Non-Capital Charges amount to an abuse of process?
The court declined to allow reinstatement of the previously withdrawn non-capital charges because of issue (c) – it found that such reinstatement would have amounted to an abuse of process.
We shall now discuss (a) and (b) briefly before discussing the court’s decision on the abuse of process issue.
Mr Beh sought to argue that Article 11(2) of the Constitution of Singapore, section 244 of the Criminal Procedure Code and the common law doctrines of autrefois acquit (also known as autrefois convict) would all protect him from being in double jeopardy – being tried for the same offence and/or facts for the second time.
Article 11(2) of the Constitution reads as follows:
Protection against retrospective criminal laws and repeated trials
11.—(1) No person shall be punished for an act or omission which was not punishable by law when it was done or made, and no person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed.
(2) A person who has been convicted or acquitted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was convicted or acquitted.
The relevant portions of section 224 of the Criminal Procedure Code read as follows:
Person once convicted or acquitted not to be tried again for offence on same facts
244.—(1) A person who has been tried by a court of competent jurisdiction for an offence and has been convicted or acquitted of that offence shall not be liable, while the conviction or acquittal remains in force, to be tried again for the same offence nor on the same facts for any other offence for which a different charge might have been made under section 138 or for which he might have been convicted under section 139 or 140.
(2) A person acquitted or convicted of any offence may afterwards be tried for any distinct offence for which a separate charge might have been made against him in the former trial under section 134.
At common law, it is well-established under the doctrine of autrefois acquit and convict that a person cannot be tried for a crime in respect of which he has previously been acquitted or convicted
The Court of Appeal ruled that:
- The requirements of the double jeopardy rule are strict, and the doctrine does not prevent a reinstatement of withdrawn charges following the acquittal of a distinct charge. Here, the court found that the non-capital charges were distinct because they concerned different drugs in different quantities.
- Article 11(2) of the Constitution of Singapore and the first limb of section 244(1) of the Criminal Procedure Code protected an accused person from being tried for the same offence after he had been previously convicted or acquitted for “the same offence”. Once again, the court found that the non-capital charges were distinct because they concerned different drugs in different quantities.
- The second limb of s 244(1) precluded an accused person who has been tried and convicted/acquitted of an offence to be tried again on the same facts for any other offence which could have been pursued under sections 138–140 of the Criminal Procedure Code. This limb also did not apply because sections 138–140 did not apply to the non-capital charges.
- In any event, s 244(2) of the CPC also permitted Mr Beh to be tried for the non-capital charges, as those charges could have been made against him in the former trial of the capital charge under section 134 of the Criminal Procedure Code.
- The common law doctrine of autrefois acquit would not prevent the prosecution from proceeding with the non-capital charges, as that doctrine also required the offences to be the same in fact and in law.
Mr Beh raised the legal maxim of res judicata to bolster his claim. Although he did not specify exactly which type of res judicata was being argued, the Court of Appeal agreed with the prosecution that it seemed that issue estoppel was being argued – that since the issue of whether or not Mr Beh knew of the plastic bag in question had already been adjudicated upon, the same issue could not be raised in a fresh criminal trial.
Issue estoppel prevents a party from relitigating a question of fact or law which has been determined by a court, either in the course of the same litigation or in other litigation which raises the same point between the same parties. The Court found that it was unnecessary to reach a conclusion on the controversial issue of whether issue estoppel should apply to criminal proceedings, as the crux of the problem with the Prosecution’s intention to proceed with the non-capital charges was that it would amount to an abuse of process.
Abuse of Process
Once again, Mr Beh’s arguments on abuse of process centred on the issue of his knowledge of the plastic bag. If the trial of the non-capital charges resulted in a finding that Mr Beh did know of the plastic bag and its contents, it would raise questions as to his acquittal on the capital charge. Mr Beh thus argued that the proposed reinstatement was a backdoor attempt to retry a critical finding of fact that had been made in respect of the capital charge.
The court reformulated Mr Beh’s argument as follows – that the prosecution was trying to mount a collateral attack against the previous judgment by attempting to secure an inconsistent court judgment in the proposed trial of the non-capital charges.
The Court of Appeal considered the matter of collateral attacks on previous judgment carefully with an analysis of previous judgments in a few jurisdictions and laid out the following principles for such matters:
- The court has the inherent power to prevent the use of its procedure in a way which:
- would be manifestly unfair to a party to litigation before it,
- or would otherwise bring the administration of justice into disrepute among right-thinking people.
- Finality is an important aspect of any system of justice.
- A verdict of acquittal (after the avenues of appeal have been exhausted) is to be treated as incontrovertibly correct.
- The doctrine of abuse of process is founded not only on the private interest of a party not to be vexed twice in respect of the same complaint but also on the public interest of the state in not having issues repeatedly litigated.
- These interests reflect unfairness to a party on the one hand, and the risk of the administration of justice being brought into disrepute on the other.
- It would bring disrepute to the administration of justice if, the same question having been disposed of in one case, the litigant in a civil case were permitted by changing the form of the proceedings to reopen the same issue. This should similarly be the case in the criminal-criminal context.
- The “proper method” of challenging any aspect of a trial judge’s decision is to make that challenge in an appeal against the trial judge’s decision.
- The initiation of later proceedings collaterally challenging an earlier judgment is not necessarily an abuse of process, but it may be. The court’s power to strike out or prohibit the subsequent proceedings on the basis that it is an abusive collateral attack on the prior judgment should only be used where justice and public policy demand it. Whether or not there is an abusive collateral attack in any given case is a fact- sensitive enquiry.
- An improper motive is not necessary for subsequent proceedings to constitute an abuse of process.
- In the criminal-criminal context, the key yardstick should be whether there would be manifest inconsistency between the court’s findings in the new proceedings and the earlier judgment. There would clearly be such a risk of manifest inconsistency if there is an “identical” material issue in both the prior and subsequent proceedings.
Based on the foregoing principles, the Court decided that:
- Although the prosecution is afforded a wide discretion on how to institute, conduct or discontinue any criminal prosecutions by article 35(8) of the Constitution and section 11 of the Criminal Procedure Code, the court’s duty to determine how the proceedings as a whole, involving both the prosecution and the defence, will be managed and conducted, especially when it comes to the issue of abuse of process.
- While there was no suggestion of any bad faith or improper motives underlying the intended prosecution of the Non-Capital Charges, this was neither relevant nor material and was not the nature of abuse of process at issue in this case.
- Allowing the Prosecution to reinstate and proceed with a trial of the Non-Capital Charges would amount to an abuse of process because:
- it would amount to a collateral attack on Mr Beh’s prior acquittal of the capital charge; and
- it would be unfair and unjust to him; or
- otherwise inconsistent with the fair administration of justice to permit the intended trial of the non-capital charges to be proceeded with.
- The finding of abuse of process was predicated upon several critical factors, as follows:
- The key fact which the prosecution would have to prove in any trial of the proposed reinstated charges is exactly the same fact on which Mr Beh was acquitted. There was a manifest and irreconcilable inconsistency between the previous court’s finding and the outcome sought by the prosecution for the reinstated charges.
- To successfully prove the reinstated charges, the prosecution intended to use 2 pieces of evidence. Allowing the prosecution to proceed with the non-capital charges would be unfairly giving the prosecution a second chance to undo some of the consequences of its own choices.
- The first pieces of evidence was a witness, the owner of the motorcycle whose DNA was found on the drug exhibits. The prosecution could have called the motorcycle owner as a witness but elected not to do so.
- The second piece of evidence was the prosecution’s cross-examination of Mr Beh on certain text messages (which was not allowed by the previous judge). The prosecution failed to inform the Court of Appeal (when the conviction was being appealed against by Mr Beh), that it was taking issue with the judge’s ruling on the cross-examination.
- The fact that the evidence that the Prosecution wished to rely on in the Non-Capital Charges could not have been invoked in a notional appeal or a review under section 394J of the Criminal Procedure Code was a further factor that pointed to this being an impermissible attack on the finality of the acquittal on the Capital Charge.
- If the prosecution did not stand down the 4 non-capital charges and proceeded to trial with all 5 charges joined, Mr Beh would have been fully acquitted of all charges. The prosecution stood down the 4 non-capital charges in adherence to practice which has consistently been undertaken for the accused person’s benefit. To use the standing down to keep the charges in abeyance and only to reinstate them later against the accused person was troubling to the court and reinforced its view that reinstatement should not be allowed.
- If the non-capital charges were reinstated, this would give rise to a real asymmetry in the respective positions of the prosecutor and the defence, an asymmetry that was potentially prejudicial. This is because, where an accused person faces multiple charges based on a common fact (like the present case), the prosecutor would have the option to proceed on one charge at a time and to apply to stand down the remaining charges under section 238 of the Criminal Procedure Code, only to then revive the remaining charges against the accused if the accused were acquitted of the first charge. The Defence does not have a similar option to “stand down” certain defences before reviving them in fresh proceedings, appeals or reviews if the primary defence does not succeed.
- Reinstating the non-capital charges would severely undermine the principle of finality and would unjustifiably vex Mr Beh with multiple rounds of litigation.
On the strength of the foregoing, the Court of Appeal found that allowing the prosecution to reinstate the non-capital charges would amount to an abuse of process:
- It would lead to the risk of manifestly inconsistent findings between the first capital charge judgment and those in a subsequent trial of the non-capital charges.
- This would have been an abusive collateral attack on the first judgment.
- It would be unfair and unjust to Mr Beh.
- It would have been inconsistent with the fair administration of justice to permit the intended trial of the non-capital charges to be proceeded with.
The Prosecution was not permitted to reinstate and proceed with a trial of the withdrawn Non-Capital Charges. Mr Beh was released from custody.
This decision provides important judicial guidelines and principles relating to the prosecution’s potential abuse of process when reinstating non-capital charges after an acquittal for capital charges where certain facts overlapped. It is also an indication of how seriously the courts take the issue of prosecutorial discretion in Singapore. This has been a matter of importance subject to some public and judicial scrutiny of late, and we are of the opinion that it will continue to be.