Proposed legal changes: Harder to re-open concluded criminal cases to prevent abuse of court process

SINGAPORE - Robust gatekeeping measures are among the proposed legal changes aimed to prevent abuse of the court process and waste of judicial resources by people trying to reopen their criminal cases after exhausting all avenues of appeal.

Under the new proposed procedure, a person who wants to reopen his concluded case first has to apply for leave, or permission, from the court. Currently, there are no mechanisms to filter applications to reopen concluded cases.

The court has the power to summarily dismiss the leave application based on written arguments, without a hearing. And if leave is granted, the court hearing the substantive matter has the power to summarily dismiss it.

Each person is allowed only one application to reopen a concluded criminal case and no futher appeal or application for a criminal reference is allowed.

Also, to reopen a concluded case, the aguments and evidence raised must be new and must be able to compellingly show there was a miscarriage of justice. The defence must also show that the court decision being challenged is clearly wrong, tainted by fraud or a breach of natural justice.

The prosecution cannot make use of the procedure to overturn acquittals or seek harsher sentences, unless it is challenging decisions that have compromised the integrity of the judicial process.

The amendments give the court more control over such applications, striking a balance between preventing miscarriages of justice and the need for finality in criminal proceedings, said the Ministry of Law.

In recent years, there have been a growing number of applications seeking to reopen criminal cases after all avenues of appeal have been exhausted. In 2015, 11 criminal motions of this nature were filed in the Court of Appeal.

Last year, convicted murderer Jabing Kho's multiple attempts to quash his death sentence were found to be an abuse of process by the Court of Appeal.

He had filed a application containing a particular argument, but withdrew the argument before the hearing. After the first application was dismissed, he filed a second one, premised on the withdrawn argument, an approach described by the court as "drip-feeding".

He had also mounted a "collateral attack" on the death sentence by filing a civil action. Kho was hanged in May 2016.

In Kho's case, the court said it would be impossible for the legal system to function if decisions were "subject to constant and unceasing challenge". Also, unmeritorious applications to revisit concluded cases take up scarce judicial resources.

The proposed procedure will apply where the defence's appeal has already been determined on its merits; where the Court of Appeal has confirmed the imposition of a death sentence; or where the defence has failed to reinstate an appeal which was dismissed due to the absence of the accused.

Similarly, to prevent abuse of process and waste of judicial resources, changes have been proposed to allow for summary refusal of leave for criminal references, a procedure in which questions of law of public interest are referred to the Court of Appeal to make a definitive ruling.

Under the proposed change, the apex court can summarily dismiss an individual's application for leave to file a criminal reference without a hearing. However, the decision to do so must be unanimously made by the judges on the panel.