Rahimah Bte Mohd Salim v Public Prosecutor: Litigation Privilege & Disclosure of IMH Reports
In Rahimah Bte Mohd Salim v Public Prosecutor, the Singapore High Court addressed a criminal revision application by Rahimah Binte Mohd Salim, who faced charges under the Penal Code and the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act. The High Court, presided over by Chao Hick Tin JA, considered whether the district judge erred in ordering the disclosure of psychiatric reports from the Institute of Mental Health (IMH). The court allowed the revision, set aside the disclosure order, and ordered a retrial before a different district judge, finding that litigation privilege had not been waived.
1. Case Overview
1.1 Court
High Court1.2 Outcome
Criminal revision allowed. Disclosure Order set aside; retrial ordered before a different district judge.
1.3 Case Type
Criminal
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Singapore High Court addresses litigation privilege concerning IMH reports in a criminal case, setting aside a disclosure order and ordering a retrial.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Public Prosecutor | Respondent | Government Agency | Appeal Dismissed | Lost | Stephanie Chew of Attorney-General’s Chambers Leong Wing Tuck of Attorney-General’s Chambers V Jesudevan of Attorney-General’s Chambers |
| Rahimah Bte Mohd Salim | Petitioner | Individual | Appeal Allowed | Won |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Chao Hick Tin | Judge of Appeal | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Stephanie Chew | Attorney-General’s Chambers |
| Leong Wing Tuck | Attorney-General’s Chambers |
| V Jesudevan | Attorney-General’s Chambers |
| Liew Wey-Ren Colin | TSMP Law Corporation |
| Niklas Wong See Keat | TSMP Law Corporation |
4. Facts
- The Petitioner was charged with dishonestly receiving stolen property and transferring it to another party.
- The Petitioner obtained psychiatric reports from the Institute of Mental Health (IMH) to assist in her defense.
- The IMH reports were not obtained as a result of a court motion or on the application of the Prosecution.
- The Petitioner decided not to use the IMH Reports and sought an assessment from Raffles Hospital.
- The Prosecution applied under s 235(1) of the CPC for disclosure of the IMH Reports.
- The DJ ordered the Petitioner to produce the IMH Reports to the Prosecution, finding that any litigation privilege had been waived.
- Dr. Phang testified that the Petitioner was cautioned that whatever she revealed would not be confidential and could be produced in court.
5. Formal Citations
- Rahimah Bte Mohd Salim v Public Prosecutor, Criminal Revision No 3 of 2016, [2016] SGHC 219
6. Timeline
| Date | Event |
|---|---|
| Counsel sought adjournment at pre-trial conference due to Petitioner's IMH appointment. | |
| Counsel sent representations enclosing the Raffles Reports to the Attorney-General’s Chambers. | |
| District judge informed that counsel had sent further representations to the Prosecution. | |
| Prosecution informed the court that IMH had declined to provide a second opinion. | |
| Prosecution applied under s 235(1) of the CPC for disclosure of the IMH Reports. | |
| Prosecution gave notice of its intention under s 231 of the CPC to adduce an additional witness at the trial (ie, Dr Phang). | |
| Dr Phang gave evidence on IMH’s policies and processes. | |
| DJ decided to proceed with an ancillary hearing to decide the s 235 Application. | |
| Petitioner filed her application for the present criminal revision (ie, CR 3/2016). | |
| Stay of the proceedings before the DJ was granted. | |
| Judgment reserved. | |
| Judgment delivered. |
7. Legal Issues
- Litigation Privilege
- Outcome: The court held that the IMH Reports were protected by litigation privilege and that the Petitioner had not waived such privilege.
- Category: Substantive
- Sub-Issues:
- Waiver of litigation privilege
- Scope of litigation privilege
- Admissibility of privileged material
- Admissibility of Evidence
- Outcome: The court held that the IMH Reports and all privileged material in the Prosecution’s possession should be delivered up and all such material should be struck off from the record.
- Category: Procedural
- Sub-Issues:
- Admissibility of psychiatric reports
- Admissibility of expert testimony
- Use of privileged documents as evidence
- Revisionary Powers of the High Court
- Outcome: The court exercised its revisionary power to set aside the Disclosure Order made by the DJ.
- Category: Procedural
- Sub-Issues:
- Grounds for exercising revisionary powers
- Threshold for intervention
- Interests of justice
8. Remedies Sought
- Setting aside the Disclosure Order
- Order that all copies of the IMH Reports be delivered up to the Petitioner by the Prosecution and be struck off the record
- Order a retrial on the Charges by any other district judge other than the DJ
9. Cause of Actions
- Criminal charges under s 411 of the Penal Code (Cap 224, 2008 Rev Ed)
- Offence under s 47(1)(b) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed)
10. Practice Areas
- Criminal Law
- Criminal Litigation
11. Industries
- Healthcare
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Ladd v Marshall | N/A | Yes | [1954] 1 WLR 1489 | N/A | Cited for the conditions for admitting fresh evidence. |
| Tan Sai Tiang v Public Prosecutor | High Court | Yes | [2000] 1 SLR(R) 33 | Singapore | Endorsed the applicability of the Ladd v Marshall conditions in the context of admitting fresh evidence in a criminal revision. |
| Soh Meiyun v Public Prosecutor | N/A | Yes | [2014] 3 SLR 299 | Singapore | Observed that with respect to fresh evidence that is being sought to be admitted on appeal, there is a “spirit of greater willingness to admit such evidence” where “the fresh evidence would go towards exonerating a convicted person or reducing his sentence”. |
| Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and other appeals | Court of Appeal | Yes | [2007] 2 SLR(R) 367 | Singapore | Defined the scope and requirements of litigation privilege. |
| Regina v Davies | English Court of Appeal | Yes | [2002] All ER (D) 159 | England and Wales | Held that a psychiatric report obtained by the defense was privileged and should not have been disclosed. |
| re L (a minor) (Police Investigation: Privilege) | House of Lords | Yes | [1996] 2 WLR 395 | England and Wales | Discussed the distinction between solicitor-client privilege and privilege attaching to reports by third parties. |
| Harmony Shipping Co SA v Saudi Europe Line Ltd | N/A | Yes | [1979] 1 WLR 1380 | N/A | Addressed the issue of whether there is property in a witness, even an expert witness. |
| Yeo Ah Tee v Lee Chuan Meow | Court of Appeal | Yes | [1962] MLJ 413 | Malaysia | Demonstrates the need for courts to exercise caution before making a conclusive determination that privilege had been waived. |
| R v Ahmed (Muhammed) | English Court of Appeal | Yes | [2007] EWCA Crim 2870 | England and Wales | The importance of legal professional privilege to the proper administration of justice is such that it should be jealously guarded and it follows that courts should not be astute to hold that a litigant has lost the right to claim privilege save to the extent that justice and the right to a fair trial make that necessary. |
| Public Prosecutor v Yang Yin | High Court | Yes | [2015] 2 SLR 78 | Singapore | Summarized the well-established principles governing the exercise of revisionary powers of the High Court. |
| Ang Poh Chuan v PP | High Court | Yes | [1995] 3 SLR(R) 929 | Singapore | Defined what would constitute such serious injustice for that would in any event unduly circumscribe what must be a wide discretion vested in the court, the exercise of which would depend largely on the particular facts. |
| Knight Glenn Jeyasingam v PP | N/A | Yes | [1998] 3 SLR(R) 196 | Singapore | The irregularity or otherwise noted from the record of proceedings must have resulted in grave and serious injustice. |
| Azman bin Jamaludin v Public Prosecutor | N/A | Yes | [2012] 1 SLR 615 | Singapore | Discussed whether the words “judgment, sentence or order” under s 263 of the former CPC only applied to final and not interlocutory orders. |
| PP v Sollihin bin Anhar | N/A | Yes | [2015] 2 SLR 1 | Singapore | Agreed with both the reasoning and conclusion reached by Tay J in [PP v Sollihin bin Anhar [2015] 2 SLR 1]. |
| Public Prosecutor v Tan Sri Eric Chia Eng Hock | High Court | Yes | [2006] 4 MLJ 697 | Malaysia | Exercised its powers of revision and ordered that the evidence taken in Hong Kong be admitted as evidence in the trial of the appellant. |
| Tan Sri Eric Chia Eng Hock v Public Prosecutor | Court of Appeal | Yes | [2006] 3 MLJ 693 | Malaysia | This decision was upheld by the Malaysian Court of Appeal (by a majority of 2:1) in Tan Sri Eric Chia Eng Hock v Public Prosecutor [2006] 3 MLJ 693. |
| Yap Sing Lee v Management Corporation Strata Title Plan No 1267 | N/A | Yes | [2011] 2 SLR 998 | Singapore | Legal professional privilege, which has been recognised as a “fundamental human right” or a “basic tenet of the common law”. |
| Calcraft v Guest | N/A | Yes | [1898] 1 QB 759 | N/A | Held that privilege is no barrier to the admissibility of the secondary evidence of the documents (once they had come into the possession of the defendant), that being an issue governed solely by the question of relevance. |
| Lord Ashburton v Pape | N/A | Yes | [1913] 2 Ch 469 | N/A | The court would have the equitable jurisdiction to restrain the publication of confidential information. |
| HT SRL v Wee Shuo Woon | N/A | Yes | [2016] 2 SLR 442 | Singapore | Provides a summary of the two English cases of Calcraft and Lord Ashburton. |
| Goddard v Nationwide Building Society | N/A | Yes | [1986] 3 WLR 734 | N/A | Reconciled the decisions of Calcraft and Lord Ashburton. |
| Tentat Singapore Pte Ltd v Multiple Granite Pte Ltd and others | N/A | Yes | [2009] 1 SLR(R) 42 | Singapore | The critical question is whether the privileged documents had already been “used” (ie, whether the documents had been adduced in evidence or have otherwise been relied on at trial). |
| Gelatissimo Ventures (S) Pte Ltd and others v Singapore Flyer Pte Ltd | High Court | Yes | [2010] 1 SLR 833 | Singapore | Interpreted Kan J’s observations as “reject[ing] the principles stated in Calcraft in favour of a more protective attitude towards privileged documents”. |
| Citic Pacific Limited v Secretary for Justice and Commissioner for Police | Hong Kong Court of Appeal | Yes | [2012] HKCA 153 | Hong Kong | Addressed the difficulty with applying the position in Calcraft to criminal proceedings. |
| Butler v Board of Trade | N/A | Yes | [1971] 1 Ch 680 | N/A | Considered the applicability of the principle in Calcraft and the exception in Lord Ashburton in criminal proceedings and had reached a contrary conclusion. |
| R v Tompkins | N/A | Yes | (1978) 67 Cr App R 181 | N/A | Considered the applicability of the principle in Calcraft and the exception in Lord Ashburton in criminal proceedings and had reached a contrary conclusion. |
| R v Uljee | New Zealand Court of Appeal | Yes | [1982] 1 NZLR 561 | New Zealand | Declined to apply the principle in Butler and he opined as follows (at 686). |
| Mykytowych, Pamela Jane v V I P Hotel | Court of Appeal | Yes | [2016] 4 SLR 829 | Singapore | Affirmed Hoo JC’s summary and review of the line of cases emanating from Calcraft and noted, albeit in obiter, that “it is not entirely satisfactory that the question of whether privileged documents will be admitted as evidence should depend on when, in the course of litigation, applications are brought and steps are taken to restrain their use”. |
| ITC Film Distributors Ltd and others v Video Exchange Ltd and others | N/A | Yes | [1982] Ch 431 | N/A | Implies that the DJ who has already seen the IMH Reports and heard the testimony of Dr Phang similarly cannot realistically be expected to disregard the privileged material. |
| Ghani v. Jones | N/A | Yes | [1970] 1 Q.B. 693 | N/A | Further support for this conclusion in Saull v. Browne (1874) 10 Ch.App. 64 and Kerr v. Preston Corporation (1876) 6 Ch.D. 463, which say that in general a court of equity will not interfere with a criminal prosecution, although the question there was one of restraining it altogether. |
| Saull v. Browne | N/A | Yes | (1874) 10 Ch.App. 64 | N/A | Further support for this conclusion in Saull v. Browne (1874) 10 Ch.App. 64 and Kerr v. Preston Corporation (1876) 6 Ch.D. 463, which say that in general a court of equity will not interfere with a criminal prosecution, although the question there was one of restraining it altogether. |
| Kerr v. Preston Corporation | N/A | Yes | (1876) 6 Ch.D. 463 | N/A | Further support for this conclusion in Saull v. Browne (1874) 10 Ch.App. 64 and Kerr v. Preston Corporation (1876) 6 Ch.D. 463, which say that in general a court of equity will not interfere with a criminal prosecution, although the question there was one of restraining it altogether. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Penal Code (Cap 224, 2008 Rev Ed) s 411 | Singapore |
| Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) s 47(1)(b) | Singapore |
| Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 235(1) | Singapore |
| Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 231 | Singapore |
| Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 279 | Singapore |
| Criminal Procedure Code s 400 | Singapore |
| Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 27(2) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Litigation privilege
- Disclosure Order
- IMH Reports
- Criminal revision
- Waiver of privilege
- Criminal Procedure Code
- Psychiatric assessment
- Serious injustice
- Retrial
- Additional Evidence
15.2 Keywords
- criminal procedure
- evidence
- litigation privilege
- psychiatric reports
- disclosure
- criminal revision
17. Areas of Law
16. Subjects
- Criminal Law
- Evidence
- Privilege