BSD v Attorney-General: Mutual Legal Assistance, Production Orders & Disclosure
In BSD v Attorney-General, the Singapore High Court addressed whether parties and account holders affected by production orders under the Mutual Assistance in Criminal Matters Act (MACMA) are entitled to inspect related court documents. The court held that parties against whom production orders were made are prima facie entitled to inspect documents unless it prejudices investigations. However, the court decided that account holders do not have the standing to apply to discharge or vary production orders against banks and are not entitled to related information. The appeals in RAS 1/2018 and RAS 2/2018 were allowed subject to the Requesting State’s decision, while OS 945/2017 was dismissed.
1. Case Overview
1.1 Court
High Court of the Republic of Singapore1.2 Outcome
Appeals in Registrar’s Appeal State Courts Nos 1 and 2 of 2018 allowed subject to the Requesting State’s decision. Originating Summons No 945 of 2017 dismissed.
1.3 Case Type
Criminal
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Singapore High Court judgment on mutual legal assistance, addressing the right to inspect court documents related to production orders under the Mutual Assistance in Criminal Matters Act.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Attorney-General | Respondent | Government Agency | Partial Win | Partial | Shivani Retnam of Attorney-General’s Chambers (International Affairs Division) Hri Kumar Nair SC of Attorney-General’s Chambers (International Affairs Division) James Low of Attorney-General’s Chambers (International Affairs Division) Kexian Ng of Attorney-General’s Chambers (International Affairs Division) Zhang Hong Chuan of Attorney-General’s Chambers (International Affairs Division) |
| BSD | Applicant | Individual | Application Dismissed | Lost | |
| BSF | Appellant, Plaintiff | Individual | Appeal Allowed in Part | Partial | |
| BSH | Appellants, Applicants | Individual | Appeal Allowed in Part | Partial | |
| BSI | Appellants, Applicants | Individual | Appeal Allowed in Part | Partial | |
| BSJ | Appellants, Applicants | Individual | Appeal Allowed in Part | Partial |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Chua Lee Ming | Judge | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Shivani Retnam | Attorney-General’s Chambers (International Affairs Division) |
| Hri Kumar Nair SC | Attorney-General’s Chambers (International Affairs Division) |
| James Low | Attorney-General’s Chambers (International Affairs Division) |
| Kexian Ng | Attorney-General’s Chambers (International Affairs Division) |
| Zhang Hong Chuan | Attorney-General’s Chambers (International Affairs Division) |
| Jaikanth Shankar | Drew & Napier LLC |
| Davinder Singh SC | Drew & Napier LLC |
| Navin Thevar | Drew & Napier LLC |
| Derrick Teo | Drew & Napier LLC |
| Teo Li Fang | Drew & Napier LLC |
| Jason Chan Tai-Hui | Allen & Gledhill LLP |
| Edward Kwok | Allen & Gledhill LLP |
| Evangeline Oh | Allen & Gledhill LLP |
4. Facts
- The Attorney-General applied for production orders under s 22 of the Mutual Assistance in Criminal Matters Act (MACMA).
- The applications were made ex parte.
- The RAS1 Appellant and RAS2 Appellants sought to inspect and take copies of documents relating to the AG’s applications.
- The RAS1 Appellant also sought the names of the Banks against whom productions orders had been made.
- The District Court dismissed the applications to inspect the documents.
- The RAS1 Appellant filed a separate application in the High Court seeking the names of the Banks against whom production orders had been made.
- The Requesting State had signed an agreement with the Government of the Republic of Singapore concerning mutual legal assistance in criminal matters.
5. Formal Citations
- BSD v Attorney-General and other matters, , [2019] SGHC 118
6. Timeline
| Date | Event |
|---|---|
| District Court made a production order against the RAS1 Appellant | |
| District Court dismissed the application of the RAS1 Appellant to inspect | |
| District Court made productions orders against each of the RAS2 Appellants | |
| District Court dismissed the application of the RAS2 Appellants to inspect | |
| RAS1 Appellant learned that the AG had taken out ex parte application/s for production order/s against certain bank/s and/or financial institution/s | |
| Production orders required the RAS Appellants to produce the documents described in the orders | |
| Judgment issued |
7. Legal Issues
- Right to Inspect Court Documents
- Outcome: Parties against whom production orders have been made were prima facie entitled to inspect and take copies of the relevant documents unless it was shown that granting access to the court file would prejudice investigations or subvert the ends of justice.
- Category: Procedural
- Sub-Issues:
- Access to supporting affidavits
- Access to notes of argument
- Standing to Challenge Production Orders
- Outcome: Account holder did not have the requisite standing to apply to discharge or vary the production order and hence he was not entitled to the information or documents sought.
- Category: Procedural
- Sub-Issues:
- Right of account holders to challenge production orders against banks
8. Remedies Sought
- Leave to inspect and take copies of court documents
- Disclosure of the names of the Banks against whom production orders had been made
9. Cause of Actions
- No cause of actions
10. Practice Areas
- Criminal Law
- International Law
- Civil Litigation
11. Industries
- No industries specified
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Mustafa Ahunbay v Public Prosecutor | Court of Appeal | Yes | [2015] 2 SLR 903 | Singapore | Cited for the principle that the right to be heard must carry with it the right to know the case and the evidence given or statements made against the person exercising that right. |
| B Surinder Singh Kanda v Government of the Federation of Malaya | N/A | Yes | [1962] AC 322 | N/A | Cited for the principle that the right to be heard must carry with it the right to know the case and the evidence given or statements made against the person exercising that right. |
| United States of America v. Beach | Manitoba Court of Appeal | Yes | [1999] M.J.No. 56 | Canada | Cited for its approach to balancing the need for access to court documents with the purposes of mutual legal assistance legislation. |
| Apple Daily Ltd v Commissioner of the Independent Commission Against Corruption (No 2) | Hong Kong Court of Appeal | Yes | [2000] 1 HKLRD 647 | Hong Kong | Cited for the principle that non-accessibility to documents relating to applications under the Prevention of Bribery Ordinance should be the norm. |
| Chan Mei Yiu Paddy & anor v Secretary for Justice & ors | Hong Kong Court of First Instance | Yes | [2007] 4 HKC 224 | Hong Kong | Cited for the principle that a mere assertion by an applicant that he suspects that there may have been a relevant flaw in the procedure will not be sufficient to entitle him to an order for discovery. |
| Re Section 22 of the Mutual Assistance in Criminal Matters Act | Court of Appeal | Yes | [2009] 1 SLR(R) 283 | Singapore | Cited to highlight the two levels of checks in place under the MACMA, first by the AG and second by the Minister for Law. |
| Tan Cheng Bock v Attorney-General | N/A | Yes | [2017] 2 SLR 850 | Singapore | Cited for the principle that a provision that applies specifically to a particular matter displaces a provision of general application. |
| Goldring Timothy Nicholas and others v Public Prosecutor | N/A | Yes | [2013] 3 SLR 487 | Singapore | Cited for the rule of statutory interpretation that Parliament will not be taken to have abrogated rights at common law unless that is made express or is to be implied as a matter of necessity. |
| Chan Lung Kien v Chan Shwe Ching | N/A | Yes | [2018] 4 SLR 208 | Singapore | Cited for the principle that O 32 r 6 permits not just the party against whom the order was served, but also affected third parties, to apply to set aside an order made ex parte. |
| HT SRL v Wee Shuo Woon | N/A | Yes | [2016] 2 SLR 442 | Singapore | Cited for the principle that evidence contained in affidavits fall outside the scope of the Evidence Act. |
| Re Siah Mooi Guat | High Court | Yes | [1988] 2 SLR(R) 165 | Singapore | Cited for the principle that it is for the Minister, not the court, to decide whether it is in the public interest that information should be disclosed. |
| SP Gupta v Union of India and another | Indian Supreme Court | Yes | (1981) Supp SCC 87 | India | Cited for its submission that common law public interest immunity is inconsistent with s 125 of the Evidence Act. |
13. Applicable Rules
| Rule Name |
|---|
| Order 90B, rules 2 and 3 of the Rules of Court (Cap 322, Section 80, 2014 Rev Ed) |
| O 89B r 2 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) |
| O 89B r 3 of the Rules |
| Order 60 rule 4 |
| Order 89B rule 2(2) |
| O 32 r 6 of the Rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Mutual Assistance in Criminal Matters Act (Cap 190A, 2001 Rev Ed) | Singapore |
| s 22 of the Mutual Assistance in Criminal Matters Act (Cap 190A, 2001 Rev Ed) | Singapore |
| s 3, MACMA | Singapore |
| s 22(2) | Singapore |
| s 22(8) | Singapore |
| s 22(3) | Singapore |
| s 22(4) | Singapore |
| s 22(6) | Singapore |
| s 16(2) | Singapore |
| s 17(1) | Singapore |
| s 23(7) of the MACMA | Singapore |
| Evidence Act (Cap 97, 1997 Rev Ed) | Singapore |
| s 125 of the Evidence Act (Cap 97, 1997 Rev Ed) | Singapore |
| s 2(1) of the EA | Singapore |
| s 2(2) of the EA | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Mutual Legal Assistance
- Production Order
- Ex Parte Application
- Right to Inspect
- Standing
- Banking Secrecy
- Public Interest Immunity
- Requesting State
- Requested State
15.2 Keywords
- Mutual Legal Assistance
- Production Orders
- Disclosure
- Criminal Matters
- Singapore Law
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Mutual Legal Assistance | 90 |
| Criminal Procedure | 75 |
| Civil Procedure | 75 |
| International Law | 60 |
| Administrative Law | 50 |
| Evidence | 40 |
| Penal Code | 30 |
16. Subjects
- Criminal Law
- Civil Procedure
- International Law
- Evidence Law