Woman who privately prosecuted brother for assault loses appeal over AGC's move to discontinue case

SINGAPORE: A woman who was assaulted by her brother in 2023 launched a private prosecution against him, but the public prosecutor intervened and discontinued proceedings, with the court issuing him a discharge amounting to acquittal.

The woman, Madam Ong Cheng Cheng, challenged the decision in the High Court but failed. She then sought permission from the Court of Appeal to apply for a quashing order.

The apex court on Tuesday (Nov 10) dismissed Mdm Ong's appeal, noting that she had missed the three-month deadline to apply for a judicial review and was unable to explain the delay.

Mdm Ong's lead lawyer, Mr Hassan Esa Almenoar, argued that the Attorney-General's Chambers (AGC) has yet to give any reasons for discontinuing the proceedings and pressed its representatives for an explanation on Tuesday.

In response, State Counsel Kenneth Chua from AGC's civil division said it is "well-settled" in Singapore law that there was no duty on the prosecution to prove its reasons for discontinuing a case.

THE CASE

Mdm Ong, who is now 58, was assaulted by her older brother on Jan 21, 2023. 

The family was about to head to a Chinese New Year reunion dinner when Mr Ong arrived and saw her speaking loudly to her father.

She claimed that her brother assumed that she was bullying their father and pushed her. She fell backwards onto the floor, hit her back against the edge of some steps, and he attacked her face while she was on the floor, she said.

Her brother apologised to her that night, and Mdm Ong was hospitalised for two nights with giddiness, pain, bleeding in her ear and a bruise on her nose.

She made a police report in January 2023 but said that the police did not want to pursue prosecution. 

When the police completed their investigations, Mdm Ong filed a magistrate's complaint against her brother and proceeded to privately prosecute him with a single charge of voluntarily causing hurt. 

Her brother's lawyers indicated that he was seeking a community service order.

The court noted that this was a "family dispute" and directed Mr Ong's lawyers to write to AGC and update the court regarding AGC's position on the private prosecution.

AGC later wrote to the court, Mdm Ong and Mr Ong, saying that it would be intervening to discontinue the private prosecution.

It did so on Jul 29, 2024, discontinuing the proceedings. The court granted Mr Ong a discharge amounting to acquittal.

After this, Mdm Ong or her lawyers sent correspondence to her Member of Parliament, the Ministry of Law, the Prime Minister's Office and the AGC before filing applications to the High Court.

WHY THE APPEAL FAILED

On Tuesday, Mr Almenoar said that his client and AGC were supposed to be "on the same side" since Mdm Ong was a victim.

He said that all his client wanted was to pursue justice, but she had not received any answers.

He also said that Mr Ong was ready to plead guilty until AGC intervened.

On the delay, Mr Almenoar said that his client was the main caregiver for her mother, who is "very sick" and has conditions including obsessive-compulsive disorder.

Left alone, she spends hours in the toilet washing the bathroom or her clothes, he added.

Responding to Mdm Ong's case, Mr Chua, who represented the public prosecutor, said that Mr Ong had been living with acquittal for more than two years and should be entitled to rely on it.

He added that Mr Ong was also given a discharge amounting to acquittal because Mdm Ong allowed it to happen. She was represented when the discharge was given, and her lawyer made no request, for example, for a discharge not amounting to an acquittal, he explained.

In response, Mr Almenoar said he was sure that if he had intervened after the public prosecutor took over the proceedings, he would have been told to "shut up".

He therefore thought it was "proper conduct" to "shut up".

"My learned friend says ... I should have stood up and said no DATA (discharge amounting to acquittal)," Mr Almenoar continued. "Would they have kept quiet if I said that? Of course they won't keep quiet."

Justice Sushil Nair, who heard the case along with Justice Debbie Ong and Justice Hoo Sheau Peng, asked Mr Chua how the prosecution's "duty of candour" – its duty to be open with the court – should be balanced against the principle he mentioned, where the prosecution does not have to explain why it makes certain decisions.

Mr Chua accepted that there was a duty of candour, but stressed that how far it extends depends on the facts of each case and the allegations being made against the prosecution.

Justice Nair also questioned Mr Chua on what Mr Almenoar could have done at the 2024 hearing when the AGC took over.

He replied that the lawyer could have written to the court to ask for more time, or make submissions to the court, because the court had discretion to grant the discharge amounting to acquittal.

After deliberating for 15 minutes, the court dismissed the appeal, saying the extension of time should not be granted.

The judges found that AGC had taken a "clear position" that it had carefully considered the facts and circumstances of the case and could not accede to Mdm Ong's request to share why the case was discontinued.

The application for a judicial review should have been made at various earlier points, and there was no reason for the delays.

The court also agreed with the High Court's finding that Mdm Ong had not made out a prima facie case – she had not shown enough initial evidence to support her claim that she had been treated unequally in breach of the Constitution.

The court also did not find that she had made out a case to show that AGC acted arbitrarily in reaching its decision.

The prosecution sought costs of S$25,000 against Mdm Ong, while Mr Almenoar asked for no costs, saying his client was the victim of a brutal and unprovoked assault. 

She was simply seeking justice, for which the AGC "continues to refuse to provide reasons for the discontinued decision", the lawyer added.

The court ordered Mdm Ong to pay costs of S$15,000.

Fuller grounds explaining the decision will be issued at a later date.