Guide to Filing a Criminal Appeal in Singapore
The court has found you guilty of a certain crime that you feel you didn’t commit.
Alternatively, the court has imposed a sentence on you which you feel is too harsh for an offence you committed.
If any or both of the options describe your current situation, this article aims to inform you of the steps you may take to appeal against any possible injustice done to you.
Perhaps, some new evidence has been uncovered that would radically change the dynamics of your case, or you feel your lawyer could have better addressed the court’s queries and prepared a more water-tight defence.
Essentially, your end-goal should be to file a criminal appeal to the Singapore court so that your case may be relooked and, hopefully, receive a lower punishment that better reflects whatever wrong you committed.
The following sections thus seek to help you attain some clarity on some considerations you may have before deciding whether to appeal, and, if you decide to do so, the proper procedure to follow.
What Can You File a Criminal Appeal Against?
You may appeal against any of the following if you are dissatisfied with the court’s ruling:
- A “judgment” is equivalent to a conviction. You would file an appeal against a judgment if you were convicted (i.e. found guilty of a specific offence) but wish to turn over that conviction.
- A “sentence” refers to a criminal punishment, such as a jail term, fine etc. If you are appealing against your sentence, this usually means you feel the punishment imposed by the court was too harsh.
- A “court order” is simply a direction issued by the court requiring a person to do or not do something. It may include any other punishment which is not criminal in nature, such as disqualification from driving. This has similar connotations as an appeal against a sentence.
Note, however, that you may not appeal against your conviction if you have previously pleaded guilty to your offence. In such a situation, you may only appeal against your sentence.
If you wish to retract your plea of guilt (and hence state that you were not guilty of the offence), you may apply to the High Court (HC) for a Criminal Revision. The HC will then examine the record of the lower court proceedings to determine if you were in fact guilty of the offence.
When is Filing a Criminal Appeal Not the Right Option?
Should you have a question of law of public interest, an appeal is not the right course of action. Rather, you should file a criminal reference instead.
In short, questions of law of public interest usually concern difficult or controversial points of law that directly or substantially affects the parties’ rights, though it should be noted that these points of law cannot be of personal importance to just the convicted person alone.
Some examples would be questions related to constitutional rights or those pertaining to the administration of justice.
Alternatively, any question of law for which there are conflicting judicial authorities may be automatically deemed a question of public interest under section 397(6)(a) of the Criminal Procedure Code (CPC).
Can My Sentence be Increased On Appeal?
A source of concern you may have is whether your appeal could potentially worsen your situation, i.e. cause your sentence to be increased. It is certainly possible for your sentence to be increased when you appeal, whether or not the prosecution also appeals for an increase in your sentence.
You should therefore carefully consider the strengths and weaknesses of your case before deciding whether to appeal. A criminal lawyer will be able to advise you in this regard, so you may wish to consult one.
On What Basis Can I Appeal?
If you are appealing against your conviction, section 377(1) of the CPC allows you to appeal on the basis of any error in law or in fact.
An error in law generally concerns the identification, interpretation or application of a legal principle. In contrast, an error in fact involves an inquiry into whether something happened or will happen.
For example, to establish joint liability among several offenders involved in a murder case, it is necessary to show that each offender shared a common intention to use violence against the victim.
An error in law would thus have occurred if the trial judge had concluded that the secondary offenders possessed this common intention based on their mere knowledge, rather than actually having the intention itself.
On the other hand, an error in fact would have occurred if the judge had convicted the secondary offenders in the belief that they intended to commit the murder, when in reality all they planned to do was to steal the victim’s car.
On the other hand, if you are appealing against your sentence, you will need to show that your sentence is manifestly excessive – in other words, that your punishment is too harsh to accurately reflect the nature of your offence.
How Many Times Can I Appeal?
In general, you may file an appeal against a decision of the criminal trial court only once.
However, the Court of Appeal does have an inherent power to reopen a concluded criminal appeal to prevent a miscarriage of justice in exceptional cases. Such cases must satisfy two requirements.
First, there must be “sufficient material” in support of the application. This means the material must be:
- New, such that it could not have been submitted to court prior to the filing of the application; and
- Compelling, meaning it was capable of showing almost conclusively that there had been a miscarriage of justice.
The second hurdle is to prove that there will be a “miscarriage of justice” if the appeal is not reopened. This could occur in two situations:
- Where the lower court decision is “demonstrably wrong”, i.e. it is almost certain that the decision is wrong; or
- Where there has been “fraud or a breach of natural justice” that compromised the integrity of judicial proceedings.
As cases rarely meet such a high threshold, another option may be to petition for presidential clemency if you intend to “appeal again” after your appeal. Under section 22P(1) of the Singapore Constitution, the President may excuse an accomplice from having to serve his sentence, and excuse, postpone or suspend (midway) the sentence of a principal offender.
Granting presidential clemency effectively reduces the harshness of the sentence imposed on an offender, though it should be noted that this power is rarely exercised.
Read our other article for more information on presidential clemency in Singapore.
Which Court Will My Appeal be Heard In?
If your offence is punishable by a maximum imprisonment term which does not exceed 10 years, or is only punishable by a fine, you will have first been tried in the State Courts. Your appeal, should you choose to file one, will then be heard in the HC.
On the other hand, if your offence is punishable either by death or an imprisonment term over 10 years, the HC will have heard your case in the first instance. You may then wish to appeal to the Court of Appeal if you are dissatisfied with the HC’s decision.
Will I Still Need to Serve My Sentence If I Intend to Appeal?
While your appeal will not automatically lead to a stay of execution (i.e. a delay in you having to serve your sentence) the court may opt to place your sentence on hold until your appeal concludes.
Alternatively, the court may grant you bail. This allows you to be temporarily released from prison while awaiting trial. You will then be entrusted to the custody of a surety, who becomes responsible for your future attendance in court. This person will have to provide security for your bail in the form of a cash deposit or property pledged as guarantee.
Being granted bail does not mean that you no longer have to serve your sentence, since your final sentence may change based on the outcome of the appeal.
How to File an Appeal
The following procedure only applies to accused persons charged on or after 2 January 2011.
Step 1: File a Notice of Appeal
A Notice of Appeal is simply a form which signals a party’s intent to appeal against the trial court’s decision. This must be filed within 14 calendar days after the date of the sentence or order. You can either file this online using the Integrated Case Management System (ICMS), or in person at the trial court. Past this deadline, you will have to apply to the HC for an extension of time to appeal.
In addition, you will need to provide security for the opposing side’s costs of the appeal in case your appeal fails. Depending on where your case was first heard, the requisite sum may vary as follows:
- Magistrate’s Court – $2,000;
- District Court – $3,000;
- High Court – $10,000.
Note that the court may still decide to vary the amount of security if it wishes.
Step 2: Service of Grounds of Decision and Notes of Evidence
After the Notice of Appeal is filed, the Grounds of Decision and Notes of Evidence will be delivered to you or your lawyer.
The Grounds of Decision contains the lower court’s reasons for its decision, and must form the basis of your appeal. The Notes of Evidence on the other hand are the judge’s hearing notes.
You should hence go through these documents carefully before deciding whether you wish to continue your appeal.
Step 3: File a Petition of Appeal
If you still wish to pursue your appeal, you must file a Petition of Appeal at the State Courts or High Court (depending on which court your trial took place) within 14 calendar days of the service of the Grounds of Decision and Notes of Evidence.
The Petition of Appeal is a key document that states your ground(s) of appeal, i.e. the points of law or fact that you think had been wrongly decided. You will not be able to rely on any ground of appeal apart from those you set out in this document at your hearing unless you have the appellate court’s permission to do so.
An important point at this juncture is that the appellate court is usually reluctant to dispute the facts of the case which have been determined by the lower court. Hence, strong evidence will likely be required if you wish to contradict the lower court’s findings of fact.
Should you fail to meet the deadline for filing the Petition of Appeal, the appeal will be taken as withdrawn, and the trial court will enforce its sentence or order.
What Happens After Filing an Appeal?
After you have filed the Petition of Appeal, the court will review your grounds of appeal. Your appeal may be rejected without being heard in court if:
- Your grounds of appeal do not raise any question of law;
- The court believes the evidence is sufficient to support your conviction; and
- There is nothing which can lead the court to consider that your sentence should be reduced.
If your appeal is accepted, the court will inform you of the hearing date for your appeal.
On the day of your hearing, you are required to appear in court unless you are in custody. If you are not in custody but do not show up in court, the court is empowered to dismiss your appeal unless you can show that your absence was due to some reason that was not your fault.
Can the Prosecution File an Appeal Against Me?
Under section 374(3) of the CPC, the Public Prosecutor can appeal against the:
- Acquittal of an accused;
- Sentence imposed on an accused; or
- order of the trial court.
Nevertheless, it must be emphasised that the prosecution will not necessarily file an appeal in all cases, unless it believes your sentence is too lenient, or “manifestly inadequate”.
In rare cases, the prosecution may also appeal to have your sentence reduced. The first case of its kind only appeared fairly recently in 2015.
There, the offender had initially been sentenced to 8 weeks’ jail for his rash act of hurting a pedestrian while cycling on the pavement. The prosecution subsequently appealed on several grounds, one of which was that previous cases of rash driving had resulted in much lower sentences, and succeeded in reducing the offender’s jail term to 3 weeks.
What if the prosecution initially argues for a lower sentence, but changes its mind on appeal?
Such a situation could arise when, for instance, the trial court first sentences an offender to a longer jail term than that argued for by the prosecution. But when the offender appeals against the length of the jail term, the prosecution changes its mind, arguing that the offender should be given the longer jail term, and not the shorter jail term that it had originally argued for during the trial.
The HC has held that there is no reason why the prosecution should not be allowed to do so.
This is even if the offender and the prosecution had initially agreed on the extent of the sentence that the prosecution would request for if the accused agreed to plead guilty.
Can the Victim Appeal Against Me?
In short: no. A victim cannot appeal against a decision by the trial court since he/she is not a party to your case (i.e. he/she is not the one bringing the criminal suit against you).
This restriction extends to a victim’s family members. Even where the victim has passed away, appeals in criminal cases can only be filed by the offender or the Public Prosecutor.
Engaging a Lawyer for Your Appeal
It is not necessary for you to engage a lawyer at all for the entirety of your criminal proceedings – you have the right to represent yourself, and including for your appeal.
Nonetheless, should you opt for self-representation, you will still be held to the same standard of preparation as a fully-trained lawyer.This means that the court will not be more lenient in its judgment towards you merely because you are representing yourself.
However, because of the heavy penalties usually attached to criminal charges, you are advised to first consult an experienced criminal lawyer to better understand the strengths and weaknesses of your case, and so whether you should proceed with the appeal. Remember that it is entirely possible for your sentence to be increased when you attempt to appeal against it.
Even if you initially opt for self-representation, you are allowed to engage a lawyer at any point of your proceedings. If you already have a lawyer but were dissatisfied with his/her performance during the trial, you are also entitled to dismiss him and engage a new lawyer for your appeal.
For more clarity or specific legal advice on whether you should file a criminal appeal, you are encouraged to speak with a criminal lawyer.
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