Criminal Procedure, Evidence and Sentencing
| Published date | 01 December 2004 |
| Date | 01 December 2004 |
| Author | LEE Lit Cheng LLB (Hons) (National University of Singapore), LLM (London); Advocate and Solicitor (Singapore); State Counsel/Deputy Public Prosecutor, The Attorney-General’s Chambers. Glenn SEAH Kim Ming LLB (Hons) (National University of Singapore); State Counsel/Deputy Public Prosecutor, The Attorney-General’s Chambers. |
| Citation | (2004) 5 SAL Ann Rev 231 |
11.1 Section 268 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (‘CPC’) gives the High Court exercising its revisionary jurisdiction the same powers the court has in hearing an appeal to make orders under s 256 of the CPC.
11.2 It is trite law that the High Court”s powers under s 256(b) of the CPC include the power to amend a charge and to convict an accused person on the amended charge: Garmaz s/o Pakhar v PP[1996] 1 SLR 401. It has also been established that the High Court can also do so in its revisionary capacity: PP v Koon Seng Construction Pte Ltd[1996] 1 SLR 573 (‘Koon Seng Construction’).
11.3 In Annis bin Abdullah v PP[2004] 2 SLR 93, the power of the High Court under s 256(b) of the CPC was further extended to include the power to amend a statement of facts. In this case, the appellant pleaded guilty to a charge under s 377 of the Penal Code (Cap 224, 1985 Rev Ed) for having carnal intercourse against the order of nature with a 16-year-old victim. The statement of facts also stated that the victim was 16 years old at the time of the offence. It was later discovered that the victim was only 15 years old at the time of the offence. The Public Prosecutor brought an application for criminal revision seeking to amend the charge and the statement of facts to reflect the correct age of the victim at the time of the offence.
11.4 While it was clear that the High Court had the power to amend the charge under s 256(b) of the CPC, the court had to determine whether it also
had the power to amend the statement of facts. The court considered that the Court of Appeal in Garmaz s/o Pakhar v PP adopted a purposive construction of s 256(b) to give the High Court the power to amend a charge on appeal as it was of the view that it would be incongruous that the High Court was given extensive powers in respect of conviction, sentence and findings but had no power to correct errors in the charge. Yong Pung How CJ in Annis bin Abdullah v PP concluded that a purposive construction of s 256(b) should also be adopted to give the High Court the power to amend a statement of facts. He explained at [22]:
This is because, following the Court of Appeal”s decision in Mok Swee Kok v PP[1994] 3 SLR 140, it is clear that the court has a legal duty to record a statement of facts and to scrutinise it to ensure that all the elements of the charge are made out therein. In light of this, I did not feel that the drafters of the CPC could have intended that the court should not have the power to amend the statement of facts. I was of the view that it must have been the legislature”s intention that the court should have such a power so that it is able to accurately record the relevant facts which must be taken into account when determining sentence.
11.5 However, the court cautioned that an amendment to the statement of facts, like an amendment to the charge, should only be made where the safeguards set out in Koon Seng Construction and Ng Ee v PP[1941] 1 MLJ 180 were observed so as not to prejudice the accused.
11.6 Having established that the High Court had the ability to amend the charge and the statement of facts, Yong CJ said that the High Court would only exercise its powers of revision where there was some ‘serious injustice’ or something ‘palpably wrong’ in the lower court”s decision. In this particular case, he noted that the age of the victim was a significant factor in sentencing, especially since the victim”s consent had been presented as a mitigating factor. A misunderstanding as to the victim”s true age would therefore constitute something ‘palpably wrong’ in the district judge”s assessment of sentence. In the circumstances, Yong CJ allowed the petition for revision, to amend both the charge and the statement of facts.
11.7 One observation to be made is that the rationale given by the High Court, that the drafters of the CPC could not have intended for the court not to have the power to amend the statement of facts in an appeal, appears suspect. This is because the statement of facts is not alluded to in the CPC at all. The procedure to be followed by the court when an accused pleads guilty is set out in s 180(b) of the CPC, which only requires the accused to plead guilty to the charge. There is no statutory legal basis for imposing a
requirement that the court should consider the statement of facts. The tendering of a statement of facts was a practice that had evolved over time into a legal duty on the court to record a statement of facts and to ensure that the statement of facts contained all the elements of the charge: Mok Swee Kok v PP[1994] 3 SLR 140. Therefore it would be difficult to determine whether the drafters of the CPC could have intended that the High Court should have the power to amend the statement of facts.
11.8 Perhaps the power to amend the statement of facts may be found in s 256(b)(ii) of the CPC, which allows the court to ‘alter the finding’. The express power to alter the finding could reasonably be read to include the power to amend the statement of facts, which is really an expression of the court”s findings of fact, as presented by the Prosecution and admitted to by the accused person.
11.9 In Abdul Munaf bin Mohd Ismail (but charged as Kathar Abdul Gafoor) v PP[2004] SGHC 4, the petitioner sought revision of his conviction for entering Singapore unlawfully in contravention of s 6(1)(c) of the Immigration Act (Cap 133, 1997 Rev Ed). The petitioner had pleaded guilty to the charge and admitted in the statement of facts that he, Kathar Abdul Gafoor, an Indian national, had fraudulently obtained a visit pass by using a forged Malaysian passport in the name of Abdul Munaf.
11.10 The gist of the revision was that the petitioner claimed that he was Abdul Munaf and not Kathar Abdul Gafoor, that he had been coerced into pleading guilty in the Subordinate Courts under the name of Kathar Abdul Gafoor and that the Malaysian passport was in fact genuine. In support of his contention, he produced six old passports in the name of Abdul Munaf dating back to 1967, which all appeared to show the petitioner in various stages of aging, as well as a certificate of his Malaysian citizenship. The particulars in these documents all corresponded with those in the allegedly forged passport seized by the police. The petitioner”s father-in-law also testified to the petitioner”s Malaysian citizenship.
11.11 Choo Han Teck J opined that the documents appeared to be authentic. He was also impressed by the fact that the petitioner and his father were prepared to give testimony on the petitioner”s Malaysian citizenship despite being aware that the punishment for perjury was more severe than that of the immigration offence.
11.12 Choo J noted that there was a possible issue as to whether the standard of proof on the petitioner was that of a balance of probabilities or merely raising reasonable doubt as to his guilt. He further noted that the court in Chan Chun Yee v PP[1998] 3 SLR 638 had alluded to the balance of probabilities test, though only in passing. However, as he was satisfied that the petitioner had satisfied the higher test in any event, he saw no need to answer the question conclusively. He therefore set aside the petitioner”s conviction and sentence.
11.13 In Zailani bin Ahmad v PP[2005] 1 SLR 356, the appellant was convicted of a charge of committing murder in furtherance of the common intention of one Rachel and himself. Both of them intended to rob the deceased but ended up killing him. The trial judge”s grounds of decision ([2004] SGHC 202) did not contain an express finding on the issue of common intention. He also found it unnecessary to decide whether it was the appellant or Rachel who inflicted the fatal injuries.
11.14 Although the appellant did not raise the issue of common intention at the appeal, the Court of Appeal found it necessary to address the trial judge”s omission. The Court of Appeal held that where a charge invokes s 34 of the Penal Code (Cap 224, 1985 Rev Ed), the court must make a finding that the criminal act complained of was carried out by one of the accused persons and that it was done in furtherance of the common intention of all. Thus the trial judge erred in failing to make a finding as to whether it was the appellant or Rachel who inflicted the fatal injuries, and in failing to make a finding on the issue of common intention.
11.15 In the present case, the Court of Appeal found that there was clear and cogent evidence to show that the appellant and Rachel shared the common intention to rob the deceased, and in furtherance of that common intention, the appellant inflicted the fatal blows on the deceased. Notwithstanding the trial judge”s omission, the Court of Appeal referred to s 54(3) of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) and upheld the conviction as no substantial miscarriage of justice had been occasioned.
11.16 In PP v Donohue Enilia[2005] 1 SLR 220, the respondent had employed an Indonesian maid from 7 September 2001 onwards. On 1 December 2001, the work permit was revoked as the respondent had defaulted on payment of the maid levy. However, the respondent continued to employ the maid until 9 August 2003 when the maid finally reported the respondent to the police. Throughout the period of employment, the respondent did not pay the maid her salary.
11.17 The respondent pleaded guilty to employing a foreign worker without a work permit under s 5(1) of the Employment of Foreign Workers Act (Cap 91A, 1997 Rev Ed) and failing to pay the foreign worker her salary in compliance with the work permit conditions under s 22(1)(a) of the same Act. The respondent was ordered to pay 35 months of the...
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