Criminal Procedure, Evidence and Sentencing

Date01 December 2001
Published date01 December 2001
CRIMINAL PROCEDURE
Appeals
Approach of appellate court on findings of fact

11.1 A judge can make a finding on the credibility of a witness based on his demeanour, the internal consistency (or lack thereof) in the content of his evidence, and the external consistency (or lack thereof) between the content of his evidence and extrinsic evidence (for example, the evidence of other witnesses, documentary evidence or exhibits): Farida Begam d/o Mohd Artham v PP[2001] 4 SLR 610.

11.2 It is trite law that an appellate court will not disturb the findings of fact of a lower court unless they are clearly reached against the weight of the evidence. This is especially so where a finding of fact hinges on the trial judge”s assessment of the credibility and veracity of witnesses: Yap Giau Beng Terence v PP[1998] 3 SLR 656. In any appeal against a finding of fact, an appellate court will generally defer to the conclusion of the trial judge who had the opportunity to see and assess the credibility of the witnesses. An appellate court, if it wishes to reverse the trial judge”s decision, has to not merely entertain doubts as to whether the decision is right but must be convinced that it is wrong: PP v Azman bin Abdullah[1998] 2 SLR 704, Syed Jafaralsadeg bin Abdul Kadir v PP[1998] 3 SLR 788 and Lim Ah Poh v PP[1992] 1 SLR 713.

11.3 On the other hand, it has also been said in PP v Choo Thiam Hock[1994] 3 SLR 248 at 253 that an appellate court is “in no worse position than the trial court” to assess the evidence which was based not so much upon the demeanour of a witness but upon inferences made from the content of the witness”s evidence. It was on this basis that the High Court in PP v Tubbs Julia Elizabeth[2001] 4 SLR 75 was invited to review the findings of fact of the lower court where the findings arose from inferences made from the contents of the expert witnesses” evidence, as opposed to the actual demeanour of those witnesses in court.

11.4 The respondent in Tubbs was charged under s 304A of the Penal Code (Cap 224, 1985 Ed) for causing the death of three pedestrians in a motor accident. Both the prosecution and the defence called two expert

witnesses each to reconstruct the events leading up to the accident. The bulk of the evidence was made up of the opinions of the expert witnesses. At the end of the trial, the respondent was acquitted. The prosecution appealed, urging the appellate court to overturn the lower court”s findings of fact and arguing that it was in no worse position to assess the evidence than the lower court.

11.5 Yong Pung How CJ declined to do so and cautioned against a wide application of his comment in Choo Thiam Hock. He said (at 82) that while an appellate judge is theoretically in as good a position as the trial judge to make inferences from the face of the record where the demeanour of the witness is not in issue, an appeal judge should not regard such circumstances as granting him a free rein to “substitute his view for that of the trial judge as and when he pleases”. An appellate court “should exercise careful restraint and only intervene in the rare case where logic clearly militates against the findings of fact made by the trial judge” (at 83). A judge sitting on appeal “should be sensitive to the impressionistic nuances which invariably contribute to the inferences drawn by the trial judge, who had the opportunity of observing and evaluating the evidence first-hand” (ibid). In the present case, Yong CJ said that notwithstanding the fact that the bulk of the evidence arose from expert testimony, the trial judge would still have had to assess the demeanour of the expert in deciding on the reliability and soundness of their opinions. He declined to disturb the trial judge”s findings as there was no indication that the inferences drawn by the trial judge from the expert testimony were so exceptionally illogical that they deserved to be overturned on appeal.

11.6 However, this does not mean that a respondent can “keep at bay the scrutiny of an appeal court over the findings at first instance” by “invoking the spectre of Lim Ah Poh” and other similar cases (at 83). Yong CJ said that Choo Thiam Hock was a rare case where the facts weighed so strongly against the decision of the trial judge that it required intervention on appeal.

Approach of appellate court when dealing with grounds of decision that are not totally clear or detailed

11.7 Teo Kian Leong v PP [2002] 1 SLR 147 is an interesting case in which it was submitted that an appeal should be allowed because the district judge did not state his reasons clearly as to how and why he preferred the evidence of the prosecution witnesses to that of the appellant. The appellant was convicted of unauthorised trading through his clients” accounts after a trial. He appealed against the conviction. One of the grounds of appeal was that the trial judge”s grounds of decision did not meet the requirements laid down in Kwan Peng Hong v PP[2000] 4 SLR 96.

11.8 Detailed guidelines were given in Kwan Peng Hong on the approach to be taken by trial judges in assessing the veracity of the witnesses, the credibility of the evidence and the weight to be attached to the evidence. Yong Pung How CJ said that the trial judge”s reasoning must be as systematic, detailed and reasonable as possible. And (at 108) “where there are keenly contested versions of events, the trial judge has the basic duty to lay down in a detailed and clear way how, why, the factors, evidence and considerations that he has taken or refused to take into account, the weight he has attached to them, in arriving at his findings of fact”. This enables the appellate court to intervene if the reasoning has been unreasonable or shows signs of bias or prejudice.

11.9 In Teo Kian Leong, Yong CJ clarified that these guidelines are intended to help trial judges come to a reasoned decision and they present an ideal which trial judges should aspire to. If the reasoning is set out in a detailed and systematic manner, it makes the reasoning process more transparent, thus helping the appellate court to decide if there is or is not a reason why the appeal should succeed. However, non-conformance with the guidelines per se does not justify an overturning of the trial judge”s decision as this alone does not demonstrate that the trial judge”s decision and findings of fact were against the weight of evidence. It simply means that the appellate court has to be more careful when scrutinising the evidence and the trial judge”s decision. Although the grounds of decision of the trial judge in Teo Kian Leong was less than perfect, the grounds were not totally devoid of reasoning. The appeal was accordingly dismissed.

11.10 It is noteworthy that Chao Hick Tin JC (as he then was) had also decided in Krishna Jayaram v PP[1989] SLR 696 that the trial judge”s failure to deal with certain points raised by counsel in the grounds of decision did not render the decision bad. The appellate court was entitled to, and indeed had to, review the evidence to determine whether there was sufficient evidence to sustain the charge.

Application for extension of time before serving sentence

11.11 In Lim Teck Leng Roland v PP[2001] 4 SLR 61, the applicant pleaded guilty and was sentenced to a term of imprisonment. Upon dismissal of his appeal against sentence, he applied for and was granted permission to commence serving his sentence two weeks later so that he could settle his personal and work affairs. At the end of the two weeks, the applicant filed a criminal motion requesting for a further order to postpone the commencement of his sentence by another two weeks to settle his work and personal affairs.

11.12 The first issue that confronted the High Court was whether it could lawfully substitute the earlier order with a fresh one some two weeks after it had been made. It was decided in Chiaw Wai Onn v PP[1997] 3 SLR 445

that s 217 of the Criminal Procedure Code (Cap 68, 1985 Ed) (“CPC”) prohibits a court, including the High Court, from altering its judgment unless it is a rectification of a mistake that is made before the court rises for the day, ie before the working day of the court ends. It is therefore necessary to determine whether the earlier order to defer the commencement of the sentence comes within the definition of a “judgment”. If so, the order cannot be lawfully altered some two weeks later since the court is functus officio.

11.13 The court held that a judgment is a final order in a trial terminating in the conviction or acquittal of an accused. Therefore the earlier order deferring the commencement of a sentence was not a judgment and the High Court had the power to review the order.

11.14 The second issue that the court had to decide was what circumstances would warrant a further extension of time before commencement of the sentence. Yong CJ said that while it would be impossible to lay down a clear-cut guideline in this respect, the court would be guided by whether the interests of justice require that discretion be exercised to allow an applicant a further deferment before he serves his sentence. The court is to take a “robust approach” and to ensure that the discretion to grant further extensions is not to be abused by frivolous requests from the applicant. The burden is always on the applicant to convince the court that “the circumstances and conditions are of such a dire and serious nature or of such urgency that they merit the exercise of discretion by the court to grant a further period of time before he serves his sentence” (at 66). On the facts of the present case, there was nothing in the applicant”s affidavit to warrant a further extension of time and his application was accordingly dismissed.

Refunding a fine and imposing a default term of imprisonment in substitution

11.15 In Wu Tze Kok v PP[2001] 4 SLR 645, the appellant was charged in the subordinate court for two traffic...

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