Criminal Procedure, Evidence and Sentencing

Published date01 December 2003
Date01 December 2003
AuthorGLENN SEAH KIM MING LLB (National University of Singapore) State Counsel/Deputy Public Prosecutor, Attorney-General’s Chambers
Citation(2003) 4 SAL Ann Rev 192
Whether formal application for impeachment required

11.1 The Court of Appeal had held in Loganatha Venkatesan v PP[2000] 3 SLR 677 that there is no requirement for the trial judge, at any stage of the trial, to make a ruling on whether the credit of a witness is impeached. All that is required is for the court to consider any discrepancies and the witness”s explanations, in making an overall assessment of his credibility. The court must always evaluate the evidence in its totality to determine which aspects are to be believed, and whether or not a witness”s credit is impeached.

11.2 This issue re-surfaced in Low Siew Hwa Kenneth v PP[2003] 3 SLR 448. The appellant had been convicted after trial of four counts of criminal breach of trust under s 409 of the Penal Code (Cap 224, 1985 Rev Ed) and one count of cheating under s 420 of the Penal Code. In the appeal against conviction and sentence, counsel for the appellant argued that the trial judge”s failure to make an impeachment ruling, whether at the close of the impeachment proceedings or at the end of the trial, had prejudiced the appellant because the Defence had assumed during the trial that the credit of the appellant and one of the defence witnesses would not be impeached.

11.3 The High Court held that the trial judge had not erred in this respect and in following Loganatha”s case stated that the trial judge was entitled to find that the appellant”s credit was impeached even though there was no explicit ruling as such during the trial, and even though there had been no formal application for impeachment when the appellant”s statement was tendered by the Prosecution.

11.4 The High Court noted that the record of proceedings showed that although no formal application had been made by the Prosecution, it was understood by the trial judge, the Prosecution and the Defence that the Prosecution was in fact impeaching the witness, since all the usual court procedures in relation to impeachment had been followed. The High Court therefore found that the appellant had been treated fairly and justly and

declined to find fault with the impeachment on the mere technicality that the Prosecution had not made a formal application. The appeal against conviction and sentence was dismissed.

Whether appellate court should impeach witness where trial judge has not, because witness has lied in an earlier case

11.5 There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. So long as the inconsistencies are minor in nature, or related to minor issues, it will not undermine his evidence in respect of the key issues. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other: Jimina Jacee d/o C D Athananasius v PP[2000] 1 SLR 205.

11.6 It is also trite law that an appellate court should be slow to overturn a trial judge”s findings of fact, especially where they hinge on the trial judge”s assessment of the credibility and veracity of witnesses: Yap Giau Beng Terence v PP[1998] 3 SLR 656.

11.7 In Visawanathan Ramachandran v PP[2003] 3 SLR 435, the appellant had been convicted after trial of one charge of criminal breach of trust as a servant under s 408 of the Penal Code and one charge of simple criminal breach of trust under s 406 of the Penal Code. In the appeal against conviction, the appellant invited the High Court to reverse certain findings of fact based on the testimony of a witness who was proven to have been an untruthful witness in an earlier, related case.

11.8 Yong Pung How CJ held that while evidence that a witness had lied in an earlier case would be a strong factor pointing to a witness”s propensity to lie, it would not be correct to fetter the trial judge”s discretion in assessing a witness”s credibility by referring him to decisions of other judges in that respect. This would amount to a delegation of the trial judge”s responsibility to decide whether or not to believe the witness.

11.9 The trial judge had the advantage of observing a witness”s demeanour. Therefore, where he decided to believe in the witness”s credibility, an appellate court would not, without more, overturn his decision merely because the witness had lied in other cases. The appeal against conviction was thus dismissed.

When courts are functus officio
When trial judge is functus officio

11.10 In Chiaw Wai Onn v PP[1997] 3 SLR 445, the High Court had held that s 217(1) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (‘CPC’) laid down a general prohibition against alteration of judgments by the subordinate courts except as provided by s 217(2) of the CPC ie that a ‘clerical error’ could be rectified at any time and ‘any other mistake’ could be rectified before the court rose for the day.

11.11 The High Court considered this issue again in PP v Oh Hu Sung[2003] 4 SLR 541. The respondent had pleaded guilty to voluntarily causing hurt under s 323 of the Penal Code and was sentenced to three months” imprisonment. Two hours later, counsel for the respondent informed the district judge that his client had pleaded guilty by mistake as his client had thought that he would only be fined. The district judge then rejected the plea of guilt, fixed the matter for mention and granted bail. However, the district judge later took the view that he had been functus officio after the sentence was pronounced and had no power to fix the matter for mention or grant bail. He brought an application for criminal revision to reinstate the original conviction and sentence.

11.12 The High Court confirmed that a judge is generally functus officio after sentence is pronounced, subject to s 217(2) of the CPC. The High Court went on to explain that ‘any other mistake’ under s 217(2) of the CPC included not only mistakes by the court, but also unilateral mistakes by the parties. It also covered both errors of law and errors of fact. However, s 217(2) of the CPC did not permit a court to hear and decide a disputed issue as to whether a mistake had been made; it would only apply where the mistake was obvious to the court or admitted by all parties. In this case, the High Court found that the respondent had understood the nature and consequences of his plea and had admitted to the statement of facts without qualification. Under the circumstances, there was no evidence that there was an obvious mistake in the appellant pleading guilty. The original conviction and sentence was reinstated.

When appellate court is functus officio

11.13 In Vignes s/o Mourthi v PP (No 3)[2003] 4 SLR 518, the appellant, who had earlier been sentenced to suffer death for drug trafficking, applied for a re-trial and a stay of execution. Two earlier criminal motions were dismissed by Woo Bih Li J (see Vignes s/o Mourthi v PP (No 2)[2003] 4 SLR 300) and

Lai Kew Chai J (Criminal Motion No 17 of 2003) respectively. The appellant appealed against Lai J”s decision.

11.14 The Court of Appeal followed the earlier decisions in Abdullah bin A Rahman v PP[1994] 3 SLR 129 and Lim Choon Chye v PP[1994] 3 SLR 135 and confirmed that once the Court of Appeal has rendered judgment in an appeal heard by it, it is functus officio in so far as that appeal is concerned, and cannot re-open the case.

When judge ought to be disqualified from hearing case

11.15 Counsel for the appellant in Vignes s/o Mourthi v PP (No 3) had also made a preliminary objection to Chao Hick Tin JA and Yong Pung How CJ hearing the appeal, as they were part of the coram that had dismissed the appeal arising from the original conviction. The Court of Appeal dismissed counsel”s argument, stating that unless strong reasons were shown why permanent members of the Court of Appeal would be unable to act objectively, there would be no ground for them to disqualify themselves. In the instant appeal, the issue was in respect of the High Court”s powers to order a re-trial for a case that had run its full course, with the President turning down the petition for clemency. It was an entirely new point from that which had been decided in the appeal against conviction. There was therefore no reason for Chao JA or the Chief Justice to disqualify themselves.

Suspension of sentence

11.16 In Vignes s/o Mourthi v PP (No 3), the Court of Appeal had followed the earlier decision in Jabar v PP[1995] 1 SLR 617, and confirmed that the Court of Appeal did not have the power to order that a sentence of death be stayed or commuted to life imprisonment. The power to commute or remit sentence lay only with the President, under s 8 of the Republic of Singapore Independence Act (1985 Rev Ed).

11.17 Similarly, in Lwee Kwi Ling Mary v PP[2003] 2 SLR 151, the applicant filed a criminal motion requesting the High Court, by virtue of s 223 of the CPC, to suspend her sentence of three months” imprisonment for criminal intimidation, pending her petition to the President for pardon. At the time the motion was heard, the applicant had already begun serving sentence.

11.18 Section 223 of the CPC states:

Subject to the provisions of this Code and of the Supreme Court of Judicature Act, every sentence of imprisonment to which section 221 or

222 apply shall take effect from the date on which it was passed, unless the court passing the sentence or when there has been an appeal the appellate court otherwise directs.

11.19 The High Court dismissed the criminal motion and held that s 223 of the CPC gave the court the power to determine the date of commencement of a sentence but did not empower the court to suspend sentence after the offender had actually started serving sentence. The prerogative to suspend the execution of sentence lay solely with the President under s 8 of the Republic of Singapore Independence Act.

Whether multiple acts constitute one composite offence

11.20 In Wong Loke Cheng v PP[2003] 1 SLR 522, the appellant had been...

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