Criminal Procedure, Evidence and Sentencing

Citation(2005) 6 SAL Ann Rev 218
Date01 December 2005
Published date01 December 2005
CRIMINAL PROCEDURE
Appeal against mandatory forfeiture on the ground that offence has not been committed, when the appellant has already pleaded guilty

11.1 In Chu Wai Kiu v PP[2005] 2 SLR 202, the appellant appealed against the order of the district judge to forfeit two lots of jewellery to the Singapore customs for disposal under s 123(2) of the Customs Act (Cap 70, 2004 Rev Ed). The appellant had earlier pleaded guilty to failing to declare the said jewellery for the purpose of the goods and services tax (‘GST’) upon importation, an offence under s 128(1)(f) of the Customs Act. The appellant had also admitted without qualification to the statement of facts which stated that the appellant knew that GST was leviable on the jewellery and that he had no intention to declare the said jewellery.

11.2 In his appeal, the appellant argued that the offence was not made out and that the jewellery was not the subject matter or used in the commission of the offence. The High Court dismissed the appeal, noting that the appellant could not argue that the offence was not made out in relation to the forfeiture proceedings, since he had pleaded guilty to the offence in the principal proceedings: to allow this would be tantamount to going behind the plea of guilt. The appellant should instead have petitioned for criminal revision of his conviction and sentence. In any event, however, the High Court noted that there were no grounds to invoke its powers of revision in this particular case, as the offence was clearly made out.

Composition — road rage cases

11.3 In Chua Tian Bok Timothy v PP[2004] 4 SLR 514, the petitioner, who was a passenger in one of two accident vehicles, was charged under s 323

of the Penal Code (Cap 224, 1985 Rev Ed) for punching the victim after a car accident. The victim agreed to accept $7,500 from the petitioner to compound the matter and confirmed his decision through independent counsel. At the trial, the petitioner applied for composition pursuant to s 199 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed). The trial magistrate withheld consent to composition in view of the courts” strict policy against road rage incidents. The petitioner applied for criminal revision of the magistrate”s decision.

11.4 The High Court dismissed the petition. It noted that where the courts have expressed a strict policy in sentencing involving imprisonment as the appropriate punishment, such as in cases of outrage of modesty involving abuse of trust over a protracted period (PP v Mohamed Nasir bin Mohamed Sali[1999] 4 SLR 83) and maid abuse cases (Kee Leong Bee v PP[1999] 3 SLR 190; Ho Yean Theng Jill v PP[2004] 1 SLR 254), consent to composition should be withheld. Similarly, road rage incidents usually involved custodial sentences, and consent to composition was therefore correctly withheld. This strict policy applied to even first-time offenders, and not just to drivers, but also to passengers of motor vehicles.

Amalgamation of charges — possession of separate amounts of drugs at the same time

11.5 In Chew Seow Leng v PP[2005] SGCA 11, the appellant appealed against his conviction on a capital charge of having a total of 226.57g of diamorphine in his possession, of which more than 15g was for the purpose of trafficking, under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed). The drugs were found in two batches — four packets containing not less than 149.1g of diamorphine in a taxi at the scene of the appellant”s arrest; and ten packets, two straws and one container containing not less than 77.47g of diamorphine in his rented apartment.

11.6 The appellant argued, inter alia, that the charge for trafficking should not have amalgamated the two batches of drugs. The Court of Appeal rejected this argument and followed the case of Yong Yow Chee v PP[1998] 1 SLR 273 in confirming that multiple charges of drug possession for the purpose of trafficking in different locations and times may be amalgamated, particularly since the two batches of drugs in this case were seized in quick succession and the same standards of proof and statutory presumptions would have applied to both batches of drugs. It was also noted that in any event, each batch of drugs was in itself in excess of the capital threshold of

15g. The accused therefore suffered no prejudice from the amalgamated charge.

Whether Prosecution should call recorder of accused”s statement in rebuttal if statement is inconsistent with accused”s testimony in court

11.7 In Sarjit Singh Rapati v PP[2005] 1 SLR 638, the appellant was convicted of the offences of extortion, wrongful confinement and false impersonation. The appellant and one Paramjit had assumed the guise of immigration officers to inspect one Faruq”s work permit and wrongfully confined him in a vehicle. They had also extorted money from one Sharful by intentionally putting him in fear that they would continue to keep Faruq in wrongful confinement.

11.8 In the course of the trial, it became clear that the appellant”s evidence on the stand was inconsistent with his long statement to the police. Although the appellant had earlier agreed that the recording process was proper and professional, the appellant later alleged that, in fact, the investigating officer had not accurately recorded certain portions of his long statement and had fabricated the disputed portions. The Defence submitted that the Prosecution should have called the investigating officer in rebuttal. Relying on the Court of Appeal”s decision in Nadunjalian v PP[1993] 2 SLR 682, the trial judge rejected these submissions, noting in particular that the appellant had only raised his allegations against the investigating officer after he realised that parts of his long statement were unfavourable to his case.

11.9 The High Court agreed with the trial judge, noting that a long statement could not be considered inaccurate simply because it was inconsistent with an accused person”s testimony in court: Anbuarsu v PP[1995] 1 SLR 719 at 725—726, [21]—[26]. Since there was no basis to indicate that the statement was inaccurate, there was also no basis to think that the recording process was flawed. Therefore, there was no reason for the investigating officer to be recalled in rebuttal. The High Court also noted that in any event, if the Defence had truly desired to cross-examine the investigating officer and put the appellant”s allegations to him, it had been open for the Defence to make the necessary application under s 180(l) or s 399 of the Criminal Procedure Code.

Prosecutorial discretion and alternative charges

11.10 The same case of Sarjit Singh Rapati v PP (supra para 11.7) also discussed the issue of whether the court could substitute an alternative

charge for the charge preferred by the Attorney-General. The appellant argued that the facts of the case in relation to extortion under s 384 of the Penal Code also satisfied the elements of the offence of corruption under s 5(a) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed). The corruption offence prescribes a more lenient sentence than the offence of extortion.

11.11 The High Court rejected the appellant”s contention, noting that Art 35(8) of the Constitution of the Republic of Singapore (1999 Rev Ed) and s 336(1) of the Criminal Procedure Code gave the Attorney-General of Singapore the power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence. The High Court also referred to the Court of Appeal”s decision in Govindarajulu v PP[1994] 2 SLR 838, which held that the court could not overturn a conviction, even if it disagreed with the exercise of prosecutorial discretion. The court could only concern itself with the charge at hand and whether it had been proved beyond reasonable doubt, and not whether some other alternative charge was also possible on the facts.

EVIDENCE
Conduct of an accused subsequent to an offence

11.12 In Lewis Christine v PP[2001] 3 SLR 165, the High Court held that an accused”s conduct subsequent to an offence, without other evidence, is generally not conclusive of his or her guilt. However, in that case, the accused”s attempts to escape after being detained for shoplifting attracted a strong inference of guilt. This issue was revisited in Pannirselvam s/o Anthonisamy v PP[2005] 1 SLR 784. The appellant had been charged with rioting at a nightclub where he was employed as a bouncer. The evidence showed that the appellant stopped working at the club four days after the riot. The appellant claimed that he simply did not feel like working there any more. The appellant also admitted that he knew that the police were looking for him four days after the incident but did not surrender to the police for another two months because he wanted to consult a lawyer and raise bail.

11.13 The High Court reiterated that while the courts would generally be cautious when viewing an accused”s conduct subsequent to an offence, the appellant”s conduct in resigning the very day he found out that the police were looking for him, and his subsequent failure to surrender to the police for two months when he knew that he was wanted by the police, properly attracted an inference of guilt.

Identification evidence — vocal...

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