Criminal Procedure, Evidence and Sentencing
| Author | LEE Lit Cheng LLB (Hons) (National University of Singapore), LLM (London); Advocate and Solicitor (Singapore); Deputy Senior State Counsel/Deputy Public Prosecutor, Attorney-General’s Chambers. |
| Date | 01 December 2007 |
| Published date | 01 December 2007 |
12.1 In Ng Chee Tiong Tony v PP[2008] 1 SLR 900, the appellant appealed against his conviction on a charge of voluntarily causing hurt on, inter alia, the ground that the learned trial judge had unreasonably and unfairly entered the arena of conflict by excessively questioning him thereby rendering the conviction unsafe. The trial judge had asked a series of about 70 continuous questions, and many of them were in the nature of cross-examination. The trial judge had also relied on evidence obtained from this series of questions in justifying the rejection of the appellant”s version of events.
12.2 On appeal, Lee Seiu Kin J applied the decision of Re Shankar Alan s/o Anant Kilkarni[2007] 1 SLR 85 and quashed conviction on the basis that the trial court had failed to discharge its judicial function because it had assumed an inquisitorial role by descending into the arena as to impair its judgment and ability to properly evaluate and weight the evidence as to render the trial unfair. Lee J cautioned that while a trial judge has wide powers under s 167 of the Evidence Act (Cap 97, 1997 Rev Ed) to ask questions of any witness, he must do so bearing in mind that our legal system is an adversarial one in which the role of the judge is that of a detached adjudicator and the burden is on the prosecution to prove its case.
12.3 Having decided to quash the conviction, Lee J proceeded to consider whether the appellant should be acquitted or a retrial ought to be ordered. In deciding which course of action to take, it was held in Beh Chai Hock v PP[1996] 3 SLR 495 that the court must balance two competing principles, namely, the need to ensure that persons who are guilty should be brought to justice and not be allowed to escape scot-free on some technical blunder by the trial judge and the need to be fair to the accused person in that the prosecution should not be given a second chance to make good the deficiencies of its case.
12.4 Lee J considered three main factors in the balancing exercise. They are:
(a) the gravity of the charge and the facts;
(b) the likelihood of a successful prosecution in a retrial; and
(c) the prejudice suffered by the accused if a retrial is ordered.
12.5 On gravity of the offence, Lee J commented that a court would be more inclined to order a retrial if the accused is charged with a serious offence. On the second factor, Lee J said that there is a greater public interest in remitting a strong case for retrial rather than a weak one. On the third factor, Lee J took into account the lapse of time since the time of the alleged offence, the expenses that the appellant had incurred to defend the charge and the anguish that the appellant suffered during the period that the conviction had been hanging over his head. In the present case, as the charge was not a serious one, the evidence cannot be said to be certain and the appellant would suffer prejudice if he were to be retried. Lee J took the view that it would not be just to order a retrial. The appellant was acquitted of the charge accordingly.
12.6 It was first decided by the High Court of three judges in Cheng Swee Tiang v PP[1964] MLJ 291 that the court has a discretion to exclude illegally obtained evidence if its reception would operate unfairly against the accused. Subsequently, the Court of Appeal in How Poh Sun v PP[1991] 3 MLJ 216 followed the English position in R v Sang[1980] AC 402 and held that there is no discretion to exclude evidence on the ground that it was obtained by entrapment. In a later decision, the High Court in SM Summit Holdings Ltd v PP[1997] 3 SLR 922 (‘Summit’) distinguished R v Sang and held that if the commission of the offence was brought about by an illegal act on the part of the agent provocateur, any evidence so obtained in relation to the commission of the offence should be excluded. In Law Society of Singapore v Tan Guat Neo[2007] SGHC 207, Chan Sek Keong CJ and two other judges sitting in the High Court reviewed the law in this area and concluded that the court has no discretion to exclude illegally obtained evidence.
12.7 Law Society of Singapore v Tan Guat Neo involves an application by the Law Society pursuant to s 94 read with s 98 of the Legal Profession Act (Cap 161, 2001 Rev Ed) for the respondent to show cause as to why she should not be dealt with under s 83(2)(e) or 83(2)(h) of the said Act. In the present case, the respondent was an advocate and solicitor. A private investigator was hired by several law firms to try to obtain evidence that the respondent”s law firm had been engaging in touting for conveyancing work. One Jenny was tasked to carry out the sting operation. Jenny approached the respondent posing as a real estate agent interested in engaging the respondent to act for her client in the purchase of a property. Jenny taped recorded her conversations with the respondent where the respondent offered shopping vouchers to Jenny to procure conveyancing work from her. The issue of entrapment and illegally obtained evidence arose because the respondent argued that the tape recordings should not be admissible in evidence as they were illegally obtained.
12.8 Although the decision relates to disciplinary proceedings under the Legal Profession Act, the High Court went on to embark on a discussion on the law of entrapment and the use of illegally obtained evidence in criminal prosecutions. First, the court considered what is entrapment. Entrapment involves an agent provocateur instigating or luring the accused to commit an offence which he might otherwise not...
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