Criminal Procedure, Evidence and Sentencing
| Citation | (2011) 12 SAL Ann Rev 243 |
| Author | LEE Jwee Nguan LLB (Hons) (National University of Singapore), LLM (NYU); Advocate and Solicitor (Singapore); Deputy Senior State Counsel/Deputy Public Prosecutor, Attorney-General's Chambers. MOHAMED FAIZAL Mohamed Abdul Kadir LLB (Hons) (National University of Singapore), LLM (Harvard); Attorney and Counsellor at Law (New York); Deputy Senior State Counsel/Deputy Public Prosecutor, Attorney-General's Chambers. |
| Date | 01 December 2011 |
| Published date | 01 December 2011 |
13.1 The matter of the requirements of a statement of facts and the validity of a plea of guilt was elucidated upon by the High Court in Biplob Hossain Younus Akan v Public Prosecutor[2011] 3 SLR 217 (Biplob Hossain v PP). Biplob Hossain v PP concerned an appeal by four Bangladeshi nationals against the sentence that had been imposed on them (of 24 months' imprisonment each) after they had pleaded guilty to a charge under s 128I(b) of the Customs Act (Cap 70, 2004 Rev Ed), read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed) for having retrieved and packed uncustomed cigarettes. During the course of the appellate proceedings, the appellants had contended that they possessed no knowledge that the cigarettes that formed the subject matter of the charge were uncustomed, thus raising the question of whether their plea of guilt had been valid in the first place.
13.2 V K Rajah JA noted that the singular reference in the statement of facts (SOF) that had alluded to the mens rea of the appellants had been a single line which stated that the accused were aware that the excise duty had not been paid on all the seized cigarettes, a reference that, Rajah JA opined, was insufficient to show the appellants' mens rea at the time of the commission of the offence. As the SOF was deficient insofar as there was nothing in the statement of facts that set out the appellants' knowledge of the uncustomed status of the goods at the time of the offence, an essential element of the charge, Rajah JA ordered the appellants' plea of guilt to be set aside (along with their attendant convictions and sentences) and for the matter to be remitted to the District Court for fresh pleas to be taken.
13.3 Given the centrality of SOFs in cases where an accused person decides to plead guilty, Rajah JA took the opportunity to sketch out the contours of the duties of the court and prosecution vis--vis the preparation and use of SOFs for cases involving a plea of guilt. Rajah JA observed that, as the requirement for a SOF that discloses the elements of the charge was a freestanding imperative requirement in such proceedings, the courts are bound to evaluate SOFs with fresh lenses, uninfluenced by the accused person's plea to the charge. Rajah JA added that, although the court can typically accept the contents of the SOF at face value, where it appears to contain an internal inconsistency or contradiction within its contents, or where the contents of the SOF are inherently doubtful or incredulous, the court ought to seek an explanation and further inquire into the matter. This, Rajah JA observed, was of particular importance in instances where the accused persons were unrepresented, did not understand the English language or may otherwise not have a grasp of the intricacies of law involved. Rajah JA also took pains to impress the point that in every case, the court ought to apply its mind to ensure that the contents of the SOF made out the offence with which the accused had been charged. In relation to the role of the Prosecution, Rajah JA noted that as the SOF serves as the vehicle by which the court can be absolutely satisfied that there is congruence between the plea of guilt and the offence being made out, such documents ought to be drawn up by those skilled in the preparation of evidence and knowledgeable about the legal ingredients necessary to constitute the relevant offences and that the use of template statement of facts ought to be eschewed: Biplob Hossain v PP at [8].
13.4 It is of little controversy that under the framework set out in the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (Constitution), the power to prosecute resides exclusively with the Attorney-General qua Public Prosecutor. As the High Court had previously noted, given that the Constitution confers absolute prosecutorial discretion on the Attorney-General, an argument of some force could be made that the exercise of prosecutorial discretion is not subject to judicial oversight: Yunani bin Abdul Hamid v Public Prosecutor[2008] 3 SLR(R) 383 at [63]. Nonetheless, it is similarly trite that this does not mean that the Public Prosecutor's powers in the prosecutorial process are absolute and therefore completely outside the province of judicial review or intervention, for the courts are empowered to control and adjudicate on the proceedings that are before it. As L P Thean J (as he then was) succinctly put it in Goh Cheng Chuan v Public Prosecutor[1990] 1 SLR(R) 660 at [13]:
I entirely agree with the proposition that whether to prosecute an accused on a charge, and, after the commencement of the prosecution, whether to continue it, are matters solely for the Public Prosecutor to decide. Article 35(8) of the Constitution [vests] in the Attorney-General, as the Public Prosecutor, all such powers. There is clearly no dispute on this point. However, once he has instituted criminal proceedings against an accused on a charge and the proceedings are before the court, the conduct of such proceedings is subject to the overall control of the court. If a question in issue arises whether one of fact or of law then it is undoubtedly for the court to determine; indeed, the court is under an obligation to determine it.
13.5 The complex interplay of the relationship between the Courts, the Public Prosecutor and the various other stakeholders in the criminal legal process was in particularly sharp focus this past year, having been discussed and considered in a considerable line of cases that illuminate on the precise scope of such powers.
13.6 In Martinez Marites Dela Cruz v Public Prosecutor[2011] 3 SLR 142 (Martinez Marites Dela Cruz v PP), the appellant had lodged a magistrates' complaint against the second respondent and taken out a private prosecution against the second respondent for the alleged commission of an offence of criminal defamation. During the pre-trial proceedings before the Subordinate Courts, the Public Prosecutor had intervened in the proceedings and entered a nolle prosequi, informing the court that it did not intend to pursue the prosecution of the second respondent. As a result, the District Judge presiding over the proceedings discharged and acquitted the second respondent of the charge. The appellant, dissatisfied with the Public Prosecutor's intervention in the private prosecution, appealed against the order of the District Judge.
13.7 In the High Court, Choo Han Teck J observed that the appellant possessed no locus standi to lodge an appeal against the decision of the District Judge. As Choo J noted, s 376 of the Criminal Procedure Code (Act 15 of 2010), contemplates that only the Public Prosecutor possesses a right of appeal when an accused person was acquitted; the corollary of this was that a private individual like the appellant possessed no locus standi to appeal the District Judge's decision. As such, the appellant's attempt at appealing the order made by the District Judge, as opposed to taking a separate originating action, amounted to an error that could not be rectified without disregarding the clear and uncompromising words of the Constitution: Martinez Marites Dela Cruz v PP at [3]. As the appeal failed on a procedural point, the question of the framework that the court would employ in analysing whether a decision by the Public Prosecutor not to pursue criminal proceedings was not the subject of scrutiny.
13.8 Nonetheless, the reasoning of the High Court in the case of Huang Meizhe v Attorney-General[2011] 2 SLR 1149 (Huang Meizhe v AG) provides an insight into the framework that the courts are likely to employ in dealing with such applications. Huang Meizhe v AG involved an application by the Attorney-General to strike out an application for a declaration that the Attorney-General, qua Public Prosecutor, had acted illegally and/or irrationally and/or with procedural impropriety for failing or refusing to appeal the imposition of a 16-year imprisonment sentence on one Madam Wu Yun Yun (Mdm Wu). Mdm Wu had, in separate criminal proceedings, pleaded guilty to one count of culpable homicide not amounting to murder and a further count of attempting to commit culpable homicide not amounting to murder (with a further count of causing hurt being taken into consideration). Although the Prosecution in those criminal proceedings had argued for the imposition of a sentence of life imprisonment, it declined to appeal the 16-year sentence that was eventually imposed by the High Court. It was in the context of such circumstances that the two applicants in Huang Meizhe v AG, who were the widow and mother respectively of the individual who had been killed by Mdm Wu (Plaintiffs), applied to obtain a declaration that sought to challenge the decision of the Public Prosecutor not to appeal against the sentence imposed.
13.9 Tan Lee Meng J struck out the Plaintiffs' application on the premise that it was plain and obvious that it was bound to fail. Tan J noted that the gist of the Plaintiffs' gravamen with the Public Prosecutor lay in the belief that the Public Prosecutor had misconstrued the effect of recent decisions of the Court of Appeal in determining the merits of appealing the sentence imposed on Mdm Wu. Given the separation of powers envisioned under the Constitution between the Courts and the Prosecution, this fact alone, Tan J noted, amounted to insufficient grounds for the Courts to intervene since the decision of the Public Prosecutor could only be challenged where the exercise of prosecutorial discretion amounted to a breach of the Constitution or was in bad faith (see Law Society of Singapore v Tan Guat Neo Phyllis[2008] 2 SLR(R) 239).
13.10 A more recent case pertaining to the matter of prosecutorial powers of the Attorney General (qua Public Prosecutor) is the recent Court of Appeal decision of Ramalingam...
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