Abdul Ghani v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Lai Kew Chai J
• Judgment Date: 07 May 1984
• Neutral Citation: [1984] SGCA 11
• Docket Number: Criminal Motion No 26 of 1982
• Date: 07 May 1984
• Published date: 19 September 2003
• Year: 1984
• Plaintiff Counsel: MN Swami (MN Swami)
• Citation: [1984] SGCA 11
• Defendant Counsel: Lawrence Ang (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: Close of prosecution case,s 188 (1) Criminal Procedure Code (Cap 113),Whether accused's defence should have been called,Criminal Procedure and Sentencing,Whether test laid down part of ratio decidendi or obiter dictum,Privy Council decision,Trials,Courts and Jurisdiction,Binding force,Degree of proof,Court judgments

At Court No 12 of the Subordinate Courts of Singapore on 3 August 1981, 4 August 1981 and 19 August 1981 one Abdul Ghani Mohd Mustapha was charged, inter alia, as follows:

You, Abdul Ghani Mohd Mustapha, are charged that you, on or about 25 November 1977, in Pulau Bukom, Singapore, being an agent, namely, a Civil Supervisor in the employ of Shell Eastern Petroleum (Pte) Ltd Pulau Bukom, Singapore, did corruptly accept from one Tong Fatt Chong, the Managing Director of Tong Brothers Construction (Pte) Ltd for yourself, a gratification of a sum of Five Hundred Dollars ($500) as an inducement for showing favour in relation to your principal`s affairs, by being lenient in your supervision of the works done by Tong Brothers Construction (Pte) Ltd in respect of the Sewerage Treatment Plant`s Project, and you have thereby committed an offence punishable under s 6(a) of the Prevention on Corruption Act (Cap 104).

You, Abdul Ghani Mohd Mustapha, are charged that you, on or about 5 September 1979 in Pulau Bukom, Singapore, being an agent, namely, a Civil Supervisor in the employ of Shell Eastern Petroleum (Pte) Ltd Pulau Bukom, Singapore, did corruptly accept from one Tong Fatt Chong, the Managing Director of Tong Brothers Construction (Pte) Ltd for yourself, a gratification of a sum of two thousand dollars ($2,000) as an inducement for showing favour in relation to your principal`s affairs, by being lenient in your supervision of the works done by Tong Brothers Construction (Pte) Ltd in respect of the Hydrocracker Control Room Project, and you have hereby committed an offence punishable under s 6(a) of the Prevention of Corruption Act (Ch 104).

At the conclusion of the trial on 19 August 1981 the said Abdul Ghani Mohd Mustapha was acquitted on all charges.

Following the acquittal the Public Prosecutor appealed to the High Court and at the hearing of the appeal (MA 161/81) before FA Chua J the Public Prosecutor contended, inter alia,that the district judge was wrong in that:

(a) the learned district judge erred in law and in fact in failing to consider or adequately consider that the evidence adduced by the prosecution at the close of its case had established each essential element in the charge; that applying the test laid down by Lord Diplock in Haw Tua Tau `scase ( [1980-1981] SLR 73 ), a prima facie case had been established and therefore the respondent`s defence ought to have been called.

(b) that the learned district judge erred in law:

(i) in not calling upon the respondent for his defence when he had not found any of the essential elements of the charge lacking in the prosecution`s case;

(ii) in disregarding and ignoring the principle laid down in Haw Tua Tau `scase that, a judge as a decider of facts must keep an open mind as to the accuracy of any of the prosecution`s witnesses until the defence has tendered such evidence.

(c) that the learned district judge erred in law in holding that Ong Kiang Kek `scase ( [1970] 2 MLJ 283 ) continues to be binding on him when that case has been overruled by Haw Tua Tau ,which was a decision of the Privy Council, and in so doing, he has ignored the doctrine of stare decisis.

FA Chua J accepted the submissions of counsel for the appellant and held the view that the Privy Council`s interpretation of s 188(1) of the Criminal Procedure Code in Haw Tua Tau v PP is not obiter dicta and that the decision of the Court of Criminal Appeal in Ong Kiang Kek has been overruled. FA Chua J decided that the district judge was bound by what the Privy Council had laid down in Haw Tua Tau and that he should have called the defence of the respondent on the two charges.

FA Chua J accordingly allowed the appeal and reserved the following two questions for the decision of this court:

(a) Whether the degree of proof required at the close of the prosecution case by Lord Diplock (in Haw Tua Tau ) is obiter dicta or ratio decidendi.

(b) Whether the judicial construction given to s 172(f) ( sic ) of the Criminal Procedure Code in Ong Kiang Kek v PP by the Court of Criminal Appeal by virtue of the legislature having repeated them without alteration in the subsequent statute, ie Act 10, is deemed to have been approved by the legislature thereby precluding the Privy Council from giving a different interpretation.

Question (a)

The Judicial Committee of the Privy Council dealt with three appeals in their judgment. The three appeals were Haw Tua Tau v PP, Tan Ah Tee v PP and Low Heng Seng v PP. In these appeals the Board gave special leave to appeal to enable the appellants to raise the question of the inconsistency of the Criminal Procedure (Amendment) Act 1976 (Act No 10 of 1976) with art 9(1) of the Constitution of Singapore which provides that `No person shall be deprived of his life or personal liberty save in accordance with law`.

The only question argued before the Board was the contention, common to all three appellants, that the amendments made to the Criminal Procedure Code by Act No 10 of 1976 were inconsistent with art 9(1) of the Constitution and, being inconsistent, were rendered void by art 4. The whole foundation of the argument on which that contention was based was the interpretation that the Board had placed on the expression `law` in the context of art 9(1) in the case of Ong Ah Chuan v PP [1980-1981] SLR 48 . The Board rejected that contention and gave their reasons in a judgment delivered by Lord Diplock.

The passage in the Board`s judgment relied upon by the three appellants reads:

In a Constitution founded on the Westminster model and particularly

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