Arjun Upadhya v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 30 August 2010
• Neutral Citation: [2010] SGHC 260
• Plaintiff Counsel: Lim Kim Hong (Kim & Co)
• Docket Number: Magistrate’s Appeal No 4 of 2010; Criminal Motion No 29 of 2010
• Date: 30 August 2010
• Hearing Date: 02 August 2010
• Subject Matter: Criminal Procedure and Sentencing
• Year: 2010
• Citation: [2010] SGHC 260
• Defendant Counsel: Tan Kiat Pheng and Gay Hui Yi (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Published date: 07 September 2010

Tay Yong Kwang J: Introduction

This is an appeal by Arjun Upadhya (“the appellant”) against his conviction by a district judge (“the DJ”) under section 19(1)(c) of the Public Entertainment and Meetings Act (Cap 257, 2001 Rev Ed) (“the Act”) for four breaches of Licensing Condition No 21 (“LC 21”) of the “Licensing Conditions for Nightclubs, Cabarets, Discotheques, Bars, Lounges and other Public Houses” (“the Licensing Conditions”). There is also an application by the appellant by way of a criminal motion (“the Criminal Motion”) to file and proceed on a Supplementary Petition of Appeal.

Background facts

The facts of the present matter are relatively straightforward. The appellant is the owner and licensee of “JV Club” (“the Licensed Premises”). On 9 September 2009, a raid was conducted at the Licensed Premises and the police found four Filipina nationals working there. These four females sold drinks to patrons and were paid commissions based on the number of drinks they sold. They did not possess any work permit or employment pass.

The appellant also allowed the four females to provide companionship to the patrons by chit chatting and drinking with them. He had not obtained the approval of the licensing officer to have hostesses in the Licensed Premises.

The appellant was charged with eight counts of violating section 19(1)(c) of the Act. Section 19(1)(c) of the Act provides that “[a]ny person who provides or assists in providing any public entertainment... in contravention of any condition of a licence... shall be guilty of an offence”. The punishment prescribed is a fine not exceeding $10,000. Of these eight charges, four related to the breach of Licensing Condition No 5 (“LC 5”) of the Licensing Conditions, while the remaining four charges pertained to the breach of LC 21. The breach of LC 5 was in relation to his employment of the four Filipina nationals as hostesses when they did not have a valid work permit (“Employment Charges”). LC 5 provides that “[t]he licensee shall not employ any foreigner in the licensed premises unless the foreigner is the holder of valid work permit or employment pass”. The breach of LC 21 was in relation to permitting the same four Filipina nationals to perform the duties of a hostess without approval from the Licensing Officer (“Deployment Charges”). LC 21 states that “Unless approved by the Licensing Officer in writing, the licensee shall not permit any person in the licensed premises to perform the duties of a hostess”.

The appellant pleaded guilty to the four Employment Charges and was convicted accordingly. However, he claimed trial to the four Deployment Charges. The DJ found him guilty and convicted him on the Deployment Charges as well. She then sentenced him to pay a fine of $2,000 (in default two weeks’ imprisonment) for each of the four Employment Charges and the four Deployment Charges, making a total fine of $16,000. The fines have been paid. This appeal concerns only the conviction on the four Deployment Charges.

The trial proceeded on the facts as outlined in the agreed statement of facts. During the trial, the appellant’s previous counsel made submissions on the basis of double jeopardy, maintaining that the doctrine of autrefois convict applied. He argued that the prosecution was precluded from proceeding against the appellant in respect of the LC 21 breaches as he had already been convicted of employing the four Filipina nationals without a valid work permit in breach of LC 5 and the LC 21 breaches were based on the same set of facts. The prosecution however argued that although the Employment Charges and Deployment Charges arose from the same circumstances, the charges pertained to two separate types of offences. The first was the offence of employing foreign nationals without a valid work permit. The second was the offence of deploying those nationals to perform the duties of a hostess without obtaining approval. Both the acts of employment and acts of deployment resulted in breaches of different and distinct Licensing Conditions.

The DJ’s decision

As mentioned above, the DJ convicted the appellant on all four Deployment Charges and sentenced him to pay a fine of $2,000 per charge with a default imprisonment of two weeks in respect of each charge. The DJ agreed with the prosecution that employing the four Filipina nationals without a valid work permit was a distinct offence from deploying them to perform the duties of a hostess without obtaining approval. She also took the view that the same set of circumstances could give rise to breaches of two distinct and separate licensing conditions and hence two separate offences and that when such a situation occurred, the prosecution was not precluded from proceeding against the offender in respect of both offences. On the facts, since a breach of LC 5 was distinct from a breach of LC 21, the appellant could be charged and convicted for breaching LC 21 even though he had pleaded guilty to breaching LC 5. It was also on this reasoning that she rejected the arguments of the appellant’s previous counsel in respect of the applicability of the doctrine of autrefois convict to the facts of this case. The doctrine of autrefois convict prohibits a person from being tried for an offence in respect of which he had previously been convicted.

The Criminal Motion

The appellant appealed against his conviction on the four Deployment Charges. In the original Petition of Appeal filed on 14 April 2010, the appellant’s previous counsel raised the same defence and legal argument of double jeopardy as he did before the DJ. Sometime in May 2010, the appellant’s present counsel, Ms Lim Kim Hong (“Ms Lim”) took over conduct of the appeal. Ms Lim then filed the Criminal Motion in July 2010 for leave to file a Supplementary Petition of Appeal. In the Supplementary Petition of Appeal, the appellant abandoned his reliance on the defence of double jeopardy and sought to raise other defences and legal arguments. In particular, the Supplementary Petition of Appeal stated that the appellant was dissatisfied with the DJ’s decision on the grounds that she did not consider, and if she did, did not consider sufficiently: (a) the fact that the Employment Charges and the Deployment Charges related to the same breach, namely, that of the appellant employing foreign nationals to perform duties as hostesses; (b) the fact that the opening words of LC 21(1), “Unless approved by the Licensing Officer”, necessarily precluded LC 21 from applying to licensees whose employees did not hold a valid work permit or employment pass; (c) the purposive interpretation of LC 21(1) and that adopting a literal interpretation of LC 21 would give rise to a manifestly unreasonable result in that a licensee could accumulate enough demerit points from one incident for his licence to be revoked; and (d) the fact that preferring the Deployment Charges in addition to the Employment Charges did not promote Parliament’s intentions in having the Licensing Conditions, resulting in unnecessary duplication of charges, undue financial hardship to the appellant and abuse of process.

The prosecution objected to the appellant’s application to file and proceed on the Supplementary Petition of Appeal on the ground that he was in effect asking for an extension of time to file his Petition of Appeal, that he had sufficient time to prepare and file a full Petition of Appeal and that his delay in doing so was inexcusable. The...