Biplob

• Jurisdiction: Singapore
• Judgment Date: 17 February 2011
• Date: 17 February 2011
• Docket Number: Magistrate's Appeal Nos 333, 334, Criminal Motion No 49 of 2010
• Court: High Court (Singapore)

Biplob Hossain Younus Akan and others

Plaintiff

and

Public Prosecutor and another matter

Defendant

[2011] SGHC 34

V K Rajah JA

Magistrate's Appeal Nos 333, 334, 335 and 336 of 2010; Criminal Motion No 49 of 2010

High Court

Criminal Procedure and Sentencing—Plea of guilty—Requirement for statement of facts sufficiently disclosing charge offence before plea of guilty could be recorded—Approach to be taken in evaluating statement of facts

Criminal Procedure and Sentencing—Whether evidential presumptions could be applied in evaluating statement of facts—Consequence of deficient statement of facts—Whether statement of facts disclosed contemporaneity between mens rea and actus reus

The appellants were four Bangladeshi nationals who each pleaded guilty to one 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) and punishable under s 128L (4) of the Customs Act. The charge related to one incident of them retrieving and packing uncustomed cigarettes. The appellants' joint statement of facts stated that they were paid $30 to $40 by a male Chinese to pack the cigarettes. It also stated that they ‘were aware that the excise duty had not been paid’ on all the cigarettes.

The district judge recorded the pleas and convicted the appellants accordingly. The appellants appealed against their sentences. During the hearing the appellants stated that they did not know that the cigarettes were uncustomed. It was also pointed out by the court that the statement of facts did not show that the appellants had the requisite mens rea at the material time.

Held, exercising the court's power of revision to set aside the appellants' pleas of guilt and to remit the case back to the District Court for fresh pleas to be taken:

(1) When an accused person made a plea of guilt, there was a legal duty on the court to record a statement of facts and to scrutinise the statement of facts for the explicit purpose of ensuring that all the elements of the charge were made out therein. This was an important aspect of the trial judge's duty to ensure the correctness of a plea of guilt: at [6] and [7].

(2)(a) The requirement for a statement of facts which sufficiently disclosed the elements of the charge was a freestanding imperative requirement. (b) Following from (a), the court should always evaluate a statement of facts with fresh lenses, without being influenced by the fact that the accused person had pleaded guilty to the charge. (c) As it was an agreed document between the parties, the contents of the statement of facts could ordinarily be taken at face value, and the task of the court would usually be to decide whether the contents made out the offence charged. In this, the court should be very slow to draw inferences to supply any deficiencies in the contents of the statement of facts. (d) However, it would not always be the case that the contents of the statement of facts could be taken at face value. The court should be alert to situations where there was reason to doubt what was said in the statement of facts and or if it was incomplete. (e) If the court entertained any doubt as to the sufficiency of the statement of facts, it should decline to record the plea of guilt and explain the reasons to the parties. If they were agreeable, the parties could then amend the statement of facts, and if the court was satisfied that the amended statement of facts made out the charged offence, it could proceed to record the plea of guilt. Otherwise, the matter should proceed to trial. (f) The need for a careful scrutiny was especially important in cases (such as the present) where the accused persons were unrepresented, did not understand English, and/or might not grasp the finer legal points involved. In such cases, the court should satisfy itself that the accused person understood the ingredients of the offence. If an accused person was under a misapprehension as to the offence to which he was pleading guilty, this might be a ground for setting aside the plea on appeal or revision. (g) As a practical matter, the statement of facts should be drawn up by those skilled in the preparation of evidence and knowledgeable about the legal ingredients that were needed to constitute the relevant offence, and not by investigators who might not appreciate the finer legal points. (h) The use of ‘template’ statement of facts for common offences should be eschewed: at [8].

(3) An offence under s 128I (b) of the Customs Act required a mens rea, viz, the intent to defraud the Government of any customs duty or excise duty thereon, or to evade any of the provisions of the Customs Act. Also, the mens rea had to be contemporaneous with the actus reus: at [10].

(4) The joint statement of facts contained nothing which showed that the appellants had the requisite mens rea at the material time (ie,when they were handling the cigarettes). The bare statement of knowledge in para 6 of the appellants' joint statement of facts was insufficient by itself as what was required was knowledge at the material time. It was clear that the appellants were hired as manual labour, and there was no basis for the court to infer that they were told by those who hired them that the cigarettes were uncustomed: at [11].

(5) Evidential presumptions, such as the rebuttable presumption of knowledge in s 128 (L) of the Customs Act, were inapplicable in assessing the sufficiency of a statement of facts. As the proviso to s 180 (b)of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) made clear, the court had to, before it recorded a plea of guilt, be satisfied that the accused person intended to admit without qualification the offence alleged against him. This would not be the case if an accused person admitted to a statement of facts which was inherently deficient and required the application of an evidential presumption before the offence could be said to have been made out: at [12].

(6) The appellants' pleas of guilt were therefore deficient at law and should not have been accepted by the district judge. This was a sufficient ground for the pleas to be set aside ex debito justitiae:at [13].

[Observation: The statement of facts was also an important part of the sentencing process. As a general rule, with regard to the particulars of the offence, parties should not stray too far from the statement of facts in making their submissions on sentence, unless they were prepared to prove what they said in a Newton hearing: at [9].

The sentencing practice for similar cases seemed to place considerable weight on the amount of custom or excise duty...