Case Note

• Citation: (2018) 30 SAcLJ 367
• Published date: 01 December 2018
• Author: Eunice CHUA Hui Han LLB (Hons) (National University of Singapore), LLM (Harvard); Assistant Professor of Law, Singapore Management University.
• Date: 01 December 2018

RECENT DEVELOPMENTS CONCERNING SIMILAR FACT EVIDENCE IN SINGAPORE

Pushing Boundaries of Admissibility

Public Prosecutor v Ranjit Singh Gill Menjeet Singh

[2017] 3 SLR 66

Micheal Anak Garing v Public Prosecutor

[2017] 1 SLR 748

This piece addresses two recent local decisions on similar fact evidence that demonstrate the court's difficulties with reconciling the provisions of the Evidence Act with a more flexible approach that can be developed through the common law. These two cases extend the basis for admitting similar fact evidence beyond ss 11(b), 14 and 15 of the Evidence Act. The application of the common law balancing test comparing prejudicial effect and probative value has also been broadened to consider factors such as the timing of the objection to the evidence and whether a co-accused wishes to rely on the similar fact evidence. Yet, the cases do not discuss the conceptual and normative justification for so doing, taking us further down the path of pragmatism over principle.

I. Introduction

1 Over the past few decades, the state of the rules surrounding the admissibility of similar fact evidence1 in Singapore has been consistently

described in rather dire terms, such as facing “intractable difficulties”,2 being difficult to “make sense of”,3 and “tricky” to formulate.4

2 For the purposes of the discussion in this case note, the current Singapore approach to similar fact evidence may be said to be embodied in three decisions. The first is the Court of Appeal decision of Tan Meng Jee v Public Prosecutor5 (“Tan Meng Jee”). In that decision, the court superimposed the common law balancing test of Director of Public Prosecutions v Boardman6 (“Boardman”), where probative force of a piece of evidence is weighed against its prejudicial effect, onto ss 14 and 15 of the Evidence Act,7 which relate to using past similar acts to prove a state of mind. The words of ss 14 and 15 do not reference any balancing of prejudicial effect and probative value although they do embody the concept of probative value through their requirements.8 Nevertheless, the Court of Appeal proceeded to apply the Boardman test and suggested the framework of examining the cogency, relevance and strength of inference of a piece of evidence to assist in the balancing exercise.9 In effect, however, these three factors were applied in lieu of ss 14 and 15.

3 Secondly, in Lee Kwang Peng v Public Prosecutor10 (“Lee Kwang Peng”), the High Court hearing a magistrate's appeal defended the approach in Tan Meng Jee as conceptually sound because the Boardman test had been “encapsulated in the wording” of ss 14 and 15 of the Evidence Act.11 Accordingly, this approach did not undercut the inclusionary scheme of the Evidence Act that where a fact is admissible under (at least) one of the specific relevancy provisions,12 it would be

admissible. The High Court further interpreted s 11(b) of the Evidence Act as a provision by which similar fact evidence could be admitted to prove actus reus. As with ss 14 and 15, the High Court read the Boardman test into s 11(b). The court recognised that this use of s 11(b) ran contrary to the intention of Sir James Fitzjames Stephen (the original drafter of the Indian Evidence Act on which Singapore's Evidence Act is based), which was for similar fact evidence to be admissible via the specific relevancy provisions of ss 14 and 15 and which “did not accommodate the possibility that similar facts might be probative of the actus of a crime in addition to its mental element”.13 However, the High Court thought that it was justified in disregarding this intention to “pave the way for future treatment of the Evidence Act as a facilitative statute as opposed to a mere codification of Stephen's statement of the law of evidence”.14

4 Finally, in Ng Beng Siang v Public Prosecutor15 (“Ng Beng Siang”), the Court of Appeal, without specifying any provision of the Evidence Act or the test to be applied, seemed to approve the admission of similar fact evidence “as a matter of completeness” for the “limited purpose of providing the court with a complete account of the facts”.16 Commentators have described the approach taken in this case as invoking the concept of “background” evidence, whereby the court prefers to be apprised of as much evidence as possible (the maximisation of discretion) without being overly impeded by overly technical points of evidence (the minimisation of rules).17 Although the discussion on similar fact evidence was peripheral in Ng Beng Siang and did not obviously contribute to the development of the law as did the decisions of Tan Meng Jee and Lee Kwang Peng, it is still a decision worth reflecting on because the cursory treatment of the similar fact evidence point reflects a certain attitude that is worth comparing with the two recent cases and that forms the subject of this note.

5 All three cases, with varying degrees, demonstrate the court's difficulties with reconciling the Evidence Act with a more flexible approach that can be developed through the common law. The source of this difficulty lies not only in the inclusionary framework of the Evidence Act, where evidence must fall under one of the relevancy provisions to be admissible, but also s 2(2) of the Evidence Act, which repeals all rules of evidence not contained in any written law so far as they are “inconsistent” with the Evidence Act.18 Unfortunately, despite an opportunity in 2012 when the statute was amended, Parliament has not intervened and the provisions relating to similar fact evidence have not been changed from when Stephen drafted them in 1872.

6 Later courts have had to live with the uneasy compromises made by precedent and find their own solutions to admitting similar fact evidence. The cases of Public Prosecutor v Ranjit Singh Gill Menjeet Singh19 (“Ranjit Singh”) and Micheal Anak Garing v Public Prosecutor20 (“Micheal Anak Garing”) are instances of this pragmatic approach and the sacrifice that has been made of fidelity to the Evidence Act and the principles it embodies.

II. Summary of cases

7 In Ranjit Singh, under the surveillance of officers from the Central Narcotics Bureau, the first accused (“Ranjit”) handed the second accused (“Farid”) a plastic bag containing heroin and then collected a package from Farid containing methamphetamine. Ranjit and Farid were charged with trafficking heroin under different provisions of the Misuse of Drugs Act.21

8 The issue was whether evidence concerning: (a) previous transactions involving heroin or other illegal items referenced in statements made by Farid and Ranjit; and (b) a series of dealings involving the quantity of methamphetamine that Ranjit received from Farid and that Ranjit subsequently delivered to another party, were inadmissible because they concerned the accused's acts on previous or unrelated occasions, and constituted similar fact evidence of which the prejudicial value outweighed its probative force.

9 The Prosecution relied on ss 14 and 15 of the Evidence Act to admit the evidence on previous transactions involving heroin or other illegal items to show the accused's knowledge22 at the time of the offence and regarding the drugs or, in relation to the series of dealings involving the methamphetamine, to provide the court with a complete account of the facts under ss 6 and 9 of the Evidence Act.

10 Ranjit's counsel applied to exclude from evidence: (a) the portions of Ranjit and Farid's statements concerning the two areas mentioned above (“the disputed portions”); (b) two Health Sciences Authority (“HSA”) certificates relating to the methamphetamine in the package Ranjit received from Farid; and (c) three photographs of the package and the methamphetamine.

11 The High Court admitted the evidence of the disputed portions, citing Tan Meng Jee and Ng Beng Siang and applying the common law balancing test of weighing the probative force of a piece of evidence against its prejudicial effect derived from Boardman. The High Court found that the evidence was cogent as they were contained in voluntarily given statements, relevant to the mental state of Ranjit at the time of the offence and sufficiently weighty to be considered in relation to the merits of any potential defence that Ranjit did not know what the white plastic bag contained apart from “something illegal”.23

12 Two further points were noted by the High Court as militating in favour of admitting the evidence.24 First, in relation to Farid's statements, Farid's counsel did not object to any part of them being admitted and stated that he would, for the purposes of Farid's defence, be relying on them in their entirety. Secondly, the objection had been brought at a fairly early stage of the trial when it remained unclear what Ranjit's defence would be. Accordingly, the High Court thought it would have been premature to exclude the evidence at that stage. As Ranjit's defence turned out to be that he had either no knowledge of the contents of the plastic bag he gave to Farid or no knowledge of the contents beyond their illegality, this confirmed the relevance of the evidence.

13 The High Court excluded the evidence of the HSA certificates on the basis that it related to the quality and quantity of methamphetamine in the package and this was not relevant to Ranjit's state of mind or any other element of the offence, or to the case against Farid. As for the photographs of the package and the methamphetamine, the High Court admitted these “as a matter of completeness only”.

14 In Micheal Anak Garing, the first accused, Micheal Anak Garing (“Micheal”), who was armed with a parang, the second accused, Tony Anak Imba (“Tony”), and two other friends set out one night to commit robbery. They attacked four victims, one after another, over the course of that night and into the wee hours of the following day. Their last victim was the deceased, who succumbed to his injuries. The question was whether...