Case Note - THE LAW ON THE RETRACTION AND QUALIFICATION OF PLEAS
| Date | 01 December 2020 |
| Published date | 01 December 2020 |
| Author | YIP Ting Yuan Darren1 LLB (National University of Singapore). |
| Citation | (2020) 32 SAcLJ 1230 |
Public Prosecutor v Dinesh s/o Rajantheran [2019] 1 SLR 1289 and the Way Forward
A plea of guilt carries with it serious consequences. This article considers the ability of an accused person to retract and qualify such a plea in light of the recent Court of Appeal's decision in Public Prosecutor v Dinesh s/o Rajantheran [2019] 1 SLR 1289 (“Dinesh”) and suggests that the relationship between the retraction and qualification of pleas has been and remains confusing and unsatisfactory. The article offers a broad overview of the law in the area, highlighting the issues, some of the difficulties with the Dinesh decision and offers suggestions for the way forward.
1 In Singapore, criminal cases are predominantly resolved by way of an admission of guilt rather than through recourse to a full-blown trial.2 Not infrequently, however, accused persons change their mind after they have been convicted, but before they have been sentenced. If accused persons could easily retract or qualify their pleas and have their case sent back to trial, this can create a strain on judicial and administrative resources as new trial dates have to be set, and witnesses recalled. As such, the law on the retraction and qualification of pleas plays a critical role in the plead guilty process and has a direct impact on the efficient and timely administration of criminal justice.
2 Unfortunately, the law on qualification of pleas has, at times, been unclear with High Court decisions reaching different interpretations on the application of s 228(4) of the Criminal Procedure Code3 (“CPC”). Even more murky is the relationship between the retraction and qualification of pleas. It is therefore welcome that in Public Prosecutor v Dinesh s/o Rajantheran4 (“Dinesh”), the Court of Appeal clarified the law on qualification of pleas and the application of s 228(4) of the CPC. However, the Court of Appeal's decision may have created further problems because it leans so far in favour of accused persons that it appears as if there is no longer any effective bar to deter accused persons from changing their pleas on a whim. Moreover, it has the practical effect of rendering the retraction of pleas redundant.
3 This article aims to review the law on the retraction and qualification of pleas in Singapore and offer suggestions as to the legal position locally. Part II5 will first introduce the law on retraction and qualification of pleas and illustrate the difficult relationship between the two. Part III6 considers the decision in Dinesh and some of the problems created by the decision. Part IV7 proffers suggestions as to the way forward.
4 As a starting point, it is helpful to first sketch out the context in which issues of retraction of a plea of guilt arise.
5 The law has in place safeguards to ensure that a person is only convicted on a valid plea of guilt.8 In particular, before a court can record a plea of guilt, it must be satisfied that the accused voluntarily wishes to plead guilty, understands the nature and consequences of his plea, and admits without qualification to the offence he has been charged with.9 There is also an established practice whereby a court will not accept
6 The next step in the criminal justice process is sentencing. At times, sentencing does not immediately follow the conviction of the accused because a pre-sentencing report might be called for by the courts, or time is required for counsel to prepare and submit a mitigation plea. In this intervening period, accused persons sometimes change their mind and no longer wish to plead guilty. At this point, an accused person may then submit an application to the court to retract his plea.
7 The law on the retraction of pleas is comparatively clear when considered alone. First, it is well settled that a court can entertain an application by an accused person to retract a plea of guilt, even though unequivocal, at any time before the case is finally disposed of by sentence.11 The decision whether to allow the withdrawal of the plea is one that is left to the discretion of the court.12
8 However, underlying this discretion is the idea that a plea of guilt should not be one that is lightly made. As such, the courts have been clear that “an accused person cannot be permitted merely at whim to change his plea, except upon valid and sufficient grounds which satisfy [the court] that it is proper and in the interests of justice that he should be allowed to do so”.13 Whether there are valid and sufficient grounds will necessarily depend on the facts and circumstances of each case but an accused would need to adduce sufficient evidence to convince the court that his plea of guilt was either invalid or equivocal.14 To establish that a plea of guilt was invalid or equivocal, the accused must essentially show that the safeguards set out above had not actually been complied with.15 For example, a plea of guilt may be invalid where the accused can demonstrate that he was in fact labouring under a mistake or a misunderstanding as to the nature
9 Compared to the retraction of a plea, there are two distinct situations in which issues relating to a qualified plea might arise.
10 First, at the time when an accused pleads guilty, or at any time after he has pleaded guilty but before he is convicted, he might raise matters disputing one or more of the legal conditions required to make out the offence. In such a situation, it is not controversial that the plea is a qualified one and the accused is in fact pleading “not guilty”. It is clear that a court would not record such a qualified plea since the safeguard required under s 227(2) of the CPC – that the accused intends to admit to the offence without qualification – would not be satisfied.17 This makes eminent sense since an accused person who insists on raising matters that demonstrate his innocence should not be convicted without the benefit of a full trial to determine the veracity of the matters raised.
11 In the second situation, an accused person pleads guilty, admits to the SOF without qualification and is convicted. However, post-conviction, the accused might then raise in his mitigation plea matters that dispute the legal conditions required to make out the offence. Whether the raising of such matters in the mitigation plea ipso facto qualifies the earlier plea of guilt and necessarily requires its rejection will be considered below.
12 There is little controversy or difficulty regarding qualification of pleas pre-conviction and this paper does not consider it further. Any reference to the qualification of pleas in the subsequent discussion considers qualification in the second situation raised above (that is, a qualified plea arising post-conviction).
13 A good starting point to understand the qualification of pleas is probably the oft-cited decision of Balasubramanian Palaniappa Vaiyapuri v Public Prosecutor18
The law in Singapore is that, if the mitigation plea qualified the earlier plea of guilt by indicating the lack of mens rea or actus reus, the accused would not be deemed to have admitted to the offence without qualification and the plea would be rejected by the court: Ulaganathan Thamilarasan v Public Prosecutor.
14 Balasubramanian suggests that if matters raised in the mitigation plea indicate the lack of one or more of the legal conditions required to make out the offence, the mitigation plea would qualify the earlier plea of guilt and such a qualified plea would be rejected by the courts.20 More recent decisions such as Koh Bak Kiang v Public Prosecutor21 (“Koh Bak Kiang”) similarly support the position set out in Balasubramanian.
15 In Koh Bak Kiang, the accused pleaded guilty to two charges of trafficking in diamorphine. However, in mitigation, despite stressing that he was not qualifying his plea, the accused averred that he did not know he was in possession of diamorphine but believed that he had delivered some less dangerous drugs such as ice, ketamine or ecstasy. In finding that the plea of guilt ought to have been rejected, Sundaresh Menon CJ explained that a plea of guilt carried grave implications and as such, the judge recording the plea had a strict duty to ensure that the accused understood the nature and consequences of his plea and intended to admit without qualification the offence alleged against him.22 On the facts, Menon CJ held that notwithstanding the accused's assertion to the contrary, he had in fact qualified his plea of guilt by raising matters in mitigation indicating the lack of mens rea for the charges of trafficking in diamorphine.23 Consequently, Menon CJ set aside the accused's plea of guilt.24
16 More importantly, the law on qualification of pleas must also be seen in light of s 228(4) of the CPC which provides as follows:
Where the court is satisfied that any matter raised in the plea in mitigation materially affects any legal condition required by law to constitute the offence charged, the court must reject the plea of guilty.
17 Section 228(4) was first introduced as part of the re-enacted CPC in 2010.25 There is no analogue of the provision in previous iterations of the CPC. There is also no mention of the provision in the parliamentary debates.26 One might therefore surmise that s 228(4) was not...
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