Cher Ting Ting v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 26 January 2017
• Neutral Citation: [2017] SGHC 13
• Plaintiff Counsel: The appellant in person
• Date: 26 January 2017
• Docket Number: Magistrate’s Appeal No 9110 of 2016/01
• Hearing Date: 04 November 2016
• Subject Matter: Show cause hearing,Criminal procedure and sentencing,Bail,Principles on forfeiture
• Year: 2017
• Defendant Counsel: Asoka Markandu and Stephanie Chew (Attorney-General's Chambers),Justin Chan (Shook Lin & Bok LLP) as young amicus curiae.
• Court: High Court (Singapore)
• Citation: [2017] SGHC 13
• Published date: 28 January 2017

Chan Seng Onn J: Introduction

It has been said that the forfeiture of a bond provided by a surety is “in no sense a penalty imposed on the surety for misconduct” and that it is “not a fine and it is not a punishment either”: see R v Horseferry Road Magistrates’ Court, ex parte Pearson [1976] 1 WLR 511 at 514 and R v Tottenham Magistrates’ Court, ex parte Riccardi (1977) 66 Cr App R 150 (“Riccardi”) at 155. Yet it is indisputable that the obligation entered into by a surety is a “very serious obligation indeed” and “the burden of satisfying a court that the full sum should not be forfeit is a very heavy one”: see R v Waltham Forest Justices, ex parte Parfrey (1980) 2 Cr App Rep (S) 208 (“Parfrey”) at 211. There is perhaps a tension between the characterisation of forfeiture as a non-criminal matter and the robust approach taken by the courts toward forfeiture. The assessment of the surety’s culpability – a concept that is central to the theoretical underpinnings of criminal law – have long played a role in the courts’ decisions on whether, and to what extent, forfeiture is appropriate. A considerable amount of case law has accumulated regarding the approach towards forfeiture, both locally and abroad. This case presents an opportunity to re-examine the law on forfeiture and to restate, after an aggregation of the relevant principles, the method of analysis.

This is a surety’s appeal against the decision of a District Judge that the bond executed by the surety be forfeited in full. The surety had stood bail for her younger brother, who failed to attend court and remains at large. The District Judge found that the surety had failed to comply with her duties of keeping in daily communication with her brother and ensuring that he was in attendance in court. The surety appeals on the basis that the District Judge erred in her findings and in her decision that the entire amount of the bond should be forfeited. I will explain my decision and my reasoning thereto.

Background facts The accused and his surety

The accused is Albin Cher Koh Kiong (“the Accused”). The Accused faces a total of four charges under the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) for offences involving consumption and possession of controlled drugs and possession of drug-related utensils, and two charges for criminal breach of trust under s 408 of the Penal Code (Cap 224, 2008 Rev Ed).

On 2 October 2015, the Accused’s sister Cher Ting Ting (“the Surety”) stood bail for the sum of $60,000 for him. She signed the “Acknowledgement of Duties as Surety” form, in which she acknowledged that she was willing and able to stand as surety for the Accused in respect of the charges against him. The Surety further expressed her understanding that, inter alia:¹ it was her duty to ensure the Accused’s punctual attendance at all court dates and times; as surety, she was to find out in advance all dates and times when the Accused’s attendance in court was required; she was to ensure that the Accused complied with all bail conditions, including the condition that the Accused would not leave Singapore unless prior permission from the court was obtained; she was to remain in constant contact with the Accused and be aware of his movements so as to ensure his compliance; if the Accused took ill on a court date, she was to ensure that the Accused consult a doctor immediately and obtain a medical certificate stating that the Accused was not fit to attend court, and thereafter attend court on the Accused’s behalf to inform the court of the Accused’s condition and tender the medical certificate to the judge; and she was required to keep in daily communication with the Accused and lodge a police report within 24 hours of losing contact with him. The Surety also indicated her awareness, within the same form, that her duties as surety would continue until the conclusion of the proceedings or until she was formally discharged as surety, and declared that she would faithfully discharge her duties as surety and would forfeit to the State the bail sum of $60,000 should she fail in her performance of those duties.

The Accused was scheduled to plead guilty before District Judge Jasvender Kaur (“the District Judge”) on 30 March 2016 at 9.00am. The Accused failed to attend, and the Surety herself was also not present in court. Futile attempts were made by counsel and the court officer to contact the Accused and the Surety. Counsel informed the District Judge that he had arranged to meet the Accused on 8 March 2016 but the Accused did not turn up for that meeting and had since been uncontactable as his mobile phone was switched off. As a consequence of the Accused’s failure to attend, the bail sum of $60,000 was forfeited. The District Judge also issued an arrest warrant against the Accused. The Accused remains at large. A notice was sent to the Surety directing her to pay the said penalty of $60,000 or to appear before the State Courts on 11 May 2016 to show cause as to why payment of the said sum should not be enforced against her.

Show cause proceedings

On 11 May 2016, the Surety appeared in person. She stated that the amount of $60,000 came from her savings and were meant for her daughter’s education and her mother’s medical expenses. Upon questioning by the District Judge, the Surety also indicated that:² She had been unaware of the Accused’s non-attendance in court until counsel called her at her office following the Accused’s failure to appear at the plead guilty mention. She “really did not contact [the Accused]”. It was their mother Mdm Tan Yien Leng (“Mdm Tan”) who had been in contact with him. Two days before the court mention date, Mdm Tan had called him to remind him to attend court. She had “no idea” where the Accused was staying. Their family members had asked him about this but he refused to tell them where he was staying, indicating only that he was with his friend. The Accused did not like the Surety (and the rest of their family) to “question him or interfere with his personal life”. He did not want them to “control him”.

The Surety also stated that she “really [could not] find [the Accused], There [was] nothing much [she could] do”. The $60,000 represented all her savings and was needed “to feed the whole family”.

The District Judge’s decision

The District Judge forfeited the entire sum of $60,000 and ordered that the forfeited sum was to be recovered from the monetary security.

The District Judge’s written grounds of decision are found in Public Prosecutor v Cher Ting Ting [2016] SGDC 146 (“the GD”). After considering the authorities, the District Judge found at [11], on the question of fault, that the Surety had “completely failed to exercise any due diligence to ensure that the accused would be in attendance”. She observed that although the bail bond stated that the Accused’s residential address was the same as that of the Surety, the Surety had admitted that the Accused did not reside with her. Further, the Surety did not know where or with whom the Accused was staying.

The District Judge also noted at [12] of the GD that Mdm Tan was the person who contacted the Accused and reminded him to attend court hearings. The District Judge found that this fact did not assist the Surety because a surety’s duties are personal. The Surety had breached her personal duty to keep in daily communication with the Accused. Further, the Surety did not even know that the Accused had failed to attend court, nor had she made efforts to look for the Accused. The District Judge concluded at [14] that the conduct of the Surety could be “best described as woeful and cavalier”. It was not enough for her simply to rely on faith that the Accused would turn up (citing Public Prosecutor v Ram Ghanshamdas Mahtani and another action [2003] 1 SLR(R) 517 (“Ram Mahtani”)).

Regarding the Surety’s plea that the $60,000 represented all her savings and were meant for her daughter’s education and mother’s medical expenses, the District Judge expressed some sympathy for the Surety. However, the District Judge agreed with Lord Widgery CJ’s observations in R v Southampton Justices, ex parte Corker (1976) 120 SJ 214 (“Corker”) and held at [15] of the GD that “[i]n the circumstances, [the court] was not persuaded that this was an exceptional case where the prima facie position [ie, that the amount for which the person concerned has stood surety will be forfeited in full] should be modified”.

The Surety appealed against the decision of the District Judge to forfeit the whole bond amount. The appeal was fixed before me.

The parties’ submissions on appeal

The Surety appears in person. She submits that the Accused respects and listens to their mother, who is the matriarch of the family, and that their mother would remind the Accused of court appointments. She suggests that their mother is “like the alter ego of [herself] in that if [her mother] had the funds, [her mother] would have been the bailor in name as well”.³ On this basis, the Surety disagrees that she had a cavalier attitude towards her responsibilities as a surety, because “as part of the family unit, [her] mother Mdm Tan [was] exercising the bailor’s responsibilities with [the Surety]”.

The Surety also states that the Accused had been attending court “countless times without fail: more than 10 times if [she] can recall”. She therefore argues that she cannot be said to have been irresponsible given that she and Mdm Tan “had ensured his past attendance in Court on so many occasions”. Finally, she pleads for sympathy on the basis that the $60,000 represents her life savings and is meant for her daughter’s education and Mdm Tan’s medical expenses. She expresses remorse and regret.

Upon my questions to the Surety at the hearing, she informed me that it was not her practice to ask Mdm Tan about what the Accused had said after Mdm Tan’s conversations with the...