Chew Gim Ser v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 05 November 2004
• Neutral Citation: [2004] SGHC 246
• Date: 05 November 2004
• Subject Matter: Appeal,Sentencing,Witnesses not relevant to Prosecution's case,Witnesses,Whether sentences imposed excessive,Criminal Procedure and Sentencing,Failure of appellant to call witnesses to support defence,Prosecution failing to call witnesses resident abroad,Section 116 Illus (g) Evidence Act (Cap 97, 1997 Rev Ed),Whether adverse inference should be drawn against Prosecution,Appeals,Adducing fresh evidence,Customs Act,Whether appellant satisfying conditions for adducing fresh evidence on appeal,Attendance,Statutory offences,Whether adverse inference correctly drawn against appellant,Whether necessary in interests of justice to allow fresh evidence to be adduced,Criminal Law,Evidence,Section 130(c) Customs Act (Cap 70, 2001 Rev Ed),Whether appellant concerned in importing cigarettes without paying customs duty and goods and services tax
• Docket Number: Criminal Motion No 19 of 2004 (Magistrate's
• Published date: 09 November 2004
• Defendant Counsel: Imran bin Hamid (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Plaintiff Counsel: Goh Aik Chew (Goh Aik Chew and Co) and Mimi Oh (Mimi Oh and Associates)

5 November 2004

Yong Pung How CJ:

1 The appellant was convicted and sentenced on four charges in relation to the importation of cigarettes from Malaysia into Singapore without paying customs duty and goods and services tax (“GST”). In addition to appealing against conviction and sentence before this court, he filed a criminal motion seeking leave to adduce additional evidence on appeal. After hearing counsel for the appellant address the court at great length and with much effort, I dismissed the motion and the appeal against conviction, but allowed the appeal on sentence. I now set out my reasons.

The facts

2 At about 4.30am on 23 October 2003, officers from the Immigration & Checkpoints Authority based at the Tuas Checkpoint inspected a Malaysian-registered refrigerated lorry bearing licence plate no JFT 8795 (“the lorry”). The officers found, hidden amongst consignments of frozen fish, 250 cartons of 200 sticks (ie 50,000 sticks) of Marlboro brand cigarettes bearing Singapore Health Warnings (“the cigarettes”). The cigarettes weighed 48.47kg and were valued at $17,259.85. The unpaid customs duty on the cigarettes was assessed at $12,359.85, while the unpaid GST was assessed at $690.39.

3 The driver of the lorry, Khairu Nazri bin Husain (“Khairu”), was arrested, and he admitted to importing the cigarettes. He worked as a driver for Bintang Hikmat Sdn Bhd, a Malaysian company (“the company”). The appellant was a director of the company. Khairu’s job was to deliver the fish loaded on the lorry to two Singapore businesses, M/s Sin Lian Live Fish Supplier and M/s Gim Ser Live Supplier. The Singapore businesses shared the same address. Khairu was to hand over the fish to the appellant upon arrival. However, he did not have to load or unload the fish.

4 At about 2.00pm on the same day, customs officers searched the appellant’s home in the presence of his wife. They found one unopened packet containing 20 sticks of duty-unpaid Marlboro cigarettes bearing Singapore Health Warnings, similar to those found on the lorry. The appellant was arrested later that day.

5 The appellant faced two charges each in respect of the cigarettes on the lorry and the packet of cigarettes at his home. The charges were as follows:

Charge	Provisions
DAC 52858/2003 (“the first charge”)	Section 130(1)(c), punishable under s 130(1)(i) of the Customs Act (Cap 70, 2001 Rev Ed).
DAC 52859/2003 (“the second charge”)	Section 130(1)(c), punishable under s 130(1)(i) of the Customs Act, read with ss 26 and 77 of the Goods and Services Tax Act (Cap 117A, 2001 Rev Ed), para 3 of the Goods and Services Tax (Application of Legislation relating to Customs and Excise Duties) Order (Cap 117A, O 4, 2001 Rev Ed) and para 2 of the Goods and Services Tax (Application of Customs Act) (Provisions on Trials, Proceedings, Offences and Penalties) Order (Cap 117A, O 5, 2001 Rev Ed).
DAC 52860/2003 (“the third charge”)	Section 130(1)(a), punishable under s 130(1)(iii) of the Customs Act.
DAC 52861/2003 (“the fourth charge”)	Section 130(1)(a), punishable under s 130(1)(iii) of the Customs Act, read with ss 26 and 77 of the Goods and Services Tax Act, para 3 of the Goods and Services Tax (Application of Legislation relating to Customs and Excise Duties) Order and para 2 of the Goods and Services Tax (Application of Customs Act) (Provisions on Trials, Proceedings, Offences and Penalties) Order.

6 The first and second charges concerned the cigarettes found in the appellant’s home, while the third and fourth were in respect of the cigarettes in the lorry. The appellant pleaded guilty to the first and second charges but claimed trial to the third and fourth charges. Prior to the appellant’s trial, Khairu had been sentenced to nine months’ imprisonment on one charge of being concerned in the importation of the cigarettes without paying customs duty, which was also the basis for the third charge. Another charge concerning unpaid GST was taken into consideration.

The Prosecution’s case

7 Khairu, the sole prosecution witness, testified that the company employed two drivers, him and one Muniandy s/o T M Rajoo (“Muniandy”), also known as Raja. The two of them would usually enter Singapore together, taking turns to drive from Johor Baru. On 23 October 2003, the appellant’s elder brother, Chew Gim Hock (“Gim Hock”), assigned Khairu to drive the lorry to Singapore. Muniandy was then under a one-month prohibition from entering Singapore beginning from 25 September 2003. Gim Hock instructed Khairu to deliver the goods in some red containers on the lorry to the appellant. Khairu peeped into the lorry and saw, underneath the fish, boxes wrapped in black plastic inside the red containers, but he did not check the boxes. Muniandy told him that the boxes contained uncustomed cigarettes. Khairu then spoke to Gim Hock, who told him that he would get a commission for making the delivery. However, Gim Hock did not tell him the amount of commission that would be paid, as the commission was payable only upon successful delivery and Gim Hock had not calculated the amount yet. Gim Hock also informed him that the appellant kept records of the goods.

8 Khairu admitted that he did not know who the owner of the cigarettes was. He also testified that the appellant was not present when Gim Hock gave him the instructions to deliver the cigarettes to the appellant, and that he did not meet with the appellant on 23 October 2003.

The defence

9 At the close of the Prosecution’s case, defence counsel submitted that there was no case to answer, as the appellant was in Singapore and did not know what had transpired in Johor Baru. However, the learned District Judge Mrs Emily Wilfred decided that the Prosecution had established a prima facie case.

10 The appellant initially testified that Gim Hock, who was not a director or manager of the company, was in charge of the company’s employees in Johor Baru who were engaged in the “killing” of fish. However, he later said that Gim Hock was responsible for the company’s operations in Johor Baru, while he was responsible for the operations in Singapore. He had spoken to Gim Hock over the telephone on 22 October 2003, but only to inform Gim Hock of the quantity of fish he wanted delivered the next day. On 23 October 2003, he did not speak to Gim Hock. His younger brother, Chew Cheng Huay (“Cheng Huay”), informed him that the fish had not yet arrived at the Singapore factory. He went to the Tuas Customs Checkpoint at about 6.00am to make enquiries, and found out that the lorry had been detained because it had been used for transporting contraband. He then proceeded to the Jurong Fishing Port to purchase alternative supplies of fish and distributed the fish to his customers. He found customs officers waiting for him when he returned to his office at around 2.00pm, who questioned him about the cigarettes.

11 As for the packet of Marlboro cigarettes found at his home, the appellant explained that he had found the packet in his small lorry, and had decided to take it home with him. However, he did not explain how the packet came to be in the small lorry.

The decision below

12 The learned district judge found Khairu to be a truthful and candid witness who did not embellish his testimony to make his story more convincing. Although defence counsel suggested that Khairu had wrongfully implicated the appellant because he begrudged the appellant for not helping him out after his arrest, the judge was satisfied that Khairu had been forthright and did not have a vendetta against the appellant.

13 On the other hand, the appellant was not a truthful witness. He had chopped and changed his evidence in the course of his testimony. He was evasive when asked about Gim Hock’s role in the company and the company’s operations in Johor Baru. He did not produce any witness to corroborate his testimony on the company’s organisation. In contrast, Khairu had testified that he received instructions from both Gim Hock and the appellant, and was unable to confirm that Gim Hock was indeed the company’s manager in Johor Baru. The judge concluded that the shifts in the appellant’s evidence were because he wanted to distance himself from the Johor Baru operations and avoid incriminating himself, and found that he was overall in charge of the company’s operations in Singapore and Johor Baru.

14 The judge also found that the appellant was concerned in the importation of the cigarettes. The appellant had testified that he was in charge of the company’s operations in Singapore. Khairu and the appellant had both testified that the drivers were not involved in the loading and unloading of the fish. The cigarettes were found on the company’s lorry. The appellant had called Gim Hock the day before the lorry was seized. He went to Tuas Checkpoint to make enquiries about the lorry, but did not subsequently check with Gim Hock what had been loaded onto the lorry.

15 Further, the learned judge drew an adverse inference against the appellant under Illus (g) to s 116 of the Evidence Act (Cap 97, 1997 Rev Ed) that the evidence of his brothers and employees, who were not called as witnesses, would have been unfavourable. His defence was a bare denial riddled with inconsistencies and contradictions on material aspects relating to the management of the company. He remained silent about material facts, failing to explain how the packet of Marlboro cigarettes came to be found in his small lorry. He did not furnish any information on the two Singapore businesses, one of which bore his name. No witnesses were called who could substantiate his evidence, and the appellant did not explain why this was the case.

16 The appellant was convicted on the third and fourth charges and pleaded guilty to the first and second charges. On the issue of sentencing, defence counsel asked the court to impose a custodial sentence instead of a fine, and urged the imposition of the same sentence as...