Chng Leng Khim v Public Prosecutor and another matter

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 05 October 2016
• Neutral Citation: [2016] SGHC 215
• Plaintiff Counsel: The appellant in MA 9031/2016 and applicant in CR 9/2016 in person
• Docket Number: Magistrate’s Appeal No 9031 of 2016; Criminal Revision No 9 of 2016
• Date: 05 October 2016
• Hearing Date: 04 August 2016
• Subject Matter: Plea of guilty,Criminal Procedure and Sentencing,Appeal
• Year: 2016
• Defendant Counsel: Ang Feng Qian and Parvathi Menon (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2016] SGHC 215
• Published date: 11 October 2016

Sundaresh Menon CJ (delivering the judgment of the court ex tempore):

These matters came before me originally as a Magistrate’s Appeal brought by the accused, Mdm Chng Leng Khim (“the Appellant”), against the sentence imposed by the learned district judge (“DJ”) for certain offences. In her petition of appeal, she also alleged that she had been pressured by her defence counsel, Mr Ravinderpal Singh (whom I refer to here as “Mr Singh” or “the DC”), and also by the court clerk to plead guilty. I was initially minded to dismiss this assertion for reasons which I shall highlight below. However, after the Appellant persisted with her assertion that she had been pressured to plead guilty, including by Mr Singh, I directed the various parties concerned to each file a statutory declaration (“SD”) detailing the events and exchanges leading to the Appellant’s plea of guilt. I did so because an allegation of pressure to plead guilty that is directed by an accused person at counsel often—as is the case here—concerns matters that the court will generally know nothing about but may well be relevant to the court’s decision on whether it will allow the application to set aside the plea. The SDs I had called for were duly filed. Mr Singh was also good enough to attend before me at the resumed hearing of this matter to answer any questions I might have. With the benefit of the additional information that is now before me, it is the voluntariness of the Appellant’s guilty plea that is the focus of this decision.

The background facts

The Appellant kept three dogs—a Bull Mastiff Cross, a Chow Chow and a Poodle. She was charged with various offences pertaining to her custody and treatment of those dogs. The essential allegations against her are that she: kept the dogs without a licence; subjected them to unnecessary suffering by allowing them to become emaciated and by unreasonably failing to take them to the veterinarian for treatment; and later failed to comply with a lawful demand to attend at the Agri-Food and Veterinary Authority (“AVA”) in order to record a statement in connection with her treatment of the three dogs.

These matters led the Appellant to face a total of seven charges under the Animals and Birds Act (Cap 7, 2002 Rev Ed) (“ABA”), the Animals and Birds (Dog Licensing and Control) Rules (Cap 7, R 1, 2007 Rev Ed) and the Agri-Food and Veterinary Authority Act (Cap 5, 2012 Rev Ed) (collectively “the Offences”). The Prosecution’s offer, at all material times, was to proceed on five charges and apply to have the two remaining charges taken into consideration for the purpose of sentencing if the Appellant were to plead guilty. Upon pleading guilty, she was convicted of the charges and sentenced accordingly. The DJ’s grounds of decision is published as [2016] SGMC 8.

Before the Appellant was convicted and sentenced, the matter had been through a number of pre-trial conferences over the course of several months, before it was fixed for trial on 5, 10 and 11 February 2016. Throughout that time, the Appellant did not appear to have been represented.

At about 9.30am on 5 February, Mr Singh informed the Deputy Public Prosecutor having conduct of the matter (“the DPP”) and the court that he had been engaged to act for the Appellant. At Mr Singh’s request, the DPP extended him a copy of the Appellant’s statements and the exhibits which she intended to admit at trial. The matter was stood down. The DC evidently then went through the evidence with the Appellant and later informed the DPP that the Appellant wished to plead guilty. After counsel appeared before the DJ in chambers, the matter was mentioned in open court at 12.10pm and was adjourned (at the DC’s request) to the morning of 10 February to enable a plea to be taken. The Statement of Facts (“SOF”) was prepared and made available to the DC later that night by way of electronic filing through the Integrated Case Management System. However, it should be noted that this was late on the eve of a long weekend, as the Lunar New Year holidays fell on the following Monday and Tuesday. It was not clear to me on the evidence whether the DC accessed the SOF at any time before 10 February. Indeed, Mr Singh has confirmed that he did not.

The SDs do not give a perfectly consistent account of what happened on the morning of 10 February, but I gather the following. The matter was stood down in the morning for the Appellant to go through the SOF, a copy of which the DPP had given to the DC at about 9.20am. After the DC had gone through the SOF with the Appellant for about half an hour, the Appellant changed her mind about pleading guilty. There was then a further exchange between the Appellant and the DC, following which the Appellant once again changed her mind and decided that she would plead guilty; the DC informed the DPP of this sometime between 11.00am and 11.30am. After some paperwork had been completed, the matter was mentioned once again in open court commencing at 12.17pm. The plea was taken, the Appellant was convicted and the matter was then adjourned to 19 February for sentencing. I pause to observe and emphasise the following: The Appellant, and Mr Singh, saw the SOF and the annexes for the first time on the morning of 10 February. I stated earlier that I had initially been minded at the first hearing to dismiss the assertion that the plea had been taken when the Appellant was under pressure. That was because I had thought that the Appellant had received and seen the draft SOF on 5 February and therefore would have had ample time to become acquainted with it and to understand what precisely she would be admitting on 10 February. In fact, it has since become evident that, as it turned out, she only saw it on the very day on which her plea was taken even though, as noted above, it had been sent by the Prosecution late on 5 February. It has also now become evident that her immediate reaction on reviewing the SOF was to change her mind about pleading guilty. Between about 10.00am and 11.00am on that morning, Mr Singh and the Appellant had a further discussion, which I will return to shortly because it is a conversation of critical importance. Thereafter, at about 11.00am, she once again changed her mind and agreed to plead guilty.

When the parties returned to the court on 19 February, supposedly for sentencing, Mr Singh made an unopposed application to discharge himself. The Appellant then made at least three failed attempts (both in person and through Mr Hassan Almenoar, who appeared as her second defence counsel) to set aside her plea on the basis that she had been pressured to plead guilty. Eventually, the DJ passed sentence on 23 February. The Appellant has appealed against her sentence and more centrally seeks to set aside the conviction.

My decision The applicable principles

In an appeal against sentence imposed consequent upon a plea of guilt, the court may set aside the conviction (s 390(3)(a) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”)). This section was introduced in 2010 by the Criminal Procedure Code (Act 15 of 2010), and mirrors the power of a superior court of record seised of revisionary jurisdiction (The Criminal Procedure Code of Singapore: Annotations and Commentary (Jennifer Marie & Mohamed Faizal Mohamed Abdul Kadir gen eds) (Academy Publishing, 2012) at para 20.102). The power to set aside the conviction is not foreclosed by the fact that the safeguards attending the taking of a plea of guilt have been observed in the lower court (Yunani bin Abdul Hamid v PP [2008] 3 SLR(R) 383 (“Yunani”) at [59] per V K Rajah JA); but there is a high threshold to be met. Such a power may be exercised only sparingly, and only if there is “serious injustice” or a “miscarriage of justice”. In my judgment, this would be the case if, upon application, the court is satisfied either that there were real doubts as to the applicant’s guilt or that the applicant had been pressured to plead guilty in the sense that he or she did not genuinely have the freedom to choose how to plead (Yunani at [50] and [55]–[56]; Thong Sing Hock v Public Prosecutor [2009] 3 SLR(R) 47 at [23] and [27] per Rajah JA).

It will be helpful to examine once again some of the Canadian cases that were referred to and formed the basis for the decision of the court in Yunani in order to get a sense of the kind of pressure from counsel that would ordinarily vitiate a guilty plea. In R v Lamoureux (1984) 13 CCC (3d) 101 (“Lamoureux”), the Quebec Court of Appeal exercised its appellate power to quash a conviction following a guilty plea on the ground of a “miscarriage of justice” (pursuant to s...