Chua Keem Long v Public Prosecutor

• Judgment Date: 22 February 1996
• Date: 22 February 1996
• Docket Number: Magistrate's Appeal No 232 of 1995
• Court: High Court (Singapore)

Chua Keem Long

Plaintiff

and

Public Prosecutor

Defendant

[1996] SGHC 30

Yong Pung How CJ

Magistrate's Appeal No 232 of 1995

High Court

Credit and Security–Money and moneylenders–Illegal moneylending–Distinction between harassment and intimidation–Section 33 (1) Moneylenders Act (Cap 188, 1985 Rev Ed)–Criminal Procedure and Sentencing–Sentencing–Conviction–Prosecution charging accused with harassment when facts more properly disclose elements of intimidation–Power of High Court to substitute conviction in appellate capacity–Section 173 Criminal Procedure Code (Cap 68, 1985 Rev Ed)–Evidence–Proof of evidence–Presumptions–Prosecution omitting to call witnesses present at scene of crime–Whether omission ipso facto giving rise to adverse presumption–Presumption under s 116 illus (g) Evidence Act (Cap 97, 1990 Rev Ed) distinguished from question whether Prosecution exercising discretion correctly in not calling witnesses–Section 116 illus (g) Evidence Act (Cap 97, 1990 Rev Ed)–Evidence–Witnesses–Corroboration–Witness with personal interest to serve–Whether corroboration of evidence given by such witnesses required as a general rule–When mandatory for trial judge to exercise caution in assessing evidence thus given–Words and Phrases–“Harassment”–Section 33 (1) Moneylenders Act (Cap 188, 1985 Rev Ed)–Words and Phrases–“Intimidation”–Section 33 (1) Moneylenders Act (Cap 188, 1985 Rev Ed)

The appellant was convicted of seven charges of illegal moneylending contrary to s 8 (1) (b), and four charges of harassment contrary to s 33 (1) of the Moneylenders Act (Cap 188, 1985 Rev Ed). The Prosecution's case was that the appellant lent money to two complainants and when they failed to repay the amounts loaned, the appellant harassed their respective spouses. The trial judge disbelieved the appellant's contention that the moneys owed were gambling debts, and convicted him. The appellant appealed, submitting that the trial judge erred in not directing his mind to the danger of convicting on the complainants' uncorroborated evidence as they had purposes of their own to serve, being indebted to the appellant; the trial judge placed undue emphasis on the acquaintanceship of the defence witnesses with the appellant in rejecting their evidence; the Prosecution ought to have called several other witnesses, namely, gamblers present when the appellant had obtained payment of the loans, and in failing to do so a presumption that their evidence would be unfavourable to the Prosecution should operate; the trial judge had erred in holding that the appellant's conduct constituted harassment.

Held, allowing the appeal in part:

(1) It was not necessary for the judge to administer himself a warning with regard to the evidence of a person who had an interest to serve. It was open for the judge to so treat the evidence of an interested person with caution, but this was not a general rule. Whether caution was in fact required was very much dependent on the facts of the case. No purpose would be served by the laying down of a rigid rule. Witnesses such as relatives, or persons in an antagonistic relationship with the accused, did not necessarily attract the same caution. The purpose to be served by giving unreliable evidence had to be shown to be particularly strong before such a witness could be regarded as tainted. It was for the trial judge, upon considering the circumstances of the case, to decide whether a particular witness warranted that additional care. So long as it was apparent that the trial judge had not accepted the evidence of witnesses akin to accomplices without scrutiny, an appellate court would be slow to interfere with his findings of fact, or his preferences for one witness's testimony over that of another: at [39], [40] and [41].

(2) There was no rule of law that acquaintanceship with a party to a proceeding always attracted the need for caution. The judge in giving weight to the length of the defence witnesses' acquaintanceship must have taken that into account alongside the other observations he would have been able to make about their credit and veracity and did not therefore place undue weight on it: at [44].

(3) There must be a necessary quality of repetition or persistency for an act to constitute “harassment”. While a single visit or encounter could amount to harassment if its intensity amounted to a persistent attack or persecution, a single visit of a short duration, albeit at a late hour, was insufficient to amount to harassment. However, it could amount to an implied form of intimidation. A cryptic remark that a debt if not repaid would remain forever made in such circumstances as had to be construed as calculated to intimidate, could amount to intimidation. However, where there was only the act of a visit by an illegal moneylender to a debtor's family member in which the family member was told to get the debtor to contact the illegal moneylender, without any warning of consequences or any association with other acts amounting to harassment or intimidation, such an act could not amount to intimidation: at [64] to [69].

(4) It was open to the court to substitute under s 173 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) a conviction of intimidation for one of harassment: at [70].

(5) The presumption in s 116 illus (g) of the Evidence Act (Cap 97, 1990 Rev Ed) that evidence which could be but was not produced would if produced be unfavourable to the person who withheld it was enabling but not mandatory. In determining whether or not that presumption ought to be drawn the court would have regard to all the circumstances, in particular the materiality of the witnesses not produced: at [74].

(6) The presumption under s 116 was evidentiary in nature - a set of facts was taken to be true upon the failure to produce a particular witness. It was distinct from the question of whether the Prosecution exercised its discretion correctly in not calling various witnesses for the Prosecution. It had been thought that the failure to call witnesses might in some circumstances amount to a miscarriage of justice. This was a question of procedural fairness and justice. It had no evidentiary effect. Thus, while both the presumption under s 116 and the Prosecution's duty were concerned with the same situation, the non-production of a witness, they were separate consequences. A miscarriage of justice might arise in a situation in which no presumption could be drawn; a presumption might be drawn in a situation that did not qualify as a miscarriage of justice: at [75].

(7) In a criminal case, the Prosecution had a discretion whether to call a particular witness, provided that there was no ulterior motive, and the witness, who was available to, but not called by, the Prosecution, was offered to the defence. The discretion conferred upon the Prosecution could not be fettered by any obligation to call a particular witness. What the Prosecution had to do was to prove its case. It was not obliged to go out of its way to allow the Defence any opportunity to test its evidence. It was not obliged to act for the Defence. Only if there was an intention to hinder or hamper the Defence would the possibility of a miscarriage of justice arise, requiring interference by the courts: at [76] and [77].

Garmaz s/o Pakhar v PP [1996] 1 SLR (R) 95; [1996] 1 SLR 401 (refd)

Lahvinder Singh v State [1988] Cri LJ 319 (refd)

Lim Boon San v PP [1968] 2 MLJ 45 (refd)

Lim Young Sien v PP [1994] 1 SLR (R) 920; [1994] 2 SLR 257 (folld)

Ng Kum Peng v PP [1995] 2 SLR (R) 900; [1995] 3 SLR 231 (refd)

PP v Tan Poh Heng [1994] 3 SLR (R) 1033; [1995] 1 SLR 518 (refd)

R v Fenlon (1980) 71 Cr App R 307 (refd)

Tan Kheng Ann v PP [1965] 2 MLJ 108 (refd)

Teo Thin Chan v PP [1957] MLJ 184 (refd)

Waisuddin v State [1991] Cri LJ 134 (refd)

Criminal Procedure Code (Cap 68,1985Rev Ed)s 173 (consd)

Evidence Act (Cap 97,1990 Rev Ed)s 116illus (g) (consd);ss 116,135

Moneylenders Act (Cap 188,1985Rev Ed)s 33 (1) (consd);s 8 (1) (b)

Parambir Singh Sekhon (Bridges Choy and Lopez) for the appellant

Wong Choon Ning (Deputy Public Prosecutor) for the respondent.

Yong Pung How CJ

1 This was an appeal from a decision of the District Judge convicting the appellant on seven charges of illegal moneylending contrary to s 8 (1) (b) of the Moneylenders Act (Cap 188) (“the Act”) and four charges of harassment contrary to s 33 (1).

2 Section 8 (1) (b) reads:

If any person … carries on a business as a moneylender without holding a licence … he shall be guilty of an offence and shall be liable on conviction to a fine of not less than $10,000 and not more than $100,000 and for a second or subsequent offence to a fine of not less than $20,000 and not more than $200,000 or to imprisonment for a term not exceeding 12 months or to both …

And s 33 (1) reads:

Any moneylender who, personally, or by any person acting on his behalf, harasses or intimidates his debtor, any member of the debtor's family or any other person in connection with the loan to the debtor at, or watches or besets, the residence or place of business or employment of the debtor, the member of the debtor's family or that other person, or any place at which the debtor receives his wages or any other sum periodically due to him, shall be guilty of an offence and shall be liable on conviction to a fine of not less than $2,000 and not more than $20,000 or to imprisonment for a term not exceeding 12 months or to both …

A total fine of $123,000 was imposed.

3 After hearing the appeal, this court amended the four charges of harassment to charges of intimidation. The appeal was then dismissed save for one of the charges of intimidation. The reasons are now given.

The Prosecution's case below

4 It was alleged that the appellant had lent money illegally to Chong Chew Hua (“Chong”) and Ling Ing Hoi (“Ling”) separately on various occasions in 1994. After both...