Criminal Law

Published date01 December 2019
AuthorTAN Ee Kuan1 MA (Cantab), LLM (Harvard University); Advocate and Solicitor (Singapore); Deputy Public Prosecutor and Deputy Senior State Counsel, Advocacy Group, Attorney-General's Chambers. Sarah SIAW1 BA (Jurisprudence) (Oxon); Advocate and Solicitor (Singapore); Deputy Public Prosecutor and State Counsel, Crime Division, Attorney-General's Chambers.
Date01 December 2019
Citation(2019) 20 SAL Ann Rev 370
Publication year2019
I. Introduction

13.1 This review is in three parts. These will examine, respectively, cases that involved offences under the Penal Code,2 the Misuse of Drugs Act3 (“MDA”) and offences under other statutes.

II. Penal Code
A. Elements of an offence of dishonest misappropriation under section 403 of the Penal Code

13.2 Section 403 of the Penal Code states:

Dishonest misappropriation of property

403. Whoever dishonestly misappropriates or converts to his own use movable property, shall be punished with imprisonment for a term which may extend to 2 years, or with fine, or with both.

13.3 In Ho Man Yuk v Public Prosecutor,4 the Court of Appeal held that to make out an offence under s 403 of the Penal Code, it was not necessary to prove that the accused person had an innocent or neutral

state of mind when he or she first came into possession of the property in question.

13.4 This case arose from a criminal reference brought by an applicant who had been convicted under s 403 of the Penal Code. The applicant was a member of a rewards programme at a casino. As part of a promotion, the casino allowed certain members (including the applicant) to redeem a limited number of Free Play Credits at electronic kiosks within the casino. These credits had no monetary value in themselves, but could be used for gambling on the casino's gambling machines. As a result of a technical system error at one of the electronic kiosks, the applicant's account was credited with $800 worth of free play credits (instead of the $100 to which she was entitled). The applicant then used the credits to gamble at electronic roulette machines and cashed in her winnings. The applicant also got two friends to join her at the casino, and together they exploited the same technical error to obtain a total of 1,029,300 free play credits using the applicant's membership card. The three of them used these credits to gamble and encashed their winnings for a total of $875,133.56.

13.5 The applicant was convicted on one count of abetment by conspiracy to dishonestly misappropriate moneys under s 403 read with s 109 of the Penal Code (amongst other charges). She was granted leave to refer the following question to the Court of Appeal:

Whether a conviction for dishonest misappropriation under s 403 of the [Penal] Code can be made out only if the accused person had an innocent or neutral state of mind when he first came into possession of the property in question.

13.6 The applicant contended that the question should be answered in the affirmative. She claimed that, since she had come into possession of the relevant property with an intent that was dishonest (rather than innocent or neutral) from the very outset, she had not committed the offence under s 403 of the Penal Code. The Prosecution argued that the question should be answered in the negative.

13.7 Applying the principles of statutory construction laid down in the minority judgment in Attorney-General v Ting Choon Meng5 and Tan Cheng Bock v Attorney-General6 (“Tan Cheng Bock”), the Court of Appeal answered the question in the negative.7

13.8 First, on a plain reading of s 403 of the Penal Code, the accused person's state of mind at the time of initial possession — whether innocent, neutral, or dishonest — was irrelevant to a conviction under that provision. The concurrence principle only required that the accused be dishonest at the time he misappropriated or converted the property to his own use.8

13.9 Second, the Court of Appeal then turned to the context of s 403. On the whole, this suggested that initial innocent possession was not a requirement for dishonest misappropriation:

(a) On balance, the illustrations and explanations to s 403 neither supported nor denied the applicant's interpretation of s 403. In any event, s 7A of the Interpretation Act9 provided that illustrations should not be taken as exhaustive of the scope of a provision.10

(b) The Court of Appeal rejected the Prosecution's argument that the text and illustration of s 404 of the Penal Code showed that there was no requirement of initial innocent possession. Section 404 was neutral because it could be interpreted as requiring dishonesty to be assessed at either the time of misappropriation or conversion, or the time the property was first taken possession of.11

(c) Contrary to the applicant's contention, there was no need to read an innocent possession requirement into s 403 of the Penal Code in order to distinguish it from other property offences. The applicant supplied no authority or good reason for why these offences should not overlap.12

(d) However, the Legislature could not have intended innocent possession to be an implicit requirement of s 403 for three reasons:

(i) It would be unusual to require an offender to not possess a particular mental state (that is, dishonesty) at a particular point in time. No other property offence imposed a similar “negative” or exonerative mens rea requirement. There was no apparent reason why a presumptively exonerative fact should be an element of a property offence.13

(ii) The precise contours of the definition of “innocent possession” were unclear. The terms “neutral” and “innocent” were ambiguous, and might not be mutually exclusive with “dishonesty”. A person who was initially neither “innocent” nor “dishonest”, but who subsequently misappropriated the property dishonestly, might escape criminal liability altogether.14

(iii) Even if “innocence” was defined as the converse of honesty (that is, “not dishonest”), there might be a lacuna in the law. Theft under s 378 of the Penal Code required property to be taken out of the possession of a person, whereas dishonest misappropriation under s 403 did not. If s 403 required a person to be “innocent” at the time he took possession of the property, then no criminal liability would attach to (A) a person who found property which was not in anyone's possession, and dishonestly intended to keep it from the outset; or (B) a person who actively sought opportunities to appropriate items misplaced or lost by others, with the intent to keep them for his own use. This result would be absurd.15

13.10 Third, the history of the legislation showed plainly that the drafters of the Indian Penal Code — from which the Penal Code had originated — intended that initial innocent possession should not prevent a subsequent dishonest misappropriation or conversion from constituting an offence. It seemed incongruous to infer an intention to also make initial innocent possession an ingredient of the offence.16

13.11 The Court of Appeal also analysed various academic texts, as well as decisions of the Indian and Sri Lankan courts. The Indian cases and the academic texts were not particularly useful. However, the Sri Lankan Supreme Court decision in Walgamage v The Attorney-General17 was salient and persuasive authority against the innocent possession requirement.18

13.12 Finally, given the court's conclusion (from the text, context, history and purpose of the provision) that innocent possession was not a requirement under s 403 of the Penal Code, there was no room to apply

either the rectifying construction or the strict construction rule in the applicant's favour.19
B. Whether a person who refuses to sign a statement recorded from him under section 22 of the Criminal Procedure Code commits an offence under section 180 of the Penal Code

13.13 In Wham Kwok Han Jolovan v Public Prosecutor20 (“Jolovan Wham”), the High Court held that an accused person who refuses to sign a statement recorded from him under s 22 of the Criminal Procedure Code21 (“CPC”) commits an offence under s 180 of the Penal Code, which states:

Refusing to sign statement

180. Whoever refuses to sign any statement made by him, when required to sign that statement by a public servant legally competent to require that he shall sign that statement, shall be punished with imprisonment for a term which may extend to 3 months, or with fine which may extend to $2,500, or with both.

13.14 The appellant had been convicted under s 180 of the Penal Code for refusing to sign a statement recorded from him under s 22 of the CPC, and sentenced to a $1,200 fine (in default, six days' imprisonment). He appealed against his conviction and sentence. (He also appealed against his conviction and sentence against a charge for organising a public assembly without a permit, which is discussed below.)22

13.15 First, the appellant argued that a police officer recording a statement pursuant to s 22 of the CPC was not a person “legally competent to require” the maker of the statement to sign it. The version of s 22(3) of the CPC then in force23 stated:

A statement made by any person examined under this section must —

(a) be in writing;

(b) be read over to him;

(c) if he does not understand English, be interpreted for him in a language that he understands; and

(d) be signed by him.

13.16 The High Court held that a police officer was legally competent to require the statement-maker to sign his statement. The objective of requiring statements to be signed was to ensure their accuracy and reliability. It was meaningless to require the police officer to obtain the signature of the statement-giver unless the officer also had the power to require the statement-giver to sign it.24

13.17 Secondly, the appellant pointed outthat s 22(2) of the CPC accorded the statement-maker a privilege against self-incrimination. He argued that a police officer was not legally competent to require a person to sign an incriminatory statement. The High Court disagreed: s 22(3)(d) did not distinguish between incriminatory and non-incriminatory statements. Though a person had the right not to say anything incriminating, if he waived this right and gave a self-incriminatory statement, there was no reason why he should not be required to sign it.25

13.18 Since the police...

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