Dinesh s/o Rajantheran v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chua Lee Ming J
• Judgment Date: 23 November 2018
• Neutral Citation: [2018] SGHC 255
• Plaintiff Counsel: Peter Fernando (Leo Fernando)
• Date: 23 November 2018
• Docket Number: Criminal Revision No 8 of 2018
• Hearing Date: 01 October 2018
• Subject Matter: Criminal procedure and sentencing,Revision of proceedings
• Published date: 27 April 2019
• Defendant Counsel: Mark Jayaratnam, Kelvin Kow and Senthilkumaran Sabapathy (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2018] SGHC 255
• Year: 2018

Chua Lee Ming J:

A plea of guilty carries with it grave implications. By it, the accused person waives his right to be convicted only after a full trial. The prosecution need not adduce evidence to prove the accused person’s guilt. The accused is also precluded from appealing against his conviction even if he subsequently comes to regret the plea, so long as the plea is not set aside. See Koh Bak Kiang v Public Prosecutor [2016] 2 SLR 574 (“Koh Bak Kiang”) at [41].

It is in this light that the law has put in place safeguards to protect against any miscarriage of justice when an accused person is convicted and sentenced on his plea of guilty. As pointed out in Koh Bak Kiang (at [42]), one safeguard is the strict duty imposed on the judge recording the plea to ensure that “the accused understands the nature and consequences of his plea and intends to admit without qualification the offence alleged against him”. This duty is now found in s 227(2) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”). Another is s 228(4) of the CPC, which states that where the court is “satisfied that any matter raised in the plea in mitigation materially affects any legal condition required by law to constitute the offence charged, the court must reject the plea of guilty”.

This issue in this application for criminal revision concerns the scope of s 228(4), specifically, whether it applies where an accused person retracts his plea of guilty and disputes all the elements of the offence, in his mitigation plea. I decided that in such a case, the court is bound under s 228(4) to reject the plea of guilty. I therefore set aside the applicant’s conviction and sent the case back to the State Courts for trial.

The prosecution has filed Criminal Reference No 5 of 2018 to refer the following questions of law of public interest for the decision of the Court of Appeal: Does s 228(4) of the CPC apply to a case where an accused person seeks to retract his plea of guilty at the mitigation stage of sentencing? Must an accused person seeking to retract his plea of guilty at the mitigation stage of sentencing satisfy a court that he has valid and sufficient grounds for his retraction before the court can reject his plea of guilty?

Facts

The facts can be briefly stated. The applicant was charged with 63 offences under s 22A(1)(a) of the Employment of Foreign Manpower Act (Cap 91A, 2009 Rev Ed). Each charge alleged that the applicant had received directly from a foreign employee a sum of $2,000 as a condition for employment by one of two companies that the applicant represented.

The trial proceeded on all 63 charges on 26 April 2018. On the next day, the applicant pleaded guilty to 20 charges and admitted to the amended statement of facts without qualification. He also consented to the remaining 43 charges being taken into consideration for the purposes of sentencing. He was convicted accordingly by the trial judge on that day. The applicant’s then counsel, Mr Kalidass, requested an adjournment for the mitigation plea and his submissions on sentence, and the case was adjourned to 23 May 2018.

Subsequently, the applicant appointed Mr Peter Fernando to represent him in place of Mr Kalidass. By way of letter dated 10 May 2018, Mr Fernando informed the trial judge that he had been instructed to apply for a retraction of the applicant’s plea of guilt and that he was prepared to continue with the trial on 23 to 25 May 2018.¹

As directed by the trial judge, Mr Fernando tendered written submissions on the application to retract the plea of guilty² as did the prosecution. When hearing resumed on 23 May 2018, the trial judge stated that having read the submissions, he was not going to allow the application for the plea to be retracted. The trial judge further stated that if the applicant intended to qualify his mitigation plea, then he would have no choice but to reject the plea.³ After some exchanges between the trial judge, Mr Fernando and the prosecution, the case was adjourned for Mr Fernando to prepare a written mitigation plea.

Mr Fernando filed a mitigation plea⁴ on behalf of the applicant and the hearing resumed the next day, 24 May 2018. The mitigation plea reproduced the same grounds relied upon in the earlier application to retract the plea of guilty. The applicant disputed the material allegations against him in the charges and the statement of facts, including the allegations that he received of $2,000 from each of the employees named in the charges as a condition for their employment.

The trial judge was of the view that the mitigation plea “was not done in good faith and was done with a view to compelling the Court to reject the plea of guilty pursuant to section 228(4) CPC”.⁵ The trial judge described the applicant’s mitigation plea as “a backdoor way to turn back the clock and resile from his plea of guilty” and “an abuse of process”. The trial judge then refused to reject the applicant’s plea of guilty and proceeded to sentence the applicant.

The scope of s 228(4) of the CPC

It is well established that the Court’s power of criminal revision to set aside convictions may be exercised only sparingly and only if there is serious injustice or a miscarriage of justice: Chng Leng Khim v PP and another matter [2016] 5 SLR 1219 at [8].

Section 228(4) of the CPC states as follows: (4) Where the court is satisfied that any matter raised in the plea in mitigation materially affects any legal condition required by law to constitute the offence charged, the court must reject the plea of guilty.

It seems to me that where the court below refused to reject a plea of guilty despite the fact that the mitigation plea materially affected one or more legal conditions required by law to constitute the offence (ie, the mitigation plea qualified the plea of guilty), that would be a miscarriage of justice and the High Court ought to exercise its revisionary powers to set aside the conviction.

Before me, the prosecution did not argue otherwise. However, the prosecution submitted that s 228(4) of the CPC does not apply where an accused person’s mitigation plea amounts to a retraction of his plea of guilty; and an accused person seeking to retract his plea of guilty at the mitigation stage must show valid and sufficient grounds for his retraction.

The language in s 228(4) appears unambiguous. The controversy in this case arose because of a line of cases that have held that an accused person cannot retract his plea of guilty except on valid and sufficient grounds which satisfy the court that it is proper and in the interest of justice that he should be allowed to do so. It was based on this line of cases that the prosecution submitted that the applicant had to show valid and sufficient grounds to support the retraction of his plea of guilty.

A reading of the cases suggests, unsurprisingly, that valid and sufficient grounds exist if the plea of guilty is not valid. The cases recognise that under common law, for a plea of guilty to be valid, three safeguards must be observed. First, the court must ensure that...