Ganesun s/o Kannan v Public Prosecutor

JudgeYong Pung How CJ
Judgment Date19 September 1996
Neutral Citation[1996] SGHC 210
Docket NumberMagistrate's Appeal No 85 of 1996
Date19 September 1996
Published date19 September 2003
Plaintiff CounselS Shankar (SK Kumar & Associates)
Citation[1996] SGHC 210
Defendant CounselLee Seng Lit and Janet Wang (Deputy Public Prosecutor)
CourtHigh Court (Singapore)
Subject MatterCriminal Procedure and Sentencing,ss 244, 266 & 268 Criminal Procedure Code (Cap 68),Appeal,Trial judge's refusal to exercise discretion to withdraw guilty plea,Proper procedure by revision,Principles applied in exercise of discretion

The appellant, who was a hawker, operated an Indian food stall named Bilai Muslim Food at Bee Huat Eating House in Yishun. On 10 August 1995, enforcement officers from the Ministry of Labour arrested one Indian overstayer, Durasamy Devarajan, and one Sri Lankan overstayer, Mohamed Nazar Yusoof Kamal, at the appellant&`s food stall. They were both found to be working when they were arrested. In fact, the Sri Lankan national, Mohamed Nazar, was found to have overstayed in Singapore for no less than 94 days.

The appellant was thus charged under s 57(1)(e) of the Immigration Act (Cap 133) (the Act) with the offence of employing a Sri Lankan national, Mohamed Nazar, who had overstayed on his visit pass in contravention of s 15(1) of the Act.
The appellant pleaded guilty to this charge. As a result, a second charge of the same nature under s 57 of the Act was taken into consideration. In the second charge, the appellant was indicted for employing Durasamy Devarajan, an Indian national, as a general worker at the stall when he had overstayed his visit pass, in contravention of s 15(1) of the Act.

The facts of this case were largely found on the statement of facts, which was admitted by the appellant without qualification at the trial below.
The appellant admitted that sometime on 18 May 1995, the licensee of the stall, one Ganapathy s/o Murugayan, informed the appellant that he would be leaving Singapore for India at the end of the month. He requested the appellant to take care of his stall business. The appellant was told to engage his own workers to operate the stall. He agreed and began operating the stall a month later.

When the appellant went to take over the business on 18 June 1995, he saw Mohamed Nazar making the roti prata at the stall.
The appellant informed him that he would be taking over the stall business and he would continue to employ him to make the roti prata for a daily wage of $50.00. On 21 June 1995, Mohamed Nazar told the appellant that he was an overstayer. However, the appellant continued to employ him until he was arrested on 10 August 1995. In fact, the appellant had last paid his wages on 9 August 1995, the day before he was arrested.

The appellant pleaded guilty to the first charge on 29 February 1996, and the second charge was taken into consideration.
The case was adjourned to 25 March 1996 for sentencing and bail was extended. On that day, counsel for the appellant, Mr Subir Singh, applied for a discharge and informed the court that Mr SK Kumar would be taking over the case.

Mr Kumar then informed the court that the appellant wished to retract his plea of guilty made on 29 February 1996, for the following reasons.
First, the appellant was not the employer but was, in fact, an employee himself, the employer being the said Ganapathy s/o Murugayan, the licensee of the stall. Second, the appellant had pleaded guilty because he was not confident that the documents he needed for his defence would arrive in time for the trial.

The trial judge rejected the appellant&`s application to retract his plea of guilty, and he was sentenced to seven months&` imprisonment.
The appellant, being dissatisfied with the decision, appealed against the refusal of the court to retract his plea of guilty.

The appeal

At the outset, it should be noted that although counsel for the appellant was challenging the trial judge&`s decision in refusing to allow the appellant to retract his plea of guilty, he was in effect appealing against the correctness of his conviction.
This was despite his having pleaded guilty to the charge. Section 244 of the Criminal Procedure Code (CPC) clearly states that :

When an accused person has pleaded guilty and been convicted by a District Court or Magistrate&`s Court on that plea there shall be no appeal except as to the extent or legality of the sentence.

Although an examination of the Malaysian cases would suggest that the normal procedure of appealing against conviction was used, where the appeal was against the trial judge&`s refusal to allow a plea of guilty to be retracted, I am of the opinion that the appellant was precluded from appealing against his conviction by virtue of s 244 of the CPC.
The correct procedure should have been to apply for a revision. As I have explained above, this was because the appellant was in effect appealing against the correctness of his conviction ~ Mok Swee Kok v PP [1994] 3 SLR 140, Chen Hock Heng Textile Printing v PP [1996] 1 SLR 745.

The court can exercise its discretion and deal with

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42 cases
  • Teo Hee Heng v Public Prosecutor
    • Singapore
    • High Court (Singapore)
    • 4 July 2000
    ... ... In order for a plea of guilt to be valid and unequivocal, three safeguards must be observed: see Lee Weng Tuck v PP [1989] 2 MLJ 143 , Ganesun s/o Kannan v PP [1996] 3 SLR 560 ... Firstly, the court must be satisfied that it is the accused himself who wishes to plead guilty. Secondly, the ... ...
  • Balasubramanian Palaniappa Vaiyapuri v Public Prosecutor
    • Singapore
    • High Court (Singapore)
    • 23 January 2002
    ...1 SLR 815. 22 The test in determining the validity of the plea of guilt had been definitively laid down in Ganesun s/o Kannan v PP [1996] 3 SLR 560 and Rajeevan Edakalavan (supra). It was held that the following safeguards must be observed before the plea would be deemed valid and unequivoc......
  • Lee Eng Hock v Public Prosecutor
    • Singapore
    • High Court (Singapore)
    • 1 February 2002
    ...1 SLR (R) 122; [2002] 1 SLR 192 (folld) Chua Qwee Teck v PP [1990] 2 SLR (R) 571; [1991] SLR 857 (folld) Ganesun s/o Kannan v PP [1996] 3 SLR (R) 125; [1996] 3 SLR 560 (folld) R v Peace [1976] Crim LR 119 (refd) R v Turner [1970] 2 QB 321; [1970] 2 All ER 281 (distd) Criminal Procedure Code......
  • Shan Kai Weng v Public Prosecutor
    • Singapore
    • High Court (Singapore)
    • 6 November 2003
    ...ensure that a plea of guilt can safely form a basis for conviction. The test has been definitively laid down in Ganesun s/o Kannan v PP [1996] 3 SLR 560, and followed in Rajeevan Edakalavan v PP [1998] 1 SLR 815 and Koh Thian Huat v PP [2002] 3 SLR 28. As such, the following safeguards must......
  • Request a trial to view additional results
1 books & journal articles
    • Singapore
    • Singapore Academy of Law Journal No. 2020, December 2020
    • 1 December 2020
    ...(Cap 68, 2012 Rev Ed). 9 See Koh Bak Kiang v Public Prosecutor [2016] 2 SLR 574 at [42] and Ganesun s/o Kannan v Public Prosecutor [1996] 3 SLR(R) 125 at [15]–[20]. 10 Ganesun s/o Kannan v Public Prosecutor [1996] 3 SLR(R) 125 at [20]. 11 See Lee Weng Tuck v Public Prosecutor [1989] 2 MLJ 1......

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