Ganesun s/o Kannan v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 19 September 1996
• Neutral Citation: [1996] SGHC 210
• Docket Number: Magistrate's Appeal No 85 of 1996
• Date: 19 September 1996
• Published date: 19 September 2003
• Year: 1996
• Plaintiff Counsel: S Shankar (SK Kumar & Associates)
• Citation: [1996] SGHC 210
• Defendant Counsel: Lee Seng Lit and Janet Wang (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Criminal 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...