Gao Hua v PP

• Jurisdiction: Singapore
• Judgment Date: 20 April 2009
• Date: 20 April 2009
• Docket Number: Criminal Revision No 12 of 2008
• Court: High Court (Singapore)

Gao Hua

Plaintiff

and

Public Prosecutor

Defendant

[2009] SGHC 95

Lee Seiu Kin J

Criminal Revision No 12 of 2008

High Court

Criminal Procedure and Sentencing–Revision of proceedings–Exercise of revisionary powers where there was plea of guilt–Whether pressures faced by applicant to plead guilty should be construed as “serious injustice”–Whether applicant had been placed under very real and substantial pressures by her then-counsel–Credibility of applicant's evidence

The applicant, Gao Hua, pleaded guilty to a charge of corruptly giving gratification to one Chua as an inducement for him to assume criminal liability for operating a massage establishment without a valid licence under the Massage Establishments Act (Cap 173, 1985 Rev Ed) and a second similar charge of giving gratification for the same purpose to one Chong. Following the applicant's plea of guilt, the district judge sentenced her to imprisonment for a term of five months on each charge, with both terms of imprisonment to run consecutively, for a total of ten months' imprisonment.

The applicant applied for criminal revision, seeking to set aside her plea of guilt on the following grounds: (a) she had been wrongly advised and/or misled by her then-counsel, Mr Tan, that only a fine would be imposed on her if she did so; (b) she had been placed under very real and substantive pressures by Mr Tan prior to and at the time she pleaded guilty; (c) her plea of guilt was not valid nor unequivocal and therefore ought not to have been accepted by the district judge; and (d) a serious injustice had occurred as a result of the applicant's invalid plea of guilt being accepted.

Held, allowing the application:

(1) The High Court's power of criminal revision was to be exercised “sparingly”; not all errors by a lower court should lead to a revision of that court's decision. The threshold requirement was that of “serious injustice”. This requirement of “serious injustice” similarly applied in cases where criminal revision was sought to overturn a conviction flowing from a plea of guilt. The crucial question in this case was whether the pressures faced by the applicant to plead guilty should be construed as “serious injustice” which would warrant an exercise of the High Court's power of revision: at [52] and [53].

(2) Seen in their singular contexts, each of the several alleged instances of pressure might not have amounted to such. But to determine whether pressure was indeed exerted on the applicant and whether the pressure had weighed on her mind, resulting in her decision to plead guilty, one had to have regard to the totality of the situation in evaluating the strength of that pressure. The circumstances, viewed in their complete context, supported the conclusion that the applicant could have faced real, concrete and overwhelming pressures that culminated in her plea of guilt: at [56] and [58].

(3) While Mr Tan's response contained a categorical denial, he did not address specifically the applicant's allegations about remarks supposedly made by him to her, or about his conduct during the trial. Consequently, the only relevant evidence on record was the applicant's affidavit, and the weight attributed to this evidence in turn rested on the court's assessment of its credibility. The applicant's evidence was not devoid of credibility; in particular, the record corroborated several facets of the applicant's allegations: at [58] and [59].

Bedico Ma Teresa Bebango v PP [2002] 1 SLR (R) 122; [2002] 1 SLR 192 (refd)

Lee Eng Hock v PP [2002] 1 SLR (R) 204; [2002] 1 SLR 364 (refd)

Thong Sing Hock v PP [2009] 3 SLR (R) 47; [2009] 3 SLR 47 (refd)

Yunani bin Abdul Hamid v PP [2008] 3 SLR (R) 383; [2008] 3 SLR 383 (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed)ss 266-270

Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2000 Rev Ed)r 71

Massage Establishments Act (Cap 173, 1985 Rev Ed)

Prevention of Corruption Act (Cap 241, 1993 Rev Ed)s 5 (b) (i)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)s 23

Shashi Nathan and Lim Teck Yang Jansen (Harry Elias Partnership) for the applicant

Francis Ng (Attorney-General's Chambers) for the respondent.

Lee Seiu Kin J

Introduction

1 The applicant, Gao Hua, pleaded guilty on 13 March 2008 to a charge of corruptly giving gratification to one Chua Hong Keng (“Chua”) as an inducement for him to assume criminal liability for operating a massage establishment without a valid licence under the Massage Establishments Act (Cap 173, 1985 Rev Ed) and a second similar charge of giving gratification for the same purpose to one Chong Ah Choy (“Chong”).

2 The two charges to which the applicant pleaded guilty were for offences under s 5 (b) (i) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed), which are both punishable with a fine not exceeding $100,000 or imprisonment for a term not exceeding five years or both. The applicant consented to six other similar charges being taken into consideration for sentencing. Following the applicant's plea of guilt, the district judge sentenced her to imprisonment for a term of five months on each charge and ordered both terms of imprisonment to run consecutively, for a total of ten months' imprisonment.

3 The applicant subsequently filed an appeal against her sentence on the basis that it is manifestly excessive, as well as the present petition seeking to set aside her plea of guilt.

4 At the end of the hearing before me on 22 August 2008, I set aside the conviction and remitted the case back to the District Court for a retrial. I was satisfied that it was unsafe to uphold the conviction, and now give my grounds of decision.

Application for criminal revision

The applicant's case

5 The application for criminal revision was made on the following grounds:

(a) the applicant had pleaded guilty because she had been wrongly advised and/or misled by her then-counsel, Mr Tan Kay Bin (“Mr Tan”), that only a fine would be imposed on her if she did so;

(b) the applicant had been placed under very real and substantive pressures by Mr Tan prior to and at the time she pleaded guilty;

(c) the applicant's plea of guilt was neither valid nor unequivocal and therefore ought not to have been accepted by the district judge; and

(d) aserious injustice had occurred as a result of the applicant's invalid plea of guilt being accepted.

The applicant's allegations

6 In support of her application for criminal revision, the applicant filed a lengthy affidavit, deposing to the background facts leading to her being charged, and the circumstances through which she met her previous counsel, Mr Tan. In setting out the applicant's version of events hereafter I am fully aware that Mr Tan, although given a chance to respond to this application, may not have been accorded full opportunity to rebut the applicant's allegations against him. If appropriate at a later stage, such opportunity will no doubt be accorded to him. I approached the matter with a view to determining the merits of the application and any decision must necessarily be on the basis of the evidence before me. Therefore in setting out the applicant's case hereafter, I must emphasise that I have made no direct finding as to the veracity of the applicant's allegations.

7 Since we are not concerned here with whether the applicant was in fact guilty of the offences, I will not dwell on the applicant's version of events which led to her being charged (see below at [54]). Instead, I will deal only with the applicant's account of what transpired after her meeting with Mr Tan. According to the applicant, Mr Tan was a lawyer recommended to her by one Ah Shun. She first met Mr Tan in his office around early June 2007. During that first meeting, she confided in Mr Tan everything that had happened to date, including how she had previously been charged and fined in 2005 for operating a massage parlour without a licence. At this time, the applicant had yet to be charged with any offence, but she was concerned about what to do if Corrupt Practices Investigation Bureau (“CPIB”) officers called her in for questioning. Mr Tan advised her not to admit anything at all.

8 Subsequently, the applicant was indeed called in by CPIB for questioning over the course of several days, but she did not admit to anything pursuant to Mr Tan's advice. After each interview, she would consult Mr Tan, who would repeat his instructions for her to keep silent and not admit to anything. One month after the CPIB interviews, the applicant and her husband went to see Mr Tan and it was during this meeting that they allegedly paid Mr Tan $1,000, for which they were not issued a receipt. Mr Tan apparently promised to issue a receipt at the time they met, but had failed to do so. This formed one of the applicant's allegations of impropriety against Mr Tan, but since it has no impact on the issues before me, I will make no further comment.

9 The applicant stated that on 4 July 2007, during one of her interviews with CPIB, she was assaulted by one of her interviewing officers. She was sent to the hospital, where she was treated with painkillers and discharged on the same day. After the incident, the applicant went to see Mr Tan at his office, who very strongly urged her to report the incident. Though the applicant was extremely angry and upset over the assault, she was reluctant to report it because she did not wish to cause any unnecessary problems that might affect her ongoing investigation. However upon further exhortation by Mr Tan, the applicant made a police report.

10 After the applicant made the report, she went to visit Mr Tan again to inform him of what she had done. To her shock and dismay, Mr Tan laughed and said that everyone in the CPIB would hate her henceforth, and that they would all be looking to hurt her. The applicant then asked Mr Tan why he had insisted on her making the report, to...