Garmaz s/o Pakhar and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 12 October 1995
• Neutral Citation: [1995] SGHC 240
• Docket Number: Magistrate's Appeals Nos 280/94/01
• Date: 12 October 1995
• Published date: 19 September 2003
• Year: 1995
• Plaintiff Counsel: Sant Singh and Gordon Oh (Chor Pee & Co)
• Citation: [1995] SGHC 240
• Defendant Counsel: Mathavan Devadas (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: s 122(7) Evidence Act (Cap 97),Criminal Procedure and Sentencing,Impeaching witnesses’ credibility,Charges disclosed two separate dates in respect of same offence,Whether appellants had lowered their shield,Evidence of previous Police Disciplinary Board convictions admitted,Accomplice evidence,No requirement for special caution where witness is a mere payor,Whether alibi defence relied upon by appellants,Lack of reference to defence in s 122(6) statement,Whether fresh consent necessary before High Court could amend charge,Defence,Whether trial judge misdirected himself,Evidence,Criminal Law,Conviction on amended charge,Alibi defence,s 107 Penal Code (Cap 224),Alternative charges,s 25 Prevention of Corruption Act (Cap 241),No notice of particulars given,Public prosecutor's consent in corruption cases,ss 29 & 31 Prevention of Corruption Act (Cap 241),Whether witness played an 'infamous part' in corrupt act,Character evidence,s 172 Criminal Procedure Code (Cap 68),No requirement for corroboration,Witnesses,s 147(3) Evidence Act (Cap 97),ss 116 Illustration (b) & 135 Evidence Act (Cap 97),Charge,s 256(b)(ii) Criminal Procedure Code (Cap 68),Alteration,s 33 Prevention of Corruption Act (Cap 241),No prejudice to appellants,ss 123 & 182 Criminal Procedure Code (Cap 68),Whether adverse inferences could be drawn,Trials,Abetment by conspiracy,Whether alternative charges properly framed,Proof of evidence,Corruption cases,Court should scrutinise whole of evidence to determine what was true,Abetment,Abetment of payment of corrupt gratification,Amendment of charge by High Court in appellate capacity

Cur Adv Vult

Background

The two appellants were both former police officers, attached to Ang Mo Kio police station. The first appellant (`Garmaz`) retired on 16 April 1993 while the second appellant (`Jaswinder`) resigned on 11 December 1993. Jaswinder was originally charged under s 29(a) read with s 6(a) of the Prevention of Corruption Act (Cap 241, 1993 Ed) (`PCA`) with abetting Garmaz in committing the offence of corruptly accepting a gratification of $2,000 on or about 6 July 1991, by intentionally arranging with one Barlly Tan Kim Hock (`Tan`) (PW1) to give the money to Garmaz through one Leong Kin Eng (`Leong`) (PW5). Garmaz was originally charged under s 6(a) of the PCA with having corruptly accepted from Tan, through Leong, a gratification of $2,000 as an inducement to recommend that no further action be taken on a case against Leong. Leong, who was also known as Christopher Leong, was then under investigation by Garmaz for an alleged offence of illegal moneylending and vandalism. A total of seven other charges were stood down by the prosecution. The appellants did not object to being tried jointly on the above two charges.

The case for the prosecution

(i) Barlly Tan`s evidence

Tan (PW1) gave evidence that he was asked by one Ang Chee Soon (`Ang`) (PW4) to help out one Ong Thian Lye (`Ong`), who had been arrested for suspected illegal moneylending on 4 July 1991. Tan knew Jaswinder, and made an appointment to meet him at the Blue Berry Lounge in Upper Thomson Road. According to Tan, five persons met at the Lounge - Jaswinder, Garmaz, Ang, Leong and Tan himself. Tan could not confirm when they met. After meeting, they went to the Green Lounge at United Square.

Tan testified that Jaswinder then called him one or two days later and asked whether Tan could help him borrow $2,000. Tan said he would try to help him but he did not. He claimed that he himself did not lend Jaswinder any money. This portion of his evidence contradicted para 15 of his statement which was recorded by SSI Sng Jin Poh (PW3). Paragraph 15 reads:

On the second day, Jaswinder Singh paged for me. When I contacted him, he told me that he wanted to borrow $2,000 friendly loan from me. As I have mentioned, I treated Jaswinder Singh as my friend, therefore, I agreed to lend him the money. I then asked my worker Christopher to arrange with Jaswinder Singh for handing the $2,000 requested by Jaswinder Singh. Similarly, I did not know how Christopher Leong got the $2,000 - but he had been collecting debts for me, I presume he could have taken the money from the debts collected by him. As far as I remember, Jaswinder Singh has not repaid me his loan. I have not pressed him to repay me the loan since he is my friend. It is not important to me whether he will repay me the loan.

The DPP thus applied to treat Tan as a hostile witness. The court went on to admit Tan`s statement. No further material evidence was received from Tan. The district judge eventually ruled at the close of the prosecution`s case that Tan`s credit had been impeached.

(ii) Ang`s evidence

Ang`s evidence is not really material. Consistent with Tan`s evidence, Ang said that he had asked for assistance in relation to Ong Thian Lye`s arrest. Ang also said that the meeting at the Blue Berry Lounge took place on 5 July 1991.

(iii) Leong`s evidence

Leong was the main prosecution witness. Leong had been working for Tan since 1989. Tan was an illegal moneylender. Leong testified that he had been arrested and interrogated on 25 September 1990 in relation to a complaint of vandalism and illegal moneylending made by one Oh Kian Tiong. After rigorous interrogation, Jaswinder approached him and told him not to worry as they would know what to do. Jaswinder told him that his boss`s name should not be mentioned and that Garmaz was the Investigating Officer. Leong was later released on bail and was never charged with any offence.

Leong said that on 5 July 1991, he went to the Blue Berry Lounge upon Tan`s instructions. Leong confirmed that the five persons mentioned by Tan were all present there. Later they adjourned to another lounge. On 6 July 1991, Tan informed Leong to prepare $2,000 to be handed over to Jaswinder. Leong arranged to meet Jaswinder at the Blue Berry Lounge that night at about 8pm. Garmaz turned up instead. Leong was not prepared to hand the money to Garmaz, but agreed to do so after speaking to Jaswinder over the telephone. Garmaz suggested that, as there were too many people around, the transaction should be carried out at Yishun Seafood Restaurant. Upon arriving at Yishun Seafood Restaurant at about 9pm, Leong saw both Garmaz and Jaswinder there. He handed the money to Garmaz, who counted the money and put it in his shirt pocket. Garmaz then told him that his case had been `NOD`, an acronym meaning `no offence disclosed`. Leong understood this to mean that there would be no problem with his 1990 case in court.

In cross-examination, Leong said that he had never known about the $2,000 `settlement`. It was only on 6 July 1991 that Tan had asked him to bring $2,000 to see the two appellants. Only after the money had been paid did Leong know that his case had been finally settled. He said that his recollection of the date was based on the fact that on 4 July 1991, another colleague (Ong Thian Lye) was arrested in Sin Ming. Tan told him about this incident, and the following day (5 July 1991) he met the appellants at the Blue Berry Lounge. Leong was very sure that the money was handed over to the appellants on 6 July 1991.

(iv) The evidence of R Vidhysagaran (`Ringo`) (PW6)

One of the arresting officers when both Leong and Ong were arrested in 1990 and 1991 respectively was Detective Station Inspector R Vidhysagaran, otherwise known as `Ringo`. Ringo gave evidence that he arrested Ong Thian Lye on 4 July 1991. The arrest report in respect of Ong Thian Lye filed by one Pang Ai Jee was produced.

Ringo said that on 9 July 1991, he was at the Green Lounge at United Square, having drinks with some colleagues. He happened to see Jaswinder who was standing with a male Chinese, who was introduced to him as Barlly (Tan). Ringo declined their invitation to join them for a drink. He saw Garmaz as well. He had not met both the appellants on any other occasion at the Green lounge. He wrote in his pocket book the date he was at the Green Lounge.

In cross-examination, Ringo confirmed that he had seen the appellants and Barlly on 9 July 1991. He could not say whether Leong was there.

(v) The other evidence adduced by the prosecution

The prosecution also called Lee Nai Kong (`Lee`) (PW7), who was then Head Investigation, Ang Mo Kio police station. Lee produced the station duty rosters for September 1990 and July 1991. On 5 July 1991, both appellants were on 24-hour duty, which began at 6am on 5 July and ended at 6am the next day. The minute sheets relating to Leong`s case were produced. They showed that at the end of investigation, no further action was taken against Leong and the investigation papers were sent for filing. Lee identified the officer who wrote NFA (`No Further Action`) and CFF (`Case for Filing`) in the minutes as Chief Inspector II Rosli Magnus. These instructions were given upon Garmaz`s written recommendation.

The last witness for the prosecution was Rosli Magnus (`Rosli`) (PW8). Rosli was attached to Ang Mo Kio police station in 1991 as senior investigating officer. The investigation papers in respect of Leong were produced and Rosli was referred to the minutes recorded. He confirmed that he eventually accepted Garmaz`s recommendation that no further action be taken against Leong.

(vi) The application to amend the charges

Before Rosli`s evidence was heard, the prosecution applied to amend the charges. The amended charges were tendered for consideration and submissions were heard only after Rosli`s evidence had been recorded. The proposed amendments would add an alternative charge against each appellant. The only difference from the original charges was that the alternative charges specified that the offence took place on 10 July 1991 and not 6 July 1991. The prosecution evidently felt that this was necessary because of the different dates cited by Leong and Ringo as to when the offence had taken place.

Counsel then acting for the appellants objected to the prosecution`s application. Counsel argued that the prosecution was not entitled to tailor the charge to suit the evidence, when the prosecution`s own evidence as to the dates was contradictory. The defence was prejudiced as they had relied on an effective `alibi`. The prosecution contended that the discrepancy was not material, but rather one which could have arisen as a result of inaccurate recollection of dates from Leong, Tan and Ang. As for the contentions of alibi, the prosecution pointed out that no notice of alibi had been given.

The district judge allowed the prosecution`s application. The amended charges were read to the appellants, who claimed trial.

Submission of no case to answer

Counsel for the appellants sought to argue that there was no case to answer. He pointed out that Tan`s credit had been impeached. Leong`s credibility was doubtful. Moreover, it was only after Ringo gave evidence that the prosecution realised that alternate charges were necessary. There could only be one act of corruption which must have taken place on only one date. It was not open to the prosecution to frame the charge in the alternative.

In reply, the prosecution pointed out that Tan`s credit was impeached only on the question of the loan of $2,000. The remainder of Tan`s evidence stood, at least up to the point where he began to retract the evidence in his statement regarding the $2,000. The date of the meeting was not vitally significant. The point was that there was sufficient evidence to show that Leong gave the $2,000 to Garmaz on either 6 July 1991 or 10 July 1991.

The district judge ruled that a...