Garmaz s/o Pakhar and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Goh Joon Seng J
• Judgment Date: 31 January 1996
• Neutral Citation: [1996] SGCA 5
• Docket Number: Criminal Reference No 2 of 1995
• Date: 31 January 1996
• Published date: 19 September 2003
• Year: 1996
• Plaintiff Counsel: Sant Singh and Gordon Oh (Chor Pee & Co)
• Citation: [1996] SGCA 5
• Defendant Counsel: Sowaran Singh and Toh Han Li (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: Consent of public prosecutor in prosecution of corruption cases,Public prosecutor,Alteration,s 256(b)(ii) Criminal Procedure Code (Cap 68),Criminal Procedure and Sentencing,Whether fresh consent necessary before High Court could amend charge,Charge,Whether High Court had power to amend a charge in its appellate capacity

Cur Adv Vult

(delivering the judgment of the court): The High Court has reserved for decision of this court two questions of law of public interest which had arisen in the course of an appeal before it, the determination of which had affected the event of the appeal. The questions are:

(1) whether the High Court, exercising its appellate criminal jurisdiction, has the power to amend a charge pursuant to s 256(b)(ii) of the Criminal Procedure Code (Cap 68);and

(2) whether a fresh consent of the public prosecutor is required when a charge preferred under the Prevention of Corruption Act (Cap 241) is amended by the appellate court.

The relevant facts that gave rise to the questions before us are these. The applicants, who were the appellants (`the appellants`), were at the material time police officers. Before the district court, the first appellant was charged with having corruptly accepted from one Barlly Tan Kim Hock a gratification of a sum of $2,000 as an inducement to recommend that no further action be taken on a complaint against one Leong Kin Eng which the first appellant was then investigating, an offence punishable under s 6(a) of the Prevention of Corruption Act (Cap 241, 1993 Ed) (`the Act`). The second appellant was charged with having abetted the first appellant in the commission of that offence by arranging for Barlly Tan Kim Hock to give the money to the first appellant, an offence punishable under s 29(a) read with s 6(a) of the Act. They both claimed trial to their respective charges and were tried jointly. At the close of the prosecution`s case, the respective charges against the appellants were, on application by the prosecution, amended by the addition of alternative charges against the appellants respectively, and fresh consents from the public prosecutor were tendered in respect of the alternative charges. Except for the date on which the offences were alleged to have been committed, the alternative charges were exactly the same as the charges originally framed. The learned district judge called upon the appellants to enter upon their defence on the amended charges and the appellants each gave evidence in their defence. At the close of the case, the learned district judge found them guilty of the alternative charges respectively and convicted them accordingly. The appellants were each sentenced to six months` imprisonment and ordered to pay a penalty of $2,000 and in default of payment to serve a term of imprisonment of one month.

Against their convictions and sentences, they appealed to the High Court. Their appeals were heard before Yong Pung How CJ. In a reserved judgment, reported in [1995] 3 SLR 701 , the learned Chief Justice dismissed their appeals. The learned Chief Justice held, inter alia, that the district judge erred in allowing the prosecution to amend the charges by adding the alternative charges against the appellants respectively. He opined that these charges gave rise to a suggestion that there were two separate offences of corruption on the two different dates, namely, 6 and 10 July 1991, when it was clear that the appellants were each being prosecuted in respect of only one offence of corruption which was alleged to have taken place on either of the two dates. The alternative charges were only introduced because the prosecution was unable to pin-point the precise date when the offence of corruption took place. The learned Chief Justice amended the original charges by adding an alternative date of 10 July to the existing date of 6 July 1991 in respect of both the appellants and eliminated the alternative charges. In doing so, he held that fresh consent from the public prosecutor was not necessary. In amending the charges the learned Chief Justice invoked the court`s powers under s 256(b)(ii) of the Criminal Procedure Code (Cap 68) (`CPC`). We shall refer to this provision in greater detail shortly. As amended, each charge averred that the offence took place `on or about the 6th or the 10th day of July 1991`. The appellants were convicted on the amended charges and their sentences were maintained.

After the judgment was delivered, counsel for the appellants made an oral application for the two questions to be reserved for determination by this court under s 60 of the Supreme Court of Judicature Act as questions of law of public interest which had arisen in the course of the appeal, the determination of which had affected the event of the appeal. The application was allowed by the learned Chief Justice, and hence the questions have come before this court.

Question (1): The High Court`s power to amend a charge

We turn first to s 256 of the CPC which sets out the powers of the High Court in the exercise of its appellate jurisdiction. This section, in so far as relevant, provides:

At the hearing of the appeal the court may, if it considers there is no sufficient ground for interfering, dismiss the appeal or may -

(a) ...

(b) in an appeal from a conviction -

(i) reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a court of competent jurisdiction or committed for trial;

(ii) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or enhance the sentence; or

(iii) with or without the reduction or enhancement and with or without altering the finding, alter the nature of the sentence.

...

Clearly there is no express power conferred by these provisions on the High Court to amend the charge at the hearing of an appeal from the court below. There are two previous decisions to the effect that the High Court in exercising its appellate jurisdiction has no power under this section to amend the charge.

In Quek Ching Kim v R [1956] MLJ 54 , the accused was convicted before the magistrate`s court of an offence against s 4(c) of the Common Gaming Houses Ordinance. On appeal to the High Court, a point was taken that the charge was erroneously worded and did not disclose an offence against s 4(c). That was conceded by counsel for the Crown; and it was further conceded by him that he was not entitled to ask the appellate court to amend the charge at that stage. Whyatt CJ, who heard the appeal, agreed with counsel. The learned Chief Justice said, at p 54:

... Counsel for the Crown did not seek to press the point that he was entitled to ask the appellate court to amend the charge at the appellate stage. In adopting this attitude counsel for the Crown stated that he was influenced by the fact that sub-s (2) of s 156 [now s 163] of the Criminal Procedure Code provided that any amendment to a charge should be read and explained to the accused, but since on appeal the accused was not necessarily present, it seemed to follow that the intention was that such amendments could only be made during the proceedings before a magistrate.

I agreed with the view of counsel for the Crown that the charge as worded did not disclose any offence and it was now too late to amend it so as to bring it within the provisions of s 4(c) of the Common Gaming Houses Ordinance. I accordingly allowed the appeal.

In Wee Toon Boon v PP [1976] 2 MLJ 191 , the accused was convicted before the district court of five charges under the Prevention of Corruption Act. On appeal to the High Court, it was argued on his behalf and conceded by the prosecution that the fourth charge had not been made out and ought to be set aside. The prosecution then invited the court to act under s 246 (now s 256) of the CPC and substitute `a conviction on the original fourth charge`. Wee Chong Jin CJ declined to do so. He said, at p 198:

The powers of this court sitting as an appellate court are statutory and clearly s 246 [now s 256] gives no power on appeal to alter or amend a charge and accordingly the conviction and sentence on the amended fourth charge cannot stand.

With respect, it seems to us that strictly speaking the prosecution was not asking the court to amend the charge; the prosecution was asking the court to alter the finding made below and in consequence to substitute a conviction of an offence with which he had not been charged for the conviction of the fourth charge which could not be sustained. That, on the authorities which we shall discuss in a moment, the court has power to do under s 246.

The Malaysian Criminal Procedure Code (FMS Cap 6) contains provisions very similar to those of s 256 of the CPC, and the relevant provisions are in the following terms:

316 At the hearing of the appeal the Judge may, if he considers there is no sufficient ground for interfering, dismiss the appeal, or may -

(a) ...

(b) in an appeal from a conviction or in an appeal as to sentence (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried or committed for trial; or (ii) alter the finding, maintaining the sentence, or with or without altering the finding reduce or enhance the sentence or alter the nature of the sentence;

(c) ...

The Malaysian courts have followed Quek Ching Kim . In Lee Swee Tee v PP [1960] MLJ 161 , the accused was charged with assisting in the `management` of a public lottery contrary to the provisions of the Common Gaming Houses Ordinance 1953 and was convicted. On appeal to the High Court, Rigby J held that the charge did not disclose an offence and was bad in law. He held that the accused, on the facts, could and should have been charged with the offence of assisting in carrying on a public lottery, and said, at p 161:

I have seriously considered whether in the interests of justice I ought not to amend the charge at this stage and, on the facts, convict the appellant of what would have been the correct charge of assisting in carrying on a public lottery. But the same point fell for consideration before Whyatt CJ, in the Singapore case of Quek Ching Kim v R [1956] MLJ 54 . His Lordship in that case agreed

...