Goh Cheng Chuan v Public Prosecutor

• Jurisdiction: Singapore
• Judge: L P Thean J
• Judgment Date: 27 July 1990
• Neutral Citation: [1990] SGHC 49
• Date: 27 July 1990
• Subject Matter: Court's discretion to grant discharge,Initiating and continuing a charge,Trials,'Unless the court so directs',Criminal Procedure and Sentencing,ss 184(2) & 335(1) Criminal Procedure Code (Cap 68),art 35(8) Constitution of the Republic of Singapore,s 184(2) Criminal Procedure Code (Cap 68),ss 180 & 184 Criminal Procedure Code (Cap 68),How discretion should be exercised,Words and Phrases,Discharge amounting to an acquittal,Role of public prosecutor,Discharge
• Docket Number: Magistrate's Appeal No 38 of 1988
• Published date: 19 September 2003
• Defendant Counsel: Loke Yuen Kee
• Court: High Court (Singapore)
• Plaintiff Counsel: NS Kang and James Joseph (NS Kang)

Cur Adv Vult

This is an appeal against the decision of the district judge given on 2 February 1987 in which, upon application by the prosecution, he made an order under s 184 of the Criminal Procedure Code (Cap 68) discharging the above-named appellant, such discharge not to amount to an acquittal.

The material facts that led to this appeal are briefly these. The appellant, who was a police constable in the Singapore Police Force, was first charged on 17 July 1985 with two offences punishable under s 6(a) of the Prevention of Corruption Act (Cap 241) in DAC 6932/ 85 and DAC 6933/85 respectively. On the same day also, one Lim Chee Leng (Lim) was charged in DAC 6879/85 with abetting the appellant in the commission of the offence in DAC 6932/85 as well as with another offence under s 170 of the Penal Code (Cap 224) in MAC 17949/85. All these charges were mentioned in the subordinate court, Court No 26, on several occasions until 25 September 1985, when the charges in question against both of them, the appellant and Lim, were set down for trial jointly on 21 April 1986.

On 21 April 1986, before the trial commenced, counsel for Lim informed the court that Lim was not well and would have to see a doctor and accordingly sought an adjournment which was granted; the case against Lim was adjourned to 12 May 1986 for mention. The prosecution, however, applied to proceed on the charge against the appellant in DAC 6933/85 only and to have the charge in DAC 6932/85 stood down, which was also granted by the court. The trial on the first charge then proceeded. At the close of the case for the prosecution, the learned district judge found that the prosecution had failed to make out a case against the appellant, which, if unrebutted, would warrant his conviction. Accordingly, the appellant was acquitted of that charge. As for the charge in DAC 6932/ 85, it was set down for further mention on 12 May 1986, which was the same date the charge against Lim would be mentioned.

On 12 May 1986, the charge against the appellant in DAC 6932/856 and the two charges against Lim in DAC 6879/85 and MAC 17949/85 respectively were mentioned. The deputy public prosecutor applied for adjournment for six months on the ground that a material witness was then not available. The court was informed that efforts were being made to trace the witness and the charges were still under consideration. There was no objection to the application from counsel for the defence. Accordingly, the application was allowed and the cases were set down for further mention on 13 October 1986.

The cases against both the accused accordingly came on for mention on that day. The deputy public prosecutor informed the court that the material witness had not been traced and all efforts were being made to trace him so that the charges against both the accused could be proceeded with. In the circumstances, she applied for another adjournment for three months. This application, however, was opposed to by counsel for the accused on the ground that sufficient time had been given to the prosecution to trace the witness. Counsel submitted that it was quite obvious that the prosecution was unable to proceed against the accused at that stage; he also said that one of the complainants had died. He therefore applied for an order that each of the accused be discharged, such discharge to amount to an acquittal. The learned district judge decided in favour of the prosecution`s application and adjourned the cases to 2 February 1987.

On 2 February 1987, upon the cases coming on for mention, the deputy public prosecutor applied for a discharge not amounting to an acquittal as the prosecution had still not been able to trace the material witness. She informed the court that the witness was known to have been employed in two places in Johore Bahru and efforts were being made with the assistance of the Anti-Corruption Agency of Malaysia to trace the witness and that the prosecution had every intention to proceed against both the accused once the witness was traced and found. Counsel for the accused objected to her application on the ground that the two accused were first charged in July 1985 and since then one of them had been interdicted. He submitted that the prosecution had been given ample time to trace the witness and it would be unfair to have the charges hanging over the heads of the accused indefinitely. In effect, he urged the court to order that the discharge to be granted to each of the accused should amount to an acquittal, and he relied on the decision of Lai Kew Chai J in K Abdul Rasheed v PP [1985] 1 MLJ 193 . The learned district judge rejected the submission of counsel for the accused and allowed the application of the deputy public prosecutor; he discharged both the accused, the discharge of each of them not to amount to an acquittal. Against that decision the appellant has brought this appeal.

It is common ground that when the deputy public prosecutor applied to the learned district judge for an order that each of the accused be discharged, such discharge not to amount to an acquittal, she was, in effect, proceeding under s 184 (then s 183) of the Criminal Procedure Code, which provides as follows:

(1) At any stage of any summary trial before judgment has been delivered, the Public Prosecutor may, if he thinks fit, inform the court that he will not further prosecute the defendant upon the charge and thereupon all proceedings on the charge against the defendant shall be stayed and he shall be discharged from and of the same.

(2) Such discharge shall not amount to an acquittal unless the court so directs except in cases coming under s 177.

However, it is to be observed that the deputy public prosecutor in invoking this section never uttered a word to the effect that she would `not further prosecute` the accused. On the contrary, in applying for `an order of discharge not amounting to an acquittal` she said, among other things, that `the prosecution [had] every intention to proceed against the two accused` once the material witness was found. This ingenious move, it seems to me, was adopted to obviate the difficulty which was considered to be faced by the prosecution in Abdul Rasheed . Such a move is undesirable, as it is unclear and confusing. If that section is invoked, it can only operate on the basis that the prosecution `will not further prosecute` the accused. The decision whether to prosecute or not rests entirely with the prosecution: it is for the prosecution to decide whether or not it will further prosecute the accused on the charge in question; if it so decides not to do so, it ought to inform the court in clear terms. Upon the prosecution informing the court that it will not further prosecute the accused on the charge, the section comes into operation, and by virtue of its express terms all the proceedings on the charge against the accused are stayed and the accused is discharged and such discharge shall not amount to an acquittal unless the court so directs or except in cases coming under s 177 (this section is irrelevant for the purpose of this appeal). Therefore, in an ordinary case, the order of discharge under s 184 does not amount to an acquittal. That this is the nature of the order is dictated by the express terms of the section and not by what the prosecution told the court as regards its intention on the future prosecution of the accused on the charge. The learned district judge therefore erred when he said:

Where the public prosecutor has informed the court that he will not `further prosecute` the accused and further makes it very clear that he intends eventually to proceed with his prosecution of the accused on the charge, it becomes not only abundantly clear that the order discharging the accused shall not amount to an order of acquittal as well but a course that cannot be countermanded.

His reasoning is based on the role played by the public prosecutor as provided in s 336(1) of the Criminal Procedure Code and art 35(8) of the Constitution of the Republic of Singapore. Section 336(1) provides:

The Attorney General shall be the Public Prosecutor and shall have the control and

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